PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 04 SEPTEMBER 2003
         DOCKET NUMBER: AR2003088147


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Frank C. Jones II		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. In effect, the applicant requests that her ROTC (Reserve Officers' Training Corps) debt be forgiven.

3. The applicant states that she was an Army ROTC cadet from August 1998 until January 2001. She entered on active duty on 29 January 2002 for four years. She will perform service on active duty equal to her ROTC service agreement.

4. The applicant’s military records show that as part of a scholarship enlistment in the ROTC, the applicant, on 9 November 1998, signed a DA Form 597-3 (Army Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract), which is an agreement between the Army and a potential ROTC cadet. That form contains the promises made between the Army and the potential cadet, and includes what action the Army will take in the event that a cadet fails to successfully complete the terms of the contract. She agreed to the terms of the ROTC scholarship contract, and that in consideration for that agreement, the Department of the Army agreed to pay for a period of 3 academic years tuition and educational fees up to an annual amount of $16,000.00.

5. On 5 November 2001 the applicant enlisted in the Air Force Reserve delayed entry program (DEP) for 8 years in pay grade E-3. She was discharged from the DEP upon her enlistment in the Regular Air Force for 4 years on 29 January 2002.

6. On 4 January 2002 the Defense Finance and Accounting Center (DFAS) at Denver informed her that she was indebted to the government for $7,167.00 for ROTC education assistance. The DFAS also informed her that if she entered active military service and performed duty for an amount of time equal to her ROTC service agreement, she could request Secretarial acceptance in lieu of recoupment. She had to submit her request to this Board for relief.

7. On 6 September 2002 the applicant's commanding officer requested from DFAS Secretarial acceptance in lieu of recoupment. He stated that the applicant entered active duty on 29 January 2002 and that her current date of separation was 28 January 2006. He stated that her active duty commitment was for an amount equal to her original ROTC service agreement.

8. Information obtained from an official of the ROTC Cadet Command on 27 August 2003 revealed that the applicant had been enrolled and had been paid $7,167.00 for tuition and educational expenses for 2 academic years, ending in the spring of 2000. On 9 June 2000 she was placed on a leave of absence. On 14 December 2001 she was disenrolled from the program because of willful evasion of her contract. There is no evidence to show that she continued her college education after the spring of 2000; however, in the personal data that she furnished prior to her enlistment in the Air Force, she indicated that she attended college from September 1997 to November 2001, but did not graduate.

9. The standard Army ROTC Scholarship Cadet Contract, DA Form 597-3, includes the following provisions and options:

a. Paragraph 7 of that contract notes in part that an individual may be disenrolled from the ROTC program for failing to complete education requirements, failing to comply with other terms and conditions of the contract, or misconduct. Paragraph 7d states that if the cadet were disenrolled from the ROTC Program for any reason, the Secretary of the Army could order the cadet to reimburse the United States the dollar amount plus interest that bears the same ratio to the total cost of the scholarship financial assistance provided by the United States to the cadet as the unserved portion of active duty bears to the total period of active duty the cadet agreed to serve or was ordered to serve. In lieu of repayment, the cadet could be ordered to active duty for not more than four years.

b. Paragraph 8 states that if called to active duty for breach of contract under the provisions of paragraph 7, the cadet would be ordered to active duty for a period of service based upon the year during which the breach occurs: i.e. for a Military Science II, 2 years; a Military Science III, 3 years; or a Military Science IV, 4 years.

         c. Paragraph 9 states that in lieu of being ordered to active duty for a period as specified in paragraph 8 above an individual may reimburse the United States through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the United States.

d. Paragraph 12 requires acknowledgement that the cadet understood and agreed that if they voluntarily or because of misconduct fail to begin or fail to complete any period of active duty that they may have incurred under the contract, they would be required to reimburse the United States an amount of money, plus interest, that bore the same ratio to the total cost of the financial assistance provided as the unserved portion of such duty bore to the total obligation.

10. In accordance with Army Regulation 135-210, former ROTC cadets, when ordered to active duty, will be ordered to report to the U. S. Army Reception Battalion, bypassing the recruiting function where enlistment options are offered and negotiated, and will be ordered to active duty in pay grade E-1.

11. Army Regulation 145-1 provides, in pertinent part, that a scholarship or non-scholarship cadet under consideration for involuntary call to active duty for breach of contract will be so ordered within 60 days after they would normally complete baccalaureate degree requirements or the cadet is no longer enrolled in school. The cadet will not be discharged/disenrolled from ROTC until determination has been received from Headquarters, Cadet Command. If it is determined that the cadet will be ordered to active duty, the cadet will not be discharged, but Headquarters, Cadet Command will issue orders ordering them directly to active duty.

CONCLUSIONS:

1. The available evidence indicates that the applicant was paid for tuition and educational expenses for two academic years, MS I and MS II, ending in the spring of 2000. She did not receive payment for tuition or educational expenses beyond those two years. She was disenrolled from the ROTC program in December 2001. She had agreed to repay her scholarship indebtedness and had enlisted in the Regular Air Force without any prior agreement regarding debt relief. The indebtedness was properly created and there is no error or injustice in that action.

2. If the applicant had chosen to enter active duty or been involuntarily ordered to active duty, at the time she failed to continue his enrollment in the ROTC, she would have been assigned according to the needs of the Army and would not have had the opportunity to choose her training nor to receive the enlistment bonus. In this sense, the applicant has sustained an advantage over similar individuals who upon disenrollment from ROTC, elected to enter active duty or were involuntarily ordered to active. This advantage occurs because Army Regulation 145-1 dictates that cadets ordered to active duty for breach of contract are ordered directly to active duty in pay grade E-1. Cadets so ordered report directly to a military installation and do not participate in the recruiting function where enlistment options are offered and negotiated.

3. The applicant's ROTC contract states that if she disenrolled from the program she would be obligated to serve for a specific period on active duty or to repay the amount of monies advanced to him. Enlistment via the normal recruitment process is not an option under the ROTC contract for meeting the service obligation.

4. Although not provided for as an option on the DA Form 597-3, the applicant’s 29 January 2002 enlistment in the Regular Air Force does serve the same purpose as if she had been ordered to active duty. The government is still benefiting from her service for a period in excess of the 2 years obligated service she would have had to serve. As a matter of equity it is appropriate to consider her first two years of this enlistment as meeting the active duty obligation required under her ROTC scholarship contract.

5. If, however, the applicant fails to complete the obligated period of enlisted service either voluntarily or because of misconduct, her total ROTC debt would be required to be recouped on a pro-rated basis.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

         a. amending the applicant's ROTC scholarship contract to show that she would satisfy the service obligation under the original terms of the ROTC contract as an enlisted member;

         b. suspending collection of $7,167.00 (and any accrued interest) of her ROTC debt during her enlistment, to be remitted upon satisfactory completion of her four years of obligated enlisted service; and

         c. showing that if she fails to complete the period of obligated enlisted service, either voluntarily or because of misconduct, her ROTC debt would be required to be recouped on a pro-rated basis in accordance with paragraph 12 of her DA Form 597-3.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__RVO__ __BJE___ __FCJ __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




         Raymond V. O'Connor, Jr.
         CHAIRPERSON

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INDEX

CASE ID	AR2003088147
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030904
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	128.100
2.
3.
4.
5.
6.