RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 9 December 2003
         DOCKET NUMBER: AR2003090995


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Eloise C. Prendergast		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that he be released from his Reserve Officers' Training Corps (ROTC) debt obligation and he be reimbursed for all payments made towards that debt thus far.

2. The applicant states that Title 10, U. S. Code, section 2005 states "that if such a person fails to complete the education requirement specified in the agreement, such a person will serve on active duty for a period specified in the agreement." The relevant phrase is "serve on active duty for a period specified." It does not specify whether the enlistment need be voluntary or involuntary, called to active duty, or normal enlistment. In essence, voluntary enlistment is a legal form of scholarship repayment. His July 1992 ROTC scholarship contract makes no exclusion of voluntary enlistments and the consistent use of the word "may" in the contract does not limit the repayment options to only those listed on the contract itself because the contract does not present an "either/or" situation. In addition, in the July 2002 version of the contract a new paragraph has been added titled, "I agree that any obligation to reimburse will not be altered by subsequent enlisted duty." The Army has thus proved his point that this method of reimbursement (voluntary enlistment) was not excluded in the version that he signed.

3. The applicant further states that at first glance, an involuntary enlistment and voluntary enlistment do not appear equitable because of the bonuses and incentives provided for voluntary enlistments. It must be taken into account his voluntary enlistment was for six years and not the three years that would have been mandated with an involuntary call to active duty. The following table provides a comparison (SRB = Selective Reenlistment Bonus, LRP = Loan Repayment Program, and MOS = Military Occupational Specialty):

                  His Enlistment            3-Year Involuntary/3-Year Reenlistment

Length   6 years                    6 years
Bonuses  $10,000                    $8,900 - $10,875 SRB
Education        LRP                                 75 percent – 100 percent of all costs
MOS               Designated Critical               Designated Critical
Grade             E-3                                 E-1

Any comparison of equitability in the large difference in length between his enlistment and an involuntary call to active duty must take the total years of obligation into consideration. Had he been commissioned, his obligation would have been for eight years of service (active or reserve). His six years of service

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will be 75 percent of that obligation, all of it on active duty, as opposed to the 37 percent of a three-year involuntary call to active duty. Additionally, with his MOS currently being Stop Lossed, if the current Stop Loss policy goes on for years he may well incur a seventh year of active duty service.

4. The applicant states that the enlistment bonus he received would be offset by a reenlistment SRB which he certainly would have been entitled to. With his high score on the language aptitude test, his MOS could have easily been a language-based MOS, which has a much higher SRB modifier, for a total potential bonus of well over $20,000.

5. The applicant states that while he received the LRP in his enlistment contract, this is offset by the fact that the Army paid 75 percent of all tuition costs prior to October 2002 and 100 percent thereafter for active duty service members. Thus, the Army still would have been paying for most, if not all, of his tuition costs if he had been called to active duty. As far as his MOS is concerned, he would have been placed in an MOS according to the current needs of the Army. This means that the Army would have placed him in a critical MOS, one in which the Army has both a shortage and problems filling. His current MOS is also a critical MOS. As far as his grade is concerned, if he had been called to active duty it should be accepted that he would have risen through the ranks very quickly anyway, given the inherent advantages of both the two and a half years of leadership and military experience ROTC endowed on him and the college education he had already gained.

6. The applicant states that there is absolutely nothing in either the U. S. Code or his scholarship contract that put any restrictions on any type of bonuses or incentives for enlisted active duty service repayment of the scholarship. First, he enlisted in good faith that the enlistment would honor the scholarship debt. He was given no advice to the contrary from anyone, though he was very open with the fact that he was enlisting to repay the scholarship debt, as no one had any information to the contrary and his reading of both the U. S. Code and the scholarship contract support that position. In fact, the scholarship debt is the only reason he enlisted. The other incentives were all additional bonuses and he would have been foolish not to have taken advantage of them. Second, his ROTC training gives him far more leadership experience, not to mention both tactical and technical training, than most of his peers. This is not an inconsequential consideration, especially within a wartime Army.

7. Third, the applicant states, is the ROTC disenrollment process itself. Even at its best, the process takes between three and four months to complete. His

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disenrollment took between 14 and 15 months. It was started in January 1996
and not finished until March or April 1997. During that time he was only on administrative leave, with the possibility of receiving a waiver and staying in the ROTC program. He had to stay at a private university for three semesters with a tuition of about $5,000 a semester. This seriously contributed to his federal loans and increased his total amount of debt to the point where enlistment in the Army was a viable solution to his financial problems.

8. The applicant states he has made the most of his time in the Army. He has been promoted twice, received awards, volunteered for service in Korea and is volunteering for a continuous overseas tour in Europe. He does not believe it is fair to require a soldier to monetarily repay a scholarship debt on a three-year schedule, on an enlisted salary, when his enlistment is already a valid and legal form of repayment. In addition, the mandated minimum payment for the debt by the contract is $50 a month. When he enlisted, the Defense Finance and Accounting Service mandated payments of $450 a month. That is not fair treatment.

9. The applicant provides a self-authored statement; his DA Form 597-3 (Army Senior Reserve Officers' Training Corps (ROTC) Scholarship Cadet Contract); DA Forms 597-3, versions June 1995 and July 2002; an extract from Title 10, U. S. Code, section 2005; and three letters of support from his chain of command
dated 21 November 2000, 26 April 2002, and 9 May 2003.

CONSIDERATION OF EVIDENCE:

1. On 30 August 1994, the applicant signed a DA Form 597-3. Paragraph 7d states, "Under other disenrollment criteria established now or in the future by Army regulations, incorporated herein by reference…the Secretary of the Army or his or her designee may order him to active duty as an enlisted soldier for a period of not more than four years or, in lieu of being ordered to active duty, may require me to 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 for my advanced education…"

2. Paragraph 9 of the applicant's DA Form 597-3 states, "I understand that if I am disenrolled from the ROTC program for any reason…I may, at the discretion of the Army, be directed, in lieu of being ordered to active duty as a private (E1) for a period as specified… to 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 for my advanced education…"

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3. Paragraph 10 of the applicant's DA Form 597-3 states, I agree that if I am disenrolled from the ROTC Program…any money I am determined to owe the United States that is not paid in a lump sum on the date it is due, shall bear interest at the rate equal to the highest rate being paid by the United States on securities…and shall accrue from the day that I am first notified of the amount I owe to the United States as reimbursement under this contract. I also agree that, if the debt is not paid in a lump sum, I will be required to pay it in monthly installments over a period not to exceed 36 months, in an installment payment amount of not less than $50, unless approved otherwise by the Defense Finance and Accounting Service – Indianapolis Center (DFAS)."

4. The applicant received written notification dated 18 November 1997 that he was in breach of his three-year Army ROTC scholarship contract (for academic/ROTC failure). He was disenrolled from ROTC on 8 May 1998. A debt was established in the amount of $12,935.

5. On or about 8 May 1998, the applicant signed an Addendum to Part I, Scholarship Contractual Agreement and agreed to reimburse his scholarship monies plus interest in monthly installments (not less than $50 per month nor to exceed three years) in lieu of the Army exercising its right to order him to active duty. The Addendum informed him that his declination to make monetary repayment or failure to respond with his selection of payment would result in the issuance of his Army active duty orders as Private, E-1 for 3 years. The orders would be published with the reporting date being within 60 days of the date he withdrew from the university or the date he was scheduled to complete his baccalaureate degree requirements, whichever occurred first; or, if no longer enrolled in school, 60 days from date of notification.

6. On 10 March 2000, the applicant enlisted in the Delayed Enlistment Program. On 30 March 2000, he enlisted in the Regular Army for 6 years, in pay grade E-3, for a $10,000 cash enlistment bonus and the Loan Repayment Program and for training in military occupational specialty 74B (Information Systems Operator).

7. In the processing of this case, an advisory opinion was obtained from Headquarters, U. S. Army Cadet Command. That command noted that voluntary enlisted service in the Regular Army is not an authorized remedy for a breach under the terms of the ROTC contract. That command recommended that the applicant's enlistment not reduce the amount he is required to reimburse the Government for his advanced educational assistance.

8. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He provided his Army Commendation Medal certificate, his Army Good

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Conduct Medal orders, his last noncommissioned officer evaluation report, his Primary Leadership Development Course academic evaluation report, and two certificates of accomplishment to show the quality of his current service. In his rebuttal he stated that he chose monetary repayment because it had taken 30 months to finish processing his disenrollment. By time the decision was
made, he had become extremely jaded with the Army in general and wanted nothing more to do with it at all. He would have made a very poor soldier at that time, given his feelings about the Army due to the situation. Hindsight proved a better vision and so, two years later, he enlisted.

9. The applicant further rebutted that only the signed scholarship contract and the U. S. law on which the contract is based are relevant to the case. No U. S. Army policy or regulation has any bearing on the matter as they can override neither the signed contract or the U. S. law on which it is based. The contract he signed (not the revised 2002 version) is the only contract that matters. The fact the Army modified the 2002 version of the contract acknowledges that the old scholarship contract he signed did not invalidate voluntary enlistments. The advisory opinion provided no evidence to support the claim that voluntary enlisted service is not an authorized remedy.

10. On 2 December 2003, DFAS – Denver Center, Waiver/Remissions Branch informed the Board analyst that the applicant was on their system but his records had been purged. That Branch also indicated that the purge most likely meant that any debt has been paid off.

11. Army Regulation 135-210 prescribes policies and procedures for ordering individual soldiers of the Army National Guard of the United States and the U. S. Army Reserve to active duty during peacetime. In pertinent part, it states that former ROTC cadets, when ordered to active duty, will be ordered to report to the U. S. Army Reception Battalion and will be ordered to active duty in pay grade E-1.

12. Title 10, U. S. Code, section 2005(a) states that the Secretary concerned may require, as a condition to the Secretary providing advanced education assistance to any person, that such person enter into a written agreement under the terms of which such person shall agree (1) to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement and (2) that if such person fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement.

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13. Title 10, U. S. Code, section 2005(f) states that the Secretary concerned shall require, as a condition to the Secretary providing financial assistance under section…2107a (financial assistance program for specially selected members: Army Reserve and Army National Guard; i.e., ROTC) of this title to any person, that such person enter into an agreement described in subsection (a). In addition to the requirements of clauses (1) through (4) of such subsection, any agreement
required by this subsection shall provide (1) that if such person fails to complete the education requirements…the Secretary shall have the option to order such person to reimburse the United States in the manner provided for…without the Secretary first ordering such person to active duty as provided for under clause (2) of such subsection (emphasis added).

14. Conversation with the Education Incentives Branch, U. S. Army Human Resources Command, revealed the applicant had four loans, totaling $12,274.82, that qualified for repayment under the LRP.

DISCUSSION AND CONCLUSIONS:

1. The applicant's ROTC debt totaled $12,935. He agreed to pay the debt, plus interest, in lieu of being ordered to active duty.

2. Had the applicant chosen active duty or been involuntarily ordered to active duty as a result of his disenrollment, he would have been assigned against the needs of the Army, in pay grade E-1, and not allowed any enlistment options. Instead, he enlisted in the Regular Army in March 2000 in pay grade E-3, for a $10,000 cash enlistment bonus, for the Loan Repayment Program (up to a maximum of $65,000), and for training of choice.

3. Contrary to the applicant's understanding that Title 10, U. S. Code, section 2005 does not specify whether the active duty service need be voluntary or involuntary, called to active duty or normal enlistment, section 2005(f) clearly states that the Secretary concerned…as a condition to the Secretary providing financial assistance…shall have the option to order such person to reimburse the United States in the manner provided for…without the Secretary first ordering such person to active duty as provided for under clause (2) of such subsection. Voluntary enlistment to satisfy this debt is not listed as an option.

4. Since the law has always made an involuntary call to active duty the way to satisfy an ROTC debt in lieu of repayment, it appears the ROTC contract was amended in 2002 only to further preclude any misunderstandings as to what the

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law intended. The fact the applicant did misunderstand the requirement does not negate the law. In essence, the use of the word "may" in the contract only enables the Secretary to exercise his option to require either monetary repayment or call the member to active duty. An involuntary call to active duty implicitly prohibits the authorization of any type of bonuses or incentives since they are enlistment incentives.

5. Notwithstanding the applicant's current quality of service, the "current needs of the Army" would not necessarily have meant he would have been placed in a critical MOS. For example if, during the 60-day window during which he would have been ordered to active duty and after basic training, there had been no class seats available for a critical MOS and the only class seats available were for training as a cook, the applicant would have been trained and assigned as a cook. Therefore, the comparison between the enlistment bonus he actually received and the SRB he might have received is irrelevant.

6. As far as his grade is concerned, if the applicant had been called to active duty it cannot be accepted that he would have risen through the ranks very quickly anyway. As the applicant noted in his rebuttal to the advisory opinion, he had become extremely jaded with the Army by the time his ROTC disenrollment was completed and he would have made a very poor soldier at that time. This also presents a reasonable doubt as to whether he would have reenlisted after his initial three-year period of service.

7. Given the applicant's expressed disenchantment with the Army at the time, it is purely speculative that he would have wanted to take advantage of educational reimbursement programs offered by the Army. It is also purely speculative to
presume that he would have been in an assignment where he could have taken advantage of such programs had he wanted to. Therefore, the comparison between the LRP and tuition assistance is not significant.

8. In addition, the applicant was not forced by the Army to continue his schooling pending the outcome of his disenrollment process. That was his decision to make. It is acknowledged that the applicant had to take out over $12,000 in loans to pay for his continued education; however, as a result of his enlistment those loans will be repaid by the Government. This is an additional benefit for which he would not have been eligible had he accepted a call to active duty or been ordered to active duty as provided for by law.

9. The applicant's contention that he enlisted in good faith that the enlistment would honor the scholarship debt is noted; however, there is nothing in his

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enlistment contract that would lead him to believe such was the case. Paragraphs 7 and 9 of his DA Form 597-3 mention his being ordered to active duty or ordered to active duty as an E-1 in lieu of repaying the debt. Nowhere in the contract does it mention enlistment.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__mdm___ __rjw___ __ecp___ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




                  ___Mark D. Manning____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090995
SUFFIX
RECON
DATE BOARDED	20031209
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	128.10
2.
3.
4.
5.
6.