RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 OCTOBER 2004
      DOCKET NUMBER:  AR2004102232


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Marla Troup                   |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his current active duty
commitment and service be accepted in lieu of the repayment of his ROTC
(Reserve Officer Training Corps) scholarship debt.

2.  The applicant states that he terminated his ROTC scholarship
voluntarily and, rather than pay back the scholarship funds, elected to
enlist in the Army.  He states he was advised to do so by his “ROTC
recruiter” at the university he was attending.

3.  The applicant states that he submitted an earlier application to have
his enlistment satisfy his debt, but that while recoupment action was
initially stopped, it has now resurfaced.

4.  In addition to his self-authored statement, the applicant provides a
copy of a statement from his former commander regarding his active status
and debt collection and orders assigning him to his current active duty
unit.  Also included with his application were two statements from the
Defense Finance and Accounting Service in Denver, Colorado, advising the
applicant that he needed to submit an application to this Board before they
could halt collection actions.

CONSIDERATION OF EVIDENCE:

1.  Although the applicant indicated that he had submitted a previous
application to this Board, there was no record of such an application in
available files.

2.  Records available to the Board indicate that the applicant was awarded
a
3-year Army ROTC scholarship in August 1998 at Pittsburg State University
in Pittsburg, Kansas.

3.  On 30 May 2000, the applicant was arrested and charged with kidnapping,
criminal threat, criminal use of weapons, aggravated assault and possession
and cultivation of marijuana.  He was being held on $50,000 bond in the
Cherokee County Detention Facility, pending his pre-trial hearing.
According to the applicant’s Army enlistment documents, all of the charges
were subsequently dismissed.

4.  Documents from the United States Army Cadet Command indicate that the
applicant was placed on a leave of absence effective 30 May 2000.  Those
same documents indicate that his leave of absence was terminated on 22
August 2000.

5.  On 1 November 2000 the applicant was disenrolled from the ROTC program
based on his “withdrawal from Pittsburg State University.”  The
disenrollment document advised the applicant that “any obligation to the
Army must be satisfied through order to active duty in an enlisted status
or by repaying the cost of advanced education assistance provided by the
Army.”  He was informed that the education assistance provided to him was
$5,142.00, less “subsistence and Advanced Camp pay.”  He was advised to
elect an option on “the enclosed addendum and return it….”

6.  A copy of the completed election addendum was not available to the
Board.  However, a 22 January 2001 memorandum from the United States Army
Cadet Command, to the Professor of Military Science at Pittsburg State
University indicated that the applicant had elected to make monetary
repayment of the scholarship funds he received.

7.  On 10 January 2001 the applicant enlisted in the Regular Army, in pay
grade E-3, for a period of 6 years.  His enlistment options included
training in specialty 67T (Helicopter Repairer) and a cash enlistment bonus
of $16,000.

8.  As of July 2001 the applicant was assigned to an aviation unit at Fort
Carson, Colorado, and, according to his December 2003 application to this
Board, deployed to Iraq and was serving in pay grade E-4.

9.  In the processing of this case, an advisory opinion was provided by the
United States Army Cadet Command.  That agency recommended that the
applicant’s request be denied noting that his breach of the terms of his
ROTC contract and enlistment in the Army were “voluntary actions.”  They
stated that such an action was “not an authorized remedy for debt repayment
under the terms of the ROTC contract….”  The applicant was provided an
opportunity to comment on the opinion and reiterated that the Professor of
Military Science, which he had previously referred to as the “ROTC
recruiter,” had instructed him to enlist and that such an action would
fulfill his obligation to the ROTC department.

10.  AR 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, and Headquarters, Cadet Command,
will issue active duty orders.  If ordered to active duty for breach of
contract the term of service is based upon the year during which the breach
occurs:  Military Science II, 2 years; Military Science III, 3 years;
Military Science IV, 4 years.  The applicant’s records indicate he was
disenrolled during Military Science III.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly disenrolled from the ROTC; there is no error
or injustice in his disenrollment.

2.  The applicant argues, in effect, that his service in the Regular Army
should qualify as repayment of his ROTC scholarship.  In actuality, if the
applicant had chosen to enter active duty, or been involuntarily ordered to
active duty, when he was notified that he was being disenrolled, he would
have been assigned against the needs of the Army, in pay grade E-1, and not
allowed to choose any enlistment options.  In this case, he has obtained an
advantage over similar individuals who, upon disenrollment from ROTC,
choose active duty or were involuntarily ordered to active duty.  This
advantage occurs because Army Regulation 145-1 mandates that cadets ordered
to active duty for breach of contract are ordered directly to active duty.
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 prospect of negating the applicant’s $5142.00 debt for a free
education he received from the Army without becoming an officer, plus
allowing him to receive any enlistment bonus or other financial incentive
he ordinarily would not have received, would be a windfall.  While the
Board has no jurisdiction to stop any enlistment bonus in this case, any
such bonus would be a legitimate factor to consider in granting or denying
relief regarding the ROTC debt.

4.  In view of the fact that the applicant’s cash enlistment bonus of
$16,000, a bonus he would not have been entitled to had he been ordered to
active duty, far surpassed his ROTC debt it would be inappropriate, under
these circumstances, to grant the applicant’s request to allow his current
active duty commitment and service to be accepted in lieu of the repayment
of his ROTC debt.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW__  ___LF  __  __MT ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  ____Raymond Wagner______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004102232                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041028                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |112.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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