RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 March 2005
      DOCKET NUMBER:  AR20040004385


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Susan A. Powers               |     |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, forgiveness of the debt he incurred
as a result of his breaching his Army Reserve Officer Training Corps (ROTC)
contract.

2.  The applicant states, in effect, that he wishes his current active duty
time to count toward his ROTC scholarship debt.  He states that he is
currently serving a four-year enlistment in the United States Navy (USN).
He also states that he is applying for officer candidate school (OCS).

3.  The applicant provides a copy of his debt repayment plan, a letter from
his current USN command, a copy of his identification card and a copy of
his orders in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 11 November 1995.  The application submitted in this case
is dated 20 June 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant is currently serving a four-year enlistment in the USN.

4.  The applicant breached the terms of his Army ROTC scholarship contract
in November 1995.  At the time he was given the option of being ordered to
active duty in the Army in an enlisted status, or to repay the debt.

5.  On 1 November 1995, the applicant completed an addendum to his ROTC
scholarship contractual agreement, in which he promised to make repayment
of the total amount he owed in monthly installments.
6.  On 13 November 1995, the Defense Finance and Accounting Service (DFAS)
confirmed the total amount of the applicant’s ROTC scholarship debt was
$19,320.00 and provided a repayment plan.

7.  On 5 September 2002, the applicant entered the USN in an enlisted
status on a four-year enlistment.

8.  In connection with the processing of this case, an advisory opinion was
obtained from the Director of Personnel and Administration, United States
Army Cadet Command (USACC).  It indicates that the terms of an ROTC
scholarship contract required that he either repay the debt monetarily, or
agree to be ordered to active duty through ROTC channels based on the needs
of the Army.  It further indicates that subsequent to his breaching his
contract, the applicant was offered these options and he elected to make
monetary repayment.  As a result, a debt was established with the DFAS.  It
further stated that according to his application to the Board, the
applicant is currently serving on active duty in the USN.  However, this
active duty service is not the result of his being ordered to active duty
through ROTC channels in satisfaction of the ROTC contractual obligation.

9.  The USACC advisory opinion further indicated that the applicant’s
decision to breach his Army ROTC scholarship contract was voluntary, as was
his choice to repay the debt and to join the USN.  His voluntary enlisted
service in the USN is not an authorized remedy for debt repayment under the
terms of his Army ROTC contract, and the USACC recommends that his
voluntary enlistment not reduce the amount he is required to reimburse the
United States for his advanced education assistance.

10.  On 2 October 2004, the applicant responded to the USACC advisory
opinion.  He stated that while he did not agree with the comments in the
advisory opinion, he respected the recommendation.  He further requested an
extension on his application through the end of November 2004 because he
had an application pending before the Army’s Aviation Warrant Officer
Program and the board to consider that application was meeting in the
middle of November 2004.  However, the applicant has provided no further
information regarding this application.

11.  The applicant also stated that he had made many mistakes in the past
and was trying to rectify them.  He claims that he considers his
disenrollment from the Army’s ROTC program one of his greatest mistakes.
He states that due to his own immaturity and other circumstances at the
time, he basically failed himself out of school and the program.  He states
that when he first started to reimburse the Government for his ROTC debt,
his payment was larger than a lot of people’s house payments.  However, he
did his best in making restitution, while he was making minimum wage.  He
states that he now has a smaller payment, but he also has a wife and two
kids to support, which is difficult on E-3 pay when living in a place like
Jacksonville, Florida.

12.  The applicant further states that he has fought back very hard and is
committed to resolving this matter.  He states he went from leaving college
with no degree to where he is now.  He now has two associate degrees, a
bachelor’s degree in Professional Aeronautics, and is a dual rated pilot
with a commercial rating in the helicopter.  He states part of the reason
he came into the military was the hope he could overcome the ROTC debt, but
he now realizes that the original ROTC contract is designed to discourage
people from doing just what he did.  However, he has now served a year plus
in the USN and if he gets picked up as a warrant officer, he will happily
serve an additional six years.  He further states that in his opinion,
serving six years in an officer role would contribute much more than the
four years as an E-1 as the original contract called for.  He concludes by
stating that he is not a slacker looking for a handout and he is just a
motivated husband, father of two who is trying to right his wrongs.  He
respectfully requests reconsideration of this matter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his four-year enlistment in the USN
should count toward the active duty commitment he incurred at the time he
breached his ROTC contract was carefully considered and found to have
merit.

2.  The applicant's ROTC contract called for an expeditious call to active
duty through ROTC channels based on the needs of the Army without the
benefit of advancement in grade or other incentives, which he may have
received when he enlisted in the USN.  Nevertheless, in this case, the
applicant’s enlistment in the USN serves the same purpose as would have
been served had he been ordered to active duty in the Army through ROTC
channels.
3.  The record shows that as a result of the applicant’s four-year
enlistment in the USN, the Government is getting the benefits of his
service for four years, instead of the three years he would have been
required to serve had he been ordered to active duty as a result of
breaching his ROTC contract.

4.  In view of the facts of this case, it would be appropriate to consider
the applicant’s enlistment in the USN to have met the active duty
obligation required by his ROTC scholarship contract as a matter of equity.
 If he fails to complete his current period of enlisted service in the USN,
or four years of active duty service in any other branch of the service,
obligated as a result of his ROTC debt scholarship either voluntarily or
because of misconduct, his ROTC debt should be recouped on a prorated
basis.

5.  Had the applicant elected an expeditious call to active duty to repay
his debt for breaching his ROTC contract, he would have been assigned
against the needs of the Army, in pay grade E-1, and not allowed any
enlistment options.  In addition, it would not be appropriate to reimburse
him any portion of the ROTC debt he has already paid based on his original
voluntary agreement to repay the debt monetarily.  Therefore, the equity
debt relief in this case will be limited to the remaining unpaid portion of
his ROTC debt minus any bonuses he may have received when he enlisted in
the USN.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___MM__  ___PM __  ___SP __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all the Department of the Army records of the individual
concerned be corrected by amending his ROTC scholarship contract to show
that he would satisfy a portion of his ROTC scholarship debt under the
original terms of the ROTC contract by successfully completing his current
enlistment in the United States Navy, or four years of active duty service
in any branch of the Armed Forces of the United States.

2.  The portion of the ROTC debt that would be satisfied by the above
correction will be the remaining unpaid amount of the ROTC debt, minus any
enlistment bonuses he received as a cash enlistment bonus (excluding any
taxes taken from the bonus) at the time he enlisted in the United States
Navy.

3.  If the individual concerned fails to complete the period of enlisted
service obligated as a result of his amended ROTC scholarship contract
either voluntarily or because of misconduct, his ROTC debt would be
required to be recouped on a pro-rated basis in accordance with his DA Form
597-3.

4.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
a full remittance of his monetary obligation as a result of his breached
ROTC contract.




            ____Melvin H. Meyer_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004385                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/29                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N./A                                    |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.1000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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