RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            30 August 2005
      DOCKET NUMBER:   AR20040010515


      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. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 his Reserve Officers' Training Corps (ROTC) debt
be forgiven.

2.  The applicant states he enlisted in the Regular Army for 5 years.  The
Defense Finance and Accounting Service (DFAS) informed him he should wait
 2 years before petitioning for forgiveness of his debt.

3.  The applicant provides his assignment orders; a memorandum for record
dated 16 November 2004; and a 14 August 2003 email from DFAS.

CONSIDERATION OF EVIDENCE:

1.  The applicant's Cadet Record Brief shows he enrolled in ROTC on 15
August 1999.  He apparently did not receive an ROTC scholarship until
August 2000.  His DA Form 597-3 (Army Senior ROTC Scholarship Cadet
Contract) is signed 28 August 2000.

2.  Paragraph 7d of the applicant's DA Form 597-3 states that if he were
disenrolled from the ROTC Program for any reason, the Secretary of the Army
could order him 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 his advanced education from the
commencement of the contractual agreement to the date of his disenrollment
or refusal to accept a commission.  Or, he could be ordered to active duty
(emphasis added) for not more than four years.

3.  Paragraph 12 of the applicant’s DA Form 597-3 states he understood and
agreed if he voluntarily or because of misconduct failed to begin or failed
to complete any period of active duty that he may have incurred under the
contract, he would be required to reimburse the United States an amount of
money, plus interest, that is equal to or bore the same ratio to the total
cost of the financial assistance provided him as the unserved portion of
such duty bore to the total period of such duty he was obligated to serve.

4.  On or about 11 December 2001, the applicant was notified he was
disenrolled from ROTC based on his withdrawal from Xavier University.  He
was informed the total amount of monies spent in support of his educational
assistance was $15,952.  He was informed that when the ROTC scholarship
contract is breached, any obligation to the Army must be satisfied through
an order to active duty (emphasis added) in an enlisted status or by
repaying the cost of advanced
education assistance provided by the Army.  He was given three options –
request to be ordered to active duty (emphasis added) in an enlisted
status, agree to pay in full the total amount owed, or agree to repay the
total amount owed in monthly installments.  On 26 December 2001, he elected
to repay the debt in monthly installments.

5.  On 13 August 2003, the applicant informed DFAS he planned to enlist in
the Army that coming winter and queried if he could retain the option of
enlisting (emphasis added) into the Army to have the debt forgiven.  DFAS
informed him after he had enlisted or served his 2 years he could apply to
the Board.  On      24 October 2003, DFAS informed him collection action on
his debt would remain suspended until 30 August 2004 while he was a
student.

6.  On 20 August 2003, the applicant enlisted in the Delayed Enlistment
Program. On 21 May 2004, he enlisted in the Regular Army for 5 years, in
pay grade E-4, for incentives of U. S. Army Training Enlistment Program, U.
S. Army High-Grad Bonus, Loan Repayment Program (LRP) up to an unspecified
amount, and U. S. Army Cash Bonus ($20,000).  A dollar amount for the U. S.
Army High-Grad Bonus was not listed.

7.  A DFAS Account Statement with a billing date of 19 August 2004 shows
the applicant owed $18,786.82 at that time.

8.  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.

9.  In the processing of this case, an advisory opinion was obtained from
the     U. S. Army Cadet Command.  That command noted the terms of the
scholarship contract require a cadet either to repay the debt monetarily or
agree to be ordered to active duty through ROTC channels based on the needs
of the Army.  The applicant was offered those options on 11 December [2001]
after he was disenrolled from ROTC for breach of contract.  His voluntary
enlistment is not the result of an order to active duty through ROTC
channels in satisfaction of the contractual obligation.  That command
recommended his voluntary enlistment not reduce the amount he is required
to reimburse the government for his advanced educational assistance.

10.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He rebutted that he was aware the terms presented to
him for repayment were either immediate repayment or enlistment (emphasis
added) into the Regular Army at the time of disenrollment from ROTC.
However, at the time he left ROTC, he was under the impression that
forgiveness of the debt through enlistment (emphasis added) into the
Regular Army was not contingent upon an immediate enlistment (emphasis
added).  He had inquired with DFAS as to whether he would retain the option
of debt forgiveness through enlistment and a DFAS representative informed
him that route was still available.

11.  The applicant stated he made the decision to complete his
undergraduate degree prior to enlisting rather than stopping halfway
through the education process and incurring the risk of not being able to
finish post-enlistment.  He knew he would be married soon, and he wanted to
provide a more secure base for his family.  He disenrolled from ROTC to
complete a degree in biblical studies that was not offered through his host
ROTC school.  He felt compelled spiritually to pursue a biblical degree so
he may better serve God through his military career.  He has been serving
admirably in the Regular Army.  As an E-4, repaying such a large amount
would place immense stress upon himself and his wife.  He provides a letter
of appreciation dated 21 October 2004 from his commander at the Defense
Language Institute, a letter dated 16 November 2004 from his platoon
sergeant, and a record of his grades while at the Institute.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant has continuously misunderstood the term "order
to active duty" to be synonymous with "enlistment."  His scholarship
contract stated he could be ordered to active duty if he breached his
contract.  When he was disenrolled, his disenrollment letter gave him three
options, one of which was to request to be 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 May 2004
in pay grade E-4 and for two bonus options ($20,000 for the Cash Bonus
alone) and for the Loan Repayment Program for repayment of an unknown
amount in qualified student loans.

3.  DFAS never informed him he would retain the option of debt forgiveness
through enlistment.  DFAS merely told him, in response to a query if he
could retain the option of enlisting (an option he was never told he had)
into the Army to have the debt forgiven, he could apply to the Board after
he had enlisted or served his 2 years.  DFAS made no promises to him.

4.  It is recognized the applicant has enlisted for a longer commitment
than he would have been committed for had he been ordered to active duty.
However, the prospect of negating his $15,952.00 (now approximately
$18,000) debt for a free education he received from the Army without
becoming an officer, plus allowing him to receive at least a $20,000
enlistment bonus he ordinarily would not have received, plus repayment of
qualified student loans he ordinarily would not have been eligible for, is
a windfall.  While the Board has no jurisdiction to stop the enlistment
bonus or student loan repayments in this case, the bonus and the loan
repayment are legitimate factors to consider in denying equitable relief
regarding the ROTC debt.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__pms___  __ym____  _lgh____  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.




            __Paul M. Smith_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010515                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |112.12                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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