RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          30 November 2004
      DOCKET NUMBER:  AR2004104017


      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. Rosa M. Chandler              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 active duty service be
accepted as repayment of his Senior Reserve Officers’ Training Corps
(SROTC) scholarship debt.

2.  The applicant states, in effect, that he desires his enlistment in the
military in pay grade E-3, on 16 April 2003, be considered as payment in
full for his SROTC debt.

3.  The applicant provides in support of his request:

      a.  DD Form 4/1-4/2 (Enlistment Reenlistment Document-Armed Forces of
the United States and SROTC Scholarship Contract.

      b.  SROTC Disenrollement packet.

      c.  DD Form 4/1-4/3 (Enlistment/Reenlistment Document Armed Forces of
the United States).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that, on 21 November 2000, he enlisted in
the United States Army Reserve (USAR) for 8 years and as a cadet in the
SROTC scholarship program.  The SROTC program authorized the applicant to
receive up to $16,000.00 per year for tuition and educational fees for a
period of 2 years. As part of his scholarship enlistment in the SROTC
program, he signed a DA Form 597-3, the agreement between the Army and a
potential SROTC cadet.  This form contains the promises made between the
Army and the cadet and includes what action the Army will take in the event
that a cadet fails to successfully complete the terms of the contract.  The
applicant authenticated his contract to acknowledge he understood and
agreed that if he was disenrolled from the SROTC programs, he could be
called to active duty for a period of 3 years or incur a reimbursement
obligation.

2.  On 11 February 2002, the applicant was notified that action was being
initiated to disenroll him from the SROTC program under the provisions of
Army Regulation 145-1, due to a breach of his ROTC scholarship contract.
On
20 February 2002, the applicant acknowledged notification and requested
that an investigating officer/investigating officer (IO) or an
administrative separation board review his case.

3.  On 21 February 2002, the applicant was advised that an administrative
separation board/IO would conduct a review of his case on 4 March 2002 to
determined whether he should be separated from the SROTC program and
whether he should be required to repay the scholarship benefits that he
received while enrolled in the program.

4.  On 4 March 2002, an IO determined the applicant entered into a valid
SROTC contract; that the debt was valid; and that he failed to complete the
requirements of his SROTC contract.  The applicant never passed the APFT,
achieved his screening weight, or met the body fat standard.  His grade
point average also indicated he was failing academically.  The IO
recommended that the applicant be disenrolled from the SROTC program as a
scholarship cadet, but that he should not be released from his SROTC
contractual obligation.  He should be ordered to active duty in an
enlistment status or he should be ordered to repay the monies that he
received in educational assistance scholarship benefits.

5.  On 2 December 2002, Headquarters, United States (US) Army Cadet Command
Fort Monroe, Virginia notified the applicant that he was disenrolled from
the SROTC program under the provisions of Army Regulation 145-1, paragraph
3-43a(8), due to a breach of his ROTC scholarship contract.  The breach was
based on his failure to meet the standards of the Army Weight Control
Program and Army Physical Fitness Test (APFT).  He was advised that he was
indebted to the United States Government for advanced education assistance
in the amount of $16,522.00.  He could satisfy the debt and fulfill his
contractual obligation through an order to active duty in an enlisted
status or he would be afforded the opportunity to repay the debt.

6.  On 26 December 2002, the applicant acknowledged the amount and validity
of his debt stated in the disenrollment notification was correct and
promised to repay the total amount owed.

7.  On 27 January 2003, Headquarters, US Army Cadet Command, Fort Monroe,
notified the Professor of Military Science, University of Northern Iowa,
Cedar Falls, Iowa that the applicant had been disenrolled form the United
States Army Reserve ROTC program effective 2 December 2002.  The Cadet
Command further advised that the applicant would be discharged from the
USAR with an uncharacterized discharge, due to a breach of his ROTC
scholarship contract.

8.  Effective 27 January 2003, the applicant was discharged from the USAR
Control Group.

9.  On 5 February 2003, the applicant enlisted in the United States Army
Reserve for the Delayed Entry Program (DEP) in pay grade E-3.  On 16 April
2003, he was discharged from the DEP and he enlisted in the Regular Army
for 4 years.  He enlisted for training in military occupational specialty
(MOS) 76D (Imagery Analyst), a $6,000 cash enlistment bonus and the student
loan repayment program.  He is currently serving in Korea and the total
amount of the outstanding SROTC debt equals $17,429.16.

10.  In connection with his application, the United States Army Human
Resources Command, Alexandria Virginia provided an advisory opinion, dated
4 June 2004, which states, in effect, that the applicant's record shows he
enlisted in the military on 16 April 2003 for a period of 4 years in pay
grade E-3.  The record fails to reveal any defect at the time of
enlistment.  The advisory opinion recommends that no changes be made to his
military record.

11.  In connection with his application, Headquarters, USA Cadet Command,
Fort Monroe, Virginia provided an advisory opinion, dated 9 August 2004,
which states, in effect, that the applicant was disenrolled from the SROTC
program due to a breach of his contract.  He was offered the opportunity to
accept an expeditious call to active duty or repay the debt monetarily.  He
selected monthly payments and the debt was established accordingly with the
Defense Finance and Accounting Service (DFAS), Denver, Colorado.  His
current active duty service is not the result of being ordered to active
duty through ROTC channels in satisfaction of his ROTC contractual
obligation.  His decision to breach the terms of the ROTC contract and
enlist in the RA was a voluntary action.  His voluntary enlisted service is
not an authorized remedy for debt repayment under the terms of the ROTC
contract.  The advisory opinion further recommends that the applicant's
enlistment not be used to reduce the amount that he is required to
reimburse the United States for his advanced education.

12.  Both of the above advisory opinions were referred to the applicant for
comment or rebuttal.  On 13 July 2004, the applicant responded to the above
advisory opinions by stating that he wanted to clarify his initial request.
 He indicated that he was disenrolled from the SROTC scholarship program
and opted to repay his SROTC scholarship debt.  He missed the military
environment after a few months and he decided to enlist.  He requests that
his current enlistment, in pay grade E-3 be accepted in lieu of payment of
his SROTC debt.

13.  Army Regulation 145-1 (Reserve Officers' Training Corps-Senior Reserve
Officers' Training Corps Program:  Organization, Administration, and
Training) prescribes policies and general procedures for administering the
Army's SROTC
Program.  This regulation 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.  Graduate students may not be ordered to
active duty until they complete the academic year in which they are
enrolled or disenroll from the school, whichever occurs first.  The cadet
will not be discharged/disenrolled from SROTC 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.

14.  Army Regulation 37-104-3 (Finance Update) provides the policies and
provisions for entitlements and collections of pay and allowances of
military personnel.  Chapter 59 currently in effect, provides for
recoupment of educational expenses, e.g., SROTC, United States Military
Academy, and advanced civilian schooling under previous agreement when
obligated active duty service has not been completed.

15.  Title 10, United States Code, section 2005, serves as the authority
for reimbursements for advanced education assistance.  It states, in
pertinent part, that individuals who fail to complete the terms of their
advanced education assistance agreement will reimburse the United States
for the unserved portion not fulfilled.

DISCUSSION AND CONCLUSIONS:

1.  The applicant failed to meet the requirements of his SROTC scholarship
program contract and a debt was assessed against him for repayment of the
SROTC scholarship benefits that he received.

2.  The applicant argues that his service in the RA should qualify as
repayment of his SROTC scholarship debt.  In actuality, if the applicant
had chosen to enter active duty or been involuntarily ordered to active
duty, he would have been assigned against the needs of the Army and not
allowed to choose his branch of service, or a training option.  In this
sense, he has obtained an advantage over similar individuals who, upon
disenrollment from SROTC, choose active duty or are 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, including bonuses, are offered and negotiated.

3.  Had the applicant chosen active duty or been voluntarily ordered to
active duty as a result of disenrollment from the SROTC program, he would
not have been allowed any enlistment options, such as the $6,000 in
incentive pay that he received.

4.  Nonetheless, the Board accepts that the applicant’s enlisted service in
the RA is equivalent to being called to active duty under the terms of his
SROTC contract.  Therefore, collection of his SROTC scholarship debt should
be held in abeyance during the term of his enlistment and remitted provided
he satisfactorily completes the terms of his enlistment.  However, allowing
him to receive enlistment bonuses or financial incentives he ordinarily
would not have received would be a windfall.  While the Board has no
jurisdiction to stop enlistment bonuses or incentive pay, they are
legitimate factors to consider in granting or denying equitable relief
regarding the ROTC debt.

5.  Therefore, the amount of the applicant's incentive pay ($6,000) should
not be forgiven from his debt.

6.  If the applicant fails to complete the period of enlisted service
obligated as a result of his SROTC scholarship, either voluntarily or
because of misconduct, his SROTC scholarship debt would be required to be
recouped on a pro rata basis.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__js____  __slp___  __phm___  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 Department of the Army records of the individual
concerned be corrected by
amending his SROTC scholarship contract to show that he would satisfy a
portion of his SROTC scholarship debt under the original terms of the SROTC
contract by successfully completing his current enlistment in the RA.

2.  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
that portion of the SROTC debt that would be satisfied by the above
correction will be the total amount of the SROTC debt, minus the $6,000 he
received as incentive pay (excluding any taxes taken from this incentive
pay).

3.  If the individual fails to complete the period of service for which he
is obligated as a result of his amended SROTC scholarship contract, either
voluntarily or because of misconduct, the full amount of his SROTC debt
will be recouped on a pro rata basis in accordance with paragraph 12 of 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
waiving the entire SROTC indebtedness amount.



                 John Slone
            ______________________
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004104017                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041130                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]