RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 October 2005
      DOCKET NUMBER:  AR20050004558


      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. John T. Meixell               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 he be released from his Reserve Officers'
Training Corps (ROTC) debt obligation and he be refunded all monies already
paid toward this debt.

2.  The applicant states he has enlisted and has an obligation to serve
until April 2007.  It is unjust for the Defense Finance and Accounting
Service (DFAS) to collect this debt and he asks the debt be terminated and
he be refunded the $7,382.18 he has already paid towards the debt.

3.  The applicant provides his DA Form 597-3 (Army Senior Reserve Officers'
Training Corps (ROTC) Scholarship Cadet Contract); an Educational Program
Accountant statement; an Addendum to Scholarship Contractual Agreement; two
DFAS billing statements; and his DD Form 4 series (Enlistment/Reenlistment
Document Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  On 11 September 1998, the applicant signed a DA Form 597-3.  Paragraph
7d states if the cadet 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, the
cadet could be ordered to active duty for not more than four years.

2.  Paragraph 12 of the applicant’s DA Form 597-3 states the cadet
understood and agreed that, 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.

3.  The applicant was disenrolled from ROTC on an unknown date for an
unknown reason.

4.  On 15 December 2001, the applicant enlisted in the Delayed Entry
Program.  On 24 April 2002, he enlisted in the Regular Army, in pay grade E-
3, for 5 years. One of his enlistment options was a cash enlistment bonus
($12,000).

5.  On an unknown date, the applicant was informed the total amount of
monies spent in support of his educational assistance was $31,289.00.  On
21 August 2002, he agreed to reimburse his scholarship monies in that
amount in monthly installments.

6.  In the processing of this case, an advisory opinion was obtained from
the Director, Personnel and Administration, U. S. Army Cadet Command.  That
office noted the applicant's contract required him either to repay the debt
monetarily or agree to be ordered to active duty through ROTC channels
based on the needs of the Army.  He was offered those options on 17 June
2002 after being disenrolled from ROTC for breach of contract.  He chose
monetary repayment.  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.  That office recommended his enlistment not
reduce the amount he is required to reimburse the United States for his
advanced educational assistance.

7.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

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 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.

DISCUSSION AND CONCLUSIONS:

1.  Although not provided for in his DA Form 597-3, the applicant’s 24
April 2002 enlistment in the Army serves the same purpose as would have
been served had he been ordered to active duty in the Army.  The Army is
still getting the benefits of his service for the period of his 5-year
enlistment.  It appears he would have owed the Army 4 years had he been
ordered to active duty.  As a matter of equity it would be appropriate to
consider his enlistment in the Army to have met the active duty obligation
required by his ROTC scholarship contract.

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

3.  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 April 2002
in pay grade E-3 and for a $12,000 cash enlistment bonus.

4.  The prospect of negating the applicant’s entire $31,289.00 debt for a
free education he received from the Army without becoming an officer, plus
allowing him to receive a $12,000 enlistment bonus he ordinarily would not
have received, is a windfall.  While the Board has no jurisdiction to stop
the enlistment bonus in this case, the bonus is a legitimate factor to
consider in granting or denying equitable relief regarding the ROTC debt.

5.  The applicant's ROTC debt totaled $31,289.00 at the time he was
disenrolled from ROTC.  He agreed to pay the debt in monthly installments.
It appears he has already paid a portion of the debt in the amount of
approximately $7,382.18. This amount should be taken into account in
determining the amount of ROTC debt the applicant still owes.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__jtm___  __jbg___  __jrm___  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 ROTC scholarship contract to show he
would satisfy a portion of the $31,289.00 ROTC debt under the original
terms of the ROTC contract by successfully completing 4 years of service in
the Regular Army.

2.  The portion of the ROTC debt that would be satisfied by the above
correction will be the total amount of the ROTC debt minus the $12,000.00
he received as a cash enlistment bonus (excluding any taxes taken from this
bonus and excluding the approximate amount of $7,382.18 already paid by him
towards this debt).

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
waiving the entire ROTC indebtedness amount.




                                  __John T. Meixell___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004558                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |112.12                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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