RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            20 October 2005
      DOCKET NUMBER:  AR20050008662


      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. Lisa O. Guion                 |     |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, in effect, that his debt for not completing the
requirements of his Reserve Officer Training Corps (ROTC) scholarship be
forgiven based on his enlistment in the active Army.

2.  The applicant states, in effect, that he is currently serving on active
duty in the United States Army (USA).  He also states that he enlisted in
the Army on 25 January 2005 for three years, and that his service for this
period should count as repayment of his ROTC debt.

3.  In support of his application, the applicant provides the following
documents:  Enlistment /Reenlistment Documents (DD Form 4/1 and 4/2), dated
25 January 2005; Department of the Army University of Utah Memorandum,
dated 6 October 2003, Subject:  Disenrollment of Scholarship Cadet from
ROTC; and USA Advanced Education Financial Assistance Record (DA Form 5315-
E).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he was honorably released
from active duty (REFRAD) on 1 August 2002, after completing 4 years, 10
months and 16 days active military service, in order to enter an officer
training program.

2.  On 2 August 2002, the applicant entered into an ROTC contract.  At the
time he entered into the contract, the acknowledged his understanding of
the conditions of the contract.  He acknowledged his understanding that if
he failed to complete the educational requirements of his agreement or was
disenrolled from the ROTC scholarship program, the Secretary of the Army or
his designee could order him to active duty as an enlisted Soldier for a
period of not more than
4 years, or in lieu of being ordered to active duty, he could be required
to repay financial assistance he received through the ROTC program, plus
interest.

3.  The applicant was disenrolled from the ROTC program for breach of
contract in December 2003, for inaptitude for military service as
demonstrated by his lack of general adaptability, skill, hardiness, ability
to learn, or leadership abilities.
4.  During the processing of this case, an advisory opinion was obtained
from the United States Army Cadet Command (USACC).  It states that the
terms of the ROTC scholarship contract require a cadet either repay his
debt monetarily or agree to be ordered to active duty through ROTC channels
based on the needs of the Army.  On 8 December 2003, after he was
disenrolled from the ROTC program, the applicant was provided these options
in an election statement and requested repayment, which resulted in the
Defense Finance and Accounting Service (DFAS), Denver, Colorado office
establishing his ROTC repayment debt on 4 February 2005.

5.  The USACC advisory opinion also states that the applicant's decision to
breach his ROTC contract was a voluntary action.  Further, it opined that
the applicant’s subsequent voluntary enlistment in the Regular Army is not
an authorized remedy for ROTC debt repayment under the terms of his ROTC
contract.  Therefore, his voluntary enlistment should not reduce the amount
he is required to reimburse the United States for his advanced educational
assistance.

6.  On 2 August 2005, the applicant provided a rebuttal to the USACC
advisory opinion.  He stated that since his original enlistment in the Army
in 1997, he planned on completing 20 years service and retiring.  However,
he was stunned and slightly incapable of making coherent decisions when his
commanding officer advised him that he was not "Officer or Army material."
He indicates that although he was discharged from the ROTC program, he
realized that he could continue to serve in the Army, unmarked or without
retribution, in an enlisted status.  He states that he is using the
education provided through the ROTC program to benefit the Army by becoming
a noncommissioned officer.

7.  The applicant's military records contain an enlistment contract, which
shows he enlisted and entered active duty in the Regular Army (RA) on 25
January 2005, for a period of three years.  There is no indication on the
enlistment contract, nor is there any other evidence of record that shows
the applicant’s enlistment in the Army was for the purpose of fulfilling
the obligation he incurred as a result of breaching his ROTC contract.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his three-year enlistment in the
Regular Army should fulfill his obligation under his breached ROTC contract
was considered.  However, the applicant's ROTC contract called for an
expeditious call to active duty through ROTC channels at the needs of the
Army without the benefit of advancement in grade or other incentives, which
he received.  Nevertheless, in this case, the applicant’s enlistment in the
Army serves the same purpose as would have been served had he been ordered
to active duty in the Army through ROTC channels.

2.  The record shows that as a result of the applicant’s three-year
enlistment, the Army is getting the benefits of his service for the same
period he would have served had he been ordered to active duty as a result
of breaching his ROTC contract.

3.  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.  However, the applicant enlisted in the Army in the pay
grade of private first class, and was authorized a selective reenlistment
bonus(SRB).

4.  The prospect of negating the applicant’s debt for a free education he
received from the Army without becoming an officer, plus allowing him to
receive an enlistment/reenlistment bonus or other financial incentive he
ordinarily would not have received, would be a windfall.  While the Board
has jurisdiction to stop any enlistment bonus or loan repayment in this
case, any such bonus and incentive would be legitimate factors to consider
in granting or denying equitable relief regarding the ROTC debt.

5.  In view of the facts of this case, it would be appropriate to consider
his enlistment in the Army 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 obligated as a result of
his ROTC scholarship either voluntarily or because of misconduct, his ROTC
debt should be required to be recouped on a prorated basis.

BOARD VOTE:

___JTM__  __JBG__  __JRM__  GRANT FULL RELIEF

________  ________  ________  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 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 his ROTC scholarship debt of $11,260.82 under the original terms of
the ROTC contract by successfully completing his current enlistment in the
Regular Army, minus any enlistment or reenlistment bonuses he received in
conjunction with his
25 January 2005 enlistment/reenlistment in the Army.

2.  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 prorated basis.




            ____John T. Meixell_____
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050008662                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/10/20                              |
|TYPE OF DISCHARGE       |NA                                      |
|DATE OF DISCHARGE       |NA                                      |
|DISCHARGE AUTHORITY     |NA                                      |
|DISCHARGE REASON        |NA                                      |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |128.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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