RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 August 2005
      DOCKET NUMBER:  AR20050016497


      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. Edmund P. Mercanti            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dean A. Camarella             |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 that his alleged debt of $8,226.00 be removed
from his record.

2.  The applicant states he accepted a Reserve Officers Training Corps
(ROTC) scholarship because of his family’s inability to pay for his
education.  While an ROTC cadet, he accepted an appointment in the United
States Coast Guard Academy.  He adds that he was never given notice, either
actual or constructive, that his ROTC scholarship was contingent upon his
service in the Army.

3.  The applicant provides excerpts from his ROTC and United States Coast
Guard Academy records; a DD Form 214, Certificate of Release or Discharge
From Active Duty, showing that he was a midshipman at the United States
Coast Guard Academy from 8 July 1996 to 20 April 1999 and he left the
Academy due to voluntary resignation; and two letters from him in which he
challenges the validity of his ROTC scholarship debt.  In the first letter
dated 12 March 2004, the applicant stated that he was in his second year in
the United States Coast Guard Academy.  In the second letter dated 12 March
2004, the applicant explains that he was an alternate Congressional nominee
to the Naval Academy, and a once overlooked candidate for the United States
Coast Guard Academy.  As a result, he enrolled in the Service Academy
Preparatory Program (SAP) while in ROTC.  He added that his ROTC counselors
and his SAP liaison “never informed me of any possibility or requirement of
repayment of this scholarship.”

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 7 September 1996.  The application submitted in this case is
dated 28 September 2005.

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’s records do not contain a copy of his ROTC scholarship
contract.  His records do show that on 24 July 1996, the applicant was
notified that his disenrollment to accept an appointment into a service
academy other than the United States Military Academy constituted a breach
of his scholarship contract.  In this letter he was informed that he had
been paid a total of $8,076 in scholarship payments.  As a result, “This
amount ($8,076.00) is your debt to the United States and is now due.
Therefore, you are directed to repay your debt as shown in the attached
addendum . . .”

4.  On 7 September 1996, an individual who used the suffix “III” signed an
Addendum to Part I Scholarship Contractual Agreement in which he
acknowledged that he had been notified that he was in breach of his 2-year
scholarship contract and he had been directed to make repayment of the
monies expended by the United States in support of his educational
assistance in the amount of $8,076.00.  In that addendum, the signer also
promised to make repayment of the total amount owed.

5.  Also on 7 September 1996, the applicant’s father sent a letter to the
Defense Finance and Accounting Office (DFAS).  In that letter the
applicant’s father stated that he discussed a repayment plan with the
applicant and the applicant stated that he could only afford to repay the
debt at a rate of $5.00 a month.  The applicant’s father signed this letter
using the suffix “Jr.”

6.  On 17 October 1996, the applicant was discharged from the United States
Army Reserve Control Group (ROTC).

7.  On 8 July 1996, the applicant entered active duty as a midshipman in
the United States Coast Guard Academy.  He was honorably released from
active duty on 20 April 1999 by reason of voluntary resignation.

8.  In the processing of this case, an advisory opinion was obtained from
the Cadet Command.  The Cadet Command stated that the terms of a
scholarship contract required that a cadet either repay the debt monetarily
or agree to be ordered to active duty based on the needs of the Army.  When
the applicant disenrolled from the ROTC he breached his scholarship
contract.  A debt was established when the applicant agreed to repay that
debt in $5.00 payments.

9.  The applicant was provided a copy of this advisory opinion and
submitted a rebuttal.  In that rebuttal he states that since Webster’s
Dictionary defines a scholarship as a gift of money, it cannot be used to
establish a debt.  He continues that he has unsuccessfully requested a copy
of his scholarship contract on numerous occasions so he can personally see
the clause that established his debt.  He adds that he never agreed to
repay any debt.  His father, without his permission and of his own accord,
wrote a letter saying that he would make payments to satisfy his ROTC debt.


10.  As part of a scholarship enlistment in the ROTC, an individual must
sign a DA Form 597-3, which is the agreement between the Army and a
potential ROTC cadet.  That form contains the promises made between the
Army and the potential cadet, and includes what action the Army will take
in the event that a cadet fails to successfully complete the terms of the
contract.  In that form the potential cadet states that "I understand the
commitment point at which I may not voluntarily withdraw from the
scholarship program without penalty varies by scholarship as follows:  “A
four-year recipient cannot voluntarily withdraw at any time after beginning
the first Military Science class of the sophomore year; MS II or the second
year of the scholarship." and "If, subsequent to the commitment points
listed above, I fail to abide by the terms and conditions set forth in this
contract and am disenrolled, I understand that the Secretary of the Army
may order me to active duty as an enlisted member, and I will serve on
active duty for the periods listed below:  During MS II - 2-years; During
MS III - 3-years; [and] During MS IV or refuse to accept commission - 4-
years." and "I also understand that I do not have the option to elect
monetary reimbursement in lieu of my service on Active Duty and/or duty in
the Reserve Component as prescribed by the Army."  That form defines
willful evasion as "...an intentional act or omission, on the part of a
student, which act is designed to breach the terms of this contract or to
avoid appointment or service as an officer.  The parties specifically agree
that the following acts, although not all inclusive, are expressly defined
as acts of "willful evasion" as that term is used within this contract.
(1) Refusal of the cadet to take steps to initiate the application for a
commission at the time of the cadet's completion of the ROTC program.  (2)
Refusal to accept a commission at the time it is offered to the cadet.  (3)
Without having first obtained the prior written consent from the PMS,
dropping ROTC from the normal course load of the cadet, reducing the course
load to a level below that of a full time student, as that term is defined
by this contract, dropping out of school, transferring to another
institution of advanced education without the written permission of the
PMS, feigning a disqualifying physical condition or deliberately concealing
a disqualifying condition during the application process, failing ROTC
course work while maintaining an overall grade point average adequate for
degree attainment, voluntarily withdrawing from Advanced Camp, or entering
the officer production program of another armed service."

DISCUSSION AND CONCLUSIONS:

1.  While the applicant’s scholarship contract is no longer a matter of
record, that is not surprising.  The debt was established when a repayment
plan was established in 1996, negating the need to retain the document
which authorized the payment of the scholarship monies.

2.  The applicant was notified of his debt in writing on 24 July 1996.

3.  On 7 September 1996, an individual who used the suffix “III” signed an
Addendum to Part I Scholarship Contractual Agreement in which he
acknowledged that he had been notified that he was in breach of his 2-year
scholarship contract and he had been directed to make repayment of the
monies expended by the United States in support of his educational
assistance in the amount of $8,076.  This signature is remarkably similar
to that used by the applicant on the DD Form 214 he was issued by the Coast
Guard.  In that addendum, the signer also promised to make repayment of the
total amount owed.  The applicant uses the suffix “III” in his name.

4.  Also on 7 September 1996, the applicant’s father sent a letter to the
DFAS which he signed using the suffix “Jr.”  This signature is
significantly different from that used on the Addendum to Part I
Scholarship Contractual Agreement and the signature on the applicant’s
Coast Guard DD Form 214.

5.  An assumption must be made that the applicant signed a scholarship
agreement.  A scholarship agreement would be required for finance to
disperse scholarship funds.  There is only one scholarship agreement form
used by the Army.  That agreement specifies that the entry into an officer
production program of another armed service constitutes willful evasion and
would result in the order to involuntary active duty in accordance with the
needs of the Army or the repayment of the scholarship.

6.  In summary, the preponderance of evidence shows that the applicant
signed an ROTC scholarship contract, and that he signed an Addendum to Part
I Scholarship Contractual Agreement acknowledging his debt and agreeing to
repay it.  While the applicant served on active duty as a midshipman in the
Coast Guard Academy, that was not an involuntary call to active duty that
is referred to in his ROTC scholarship contract.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 September 1996; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 6 September 1999.  The applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_____rtd_  ___rmn _  ___dac___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ________Richard T. Dunbar______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016497                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060817                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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