RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20050017367


      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. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 Reserve Officers’ Training
Corps (ROTC) debt be waived and that he be discharged from the Army
National Guard (ARNG).

2.  The applicant states that the letter of disenrollment made no reference
to misconduct due to failure to adhere to the military requirements that
being an officer requires, such as operating a vehicle while intoxicated or
any criminal mischief in any form.  The only [problem] was his not getting
along with the cadre, two in particular.  Many of the cadre actually
disapproved of the decision to disenroll him.  However, his Professor of
Military Science (PMS) told him there would be no way to appeal the case to
a higher authority because there would be no chance for him to win because
he (the PMS) knew most of the board personally.  The PMS informed him that
he would not have to pay back the money because he would stay in the ARNG
and his debt would be forgiven.  In fact, there is a policy that if he were
to enlist in the Regular Army for 2 years his debt would be forgiven.
However, there is no policy that if he stays in the ARNG for the next 6
years that his debt would be forgiven.

3.  The applicant states that, when his [enlistment] contract expired in
2004, he would have been eligible for a $15,000 bonus.  He did not get the
bonus because officers are not eligible for reenlistment bonuses, and he
was training to be an officer.  However, he was forced to reenlist to be an
officer.

4.  The applicant states that another reason he wants to appeal this
erroneous debt is because he had to postpone his initial graduation from
May 2003 to May 2004 to stay in college for an extra year to complete the
ROTC classes, thus losing out on a full working year in his prospective
career and having to pay the college more money.  He was informed of his
disenrollment two hours before his graduation ceremony, to the
disappointment of his family.  He had laid out plans for going to advanced
camp, and then to the Officer Basic Course.  Instead, he had to immediately
find a job.  He had to get a part time job and start paying back his other
college debts.

5.  The applicant states that his PMS, as well as many of his peers, did
not like him.  Being a Simultaneous Membership Program cadet, and joining
the program late, when all of the others had been together for four plus
years, made it hard to fit in.  The irony is that his contract states that
if he spent 2 years of active duty his debt would be forgiven; however, 8
years of ARNG service is not sufficient.



6.  The applicant provides his DA Form 597-3 (Army Senior Reserve Officers’
Training Corps (ROTC) Scholarship Cadet Contract); an unsigned letter of
reference, dated 8 October 2004; his record of indebtedness; and his ROTC
disenrollment packet.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ARNG on 26 March 1998 for 8 years (6
years as a member of an ARNG unit and 2 years as a member of the Individual
Ready Reserve).

2.  On 8 January 2002, the applicant extended his 6-year ARNG enlistment
for a period of 3 years and 10 months to qualify for the GI Bill Kicker,
making his expiration term of service 25 January 2008.

3.  The applicant signed his DA Form 597-3 on 11 September 2002.  Paragraph
1a stated the Army would pay for a period of two academic years.  Paragraph
2b stated that the applicant agreed to remain enrolled in and successfully
complete the ROTC program and all training as prescribed as a prerequisite
for commissioning.

4.  Paragraph 5 of the applicant’s DA Form 597-3 stated he understood and
agreed that once he became obligated and was disenrolled from the ROTC
program for breach of contractual terms or any other disenrollment criteria
established now or in the future by Army regulations (which included, but
were not limited to, Army Regulation 145-1) incorporated herein by
reference, he was subject to the terms in paragraphs 5a through 5e:

      Paragraph 5a stated that the Secretary of the Army or his or her
designee could order him to active duty as an enlisted Soldier, if
qualified, for a period of not more than 4 years if he failed to complete
the ROTC program.


      Paragraph 5b stated that, if he was offered the opportunity to repay
his advanced educational assistance in lieu of being ordered to active
duty, he would be required to reimburse the United States government
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 commencement of the contractual agreement to the date of his
disenrollment.  It stated that the applicant understood that he could be
deemed to have failed to comply with the terms and conditions of the
contract (breach of contract) regardless of whether he knew that the
failure violated the contract and regardless of whether the failure was the
result of an act or omission on his part made with a specific intent to
avoid responsibilities under the contract.
      Paragraph 5c stated that he understood and agreed that if he
voluntarily or because of misconduct failed to begin or failed to complete
any period of active duty or duty in a reserve status not on active duty
that he incurred under the contract whether as an officer or an enlisted
Soldier, he would be required to reimburse the Untied States an amount of
money, plus interest, that was equal to or bore the same ratio to the total
cost of the financial assistance provided to him by the United States as
the unserved portion of such duty bore to the total period of duty he was
obligated to serve.

      Paragraph 5d stated he understood that he could not enlist in the
active Army, another military service, or in a military service academy
while he was a contracted ROTC cadet unless he was properly released from
his ROTC cadet status.

      Paragraph 5e stated that he agreed that any obligation to reimburse
would not be altered by subsequent enlisted duty.  If he was required to
repay his advanced educational assistance under the terms of the contract,
his subsequent enlistment in an Armed Service would not relieve him from
his repayment obligation.

5.  By memorandum dated 20 April 2004, the applicant’s PMS informed the
applicant he was initiating the applicant’s disenrollment from the ROTC
program. The reasons cited were misconduct as demonstrated by disorderly or
disrespectful conduct during ROTC training or other misconduct that
substantially interfered with the ROTC mission and showed his lack of
leadership potential.  The applicant was informed he could request a
hearing by a board of officers or an investigating officer or he could
waive his rights to a hearing.  He could consult with any reasonably
available military officer or civilian counsel at no expense to the
Government to help him decide whether or not to waive a hearing and
otherwise assist him in exercising his options.  He could submit written
statements in his behalf.  If eligible, he could choose expeditious call to
active duty in the enlisted grade of private, E-1 in order to satisfy the
breach of contract.

6.  In a partially illegible DA Form 4856 (Developmental Counseling Form)
dated 20 April 2004 (only the front side is available), the PMS indicated
the applicant failed to adapt and respond to military training.  The
applicant was continually rated at the very bottom of peer evaluations.  He
failed to understand that a leader neither requests nor expects an
exception to the standard.  Examples [of the applicant’s failure to adapt]
included the applicant’s request to depart the Fall 2003 field training
exercise to attend a friend’s birthday party; his absences from required
physical training events; and his poor attitude as outwardly demonstrated
by body language when something was not to his liking.  A pattern of
misconduct was cited, including an incident involving alcohol during the
Vicksburg Staff Ride in August; his departure from a football concession
when in a position of responsibility involving money; and early departure
from class on occasion.

7.  On 21 April 2004, the applicant elected to waive his right to a hearing
and to decline expeditious call to active duty.

8.  On 20 May 2004, the applicant’s battalion commander recommended
approval of the disenrollment action with recoupment of scholarship.  A DA
Form 5315-R (US Army Advanced Education Financial Assistance Record) shows
the applicant received $10,623.00 in educational assistance.

9.  The applicant appealed the validity of the debt.  His appeal is not
available; however, it appears he provided an 8 October 2004 unsigned
letter of support from an Assistant PMS.  The Assistant PMS stated the
applicant was a good cadet with good potential to be an officer; however,
the applicant was unable to perform at the standard that the PMS
established.  The applicant did not do anything wrong to get disenrolled,
it was just a question of the PMS feeling the applicant would not make a
good officer.  The Assistant PMS noted that the applicant focused on his
civilian degree requirement and not his ROTC requirements, causing his
military performance to come up short.  As an example, the Assistant PMS
cited the applicant’s electing to participate in a college civilian summer
internship rather than attend advanced camp during the summer of 2003.  The
Assistant PMS stated that forcing the applicant to repay his cadet monies
would be a hardship.

10.  By letter dated 18 February 2005, the applicant was notified that an
investigating officer had been appointed to conduct an informal
investigation   into the validity of the debt.  His appeal was apparently
disapproved.  Effective  17 August 2005, he was disenrolled from ROTC.

11.  Army Regulation 145-1 (Senior Reserve Officers’ Training Corps
Program:  Organization, Administration, and Training) states, in pertinent
part, that a cadet will be disenrolled for a number of listed reasons, to
include misconduct, demonstrated by disorderly or disrespectful conduct in
the ROTC classroom or during training, or other misconduct that
substantially interferes with the ROTC mission; and inaptitude for military
service as demonstrated by lack of general adaptability, ability to learn,
or leadership abilities.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the letter of disenrollment made no
reference to “misconduct due to failure to adhere to the military
requirements that being an officer requires, such as operating a vehicle
while intoxicated or any criminal mischief in any form.”  However, the
letter of disenrollment did mention his misconduct as demonstrated by
disorderly or disrespectful conduct during ROTC training that showed his
lack of leadership potential.  The DA Form 4856 mentioned his absences from
required physical training events.  The DA Form 4856 specifically mentioned
a pattern of misconduct, citing an incident involving alcohol during the
Vicksburg Staff Ride in August; his departure from a football concession
when in a position of responsibility involving money; and early departure
from class on occasion.  While this type of misconduct may not equate to
“criminal mischief,” it is misconduct that a prospective officer is not
expected to condone or be a party to.

2.  The applicant contended that his PMS told him there would be no way to
appeal the case to a higher authority.  There is no evidence his PMS said
that.  In addition, he was informed in writing that he could request a
hearing by a board of officers or an investigating officer, that he could
consult with any reasonably available military officer or with civilian
counsel to help him decide whether or not to waive a hearing and otherwise
assist him in exercising his options, and that he could submit written
statements in his behalf.  The applicant elected to waive all of those
rights and did not even submit a written statement wherein he could have
addressed the PMS’s alleged statement.

3.  The applicant contended that his PMS informed him that he would not
have to pay back the money because he would stay in the ARNG and his debt
would be forgiven.  He contended that “there is a policy that if he were to
enlist in the Regular Army for 2 years his debt would be forgiven.”  He
provides no evidence to show his PMS told him that.  In fact, his written
contract specifically informed him that if he was required to repay his
advanced educational assistance under the terms of the contract then his
subsequent enlistment in an Armed Service would not relieve him from his
repayment obligation.  The applicant might have been referring to active
duty in general, rather than to enlistment in the Regular Army in
particular.  However, the applicant declined expeditious call to active
duty.

4.  The applicant states that when his [enlistment] contract expired in
2004, he would have been eligible for a $15,000 bonus.  However, he did not
get the bonus to reenlist because officers are not eligible for
reenlistment bonuses.  He was training to be an officer, and he was forced
to reenlist to be an officer.

5.  The applicant enlisted in the ARNG on 26 March 1998 for 8 years (6
years as a member of an ARNG unit and 2 years as a member of the Individual
Ready).   He provides no evidence to show he was forced to reenlist in 2004
to remain in ROTC.  In fact, the only available evidence of record shows he
extended his       6-year ARNG enlistment for a period of 3 years and 10
months on 8 January 2002, 8 months prior to his signing his ROTC contract.


6.  The applicant contends that another reason he wants to appeal this
“erroneous” debt is because he had to postpone his initial graduation from
May 2003 to May 2004 to stay in college for an extra year to complete the
ROTC classes.  However, he was fully aware that he would not complete the
requirements for ROTC graduation until May 2004 when he voluntarily signed
his ROTC contract.  The applicant fails to provide sufficient evidence to
show he was not aware that the misconduct which was cited in the DA Form
4856 might have jeopardized his chances for appointment.

7.  The applicant contended that the irony is that his contract states that
if he spent two years on active duty his debt would be forgiven; however, 8
years of ARNG service is not sufficient.  It is not understood why this is
ironical to the applicant.  His ROTC contract clearly informed him that the
Secretary of the Army or his or her designee could order him to active duty
as an enlisted Soldier for a period of not more than 4 years if he failed
to complete the ROTC program. He elected to decline expeditious call to
active duty.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__clg___  __jbg___  __pmt___  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.




                                  __Curtis L.  Greenway_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017367                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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