RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 NOVEMBER 2006
      DOCKET NUMBER:  AR20060000122


      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. Rene’ R. Parker               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Peter Fisher                  |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 ROTC (Reserve Officers’
Training Corps) debt be waived or that his active duty service be accepted
as full repayment of the debt.

2.  The applicant states, in effect, that he requests forgiveness of his
debt because he chose to serve on active duty.  He explains that he will be
completing his degree and graduating from college in December 2005 and
after graduation will return to active duty status.  The applicant
maintains that he is working with a recruiter and assembling an Officer
Candidate School (OCS) packet so that he may begin his training upon his
return to active duty.  The applicant states, "I want to serve on active
duty not only to repay my debt, but also to fulfill my desire to serve."

3.  The applicant provides a DA Form 5315-E (US Army Advanced Education
Financial Assistance Record); Headquarters, Unites Stated Army Cadet
Command (USACC) memorandum, dated 15 July 2005, subject: Disenrollment from
the U.S. Army ROTC Program; self-authored letter to the commander, USACC,
undated, in response to the disenrollment memorandum; letter to the
applicant from the commander, USACC, dated 21 September 2005, in response
to his undated letter; Defense Finance and Accounting Service (DFAS) Denver
Center letter notification of indebtedness, dated 18 November 2005; and a
letter to the Army Board for Correction of Military Records, dated 25 July
2006, clarifying his request for forgiveness, not suspension, of his debt
and inclusion of current active duty enlistment documents.

CONSIDERATION OF EVIDENCE:

1.  On 15 March 2004, the applicant entered into a contract between himself
and the United States Army ROTC program by signing a DA Form 597-3 (Army
Senior Reserve Officers’ Training Corps Scholarship Cadet Contract).  As
part of the contract the Department of the Army agreed to pay, for a period
of two academic years, the applicant’s tuition and educational fees up to
an annual amount of $17,000.00; fees for textbooks and laboratory expenses
at a flat rate of $600.00 per annum, subject to increase during the period
of the contract; payment for monthly subsistence as provided by law; and
payment for attendance at the National Advanced Leadership Camp.

2.  As a partner to this contract, the applicant agreed, among other
stipulations, to enlist in the Army Reserve for eight years as a cadet for
assignment to the USAR Control Group (ROTC); to enroll in the necessary
courses and successfully complete within the prescribed time the
requirements for the degree in his academic major; to remain a full-time
student in good standing until he received his degree; and to maintain
eligibility for enrollment in ROTC, enlistment in the USAR, and
commissioning.

3.  He also agreed that if he failed to complete the educational
requirements specified in the agreement, failed to comply with other terms
and conditions of the contract, misconduct, or other disenrollment
criteria, he may be disenrolled from the ROTC program for breach of
contract.  As a result of disenrollment, he may be ordered to active duty
as an enlisted Soldier for a period not more than
4 years, or in lieu of being ordered to active duty, offered the
opportunity to voluntarily reimburse the United States government through
repayment of an amount of money, plus interest, equal to the amount of
financial assistance paid by the United States government.

4.  On 15 July 2005, the commander, USACC, informed the applicant that he
was disenrolled from the ROTC Program under the provisions of Army
Regulation 145-1, paragraph 3-43a(14), based on his undesirable character
as demonstrated by his cheating/plagiarism on a required assignment.  The
commander stated that when an ROTC scholarship contract is breached, any
obligation to the Army must be satisfied through order to active duty in an
enlisted status or by repaying the cost of advanced education assistance
provided by the Army.  The applicant was given 14 days from receipt of the
disenrollment letter to either agree to be ordered to serve on enlisted
active duty for a term not to exceed 4 years, or elect to pay the
$18,526.00 owed in a lump sum or by a repayment plan.  The letter explained
that failure to respond by the suspense date may result in the involuntary
issuance of active duty orders or the initiation of involuntary collection
action.

5.  The applicant’s response to the commander, USACC’s disenrollment letter
was undated.  However, he admitted that he was well aware of the
circumstances regarding his disenrollment from the ROTC Program at the
University of Tampa.  He argued that he did not cheat or plagiarize but,
did not elect to fight for his innocence due to the long, drawn-out battle
that would have ensued.  The applicant said that he did not complete the
ROTC Program because of an "overzealous O-5 making a bad decision."  The
applicant maintains that he immediately reenlisted in the Florida Army
National Guard upon his decision not to pursue the cheating or plagiarizing
allegation.  The applicant concluded that he had no intentions of taking
the money and running; his only goal was to return to the service upon
completion of his college degree.

6.  On 21 September 2005, the commander, USACC, responded to the
applicant’s undated letter that was received in September 2005.  The
commander stated that he had read and considered the applicant’s concerns
expressed regarding the reason for his disenrollment.  However, the
commander stated that when the applicant was notified on 10 January 2005 of
his disenrollment for undesirable character, he (applicant) acknowledged
the disenrollment reason and debt, and waived his right to present matters
regarding the disenrollment.  The suspense date to receive his dept
repayment selection passed with no response from him; therefore, a debt
repayment was established with DFAS.  He was also advised that if he
desired to appeal he could do so by submitting an application to the Army
Board for Correction of Military Records requesting correction, remission,
or termination of his debt.

7.  On 18 November 2005, DFAS notified the applicant that they were advised
by the organization maintaining his personnel records that he was in debt
as a result of the cost of educational expenses paid on his behalf.  The
applicant was told to contact DFAS immediately if he had already paid the
debt or felt that the debt was invalid.

8.  In the processing of this case an advisory opinion was obtained from
the United States Army Cadet Command, Deputy Chief of Staff, G1.  The
official noted that the applicant had breached his contract and failed to
elect a repayment option within the allowed time frame.  Therefore, a debt
was established through DFAS on 15 August 2005.  The official stated that
the applicant’s decision to breach the terms of his ROTC contract and
enlist in the U.S. Army National Guard were voluntary actions.  His
voluntary enlisted service in the U.S. Army National Guard was not an
authorized remedy for debt repayment under the terms of his ROTC contract.
The command recommended disapproval of his request.

9.  The advisory opinion was forwarded to the applicant for acknowledgement
and/or rebuttal on 28 June 2006.  He did not respond within the allotted
time frame.

10.  On 11 March 2006, the applicant acknowledged his application for
enlistment into the Regular Army had been accepted for reservation under
enlistment options 9D (United States Army Officer/Warrant Officer
Enlistment Program) and 9C (United States Army Incentive Enlistment Program
– US Army OCS [Officer Candidate School] Bonus) in the amount of $8,000.00.


11.  On 30 June 2006, the applicant enlisted in the Regular Army for 3
years in pay grade E-4.  His enlistment contract shows that he acknowledged
his enlistment in the Regular Army for only the 9D enlistment option.
Evidence shows the applicant’s enlistment contract was renegotiated to
withdraw the 9C OCS bonus enlistment option.  On 27 October 2006, a staff
member of the Board contacted the applicant at OCS, Fort Benning, Georgia.
The applicant acknowledged that he had renegotiated his enlistment contract
prior to entering Regular Army status and that the OCS bonus enlistment
option had in fact been withdrawn.  Additionally, an HQDA, G-1 furnished
roster confirms the applicant’s Regular Army enlistment contract was
renegotiated to reflect “no incentive” enlistment option.

12.  In accordance with Army Regulation 135-210, former ROTC cadets, when
ordered to active duty, will be ordered to report to the U. S. Army
Reception Battalion, bypassing the recruiting function where enlistment
options are offered and negotiated, and will be ordered to active duty in
pay grade E-1.

13.  Army Regulation 145-1 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.  The cadet will not be discharged/disenrolled
from ROTC 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, but Headquarters, Cadet Command
will issue orders ordering the cadet directly to active duty.

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., ROTC, United States Military
Academy, and advanced civilian schooling under a 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’s contention that his enlistment in the Florida Army
National Guard; current 3-year enlistment in the Regular Army; and upon
completion of OCS, commissioning as an Army officer should fulfill his
obligation under this breached ROTC contract was considered.  However, the
applicant’s ROTC contract called for an expeditious order to active duty
through ROTC channels at the needs of the Army without the benefit of
enlistment options or other incentives, which he received.  Nevertheless,
in this case, the applicant’s enlistment in the Regular Army serves the
same purpose as would have been served had he been ordered to active duty
in the Army through ROTC channels.

2.  As a result of the applicant’s current period of enlistment and
subsequent officer service for a total of 4 years, the Army is getting the
benefits of his service as if he had been ordered to active duty as a
result of breaching his ROTC contract.

3.  Had the applicant elected an expeditious order 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
grade of specialist, under the United States Army Officer Enlistment
Program and $8,000.00 United States Army OCS Bonus, although the bonus
incentive was withdrawn on 30 June 2006 through a renegotiated contract
between the United States Army and the applicant upon his entry on active
duty.

4.  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 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
scholarship debt would be required to be recouped on a pro-rated basis.

BOARD VOTE:

____TP__  ___PF __  ___LD __  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 Department of the Army records of the individual concerned be
corrected by amending the applicant’s ROTC scholarship contract to show
that he would satisfy his ROTC scholarship debt of $18,526.00 under the
terms of the ROTC contract by successfully completing his current
enlistment and subsequent officer service for a total of 4 years in the
Regular Army.

2.  If the individual concerned fails to complete the period of 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 in accordance with his DA Form 597-3.




                                  _____Thomas Pagan________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000122                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061121                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |103.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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