RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 September 2006
      DOCKET NUMBER:   AR20060002445


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas Ray                    |     |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 disenrollment from the
Reserve Officer Training Corps (ROTC) Program be voided and that all
actions that resulted from the disenrollment be voided.

2.  The applicant states, in a seven-page explanation, in effect, that the
board proceedings were flawed both in 1998 and in 2001 and are not
sufficient to serve as the basis for his disenrollment.  He contends that
the board of officers hearings were not properly constituted, that he was
not notified of the hearings and that his due process rights to appear
before the board, as well as to review the evidence against him were
violated.  He also states that the debt he is being required to reimburse
is unjust because he enlisted in the Regular Army and has served many more
years of enlisted service than was required by his ROTC contract.
Accordingly, the results of the board of officers should be voided and his
debt remitted/cancelled.

3.  The applicant provides copies of his two disenrollment packets.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the United States Army Reserve (ROTC Control Group) on
22 August 1995, for a period of 4 years with entitlement to tuition and
educational fees up to $8,000 per year.

2.  On 12 March 1998, the applicant was notified by his Professor of
Military Science (PMS) that he was being placed on a leave of absence
pending disenrollment from the ROTC Program.  He was also informed that he
was not authorized to enlist or be commissioned into any active or Reserve
military component until disenrollment and discharge were completed.

3.  On the same date the PMS notified the applicant that he was being
suspended from participating in all activities associated and/or affiliated
with Pershing Rifles for pledging a line without permission or approval
from the PMS or cadre Pershing Rifle representative, for intentionally
inflicting needless physical and mental abuse upon pledges, and for
intentionally discriminating against members of the organization based on
sex.

4.  On 20 March 1998, the PMS notified the applicant that he was initiating
action to disenroll the applicant from the ROTC Program because he had
initiated a “line” to induct new members into the Pershing Rifles, because
he allowed and/or participated in illegal physical and mental hazing
activities against two ROTC Cadets, because he discriminated against
members who would be afforded the opportunity to join base on gender,
because he had allowed obscene answering recordings on his voice mail while
acting on behalf of Army ROTC activities, because he was involved in an
incident with civil authorities as a result of “spot lighting” them with a
red laser, because he brought discredit to the ROTC program as a result of
an incident involving a prostitute, and because he missed various ROTC
training events, classes, and/or sessions.

5.  On 23 October 1998, a board of officers determined that the applicant
did commit the offenses for which he was accused and recommended that he be
disenrolled from the ROTC Program.

6.  On 3 December 1998, the applicant enlisted in the United States Army
Reserve (USAR) under the delayed entry program (DEP) for a period of 8
years. He enlisted in the Regular Army on 13 January 1999 in the pay grade
of E-3 for a period of 4 years, a cash enlistment bonus of $11,000,
training in the infantry career management field and enrollment in the Loan
Repayment Program.  He completed his one-station unit training, airborne
and Ranger training at Fort Benning, Georgia, and was transferred to Fort
Bragg, North Carolina, for duty as an infantry indirect fire crewman.  He
was advanced to the pay grade of E-4 on 13 March 2001.

7.  For reasons not adequately explained in the available evidence of
record, another board of officers was convened on 13 September 2001 to
determine if the applicant should be disenrolled from the ROTC Program.
The applicant was not present for the hearing and it did not adjourn until
29 November 2001.  That board also found that he had committed the offense
for which he was accused and recommended that he be disenrolled from the
ROTC Program and that he be required to repay all scholarship benefits
received.

8.  On 22 October 2003, the Army Cadet Command dispatched a memorandum to
the applicant at Fort Bragg notifying him that he was disenrolled from the
ROTC Program and that he was required to repay the educational assistance
provided to him in the amount of $27,060.00.  The applicant was advised of
his right to dispute the action and did so in an eight-page rebuttal.  The
applicant was serving as a respiratory specialist in the pay grade of E-5
at the time.  He requested that the action be voided and that he be given
an administrative disenrollment with no inference of misconduct or
disinterest and no penalties or adverse actions.

9.  On 6 June 2005, the Office of the Deputy Chief of Staff, GI, Officer
Division, dispatched a letter to the applicant informing him that the
Director of Military Personnel Management ratified the validity of his ROTC
Scholarship Debt and determined that there was sufficient evidence to
support recoupment.  He also informed the applicant that rather than repay
the ROTC Scholarship Debt, he was only required to repay the $11,000
enlistment bonus he received.  He was also advised of his right to apply to
this Board.

10.  The applicant was promoted to the pay grade of E-6 on 17 December 2004
in the military occupational specialty of 91V3V (Respiratory Specialist).
He was honorably discharged on 12 January 2006 for the purpose of accepting
a commission in the Army.  He was commissioned as a USAR second lieutenant,
physicians assistant on 13 January 2006.  He is currently married with
dependents.

11.  In the processing of this case a staff advisory opinion was obtained
from the Cadet Command who opined that the applicant’s disenrollment had
been found to be legally sufficient at the time and had been further
reviewed by the Department of the Army.  The opinion further opined that
the disenrollment was not the real issue; however, the $11,000 enlistment
bonus he received was the real issue.  The opinion further states that
dissolving the reason for his breach of contract and disenrollment would
release him of the scholarship debt and remove any restrictions for
receiving an enlistment bonus.  Accordingly, he is only required to repay
the $11,000 enlistment bonus.

12.  The advisory opinion was provided to the applicant for comment and he
responded to the effect that his issue is not about the repayment of his
enlistment bonus as the Cadet Command contends but to the allegations made
against him and the unfair processes to which he was subjected and his
subsequent disenrollment.  Accordingly, he desires to clear his name and
the matter as he does not want it to haunt him throughout his career,

13.  Title 10, United States Code, section 2005(a)(3), states, in pertinent
part, that the Secretary concerned may require, as a condition to the
Secretary providing advanced education assistance to any person, that such
person enter into a written agreement with the Secretary concerned under
the terms of which such person shall agree that if such person, voluntarily
or because of misconduct, fails to complete the period of active duty
specified in the agreement, or fails to fulfill any term or condition
prescribed pursuant to clause, such person will reimburse the United States
in an amount that bears to the total period of active duty such person
agreed to serve and to such other terms and conditions as the Secretary
concerned may prescribe to protect the interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his disenrollment from the ROTC Program
was improperly conducted and should be voided has been noted and found to
be without merit.  While there is not enough evidence available to
ascertain with any certainty that the applicant’s due process rights were
violated, given the amount of time and lack of specific evidence, the Board
must presume that he was properly disenrolled from the ROTC.

2.  It is also noted that the applicant was specifically informed in
writing that until such time as he was disenrolled and discharged from the
USAR Control Group (ROTC), he was ineligible to enlist or accept a
commission.  The applicant ignored those directions and enlisted despite
those directions.  Accordingly, the applicant is also culpable in this
matter because he should have pursued the issue more aggressively at the
time until the issue was resolved.  To do so at this time after the passage
of so much time has elapsed is fruitless at best.

3.  However, the Board does agree that the disenrollment process was unduly
delayed for whatever the reasons may be and it is not reasonable to presume
that such a process should take from March 1998 to October 2003 to
complete.

4.  Had the applicant been involuntarily ordered to active duty in a timely
manner 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.  However, he was not notified in a timely manner that
he would be ordered to active duty or offered the opportunity to repay his
debt until almost 5 years after he had been led to believe that he was
disenrolled.  Consequently, he enlisted in the Army in the pay grade of E-3
and received a cash enlistment bonus of $11,000.00, in a skill that is
needed by the Department.

5.  While the Board, in similar cases, normally subtracts the amount of the
bonus received from any debt forgiven, the timeliness of notification is
usually such that the individual concerned can apply their bonus to the
debt.  However, in this case, the applicant was not notified of his debt
until almost 4 years after he enlisted in the Regular Army.

6.  Since his enlistment, he has married and now has children.
Accordingly, it is not reasonable to expect that he would still have his
enlistment bonus to apply to the debt.

7.  Inasmuch as he has served more time than his debt would have required,
has extended his original enlistment and reenlisted, it appears that the
Army has received the benefit of his educational benefits through his
service both as an enlisted infantryman and now as a commissioned officer
and physician’s assistant, both critical skills needed by the Department.

8.  Accordingly, as a matter of equity, his ROTC Scholarship Contract
should be amended to reflect that his debt obligation may be satisfied by
virtue of his enlistment in the Regular Army, as an exception to policy.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___JA __  ____ML__  ___TR __  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 reflect
that his debt obligation to include the $11,000 enlistment bonus will be
satisfied based on completion of his 4-year enlistment in the Regular Army
on 13 January 1999.

2.  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
voiding his disenrollment from the ROTC Program.




                                  ____James Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002445                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DATE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DISCHARGE AUTHORITY     |N/A AC Soldier on AD                    |
|DISCHARGE REASON        |N/A AC Soldier on AD                    |
|BOARD DECISION          |(PARTIAL GRANT)                         |
|REVIEW AUTHORITY        |N/A AC Soldier on AD                    |
|ISSUES                  |27/ROTC DEBT                            |
|1.104.0300              |                                        |
|2.128.1000              |293/REMIT DEBT                          |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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