RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 July 2006
      DOCKET NUMBER:  AR20060005985


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |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 that his current active duty commitment and
service be accepted in lieu of the repayment of his ROTC scholarship debt.

2.  The applicant states that he is a former ROTC cadet who was disenrolled
from the University of Tennessee at Knoxville's ROTC program because he
held a passport both from the United States of America (USA) and from
Poland.  He entered the program in 2000 and was disenrolled in 2003.  He
further states that for an ROTC cadet to be commissioned, he/she cannot be
a citizen of any country other than the USA.  He found this out after his
sister advised him that she had to renounce her Polish citizenship before
she could receive her commission through the University of North Carolina
at Chapel Hill.  His sister was advised of this by her command one month
before she was to be commissioned and she did renounce her Polish
citizenship.

3.  The applicant further states that he immediately advised his chain of
command of the trouble his sister had with renouncing her Polish
citizenship at the last minute.  He was advised that he would also have to
renounce his citizenship to receive a commission.  He stated that he would
not do so, and the school disenrolled him.  He fully disclosed the fact
that he was a dual citizen to his chain of command both verbally prior to
joining the ROTC and in written form on his Electronic Personnel Security
Questionnaire (EPSQ).  After he saw the question about holding another
country's passport on the EPSQ, he again advised the recruiting officer,
Major _______, that he held two passports because he was also a citizen of
Poland, and wanted to know if this was an issue.  The recruiting officer
asked him if he was an American, and he stated, yes.  He was then advised
by the recruiting officer that he was eligible to join the ROTC because he
was an American, and granted him a 3-5 year contract and scholarship.

4.  The applicant also states that the Cadet Enrollment Record he completed
(CDT DMD Form 139-R, version dated May 95), page 1, section 1 (Enrollment
Eligibility), asks "Are you are US Citizen?", but does not ask if the cadet
holds a passport from a country other than the USA.  Possibly as a result
of similar issues in other ROTC Battalions, CDT CMD Form 139-R, version
dated Dec 04, was modified the very next year to specifically ask on page
1, if the cadet is a dual citizen, not just an American citizen, and
clarifies on page 3, that the cadet must renounce dual citizenship to
accept a commission.  The form he completed in 2000 did not say he could
not be a citizen of another country, only that he had to be a US citizen,
which he is.

5.  The applicant further states that after his disenrollment, his school
sent him a letter in 2003 stating that he was in breach of contract as
described in DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract),
page 7, sections 9 and 10.  Sections 9 and 10 specify that if the cadet is
disenrolled for any reason or fails to accept commission he/she must
either: a) enlist, or b) pay back the scholarship.  However, paragraph 7d,
specifies that if he were disenrolled from the ROTC Program for any reason,
the Secretary of the Army could order him to reimburse the US for his
scholarship plus interest, or he could be ordered to active duty as an
enlisted Soldier for not more than 4 years.  When he found out that an
enlisted Soldier could maintain dual citizenship as long as he/she was an
American citizen, he enlisted in the pay grade of E-3, for 6 years[sic], as
a Special Forces Soldier and reported to Fort Benning, Georgia, on 1 April
2006.

6.  The applicant also states that he realized that had he chosen active
duty or been involuntarily ordered to active duty as a result of his
disenrollment or for failing to repay the original debt he promised to pay
in lieu of being ordered to active duty, he would have been assigned
against the needs of the Army and not allowed any enlistment options.
However, he believes his enlistment in the Regular Army for a period of 6
years[sic] serves the same purpose as would have been served had he been
ordered to active duty in the US Army.  The Army is still getting the
benefits of his service.  He would have owed the Army 4 years had he been
ordered to active duty; as it stands now, he has enlisted for 6 years[sic].

7.  The applicant provides copies of his Army ROTC scholarship contract,
his Defense Finance and Accounting Service (DFAS) Accounting Statement, and
a list of several cases approved by the Board reference enlistment in the
Regular Army as satisfying the ROTC contractual obligation, in support of
his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the United States Army
Reserve (USAR), as a cadet, on 18 January 2001, and was contracted under
the ROTC Scholarship Cadet Program.

2.  The applicant's DA Form 597-3, dated 18 January 2001, shows that his
education commenced on 10 January 2001, with a completion date of 14 May
2004.

3.  In electronic mail (email) correspondence, Subject: Dual Citizenship,
dated 29 May 2003, the Professor of Military Science (PMS) advised the
applicant that since he was a dual citizen, he was no longer eligible to be
commissioned based on the fact that he could not obtain a security
clearance.  He could only obtain a clearance if he swore allegiance to the
US (only).  The applicant was also advised that he must renounce his
foreign citizenship to become eligible.  If he did not take the steps to
drop his other citizenship, he must be disenrolled under the Cadet Command
and Army Regulations.  Nothing in his records (Cadet Command contract)
indicated that he held dual citizenship status.

4.  In email correspondence, dated 31 May 2003, the applicant stated that
he had spoken with his parents, who he found out never wanted him to join
the Army in the first place, and with his sister, who advised him to do
what would make him happy.  He also stated, therefore, he would like to
officially state that he wished to disenroll from the Army ROTC Program
based on the fact that he did not wish to renounce his Polish citizenship.

5.  The applicant's records do not contain and he did not provide his
official notification of disenrollment from the ROTC program.

6.  The applicant enlisted in the Delayed Entry/Enlistment Program on
3 February 2006.  He enlisted in the Regular Component of the US Army on 29
March 2006, in pay grade E-3, for 5 years, with a $23,000.00 enlistment
bonus.

7.  On 30 March 2006, DFAS, notified the applicant of a payment due of
$300.00 and a remaining debt of $28,920.29.

8.  The applicant submits documentation that shows the ABCMR granted relief
in several cases pertaining to waiving ROTC debt after Soldiers had
enlisted in the Regular Army.

9.  A staff member of DFAS, verified on 5 July 2006, that the applicant's
original ROTC scholarship debt was $30,955.98.  An agreement was made with
the applicant to make monthly payments of $300.00 in April 2004.  His
payment agreement was reset after default in January 2005.  The applicant
has paid $4,491.18 towards his original debt.  According to DFAS his
remaining balance is $28,691.06.

10.  In an advisory opinion, dated 31 May 2006, the Deputy Chief of Staff,
G1, Headquarters, US Army Cadet Command, Fort Monroe, Virginia, stated that
the terms of the scholarship contract require that a cadet either repay the
debt monetarily or agree to be ordered to active duty through ROTC channels
based on the needs of the Army.  The applicant was offered the option of
repayment on 15 August 2003, after being disenrolled from the ROTC program
for breach of contract due to his dual citizenship.  In addition, the
applicant sent the PMS an email requesting disenrollment because he chose
not to renounce his Polish citizenship (email enclosed).  The choice of
repayment options was not returned and a debt was established with the DFAS
– Denver on 2 December 2003. Based on the information listed on the
applicant's DD Form 149 (Application for Correction of Military Record), he
is currently serving on active duty with the US Army.

11.  The US Army Cadet Command official also stated that the applicant's
active duty service is not the result of being ordered to active duty
through ROTC channels in satisfaction of his ROTC contractual obligation.
The applicant's decisions to breach the terms of his ROTC contract and
enlist in the Army were voluntary actions.  In addition, the information
from the USAREC website documents his receipt of a $23,000.00 enlistment
bonus.  His voluntary enlisted service in the Army is not an authorized
remedy for debt repayment under the terms of the ROTC contract.  Based on
the foregoing, the US Army Cadet Command recommended that the applicant's
voluntary enlistment not reduce the amount that he is required to reimburse
the US for his advanced educational assistance.

12.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 9 March 2006.  In his response, dated 23
June 2006, the applicant stated that he does not dispute the email
correspondence that his decision to breach the terms of his ROTC contract
was voluntary.  However, he sent the email after a conversation with the
PMS when he advised the PMS that his sister had to renounce her Polish
citizenship.  The PMS indicated that his next logical course of action was
to either renounce his Polish citizenship or withdraw from ROTC.  He did
not understand that waiting to be involuntarily disenrolled by ROTC was
another option available to him.

13.  Army Regulation 145-1, prescribes polices and procedures for
administering the Army’s Senior ROTC Program.  Paragraph 3-8, specifies
that students must be citizens of the US.  Students born in the US must
submit to the PMS a valid birth certificate for citizenship verification.
Students born outside of the US must submit a statement notarized by any
commissioned officer verifying citizenship as follows: a) citizenship by
naturalization, or b) citizenship through naturalization of parents, or c)
citizenship through birth aboard of parents who are citizens of the US.
Paragraph 3-34, specifies that to be eligible to receive or retain an Army
ROTC scholarship, the student must be a citizen of the US.  Paragraph 3-39,
specifies the Commanding General (CG), US Army ROTC Cadet Command
(USAROTCCC), is the approving authority for termination of scholarships
and/or disenrollment.  Paragraph 3-43 specifies that a non-scholarship
cadet may be disenrolled by the PMS and a scholarship cadet may be
disenrolled only by the CG, USAROTCCC, at their own request or breach of
contract.

14.  Army Regulation 145-1, paragraph 3-43a(16) specifies that a breach of
contract is defined as any act, performance or nonperformance on the part
of a student that breaches the terms of the contract regardless of whether
the act, performance or nonperformance was done with specific intent to
breach the contract or whether the student knew that the act, performance
or non-performance breaches the contract.  Paragraph 3-43e specifies that a
cadet who is involuntarily ordered to active duty for breach of his or her
contract will be so ordered within 60 days after they would normally
complete baccalaureate degree requirements.

DISCUSSION AND CONCLUSIONS:

1.  Although not provided for in his DA Form 597-3, the applicant's
enlistment and entry on active duty on 29 March 2006, serves the same
purpose as would have been served, had he been ordered to active duty
through ROTC channels, based on the needs of the Army.  Notwithstanding the
advisory opinion, it would be equitable to amend his ROTC scholarship
contract to show that he is satisfying the service obligation under the
terms of the original ROTC contract while serving as an enlisted Solider on
active duty.

2.  If the applicant fails to complete the period of enlisted service he
would have been obligated to as a result of his ROTC scholarship either
voluntarily or because of misconduct, his ROTC debt would be required to be
recouped on a pro-rated basis.

3.  Had the applicant chosen active duty or been involuntarily ordered to
active duty 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.  The applicant enlisted in the Army in the grade of E-3
with incentives of training of choice, and a cash enlistment bonus of
$23,000.00.

4.  The prospect of negating the applicant's $30,955.98 debt for a free
education he received from the Army without becoming an officer, plus
allowing him to receive any enlistment bonus or other financial incentive
he ordinarily would not have received, would be a windfall.  While the
Board has no 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___ALR _  _LD_____  ___PMT    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 show
that he would satisfy a portion of the $30,955.98 ROTC debt under the
original terms of the ROTC contract by successfully completing his current
enlistment in the RA.

2.  The portion of the ROTC debt that would be satisfied by the above
correction will be $7,955.98.  This is the total amount of the ROTC debt
($30,955.98) minus the $23,000.00 he received or will receive, as a cash
enlistment bonus.

3.  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 will be required
to be recouped on a pro-rated basis in accordance with his DA Form 597-3.

4.  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
a records correction for full relief of the indebtedness amount.




                                  __      Allen L. Raub _________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005985                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060725                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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