RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 September 2007
	DOCKET NUMBER:  AR20060015613 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Ronald D. Gant

Member

Mr. Rowland C. Heflin

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, a waiver of his debt in the amount of $10,357.59 that he incurred with the U.S. Army Cadet Command (USACC).

2.  The applicant states, in effect, that after spending a year and a half at Texas A&M University under their 4-year Army Reserve Officer Training Corps (ROTC) program, he decided to pursue a commission in the U.S. Marine Corps.  He then notified the Army ROTC Department of his intention to switch commissioning programs and began the application process for a Naval ROTC (Marine Corps option) scholarship.  He states that his disenrollment package was completed in the Winter of 2004.

3.  He further states that the following year he completed the Naval ROTC scholarship and recently he successfully completed the U.S. Marine Corps Officer Candidates School.  His intent is to accept a commission as a second lieutenant in the U.S. Marine Corps.  He states, in effect, that he wishes his Naval ROTC time will count towards the Army ROTC debt since it was generally under the ROTC programs.  He states, in effect, that many service branch transfers took place at Texas A&M University without recouping any money spent in the other service.  He feels that he is being singled out and the collection would create a financial hardship for him and his family.  He states if no agreement can be made between the services he respectfully request deferment of payments until he is commissioned and his own debts are settled without burdening his family.

4.  The applicant provides a copy of a memorandum from the Western Region, USACC, dated 11 January 2005; a copy of his acknowledgement of receipt of notification, dated 24 February 2005; a copy of a memorandum from Headquarters, USACC, dated 11 July 2005 and his U.S. Army Advanced Education Financial Assistance Record with Addendum (unsigned); a copy of his ROTC scholarship cadet contractual agreement (DA Form 597-3); and a copy of a memorandum from the U.S. Naval ROTC Unit, dated 5 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that as of the date of his application to this Board, he was serving as a midshipman in the Naval ROTC program.

2.  In the memorandum from the Western Region, USACC, dated 11 January 2005, it was stated that the applicant's request for disenrollment was initiated to disenroll from the Army ROTC program in order to accept a Marine ROTC scholarship.  It did not state that his request was approved for his acceptance into the Marine ROTC scholarship program.  The memorandum states that the applicant had the right to a hearing by a board of officers or investigating officer or to waive his right to a hearing.  If the applicant failed to respond to the notification during the disenrollment process the proceedings will continue in his absence and without his input.  Failure to respond in 10 working days may waive his right to present matters regarding his disenrollment.

3.  The memorandum further states that "if you are a scholarship cadet, the Army will determine whether to order you to active duty or direct repayment of any scholarship funds you have received.  You will be required to repay scholarship benefits expended on your behalf.  You will retain the status of cadet until disenrollment and discharge action is complete, and as such, may not enlist in any other military service or component.  You may be called to active duty or required to repay scholarship benefits in the amount of $10,357.59 in lieu of call to active duty in fulfillment of your contractual obligation."

4.  On 23 February 2005, the Western Region, USACC forwarded a disenrollement packet to the applicant.  On 24 February 2005, the applicant acknowledged receipt of the notification of disenrollment.  He waived his right to a hearing, and he acknowledged that the amount and validity of his debt as stated in the disenrollment notification was correct.  He understood by waivng his right he waived the opportunity to present matters regarding the disenrollment, the amount or validity of his indebtedness before a board or investigating officer, and the right to appeal the amount or validity of the debt.  Also, he declined expeditious call to active duty.

5.  On 17 May 2005, Headquarters, USACC forwarded a request to the Deputy Chief of Staff, G-1 to request exception to policy to transfer the applicant to the Naval ROTC.  On 21 June 2005, the Deputy Chief of Staff, G-1 disapproved the request for exception to policy.  The disapproval memorandum, states, in effect, that at the time the Navy was downsizing the Army was trying to grow its officer corps and they were not expected to make their mission for Fiscal Year 2006/2007.  The Army's intent was to keep all qualified cadets for commissioning.

6.  On 11 July 2005, Headquarters, USACC forwarded a disenrollment notification to the applicant to inform him that he was disenrolled due to his failure to enroll in the military science class for the spring 2005 semester.  This was a breach of contract.  The letter states that the applicant needed to make an election to pay the total amount of his debt or initiate a repayment plan.  The applicant had 14 days to make his election to avoid involuntary collection action.  

7.  There is no record to show that the applicant made an election.  Attached to the memorandum was the U.S. Army Advanced Education Financial Assistance Record with Addendum (unsigned), dated 19 April 2005 which shows the total Army ROTC scholarship benefit paid to the applicant was $10,357.59.

8.  The records show that the applicant enlisted into the Marine Corps Reserve on 11 July 2005 which was the same day Headquarters, USACC forwarded the notification of disenrollment.

9.  In the memorandum from the U.S. Naval ROTC unit, it is requested that the applicant's disenrollment code should be changed from failure to enroll to drop on request and to waive his educational assistance fees of $10,357.59.  It is stated, in effect, that the applicant had received a Marine Option Scholarship within the Naval ROTC program with full knowledge and consent of the Army ROTC staff.  The applicant had signed the appropriate disenrollment acknowledgement forms based on the premise that he was dropping on request.  It is only after he submitted his request and he received consent from the Army ROTC staff that he enrolled in a Naval ROTC class for the spring 2005 semester which started on  
18 January 2005.  It states that the applicant is erroneously listed as “being a failure to enroll in the military science class for spring semester 2005.”  It further states that the applicant was given permission "at least locally" to drop his Army contract in order to pursue one in the Marine Corps.

10.  In the processing of this case, an advisory opinion was obtained from the Deputy Chief of Staff, G-1, USACC.  It indicates that the applicant’s terms of the Army ROTC scholarship contract require that a cadet either repay their debt monetarily or agree to be ordered to active duty through Army ROTC channels based on the needs of the Army.  The applicant requested to have his scholarship recoupment waived to enter the U.S. Naval ROTC program, however, it was denied in accordance with Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program: Organization, Administration and Training), paragraph 3-47.  The applicant did not make any election to settle his debt; therefore, a debt was established with the Defense Finance and Accounting Service-Denver on 24 August 2005.  

11.  It further states since the applicant accepted a U.S. Naval ROTC scholarship and will not commission until the following year and has not fulfilled his obligation to either ROTC program, granting administrative relief at this time would be premature.  The decision to breach the terms of his U.S. Army ROTC contract and his enlistment into the U.S. Naval ROTC program were voluntary actions.  The applicant's voluntary enlistment as a Naval ROTC cadet is not an authorized remedy for debt repayment under the terms of the U.S. Army ROTC contract.  It is recommended that his voluntary enlistment not reduce the amount that he is required to reimburse the United States for his advanced educational assistance.

12.  On 11 June 2007, the applicant was provided a copy of the USACC advisory opinion in order to have the opportunity to rebut its contents.  To date, he has failed to respond.  

13.  The applicant's DA Form 597-3, dated 1 September 2003, which was signed by the applicant, contains the contract requirements for the applicant’s participation in the ROTC scholarship program.  It states, in pertinent part, that the law establishes the cost of the applicant’s education under the ROTC scholarship program as a debt owed to the United States.  A provision of this contract states, in effect, that if offered the opportunity to repay the advanced educational assistance in lieu of being ordered to active duty, the applicant will 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 his contractual agreement to the date of his disenrollment or refusal to accept a commission.  This amount includes any financial assistance the applicant may have received prior to his obligation point.

14.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior Reserve Officers' Training Corps (SROTC) Program.  Paragraph 43 provides the policy for the disenrollment of scholarship and non-scholarship cadets.  It states, in pertinent part, the cadets will be disenrolled for breach of contract, which 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 nonperformance breaches the contract.  Paragraph 3-47a(b) states that transfers between the Army and Naval ROTC program units are not authorized.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant voluntarily made the decision to transfer to the Naval ROTC program without approval from the appropriate authority.  It is reasonable to presume that the applicant chose not to make an election to repay his debt to the United States because he felt that his Naval ROTC time would count towards his Army ROTC debt.  However, the applicant failed to accept that he was not officially disenrolled from the Army ROTC program without the approval of the exception to policy to allow the interservice transfer between the Army and Navy.  In accordance with regulatory guidance a transfer between the Army and Naval ROTC program units are not authorized.

2.  The memorandum from the U.S. Naval ROTC unit states that the applicant's disenrollment code should be changed from failure to enroll to drop on request.  However, the applicant did fail to enroll at the appropriate time and therefore was not in compliance with his contractual agreement and obligation; as such, the applicant breached his contract.

3.  A breach of contract is 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 nonperformance breaches the contract.

4.  The applicant has failed to provide any evidence or argument that shows that there was an error or injustice related to his disenrollment from the Army ROTC for breach of contract or to his being required to repay the scholarship money he received based on his Army ROTC contractual obligation.  Therefore, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___rch___  ___jev __  ___rdg__  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.




________James E. Vick____________
          CHAIRPERSON




INDEX

CASE ID
AR20060015613
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070919
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.