RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 September 2007
	DOCKET NUMBER:  AR20070006695 


	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

Ms. Jeanne Marie Rowan

Analyst


The following members, a quorum, were present:


Mr. William Powers

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jerome Pionk

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's attorney-in-fact, filing the application on his son's behalf based on a Durable Power of Attorney executed on 6 February 2007 in the County of Carroll, Maryland requests, in effect, that his son's Reserve Officers' Training Corps (ROTC) debt obligation of $38,600.69 be suspended or terminated.

2.  The applicant states that his recruiter promised that his obligation to repay his $38,600.69 (sic) debt to the Government for his ROTC scholarship would be fully satisfied in return for his enlisting in the Regular Army.  

3.  The applicant provides his ROTC contract; an addendum to his ROTC contract; his RA enlistment contract; his Regular Army Data Report; a copy of the durable power of attorney; and the following supporting documents with this application: 

	a.  a copy of the applicant's United States Army Advanced Education Financial Assistance Record showing the applicant's education debt totals $38,600.69;	

	b.  a 22 June 2006 letter from the ROTC Battalion Commander initiating disenrollment action against him from ROTC as a scholarship recipient;

	c.  an acknowledgement from the applicant dated 13 July 2006; 

	d.  a letter from Cadet Command requesting collection of educational debt from Defense Finance and Accounting Service (DFAS);	

	e.  a 13 March 2007 letter from the (DFAS) stating the applicant was indebted to the government for the cost of educational expenses paid on the applicant's behalf; 

	f.  13 April 2007 letter from DFAS stating the applicant debts had started to accrue interest as the debt had not been paid;

	g.  a 21 April 2007 letter from DFAS advising him that since he was on active duty he could apply to the Army Board of Corrections for Military Record for either suspension or termination of his education debt;

	h.  a 6 July 2007 advisory opinion from Cadet Command;	

	i.  a 13 August 2007, rebuttal of Cadet Command's advisory opinion from the applicant; and

	j.  newspaper clippings featuring the applicant as the soldier of the cycle at Fort Benning, Georgia.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently on active duty.  He is the recipient of a cumulative $16,000.00 enlistment bonus for his 4-year enlistment, Army Airborne bonus, and Army Seasonal Bonus (High Priority Seating).  His enlistment objective was Ranger qualification.

2.  On 8 December 2004, the applicant signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract).  Paragraph 1 of the applicant’s DA Form 597-3 stated that the Army agreed to pay for a period of 4 academic years up to an annual amount of $23,000.00 in tuition and educational fees.  A flat rate of $900.00 would be reimbursed to the him for books and laboratory expenses. 

3.  In paragraph 3c(1) of the applicant’s ROTC contract, the applicant acknowledged that he understood and agreed that he would incur an active duty and/or reimbursement obligation after the first day of his Military Science (MS) II (sophomore) year if he were a 3-, 4-, or 5-year scholarship recipient.

4.  In paragraph 5 of the applicant’s ROTC contract, he acknowledged that 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 then or in the future by Army regulations he agreed to serve on active duty when involuntarily ordered by the Secretary of the Army or his or her designee, as an enlisted soldier for a period of not more than 4 years.  Further, he agreed to 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.  

5.  Paragraph 5c of the applicant’s ROTC contract 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 that he may have incurred under the contract, he would be required to reimburse the United States an amount of money, plus interest, that is equal to or bore the same ratio to the total cost of the financial assistance provided him as the unserved portion of such duty bore to the total period of such duty he was obligated to serve.
6.  Paragraph 5e of the applicant's ROTC contract stated that he agreed if he disenrolled from ROTC, the Secretary of the Army or his or her designee retains the prerogative to either order him to active duty or to order monetary repayment for the scholarship benefits received.  He agreed to repay his advanced educational costs under the terms of his contract and that his subsequent enlistment in the Armed Service would not relieve him from repayment of his educational debt and its subsequent obligation. 

7.  Paragrah 12 of the applicant's ROTC contract states, in pertinent part, that he agreed to the provisions of the contract and that the contract agreement has control over any conflicting advise or information that he may receive either orally or in writing from Cadet Command, his professor of military science, other cadre, cadets and others regarding his obligations and agreement to the Army.  

8.  On 22 June 2006, the applicant was notified through a letter from the university ROTC battalion commander that he was initiating action to disenroll him from the ROTC program.  The battalion commander initiated disenrollment action because the applicant breached his ROTC educational contract when he withdrew from the university after completing 2 years of undergraduate studies and Military Science classes.  

9.  On 13 July 2006, the applicant waived his right to a hearing and further acknowledged that the amount and validity of his debt as stated in the disenrollment notification was correct.  He declined a call to active duty within 60 days after the date of his withdrawal or dismissal from school, and he further declined expeditious call to active duty.

10.  On 4 January 2007, he was disenrolled and discharged from the ROTC program for breach of his ROTC contract based on his withdrawal from the university. 

11.  On 7 February 2007, he enlisted in the Regular Army for a period of 4 years and 19 weeks in the rank of private first class/pay grade E3.  His report date to Fort Benning, Georgia was 7 February 2007 for basic training.

12.  On 6 July 2007, the U. S. Army Cadet Command issued an advisory opinion. The opinion noted that the applicant's voluntary enlisted service in the Regular Army  is not an authorized remedy for debt repayment under the terms of the ROTC contract and recommended that his voluntary enlistment not reduce the amount he is required to reimburse the United States for his advanced educational assistance.
13.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He responded on 13 August 2007.  He refutes the opinion saying, in effect, that the applicant is serving on active duty as required by his ROTC contract.  He does acknowledge the applicant did not complete his ROTC contractual obligation by not being ordered to active duty through designated ROTC channels.  The applicant states "Army recruiters told him that if he successfully completed a four-year commitment, he would not be obligated to repay any amount;" further, the Army recruiters implied that the applicant should not make payments on his educational debt.  Further, the applicant states the objective when he departed the university prior to graduating was to seek an enlistment contract for Ranger qualification. 

14.  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 in coordination with Accessions Command.

15.  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.

16.  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 current enlistment in the Regular Army 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.  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 or bonuses.  However, the applicant enlisted in the Army in the pay grade of E3 and received an enlistment bonus of $16,000. 

3.  The prospect of negating the applicant's entire $38,600.69 debt for a free education he received from the Army without becoming an officer, plus allowing him to receive any enlistment bonus he ordinarily would not have received, would be a windfall.  While the Board has no jurisdiction to stop any enlistment bonus in this case, any such bonus would be a legitimate factor to consider in granting, denying, or adjusting equitable relief regarding the ROTC debt.

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:

________  ________  ________  GRANT FULL RELIEF 

__WP___  __LD  ___  ___JP___  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 $38,600.69 ROTC educational debt under the original terms of the ROTC contract by successfully completing 3 years of active duty during his current enlistment in the Regular Army.

2.  The portion of the ROTC debt that would be satisfied by the above correction will be the total amount of the ROTC debt minus the $16,000.00 he received as a cash enlistment bonus (excluding any taxes taken from this bonus). 

3.  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 waiving the entire ROTC indebtedness amount.




_____William Powers________
          CHAIRPERSON




INDEX

CASE ID
AR20070006695
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070925
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT 
REVIEW AUTHORITY

ISSUES         1.
128.1000
2.

3.

4.

5.

6.