RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 November 2007
	DOCKET NUMBER:  AR20070009854 


	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:


Ms. Margaret Patterson

Chairperson

Mr. Larry Bergquist

Member

Mr. Dale DeBruler

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 she be released from her Reserve Officers' Training Corps (ROTC) debt obligation of $2,678.00.

2.  The applicant states, in effect, that she would like to settle her educational debt with Defense Finance and Accounting Services (DFAS).

3.  The applicant provides her ROTC contract, an addendum to her ROTC contract, her Regular Army enlistment contract and statement for enlistment dated 8 December 2006, and the following supporting documents with this application: 

	a.  a copy of the applicant's United States Army Advanced Education Financial Assistance Record dated 27 February 2006 showing the applicant's education debt totals $2,678.00;	

	b.  a 22 February 2006 letter from the ROTC Battalion Commander initiating disenrollment action against her based on her disenrollment from the New Mexico Military Institute;

	c.  an acknowledgement from the applicant dated 23 February 2006; and

	d.  a letter dated 7 June 2006 from Cadet Command requesting collection of educational debt from DFAS.	

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently on active duty.  She enlisted in the Regular Army on 8 December 2006 in the military occupational specialty 68W (Health Care Specialist).  

2.  On 11 March 2004, the applicant enlisted in the Army National Guard (ARNG) in the State of California. 

3.  On 7 September 2005, 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 two academic years up to an annual amount of $17,000.00 in tuition and educational fees.  A flat rate of $1,800.00 would be reimbursed to her for books and laboratory expenses.  To fulfill her ROTC contract, she also enlisted in the Army Reserve in the pay grade cadet on this date. 
4.  In paragraph 3c(1) of the applicant’s ROTC contract, the applicant acknowledged that she understood and agreed that she would incur an active duty and/or reimbursement obligation after the first day of her Military Science (MS) III (junior) year if she were a 2-year scholarship recipient.

5.  In paragraph 5 of the applicant’s ROTC contract, she acknowledged that she understood and agreed that once she 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 she 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, she agreed to not enlist in the active Army, another military service or in a military service academy while she was a contracted ROTC cadet unless she was properly released from her ROTC cadet status.  

6.  Paragraph 5c of the applicant’s ROTC contract stated that she understood and agreed that if she voluntarily or because of misconduct failed to begin or failed to complete any period of active duty that she may have incurred under the contract, she 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 her as the unserved portion of such duty bore to the total period of such duty she was obligated to serve.

7.  Paragraph 5e of the applicant's ROTC contract stated that she agreed if she disenrolled from ROTC, the Secretary of the Army or his or her designee retains the prerogative either to order her to active duty or to order monetary repayment for the scholarship benefits received.  She agreed to repay her advanced educational costs under the terms of her contract and that her subsequent enlistment in the Armed Service would not relieve her from repayment of her educational debt and its subsequent obligation. 

8.  Paragraph 12 of the applicant's ROTC contract states, in pertinent part, that she agreed to the provisions of the contract and that the contract agreement has control over any conflicting advice or information that she may receive either orally or in writing from Cadet Command, her professor of MS, other cadre, cadets and others regarding her obligations and agreement to the Army.  

9.  On 22 February 2006, the applicant was notified through a letter from the university ROTC battalion commander that he was initiating action to disenroll her from the ROTC program.  The battalion commander initiated disenrollment 
action because the applicant breached her ROTC educational contract when she 

either withdrew from the university or was dismissed from the university as a 
MS III contractual student.  

10.  On 23 February 2006, the applicant waived her right to a hearing and further acknowledged that the amount and validity of her debt as stated in the disenrollment notification was correct.  She declined a call to active duty within 60 days after the date of her withdrawal or dismissal from school, and she further declined an expeditious call to active duty (Special Active Duty Provision).

11.  On 9 May 2006, she was disenrolled and discharged from the ROTC program for breach of her ROTC contract based on her withdrawal from the university.  She was released to her ARNG unit since she was a member of the Simultaneous Membership Program to fulfill the remainder of her ARNG military service obligation.

12.  On 28 December 2006, the applicant was honorably discharged from the ARNG per Orders Number 046-762, published by the State of Kansas Army and Air Force Land Component Headquarters on 15 February 2007.

13.  On 29 December 2006, she enlisted in the Regular Army for a period of 3 years in the rank of private first class/pay grade E3.  Records show she is not the recipient of an enlistment bonus or any other financial incentive enlistment program.

14.  On 15 August 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 her voluntary enlistment not reduce the amount she is required to reimburse the United States for her advanced educational assistance.

15.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She did not respond. 

16.  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.

17.  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.

18.   Army Regulation 135-210 prescribes policies and procedures for ordering individual Soldiers of the Army National Guard of the United States and the USAR to active duty during peacetime.  In pertinent part, it states that former ROTC cadets, when ordered to active duty, will be ordered to report to the U. S. Army Reception Battalion and will be ordered to active duty in pay grade E-1.

19.  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 her current enlistment in the Regular Army should fulfill her obligation under her 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 such as accelerated rank.  Nevertheless, in this case, the applicant’s enlistment in the Regular Army serves the same purpose as would have been served had she been ordered to active duty in the Army through ROTC channels.

2.  In view of the facts of this case, it would be appropriate to consider her enlistment in the Army to have met the active duty obligation required by her ROTC scholarship contract as a matter of equity.  If the applicant fails to complete the period of enlisted service obligated as a result of her ROTC scholarship, either voluntarily or because of misconduct, her ROTC scholarship debt would be required to be recouped on a pro-rated basis.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MP ___  __LB____  __DD___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined during their review that the evidence presented was insufficient to warrant a recommendation for relief.  As a result, the Board unanimously recommends that the applicant’s request be denied based on the fact that there is no equitable case made for the Board to “re-write” the terms of the individuals ROTC contract.  The Board unanimously agrees with the advisory opinion of the Headquarters, United States Army Cadet Command that the individual’s request be denied.




____Margaret Patterson______
          CHAIRPERSON




INDEX

CASE ID
AR20070009854
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071115
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.
113.0400
2.

3.

4.

5.

6.