RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 January 2008
	DOCKET NUMBER:  AR20070011395 


	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. Judy Blanchard

Analyst


The following members, a quorum, were present:


Mr. Gerald J. Purcell

Chairperson

Mr. Donald L. Lewy

Member

Mr. David W. Tucker

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 he should be exempt from repaying his Reserve Officer Training Corps (ROTC) debt.

2.  The applicant states, in effect, that he is on active duty in the U.S. Army is scheduled to deploy in support of Operation Enduring Freedom therefore he should be exempt from the burden of repaying the ROTC scholarship. 

3.  The applicant provided a copy of his temporary deployment orders and a power of attorney for his wife in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enrolled in the ROTC Program, effective 28 August 2000, and agreed to enlist for a period of
8 years in the U.S. Army Reserve (USAR).  The ROTC scholarship contract provides, in pertinent part, that the Department of the Army would pay for four academic years of tuition and educational fees up to an annual amount of $16,000.00.

2.  On 10 October 2006, the Professor of Military Science (PMS), U.S. Army ROTC Battalion informed the applicant that his disenrollment from ROTC was being initiated under the provisions of Army Regulation 145-1, paragraph 3-43a for breach of contract, due to his inability to graduate and commission within the maximum 6-year timeframe allowed.  The PMS informed him of his rights.    

3.  On 6 December 2006, Headquarters, United States Army Cadet Command (USACC), Fort Monroe, Virginia notified the applicant that he was disenrolled from the Army ROTC program under the provisions of Army Regulation 145-1, paragraph 3-43a (16).  Disenrollment was due to his breach of contract based on his failure to make academic progress towards his degree requirements.  

4.  The applicant's military personnel record shows that he enlisted in the U.S. Army Reserve on 5 October 2005 and entered active duty in the Regular Army on 3 January 2007 for a period of four (4) years and 17 weeks.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 13B (Cannon Crewmember) and he is currently serving in the rank of specialist/pay grade E-3.

5.  In the preparation of this case, an advisory opinion was obtained from the Deputy Chief of Staff, G1, U.S. Army Cadet Command (USACC), Fort Monroe, Virginia, dated 22 May 2007.  It states that the applicant breached the terms of his ROTC contract and chose to waive his rights to a hearing.  The advisory opinion also states that the terms of the scholarship contract require that a cadet either repay his debt monetarily or agree to be ordered to active duty through ROTC channels based on the needs of the Army.  It further states that the applicant was offered these options on 10 October 2006.  He was disenrolled from the ROTC program for breach of contract on 6 December 2006.  The applicant failed to elect a repayment option and a debt was established with the Defense Finance and Accounting Service (DFAS) - Denver on 4 January 2007.

6.  The USACC advisory opinion also states that the applicant's decision to breach his ROTC contract and enlist in the Army for 4 years was voluntary and not as a result of being ordered to active duty through ROTC channels in satisfaction of his ROTC contractual obligation.  Further, they opined that his subsequent voluntary enlistment in the Regular Army is not an authorized remedy for debt repayment under the terms of his ROTC contract.  Therefore, his voluntary enlistment should not reduce the amount he is required to reimburse the United States for his advanced educational assistance.  The USACC advisory opinion also included a report based on data from the Center for Accessions Research, U.S. Army Accessions Command, Fort Knox, Kentucky, dated 1 June 2006, which shows that the applicant's current debt (i.e., balance due on that date) is $17,948.55.

7.  On 8 November 2005, the applicant was provided a copy of the USACC advisory opinion and was given an opportunity to provide a rebuttal.  However, to date, he has failed to respond.

8.  The applicant's military records contain an enlistment contract (DD Form 4 Series), dated 5 October 2005, which confirms he entered on active duty in the Regular Army for a period of 4 years in the rank of private first class/pay grade
E-3.  This document also confirms the applicant was given his choice of MOS, that he chose MOS 13B (Cannon Crewmember) and was provided a $15,000 cash bonus.

9.  There is no indication on the applicant's enlistment contract, nor is there any other evidence of record, which shows that his enlistment in the Army was for the purpose of fulfilling the obligation he incurred as a result of his being disenrolled from the ROTC program for breach of contract.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his current enlistment in the Regular Army should fulfill his obligation under his breached ROTC contract was considered.  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 $15,000. 

3.  However, the prospect of negating the applicant’s ROTC debt plus allowing him to receive any enlistment options or financial incentive he ordinarily would not have received, would be a windfall.  Therefore, the applicant is only entitled to partial relief of his ROTC debt.     

4.  In view of the foregoing, it would be appropriate to consider his 4-year enlistment in the Army, upon completion of his current enlistment, to have met his 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 debt should be required to be recouped.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___GP__  ___DLL__  ___DWT_  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 $17,948.55 ROTC educational debt under the original terms of the ROTC contract by successfully completing 4 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 $15,000.00 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.




_____Gerald J. Purcell______
          CHAIRPERSON





INDEX

CASE ID
AR20070011395
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080124
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.