RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20070014112 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 Reserve Officers’ Training Corps (ROTC) debt be waived.

2.  The applicant states that his enlistment and service in the Army, under the terms of his contract and the disenrollment process from ROTC, should satisfy his breach of contract.

3.  The applicant provides orders, dated 3 May 2006; an Enlisted Record Brief; orders for the Ranger Tab, dated 24 July 2007; a memorandum of disenrollment, dated 6 June 2005; an Acknowledgement of Cadet, dated 6 June 2005; a Special Active Duty Provision, dated 6 June 2005; and a DA Form 597-3 (Army Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract), dated 
15 December 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of corporal.

2.  On 15 December 2003, the applicant signed a ROTC scholarship contract and agreed to enlist in the Reserve Component of the United States Army (with an assignment to the USAR Control Group (ROTC)) for a period prescribed by the Secretary of the Army.  He agreed to meet and maintain the Army Physical Fitness Test (APFT) standard and the screening weight or body fat percentage required by the Army Weight Control Program as required of active duty Soldiers each year.  He also acknowledged that failure to maintain the weight and physical fitness requirements may subject him to disenrollment from the ROTC program.   

3.  In paragraph 5 of the applicant’s ROTC contract, he acknowledged 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 (which included, but were not limited to, Army Regulation 145-1) incorporated herein by reference, he was subject to the terms in paragraphs 5a through 5e below.  

4.  In paragraph 5a of the applicant’s ROTC contract, he acknowledged that, under the terms of this contract, the Secretary of the Army could order him to active duty as an enlisted Soldier, if he was qualified, for a period of not more than four years if he failed to complete the ROTC program.  In paragraph 5b of this contract, he acknowledged that, if offered the opportunity to repay his advanced educational assistance in lieu of being ordered to active duty, he would 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 form the commencement of his contractual agreement to the date of his disenrollment or refusal to accept a commission. 

5.  The applicant enlisted in the U.S. Army Reserve on 26 May 2005 for a period of 8 years in pay grade E-3 under the delayed entry program.  

6.  On 6 June 2005, the applicant was notified that action was being taken to disenroll him from ROTC based on his breach of contract due to APFT failure on 8 December 2004 and 20 April 2005.  He was notified, in part, that he could be called to enlisted active duty or be required to repay his scholarship benefits in lieu of call to active duty in fulfillment of his contractual obligation.  He waived his right to a hearing and accepted expeditious call to active duty.  

7.  On 6 June 2005, the applicant signed a Senior ROTC Contract Agreement, Special Active Duty Provision, Statement of Understanding, wherein he elected the Special Active Duty Provision in order to fulfill his contractual obligation to the U.S. Army if found to be in breach of his 4-year Army Senior ROTC contract.  He also waived his right to a hearing and elected to accept expeditious call to active duty in fulfillment of his contractual obligation.

8.  The applicant enlisted in the Regular Army on 28 July 2005 for a period of 
3 years and 22 weeks.  He enlisted for a high-graduate bonus, a cash bonus, a seasonal bonus, and a critical shortage accession bonus (totaling $18,000.00).   

9.  On 19 October 2005, the applicant was notified that he was disenrolled from the U.S. Army ROTC Program for beach of contract based on his failure of the APFT on 8 December 2004 and 20 April 2005.  Orders show he was ordered to active duty as a private for a period of 24 months with a reporting date of 
28 November 2005.

10.  On 5 December 2006, the applicant’s active duty orders were revoked.

11.  The applicant was charged with a debt of $27,000.00.  

12.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Cadet Command.  The opinion pointed out that the applicant chose expeditious call to active duty as his repayment option; however, he enlisted through a recruiter, not through ROTC channels.  The opinion stated that his enlisted service in the Army is not an authorized remedy for debt repayment under the terms of the ROTC contract.  It was noted that he received an enlistment bonus of $18,000, and that under his ROTC contract, he received scholarship benefits totaling $27,000.00.  That Headquarters recommended that he should not be allowed to profit from his actions and that his debt should not be eliminated.

13.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He responded in April 2008.  In summary, he stated that he was disturbed by the advisory opinion but not surprised or confused by its finding.  He stated that he wanted to have an immediate impact on the nation’s foreign wars, and after over four months, the ROTC office had made no headway in shipping him to basic training.  He claimed that he was given the contact information of a recruiter by the individual overseeing his disenrollment paperwork.       

14.  The applicant stated that if he had the time he would have investigated the disenrollment process further or had he been informed (or taken the time to learn) of consequences of the procedure in general he would have done things differently.  He pointed out that if the Cadet Command had assigned him a military occupational specialty other than airborne infantry, in his mind the only path to enter the military, he would have done anything within his power to change it.  He stated that the larger issue is that he would have become an airborne infantryman and an airborne Ranger regardless.  He also stated that the trouble he is in today stems from an overeager ill-informed quest to throw obstacles and challenges in his own path faster than the Army’s bureaucracy could provide them.  The circumstances surrounding his enlistment are special.

15.  Army Regulation 135-210 prescribes policies and procedures for ordering individual Soldiers of the Army National Guard of the United States and the U.S. Army Reserve to active duty.  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.  

DISCUSSION AND CONCLUSIONS:

1.  Although not provided for in the applicant’s DA Form 597-3, his 28 July 2005 enlistment in the Army served the same purpose as would have been served had he been ordered to active duty under the Special Active Duty Provision.  The Army is still getting the benefits of his service for a period of 3 years.  He would have owed the Army 24 months had he been ordered to active duty.  As a matter of equity it would be appropriate to consider his 3-year enlistment in the Army to have met the active duty obligation required by his ROTC scholarship contract. 

2.  Had the applicant reported for 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 and received a bonus of $18,000.00.

3.  Negating the applicant’s $27,000.00 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 or denying equitable relief regarding the ROTC debt.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

XX______  __XX___  __XX____  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 $27,000.00 ROTC debt under the original terms of the ROTC contract by successfully completing 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 $18,000.00 he received as an 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.




      __             XX________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070014112


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508