RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20070015178 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Chester A. Damian

Member

Mr. Qawiy A. Sabree

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 his Reserve Officer's Training Corps (ROTC) scholarship debt be forgiven.

2.  The applicant states that he had an ongoing depression that forced him to withdraw from the ROTC program.  He contends his depression was caused by a break up with his girlfriend and financial problems.  He also contends that at the time he acknowledged notification of his disenrollment and made elections concerning his rights, he was not of sufficient mental status to understand the disenrollment process or the consequences of his elections.

3.  The applicant provides the following documentary evidence in support of his application:

	a.  Health Care Records, from 1 September 2005 to 13 December 2006, Hall Health Primary Care Center, University of Washington, Seattle, Washington.

	b.  Affidavit, dated 24 April 2007.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the reason for the applicant’s disenrollment from the ROTC program be changed to one that would excuse repayment of his scholarship debt.

2.  Counsel states, in effect, the applicant seeks to reverse his disenrollment from the ROTC program by reason of breach of contract in favor of disenrollment by reason of psychiatric disorder which would form the basis for a legal, practical, and moral justification to excuse repayment of his scholarship debt.

3.  Counsel provides the following additional documentary evidence in support of the applicant's request:

	a.  DA Form 597-3 (Army Senior Reserve Officer's Training Corps Scholarship Cadet Contract), dated 10 October 2003.

	b.  DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States), dated 10 March 2003.

	c.  DD Form 2351 (Department of Defense (DOD) Medical Examination Review Board (DODMERB) Report of medical Examination), dated 31 December 2002.

	d.  Headquarters, Thirteenth Brigade, Western Region, Seattle, Washington, Disenrollment of Scholarship Cadet from ROTC Memorandum, dated 3 February 2006.

	e.  University of Washington Academic Transcripts, dated 28 December 2005.

	f.  DA Forms 4856 (Developmental Counseling), dated 28 January 2004, 11 October 2004, 26 January 2005, 13 February 2005, 17 October 2005, and 8 December 2005.

	g.  DA Form 705 (Army Physical Fitness Test (APFT) Scorecard), dated 22 September 2005.

	h.  University of Washington, Registrar's Office, List of Course Registration for Autumn 2005.

	i.  DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record), dated 3 February 2006.

	j.  Applicant's Self-Scoring Seven Habits Assessment.

	k.  Defense Finance and Accounting Service (DFAS), Denver, Colorado, Letter of Indebtedness, dated 5 October 2007.

	l.  Letters, dated 7 September 2006 and 2 March 2007, to the Deputy Chief of Staff, G-1, United States Army Cadet Command, Fort Monroe, Virginia.

	m.  Applicant's Health Records, from 1 September 2005 to 15 September 2006, Curry Health Center, University of Montana, Missoula, MT.

	n.  Rebuttal, dated 29 February 2008, to the Advisory Opinion, dated 28 January 2008. 





CONSIDERATION OF EVIDENCE:

1.  The applicant was a student at the University of Washington (UW), Seattle, WA.

2.  On 10 October 2003, the applicant executed a DA Form 597-3 (Reserve Officer's Training Corps (ROTC) Scholarship Cadet Contract) enlisting in the US Army Reserve (ROTC Control Group) as a 4-year ROTC scholarship cadet.  In so doing, he acknowledged in Paragraph 5 (Terms of Disenrollment) of his DA Form 597-3 that if he failed to complete the educational requirements of his agreement or was disenrolled from the ROTC program:  (1) the Secretary of the Army or his designee could order him to active duty as an enlisted Soldier for a specified period of time; or (2) in lieu of being ordered to active duty, he could be required to repay (with interest) the financial assistance he received through the ROTC program.

3.  Paragraph 6 (Enlisted Active Duty Service Obligation) of the applicant's  DA Form 597-3 stated if he were called to active duty for breach of contract under the provisions of paragraph 5, he would be ordered to active duty for 2 years if the breach occurred during Military Science (MS) II; for 3 years if the breach occurred during MS III; or for 4 years if the breach occurred during MS IV.

4.  The applicant served as an ROTC cadet from October 2003.  On 3 February 2006, the US Army Cadet Command notified the applicant by memorandum of the initiation of disenrollment proceedings due to breach of contract for failure to attend Military Science 302 classes and other mandatory events, such as the Army Physical Fitness Test (APFT) and Leadership Laboratory (LLAB).  In accordance with paragraph 3-43a(16), Army Regulation 145-1 (Senior Reserve Officer’s Training Corps Program: Organization, Administration, and Training), he was placed on a leave of absence pending his disenrollment from the ROTC program.

5.  On 8 February 2006, the applicant acknowledged receipt of Cadet Command's disenrollment notification.  He waived his right to a hearing, acknowledged as correct the validity and amount of his scholarship debt as stated in the disenrollment memorandum, waived the opportunity to present matters regarding the amount or validity of his indebtedness before a board of investigating officers, and declined expeditious call to duty.



6.  On 6 April 2006, by memorandum, the Commander, Western Region, Army Cadet Command, Fort Lewis, Washington, requested a medical determination of 
the applicant's qualification for retention, stating the applicant "may have a medically disqualifying case of depression."  The Commander recommended the following actions:

	a.  If the applicant is medically disqualified, recommend disenrollment from the ROTC program and payback of all scholarship monies received [by reason of medical unfitness].

	b.  If the applicant is medically qualified, recommend disenrollment from the ROTC program and payback of all scholarship monies received by reason of failure to attend Military Science classes during the Spring Term 2006.

7.  On 7 April 2006, the US Army Cadet Command Surgeon conducted a medical determination and found the applicant's medical condition, depressive disorder, was not medically disqualifying; therefore, the applicant was medically qualified for retention in the ROTC program.  The Command Surgeon added the applicant did not provide any medical documentation to support a determination of permanent medical disqualification and the applicant's mild depression was expected to resolve with complete relief of symptoms.

8.  On 21 April 2006, the Commander, US Army Cadet Command, Fort Monroe, Virginia, notified the applicant by memorandum that he was disenrolled from the ROTC program in accordance with Army Regulation 145-1 due to breach of contract based on his failure to attend Military Science 302 classes.  The memorandum informed the applicant of his obligation to satisfy the terms of his ROTC contract through active Army duty in an enlisted status or through the repayment of the cost of the educational assistance provided by the Army, then valued at $42,203.00.

9.  There is no indication in the applicant's records that he acknowledged receipt of the US Army Cadet Command's disenrollment memorandum. 

10.  In a self-authored statement dated 24 April 2007, the applicant indicated that, despite his receipt of a 4-year ROTC scholarship, he was having financial difficulties and was struggling to pay his rent and other bills.  He wanted to go home to Montana where he could transfer to the University of Montana (UM), join the UM ROTC program, and continue with his education while living at home.  He discussed this plan with the Professor of Military Science (PMS) at UW, but the 

PMS would not agree to support a transfer.  Neither would the PMS help him with his financial situation or his unhappiness with the ROTC program.  His ROTC cadre recommended professional counseling, but instead he went into denial and started suffering loneliness and depression.  He discussed his issues with a university counselor and a "medical evaluator" and was diagnosed as having a mild, recurrent depression disorder.  He was prescribed medications, but his sleep continued to be erratic, and he continued to miss classes and physical training, and subsequently approached the cadre concerning his intent to withdraw from the ROTC program.  He concluded by saying that the cadre drafted the appropriate paperwork and instructed him where to sign and that he (the applicant) was so distressed with the situation that he signed as instructed to fast track the situation so he could get the help he needed to improve his mental health.

11.  On 5 October 2007, DFAS-Denver, Colorado notified the applicant by "third and final notice" that he was delinquent on his debt in the amount of $44,109.71 for the recoupment of education expenses paid on his behalf during his participation in the ROTC program.

12.  In a letter exchange between the applicant's counsel and the Deputy Chief of Staff, G-1, US Army Cadet Command, counsel reaffirmed the applicant's belief that he was being disenrolled for medical reasons at the time he waived his entitlement to a disenrollment hearing and that, as a result of his depression, he was unable to make a conscious and a considered decision to waive his right to a hearing. 

13.  During the processing of this case, an advisory opinion was obtained from the US Army Cadet Command on 28 January 2008.  The Deputy Chief of Staff, G1, stated the terms of the ROTC scholarship contract require a cadet to either monetarily repay his debt or agree to be ordered to active duty as an enlisted Soldier through ROTC channels based on the needs of the Army.  The advisory opinion further stated prior to the applicant's disenrollment, the Cadet Command Surgeon conducted a medical determination and found the applicant medically qualified for retention in the ROTC program.  The Command Surgeon further stated that there was no permanently disqualifying documentation submitted and the applicant had mild depression with the expectation of complete relief of symptoms.

14.  The Deputy Chief of Staff, G-1, also added that it was apparent from the applicant's statements that his episodes were, indeed, a short-term effect as his depression only involved his participation in the ROTC program.  Since he is no 
longer affiliated with the ROTC program, his symptoms of depression should have already resolved.  On 21 April 2006, after the applicant was disenrolled due to breach of the ROTC contract based on his failure to attend Military Science 302 classes, he was given the opportunity to elect active duty enlisted service or monetary repayment to the government for the funds expended on his behalf.

15.  The Deputy Chief of Staff, G-1, concluded that the applicant appealed his disenrollment; however, the Director, Military Personnel Management, Headquarters, Department of the Army, after reviewing the disenrollment file and the applicant's appeal, directed that he repay the educational expenses.  The applicant was subsequently re-notified of his payment obligation, but, again, failed to elect a payment option.  Therefore, a debt was established with DFAS-Denver Center on 2 March 2007.  The applicant's decision to breach the terms of the ROTC contract was a voluntary action and the US Army Cadet Command recommended that the debt remain in effect and that amount of debt not be reduced.

16.  On 6 February 2008, the applicant was provided a copy of the advisory opinion in order to have an opportunity to respond to its contents.  Counsel responded with a rebuttal on the applicant's behalf on 29 February 2008.  Counsel stated:

	a.  The advisory opinion is wrong because it is based only upon the determination that the applicant's depression "only involved his participation in the ROTC program and since he is not affiliated with the ROTC program, his symptoms of depression no longer exist."

	b.  The applicant's own statement shows that in the Fall of 2006, he continued on antidepressants and battled insomnia.  Further, a psychiatrist who treated the applicant after his termination from the ROTC program diagnosed the applicant with major depressive disorder.  The applicant's departure from the ROTC program occurred in January 2006 and the psychiatrist's diagnosis took place in September 2006, and if the depressive disorder were situational, it would have been so indicated by the psychiatrist in September 2006.

	c.  The applicant continues on medication for his depression and the advisory opinion makes assumptions without fact and is flawed since no basis exists for a prediction that his depression should now be resolved.



	d.  The advisory opinion does not address the request for the waiver of the hearing on disenrollment.  The applicant's depressive disorder affected his ability to make a thoughtful decision on waiver and he was induced to waive his right to hearing despite being clinically depressed. 

17.  In support of his contention that he suffers from a psychiatric disorder, the applicant provides, through counsel, treatment notes from the University of Washington (UW) Hall Student Health Clinic for the period 7 November 2005 through 2 May 2006.

	a.  On 7 November 2005, the applicant contacted the UW Health Clinic by telephone to say he was having "women problems and ROTC problems."  On the same day, he reported to the Health Clinic and spoke with a licensed mental health therapist.  He reported a history of mental health problems dating from his early teen years and stated he suffered from insomnia in high school.  He said he was currently suffering from insomnia and depression.  He stated he missed home and wanted to transfer to UM and go back to Montana, but the ROTC program would not let him because of his contract.  He was diagnosed as having a "depressive disorder, recurrent, mild" and prescribed the antidepressant, Prozac.

	b.  On 29 November 2005, the applicant was again seen at the UW Health Clinic, this time by a psychiatric nurse practitioner.  At this session, the applicant stated he did not like ROTC anymore.  He complained of insomnia, depression, tiredness, and lack of motivation.  He was continued on Prozac. 

	c.  On 11 January 2006, the applicant returned to the UW Health Clinic.  He stated he vacationed in Australia, where his girlfriend was studying.  He had a good trip, but he and his girlfriend decided to just "be friends."  He stated it was "very difficult to get back [to Seattle] and he is more aware he does not like ROTC."  The caregiver noted, "Depression may be situational and he did well on recent trip [to Australia].  He is more clear that he does not want to be involved in ROTC [emphasis added]."  He was continued on Prozac.

18.  Following his disenrollment from the ROTC program at the University of Washington, the applicant withdrew from school and returned to his hometown of Missoula, MN.  He enrolled in the University of Montana in the Fall of 2006.  After receiving a notice of indebtedness, he reported to the Curry Health Clinic, University of Montana (UM), Missoula.  He provides treatment notes from that clinic for the dates 30 August 2006 and 6 September 2006.

	a.  On 30 August 2006, he was seen by a clinic psychologist (Ph.D.) for 50 minutes.  The applicant blamed his depression on a "prolonged and painful break up with his girlfriend of four years" and "negative experiences in ROTC."  He stated he left Seattle and returned to Missoula, enrolling in the UM.  He said his mood and sense of resilience was much improved, but felt he should resume treatment with Prozac because of his previous depression and family history of depression.  The psychologist found the applicant to be "physically fit/healthy, relaxed, and pleasant...[H]is mood appeared normally reactive and his affect was broad and appropriate.  He was open, articulate, and earnest...[and his] risk of self-harm is not a current issue."  He was diagnosed as having "Major Depressive Disorder, recurrent, moderate (most severe episode)."  He was referred to a medical doctor for possible resumption of medication.

	b.  On 6 September 2006, the applicant was seen by a medical doctor.  The doctor prescribed Prozac and stated "I don't think patient needs regular psychotherapy."

19.  US Army Cadet Command Pamphlet 145-4 (Enrollment, Retention, and Disenrollment Criteria, Policy, and Procedures) states that the Professor of Military Science will submit a request for determination/waiver on medically disqualified cadets to Headquarters, Cadet Command.  If the Cadet Command Surgeon determines that the cadet is medically disqualified and not eligible for waiver and there is no failure to disclose, the cadet will be processed for disenrollment.  Cadets disenrolled for medical disqualification will not be ordered to active duty or recommended for recoupment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant attests to a personal and family history of mental health problems.  He contends that financial and relationship problems caused him to suffer major depression, which was the nexus for his disenrollment from the Army ROTC scholarship program; therefore, he believes he should not be required to repay his ROTC scholarship debt.  He also asserts he was not of sound mind when he waived his right to a hearing of his case before a board of officers and was unjustly induced to relinquish that right.

2.  US Army Cadet Command policy provides a cadet disenrolled for medical disqualification will not be ordered to active duty or recommended for recoupment action if the Command Surgeon determines the cadet is medically disqualified and not eligible for waiver, and there was no failure to disclose the disqualifying medical condition upon entrance in the ROTC program.

3.  The applicant was an ROTC scholarship student.  As such, he received a maximum of $17,000 per year in tuition assistance and $600 per year for books and laboratory fees.  In addition, he was paid a monthly subsistence allowance (while attending classes) of $250 during his first year of ROTC (MS I), $300 during his second year of ROTC (MS II), and $350 during his third year of ROTC (MS III).  The UW-Seattle out-of-state tuition for academic year 2003-2004 was $16,121.  The applicant's tuition was covered by his scholarship, plus he was scheduled to receive $4,100 in subsistence and miscellaneous fees for the academic year.  Given his scholarship, it is difficult to conclude that the applicant had financial problems.

4.  The applicant contends he had relationship problems with his girlfriend in Australia.  Yet following his vacation to Australia in late 2003, he informed UW Health Clinic staff that he had a good trip and that he and his girlfriend had amicably settled on a platonic relationship.  Clinic staff remarked that the applicant was surprisingly upbeat following his trip.

5.  The applicant's medical records from the UW Health Clinic clearly show that his main complaint was that he did not like ROTC and did not want to remain in the program.  In his initial contact with clinic staff, he stated he had "women problems and ROTC problems."  Thereafter on several occasions, he stated that he "did not like ROTC anymore...[and] he does not want to be involved in ROTC [emphasis added]."  One could conclude his depression was a mere pretext for his desire to quit ROTC.

6.  The applicant's two medical records which he submitted from the UM Health Clinic followed notification by the DFAS that a debt had been established against him for the recoupment of his ROTC scholarship.  The initial consultation clearly demonstrates that the applicant had stopped treatment and medications after relocating from Seattle to Missoula.  He may have initially thought he had successfully voided his ROTC contract without threat of recoupment.  Only after he was notified of his debt did he again seek treatment and medications.  Although clinic staff diagnosed him as having "Major Depressive Disorder, recurrent, moderate," he was described as having a normally reactive mood; a broad and appropriate affect; open, articulate, and earnest; and of no threat for self-harm.

7.  At the University of Washington (and later at the University of Montana), the applicant reported a personal and family history of mental health problems.  He indicated he received counseling as a high school student because of family 
problems and problems with insomnia.  The applicant's ROTC entrance physical examination was not available for review; therefore, it is not known whether he properly disclosed his past mental health problems as he was required to do.

8.  The evidence of record confirms that the applicant was offered and accepted an Army ROTC scholarship.  In return, he agreed to accept an appointment as a US Army Reserve Second Lieutenant and incur a total military service obligation of 8 years.  Additionally, he acknowledged that, should he be disenrolled after becoming obligated under the terms and conditions of the ROTC contract, he agreed to serve on active duty as an enlisted Soldier for not more than 4 years, or to reimburse the Government for the entire cost of his scholarship, plus interest.

9.  The applicant was notified of his disenrollment action on 3 February 2006 for failure to attend ROTC classes.  In acknowledging notification, he voluntarily, and in writing, waived his right to a hearing.  There is no medical evidence to support a view that the applicant was not mentally competent to make such a decision.

10.  On 6 April 2006, the Commander, Western Region, US Army Cadet Command, requested a medical determination from the Command Surgeon.  On 7 April 2006, the Command Surgeon reviewed the applicant's case and found him qualified for retention on the ROTC program, adding that there was no permanently disqualifying medical documentation submitted with his case and his mild depression would completely resolve.

11.  Without a medically disqualifying reason, the applicant was disenrolled for breach of his ROTC contract by failing to attend his MS III classes.  He was offered the option of being ordered to active duty in an enlisted status in lieu of repaying his scholarship debt, or repayment of the debt with interest.  He failed to respond.

12.  From a thorough review of all available evidence, it appears the applicant simply did not want to remain an ROTC cadet at the University of Washington.  He alleged that he spoke with his PMS concerning a transfer to the University of Montana ROTC program, but his PMS would not support it.  Thereafter, the applicant simply stopped attending his ROTC classes.  He was ultimately disenrolled for that reason.

13.  The applicant’s disenrollment proceedings were conducted in accordance with applicable law and regulations.  He has not provided 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 that the repayment of the scholarship money he received should be forgiven.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __cad___  __qas___  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.



							John T. Meixell
______________________
          CHAIRPERSON