IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20070018680 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her Reserve Officer Training Corps (ROTC) scholarship debt, in the amount of $29,857.50, be cancelled. 

2.  The applicant states, in effect, that her ROTC scholarship debt, in the amount of $29, 857.50, should be cancelled.

3.  The applicant provides a copy of her cadet action request for disenrollment with supporting documents in support of her request. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant’s records show she enlisted in the Army Reserve as a cadet on 18 September 1997 and contracted under the ROTC Scholarship Cadet Program, for a period of 8 years, with a scheduled expiration term of service of 17 September 2005.  

3.  The applicant's DA Form 597-3 (ROTC Scholarship Cadet Contract) shows that her education commenced on 25 September 1997, with a completion date of May 2001. 

4.  On 13 October 1999, the Associate Dean, School of Communications, Howard University, prepared a written detailed statement in which the applicant alleged that she was being sexually harassed.  The harassment had started in September 1997.  The Associate Dean elaborated on the events that occurred and that led up to the harassment.  The applicant spoke with a private lawyer and was advised to collect more evidence.  She asked for a leave of absence (LOA)  while her allegations were being processed and she was informed that it was inappropriate to grant her request and she should put her feelings aside.  The dean concluded that his statement represented his understanding of the allegations she made.

5.  On 15 October 1999, the applicant prepared a sworn statement detailing the events that allegedly occurred.

6.  On 10 February 2000, the Professor of Military Science (PMS), US Army ROTC Instructor Group, Howard University, placed the applicant on a LOA pending completion of disenrollment action.  He informed her that her LOA was effective immediately and would last until the completion of the disenrollment action.  She would be allowed to continue in Military Science only according to the rules for attendance prescribed by the University.  No credits towards commissioning, or benefits as a result of enlistment or ROTC contracts would accrue during this period.  She was not authorized to wear the uniform or participate in ROTC activities outside the classroom.  If she was a scholarship cadet, her scholarship benefits would not be paid during the LOA period.  Although on LOA, she still retained cadet status and therefore was not authorized to enlist or be commissioned into any active or Reserve military component until disenrollment and discharge was complete.

7.  On 3 April 2000, the PMS initiated the applicant's disenrollment from the ROTC Program under the provisions of Army Regulation 145-1, paragraph        3-43a(15) and (16), due to lack of interest and failure to register for ROTC classes.  She was informed of her options.


8.  On 12 September 2000, the PMS notified the applicant her request for a board of officers was approved.  She was informed that the disenrollment board would be held on 20 October 2000 in the Howard University Army ROTC Department.  Failure to be present for the board would result in her initiation for disenrollment from the ROTC program due to lack of interest.  This disenrollment action could result in the repayment of the scholarship benefits received in lieu of being called to active duty in her Reserve enlisted grade of Private E-1.

9.  On 2 November 2000, the applicant appeared before a board of officers, without counsel.  During the hearing, the applicant acknowledged that she received scholarship benefits for the past three years starting 1997-1998.  She stated that her main reason for leaving the ROTC program was fear of being sexually harassed.  The board of officers elaborated on evidence previously discussed.  The applicant thought the US Government should just write off the 3-year of scholarship benefits she received while she was in the Army ROTC program.  The board of officers recommended that disenrollement proceedings be completed for voluntary breach of her Army ROTC contract.  If the recommendation was accepted, the board further recommended that the applicant repay all scholarship benefits received in lieu of being called to active duty in the grade of Private E-1.  The findings and recommendations were completed and approved on about 15 November 2000.

10.  On 9 January 2001, the applicant was issued an unofficial transcript.  A review of the her transcript shows that for the Fall of 1999 she received an "F" in the Leadership Lab 301L course and was awarded no credits for the Animal Physiology lab course which was in progress.  

11.  On 17 January 2001, the PMS submitted a Cadet Action Request for Disenrollment of the applicant to the US Army Cadet Command, Fort Monroe, Virginia, based on the approved recommendation of the board of officers.  

12.  On 11 April 2001, the Director, Personnel Administration Directorate (PAD), Headquarters, US Army Cadet Command, reviewed the request pertaining to 
the applicant.  The proceedings were administratively and legally reviewed.  The evidence within the applicant's file was insufficient to support disenrollment under the provisions of Army Regulation 145-1, paragraph 3- 43a(15) and (16), due to indifferent attitude and breach of contract.  Upon review, it was discovered that there was insufficient evidence to substantiate an indifferent attitude or a breach of  contract.  It was also discovered that the applicant alleged that she was being sexually harassed.  However, the board of officers failed to included any evidence or findings that the applicant's allegation of sexual harassment was unsupported, insubstantial or, even if true, insufficient to justify her indifferent attitude or breach of contract.
13.  The Director indicated that the board of officers would be reconvened and listed instructions to be followed.  He indicated the specific findings for the board of officers to make regarding the applicant's indifferent attitude and breach of contract, allegations that she was forced to leave the program because of sexual harassment, and her performance as a Cadet.  The Director concluded that the file should contain specific evidence and be returned to his office no later than 29 May 2001.

14.  On 30 April 2001, the PMS initiated the applicant's disenrollment from the ROTC Program.  She was informed of her options.

15.  On 1 May 2001, the Administrative NCOIC (Noncommissioned Officer in Charge) informed the applicant that per directive by Headquarters, US Army Cadet Command, they were to conduct a new board of officers in her disenrollment hearing.

16.  On 7 August 2001, the PMS appointed a new board of officers according to regulation to hear evidence and determine if the applicant should be disenrolled under the provisions of Army Regulation 145-1, paragraph 3-43a(16), for breach of contract (including formerly used term willful evasion).  A worksheet was provided to the board members upon which they were to make their findings.

17.  On that same date, the applicant was notified to appear before a new board of officers which was scheduled for 13 September 2001 to hear evidence and determine her suitability for retention in the ROTC Program.  The applicant, it is apparent, requested that the scheduled hearing be rescheduled. 

18.  On 1 October 2001, the administrative NCOIC informed the applicant that her board hearing was rescheduled.  The hearing was rescheduled for 18 October 2001.  Her second board hearing results are unavailable for review by the Board.

19.  A review of the applicant's Cadet Record Brief shows that she was disenrolled from the ROTC Program on 16 January 2003, due to refusal of a commission.

20.  On 16 January 2003, the Chief, Personnel Actions and Standards Division, Headquarters, US Army Cadet Command, prepared a memorandum for the RM (Resource Management) Director, DFAS (Defense Finance and Accounting Service), Subject:  Scholarship Recoupment Debt.  DFAS acknowledged the memorandum on 22 January 2003.  On 29 January 2003, a debt was established against the applicant by DFAS in the amount of $29,857.50.

21.  In the processing of this case, an advisory opinion was requested of the Deputy Chief of Staff (DCS), G1, of Headquarters, US Army Cadet Command, Fort Monroe, Virginia.

22.  An opinion was provided on 10 April 2008.  The G1 states that the terms of the scholarship contract required that a cadet either repay the debt monetarily or agree to be ordered to active duty through ROTC channels based on the needs of the Army.  The applicant was disenrolled from the ROTC Program for breach of contract on 22 October 2002.  She failed to elect a repayment option and a debt was established with DFAS - Denver Center on 16 January 2003.  The G1 states that their office did not maintain files after 5 years, but the applicant did sign an Army Senior ROTC Scholarship Cadet Contract.  In addition, she made payments on the debt established with DFAS and has petitioned DFAS for a temporary suspension of payments or a reduction in the amount of the payments. G1 concluded that the applicant’s action should not eliminate her debt to the government.  

23.  The applicant was provided a copy of this opinion for possible comment prior to consideration of her case.    

24.  In her rebuttal, the applicant provided several reasons for disagreeing with the opinion.  She stated that: (1) After she submitted a statement alleging that she was sexually harassed, Army ROTC staff at Howard University began to inflict psychological torture on her each day that she reported to ROTC class.  Due to this constant torture, she requested a LOA from the program while the sexual harassment investigation was in process.  In addition, she began psychological counseling at Howard University; (2) Approval for the request for an LOA was intentionally delayed so that staff could continue to torment her and reduce her morale; (3) She has files that would prove everything that she has stated in addition to the fact that the Army ROTC staff at Howard University submitted forged documents to the US Army Cadet Command.  In particular, the document that stated when the LOA was approved (which proved that her attempts to request a leave of absence was sabotaged); and (4) she did not voluntary breach the terms and conditions of the contract.  She was intentionally misinformed from Army ROTC staff at Howard University on how to properly move forward with the program while the sexual harassment investigation was in process.  She urges the ABCMR to review her petition to receive a correction of military records and consider all relevant factors.  She believes that there was sufficient evidence to conclude that actions taken against her (disenrollment for breach of contract) has resulted in an injustice to her.

25.  Information provide by DFAS revealed that the applicant's current debt is $29,857.50.
26.  Army Regulation 145-1 prescribes polices and general procedures for administering the Army’s Senior Reserve Officers’ Training Corps (SROTC)
Program.  Paragraph 3-43 states that a nonscholarship cadet may be disenrolled by the PMS and a scholarship cadet may be disenrolled only by the CG, USAROTCCC.  Disenrollment authority does not include the discharge authority for Simultaneous Membership Program (SMP).  

27.  Paragraph 3-38 pertains to leave of absence (LOA) for scholarship cadets.  It states that a cadet who requests LOA or who otherwise extends his or her period of enrollment beyond the 8-year period of enlistment, must voluntarily extend the enlistment by an amount of time equal to the period of the extended enrollment or LOA.  The PMS will ensure that the cadet still meets enrollment criteria and eligibility requirements.  

28.  An LOA from ROTC training for a semester or more, may be granted to a scholarship cadet by the CG (Commanding General), USAROTCCC, unless subordinate level approval is authorized.  The region commander may approve an LOA, not to exceed 1 year continuous absence when:  (a) The cadet needs more than the normally required time to devote to studies to complete degree requirements; and (b) The normal period for completion of degree requirements is extended because of minor academic deficiencies, addition of another course, or for similar reasons.  The PMS may authorize an LOA when a cadet is pending administrative action (such as termination requests or disenrollment boards). This will be for one semester only.  Cadets will not be allowed to continue in military science or receive credit for commissioning during this period.  A letter to this effect will be given to the cadet and a copy placed in their file.  

29.  Paragraph  3-43a(15) states that a nonscholarship and scholarship cadet will be disenrolled due to indifferent attitude or lack of interest in military training as evidenced by frequent absences from military science classed or drill, an established pattern of shirking, failure to successfully complete an established weight control program, or similar acts.

30.  Paragraph 3-43a(16) states pertains to breach of contract (including formerly used term willful evasion).  It states that breach is defined as any act, performance or nonperformance on the part of a student that breaches the terms of the contract regardless of whether the act, performance or nonperformance was done with specific intent to breach the contract or whether the student knew that the act, performance or nonperformance breaches the contract.



31.  As part of a scholarship enlistment in the ROTC, an individual must sign a DA Form 597-3, which is the agreement between the Army and a potential ROTC cadet.  The form contains the promises made between the Army and the potential cadet, and includes what action the Army will take in the event that a cadet fails to successfully complete the terms of the contract.  The applicant acknowledged that she understood and agreed that if she was disenrolled from the ROTC program during Military Science II, he could be called to active duty
for a period of two years.

32.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that a statement was prepared by the Associate Dean in which the applicant alleged that she was being sexually harassed.  She was placed on LOA pending disenrollment.  She was informed that her LOA was effective and would last until the completion of the disenrollment action.  She would retain Cadet status while on LOA and was not authorized to enlist or be commissioned into the Active or Reserve military component until disenrollment and discharge was complete.

2.  Disenrollment procedures from the ROTC Program were initiated against the applicant.  She appeared before a board of officers without counsel.  She acknowledged that she received scholarship benefits for the past 3 years and stated that her main reason for leaving the ROTC Program was fear of being sexually harassed.  She felt that the US Government should just write off the     3-year scholarship benefits.

3.  The board of officers recommended that disenrollment proceedings be completed for voluntary breach of contract and if accepted, further recommended that she repay all scholarship benefits received in lieu of being called to active duty in the pay grade of E-1.  The findings and recommendations were approved.

4.  A Cadet Action Request was submitted for disenrollment by the PMS to the Director, PAD.  The request was reviewed administratively and legally.  The evidence was determined to be insufficient to support disenrollment due to indifferent attitude and breach of contract.  It was discovered that the applicant alleged that she was sexually harassed.  However the board of officers failed to include any evidence or findings that the applicant's allegation of sexual harassment was unsupported, insubstantial or, even if true, insufficient to justify her indifferent attitude or breach of contract.

5.  The Director indicated that a board of officers would be reconvened and listed specific findings for them to make regarding the applicant's indifferent attitude and breach of contract, allegations that she was forced to leave the program because of sexual harassment, and her performance as a Cadet.  The Director concluded that the file should contain specific evidence and be returned to his office no later than 29 May 2001.

6.  The hearing was scheduled for 18 October 2001; however, her second board hearing results are unavailable for review by the Board. 

7.  The applicant's case was reviewed by the DCS, G1, US Army Cadet Command.  The G1 stated that she was required to repay her scholarship benefits or agree to be ordered to active duty through ROTC channels based on the needs of the Army.  She failed to elect a repayment option.  A debt was established by DFAS in the amount of $29,857.50.  She made payment on the debt and petitioned DFAS for a temporary suspension of the payments or a reduction in the amount of the payments.  G1 concluded that her actions should not eliminate her debt to the Government.  

8.  The applicant's appeal was considered; however, it did not support a change in the G1's final decision.  

9.  Based on the overall evidence provided, the applicant is not entitled to cancellation of her ROTC scholarship debt, in the amount of $29,857.50.  She was disenrolled from the ROTC Program for breach of contract.      

10.  The applicant is currently serving in a civilian status.  Orders releasing her from the program are unavailable for review.

11.  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

___x____  ____x___  ____x___  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.




       _   ___x____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

















ABCMR Record of Proceedings (cont)                                         AR20070018680



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ABCMR Record of Proceedings (cont)                                         AR20070018680



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