IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080002842 


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 his Reserve Officer Training Corps (ROTC) scholarship debt, in the amount of $21,200.00, be cancelled. 

2.  The applicant states, in effect, that his ROTC scholarship debt, in the amount of $21,200.00, should be cancelled. 

3.  The applicant provides a copy of a letter from DFAS (Defense Finance and Accounting Service), dated 9 January 2008, a copy of DA Form 4/1 (Enlistment/Reenlistment Document/Armed Forces of the United States), a copy of DA Form 1996/1 (Record of Military Processing – Armed Forces of the United States); and a copy of his separation orders, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted as a cadet on 29 November 2004 and contracted under the ROTC Scholarship Cadet Program, for a period of 4 years, with a completion date of 21 May 2008.

2.  The applicant’s records show he enlisted in the United States Army Reserve (USAR) on 9 December 2004, for a period of 6 years, with a scheduled expiration term of service date of 8 December 2010.  He was honorably discharged on 14 February 2005.  



3.  The applicant provided a copy of a memorandum from Headquarters, 
US Army Cadet Command, Fort Monroe, Virginia, dated 20 June 2006, Subject:  Disenrollment from the USAR ROTC Program.  It states that the applicant was disenrolled from the ROTC Program, under the provisions of Army Regulation 145-1, paragraph 3-43a(15) and (16).  Disenrollment was due to a breach of contract based on the applicant’s indifferent attitude as evidenced by his failure to remain a full-time student and his failure to pass the Army Physical Fitness Test (APFT).  The memorandum also states that when the ROTC scholarship contract is breached, any obligation to the Army must be satisfied through order to active duty in an enlisted status or by repaying the cost of advanced education assistance provided by the Army.  His total amount of education assistance amounted to $21,200.00.  He was informed of his options. 

4.  On 20 June 2006, the applicant was discharged from the USAR ROTC Control Group under the provisions of Army Regulation 135-178, paragraph 5-6d. Orders indicate the applicant was released from the ROTC program with a contractual obligation to fulfill 2 years of active duty or scholarship payback within 60 days of his disenrollment date.

5.  The applicant enlisted in the Regular Army on 6 November 2007, in the pay grade of E-2, for 8 years, with 3 years and 18 weeks considered as an active duty obligation, and 4 years and 34 weeks to be served in a Reserve Component.  He is currently assigned to Fort Myer, Virginia.

6.  Section IV (Remarks), of his DD Form 1996/4, shows the entry, "is not auth Inct" (authorized incentives).  It also shows the entry, "they will suspend his Debt in 6 month increments for 2 years and at the end of the 2 years he will receive paperwork on how to get his debt erased after he completes his 2nd year of service.  FS (Former Soldier) understands that if he fails to send in the paperwork or fails to complete active duty, he will have to pay the DEBT."

7.  On 9 January 2008, DFAS informed the applicant that they had received his document showing he had enlisted in the Army.  DFAS provided a copy of a DD Form 149 (Application for Correction of Military Record) for the applicant to complete and to submit a request for forgiveness of his $21,200.00 ROTC debt declaring that he was currently serving on active duty.  DFAS requested that he fax a copy of the application to them prior to mailing to the ABCMR so that they could place his account on hold pending the Board’s determination.

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

9.  An opinion was provided on 10 April 2008.  The G1 stated 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 offered these options on 20 June 2006, after being disenrolled from the ROTC Program for breach of contract.  He was aware of the options to enter active duty through Cadet Command channels in repayment of his scholarship debt.  The choice of repayment was not returned and a debt was established with DFAS-Denver on 14 July 2006.  

10.  The G1 also stated that based on the information on the enclosed application, he was currently serving on active duty with a pay entry date of 6 November 2007.  His current active duty service commitment was not the result of being ordered to active duty through ROTC channel in satisfaction of his ROTC contractual obligation.  G1 also stated that information from the United States Army Recruiting Command web site showed the applicant received an enlistment bonus of $25,000.00.  While in the ROTC program, he received scholarship benefits totaling $21,200.00.  G1 concluded that the applicant should not be allowed to retain these monies, and his actions should not eliminate his debt to the Government.  His voluntary enlisted service in the US Army was not an authorized remedy for debt repayment under the terms of the ROTC contract. 

11.  The applicant was provided a copy of the advisory opinion for possible comment prior to consideration of his case.  The applicant was provided 30 days to submit a comment. 

12.  In his rebuttal, dated 10 June 2008, the applicant states, in effect, that when he signed his contract, he was made aware he was not eligible for an enlistment bonus due to his desire to be a part of the debt forgiveness program.  Therefore, he agreed to take no money as a bonus.  The Cadet Command stated that he received an enlistment bonus in the amount of $25,000.00 which was inaccurate. Cadet Command also stated that there was a document titled Enclosure 2 which shows that he was awarded such a signing bonus.  If it is possible, he would like to be able to review a copy of this document before further developing his rebuttal regarding the findings of the Cadet Command.

13.  On 18 June 2008, the Chief, Case Management Division, Army Review Boards Agency (ARBA), responded to the applicant's rebuttal.  He was informed that if he did not receive a bonus when he enlisted, to provide a copy of his enlistment contract with the addendum to help support his case.  His application was placed on hold again for 30 days.  However, he failed to respond.


14.  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).  

15.  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.

16.  Paragraph 3-43a(16) 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.

17.  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 he understood and agreed that if he was disenrolled from the ROTC program during Military Science II, he could be called to active duty
for a period of two years.

18.  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 of record shows the applicant breached the terms of his scholarship contract by failing to remain a full-time student and for his failure to pass the APFT.  He was required to repay his scholarship benefits or agree to be ordered to active duty through ROTC channels based on the needs of the Army.  The applicant's decision to breach the terms of his contract was a voluntary action.  The total amount of monies spent to support his education was provided. 

2.  The applicant was properly disenrolled from the ROTC Scholarship Program on 20 June 2006.  In light of this, he appealed his debt.

3.  The evidence of record shows that the applicant enlisted in the Regular Army on 6 November 2007, in pay grade E2, for 8 years, in order to waive his debt.  He enlisted with no authorized incentives.  His debt was suspended by DFAS in      6-months increments for 2 years at which time he would provide the necessary paperwork on how to get his debt erased, provided he completed 2 years of service.  This enlistment was not the result of an order to active duty through ROTC channels in satisfaction of the contractual obligation.  His decision was a voluntary action, as well as his choice to join the Army, which was not an authorized remedy for debt repayment under the terms of his contract.  

4.  Information provided by DFAS indicates that his current debt is $21,200.00 and he did not receive a bonus when he enlisted. 

5.  The G1 provided options to the applicant after his disenrollment from the ROTC Scholarship Program for his breach of contract for the repayment of his debt.  He was informed of his options after being disenrolled; however, a choice of repayment was not returned and a debt was established with DFAS-Denver on 14 July 2006.  The G1 concluded that his current active duty service commitment is not the result of his being ordered to active duty through ROTC channels in satisfaction of his ROTC contractual obligation.  He should not be allowed to retain these monies, and his actions should not eliminate his debt to the government.

6.  Given the above, the applicant's record should be corrected as shown below. 

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected: 

	a.  by amending the applicant's ROTC scholarship contract to show that he would satisfy the service obligation under the original terms of the ROTC contract as a Regular Army enlisted Soldier;  

   b.  by suspending collection of his ROTC debt in the amount of $21,200.00 during his enlistment until 6 November 2009 with the debt to be remitted upon satisfactory completion of his term of service; and 
   
   c.  by showing that if he fails to complete the period of enlisted service obligated as a result of his amended ROTC scholarship contract either voluntarily or because of misconduct, his ROTC debt would be recouped on a pro-rated basis in accordance with paragraph 12 of this DA Form 597-3.




      _________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)                                         AR20080002842



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ABCMR Record of Proceedings (cont)                                         AR20080002842



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