IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080010446 


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, remission/cancellation of his debt for not completing the requirements of a Reserve Officer Training Corps (ROTC) scholarship and reimbursement of any portion of the debt already collected.

2.  The applicant states, in effect, when he was dropped from the Mercer University ROTC program, he was told he had the option of enlisting in the military to repay his scholarship.  He states that after long thought and mental debate, he enlisted in the Army to do his duty to his country.  He states that he served as an infantryman with the 82d Airborne Division, and served in Operation Iraqi Freedom in 2005 and 2006.  He claims that he was injured while serving in the military and was no longer able to serve as an infantryman, and after 2 years, 5 months, and 9 days, he left the military with an honorable discharge and the knowledge that he had served his country.  He states he is still being billed for his ROTC scholarship and has appealed this three times.  He believes he has all the proper documents to show he enlisted and was injured and is no longer able to serve as a rifleman.

3.  The applicant provides his ROTC contract (DA Form 587-3), ROTC disenrollment packet, medical board proceedings, and separation document (DD Form 214) in support of his application.

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.  On 22 August 2001, the applicant entered into an Army ROTC Scholarship Cadet Contract (DA Form 597-3).  By signing the contract, he acknowledged his understanding of the conditions of the contract and that he concurred with them.  At the time the applicant entered into his ROTC contract, he further acknowledged his understanding that if he failed to complete the educational requirements of his agreement or was disenrolled from the ROTC program, the Secretary of the Army or his designee could order him to active duty as an enlisted Soldier; or in lieu of being ordered to active duty, he could be required to repay financial assistance he received through the ROTC program, plus interest.

3.  In May 2003, the applicant was arrested for driving under the influence and was later convicted of reckless driving in a civil court.  He also failed the 26 September 2003 Army Physical Fitness Test and did not meet the Army Weight Control requirements for his scheduled commissioning on 30 September 2003.

4.  On 15 October 2003, the Professor of Military Science, Georgia Military College, notified the applicant that he was initiating action to disenroll the applicant from the ROTC program for misconduct, demonstrated by receiving a civil conviction for reckless driving on 5 May 2003, and failure to meet the same requirements of the Army Weight Control Program and Army Physical Fitness Test as required of active duty Soldiers.  The applicant was also advised that he could be called to active duty in fulfillment of his contractual obligation or if a scholarship cadet, he could be required to repay scholarship benefits in the amount of $35,200.00 in lieu of a call to active duty.

5.  On 30 October 2003, the applicant acknowledged receipt of the disenrollment initiation notification, requested a board of officers or investigating officer, and declined an expeditious call to active duty.

6.  On 8 March 2004, the Commander, U.S. Army Cadet Command (USACC), notified the applicant that he was disenrolled from the ROTC program based on misconduct, as demonstrated by his civil conviction for reckless driving and for his failure to meet the active duty Soldier requirements of the Army Weight Control Program and Army Physical Fitness Test.  This notification of disenrollment also informed the applicant that when an ROTC scholarship contract is breached, any obligation to the Army must be satisfied by repaying the cost of advanced education assistance provided by the Army.  He was further advised that the total amount of monies spent in support of his educational assistance was $35,200.00.  An addendum to the memorandum provided the applicant the option to fulfill his contractual obligation by repaying the debt of $35,200.00 monetarily in a lump sum or in monthly installments with interest.

7.  On 19 March 2004, the applicant completed the addendum and promised to repay the total amount owed, $35,200.00, in monthly installments, plus interest on the amount owed.

8.  On 1 April 2004, the USACC requested the applicant be processed for an establishment of debt through the Defense Finance and Accounting Service (DFAS).

9.  On 19 May 2004, the applicant enlisted in the Regular Army for 4 years and entered active duty in the grade of specialist (SPC)/E-4.  In addition to entering the Army in the rank of SPC, the applicant also received a $20,000 enlistment bonus.

10.  On 27 October 2006, the applicant was honorably discharged by reason of disability with severance pay.  The separation document (DD Form 214) he was issued at the time confirms he held the rank of SPC and had completed a total of 2 years, 5 months, and 9 days of active military service.  Item 18 (Remarks) confirms the applicant received disability severance pay in the amount of $6,992.40 at the time of his discharge.

11.  In connection with the processing of this case, an advisory opinion was obtained from the Deputy Chief of Staff (DCS), G-1, USACC.  It states that the terms of the ROTC scholarship contract require 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 indicates that the applicant was offered these options on 8 March 2004 after being disenrolled from the ROTC program for breach of contract.  This official further states the applicant was aware of the option to enter active duty in repayment for his scholarship debt through USACC channels; however, he chose to repay the debt in monthly installments, and debt was established through the DFAS on 1 April 2004.

12.  In addition, the USACC DCS, G-1, further states that the applicant's enlisted service in the Army, for which he received an enlistment bonus of $20,000.00, is not an authorized remedy for debt repayment under the terms of his ROTC contract, and his actions should not eliminate his debt to the Government.  On 30 July 2008, the applicant was provided a copy of the USACC advisory opinion in order to have the opportunity to reply to or rebut its contents.  To date, he has failed to respond.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RA service should fulfill his obligation under his breached ROTC contract was carefully considered.  However, the applicant's ROTC contract called for an expeditious call to active duty through ROTC channels at the needs of the Army without the benefit of advancement in grade or other incentives he received in connection with his RA enlistment.

2.  Although some form of partial debt equity relief beyond the amount of enlistment incentives he received may have been warranted had the applicant completed a 4 year enlistment in the RA, which would have provided the Government the benefits of his service for the same period he would have served had he been ordered to active duty as a result of breaching his ROTC contract, the record confirms he completed less than 2 1/2 years of service before being separated by reason of disability with severance pay.

3.  In addition, had the applicant elected an expeditious call to active duty through ROTC channels 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/incentives.  In this case, the record confirms he enlisted in the RA in the pay grade of E-4 and was authorized a $20,000.00 enlistment bonus.  Given any debt relief granted by the Board would be an exception to policy based solely on the Government receiving the benefits of his service for the same period he would have served had he been ordered to active duty as a result of breaching his ROTC contract (4 years), there appears to be an insufficient evidentiary basis to support equity relief in this case.

4.  In view of the facts of this case, given the applicant's disenrollment from the ROTC program was based on his own misconduct and failure to meet standards, and because he completed less than 2 1/2 years of service and received substantial enlistment incentives and severance pay, it would not be appropriate to grant the additional debt relief requested in this case.


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)                                         AR20080010446



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010446



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1