IN THE CASE OF:	 

		BOARD DATE:	  9 October 2008

		DOCKET NUMBER:  AR20080010931 


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 remission of his Reserve Officers’ Training Corps (ROTC) scholarship debt in the amount of $16,325.00. 

2.  The applicant states, in effect, that he elected to serve on active duty through enlistment in the U.S. Navy for the pursuit of a commission as a nuclear propulsion officer.  The applicant states before separating from ROTC, he inquired into the option of serving on active duty instead of in the reserve component with the U.S. Army.  He was informed that it was impossible for him to do so.  Additionally, he asked if he could recoup the scholarship and stay with the program on active duty, and again he was denied.

3.  The applicant states that his educational expertise in physics is more beneficial to the Department of Defense and the United States of America if he serves in the nuclear propulsion program instead of on active duty in the Army.  He further states that this is strengthened by a recruiting shortage of nuclear trained officers over the past two years.  

4.  The applicant provides his ROTC disenrollment paperwork; a DA Form 
597-3 (Army Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract), dated 25 October 2005; a DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 11 March 2008; an Account Statement from the Defense Finance and Accounting Service (DFAS), dated 17 March 2008; an undated letter from the Denver Center, Directorate of Debt and Claims; and a DD Form 368 (Request for Conditional Release), dated 
3 October 2007, in support of his application.
CONSIDERATION OF EVIDENCE:

1.  On 11 March 2004, the applicant enlisted in the Army National Guard (ARNG) for an 8-year term of service.

2.  On 25 October 2005, the applicant signed an ROTC scholarship contract and agreed to enlist in the Reserve Component of the United States Army (with an assignment to the U. S. Army Reserve Control Group (ROTC)) for a period prescribed by the Secretary of the Army.  

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 from the commencement of his contractual agreement to the date of his disenrollment or refusal to accept a commission. 

5.  Paragraph 6 of the applicant’s ROTC contract states that if he were called to active duty for breach of contact under the provisions of paragraph 5, he would be ordered to active duty for 2 years if the breach occurred during Military Science II; for 3 years if the breach occurred during Military Science III, or for 
4 years if the breach occurred during Military Science IV.

6.  On 17 July 2007, the applicant was notified that action was being taken to disenroll him from the ROTC program for beach of contract based on his refusing to attend the Leadership Development Assessment Course and his announced intention of not continuing in the ROTC program.  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, elected to request a board of officers, and declined expeditious call to active duty.  
7.  On 15 October 2007, the applicant was notified that he was disenrolled from the ROTC program for beach of contract based on his refusal to attend the Leadership Development Assessment Course.

8.  On 24 October 2007, the applicant signed a scholarship contractual agreement promising to repay the total amount owed, $16,325.00, in monthly installments, plus interest on the amount owed, as specified in his scholarship contract.

9.  The applicant enlisted in the U.S. Navy on 11 March 2008 for a period of 
8 years.  He enlisted under the nuclear propulsion officer candidate program of which 4 years would be served on active duty.  

10.  A DFAS account statement, dated 17 March 2008, shows the applicant was charged with a debt of $16,450.05.  

11.  In the processing of this case, on 29 July 2008, an advisory opinion was obtained from the U.S. Army Cadet Command.  The opinion pointed out that the applicant was aware of the option to enter active duty in repayment of his scholarship debt through Cadet Command channels.  Instead, he chose to repay in monthly installments, and a debt was established with DFAS on 14 February 2006.  The opinion stated that his enlisted service in the U.S. Navy is not an authorized remedy for debt repayment under the terms of the ROTC contract.  His scholarship benefits totaling $16,325 are profits the applicant should not be allowed to retain.  His action should not eliminate his debt to the government.

12.  On 5 August 2008, a copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not reply.

13.  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 his ROTC contract, the applicant’s 11 March 2008 enlistment in the U.S. Navy served the same purpose as would have been served had he been ordered to active duty.  The U.S. Navy is still getting the benefits of his service for a period of 8 years, 4 of those years on active duty.  He would have owed the Army 3 years had he been ordered to active duty.  As a matter of equity, it would be appropriate to consider his 8-year enlistment in the U.S. Navy to have met the active duty obligation required by his ROTC scholarship contract. 

2.  If the applicant fails to complete the period of enlisted service obligated as a result of his 11 March 2008 enlistment, either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis. 

3.  The Board has no jurisdiction to stop any cash enlistment bonus in this case, but any such bonus would be a legitimate factor to consider in granting or denying equitable relief regarding the ROTC debt.  

4.  If the Defense Finance and Accounting Service discovers that a cash enlistment bonus has been paid and/or is due to be paid to the applicant, it would be equitable to consider that bonus in determining the amount of relief that should be given regarding the ROTC debt by subtracting any monetary bonus from the ROTC debt relief.

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 his $16,325.00 ROTC debt under the original terms of the ROTC contract by successfully completing 3 years on active duty with the U.S. Navy.

2.  If the individual concerned fails to complete 3 years of enlisted active duty service obligated as a result of his amended ROTC scholarship contract, either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis in accordance with his ROTC contract.   
3.  The portion of the ROTC debt that would be satisfied by the above correction will be the total amount of the ROTC debt minus any amount he received and/or is due to receive as a cash enlistment bonus, if any.



      ______XXXX________________
               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)                                         AR20080010931



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ABCMR Record of Proceedings (cont)                                         AR20080010931



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