IN THE CASE OF:	  

		BOARD DATE:	        21 OCTOBER 2008

		DOCKET NUMBER:  AR20080011489 


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, the reimbursement of all educational expenses paid by him to date and the cancellation of his debt. 

2.  The applicant states, in effect, that the educational expenses paid by him to satisfy his Reserve Officer Training Corps (ROTC) debt should be returned to him because he is satisfying his debt by his enlistment in the Marine Corps. 

3.  The applicant provides copies of his original notification of debt payment options, his enlistment contract into the Marine Corps and his current statement of service. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the United States Army Reserve (USAR) as a cadet for assignment to the USAR Control Group (ROTC) on 25 November 2002 for a period of 8 years, and pay for a period of 4 academic years at Mississippi State University for tuition and educational fees up to $17,000 per year.

2.  As part of his enlistment contract he acknowledged that he understood that if he was disenrolled from the ROTC program, that he may, at the discretion of the Army, in lieu of being ordered to active duty as a private (E-1) for not more than 4 years, within 60 days of disenrollment,  reimburse the United States 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 the contractual agreement to the date of disenrollment.

3.  On 6 May 2004, the Professor of Military Science (PMS) dispatched to the applicant, a memorandum of notification of pending disenrollment from the ROTC program.  The PMS cited the applicant’s academic suspension as the basis for his disenrollment.

4.  He was also advised of his right to appear before a board of officers, to consult with counsel, and his right to submit a statement in his own behalf.  He was further advised that he may be required to repay the amount of scholarship benefits received ($6,731.00) in lieu of being called to active duty in his Reserve enlisted grade of private E-1.  He was provided an election statement and was advised to return it completed.

5.  He elected to waive his right to a hearing and declined an expeditious call to active duty on 7 May 2004.

6.  On 4 October 2004, a memorandum was dispatched to the applicant from the United States Army Cadet Command at Fort Monroe, Virginia which notified the applicant that he was disenrolled from the ROTC Program and that his obligation to the Army must be satisfied through order to active duty in an enlisted status or by repaying the advanced education assistance provided by the Army in the amount of $6,731.00.  The applicant was provided an election option statement and was advised to return it within 14 days.  He failed to return the election option statement.

7.  On 20 October 2004, the applicant enlisted in the United States Marine Corps (USMC) Reserve for a period of 8 years under the delayed entry program (DEP). On 25 October 2004, he enlisted in the Regular USMC for a period of 4 years.  He completed his training and is currently serving as a personnel clerk in the rank of corporal at the Marine Corps Air Ground Combat Center at Twenty Nine Palms, California.  His scheduled expiration of term of service date is 24 October 2008.

8.  Meanwhile, on 18 March 2005, the Defense Finance and Accounting Service (DFAS) in Denver, Colorado dispatched a letter to the applicant informing him that his debt was delinquent and was accruing interest and administrative charges.  On 18 April 2005, he was notified that the notice was a final notice on his delinquent debt and that he had been reported to a credit bureau and his account would be turned over to a commercial collection agency if no response was received within 30 days. 

9.  In the processing of this case a staff advisory opinion was obtained from the Cadet Command which opines that the applicant’s enlistment is not an authorized remedy for debt repayment under the terms of his ROTC Scholarship Contract and that he should be required to repay the scholarship benefits he received. 

10.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he breached his contract by failing out of college because he was young and immature and cared more for socializing at the time. He goes on to state that when he was notified of his disenrollment he discussed his plans to enlist in the USMC with his commanding officer at the time and he agreed that such an enlistment would fulfill his obligation.  He continues by stating that he was informed by USMC officials that he could not enlist until he was released from the ROTC Program and that did not occur until 4 months later, while he was waiting at home for the paperwork to be finalized.  He immediately enlisted in the USMC because his contract did not specify which service he had to satisfy his service in.  He also states that in the spring of 2005, he received notices that the debt was unresolved and he sought assistance through his USMC chain of command to resolve it and though it had been accomplished until May 2007 when he was notified that his paycheck had been garnished.  He immediately contacted both the Navy and Army Board of Corrections.  He further states that he reenlisted in the USMC on 1 August 2008 and has continued to excel as a Marine.

11.  Title 10, United States Code, section 2005(a)(3), states, in pertinent part, that the Secretary concerned may require, as a condition to the Secretary providing advanced education assistance to any person, that such person enter into a written agreement with the Secretary concerned under the terms of which such person shall agree that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed by the Secretary to protect the interest of the United States, such person will reimburse the United States in an amount that bears the same ratio to the total costs of advanced education provided such person as the un-served portion of active duty bears to the total period of active duty such person agreed to serve.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has not contended that he was unaware of the conditions of his contract, the evidence of record clearly shows that the applicant understood the conditions of his ROTC contract, whereas he could elect to repay his scholarship debt in lieu of being involuntarily ordered to active duty in the rank of E-1 for a period not to exceed 4 years in the Army.  

2.  The applicant clearly declined an expeditious call to active duty which indicates in itself that the applicant understood what service he was expected to serve in, in the event of his failure to repay his debt.  Accordingly, his contention that his contract, which was with the Army, did not specify in what service he had to serve, is without merit.  

3.  It is noted that the applicant enlisted in the Marine Corps immediately after he was disenrolled from the ROTC program; however, that contract was a clear and separate contract from his ROTC obligation and by regulation, does not serve to satisfy any of the conditions of the contract he had with the Army.
  
4.  However, the Board recognizes the importance of the applicant's service to his country, regardless of which Armed service is involved, and finds that in the interest of justice and as a matter of equity, the applicant's service in the Marine Corps should serve to satisfy the ROTC debt and that he be reimbursed the monies he had already paid towards satisfying his Army ROTC debt.
 
5.  Accordingly, as a matter of equity, his ROTC Scholarship Contract should be amended to reflect that his debt obligation may be satisfied by virtue of completion of his enlistment in the Marine Corps or the date of Board approval, whichever is earlier, as an exception to policy.
 
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 full 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 reflect that his debt obligation will be satisfied upon successful completion of his 4-year enlistment in the Marine Corps on 24 October 2008 or approval of this Board, whichever is earlier, as an exception to policy.  Additionally, all monies collected from the applicant as a result of the debt are to be refunded to the applicant and the appropriate credit agencies be notified that the debt has been satisfied.





      _______ XXX _______   ___
       	   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)                                         AR20080011489



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ABCMR Record of Proceedings (cont)                                         AR20080011489



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