IN THE CASE OF:	  

		BOARD DATE:	       16 DECEMBER 2008

		DOCKET NUMBER:  AR20080011743 


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 Officers’ Training Corps (ROTC) debt in the amount of $34,197.73, which he incurred when he was disenrolled as an ROTC cadet, be terminated/waived.

2.  The applicant states, in effect, that he was enrolled as a contracted ROTC cadet at the University of Dayton from September 2000 to 17 October 2002 with an 8-year U.S. Army Reserve (USAR) obligation.  He has now enlisted in the Regular Army (RA) on 25 March 2008 for a period of 4 years and desires the Board to consider his service as payment for his ROTC scholarship debt because it would be lifting a serious financial burden from him and his family.

3.  The applicant provides a copy of his ROTC contract, his current enlistment contract, a copy of a letter from the Defense Finance and Accounting Service (DFAS) notifying him of his debt, and a copy of his current assignment orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (ROTC Control Group) on
4 October 2002.  His DA Form 597-3 states that if the cadet were disenrolled from the ROTC program for any reason, the Secretary of the Army could order the cadet to reimburse the United States the dollar amount plus interest that bears the same ratio to the total cost of the scholarship financial assistance provided by the United States to the cadet as the unserved portion of active duty bears to the total period of active duty the cadet agreed to serve or was ordered to serve.  
2.  The applicant’s DA Form 597-3 also states that if he were called to active duty for breach of contract under the provisions of paragraph 8, 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.  

3.  In consideration of the agreement to the terms of the ROTC Scholarship Contract, the Department of the Army agreed to pay for a period of 3 academic years tuition and educational fees, up to an annual amount of $16,000.00.

4.  The applicant was disenrolled from the ROTC Program for breach of contract and on 11 October 2002, he was notified of his options to satisfy his debt.  Although not in the available records, it appears that he elected to repay the debt instead of being ordered to active duty.

5.  The applicant received a letter from DFAS informing him that a debt had been established in the principal amount of $34,197.73 for educational expenses paid in his behalf during his participation in the ROTC.  The debt was established on 9 January 2003.

6.  On 25 March 2008, he enlisted in the RA in pay grade E-3 for a period of
4 years; training as a preventative medicine specialist; participation in the Loan Repayment Program; and a $14,000.00 cash bonus.  He completed his training and is currently assigned to Fort Sam Houston, Texas.

7.  In the processing of this case, an advisory opinion was obtained from the United States Army Cadet Command.  That office opined that the applicant was offered the option of repaying his ROTC scholarship debt or agreeing to be ordered to active duty through ROTC channels based on the needs of the Army.  He opted to repay his ROTC Scholarship debt.  That office also opined that his voluntary enlisted service in the RA is not an authorized remedy for debt repayment under the terms of the ROTC contract and recommended that his voluntary enlistment not reduce the amount he is required to reimburse the United States for his advanced educational assistance.

8.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  To date, no response has been received by the staff of the Board.

9.  Title 10, U.S. 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/grade of private (PV1)/E-1 for a period not to exceed 4 years in the Army.

2.  Although not provided for in his ROTC contract, the applicant’s 25 March 2008 enlistment in the Army serves the same purpose as it would serve had he been ordered to active duty in the Army.  The Army is still getting the benefits of his service.  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 enlistment in the Army to have met the active duty obligation required by his ROTC scholarship contract.   

3.  If the applicant fails to complete the period of enlisted service he would have been obligated as a result of his ROTC scholarship either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis.

4.  Had the applicant chosen active duty or been involuntarily ordered to active duty as a result of his disenrollment, he would have been assigned against the needs of the Army in pay grade E-1, and not allowed any enlistment options.  The applicant enlisted in the Army in pay grade E-3 with incentives of training of choice and a cash enlistment bonus of $14,000.00.

5.  The prospect of negating the applicant's $34,197.33 debt for a free education he received from the Army without becoming an officer, plus allowing him to receive a cash bonus or other financial incentive he ordinarily would not have received, would be a windfall.  While the Board has no jurisdiction to stop any cash bonus or loan repayment in this case, any such bonus and incentive would be legitimate factors to consider in granting or denying equitable relief regarding the ROTC debt.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  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 a portion of the $34,197.73 ROTC debt under the original terms of the ROTC contract by successfully completing his current 4-year enlistment in the Regular Army.

2.  The portion of the ROTC debt that would be satisfied by the above correction would be $20,197.73.  This is the total amount of the principal ROTC debt minus the $14,000.00 he received or will receive as a cash bonus based on his current enlistment.

3.  If the individual concerned 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 required to be recouped on a pro-rated basis in accordance with his DA Form 597-3.

4.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to total relief, remission or cancellation of his ROTC debt in the amount of $34,197.73.




      _________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)                                         AR20080011743



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ABCMR Record of Proceedings (cont)                                         AR20080011743



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