IN THE CASE OF:	  

		BOARD DATE:	  	  9 December 2008

		DOCKET NUMBER:  AR20080012278 


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, his debt for not completing the requirements of a Reserve Officers' Training Corps (ROTC) scholarship be forgiven based on his enlistment and active duty service in the U.S. Marine Corps (USMC).

2.  The applicant states, in effect, that he entered active duty in the USMC in order to satisfy the ROTC scholarship debt he incurred from 2002 to 2005.

3.  The applicant provides a copy of his USMC Basic Individual Record, dated
8 July 2008; Defense Finance and Accounting Service, Denver Center, Denver, Colorado letter, dated 21 June 2008; and DD Form 4-Series (Enlistment/ Reenlistment Document - Armed Forces of the United States), dated 15 July 2005, with allied documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s ROTC contract is not in his military service records; however, a copy was obtained from Headquarters, U. S. Army Cadet Command, Fort Monroe, Virginia.

2.  The applicant's DD Form 4-Series shows he enlisted in the U.S. Army Reserve (USAR) as a cadet for a period of 8 years on 29 January 2002, under the authority of Army Regulation 145-1 (USAR Control Group - ROTC).  The
DD Form 4-Series also shows the additional details of his enlistment are in Section C and the annexed DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract).
3.  The DA Form 597-3, Part I (Agreement of the Scholarship Cadet Enrolling in the Senior ROTC Advanced Course) and Part II (Agreement by the Department of the Army) provides the specific aspects of the agreement between the two parties.  Part I, Item 9, states "I understand that if I am disenrolled from the ROTC program for any reason or if I fail to accept a commission if offered I may, at the discretion of the Army, be directed, in lieu of being ordered to active duty as a private (E1) for a period specified in paragraph 8 above, to reimburse the United States through repayment of any amount of money, plus interest, equal to the entire amount of financial assistance paid by the United States for my advanced education from the commencement of this contractual agreement to the date of my disenrollment."  Part I of this document also shows the applicant placed his signature on the document on 29 January 2002.  Part II, Item 21, in pertinent part, provides that "[i]n consideration of the above agreement to the terms of this ROTC scholarship contract, the Department of the Army agrees to-- a. Pay for a period of 4 academic years (provided funds are appropriated by Congress) the following:  (1) Tuition and educational fees up to an annual amount of $17,000." Part IV (For the Secretary of the Army) shows that the ROTC Contracting Official placed his signature on the document on 29 January 2002.

4.  In support of his application, the applicant provides the following documents.

     a.  USMC Basic Individual Record, dated 8 July 2008, that shows he enlisted in the USMC for a period of 4 years on 15 July 2005, entered active duty service on 31 October 2005, and his expiration of active service agreement is 30 October 2009.

     b.  Defense Finance and Accounting Service (DFAS), Denver Center, Denver, Colorado, letter, dated 21 June 2008, that shows the Directorate of Debt and Claims Management informed the applicant he has an indebtedness in the principal amount of $35,803.79 for the recoupment of education expenses paid on his behalf during his participation in the USAR ROTC.  This document also shows the applicant was advised he could apply to the Army Board for Correction of Military Records (ABCMR) to request suspension/termination of his account and, if approved, his account will then be placed in a suspended status pending the completion of his obligated service time.

     c.  DD Form 4-Series with allied documents, that shows the applicant enlisted in the U.S. Marine Corps Reserve (USMCR) on 15 July 2005.  He then enlisted in the Regular Component of the USMC in the grade of E-2 and entered active for a period of 4 years on 31 October 2005.  These documents also contain the applicant's enlistment options/agreements and shows he enlisted for the infantry; however, there is no evidence the applicant's enlistment agreement included an enlistment bonus.

5.  During the processing of this case, an advisory opinion was obtained from Headquarters, U.S. Army Cadet Command (USACC), Fort Monroe, Virginia.

     a.  The Colonel serving as Deputy Chief of Staff (DCS), G1, confirmed that the applicant was disenrolled from the ROTC Program for breach of contract based on failing to meet the requirements of the Army Weight Control Program and non-participation in monthly Army Physical Fitness Training.  The advisory official added, in such case, the terms of the ROTC scholarship contract require that 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.  The advisory official also states that the applicant was offered these options on 14 March 2005 after being disenrolled from the ROTC Program for breach of contract.  The applicant failed to elect a repayment option, and a debt in the amount of $36,602.00 was established with the Defense Finance and Accounting Service, Denver Center, on 15 April 2005.

     b.  The USACC, DCS G1, provided a copy of Headquarters, USACC, Fort Monroe, Virginia, memorandum, dated 14 March 2005, subject:  Disenrollment from the USAR ROTC Program; DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record), dated 5 January 2005; Addendum to Part I (Scholarship Contractual Agreement); Headquarters, USACC, Fort Monroe, Virginia, memorandum, dated 15 April 2005, subject:  Disenrollment from the ROTC Program - Cadet [Applicant’s Name and Social Security Number]; and Headquarters, USACC, Fort Monroe, Virginia, memorandum, dated 15 April 2005, subject:  Scholarship Recoupment Debt - Cadet [Applicant’s Name and Social Security Number].  These documents confirm the actions taken with respect to the applicant’s USAR ROTC disenrollment as described by the DCS, G1, USACC, in the advisory opinion rendered in the applicant’s case.
In addition, the Addendum to Part I shows the applicant was offered the option to be ordered to active duty in an enlisted status in order to fulfill his obligation, rather than make monetary repayment.  This document states, in pertinent part, "I understand and acknowledge that the Commander, Cadet Command will issue active duty orders for three years in fulfillment of my contractual obligation."

     c.  The advisory official notes that the applicant is currently serving on active duty with the USMC for a total of 4 years; however, his current active duty service commitment is not the result of being ordered to active duty through ROTC channels in satisfaction of this ROTC contractual obligation.  He adds that the applicant's enlisted service in the USMC is not an authorized remedy for debt repayment under the terms of the ROTC contract.
6.  On 29 September 2008, the applicant was provided a copy of the USACC advisory opinion in order to have the opportunity to respond.  On 3 October 2008, the applicant provided a response indicating that he was informed both prior to dropping out of the ROTC program and after his enlistment in the USMC that honorable service would be considered in waiving his debt.  He states that it is his intent to reenlist and apply for Officer Candidate School (OCS) at the end of Fiscal Year 2009 when his contract expires.  He adds that this would equate to him giving the military 8 years of active service, including a full tour as an officer, and he does not feel that he is “cheating the system.”  The applicant concludes by requesting that his application be given favorable consideration.

7.  There is no indication on the applicant's enlistment contract, nor is there any other evidence of record, which shows that his enlistment in the USMC was for the purpose of fulfilling the obligation he incurred as a result of his being disenrolled from the ROTC program for breach of contract.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his 4-year enlistment in the USMC fulfills his ROTC obligation has been carefully considered.  There is no documentary evidence to support the applicant’s claim that he was informed both prior to dropping out of the ROTC program and after his enlistment in the USMC that honorable service would be considered in waiving his debt.  Nonetheless, the applicant’s argument was found to have merit.

2.  The evidence of record shows that during the process of disenrolling the applicant from the ROTC program for breach of contract, he was afforded the opportunity to repay the debt monetarily or agree to be ordered to active duty for a period of 3 years through ROTC channels based on the needs of the Army. The evidence of record also shows the applicant failed to respond to this notice.  As a result, a debt was established with the DFAS in accordance with the terms of his ROTC contractual agreement.

3.  Had the applicant elected an expeditious call to active duty to satisfy his ROTC debt caused by his disenrollment, he would have been assigned against the needs of the Army, in pay grade E-1, and not provided any enlistment options.  However, under the terms of his subsequent enlistment in the USMC, he was allowed to enter active duty in pay grade E-2 and choose his military occupational specialty (MOS).

4.  Although his ROTC contract called for an expeditious call to active duty for
3 years through ROTC channels based on the needs of the Army without the benefit of advancement in grade or choice of MOS; his 4-year active duty enlistment in the USMC serves a somewhat similar purpose as would have been served had he been ordered to active duty for 3 years in the Army through ROTC channels.

5.  The evidence of records shows that, as a result of the applicant’s 4-year enlistment, the Department of Defense is receiving at least the equivalent military service benefit it would have gained had the applicant been ordered to active duty for 3 years as a result of breaching his ROTC contract.  In addition, as of
31 October 2008, the applicant has completed 3 years of his 4-year enlistment.

6.  In view of the facts of this case, it is appropriate to correct the record to show that the applicant has satisfied his ROTC contractual obligation by cancelling his current $36,602.00 ROTC debt.

BOARD VOTE:

____X____  ____X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  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 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 the applicant satisfied his ROTC scholarship debt of $36,602.00 under the original terms of the ROTC contract by successfully completing 3 years of his current 4-year active duty enlistment commitment in the U.S. Marine Corps.



2.  That, as a result of the foregoing correction, the Defense Finance and Accounting Service shall cancel the applicant's ROTC debt in accordance with the terms of this correction of records, as outlined above.  In addition, the DFAS shall refund payment to the applicant the total amount of any monies garnished and/or recouped as a result of breaching his original ROTC contractual obligation, not to exceed $36,602.00.




      _______ _   _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)                                         AR20080012278



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012278



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1