IN THE CASE OF:	  

		BOARD DATE:	       27 January 2009

		DOCKET NUMBER:  AR20080012967 


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 be waived.

2.  The applicant states, in effect, that he was disenrolled from the ROTC in February 2004 and that he subsequently enlisted in the Army.  He points out that his term in the ROTC was for 2 years and 6 months and that his current enlistment in the Regular Army is for 3 years and 18 weeks.  He states that when he was disenrolled from ROTC he was never given any paperwork to finalize the disenrollment and that his signature and initials were forged on a memorandum waiving his rights to an investigation and electing recoupment.  He further states that following his disenrollment from ROTC he enlisted in the Army of his own volition, that he has been promoted above his peers, and that he was a distinguished graduate of the Warrior Leader Course.

3.  The applicant provides his ROTC enlistment contract, his Regular Army enlistment contract, ROTC disenrollment paperwork, a statement of indebtedness from the Defense Finance and Accounting Service (DFAS), and copies of his official signature.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the Regular Army in the rank of E-5.

2.  On 12 September 2001, the applicant signed an Army Senior ROTC Scholarship Cadet Contract, DA Form 597-3.  However, the complete contract is not available.  Paragraph 7d of the applicant's DA Form 597-3 would have stated that if the cadet were disenrolled from the ROTC program for any reason, the Secretary of the Army could order him to 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 his disenrollment or refusal to accept a commission.  Or, the cadet could be ordered to active duty for not more than 4 years.

3.  Paragraph 12 of the applicant’s DA Form 597-3 would have stated that the cadet understood and agreed that if he voluntarily or because of misconduct failed to begin or failed to complete any period of active duty that he may have incurred under the contract, he would be required to reimburse the United States an amount of money, plus interest, that is equal to or bore the same ratio to the total cost of the financial assistance provided him as the unserved portion of such duty bore to the total period of such duty he was obligated to serve.

4.  The applicant enlisted as a cadet in the U.S. Army Reserve on 12 September 2001 for a period of 8 years.

5.  On 22 March 2004, the applicant was notified that action was being taken to disenroll him from the ROTC program due to a fact or condition that would bar him from appointment as a commissioned officer (a disapproved waiver for conviction of driving while intoxicated).  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.  On 13 May 2004, he waived his right to a hearing and declined expeditious call to active duty.

6.  On 12 August 2004, the Regimental Commander, U.S. Army Cadet Command, recommended that the applicant be disenrolled and required to pay back scholarship monies owed to fulfill his ROTC obligation.  He stated that since the applicant had not completed the Leadership and Assessment Course it would not be in the Army's best interest to require him to serve on active duty as an enlisted Soldier.

7.  On 1 September 2004, the applicant was notified that he was disenrolled from the ROTC program due to a fact or condition that would bar him from appointment as a commissioned officer (a disapproved waiver for conviction of driving while intoxicated).  He was notified that he owed $12,102.70.  He was also instructed on his options to repay the debt and that failure to respond within 14 days of the letter might result in the initiation of involuntary collection action.

8.  On an unknown date, a request for establishment of debt with DFAS was made by Headquarters, U.S. Army Cadet Command.  This memorandum states that the applicant failed to respond to the notification letter.

9.  The applicant enlisted in the Regular Army in pay grade E-4 on 19 January 2006 for a period of 3 years and 18 weeks.  He did not enlist for an enlistment bonus.

10.  The applicant provided a DFAS account statement, dated 19 May 2008, which shows he owes $14,665.58.

11.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Cadet Command.  The opinion pointed out that the terms of the scholarship contract required that a cadet either repay the debt monetarily or agree to be ordered to active duty through ROTC channels based on the needs of the Army.  The applicant was offered these options on 1 September 2004 after being disenrolled from the ROTC program for breach of contract.  He 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 in October 2004.  The opinion stated that his enlisted service in the Army is not an authorized remedy for debt repayment under the terms of the ROTC contract.  He received $12,102.70 in scholarship benefits as a scholarship cadet and he should be required to repay the scholarship benefits in accordance with his ROTC contract.

12.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 24 November 2008, he responded.  In summary, he stated that he did not choose the monetary repayment option in lieu of active duty service, that any signatures or initials on disenrollment paperwork dated after 1 January 2004 were forgeries, and that he did not make any signatures on any documents related to disenrollment.  He argues that while he was not ordered to active duty through the Cadet Command, the forged signatures that authorized the repayment option should invalidate the repayment.  He also argues that if presented the option to repay the debt or serve on active duty, he would have chosen the active duty option.

13.  Information obtained from the U.S. Army Cadet Command revealed that the applicant's active duty commitment would have been for 3 years.

14.  Records from the Enlisted Distribution Assignment System shows the applicant's expiration term of service is 13 January 2010.

15.  Army Regulation 135-210 (Order to Active Duty as Individuals for Other Than a Presidential Selected Reserve Call-up, Partial, or Full Mobilization) 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:

Although not provided for in his DA Form 597-3 (had it been available), the applicant’s 19 January 2006 enlistment in the Regular Army served the same purpose as would have been served had he been ordered to active duty through ROTC channels.  He would have owed the Army 3 years had he been ordered to active duty and to date he has satisfied this obligation.  As a matter of equity it would be appropriate to consider his enlistment in the Regular Army to have met the active duty obligation required by his ROTC scholarship contract.

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 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 




$12,102.70 ROTC debt under the original terms of the ROTC contract by successfully completing 3 years of active duty in the Regular Army.



      ___________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)                                         AR20080012967





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ABCMR Record of Proceedings (cont)                                         AR20080012967



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