IN THE CASE OF:	  

		BOARD DATE:	       18 December 2008

		DOCKET NUMBER:  AR20080013098 


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 his Reserve Officer's Training Corps (ROTC) scholarship debt be forgiven/cancelled.  He also requests a refund of the portion of the debt he has already repaid.

2.  The applicant states that he elected to serve on active duty in lieu of repayment of the debt.  At the time he submitted this application he stated that he would complete 2 years of Army service on 29 September 2008, and that his expiration term of service date is 13 February 2012.

3.  The applicant provides a DA Form 597-3 (Army Senior Reserve Officers' Training Corps Scholarship Cadet Contract), dated 26 January 1990; a copy of an account statement from the Defense Finance and Accounting Service (DFAS), dated 14 February 2008; and a copy of his enlistment contract.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a specialist four/E-4 in the Regular Army.

2.  The available evidence shows that while attending Kearney State College in January 1990, the applicant enrolled in the ROTC program as a 3-year scholarship student.  His declared major was nursing.  The total amount of debt he established is not available.  His February 2008 billing statement from DFAS shows his balance as $5,050.88.

3.  A review of his college transcripts for the period Fall 1990 – Fall 1992 shows he was enrolled in the required ROTC leadership and lab courses.  The specific facts and circumstances leading to the applicant's initiation of disenrollment from the ROTC Program, to include the date of disenrollment, are not in the available record.  There is also no evidence showing whether DFAS established a debt against him in 1992.  However, under normal circumstances when a scholarship cadet is disenrolled and fails to complete the ROTC contract, he or she is offered two options for repayment of the scholarship debt – serve on active duty for a specified period of time, or repay the debt.  When the applicant was disenrolled from the ROTC Program, he would have been notified that he was in breach of his contract, and he would have been offered the options detailed above.

4.  The applicant enlisted in the Regular Army on 14 February 2007 in pay grade E-4 for 5 years.  He enlisted for the U.S. Army Station/Unit/Area/Command Enlistment Program in MOS 68K (Medical Laboratory Specialist) and a $6,000.00 cash enlistment bonus (U.S. Army Incentive Enlistment Program (US Army Cash Bonus, 5 year enlistment). 

5.  In an advisory opinion, the U. S. Army Cadet Command noted that its headquarters had no records dating as far back as the time of the applicant's enlistment and contracting into the Army Senior ROTC Program.  However, based on the information available, his current active duty service commitment is not the result of being ordered to active duty through ROTC channels in satisfaction of his ROTC contractual obligation.  His current enlistment occurred 16 years after his contract date in January 1990 with the ROTC Program.  His current enlistment is not a remedy for repayment under the terms of the ROTC contract.  He also received a $6,000.00 enlistment bonus in addition to the scholarship benefits he received as a scholarship cadet.  He should be required to repay the scholarship benefits.

6.  On 29 September 2008, the applicant was provided a copy of the advisory opinion for comment or rebuttal.  On 2 October 2008, in an electronic mail 
(e-mail) response, the applicant states that according to the DFAS website and reiterated by customer service personnel "each branch of military service has established specific guidelines regarding individuals that elect to serve on active duty, in lieu of repayment of their debt.  Note: According to their contracts, service in Guard or Reserve forces does not qualify for termination consideration."  As it relates to the Army, the website goes on to state that "individuals who have entered Active Duty service in any branch, with a debt that originated from the Army may apply to the Board for Correction to Military Records using DD Form 149, Application for Correction of Military Record, to requires termination of the debt."  Although the advisory opinion states that his active duty enlistment does not qualify because he was not ordered to active duty, the DFAS website does not specify "ordered to active duty."  Moreover the original ROTC contract does not state "ordered to active duty," only active duty in lieu of repayment.  It should also be noted that the DFAS customer service employee who brought this to me attention also indicated that this debt does qualify for forgiveness and he should be repaid what he has paid toward the balance.  

7.  Paragraph 9 of DA Form 597-3 states, in pertinent part, "I understand and agree that if I breach the terms of this contract, the Secretary of the Army or his or her designee may order me to active duty as an enlisted Soldier for one of the periods listed below:  

	a.  During MS II, 2 years;

	b.  During MS III, 3 years;

	c.  During MS IV, 4 years;

	d.  After completion of MS IV, 4 years if I was a 2,3, or 4-year scholarship recipient."

8.  Paragraph 10a of DA Form 597-3 states "I understand and agree that if, I for any reason fail to meet or maintain the academic, physical, mental or moral standards required by this contract or specified by the Army and, as a result, I fail to complete the educational requirements contained in this contract, I will have breached by contract.  I understand and agree further, that as a consequence of the above, I may be ordered to active duty for the period specified in this contract or I may be required to reimburse the U.S. an amount of money, plus interest, that is equal to the total cost of the financial assistance provided to me by the U.S."

9.  Army Regulation 145-1 (Reserve Officers' Training Corps -Senior Reserve Officers' Training Corps Program: Organization, Administration, and Training) prescribes policies and general procedures for administering the Army's Senior Reserve Officers' Training Corps (SROTC) Program.  This provides in pertinent part that a scholarship or non-scholarship cadet under consideration for involuntary call to active duty for breach of contract will be so ordered within 60 days after they would normally complete baccalaureate degree requirements or the cadet is no longer enrolled in school.  Graduate students may not be ordered to active duty until they complete the academic year in which they are enrolled or disenroll from the school, whichever occurs first.  The cadet will not be discharged/disenrolled from the ROTC program until a determination has been received from Headquarters, Cadet Command.  If it is determined the cadet will be ordered to active duty, the cadet will not be discharged, and Headquarters, Cadet Command will issue active duty orders.

10.  Army Regulation 37-104-3 (Finance Update) provides the policies and provisions for entitlements and collections of pay and allowances of military personnel.  Chapter 59 currently in effect, provides for recoupment of educational expenses, e.g., ROTC, United States Military Academy, and advanced civilian schooling under a previous agreement when obligated active duty service has not been completed.

11.  Title 10, United States Code, section 2005, serves as the authority for reimbursements for advanced education assistance.  It states, in pertinent part, that individuals who fail to complete the terms of their advanced education assistance agreement will reimburse the United States for the unserved portion not fulfilled.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was enrolled as a 3-year scholarship cadet in January 1990.  For unknown reasons he was disenrolled from the ROTC Program and the information pertaining to his disenrollment is unavailable.  He failed to explain why he was disenrolled.  

2.  Upon his disenrollment, he would have been advised that he breached his contract and been offered two options for repayment of the scholarship debt – serve on active duty for a designated period of time, or repay the debt.  His original election is also not a part of the available evidence, and he has failed to explain which option he chose.  He has also failed to show the amount of the original debt that DFAS established against him.  In February 2008, his billing statement from DFAS shows his account balance was $5,050.88.

3.  Sixteen (16) years after he disenrolled from ROTC, he enlisted in the Army and received a $6,000.00 enlistment bonus.  He now contends that his current service should satisfy an outstanding debt incurred many years ago.  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 1992, in pay grade E-1, and not allowed any enlistment options.  He would not have been in the position to negotiate a favorable contract.  However, the applicant enlisted 16 years later in the Army in the grade of E-4 and received a cash enlistment bonus of $6,000.00. 

4.  The prospect of negating the applicant's outstanding $5,050.88 debt for a free education he received from the Army for 2 years without becoming an officer, plus allowing him to receive any enlistment bonus he ordinarily would not have received, would be a windfall.  While the Board has no jurisdiction to stop any enlistment bonus, any such bonus would be legitimate factors to consider in granting or denying equitable relief regarding the ROTC debt.

5.  Contrary to the applicant's contentions, his scholarship contract clearly stated that he may be ordered to active duty or be required to repay his debt should he breach his contract.  Given the above, the applicant has provided insufficient evidence upon which to warrant relief in his case.  His enlistment bonus was for an amount in excess of his reported DFAS debt and to grant him relief would provide him a benefit that other Soldiers in his same situation did not receive.  Therefore, his request for forgiveness/cancellation of his ROTC scholarship debt is denied.

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



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      _______ _   _______   ___
               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)                                         AR20080013098



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ABCMR Record of Proceedings (cont)                                         AR20080013098



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