IN THE CASE OF:	

		BOARD DATE:	4 August 2009    

		DOCKET NUMBER:  AR20080013263 


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 that her Reserve Officers' Training Corps (ROTC) Scholarship debt be cancelled.

2.  The applicant states, in effect, that she desires her ROTC debt to be cancelled because she is currently serving on active duty in the Regular Army (RA). 

3.  The applicant provides a letter from the Defense Finance and Accounting Service (DFAS), dated 4 April 2008, advising the applicant that she has an indebtedness in the principal amount of $8,379.77 for educational expenses paid through the ROTC Program; a completion certificate for the food service specialist course; a copy of orders discharging her from the ROTC; and a copy of the ROTC disenrollment action.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (ROTC Control Group) on
17 August 1998 and entered into a 3-year contract under the Senior ROTC Scholarship Program.  Her 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 un-served 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, in effect, that if she were called to active duty for breach of contract under the provisions of paragraph 8, she 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 of tuition and educational fees.

4.  On 15 November 2001, a board of officers was convened at North Carolina State University in Raleigh, North Carolina to consider whether to disenroll the applicant from the Senior ROTC Program for breach of contract by failing to meet the requirements of the Army Weight Control Program and the Army Physical Fitness Test.  The applicant was previously advised of the board and elected not to attend.  After considering the available evidence in the case the board of officers determined that the applicant should be disenrolled from the ROTC Program due to her voluntary breech of the scholarship contract by failing to meet the prescribed weight and physical fitness requirements.  It was also recommended that she be required to repay $9,227.00 for scholarship monies expended.  On 30 November 2001, the applicant acknowledged receipt of the DA Form 1574 (Report of Proceedings) including the approved findings and recommendations, and a copy of all enclosures and exhibits.  She also did not desire to submit a response in writing.

5.  The applicant was disenrolled from the ROTC Program for breach of contract and on 23 September 2002 she was notified of her options to satisfy her debt.  In October 2002, she elected to repay the debt in monthly installments and a debt was established with the DFAS in Denver, Colorado in November 2002. 

6.  On 18 March 2008, the applicant enlisted in the RA in the rank/grade of specialist (SPC)/E-4 for a period of 4 years and 21 weeks, training as a food service specialist, an $18,000.00 enlistment bonus, and participation in the student loan repayment program.

7.  On 4 April 2008, DFAS informed the applicant that her debt was currently in the amount of $8,379.77 and advised her of her options to apply to this Board for suspension or termination of the indebtedness.

8.  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 her ROTC scholarship debt or agreeing to be 
ordered to active duty through ROTC channels based on the needs of the Army.  She opted to repay her ROTC Scholarship debt.  That office also opined that her voluntary enlisted service in the RA is not an authorized remedy for debt repayment under the terms of the ROTC contract and recommended that her voluntary enlistment not reduce the amount she is required to reimburse the United States for her advanced educational assistance.

9.  On 5 February 2009, a copy of the advisory opinion was provided to the applicant for information and to allow her the opportunity to submit comments or rebuttal.  To date no response has been received from the applicant.

10.  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.

11.  Army Regulation 135-210 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 during peacetime.  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:

1.  Although the applicant has not contended that she was unaware of the conditions of her contract, the evidence of record clearly shows that the applicant understood the conditions of her ROTC contract, whereas she could elect to repay her scholarship debt in lieu of being involuntarily ordered to active duty in the rank/grade of private (PV1)/E-1 for a period of 4 years in a military occupational specialty (MOS) selected by the Army to meet the Army's needs.

2.  She clearly declined the involuntary call to active duty and elected to make payments to DFAS in accordance with the conditions of her contract.

3.  However, the applicant was able to enlist in the RA in the pay grade of E-4 for a variety of enlistment incentives which included an $18,000.00 enlistment bonus, training of choice, and participation in the student loan repayment program.

4.  Had the applicant elected to be involuntarily ordered to active duty to satisfy her ROTC debt, she would have been ordered to active duty in the grade of E-1 
for a period of 4 years, training in a specialty designated to meet the needs of the Army, and with no entitlement to any monetary incentives or other programs.

5.  The evidence of record clearly shows, and the applicant has offered no argument to the contrary, that she was afforded every benefit of her ROTC contract until such time as she defaulted on the terms of the contract.  She was afforded the opportunity to be ordered to active duty or to repay the debt; however, she chose to repay the debt in monthly installments.

6.  The fact that she later chose to enlist has no bearing on the terms of her ROTC contract or the debt she incurred.  Accordingly, there appears to be no basis to forgive a valid debt incurred by the applicant.  To do so would provide her multiple incentives not normally provided to others in similar circumstances,
i.e., ROTC educational assistance coupled with all of the enlistment incentives she received.  

7.  The applicant will receive an $18,000.00 enlistment bonus that could be used to repay her debt if she chooses.  However, to forgive her debt in light of the enlistment incentives she enlisted in the RA for would amount to an unfair windfall to the applicant for not honoring her contractual obligations.  While her service is appreciated, the fact that she chose to enlist for additional benefits rather than to honor her contractual obligations is not sufficient justification to forgive a valid debt to the government.

8.  It should also be noted that the applicant enlisted in the pay grade of E-4 vice the pay grade of E-1, which would have been the grade she would have entered in the Army to satisfy her ROTC obligations.  The pay differential per month between pay grade E-1 and E-4 at initial entry was $513.00 under the 2008 pay scale, which also amounts to an additional enlistment incentive above what she would have received had she honored her contract by being ordered to active duty in the pay grade of E-1.  Accordingly, there is no basis for granting the applicant's requested relief.



9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit 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.




      __________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)                                         AR20080013263



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ABCMR Record of Proceedings (cont)                                         AR20080013263



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