IN THE CASE OF:	  

		BOARD DATE:	        14 MAY 2009

		DOCKET NUMBER:  AR20080013309 


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 his Reserve Officers' Training Corps (ROTC) debt with the Arkansas State University be forgiven and/or removed from his record.

2.  The applicant states that he believes the debt of approximately $11,000.00 to be an injustice to him and his family.  He states that he received an Army ROTC 3-year scholarship in the fall of the year 2001.  He states that he was granted a secret security clearance during that time and that he accelerated in the program for 2 1/2 years, setting the highest of standards.  He states that during his third year in ROTC, he received a driving while intoxicated (DWI) citation and he immediately informed his Professor of Military Science (PMS) of the incident.  He states that he was later informed that he would need to have a hearing conducted to determine his future in ROTC.  He states that he moved forward with the hearing and all evidence supporting his case and the neutral hearing officer recommended that he stay in the program based on his testimony and the testimony of his family and the ROTC instructor.  He states that the hearing officer recommended that he be removed from the ROTC Scholarship Program and pay back all of the finances he received.  He states that knowing the financial burden he and his family would be placed under, he fully accepted the decision for him to have an opportunity to become an Army officer.  He states that he was later informed that there was increased doubt as to whether or not 

his instructor's recommendation would keep him in the program and that based on all of the information that he received, he chose to disenroll from the ROTC program.

3.  The applicant continues by stating that he and his family moved to Arkansas and continued on with college and life in general.  He states that he enlisted in the Army National Guard in 2006 out of his desire to serve his country.  He states that he knew that he would only be able to enlist in the pay grade of E-3 and that he would still be responsible for repaying his ROTC debt; however, he still chose to enlist and serve his country.  He states that he graduated from basic training in August 2006 as a combat medic and that he completed advanced individual training in January 2007.  He states that he was deployed to Iraq for 1 year and that his wife continued to receive monthly bills concerning his debt, although he was told that his debt would be placed on hold while he was deployed.  He states that his Leave and Earnings Statements (LES) show that he had money deducted from his pay while he was deployed.  He states that he did what he could to get answers as to why the deductions were being taken from his pay while he was deployed; however, he received little help regarding the matter.  He states that he and his family are under an enormous amount of stress, sadness, and financial hardships and that he is doing everything within his ability to serve his country and to make everything right.  He concludes by stating that he loves the Army, that he hopes to serve long enough to retire as a United States Soldier, and that he believes he has paid for his mistakes, as the ROTC debt is too much for him and his family.

4.  The applicant provides a copy of the memorandum from Headquarters, United States Army Cadet Command, dated 3 May 2005, notifying him of his disenrollment from the ROTC program; electronic mail (email) between him and an official at the Defense Finance and Accounting Service (DFAS) regarding his ROTC debt and placing it on hold while he was deployed; copies of his LESs dated 1 April 2008, 14 March 2008, and 29 February 2008; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of Permanent Orders 257-0003 dated 14 September 2007; a copy of Orders 192-013 dated 11 July 2007; a copy of a Statement of Service dated 23 April 2008; a copy of a Department of Veterans Affairs Certificate of Eligibility for Loan Guaranty Benefits; a memorandum of recommendation from the the Arkansas Army National Guard (ARARNG) Readiness Noncommissioned Officer dated   26 April 2007; five certificates of training and achievement; a copy of his DA Form 705 (Army Physical Fitness Test Scorecard); and a copy of his certificate of completion of the Division of Behavioral Health Service Drug and Alcohol Safety Education Program in support of his application.


CONSIDERATION OF EVIDENCE:

1.  The available records show that the applicant was an ROTC Scholarship cadet on 25 January 2005 when he was notified by the United States Army Cadet Command PMS that action to disenroll him from the ROTC program had been initiated.  The PMS cited DWI on 20 December 2003 as the basis for the disenrollment action.  The applicant was informed that he may request a hearing by a board of officers or an investigating officer, or he may waive his right to a hearing.  He was further informed that if he failed to respond to the notification or future notifications during the disenrollment process, the proceedings would continue in his absence and without his input.  He was told that if he failed to respond or appear at the appropriate time, he may be waiving his right to present matters regarding his indebtedness or his disenrollment.  In the notification the applicant was informed of his rights; he was provided direction on how to timely respond to the notification; and he was told that recommendations of a battalion commander, PMS, board of officers, or investigating officer were not binding upon the disenrollment approval authority.

2.  On 27 January 2005, the applicant acknowledged receipt of the notification of the ROTC Scholarship Program disenrollment action and he waived his right to a hearing.  He also acknowledged that the amount and validity of his debt as stated in the disenrollment notification was correct.  The applicant elected to decline expeditious call to active duty.

3.  On 3 May 2005, the applicant was notified by the United States Army Cadet Command Commanding General (CG) that he was disenrolled from the ROTC program under the provision of Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program:  Organization, Administration, and Training), paragraph 3-43a(14).  The CG cited undesirable character as demonstrated by his DWI on 20 December 2003 as the basis for the disenrollment.  In the notification the applicant was informed that when the ROTC scholarship contract is breached, any obligation to the Army must be satisfied through an order to active duty in an enlisted status or by repaying the cost of advanced education assistance provided by the Army.  The applicant was told that the amount of money spent in support of his educational assistance was $11,196.00 and that he could elect to repay the total amount owed in a lump sum or he could elect to initiate a repayment plan.

4.  On 19 April 2006, the applicant enlisted in the ARARNG for 8 years in the pay grade of E-3.  Annex E to his enlistment contract shows that he was enlisting under the Selected Reserve Incentive Program into a medical detachment for 

military occupational specialty (MOS) 91W1O00YY (health care specialist) and would receive a total bonus of $20,000.00, less taxes for the critical MOS in which he was enlisting.  He successfully completed his training as a health care specialist.

5.  On 11 July 2007, ARARNG Orders 192-013 were published ordering the applicant to active duty in support of Operation Iraqi Freedom effective 12 July 2007.

6.  The applicant was released from active duty on 23 July 2008 and returned to the ARARNG to complete his service obligation.

7.  The applicant’s records show that he is currently a member of the ARARNG.

8.  The LESs that the applicant submits in support of his application dated 29 February 2008, 14 March 2008, and 1 April 2008 show that while he was deployed to Iraq debt payments were being deducted from his pay.

9.  The email correspondence between the applicant and DFAS shows that he made several attempts while he was deployed between 24 October 2007 and 11 March 2008 to have the debt payments that were being deducted from his pay suspended.  He was told that his case had been assigned to an auditor and to send the appropriate documentation to his pay office to refund the offset taken from his pay.  He was asked to allow time for his case to be worked.

10.  During the processing of this case an advisory opinion was obtained on 6 November 2008 from the Headquarters, United States Army Cadet Command, Deputy Chief of Staff, G1, who stated that the terms of the scholarship contract require 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 Deputy Chief of Staff, G1, stated that the applicant was offered the monetary option on 3 May 2005 after being disenrolled from the ROTC Program for breach of contract.  He stated that the applicant was not offered the active duty option due to the severity of the offense for which he was disenrolled, that the monetary repayment options election form was not returned, and a debt was established with DFAS on 3 June 2005.  The Deputy Chief of Staff, G1, stated that the applicant’s prior Reserve service was not the result of being ordered to active duty through ROTC channels in satisfaction of the ROTC contractual obligation.  He stated that, in addition, the applicant agreed to the terms of the ROTC 

contract and accepted $11,196.00 of scholarship benefits.  The Deputy Chief of Staff, G1, recommended that the applicant be required to repay the scholarship benefits in accordance with his ROTC contract.

11.  A copy of the advisory opinion was forwarded to the applicant on 18 November 2008.  He responded on 11 December 2008 stating that it is unfortunate that the Cadet Command did not rule in his favor; however, the debt places an extreme load on the burden already upon him and his family.  He stated that he is also exploring his options for entering active duty service full time.  The applicant offered his appreciation for the review of his case.

12.  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 unserved portion of active duty bears to the total period of active duty such person agreed to serve.

13.  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.  The applicant contends that his ROTC debt should be forgiven and/or removed from his record.

2.  His contentions have been noted.  However, the applicant has not contended that he was unaware of the conditions of his contract and the evidence of record clearly shows that he understood the conditions of his ROTC contract.


3.  The statements made in the advisory opinion by the Deputy Chief of Staff, G1, have also been noted.  However, the applicant’s records contain a copy of his election option and enlisting in the ARARNG was not an authorized option to satisfy his debt to the government.  

4.  It is acknowledged that the advisory opinion indicated the applicant was not offered the active duty option.  However, had he 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 National Guard in the pay grade of E-3 and received a cash enlistment bonus of $20,000.00.

5.  Although the Board has granted relief in cases where Soldiers enlist in the Regular Army for a period equal to or greater than they would have been required to serve if involuntarily ordered to active duty, all of those cases involved full-time active duty in the Regular Army for the entire enlistment and each case was considered on its individual merits.  Even in those cases, however, the prospect of negating the ROTC debt (such as the applicant's $11,196.00 debt) for an education received from the Army without becoming an officer, plus being allowed to receive an enlistment bonus (such as the $20,000 bonus the applicant received) one ordinarily would not ordinarily have received, would be considered a windfall.  While the Board has no jurisdiction to stop any enlistment bonus in a particular case, any such bonus would be a legitimate factor to consider in granting or denying equitable relief regarding the ROTC debt.

6.  While the applicant’s service in the ARARNG is not by any means to be construed as negative, his enlistment in the Army National Guard (for a $20,000 bonus) simply does not meet the regulatory requirements of active duty service required to satisfy the terms of his contract.

7.  In view of the foregoing, there is no basis for granting the applicant’s request.

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.



      _________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)                                         AR20080013309



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ABCMR Record of Proceedings (cont)                                         AR20080013309



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