IN THE CASE OF:	

		BOARD DATE:	4 August 2009  

		DOCKET NUMBER:  AR20080015969 


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) Scholarship debt be cancelled or reduced.

2.  The applicant states that he enlisted in the United States Army for a 6-year obligation in military occupational specialty (MOS) 13B on 30 July 2008.  He goes on to state that he was informed by the Army Cadet Command that his entry onto active duty would not preclude him from repaying his educational debt of $11,198.62; however, he was advised by Defense Finance and Accounting Service (DFAS) personnel that he should apply to this Board for termination of the debt.  He also states that he withdrew from college in order to voluntarily enlist and he was on scholarship for three semesters and disenrolled prior to his junior year.  He is currently serving in the pay grade of E-3 and the debt repayment of $320.02 a month for a total of $11,198.62 is a financial hardship.

3.  The applicant provides a copy of his educational program account showing the ROTC Scholarship benefits paid, a copy of the debt notification from DFAS, a copy of his ROTC Scholarship contract, and his disenrollment documents and memorandums for record from himself and his mother.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (ROTC Control Group) on 28 October 2006.  His DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) 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 unserved 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 that if he were called to active duty for breach of contract under the provisions of paragraph 8, he 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 4 academic years of tuition and educational fees.

4.  On 27 March 2008, the Professor of Military Science at the university the applicant was attending notified the applicant that he was initiating action to disenroll him from the ROTC Program due to a variety of specified reasons, including withdrawing from the institution.  The applicant was advised of his rights and the fact that he could be called to active duty to satisfy his $11,198.62 debt.  On 2 April 2008, the applicant signed an election to waive his right to a hearing and declined a call to active duty.

5.  The applicant was disenrolled from the ROTC Program for breach of contract and on 2 July 2008 he was notified of his options to satisfy his debt.  On 7 July 2008, he elected to repay the debt of $11,198.62 instead of being ordered to active duty.

6.  On 30 July 2008, the applicant enlisted in the Regular Army (RA) in the pay grade of E-3 for a period of 6 years and 17 weeks, training as a cannon crewman, a $30,000 enlistment bonus, and several other incentives.  He was assigned to Fort Sill, Oklahoma, to undergo his one-station unit training.

7.  On 26 September 2008, DFAS notified the applicant of his debt and his options for repayment of the debt.

8.  In the processing of this case, an advisory opinion was obtained from the United States Army Cadet Command.  That command opined that the applicant was offered the option of repaying his ROTC scholarship debt or agreeing to be ordered to active duty through ROTC channels based on the needs of the Army.  He opted to repay his ROTC Scholarship debt.  That office also opined that his voluntary enlisted service in the RA is not an authorized remedy for debt repayment under the terms of the ROTC contract and recommended that his voluntary enlistment not reduce the amount he is required to reimburse the United States for his advanced educational assistance.

9.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal and he responded to the effect that he desired the Board to disregard the advisory opinion and reject the Cadet Command's recommendation.  He went on to state that 1 and 2-year scholarships are awarded to students every year with no obligation for repayment and he desires the same consideration.  He also states that he did not choose to be forced onto active duty as a means of meeting his obligation but chose to voluntarily enlist for a period of 6 years and believes that his serving on active duty is repayment enough.

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 he was unaware of the conditions of his contract, the evidence of record clearly shows that the applicant understood the conditions of his ROTC contract, whereas he could elect to repay his scholarship debt in lieu of being involuntarily ordered to active duty in the pay grade of E-1 for a period of 3 years in an MOS selected by the Army.

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

3.  However, the applicant was able to enlist in the RA in the pay grade of E-3, vice being ordered to active duty in the Army in the pay grade of E-1, for a variety of enlistment incentives which included a $30,000 enlistment bonus and his training of choice instead of being trained in an MOS selected to meet the needs of the Army.

4.  Had the applicant elected to be involuntarily ordered to active duty to satisfy his ROTC debt, he would have been ordered to active duty for a period of 3 years and training in a specialty designated to meet the needs of the Army and with no entitlement to any monetary incentives because the applicant had already received his monetary incentives through the educational assistance of the ROTC Program.

5.  Additionally, until such time as the 3 years were served, the debt would have remained a valid debt subject to recoupment for the unserved portion.

6.  The evidence of records clearly shows, and the applicant has offered no argument to the contrary, that he was afforded every benefit of his ROTC contract until such time as he defaulted on the terms of the contract.  He was afforded the opportunity to be ordered to active duty or to repay the debt.  He chose to repay the debt.

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

8.  The applicant's contention that the ROTC debt repayment is a financial hardship has been noted and appears on the surface to lack merit.  The applicant received a $30,000 enlistment bonus that could be used to repay his debt if he chooses.  However, to forgive his debt in light of the enlistment incentives he received would amount to an unfair windfall to the applicant for not honoring his contractual obligations.  While his service is appreciated, the fact that he chose to enlist for additional benefits rather than to honor his contractual obligations is not sufficient justification to forgive a valid debt to the government.

9.  It should also be noted that the applicant enlisted in the pay grade of E-3 vice the pay grade of E-1 which would have been the grade he would have entered in the Army to satisfy his ROTC obligations.  The pay differential per month between pay grade E-1 and E-3 at initial entry was $342.90 under the 2008 pay scale, which alone exceeds his monthly debt payment of $320.02.
10.  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)                                         AR20080015969



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ABCMR Record of Proceedings (cont)                                         AR20080015969



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