IN THE CASE OF:	  

		BOARD DATE:	        21 MAY 2009

		DOCKET NUMBER:  AR20080017620 


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 in the amount of $8,500.00 be cancelled or remitted and that he be refunded all monies that he has already paid. 

2.  The applicant states that he served on active duty for 3 years, which was the service obligation that needed to be satisfied for the relief of his ROTC debt and the refund of money that he has already paid.

3.  The applicant provides in support of his application a copy of his Defense Finance and Accounting Service (DFAS) Account Statement and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  On 16 September 2003, the applicant entered into a 2-year ROTC Scholarship Contract (DA Form 597-3) at Hofstra University in which he agreed to enroll in the necessary courses and successfully complete, within the prescribed time, the requirements for the degree in the academic major stated in his contract.  He also agreed to remain enrolled in and to successfully complete the ROTC Program, including ROTC Advanced Camp and all training as prescribed by the Secretary of the Army or his/her designee, as a prerequisite for commissioning, in return for a payment of tuition and educational fees up to an annual amount of $17,000.00.

2.  The applicant also acknowledged that he understood that he was required to maintain his Army physical fitness and weight in accordance with Army Regulations, that he was required to meet and maintain the Army Physical Fitness Test (APFT) standard and the screening weight or body fat percentage required by the Army Weight Control Program as required of active duty Soldiers each year, that he was required to maintain a cumulative grade point average of 2.0 and that he must maintain a cumulative grade point average of 3.0 in all ROTC courses.

3.  He further acknowledged that he understood that if he failed to complete the educational requirements of his agreement or was disenrolled from the ROTC Program, the Secretary of the Army or his or her designee could order him to active duty as an enlisted Soldier for a period of not more than 4 years or, in lieu of being ordered to active duty, may require him to reimburse the United States through repayment of an amount of money, plus interest, for the financial assistance received through the ROTC Program.

4.  On 30 December 2003, the applicant was notified by the United States Army Cadet Command, Professor of Military Science (PMS) that action to disenroll him from the ROTC program had been initiated.  The PMS cited failure to meet Army physical fitness and Army height/weight standards 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 directions 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.

5.  On 30 January 2003, 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.

6.  On 12 May 2004, the applicant was notified by the Commander, United States Army Cadet Command, that he was being disenrolled from the ROTC Program due to his failure to meet Army physical fitness and Army height/weight standards.  In the notification, the applicant was informed that when the ROTC scholarship contract is breached, any obligation to the Army must be satisfied through order to active duty in an enlisted status or by repaying the cost of advanced education assistance provided by the Army.  He was also advised that the amount to be recouped was $8,500.00.

7.  On 1 July 2004, the applicant enlisted in the United States Army Reserve (USAR) under the Delayed Entry Program, for 8 years, in the pay grade of E-3.  

8.  On 17 May 2005, the applicant acknowledged receipt of the notification from the Commander, United States Army Cadet Command regarding his ROTC Scholarship Program disenrollment action.  He also made an election to repay the total amount owed of $8,500.00.

9.  The applicant enlisted in the Regular Army (RA) on 17 June 2005 for a period of 3 years and 16 weeks, in the pay grade of E-4 and a $6,000.00 cash enlistment bonus.  He successfully completed his training as an infantryman.  He was transferred to Iraq on 31 October 2006 and he returned to the Continental United States on 19 January 2008.  On 6 October 2008, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200, chapter 4, upon completion of his required active service.  He was transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.  He had completed 3 years, 3 months and 20 days of net active service.

10.  During the processing of this case an advisory opinion was obtained on 22 December 2008 from the Headquarters, Untied 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 these options on 12 May 2004 after being disenrolled from the ROTC Program for breach of contract.  He stated that the applicant 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 on 1 June 2004.  The Deputy Chief of Staff, G1 stated that based on his application the applicant served on active duty in the RA for a total of 3 years and 2 months and that his active duty service commitment was not the result of being ordered to active duty through ROTC channels in satisfaction of his ROTC contractual obligation.  The Deputy Chief of Staff, G1 stated that the applicant’s enlisted service in the RA is not an authorized remedy for debt repayment under the terms of the ROTC contract and that the applicant received 


a $6,000.00 enlistment bonus in addition to the $8,500.00 in scholarship benefits he received as a scholarship cadet.  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 5 February 2009, for his information and/or possible rebuttal.  To date, there has been no response received from the applicant regarding the advisory opinion.

12.  A review of the available records does not show the amount of payments, if any, that the applicant has made regarding his ROTC debt.

13.  Title 10, United States 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 pursuant to clause, such person will reimburse the United States in an amount that bears to the total period of active duty such person agreed to serve and to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his ROTC debt in the amount of $8,500.00 should be cancelled or remitted and that he should be refunded all monies that he has already paid.

2.  His contentions have been noted.  However, while the applicant has not contended that he was unaware of the conditions of his contract, the evidence of record clearly shows that he understood the conditions of his ROTC contract, where he could elect to repay his scholarship debt in lieu of being involuntarily ordered to active duty in an enlisted status.

3.  Nevertheless, although not provided for in his DA Form 597-3, the applicant's 17 June 2005 enlistment in the RA served the same purpose as would have been served had he been ordered to active duty in the Army.  The Army received the benefits of his service on active duty for more than 3 years.  As a matter of equity it would be appropriate to consider his enlistment in the RA to have met the active duty obligation required by his ROTC scholarship contract.

4.  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 pay grade E-1, and not allowed any enlistment options.  The applicant enlisted in the RA in the pay grade of E-4 and received a cash enlistment bonus of $6,000.00.

5.  The prospect of negating the applicant's $8,500.00 debt for a free education he received from the Army without becoming an officer, plus allowing him to receive any enlistment bonus or other financial incentive he ordinarily would not have received, would be a windfall.  While the Board has no jurisdiction to stop any enlistment bonus in this case, any such bonus would be a legitimate factor to consider in granting or denying equitable relief regarding the ROTC debt.

6.  Accordingly, the amount of his enlistment bonus ($6,000.00) should not be forgiven from the applicant's debt. 

7.  Additionally, although the applicant contends that he should be reimbursed for the funds that he has already paid towards his debt based on his active service in the RA, the applicant's contract with the Army stipulated that his active service was to begin immediately after his disenrollment if he were to choose that option. The applicant clearly did not choose to enter active duty in the Army immediately and did not enlist into the RA until 1 year later.  Inasmuch as he waited until he was ready to enlist, he should not be reimbursed for any funds that he may have paid at the time to satisfy his debt.

8.  In view of the foregoing, it would now be in the interest of justice to correct the applicant’s records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X______  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 satisfied a portion of his ROTC scholarship debt under the original terms of the ROTC contract by successfully completing 3 years of enlisted service in the RA.

2.  The portion of the ROTC debt that will be satisfied by the above correction will be the total amount of the ROTC debt, minus the $6,000.00 he received as a cash enlistment bonus. 

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to waiving the entire ROTC indebtedness amount and reimbursing him for any monies he may have already paid to satisfy his ROTC debt.





      _______ _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)                                         AR20080017620



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ABCMR Record of Proceedings (cont)                                         AR20080017620



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