IN THE CASE OF:	  

		BOARD DATE:	        04 DECEMBER 2008

		DOCKET NUMBER:  AR20080018067 


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 the cancellation/remission of his Reserve Officers’ Training Corps (ROTC) debt in the amount of $17,524.50, which he incurred when he disenrolled as an Army ROTC cadet.

2.  The applicant states, in effect, that he was serving as an Army ROTC Scholarship Cadet at Virginia Military Institute (VMI) when he realized that his real calling was to serve in the Marine Corps.  He goes on to state that he withdrew from the Army ROTC program in order to accept a Navy ROTC contract to serve in the Marine Corps.  He also states that it is still his intent to serve his country; however, he desires to do so in the Marine Corps and he completed the Marine Corps Officer Candidate School in the summer of 2008.  He continues by stating that he has been making payments towards his debt since being notified; however, he believes that he satisfies the intent of the ROTC Program by serving as a Marine Corps officer and should not have to suffer the hardships of repaying the scholarship debt that will ultimately be repaid when he is allowed to serve his country as a commissioned officer in the Marine Corps.  He also contends that service to one's country should satisfy the assistance he has received, regardless of the service in which he performs his duty.  

3.  The applicant provides a copy of his Army and Navy ROTC contracts, copies of two Department of Defense Memorandums regarding the "Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, a copy of his Army ROTC Financial Assistance Record, a copy of his Army ROTC Disenrollment and elections, and a Pay Adjustment Authorization directing the Defense Finance and Accounting Service (DFAS) to establish a debt in the amount of $17,524.50.

CONSIDERATION OF EVIDENCE:

1.  On 10 January 2006, while attending VMI, the applicant entered into a 3 1/2 year Army ROTC Scholarship in which the applicant agreed that he understood that the sole purpose of the Army ROTC scholarship program is to produce officers for the United States Army, that entry into the program is a serious commitment, and that this commitment must be made with the resolve to attain a commission.  If there were any doubts about the cadet's ability or determination to fulfill the terms of the contract, then it should not be executed.  In consideration of the mutual benefits, which will accrue to the parties hereto by reason of the cadet's participation in the Army ROTC and later service in the United States Army, he agreed (in pertinent part) that he would incur an active duty and/or reimbursement obligation after the first day of his MS (Military Science) II year (sophomore year) if he was a three, four or five year scholarship recipient. 

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 6, 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 3 1/2  academic years, tuition and educational fees up to an annual amount of $30,000.00.

4.  On 15 January 2008, officials at VMI initiated action to disenroll the applicant from the Army ROTC Scholarship Program  due to "His withdrawal from the Army ROTC Program to accept a scholarship in the Marine Corps ROTC Program."  The applicant was advised at that time that he may be called to active duty in the enlisted pay grade of E-1 or be required to repay scholarship benefits in the amount of $17,524.50.  The applicant was also advised that he had a right to a hearing in his case.

5.  The applicant elected to waive his right to a hearing and declined an expeditious call to active duty.



6.  On 13 March 2008, a memorandum was dispatched to the applicant from the Army Cadet Command officially notifying the applicant of his disenrollment and providing him an election option statement.  On 28 March 2008, the applicant elected to repay the total amount owed in monthly installments, plus interest owed.  Information obtained from the DFAS indicates that the applicant has entered into a repayment agreement and is making monthly installments on his debt that is being charged at a one percent interest rate.  His balance to date (November 2008) is $15,618.57. 

7.  On 14 March 2008, the applicant entered into a 1 1/2 year Navy ROTC Contract for enlistment into the Marine Corps Reserve.  He agreed to serve in the Naval or Marine Corps Reserve for a period of 8 years.  He also agreed that if he did not complete the Naval ROTC Program or if he completed the program, but declined to accept a commission when offered, he may be ordered to active duty by the Secretary of the Navy to serve in an enlisted status for 4 years or more, or for such lesser period as the Secretary may prescribe, or reimburse the government for any advanced educational assistance received under the agreement. 

8.  The applicant is a member of the 2009 VMI graduating class that is expected to graduate in May 2009.

9.  Title 10, United States Code (USC), 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.

10.  Title 10, USC Code, Section 541, provides, in pertinent part, that notwithstanding any other provision of law, each cadet at the United States Military Academy or the United States Air Force Academy, and each midshipman at the United States Naval Academy, is entitled, before graduating from that Academy, to state his or her preference for appointment, upon graduation, as a commissioned officer in either the Army, Navy, Air Force or Marine Corps.  


However, not more than 12 1/2 percent of any graduating class at an Academy may be appointed in armed forces not under the jurisdiction of the military department administering that Academy.   

11.  Founded in 1839, the Virginia Military Institute is a 4-year undergraduate college awarding B.A. and B.S. degrees.  Virginia Military Institute is the nation's first state military college and one of six senior military colleges in the United States.  While all VMI cadets must participate in the ROTC, they are not required to serve in the military upon graduation, unless they accept a scholarship from one of the selected services.  All of the military services are represented at VMI and cadets must declare a service during their first year at VMI. 

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 Army in the rank of E-1.

2.  He clearly declined the involuntary call to active duty and elected to make payments to the DFAS in accordance with the conditions of his contract.  However, it appears that he was led to believe at the time that as long as he continued to serve in the ROTC, that service was service, regardless of which Armed service one performs in and that once he graduated from the VMI and accepted his commission, his debt would be satisfied. 

3.  It is noted that when the applicant changed from the Army ROTC to the Marine Corps ROTC, he went from a 3 1/2 year contract that guaranteed the Army active duty service or repayment of the financial assistance, to a 1 1/2 year contract with the Navy, with no active duty obligation.  Accordingly, if the applicant's (Army ROTC) debt was forgiven at this time, the applicant would only be accountable for any debt he incurs from the Navy ROTC contract and should he for some reason or another not complete his Marine Corps ROTC Program or not be commissioned as a Marine Corps officer, only 1 1/2 years of the contract/financial assistance would be retrievable by the Department of Defense (DOD).

4.  It is also noted that the applicant's transition from the Army to Marine Corps ROTC was essentially seamless and the applicant has continued to participate in the ROTC, albeit in a different service, at the same institution.  In doing so, he 


continues to demonstrate his commitment to honor his obligations and to serve his country as a commissioned officer in the Marine Corps, just the same as he would have had he completed the Army ROTC Program and was similarly commissioned and ordered to active duty.

5.  Notwithstanding the fact that the applicant has agreed to repay his debt and has continued to participate in an ROTC program of another service, it would be premature and unfair to forgive his debt prior to his accepting a commission and being ordered to active duty.  The main purpose of the advance education assistance programs is for the Armed Services to obtain active duty service obligations (ADSOs) from qualified personnel in exchange for educational assistance.  The applicant entered into such an obligation with the Army and until such time as he accepts a commission in the Marine Corps and is ordered to active duty for a period of at least 3 years, which is what the applicant would have had to serve in the Army, his debt remains valid. 

6.  However, the importance of an individual's service to his or her country, regardless of which Armed service involved is recognized, and as such, in the interest of justice and as a matter of equity, the collection of his debt should be suspended until 1 October 2009 and as an exception to policy, his debt should be forgiven, provided he accepts a commission upon graduation from VMI in May 2009 and is ordered to active duty for a period of at least 3 years no later than     1 October 2009.  Once he does so, the spirit of 10 USC 2005 will have been satisfied. 

7.  It should be noted that the applicant had to declare a service in his first year at VMI and it is not unreasonable to expect him to change his mind after having been exposed to the different services at VMI after 2 years and being able to form an "Informed" opinion of the services instead of simply having to choose one when he first entered VMI, much the same as those who attend the Service Academies and later decide they want to change services after graduation and are able to do so without paying back their tuition cost because they have an active duty service obligation.   

8.  The sincerity of the applicant's contention that he desires to serve his country in the Marine Corps is not in doubt.  However, it is in the interest of all concerned who pay for the financial assistance the applicant has received, that they be assured they receive the maximum return on their investment.  Accordingly, until the applicant accepts a commission in the Armed Forces of the United States and enters on active duty, his obligation to the taxpayer has not been satisfied.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  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:

     a.  amending his Army ROTC scholarship contract to show that he would satisfy the service obligation under the original terms of that ROTC contract as a commissioned officer on active duty with the U. S. Marine Corps;

     b.  suspending collection of his Army ROTC debt until 1 October 2009, at which time the applicant is required to provide the DFAS with documents (to include a copy of this Record of Proceedings) that show he accepted a commission and entered active duty in any of the United States Armed Forces for a period of at least 3 years; and

     c.  provided that he accepts a commission and enters active duty in any of the United States Armed Forces for a period of at least 3 years, no later than 1 October 2009, his debt will be cancelled and all monies collected to date will be returned to him as he would have paid a financial obligation that had not yet come due and payable.  

2.  If the applicant fails to complete the period of service obligated as a result of his amended Army ROTC scholarship contract and in accordance with the corrections made in paragraphs 1b and 1c above, either voluntarily or because of misconduct, his Army ROTC debt would then be required to be recouped on a pro-rated basis.

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 cancellation/remission of his Army ROTC debt until such time as the applicant provides the DFAS with 


documents that comply with the provisions of paragraph 1 above.  Failure to do so by 1 October 2009 will result in resumption of the collection of the debt by the DFAS.




      _______ _ 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)                                         AR20080018067





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ABCMR Record of Proceedings (cont)                                         AR20080018067



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