IN THE CASE OF:	  

		BOARD DATE:	       16 July 2009

		DOCKET NUMBER:  AR20080018890 


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 $4,400.00 be cancelled or remitted.

2.  The applicant states that he enrolled in the ROTC program on a 4-year scholarship and that he began college in August 2002.  He states that he completed 2 years of college and that he decided to disenroll from college in May 2004 acquiring a debt of approximately $4,400.00.  He states that at the time that he terminated his contract he was given the option of enlisting in the Army or repaying the cost of his tuition and he elected the payment option.  He states that since the time of his election, he has continued with his education with the help of some student loans that he is currently repaying.  He states that he has also held a few jobs for periods of time and that he has been making payments on his loan as best as he could.  He states that out of a personal sense of duty and country, and the President’s call for more troops, he enlisted in the Army on 11 January 2006 and one day, while talking to a Defense Finance and Accounting Service (DFAS) representative, he was told that he could apply for debt forgiveness.  He states that he has just returned from a 15-month deployment to Iraq and that he is trying to save as much as he can so he can start his family life well.  

3.  The applicant states that his current debt is $2,219.85 and that he understands that his status upon enlistment and any bonus he may have received for enlisting would be relevant to the decision made in his case.  He 



states that he did not receive any advanced rank for his college education and that he did not receive any enlistment bonus at all.  He states that he entered the service in the pay grade of E-2 for being an eagle scout and that he could have entered in the pay grade of E-3 for his college education hours; however, he did not submit a transcript to request that status.  He concludes by stating that he believes he has earned the right to make a request for the remainder of his debt to the Army for disenrollment from the ROTC program to be forgiven.

4.  The applicant provides, his DD Form 214 (Certificate of Release or Discharge from Active Duty); a Pay Adjustment Authorization; a notification of scholarship recoupment of debt dated 22 November 2004; his Army Senior ROTC Scholarship Cadet Contract; a notification of his disenrollment from the ROTC program dated 22 November 2004; an Addendum to Part I of his Scholarship Contractual Agreement; a copy of his United States Army Advanced Education Financial Assistance Record; his notification of initiation of disenrollment from the ROTC dated 30 June 2004; his acknowledgement of his disenrollment from the ROTC program dated 5 July 2004; his notification of disenrollment from the ROTC program dated 6 October 2004; printouts of his pay vouchers and contract invoices; his Enlistment Contract dated 19 October 2005; his Record of Military Processing – Armed Forces of the United States; and his Statement for Enlistment dated 19 October 2005.

CONSIDERATION OF EVIDENCE:

1.  On 30 September 2002, the applicant entered into a 4-year ROTC Scholarship Contract (DA Form 597-3) at the University of Texas-Pan American 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.  At the time the applicant entered into the ROTC contract, he further acknowledged his understanding 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 designee could order him to active duty as an enlisted Soldier; or in lieu of being ordered to active duty, he could be required to repay the financial assistance he received through the ROTC program, plus interest.

3.  Paragraph 5c of the applicant’s DA Form 597-3 states that he understood and agreed that if he voluntarily or because of misconduct failed to begin or failed to complete any period of active duty that he may have incurred under the contract, he would be required to reimburse the United States an amount of money, plus interest, that bore the same ratio to the total cost of the financial assistance provided him as the unserved portion of such duty bore to the total period of such duty he was obligated to serve.

4.  Paragraph 6 of the applicant’s DA Form 597-3 states that he were called to active duty for breach of contract he would be ordered to active duty for 2 years if he were in Military Science (MS) II.

5.  On 30 June 2004, while he was in MSII, the applicant was notified by the University of Texas-Pan American, Professor of Military Science, of his intent to initiate his disenrollment from the ROTC program due to the applicant’s failure to maintain a minimum semester grade point average of 2.0 on a 4.0 scale.  The applicant was informed that he would be placed on leave without pay pending disenrollment.  He was further informed that he may request a hearing by a board of officers or that he may waive his right to a hearing.  The applicant was informed that he may consult with any reasonably available military officer or civilian counsel at no expense to the Government; that he may submit a written statement in his own behalf; and that he must sign and returned the notification with 10 working days.

6.  The applicant acknowledged receipt of the notification on 5 July 2004.  In the process of acknowledging receipt of the notification, he elected to waive his right to a hearing by a board of officers and to decline expeditious call to active duty.

7.  On 6 October 2004, the applicant was notified of his disenrollment from the United States Army ROTC program by the Commanding General of the United States Army Cadet Command.  The Commanding General cited the applicant’s failure to maintain a minimum semester academic grade point average of 2.0 on a 4.0 scale as a basis for his disenrollment.  In the notification, the applicant was informed that when the ROTC scholarship contract was 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 told that “up-to-date” the amount of monies spent in support of his education assistance was $3,965.23 and that he could elect to pay the total amount owed in one lump sum or to initiate a repayment plan.



8.  On 28 October 2004, the applicant completed an Addendum to Part I, Scholarship Contractual Agreement, in which he promised to repay the total amount owed of $3,965.23 in monthly installments, plus interest on the amount owed, as specified in his scholarship contract.

9.  On 22 November 2004, the Chief, Cadet Actions and Standards Division, United States Army Cadet Command, requested the applicant's case be processed for debt establishment by DFAS.

10.  On 12 January 2006, the applicant enlisted in the Regular Army for 2 years, in the pay grade of E-2, under the United States Army Incentive Enlistment Program (US Army College Fund) with payment in the amount of $35,640.00 for training as a health care specialist.  He went on to successfully complete his training as a health care specialist.

11.  On 11 January 2009, the applicant was released from active duty (REFRAD) under the provisions of Army Regulation 635-200, chapter 4, upon completion of his required active service and he was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) to complete his Reserve obligation.  The DD Form 214 that he was furnished at the time of his REFRAD shows that he was retained in the service 367 days for the convenience of the Government and that he served in Iraq from 8 May 2007 through 7 October 2008.

12.  On 13 January 2009, the applicant submitted a voluntary request for transfer to a USAR Troop Program Unit (TPU) and on 4 February 2009 he was transferred to a unit vacancy, for 3 years, with eligibility for an affiliation bonus in the amount of $10,000.00, as a prior service applicant in a USAR Selected Reserve unit.  He initialed that he understood that he would be paid an affiliation bonus in installments in accordance with the Selected Reserve Incentive Program List.

13.  On 10 March 2009, an advisory opinion was obtained from Headquarters, United States Army Cadet Command, Deputy Chief of Staff, G1, who opined, 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; that the applicant was offered these options on 6 October 2004 after being disenrolled from the ROTC program for breach of contract; that the applicant was aware of the option to enter active duty; that he chose to repay in monthly installments; and that a debt was established with DFAS on 22 November 2004.  The Deputy Chief of Staff, G1, further opined that 


the applicant's “current active duty service commitment” is not an authorized remedy for debt repayment under the terms of the ROTC contract; that he received $3,965.23 in scholarship benefits; and that he should be required to repay the scholarship benefits in accordance with his ROTC contract.  It should be noted that the applicant was not in an active status at the time that the advisory opinion was prepared.

14.  A copy of the advisory opinion was forwarded to the applicant on 20 March 2009 for his information and/or possible rebuttal.  

15.  On 19 May 2009, the applicant submitted a rebuttal to the advisory opinion reiterating what he initially stated in his application and adding that his military experience has helped him to mature and has inspired him to remain in the medical field.  He states that instead of entering the Individual Ready Reserve, he chose to enlist for 3 years with the 0228th Combat Support Hospital, which is an Army Reserve Unit.  He states that since being in his Reserve unit, he has volunteered for and deployed on a 3-week humanitarian mission to Honduras; that he is scheduled to attend the Warrior Leadership Course this summer; and that he is not in the Reserve to just ride out his obligation to the Army.  

16.  In his rebuttal to the advisory opinion, the applicant states that he intends to appear before the Sergeant’s Promotion Board this September and to continue his extensive involvement of sharing real-world lessons learned in improving the skill and training of the medics in his unit.  He states that he also plans to return to college in the fall and pursue a degree in pre-medicine as a prerequisite to seeking a Masters Degree as a Physician’s Assistant.  The applicant concluded his rebuttal by stating that he is not seeking to diminish the importance or reality of the debt that he owes.  He states that he is appealing to the Board to accept his 3 years of active duty war time service to the Army and his country and his ongoing contribution to our nation’s defense in the Army Reserve as payment in full of his financial obligation.

17.  As part of his rebuttal, the applicant submits a memorandum of recommendation dated 10 May 2009, from his former platoon sergeant; his Certificate of Acknowledgement of United States Army Reserve Service Requirements and Methods of Fulfillment; his Written Agreement – Enlisted Affiliation Bonus Addendum; a copy of his DD Form 214; a Personnel Action, initiating a voluntary request for a transfer; an Army Reserve Deployment Stabilization Statement; and a copy of Orders Number 038262 dated 2 April 2009, ordering him to annual training in Honduras for 22 days, effective 4 April 2009.

18.  The contract invoice that the applicant submitted is dated 27 November 2006 and it shows that as a result of his ROTC program debt he owes a balance of $2,491.82.

19.  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 approximately $4,400.00 should be cancelled or remitted.

2.  Although he enlisted in the RA under the United States Army Incentive Enlistment Program (US Army College Fund) this incentive is not an enlistment bonus and it should not be considered as such.

3.  In this case, the applicant’s enlistment in the RA served the same purpose as would have been served had he been ordered to active duty through ROTC channels.  His records show that he enlisted in the RA for 2 years on 12 January 2006 and his period of enlistment was extended for an additional 1-year period.  He was in MS II when he was disenrolled from the ROTC program and he would have incurred only a 2-year active duty service obligation had he been ordered to active duty through ROTC channels.

4.  The applicant has already repaid a portion of his ROTC scholarship debt.  Because these funds were collected to satisfy a financial obligation that does not exist under the contract as it is being amended, that portion must be returned to the applicant.

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



BOARD VOTE:

__x______  ___x____  __x____  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 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 his ROTC scholarship debt under the original terms of the ROTC contract by successfully completing 2 years of enlisted service in the RA.

2.  The total amount of the ROTC scholarship debt that will be satisfied by the above correction.

3.  The Board further recommends that the applicant be reimbursed that portion of the debt that has already been paid by the applicant.




      _______ _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)                                         AR20080018890



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ABCMR Record of Proceedings (cont)                                         AR20080018890



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