IN THE CASE OF:	   

		BOARD DATE:	        28 April 2009

		DOCKET NUMBER:  AR20080019045 


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, in effect, that his Reserve Officers’ Training Corps (ROTC) debt be waived.

2.  The applicant states, in effect, that he completed the ROTC program but was not commissioned because he could not meet graduation requirements within the given time period and that he was required to repay his ROTC scholarship.  He indicates that since that time he enlisted in the Army National Guard (ARNG), worked as an Active Guard Reserve (AGR) Soldier, attended Officer Candidate School, and was commissioned as an Aviation Officer.  

3.  The applicant provides a National Guard Bureau (NGB) 337 (Oaths of Office); a DA Form 71 (Oath of Office); an NGB Form 89 (Proceedings of a Federal Recognition Examining Board); active duty orders; DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 3 August 2007 and 2 May 2006; an account statement from the Defense Finance and Accounting Service (DFAS); a memorandum, subject: Cadet Action Request for Disenrollment – Cadet [applicant's name and social security number], dated
17 September 2003; a DA Form 597-3 (Army Senior ROTC Scholarship Cadet  Contract; a DD Form 4 (Enlistment/Reenlistment Document); a Cadet Record Brief – Active; and a DA Form 5315-R (U.S. Army Advanced Education Financial Assistance Record) in support of his application.




CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is currently serving in the ARNG in the rank of second lieutenant.

3.  On 3 September 1998, the applicant enlisted in the U.S. Army Reserve (USAR) ROTC Control Group.  Paragraph 7 of the applicant’s DA Form 597-3 states that if the cadet were disenrolled from the ROTC program for any reason, the Secretary of the Army could order the cadet to active duty as an enlisted Soldier for a period of not more than four years or, in lieu of being ordered to active duty, could order the cadet to reimburse the United States through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the United States for his advanced education from the commencement of this contractual agreement to the date of his disenrollment or refusal to accept a commission.  

4.  Paragraph 8 of the applicant’s DA Form 597-3 states that if he were called to active duty for breach of contract under the provisions of paragraph 7, he would be ordered to active duty for 2 years if the breach occurred during Military Science (MS) II; for 3 years if the breach occurred during MS III, or for 4 years if the breach occurred during MS IV.

5.  Paragraph 12 of the applicant’s DA Form 597-3 stated that the cadet 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 is equal to or 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.

6.  On 3 July 2003, the applicant was disenrolled from the ROTC program based on his failure to maintain a minimum semester or quarter cumulative academic grade point average of 2.0 or higher on a 4.0 scale. 

7.  The applicant's DA Form 5315-R shows he was in MS 4 when he was disenrolled from the ROTC program.  This record also shows that he received $10,773.00 in scholarship benefits.

8.  The applicant enlisted in the ARNG in pay grade E-3 on 9 August 2005 for a period of 8 years.  He was ordered to active duty for training on 5 October 2005 and was released from active duty on 2 May 2006.  He was ordered to active duty on 15 September 2006 in an AGR status and was released from active duty on 3 August 2007.  On 3 August 2007, he was honorably discharged from the ARNG.  

9.  On 4 August 2007, the applicant was appointed a second lieutenant in the ARNG.  A Written Agreement Officer Accession Bonus Addendum, dated
4 August 2007, stated that upon successful completion of the Officer Basic Course the applicant would receive a $10,000.00 bonus.  

10.  The applicant provided a DFAS account statement, dated 19 August 2008, which shows he owes $6,183.45.

11.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Cadet Command.  The opinion pointed out that the terms of the scholarship contract required 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 applicant was disenrolled from the ROTC program for breach of contract and a debt was established.  The opinion stated that his service in the New York Army National Guard (NYARNG) is not an authorized remedy for debt repayment under the terms of the ROTC contract.  He received $10,773.00 in scholarship benefits as a scholarship cadet and he should be required to repay the scholarship benefits in accordance with his ROTC contract.

12.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 19 February 2009, he responded.  In summary, he stated that after his disenrollment the Battalion Commander made the decision that he would repay the scholarship rather than being ordered to active duty, that he pled his case, that he appealed, and that he was not allowed to repay the scholarship debt through active duty service.  He indicates that his desire to serve his country did not change after that experience which is the reason he enlisted in 

the ARNG.  He contends that although he did not go through ROTC channels to repay his obligation, he has been no less an asset to the Army's mission than any other Soldier in the ARNG or on active duty.  He claims that an assumption is being made that he commissioned merely to have his debt relieved by going to a weekend drill once a month.  He states that he has given 100 percent to the Army and will continue to do so beyond the six-year commitment that is required.  He also states that upon completion of his training he will be mobilizing and deploying overseas.  He goes on to state that he enlisted in the NYARNG as a health care specialist in October 2005, and that since that time he has been working full-time for the National Guard as a health care specialist, aviation operations specialist, and a commissioned Aviation Officer.  He states that he commissioned in August 2007 through the accelerated Officer Candidate School program, that after he was commissioned he was required to resign from his enlisted AGR position but continued to work full-time for the ARNG on a temporary basis until he could attend the Officer Basic Course and flight school.   

13.  Army Regulation 135-210 (Order to Active Duty as Individuals for Other Than a Presidential Selected Reserve Call-up, Partial, or Full Mobilization) prescribes policies and procedures for ordering individual Soldiers of the ARNG of the United States and the USAR to active duty.  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's contention that since his disenrollment from the ROTC program he enlisted in the ARNG, worked as an AGR Soldier, attended Officer Candidate School, and was commissioned as an Aviation Officer was noted.  He enlisted in the ARNG (not on active duty) on 9 August 2005 in the grade of E-3 and he received an officer accession bonus of $10,000.00.  However, had the applicant chosen active duty or been involuntarily ordered to active duty as a result of his disenrollment, he would have owed the Army 4 years of service, been assigned against the needs of the Army in pay grade E-1, and not allowed any enlistment options.

2.  The prospect of negating the applicant’s $10,773.00 debt for a free education he received from the Army without becoming an officer through the ROTC program, plus allowing him to receive any bonus he ordinarily would not have received, would be a windfall.  While the Board has no jurisdiction to stop any bonus in this case, any such bonus would be a legitimate factor to consider in denying equitable relief regarding the ROTC debt.  Therefore, 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.



      _________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)                                         AR20080019045



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ABCMR Record of Proceedings (cont)                                         AR20080019045



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