DOCKET NUMBER:  AR20090002754 


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 enlisted in the U.S. Navy on 27 July 2005 and has served continuously on active duty since that date.  He declined the expeditious call to active duty to avoid being automatically enlisted in the U.S. Army in order to switch services and enlist in the U.S. Navy.  He enlisted in the U.S. Navy to fulfill the enlisted active duty service obligation in accordance with Part A, paragraph 6, Part II of DA Form 597-3 (Agreement of Scholarship Cadet Contracting in the Senior ROTC Program).  The U.S. Navy was his preferred branch of service due to a long standing family history of service in that branch.  He contends that financial hardship prevented him from returning to school and his enlistment took place before the original projected graduation date of           10 December 2006, as stated in discussion and noted in the remarks of Section IV, ROTC Cadet Command Form 131-R (Cadet Action Request), dated 28 June 2004.  When he had completed two years of his obligated service, he received a bill from the Defense Finance and Accounting Service (DFAS) for payment.  His understanding was that the debt would be forgiven.  Upon investigation, he was instructed to complete an application for correction of military records and to indicate his progression for the completion of the obligated service.  He was told that as a prior Army ROTC cadet who was disenrolled and had joined another branch of service, his debt would be immediately suspended and reimbursed, and finally terminated upon the completion of obligated service.  His current active duty contact expires on 27 July 2009.  He is considering reenlistment.

3.  The applicant provides, in support of his application, copies of Section III, Cadet Command Form 131-R, dated 28 June and 7 July 2004; discharge Orders 303-1, dated 29 October 2004; a memorandum from the U.S. Army Cadet Command, Subject: Disenrollment from the ROTC Program, dated 25 October 2004 (with enclosures); and DFAS Account Statement, dated 28 April 2008.  

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving on active duty as a petty officer in the U.S. Navy.

2.  The applicant enlisted in the U.S. Army Reserve (USAR) for 8 years on
28 August 2002 in the rank of Cadet and assigned to the USAR Control Group (ROTC).  His DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), paragraph 5 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, or the cadet could be ordered to active duty for not more than four years.

3.  Paragraph 6 of the applicant's DA Form 597-3 states that if he is called to active duty for breach of contract under the provisions of paragraph 5, he would be ordered to active duty for a period of 2 years if occurring during Military Science II (MSII).

4.  On 14 May 2004, the applicant was placed on a leave of absence pending disenrollment from the ROTC program at the University of Tennessee-Knoxville because of his breach of contract due to academic failure and lack of achieving normal academic progression towards his degree.

5.  On 7 June 2004, during the applicant's MS II, the Professor of Military Science (PMS) and Leadership notified the applicant that he was initiating his disenrollment in the ROTC program.  On 21 June 2004, the applicant acknowledged this action.

6.  On the Cadet Command Form 131-R, dated 7 July 2004, the PMS recommended that the applicant be ordered to active duty as an enlisted Solder. 

7.  On 20 September 2004, the applicant was disenrolled from the ROTC program due to his unsatisfactory academic performance from the spring semester 2003 through the spring semester 2004.
8.  The applicant states that he enlisted in the U.S. Navy on 27 July 2005, he was on continuous active duty from that date, and he will have completed his obligation with the U.S. Navy on 27 July 2009.  Documentary evidence of his four years of service in the U.S. Navy is not available for review.

9.  The Chief, Claims Branch, Debt and claims Management, Defense Finance and Accounting (DFAS) states that DFAS records indicate that on 8 November 2006, the applicant received a U.S. Navy enlistment bonus in the amount of $4,000.00.

10.  On 28 April 2008, the DFAS notified the applicant that his debt of $32,827.35, was past due and delinquent.  DFAS requested immediate payment.

11.  In the processing of this case, an advisory opinion was obtained from the Deputy Chief of Staff, G1 (Personnel Officer), U.S. Army Cadet Command, Fort Monroe, Virginia.  The opinion stated, in effect, that the applicant's current service in the U.S. Navy is not the result of being ordered to active duty through ROTC channels in satisfaction of his ROTC contractual obligation.  The opinion further stated that the applicant should be required to repay the scholarship benefits that he received.

12.  On 1 May 2009, the applicant was sent a copy of the advisory opinion for his information and to allow him the opportunity to submit comments or a rebuttal.  To date, no response has been received. 

13.  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 not provided for in his DA Form 597-3, the applicant’s 27 July 2005 enlistment in the U.S. Navy served the same purpose as would have been served had he been ordered to active duty in the U.S. Army albeit in a different 
branch of service.  The Department of Defense is still getting the benefits of his service for a period of 4 years whereas his ROTC contract required only 2 years of active duty.  Notwithstanding the advisory opinion and as a matter of equity it would be appropriate to consider his enlistment in the U.S. Navy to have met the active duty obligation required by his ROTC scholarship contract. 

2.  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 Navy and received a cash enlistment bonus of $4,000.00 

3.  The prospect of negating the applicant's $32,827.35 debt for a free education he received from the Army without becoming an officer, plus allowing him to receive an enlistment bonus 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.

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 would satisfy the
$32,827.35 debt under the original terms of the ROTC contract by successfully completing 2 years of his Navy enlistment contract and by applying his Navy enlistment bonus towards the debt.

2.  The portion of the ROTC debt that would be satisfied by the above correction will be the total amount of the ROTC debt minus the $4,000.00 he received as a cash enlistment bonus.

3.  If the applicant fails to complete the period of service obligated as a result of his amended ROTC scholarship contract either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis in accordance with his DA Form 597-3.

4.  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.




      ___________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)                                         AR20090002754



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ABCMR Record of Proceedings (cont)                                         AR20090002754



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