IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090003363 


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) scholarship debt, in the amount of $56,775.50, be waived.  In the alternative, he requests that the requirement to serve in the Army National Guard (ARNG) be waived.

2.  The applicant states that he believes that his ROTC debt should be waived because his failure to meet commissioning requirements was a direct result of his medical condition, particularly stress fractures, which caused him intense pain and made it impossible for him to pass the Army Physical Fitness Test (APFT).  He also states he enrolled in the ROTC in the Fall 2004, received a 3-year scholarship, and signed an ROTC contract on 29 August 2005.  Sometime during the Fall 2006 he suffered a stress fracture to his lower left leg.  Up until that point he had passed every APFT.  He failed the APFT for the first time on 1 May 2007. 
He retook the test on 7 May 2007 and as a result of great effort enduring a significant degree of pain, he narrowly passed the APFT.  While at the Leadership Development and Assessment Course (LDAC) he was again unable to pass the APFT due to the pain he experienced from the stress fracture.  As a result, he was disenrolled from the LDAC.

3.  The applicant further states that on 7 May 2007 he signed an endorsement to his ROTC contract which provided that upon completing the ROTC Program, his services were not required on active duty and that he would instead serve in a Reserve Component.  In June 2007, his ROTC unit assembled a package to disenroll him from the ROTC Program.  The Eastern Region Commander for the Army Cadet Command also recommended he be disenrolled with monetary repayment, but made no mention of service in the ARNG.  The Eastern Region Commander stated that the disenrollment was based on the applicant's dismissal from LDAC and failure of the APFT.  He was notified of his disenrollment on 10 September 2008, ordered to repay the cost of advanced educational assistance, and released from the Virginia ARNG (VAARNG) to complete the remainder of his obligations under the Simultaneous Membership Program (SMP).

4.  In support of his application, the applicant provides copies of his ROTC Contract, his U.S. Army Cadet Command (CC) Form 203-R (Guaranteed Reserve Forces Duty Scholarship Cadet Contract Endorsement), his National Guard Bureau Form 594-1 (SMP Agreement - ARNG), his LDAC initial APFT score, his LDAC AFPT exception to policy memorandum, his DD Form 689 (Individual Sick Slip), his Standard Form 600 (Medical Record - Chronological Record of Medical Care), an orthopaedic consultation, a CC Form 131-R (Cadet Action Request), a request for disenrollment memorandum, his disenrollment notification, and his U.S. Army Advanced Education Financial Assistance Record.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's ROTC debt be waived or that he be relieved of the requirement to serve in the VAARNG.

2.  Counsel states that the applicant's disenrollment letter breached the ROTC contract by improperly requiring him to serve in the ARNG and assume the repayment financial obligation.  This inequity was compounded further because the applicant was given no means of objecting to his double imposition.  The inequity produced is similar to a case in which an injured ROTC cadet was disenrolled for reasons other than willful evasion or voluntary breach of ROTC contact terms without giving the disenrolled ROTC cadet any due process rights, the Army then demanded debt repayment from him.  In reviewing the applicant's ROTC records, one finds that he was able to meet all of his obligations under the program until the fall of 2006 when he experienced a stress fracture.  The applicant made a good faith effort to comply with the requirements of the ROTC Program, but he was unable to meet those requirements.

3.  Counsel also states that one Army Board for Correction of Military Records (ABCMR) case ruled that a medically disqualified disenrolled ROTC cadet need not repay any educational debts to the government because he made a good faith effort to fulfill his active service obligation (the petitioner was involuntarily separated from the Marines after one year of service).  Another ABCMR case showed a disenrolled ROTC cadet's medical disqualification waiver allowed him to be placed on a physical fitness program to assist his ability to pass the APFT.

4.  Counsel provides no additional documentation in support of the applicant's application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted as a cadet on 29 August 2005 contracted under the ROTC Scholarship Cadet Program, for a period of 3 years, with a completion date of 16 May 2008.

2.  The DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), Item 5 (Terms of Disenrollment), specifies that once disenrolled from the ROTC Program for breach of contractual terms, the individual must agree to serve on enlisted active duty or agree to reimburse the United States Government for the education assistance in lieu of being ordered to active duty.  

3.  On 7 May 2007, the applicant completed a CC Form 203-R for acceptance in the SMP and agreeing to be commissioned in the U.S. Army Reserve (USAR) or appointed in the ARNG upon completion of the ROTC Program and receipt of a baccalaureate degree.

4.  The applicant submitted a copy of his LDAC Initial APFT Score, dated 27 June 2007, that shows he passed his APFT on 16 November 2004, 11 March 2005, 20 April 2005, 16 November, 2005, 6 February 2006, 4 September 2006, and 7 May 2007.  It also shows he failed his AFPT on 1 May 2007, 27 June 2007, and 16 April 2008.

5.  The applicant submitted a copy of a memorandum from Headquarters, Warrior Force, Fort Lewis, Washington, dated 27 June 2007, subject:  LDAC 2007 - APFT Exception to Policy.  It stated that based on a thorough review of the applicant's APFT performance, an exception to the LDAC AFPT policy for medical reevaluation was directed.  It also stated that the applicant would be dismissed if found to be fit to train and he would be medically dismissed if found not fit to train.

6.  The applicant also submitted copies of his DD Form 689 and Standard Form 600, both dated 28 June 2007, that show the applicant was disposed to duty with no running, jumping, rucking, and was to wear walking boots as a result of an injury.  He was instructed to return the following day for a reevaluation.

7.  The applicant further submitted a copy of an orthopedic consultation that shows on 17 August 2007 he was seen by a private physician for pain in his left tibia.  The physician recommended the applicant begin a formal physical therapy program to maximize strength and range of motion about his knee and ankle and a reevaluation in 6 weeks.

8.  On 5 June 2008, the Virginia Military Institute (VMI) battalion commander recommended approval of the disenrollment of the applicant from the ROTC Program due to his APFT failure, dismissal from the LDAC 2007, and lack of interest in the Army ROTC.  The battalion commander also recommended the applicant be required to payback scholarship money.  He stated that the applicant did not have the motivation or determination to pass the APFT, his medical status was questionable, but his medical determination was approved by cadet commander for a left tibia stress fracture and hypertension.

9.  The applicant also submitted a copy of a memorandum from Headquarters, Eastern Region, U.S. Army Cadet Command, Fort Knox, Kentucky, dated 12 June 2008, subject:  Request for Disenrollment of [applicant].  It stated the concurrence with the recommended approval of the applicant's disenrollment from the ROTC Program.  It also stated that the applicant was being disenrolled because of his dismissal from LDAC 2007 and failure of the APFT; those actions indicated a lack of desire and potential to complete the Army ROTC commissioning program.  It further stated that monetary payback was in the best interest of the Army and the applicant.

10.  The applicant further submitted a copy of a memorandum from Headquarters, U.S. Army Cadet Command, Fort Monroe, Virginia, dated 10 September 2008, subject:  Disenrollment from the USAR ROTC Program.  It stated that the applicant was disenrolled from the ROTC Program under the provisions of Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program:  Organization, Administration, and Training), paragraphs 3-43a(15) and 3-43a(16).  Disenrollment was due to a breach of his ROTC contract, a lack of interest in military training as evidenced by his dismissal from the LDAC, and failure to pass the APFT.  The memorandum also advised that since he was a member of the ARNG under the SMP, he would be released to his ARNG unit to fulfill the remainder of his military service obligation.  In addition to being released to his ARNG unit, when the ROTC scholarship contract was breached, any obligation to the Army must be satisfied by repaying the cost of the advanced educational assistance provided by the Army.  The memorandum further advised that his total amount of educational assistance amounted to $56,755.50.  He was informed of his options.

11.  The applicant's election form was not made available to the Board.  There is no evidence the applicant elected to repay the total amount owed or enter active duty to fulfill his contractual obligation.

12.  The applicant was released from VMI attachment and returned to his original VAARNG unit effective 25 September 2008.

13.  In an advisory opinion, dated 18 September 2009, the U.S. Army Cadet Command Deputy Chief of Staff, G-1, stated that the applicant was participating in the ROTC Program under the SMP agreement.  That SMP agreement required simultaneous enrollment in the ROTC Program and enlistment in a troop program unit as an enlisted Soldier pending completion of commissioning requirements and assignment as a commissioned officer.  When the applicant breached the terms of his ROTC contract, he was disenrolled and released to his ARNG unit to complete his prior enlisted military service obligation.  Department of Defense Instruction 1215.08, paragraph 6.3.4.1.2, dated 26 June 2006, required the applicant to either serve on active duty for the period specified in his ROTC agreement or reimburse the United States for educational costs expended on his behalf.  Selected Reserve enlisted service would not be used as a substitute for active duty enlisted service or reimbursement.

14.  The U.S. Army Cadet Command Deputy Chief of Staff, G-1, official also stated that the applicant received $56,755.50 in scholarship benefits as a scholarship cadet to become a commissioned officer.  His service in a unit of the Reserve Component cannot substitute for repayment of his scholarship assistance.  The applicant is required to repay the scholarship benefits in accordance with his ROTC contract.

15.  The advisory opinion was provided to the applicant for his acknowledgement and/or rebuttal on 30 September 2009.  In a statement, dated 23 October 2009, the applicant's counsel urged the Board to reject the advisory opinion and either relieve the applicant of his obligation to repay the scholarship benefits or his Reserve obligation.  Counsel stated the analysis of the facts did not take into account that the applicant was disenrolled from the ROTC Program as a result of a physical injury beyond his control and that he was still fulfilling his Reserve obligation.  Counsel also stated that the applicant fulfilled all of his obligations in the program until the Fall 2006 when he suffered the stress fracture to his left tibia.  The applicant sought medical attention and was advised not to run or jump and to return to sick call the following day for reevaluation.  He subsequently sought expert medical evaluation at his own expense from a civilian orthopedic doctor.  A medical determination for left tibia stress fracture and hypertension appears to have been approved by U.S. Army Cadet Command as referenced in his disenrollment package.  Presumably, U.S. Army Cadet Command conducted an investigation or inquiry in order to arrive at that determination.  By approving his medical condition, U.S. Army Cadet Command essentially agreed with competent medical opinion that the applicant could no longer participate in physical activity on the level required in the ROTC Program.

16.  Counsel further stated that there is no evidence to suggest that the applicant was faking the injury or exaggerating his pain.  However, instead of working with the applicant to gauge the full extent of his injuries, the ROTC staff appeared skeptical of his medical condition.  Faced with this skepticism and inability to pass his APFT, the applicant became depressed as well.  But for his physical injury, the applicant was ready and able to complete the program.  Consequently, the applicant's disenrollment was through no fault of his own, his physical injury was beyond his control, and he should therefore not be subject to recoupment.

17.  Counsel also stated that in the alternative, the Board is urged to relieve the applicant of his Reserve obligation.  His Reserve obligation arose out of his acceptance into the SMP as part of the ROTC Program.  He had progressed beyond the point of obligation in the ROTC Program, as such the applicant was subject to being ordered to active duty or recoupment if he failed to complete the program.  The applicant's service obligation under the ROTC contract consisted of service as a Reserve officer and he is fulfilling that service obligation in the VAARNG.

18.  Army Regulation 145-1 prescribes polices and general procedures for administering the Army's Senior ROTC Program.  This regulation specifies, in pertinent part, that as part of a scholarship enlistment in the ROTC, an individual must sign a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), which is the agreement between the Army and a potential ROTC cadet.  The form contains the promises made between the Army and the potential cadet, and includes what action the Army will take in the event that a cadet fails to successfully complete the terms of the contract.  Paragraphs 3-43a(15) and 
3-43a(16) specifies that non-scholarship and scholarship cadets will be disenrolled for indifferent attitude or lack of interest in military training and for breach of contract.

19.  Army Regulation 145-1, paragraph 3-24 (Medical Waiver), specifies that medical fitness standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 1, will be used to determine a cadet's or student's medical fitness for enrollment, continuation in the advanced course, and appointment.  Request for waivers will be considered under Army Regulation 40-401, chapter 1, and this paragraph.  Disqualification under Army Regulation 40-501, paragraph 2-30, will not be waived.  The Commanding General, U.S. Army ROTC Cadet Command (authority may not be delegated) may grant a waiver only when the medical condition or physical defect will not preclude satisfactory completion of ROTC training and will not be complicated or aggravated by ROTC training or by military training and duty after appointed.  If no waiver is granted, a cadet enrolled in the ROTC program who is found medically disqualified will be disenrolled.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and counsel's contentions that he was disenrolled from the ROTC Program as a result of physical injury through no fault of his own and that the applicant should be relieved of the obligation to repay the scholarship benefits or fulfill his Reserve obligation were carefully considered.  However, the evidence shows the applicant entered into the ROTC Program under the SMP agreement with the requirement to enroll in the ROTC and enlist in a troop program unit as an enlisted Soldier pending completion of the commissioning requirements.

2.  The applicant sustained an injury to his left tibia which prevented him from passing the LADC APFT.  His was dismissed from the LADC and subsequently disenrolled from the ROTC Program because of that dismissal, his lack of interest in the Army ROTC, and AFPT failure.  Therefore, the applicant breached the terms of his ROTC contract.  At that time he was advised that when the ROTC scholarship contract was breached, any obligation to the Army must be satisfied by repaying the cost of advanced educational assistance provided by the Army.  In addition, since he was a member of the ARNG under the SMP, he would be released to his ARNG unit to fulfill his military service obligation.

3.  The applicant's disenrollment package shows a medical determination had been approved for a left tibia stress fracture and hypertension.  There is no evidence the applicant was found medically disqualified by the appropriate medical authority for retention in the ROTC Program.

4.  The evidence further shows the applicant received scholarship benefits in the amount of $56,755.50 to become a commissioned officer.  In accordance with Department of Defense Instruction 1215.08, the applicant was either required to serve on active duty for the period specified in his ROTC agreement or reimburse the U.S. for educational benefits.  As such, he is required to repay the scholarship benefits in accordance with his ROTC contract and any service in the VAARNG cannot be used as a substitute for active duty commissioned service to waive his scholarship debt.  There is also no evidence the applicant submitted an appeal to his disenrollment and the amount and validity of the debt.

5.  Cancelling the applicant's debt and, in effect, providing him a free education without having to become an officer, would be a windfall.  Since the applicant's disenrollment from the ROTC program was due to his failure, it would not be appropriate to grant the requested relief in this case.

6.  Counsel cited several ABCMR cases concerning ROTC debt.  The basic regulation which provides policy and guidance to this Board states that the ABCMR will consider individual applications that are properly brought before it and will decide cases on the evidence of record.  This essentially means that cases are considered and the evidence is judged on its own merits.  Each case that is brought before the Board may have some similarities to other cases; however, each has many differences and therefore what was done in one case and the outcome achieved can not necessarily be applied to another seemingly similar case.

7.  In view of the foregoing, 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)                                         AR20090003363



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ABCMR Record of Proceedings (cont)                                         AR20090003363



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