IN THE CASE OF:	

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20090012394 


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 his Reserve Officers’ Training Corps (ROTC) scholarship debt be forgiven based on his enlistment and service in the Army.

2.  The applicant states, in effect, that he was enrolled in the Army ROTC Florida Institute of Technology program and was disenrolled in August 2008 due to his breach of contract.  He enlisted in the Regular Army (RA) in September 2008 and has been honorably serving since his enlistment. 

3.  The applicant provides in support of his application a statement of service, dated 13 July 2009, from his current commander; a copy of his June 2009 Leave and Earnings Statement; a copy of his DD Form 4 (Enlistment/Reenlistment Document), dated 9 September 2008; and a copy of Orders 328-2970, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, dated 23 November 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U. S. Army Reserve (ROTC Control Group) on 27 September 2006.  Paragraph 5 (Terms of Disenrollment) of the applicant's DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) 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.  

2.  Paragraph 6 (Enlisted Active Duty Service Obligation) 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 5, 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.

3.  On 30 July 2007, the applicant was placed on an administrative suspension status for the period 30 July through 15 December 2007 for having failed to adhere to his ROTC contract.  Specifically, he failed to maintain a grade point average (GPA) of 2.0 or above (his GPA was 1.57).  He acknowledged that if he failed to maintain a cumulative semester GPA of 2.0 or above, he would be considered for disenrollment from the program.

4.  On 7 January 2008, by memorandum, the applicant was notified that he was being placed on Leave of Absence (LOA) for the spring quarter (7 January 2008 through 3 May 2008) for repeatedly failing his cumulative GPA requirements.  Specifically, his Fall 2007 semester GPA was 1.64 and his cumulative GPA was 1.88.  The applicant acknowledged receipt of the memorandum on the same date. 

5.  On 12 March 2008, by memorandum, the applicant was notified that his previous LOA had been dropped effective 6 March 2008.  He was further notified that action had been initiated to disenroll him from the ROTC program because he had been suspended from returning to school at Florida Institute of Technology for school violations and that he was not permitted to reapply until August 2008.  

6.  On 12 March 2008, the applicant acknowledged receipt of the above memorandum concerning disenrollment from the ROTC program.  He elected to waive his right to a hearing and elected to accept expeditious call to active duty in fulfillment of his contractual obligations.  He further acknowledged that he understood an order to active duty in an enlisted status in fulfillment of his contractual obligation would require him to serve for a period of 4 years.

7.  On 12 March 2008, the applicant's professor of Military Science forwarded a request for the applicant's disenrollment from the ROTC Program to the U.S. Army Cadet Command (USACC); however, his chain of command recommended monetary payback of the cost of educational assistance provided by the Army, valued at $24,516.00 at that time.

8.  On 26 August 2008, by memorandum, the Commanding General, USACC, approved the request and ordered the applicant disenrolled from the ROTC Program under the provisions of Army Regulation145-1 (Senior Reserve Officers’ Training Corps Program: Organization, Administration, and Training) by reason of dismissal from Florida Institute of Technology.  The memorandum also notified the applicant that when the ROTC scholarship contract is breached, an obligation to the Army must be satisfied by repaying the cost of advanced educational assistance provided by the Army and that the amount of monies spent in support of his education was $24,516.00.

9.  On 17 September 2008, the applicant enlisted in the RA for a period of 6 years and 18 weeks in the rank/grade of private (PV2)/E-2.  His DD Form 4 shows he enlisted for the following options:

Program 9A, U.S. Army Training Enlistment Program, Request Option 03

Program 9C, U.S. Army Incentive Enlistment Program (U.S. Army High Grad Bonus (30-59 Semester Hours), U.S. Army Enlistment Bonus plus Loan Repayment Program, 6 years, U.S. Army Seasonal Bonus (High Priority Seat), Request Options 017, 036, 270.

10.  The applicant's records show he completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He is currently assigned to D Company, 3rd Battalion, 187th Infantry, 3rd Brigade Combat Team, 101st Airborne Division.

11.  During the processing of this case, an advisory opinion was obtained from the USACC.  The Deputy Chief of Staff, G1, stated that the terms of the ROTC scholarship contract require a cadet to either repay his debt monetarily or agree to be ordered to active duty through ROTC channels based on the needs of the Army.  The applicant was offered these options on 26 August 2008 after being disenrolled from the ROTC program due to breach of contract.  He initially elected active duty; however, in the best interests of the Army, his chain of command recommended monetary repayment instead of active duty.  When offered the repayment option, he agreed to repay his scholarship funds in monthly installments.  

12.  The USACC Deputy Chief of Staff, G1, also stated in the advisory opinion that the applicant's decision to breach his ROTC contract and enlistment in the Army were voluntary actions.  His voluntary enlistment in the Army is not an authorized remedy for ROTC debt repayment under the terms of his ROTC contract.  He received a $23,000.00 enlistment bonus in addition to the $24,516.00 in scholarship benefits he received as a scholarship cadet.  He should be required to repay the scholarship benefits in accordance with his ROTC contract.

13.  The applicant was provided with a copy of this advisory opinion on 4 January 2009; however, to date, he has not responded.

14.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program.  Paragraph 3-43a(14) states a cadet may be disenrolled for undesirable character demonstrated by cheating on examinations; stealing; unlawful possession, use, distribution, manufacture, sale (including attempts) of any controlled substances; discreditable incidents with civil or university authorities; or similar acts characterized as misconduct.

15.  Title 10, U. S. Code, section 2005(a) states 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 under the terms of which such person shall agree:  (1) to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement; and (2) that if such person fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement.

16.  Title 10, U. S. Code, section 2005(f) states that the Secretary concerned shall require, as a condition to the Secretary providing financial assistance under section…2107a (financial assistance program for specially selected members:  Army Reserve and Army National Guard; i.e., ROTC) of this title to any person, that such person enter into an agreement described in subsection (a).  In addition to the requirements of clauses (1) through (4) of such subsection, any agreement required by this subsection shall provide (1) that if such person fails to complete the education requirements   the Secretary shall have the option to order such person to reimburse the United States (emphasis added) in the manner provided for…without the Secretary first ordering such person to active duty as provided for under clause (2) of such subsection.

17.  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.  The evidence of record shows that the applicant was initially suspended from the ROTC program due to academic failure but was later disenrolled from the program due school violations.  He was subsequently found in breach of his ROTC contract and was, therefore, offered the opportunity to serve in an enlisted status.  He elected to serve on active duty but his chain of command recommended against this service.  He was then offered the repayment option and agreed to repay his debt in monthly installments. 

2.  Further, following his disenrollment, he enlisted in the RA for 6 years and 
18 weeks and is now serving on active duty.  However, he received a $23,000.00 enlistment bonus.  

3.  The applicant's belief that his 6 years and 18 weeks enlistment in the RA should fulfill his obligation under his breached ROTC contract was considered and found to have partial merit.  The applicant's ROTC contract called for an expeditious call to active duty through ROTC channels based on the needs of the Army without the benefit of advancement in grade or other incentives, which he received.  Nevertheless, in this case, the applicant’s enlistment in the RA serves the same purpose as would have been served had he been ordered to active duty through ROTC channels. 

4.  Although the applicant’s 6 year and 18 weeks enlistment in the RA provides the Government the benefits of his service, had he elected an expeditious call to active duty to repay his debt for breaching his ROTC contract, he would have been assigned against the needs of the Army with a 4-year active duty commitment, in pay grade E-1, and not allowed any enlistment options.  However, he enlisted in the RA in the pay grade of E-2 and was authorized a $23,000.00 enlistment bonus.  While the Board has 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.  

5.  In view of the facts of this case, it would be appropriate to consider his enlistment in the RA to have met the active duty obligation required by his ROTC scholarship contract as a matter of equity.  If he fails to complete 4 years of active duty obligated as a result of his ROTC scholarship either voluntarily or because of misconduct, his ROTC debt should be required to be recouped on a prorated basis.


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 a portion of the $24,516.00 ROTC debt under the original terms of the ROTC contract by successfully completing his current enlistment in the RA.

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 $23,000.00 he received as an enlistment bonus. 

3.  If the individual concerned fails to complete the period of enlisted 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)                                         AR20090012394



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ABCMR Record of Proceedings (cont)                                         AR20090012394



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