IN THE CASE OF:	  

		BOARD DATE:	    22 June 2010

		DOCKET NUMBER:  AR20090017268 


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 cancellation of his Reserve Officers' Training Corps (ROTC) debt and reimbursement of his payments.

2.  The applicant states that he graduated from Notre Dame University in 2003 and he was sworn into the U.S. Navy on 29 March 2005.  He contends that his active duty service in the U.S. Navy should qualify for relief of his ROTC debt and reimbursement of his payments.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); DD Form 215 (Correction to DD Form 214); NAVPERS 1000 (Officer Appointment Acceptance and Oath of Office); Annual Statement of Service History; ROTC disenrollment memorandum with enclosures; Defense Finance and Accounting Service (DFAS) letter; correspondence from the Army Board for Correction of Military Records (ABCMR); and U.S. Navy orders, correspondence and photographs pertaining to his active duty service.

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.  At the time of his application, the applicant was serving as a U.S. Naval Reserve officer in the rank of lieutenant junior grade.

3.  On 19 August 1999, the applicant signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract).  Paragraph 1f states the cadet must maintain, as a minimum, a cumulative academic grade point average of 2.0 on a 4.0 scale.  Paragraph 1g states the cadet must maintain a cumulative and semester or quarterly grade point average of at least 3.0 on a 4.0 scale.  Paragraph 7d states if the cadet were disenrolled from the ROTC Program for any reason, the Secretary of the Army could order him 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 the contractual agreement to the date of his disenrollment or refusal to accept a commission; or the cadet could be ordered to active duty for not more than 4 years.  Paragraph 8 stated if the cadet were disenrolled during Military Science (MS) III, he/she would be ordered to active duty for 3 years.

4.  Paragraph 12 of the applicant’s DA Form 597-3 states 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.

5.  The DA Form 597-3 indicates the scholarship was for 4 years.

6.  DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record), dated 22 May 2002, indicates the applicant was in MS III and he had received a total of $43,560.00 in educational benefits.


7.  The applicant was notified by letter, dated 13 January 2003, of his disenrollment from the U.S. Army ROTC Program due to his failure to maintain a minimum semester cumulative academic grade point average of 2.0 on a 4.0 scale.  The letter further explained that his educational costs were $43,560.00 and that he had the option of paying this debt in full or initiating a repayment plan.  He also had the option of being ordered to active duty in an enlisted status for a period of 3 years rather than make monetary payment of the debt.

8.  On 29 March 2005, the applicant enlisted in the U.S. Naval Reserve.  On 
2 December 2005, he accepted a permanent appointment as an ensign, pay grade O-1, in the U.S. Navy.

9.  The applicant's DD Form 214, as corrected, for the period ending 27 June 2009, states that he completed a total of 2 years, 11 months, and 29 days of creditable active duty service as a commissioned officer in the U.S. Naval Reserve.

10.  DFAS letter, dated 22 July 2009, informed the applicant that the ROTC debt of $43,560.00 had been paid in full.

11.  In the processing of this case, an advisory opinion was obtained from the Deputy Chief of Staff, G-1, U. S. Army Cadet Command, Fort Monroe, VA.  The opinion stated that the terms of the applicant's contract require him to either repay the debt monetarily or agree to be ordered to active duty through ROTC channels based on the needs of the Army.  He was offered these options but failed to elect a repayment option.  The opinion further stated that the applicant's current Naval Reserve service is not an authorized remedy for debt repayment under the terms of the ROTC contract.  He should be required to repay the scholarship in accordance with his ROTC contract.

12.  On 22 April 2010, the applicant rebutted the advisory opinion, essentially stating he had paid the ROTC debt in full and was informed that his payments would be reimbursed in full when he completed his 3-year active duty obligation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his ROTC debt should be cancelled based on his service in the U.S. Naval Reserve and that he should be reimbursed all monies paid towards this debt.


2.  Although not provided for in his DA Form 597-3, the applicant’s 29 March 2005 enlistment in the U.S. Naval Reserve and subsequent commissioning and call to active duty as a Naval Reservist served the same purpose as would have been accomplished 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.  As a matter of equity it would be appropriate to consider his active duty service of 2 years, 11 months, and 29 days in the Naval Reserve to have met all but 1 day of the active duty obligation required by his ROTC scholarship contract.

3.  The Board has no jurisdiction in this case to stop any cash enlistment or officer accession bonus that may have been paid, or is due to be paid to the applicant.  However, it would be equitable to consider any such payment in determining the amount of relief that should be given regarding the ROTC debt by subtracting any monetary bonus from the ROTC debt relief.

4.  Accordingly, the applicant's finance records should be audited to show that the ROTC debt, less 1 day, was repaid based on his active duty service in the Naval Reserve.  Any excess monies paid by the applicant should be refunded to him. 

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:

   a.   amending his ROTC scholarship contract to show that his active duty service of 2 years, 11 months, and 29 days in the Naval Reserve met all but
1 day of the active duty obligation required by his ROTC scholarship contract;

   b.  prorating the ROTC debt for the 1 remaining day, auditing his finance records, and refunding him any monies due him as a result of this correction; and
   
   c.  subtracting any amount he has received and/or is due to receive as a cash enlistment/officer accession bonus.

2.  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 or reimbursing him for 1 day of the 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)                                         AR20090017268



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ABCMR Record of Proceedings (cont)                                         AR20090017268



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