IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090017778 


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 the cancellation/remission of his Reserve Officers’ Training Corps (ROTC) debt, which he incurred when he disenrolled as an Army ROTC cadet for the purpose of becoming an officer in the U.S. Marine Corps (USMC).  He further requests that his current active duty commitment in the USMC be accepted as repayment of his ROTC scholarship debt.  He also requests the Defense Finance and Accounting Service (DFAS) contact the Credit Bureau and have all negative comments removed from his credit record.

2.  The applicant states, in effect, that ever since he was a child, it was his dream to follow in his father's footsteps by becoming an officer in the USMC.  After graduating from high school, he attended school at the Citadel in hopes of receiving a scholarship.  However, he did not receive a scholarship because his Scholastic Aptitude Test (SAT) score did not meet USMC requirements.  Due to the cost of attending the Citadel, he did not return.

3.  The applicant states he enrolled at Tarleton State University in order to put himself through school without overly burdening his parents.  Due to his interest in the military, the applicant chose to enroll in the Army ROTC program at Tarleton with the belief he would have the same desire to become an officer in the Army that he had to become an officer in the USMC.  He paid his education expenses for the first semester in hopes of earning a scholarship and also re-took the SAT and increased his score to a level which made him scholarship eligible for all military services.

4.  The applicant continues that during the summer of 2007, the while attending the Leadership Development Assessment Course (LDAC) at Fort Lewis, WA, he started to feel he was letting down both himself and his father by not following in his footsteps to become a USMC officer and decided to pursue obtaining a commission in the USMC.

5.  The applicant states that upon his return to Tarleton following LDAC, he shared his desire to become a USMC officer with his Professor of Military Science (PMS) and gained his support.  The applicant states the PMS thought he belonged in the USMC and believed that if forced to do so he would only serve four years as an Army officer prior to separating, but if allowed to become a USMC officer he would continue to serve an entire career.  The applicant was also interviewed by and gained the support of the PMS' commanding general and the Regimental Sergeant Major.

6.  The applicant states he submitted a request for release along with recommendations for approval from his PMS and the PMS' commander to the Department of the Army (DA).  This request was denied at DA level based upon the fact he was receiving ROTC scholarship money.  He then sought assistance from his Congressman and once again, was denied at DA level.

7.  The applicant states he then sought assistance from his father to see if the USMC could help facilitate an inter-service transfer or release from Army ROTC. He received endorsements for approval of his request from two general officers and several colonels within the USMC.

8.  The applicant states in April 2008 he received notification he was granted release from his scholarship obligations to the Army and was ecstatic that he was going to be able to fulfill his dream and also thankful the Army was allowing him to do so.  The applicant's PMS informed him he was being dropped from the ROTC program and stated the Army may want the scholarship money repaid, but opined that since the applicant was continuing to serve in the military the repayment requirement would not stand.

9.  The applicant states that following his release, he was immediately contacted by the Marine Corps Officer Selection Officer in Arlington, TX and informed he would be attending the USMC Officers Candidate Course within two weeks.  He had to turn his Army gear in to the ROTC unit, sign release paperwork, and depart for USMC Officer Candidate School (OCS) without an opportunity to participate in the graduation ceremony at Tarleton with his peers.  He states while attending OCS; he continued to receive letters from the Army and completed the required paperwork to finalize his release.

10.  The applicant states he arranged to have his mail forwarded to his parents' address during the remainder of his training.  During this time, DFAS claims they sent him numerous letters requesting he repay the scholarship money to the Army.  He contends he never received these letters and now DFAS has reported him to the Credit Bureau and created a negative credit rating.  As a newly married lieutenant, this could have an adverse impact on his plans of someday starting a family and purchasing a home.

11.  The applicant acknowledges he is not serving in the Army, but contends he is serving his country honorably and faithfully every day, pays taxes, obeys the law, and loves his country very much.  He is upholding his obligation to serve his country in the USMC and if he is required to repay this debt it would place a severe financial hardship upon him and his wife.

12.  The applicant contends he does not understand why DFAS did not contact him immediately when he did not respond to their letters.  He contends DFAS is the same organization that is currently making his direct deposit from the USMC and prior to that, the U.S. Army.

13.  In support of this request, the applicant provides copies of

* a self-authored letter to DFAS
* a letter to him from the Department of the Treasury Financial Management Service, Birmingham, AL
* a Marine Corps Total Force System (MCTFS) Basic Individual Record
* a NAVMC Form 118(3) (Chronological Record)
* a Graduation Certificate from the U.S. Army Field Artillery School
* USMC Permanent Change of Station orders assigning him to the Basic Officer Leaders Course
* USMC Orders to active duty for attendance of the Platoon Leaders Class
* a letter from the Office of the Registrar of Tarleton State University
* his transcripts from Tarleton State University
* his SAT scores
* a DA Form 597-3 (Army Senior Reserve Officers' Training Corps Scholarship Cadet Contract)
* three letters of recommendation
* a memorandum from Headquarters, Western Region, U.S. Army Cadet Command, Fort Lewis
* a DA, Headquarters, Office of the Chief of Legislative Liaison, Washington, DC response to a Congressional Inquiry 

* an electronic mail message from a representative of Headquarters DA (HQDA), Deputy Chief of Staff, G-1, to the Head of Regular Officer Programs for the Marine Corps Recruiting Command, Quantico, VA
* an extract from his USMC Enlistment Contract

CONSIDERATION OF EVIDENCE:

1.  The applicant's DA Form 597-3 shows, on 17 January 2006, while attending Tarleton State University, he entered into a three-year Army ROTC Scholarship in which the applicant agreed that he understood that the sole purpose of the Army ROTC scholarship program is to produce officers for the U.S. Army, that entry into the program is a serious commitment, and that this commitment must be made with the resolve to attain a commission in the Army.  If there were any doubts about the cadet's ability or determination to fulfill the terms of the contract, then it should not be executed.  In consideration of the mutual benefits, which would accrue to the parties hereto by reason of the cadet's participation in the Army ROTC and later service in the U.S. Army, he agreed (in pertinent part) that he would incur a military service obligation (MSO) and/or financial reimbursement obligation after the first day of his MS (Military Science) II year (sophomore year) if he was a three, four, or five year scholarship recipient; after the first day of his MS III (junior year) if he was a two-year scholarship recipient; or after the first day of his MS IV year (senior year) if he was a one-year or less scholarship recipient. 

2.  The applicant’s DA Form 597-3 also states upon completion of all requirements for appointment, he agreed to accept an appointment, if offered, as a commissioned officer in the U.S. Army Reserve (USAR) or the Army National Guard of the U.S. (ARNGUS), in accordance with governing Army regulations.  He also acknowledged his understanding that upon appointment, he would incur a total MSO not to exceed eight years and could not resign such appointment before completion; however this obligation could be met in a variety of ways as outlined below:

	a.  Serve up to four years on active duty as a commissioned officer in the Army, followed by service in the Reserve Component for the remainder of his eight-year contractual obligation has been served.

	b.  Serve a short period of active duty or active duty training if appointed for duty in a Reserve Component.  If not selected for extended active duty, he would complete an officer's basic course for branch qualification.  This would be followed by service in a Reserve Component Unit (ARNGUS or USAR), which has Monthly Unit Training Assemblies and an annual training period of approximately two weeks until the remainder of his contractual MSO had been served.
	c.  If he was fulfilling his obligation through Reserve Component duty and an appropriate troop program unit assignment was not available or becomes unavailable in either the USAR or the ARNGUS, he agreed to participate as a member of the Individual Mobilization Augmentee (IMA) program by serving at least 12 days on annual training each fiscal year as directed by the Human Resources Command, St. Louis, MO, until such time an appropriate unit or IMA assignment becomes available or until the expiration of his contractual MSO.

	d.  If he was offered an opportunity to participate in the Army National Guard Combat Reform Initiative (ANGCRI), he understood and agreed that in return for participation in the ANGCRI, he would serve his remaining service obligation in an ARNG unit, in lieu of completing his active duty service obligation (ADSO), including mandatory service requirements as prescribed by Federal statute, Army regulation, and his ROTC contract.

3.  The applicant’s DA Form 597-3 also shows he understood and agreed that once he became obligated and was disenrolled from the ROTC program for breach of contractual terms or any other disenrollment criteria established then or in the future by Army regulations incorporated in his contract, in pertinent part, he was subject to:

	a.  being ordered to active duty as an enlisted Soldier for a period of not more than four years if he failed to complete the ROTC program.  If he was disenrolled after the point of obligation, he could be ordered to active duty based upon the year during which his disenrollment was initiated:  MS II, 2 years; MS III, 3 years, MS IV, four years, or after completion of MS IV, 4 years if he was a 2, 3, or 
4-year scholarship recipient.

	b.  being required to repay his advanced educational assistance in lieu of being ordered to active duty.  He would be required to reimburse the U.S. government through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the U.S. for his advanced education from the commencement of this contractual agreement to the date of his disenrollment or refusal to accept a commission.

4.  The applicant provides a memorandum from Headquarters, Western Region, U.S. Army Cadet Command, Fort Lewis, dated 29 October 2007, showing his request to transfer to the USMC Platoon Leader's Class was disapproved based on the time he had been in the ROTC program and the needs of the Army at the time.

5.  The applicant provides copies of letters of recommendation from a major general and a colonel in the USMC and an Army master sergeant, each of whom strongly endorse approval of the applicant's request for release from the Army ROTC program for the purpose of pursuing a career as an officer in the USMC.

6.  The applicant provides an electronic mail message sent from a representative of HQDA Deputy Chief of Staff, G-1, to the Head of Regular Officer Programs for the Marine Corps Recruiting Command, Quantico, on 22 May 2008, informing him the Army G-1 had granted the applicant an exception to policy by releasing him to the USMC.  The Army G-1 staff member also stated the applicant could either voluntarily repay his scholarship money or request a waiver from the Secretary of the Army.  She reiterated the money was a separate issue and could be addressed once the Cadet Command initiated the applicant's disenrollment.  The Army G-1 staff member opined repayment would be a more suitable option than an involuntary call to active duty judgment for four years.  She further opined the command would support recoupment or waiver vice an active duty option for the applicant.  She concluded the recoupment and/or waiver process should not affect the status of the applicant's USMC affiliation.

7.  The applicant provides a DD Form 4/1 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 5 November 2007, showing he enlisted in the USMC Reserve for a period of eight years.  This form shows he was conditionally enlisted for subsequent enrollment in the Platoon Leaders Class (Ground) 2009 program of the USMC Reserve.

8.  The applicant provides an NAVMC Form 10460 (Service Agreement - Platoon Leaders Class (Ground)), dated 5 November 2007, showing upon his acceptance of a commission in the USMC, he would be required to serve at least eight years in the USMC Reserve from date of appointment to commissioned grade and any portion of this eight-year period not served on active duty would be served on inactive duty as a member of the USMC Reserve; and a resignation of his Reserve commission submitted prior to completion of this eight-year period would normally be rejected.

9.  The applicant provides USMC, Eighth Marine Corps District, Fort Worth, T\X, Officer Candidate Assignment to Active Duty for Training Orders, dated 21 May 2008, showing he was selected for participation in the Platoon Leaders Class program and ordered to active duty to attend the course during the period 2 June 2008 through 9 August 2008.

10.  The applicant provides a letter from the Office of the Registrar of Tarleton State University, dated 9 July 2008, certifying he had completed all degree requirements and the Bachelor of Science degree in Exercise and Sport Studies would be conferred to him on 9 August 2008.

11.  The applicant provides a NAVMC Form 118(3) which shows following his completion of the USMC Officer Candidate School, he was discharged from the enlisted ranks for the purpose of accepting a commission to second lieutenant in the USMC.

12.  The applicant provides a certificate showing he successfully completed the Basic Officer Leader Course, Phase III, conducted at the U.S. Army Field Artillery School, Fort Sill, OK, during the period 4 May 2009 through 24 August 2009.

13.  The applicant provides USMC, Marine Corps Artillery Detachment, U.S. Army Field Artillery School, Fort Sill, OK, First Endorsement for Permanent Change of Station Orders (dated 21 July 2009), dated 18 August 2009.  These orders show that following his completion of the Field Artillery Basic Officer Leaders Course, he was reassigned for duty with 1st Battalion, 12th Marines,
3d Marine Division, Kaneohe Bay, HI, with a reporting date of 30 October 2009.

14.  The applicant provides a letter from a Congressional Coordinator assigned to the Headquarters, Office of the Chief of Legislative Liaison, Washington, DC.  This letter was prepared in response to a Congressional Inquiry on behalf of the applicant.  The Congressional Coordinator informed the Member of Congress that the terms of an Army ROTC scholarship contract require that, if disenrolled, a cadet either repay the scholarship funds expended on their behalf by the government or agree to be ordered to active duty through ROTC channels based on the needs of the Army.  Under the terms of the ROTC contract, only enlisted active duty service resulting from being ordered to active duty through ROTC channels can be used to satisfy the ROTC contractual agreement.

15.  The Congressional Coordinator also informed the Member of Congress the applicant did not receive an "inter-service transfer," he requested release from the U.S. Army ROTC for appointment in the USMC.  That request was approved by HQDA; however, he was not approved for release from his scholarship contractual obligations.  HQDA further specified that the procedural requirements for disenrollment still applied, that his service in the USMC could not serve to satisfy his U.S. Army ROTC contractual obligation, and that he would be required to repay the U.S. government all of the scholarship benefits that he has received.  Therefore, the applicant was disenrolled and a debt was established in his name with the DFAS.  On 3 August 2008, as part of the disenrollment process, the applicant elected to repay his debt in monthly installments.

16.  The Congressional Coordinator concluded by informing the member of Congress that once a debt is established with DFAS, legal restrictions preclude the Commander, Cadet Command, from modifying or cancelling the debt.  However, the applicant could submit an application to the Army Board for Correction of Military Records (ABCMR) to request remission or termination of his scholarship debt.

17.  The applicant provides a letter sent to him by the Department of the Treasury Financial Management Service, Birmingham, AL, dated 12 September 2009, informing him his unpaid debt of $18,114.30 owed to the Department of Defense (DoD), DFAS, DoD Debt and Claims Management (DoDDCM), had been referred to the U.S. Department of the Treasury for collection.  He was further informed collection action would continue unless he made payment within ten days of this letter, in the amount of $23,186.30, which included all applicable fees, interest, and penalties as of 12 September 2009.

18.  The applicant provides a copy of a letter he sent to DFAS, dated 6 October 2009.  In this letter, in effect, he attested that when he was released from his ROTC contract he was told he would have to repay the money or fulfill the active duty service obligation (ADSO) as repayment to the federal government.  The applicant contended he was fulfilling the ADSO by serving as an officer in the USMC.  The applicant stated he was unaware of the fact DFAS was attempting to collect payment from him until he was informed the debt had been referred to the Department of treasury and reported to the credit bureau.  The applicant requested, if he was required to repay the financial debt, the debt be reduced back to its original amount of $17,000.00 and that a repayment plan be established immediately.  He further requested that the three major credit bureaus be contacted to clear his records of all negative comments concerning this debt.

19.  The applicant provides an MCTFS [Marine Corps Total Force System] Basic Individual Record, dated 26 February 2010, which shows

* he accepted a commission in the USMC on 9 August 2008
* his current active duty contract ends 1 November 2012
* his obligated service ends 4 November 2015

20.  Title 10, U.S. Code, section 2005(a)(3), states, in pertinent part, 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 with the Secretary concerned under the terms of which such 
person shall agree that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed by the Secretary to protect the interest of the United States, such person will reimburse the United States in an amount that bears the same ratio to the total costs of advanced education provided such person as the un-served portion of active duty bears to the total period of active duty such person agreed to serve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests that his ROTC debt be cancelled/remitted; that his current active duty commitment in the USMC be accepted as repayment of his ROTC scholarship debt; and that DFAS contact the Department of the Treasury and the three major credit bureaus to have all negative comments removed from his credit record were carefully considered.

2.  Evidence shows the applicant entered a contractual agreement for a three-year Army ROTC Scholarship in which the applicant agreed that he understood that the sole purpose of the Army ROTC scholarship program is to produce officers for the Army.  By doing so, he agreed that he would incur an MSO and/or financial reimbursement obligation upon completion of all requirements and he accepted an appointment, if offered, as a commissioned officer in the USAR or the ARNGUS, in accordance with governing Army regulations.

3.  The applicant also acknowledged his understanding that upon appointment, he would incur a total MSO not to exceed eight years and he could not resign such appointment before completion; however, this obligation could be met in a variety of ways, to include serving up to four years on active duty as a commissioned officer in the Army, followed by service in the Reserve Component for the remainder of his eight-year contractual obligation has been served.

4.  The applicant requested and was granted release from the Army ROTC scholarship program and then immediately departed his university in order to attend the requisite training to become an officer in the USMC.  It appears the applicant believed at the time that as long as he continued to serve in the military, that service was service, regardless of which armed service one performed his service in, and that he could fulfill his Army ROTC scholarship MSO in the USMC.

5.  The evidence of record shows that the applicant incurred a debt as a result of being disenrolled from the ROTC Program.  Given the applicant had to have his mail routed through his parents to wherever the USMC sent him, it is reasonable to believe that he did not receive notice of the debt.

6.  It is noted that the applicant's transition from the Army ROTC program to the USMC was essentially seamless.  It is also noted that when the applicant was released from the Army ROTC scholarship program, he entered a contractual agreement to serve in the USMC for an obligated period of time equivalent to the obligation in his ROTC contract.  Accordingly, if the applicant's Army ROTC debt was forgiven at this time, he is still obligated to serve on active duty in the USMC until 1 November 2012 and has an overall service obligation that does not end until 4 November 2015.

7.  Notwithstanding the fact that the applicant entered a contractual agreement to serve in the USMC, it would have been premature and unfair to forgive his debt prior to his completion of the requirements for appointment and his acceptance of a commission.  The main purpose of the advance education assistance programs is for the armed services to obtain ADSOs from qualified personnel in exchange for educational assistance.  The applicant initially entered into such an obligation with the Army and has subsequently entered one in the USMC. 

8.  The applicant continues to demonstrate his commitment to honor his obligations and to serve his country as a commissioned officer in the USMC just the same as he would have had he completed the Army ROTC Program and was similarly commissioned and ordered to active duty in the Army.

9.  The evidence also shows that, as a result of the applicant’s appointment and service with the USMC, the Department of Defense is receiving the equivalent military service benefit it would have gained had the applicant not been disenrolled from the Army ROTC program.  The importance of an individual's service to his or her country, regardless of which armed service is recognized, and, as such, in the interest of justice and as a matter of equity, the collection of his debt should be terminated.

10.  In view of the facts of this case, it would be appropriate to correct the applicant's record to show that he has satisfied his ROTC contractual obligation by cancelling his current ROTC debt ($17,000.00 plus all applicable fees and taxes) and returning to him any monies that have been collected towards payment of that same debt.

BOARD VOTE:

____x____  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  amending his Army ROTC scholarship contract to show that he would satisfy the service obligation under the original terms of that ROTC contract as a commissioned officer on active duty with the U.S. Marine Corps; and

     b.  if he fails to complete the period of active duty obligated as a result of his amended ROTC 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.

2.  The Board also recommends that, as a result of the foregoing corrections, the Defense Finance and Accounting Service should notify the Department of the Treasury and the three major credit bureaus of this correction and request removal of any negative comments pertaining to this former debt from the applicant's credit report.



      ___________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)                                         AR20090017778



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ABCMR Record of Proceedings (cont)                                         AR20090017778



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