IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090001439 


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, termination of his Reserve Officers’ Training Corps (ROTC) scholarship debt.

2.  The applicant states, in effect, that although he was kicked out of the ROTC program, he continued his education until he graduated from the University of Missouri in 2006.  In November 2006, he enlisted in the Army to fulfill his side of the contract and he has been in the Army for over 2 years of which 13 months were served in Iraq.  He further indicates that he was selected to attend Officer Candidate School (OCS) in April 2009.

3.  The applicant indicates in his application that he submitted a copy of his conditional security clearance in support of his request.

CONSIDERATION OF EVIDENCE:

1.  On 6 September 2000, the applicant entered into an Army ROTC Scholarship Cadet Contract (DA Form 597-3).  By signing the contract, he acknowledged his understanding of the conditions of the contract and that he concurred with them.  At the time the applicant entered into his ROTC contract, he further acknowledged his understanding that if he failed to complete the educational requirements of his agreement or was disenrolled from the ROTC program, the Secretary of the Army or his designee could order him to active duty as an enlisted Soldier; or in lieu of being ordered to active duty, he could be required to repay financial assistance he received through the ROTC program, plus interest. 
2.  On 5 November 2002, the University of Missouri-Columbia, Professor of Military Science (PMS), notified the applicant that he was initiating action to disenroll him from the ROTC program due to discreditable incidents with civil authorities based on the following infractions:  arrest for a misdemeanor of possession of intoxicants by a minor, on 22 September 2000; probation violation after second arrest for a misdemeanor of possession of intoxicants by a minor, on 10 November 2001; issuance of a warrant, on 13 May 2002, for failure to pay fine; and failure to inform the PMS of the civil conviction.

3.  On 5 November 2002, the applicant acknowledged receipt of the notification and that he understood the basis for his disenrollment notification.  In this statement, he also waived his rights to a hearing and elected to decline an expeditious call to active duty.

4.  On 13 September 2004, the commanding general (CG) of the United States Army Cadet Command (USACC) published a memorandum notifying the applicant of his disenrollment from the ROTC program.  The applicant was informed that he was disenrolled from the ROTC program under the provisions of Army Regulation 145-1, paragraph 3-43a(14), based on his undesirable character as demonstrated by discreditable incidents with civil authorities that included two convictions for possession of intoxicants by a minor.  The CG indicated that an Addendum was enclosed with the memorandum that provided the applicant the options to either repay the total amount of the debt, to elect to initiate a payment plan, agree to be ordered to active duty through ROTC channels based on the needs of the Army, or to appeal/dispute the amount or validity of the debt.  There is no indication the applicant elected one of these options. 

5.  On 29 September 2006, the applicant enlisted in the Regular Army (RA) and entered active duty in the rank and grade of specialist/E-4 (SPC/E-4) for a period of 4 years and 22 weeks.  In addition to entering the Army in the rank of 
SPC/E-4, the applicant also received a $17,000 enlistment bonus and an Army College Fund (ACF) incentive of $69,300.00.  He served on active duty in an enlisted status until he was honorably discharged, in the rank of sergeant/E-5 (SGT/E-5), on 15 July 2009, for the purpose of accepting a commission.  On 
16 July 2009, he was commissioned a second lieutenant (2LT)/0-1 and he has continued to serve in an active duty status. 

6.  During the processing of this case, an advisory opinion was obtained from the Deputy Chief of Staff (DCS), G-1, USACC.  The advisory opinion states the terms of the ROTC scholarship contract require a cadet either to repay his debt monetarily, or agree to be ordered to active duty through ROTC channels based on the needs of the Army.  
7.  The DCS G-1 further states that the applicant was offered the option of being ordered to active duty, or repaying his ROTC scholarship debt at the time he was disenrolled from the ROTC program, and that his choice of options was not returned.  As a result, a debt was established with the Defense Finance and Accounting Service for the cost of his scholarship benefits in the amount of $36,077.89 on 16 December 2004.  Additionally, the DCS, G-1 states the applicant's enlisted service in the RA is not an authorized remedy for debt repayment under the terms of his ROTC contract, and his actions should not eliminate his debt to the Government.  

8.  On 30 July 2009, the applicant responded to the advisory opinion by stating, in pertinent part, that at the time of his disenrollment from the ROTC program, the PMS informed him that in addition to electing to pay back his debt or enlisting in military service, he was also afforded a third choice to continue his education and upon graduation enlist in the Army to fulfill his financial obligation incurred as a result of his breached ROTC scholarship contract.  The applicant indicated that he was never advised differently, that upon graduation he immediately sought enlistment in the Army and informed his recruiter that he wanted to enlist in the Army to pay back the debt he owed as a result of the ROTC scholarship contract. He states that the recruiter informed him that he was taking the proper steps to pay back his debt and informed him that he was also eligible to receive a $17,000.00 bonus.  The applicant further stated that he has since enlisted in the Army, received the $17,000.00 enlistment bonus, completed 13 months of service in Iraq, completed OCS, and this service should serve to satisfy his ROTC debt as he was informed by his recruiter.

9.  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 applicant's contention that the more than 2 years he served as an enlisted Soldier, of which 13 months were served in Iraq, and his subsequent service as a commissioned officer should fulfill his obligation under his breached ROTC contract has been considered.  However, this factor is not sufficiently mitigating to support granting the requested relief. 


2.  The evidence of record confirms the applicant was disenrolled from the ROTC program based on misconduct, as a result of discreditable incidents with civil authorities, which included arrest for a misdemeanor (possession of intoxicants by a minor), probation violation (second arrest for a misdemeanor of possession of intoxicants by a minor), issuance of a warrant based on his failure to pay a fine, and his failure to inform the PMS of a civil conviction.  This breach of his 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 the other incentives, or repayment of his ROTC debt.  The applicant elected not to be called to active duty through ROTC channels, which resulted in establishment of the debt for the ROTC education benefits he received.  

3.  The record further shows that 2 years after breaching his ROTC contract and after he completed his college education, the applicant voluntarily enlisted in the RA for a period of 4 years and 22 weeks.  In conjunction with this enlistment, he entered active duty in the grade of SPC/E-4, and he received a $17,000.00 enlistment bonus and a $69,300.00 ACF incentive, which are benefits he would not have received had he volunteered to be expeditiously called to active duty through ROTC channels when he breached his ROTC contract.  

4.  The applicant's enlistment and subsequent service as a commissioned officer will result in his serving a period of military service equal the military service he would have been required to serve had he had been ordered to active duty through ROTC channels at the time he breached his ROTC contract.  However, given his disenrollment from the ROTC program was the result of his own misconduct, and based on the generous enlistment incentives he received in conjunction with his subsequent enlistment, it would not be appropriate or serve the interest of equity or justice to forgive his ROTC debt at this time.  

5.  There is no evidence of record or independent evidence provided by the applicant that shows he was ever informed that his enlisted service would be accepted as payment for his ROTC debt.  Neither is there any evidence available to show the PMS advised him that he was authorized to continue his education and join the military to repay his debt, as evidenced by the option statement he was provided in conjunction with his ROTC disenrollment.  This option statement provided only two alternatives to repay his ROTC debt, which were immediate call to active duty through ROTC channels or repayment of the ROTC scholarship funds received.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case. 


BOARD VOTE:

________  ___X_____  _______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____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.



      _______ _   XXX_______   ___
       	   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)                                         AR20090001439



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ABCMR Record of Proceedings (cont)                                         AR20090001439


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