IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100000526 


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:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's Reserve Officers’ Training Corps (ROTC) debt be cancelled.

2.  Counsel states:

* The applicant received a two year scholarship beginning in the Fall of 2001 at Florida Institute of Technology (FIT)
* After a series of events, he was disenrolled from the ROTC program and is facing repayment of $26,400 plus accrued interest
* This debt is an incredible hardship on the applicant and his family 

3.  Counsel states the applicant was an excellent cadet at FIT, he started the program in January 2001 as a non-scholarship cadet, and he excelled at basic camp finishing in the top 25 percent of cadets.  During his training at basic camp he injured his ankle and his knee.  He was given a profile from running and marching but, eager to perform well and enthusiastic about his training, he participated in all the events with the other cadets.  After basic camp, he was offered a basic camp scholarship and the terms were for two years and he needed a waiver for his grade point average (GPA).

4.  Counsel states while serving as a cadet the applicant received excellent ratings on his evaluations but he continued to be plagued by the injuries he received in basic camp.  He suffered a few additional injuries and was on a profile for a large majority of the time.  Towards the end of the Fall 2002 semester, the applicant was called in to see his Professor of Military Science (PMS) as the PMS had been informed the applicant was not attending class.  The applicant was berated by the PMS, and was told to start going to class and to pull his grades up enough to pass.  However, there was less than a month left before the end of the semester and the applicant did not have enough time to pull his grades up.  At the end of the semester, he failed two courses.  The applicant was informed this was his third strike as he had allegedly been on probation two times prior to this incident.  The applicant was dumbfounded by this because this was the first time he learned of any probation.  The PMS showed the applicant the probationary status paperwork; however, there were no signatures from the applicant on the paperwork.  The PMS made the applicant sign them all that day.      

5.  Counsel states that during Christmas break the applicant was given an ultimatum from his PMS that he had to pass the Army Physical Fitness Test (APFT), go to all of his classes, and graduate on time or he would be disenrolled.  He was also told he would not accept any profiles from the applicant and he was punished by having all rank stripped away.  The applicant was presented with a scholarship probation memorandum which he signed in January 2003.  His scholarship was pulled and he had to take a private loan for his tuition.  The applicant was accused of cheating on an APFT and was told by his PMS he was being disenrolled.  This was the day before graduation.  The applicant graduated but was not commissioned.  His disenrollment papers were sent to him by mail.  He requested a review but more paperwork was sent to him advising him his review was not favorable and he was being recommended for enlistment.  The paperwork also advised him of repayment of the debt and again the applicant requested a review of the action.  

6.  Counsel also states that five months later, the applicant received a call from the ROTC department that he was having an official formal review of his file that day and he was entitled to representation, witnesses, and to submit evidence on his own behalf.  He received the call at 0900 and told the hearing was at 1100.  The applicant contacted the reviewer and met him at a Denny's restaurant to discuss his situation.  The reviewer told the applicant he was being disenrolled due to cheating on the APFT.  The applicant defended himself against these accusations and was told to be ready to go in a few weeks for an APFT.  The applicant understood this to mean he would be getting his commission after passing the test.    

7.  Counsel states a few weeks turned into a year and a half.  In August 2005, the applicant received forms from the review which recommended he be disenrolled but he would not be required to pay back scholarship monies received.  The applicant submitted an appeal but in January 2007 he received final notice he was disenrolled and had to start paying back his scholarship money.  He was contacted by the Defense Finance and Accounting Service (DFAS) and informed of his options for repayment.  He disputed the debt with DFAS but his request was denied.  He began saving money for an attorney because he clearly felt he did not breach his contract as alleged and should not have to pay the debt.  His wages have been garnished.

8.  Counsel states when the applicant was placed on probation, he complied with all the terms and demands of his PMS.  It appears the PMS was displeased with the applicant for his repetitive injuries and wanted him out of the program.  The applicant did not cheat on the APFT and no proof has been offered to the contrary.  The investigating officer told the applicant he was being disenrolled for cheating but there was never any opportunity for the applicant to hear the evidence presented against him.  The investigating officer recommended the applicant not have to pay back the debt as it was apparently obvious there was no willful misconduct. 

9.  Counsel states while the applicant struggled with his grades throughout college, he excelled at his military science classes.  He was mistaken about the GPA requirements and was under the impression as long as he maintained a cumulative GPA of above 2.0 he was fine.  He did not realize he had to keep each semester GPA above 2.0.  The PMS failed the applicant in not pulling him aside and notifying him he was not meeting standards.  Had the process been followed of placing him on probation for academics, the applicant would have had an opportunity to get his grades back on course.  The PMS did not notify him of his probationary status until it was too late.

10.  Counsel further states the allegations the applicant cheated are unfounded, the garnishment is an incredible hardship for the applicant, and the PMS has continued to harm the applicant by giving negative and inaccurate information to prospective employers.  If the applicant had been formally counseled, had the opportunity to get back on track, and continued to fail, it would make sense to disenroll him from the program and require payback of monies received.  However, this was not the case.  The applicant received his first probationary memorandum at the end of the Fall 2002 semester as evidenced by his signature.  The first notification is dated January 2002 but it was not presented to the applicant until December 2002.  In addition, the August 2002 memorandum was not presented to the applicant until December 2002.  Once notified, the applicant complied with the terms of his probation and finished the spring semester with a GPA of 2.52.  His cumulative GPA at graduation was 2.23.  The applicant clearly complied with the terms of his contract, was erroneously disenrolled, and therefore should not be forced into repayment.  He was punished severely during the last semester, having his rank and scholarship monies taken from him.  He should not continue to be punished.       

11.  Counsel provides five enclosures outlined on page 6 of his brief.

CONSIDERATION OF EVIDENCE:

1.  On 27 August 2001, the applicant enlisted in the U.S. Army Reserve (USAR) ROTC Control Group.  

2.  Paragraph 1f of the applicant's DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) shows he agreed to maintain, as a minimum, a cumulative academic GPA of 2.0 on a 4.0 or equivalent scale and this GPA must also be maintained for each semester or quarter. 

3.  Paragraph 7 of the applicant’s DA Form 597-3 states if the cadet were disenrolled from the ROTC program for these reasons (failing to complete the educational requirements specified in this agreement or other educational requirement for ROTC cadets as specified in Army regulations; failing to comply with other terms and conditions of this contract; misconduct; or other disenrollment criteria established now or in the future by Army regulations), the Secretary of the Army could order the cadet to active duty as an enlisted Soldier for a period of not more than four years or, in lieu of being ordered to active duty, could order the cadet 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 this contractual agreement to the date of his disenrollment or refusal to accept a commission.  

4.  Records show the applicant was placed on scholarship probation for failing classes on 30 January 2002 (signed by the applicant on 6 December 2002),     26 August 2002 (signed by the applicant on 12 December 2002), and 8 January 2003 (signed by the applicant on 31 January 2003).  He was counseled by his PMS in November 2002 for poor academic performance, missing classes, and possible disenrollment.  In December 2002, he was counseled by his PMS for poor academic performance, missing classes and failing two classes, possible disenrollment due to poor performance as a cadet, and poor physical fitness.  On 10 February 2003, his scholarship was terminated.

5.  On 7 May 2003, disenrollment action from the ROTC program was initiated against the applicant for unsatisfactory performance as a cadet at FIT.  The PMS cited the applicant demonstrated a total inaptitude for military service as frequently demonstrated by his lack of general adaptability, skill, hardiness, ability to learn, and leadership abilities.  The PMS indicated after reviewing the applicant's academic transcripts and speaking with his professors, it appeared his lack of discipline and dedication toward his academic responsibilities was the cause of such a poor academic performance.  In addition, he pointed out the applicant had failed numerous APFTs.  The applicant was placed on a leave of absence pending his disenrollment and afforded the opportunity to request a hearing by a board of officers or an investigating officer; or waive his right to a hearing.  

6.  On 16 May 2003, the applicant requested a board of officers or investigating officer be appointed to review his case and he elected to decline expeditious call to active duty.

7.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 20 December 2003, shows the investigation board commenced on 2 December 2003.  The board found the applicant:

* Did enter into a valid Army Senior ROTC cadet contract
* Did not meet the requirements of the APFT
* Did voluntarily, with no acceptable reason, fail to complete the requirements of the ROTC cadet contract

The investigation determined the applicant did continuously fail to meet the standards for the APFT and did not demonstrate to his instructors either an aptitude for military service or the leadership abilities required of an Army officer.  The board recommended the applicant:

* Should not be retained in ROTC as a scholarship cadet
* Should not be ordered to active duty in an enlisted status but should be allowed to return to his Reserve unit to fulfill the remainder, if any, of his enlistment agreement
* Should not be ordered to repay his valid debt to the U.S. Government 

The appointing authority approved the findings and recommendations of the investigating officer with the following exception:  He disagreed with the investigating officer's recommendation that the applicant not pay back his scholarship monies.  He stated there is no justification for this recommendation and the applicant should pay back the Army for his scholarship.   

8.  On 20 July 2006, the Commander, U.S. Army Cadet Command, Fort Monroe, Virginia, notified the applicant by memorandum that he was disenrolled from the ROTC program in accordance with Army Regulation 145-1 (Senior ROTC Program:  Organization, Administration, and Training), paragraphs 3-43a(6) and (13) based on his failure to maintain a minimum semester academic GPA of 2.0 on a 4.0 scale and lack of general adaptability, skill, hardiness, ability to learn, and leadership abilities as evidenced by his failure to pass the APFT.  The memorandum also informed the applicant of his obligation to satisfy the Army by repaying the cost of advanced education assistance provided by the Army, valued at $26,400.00 at that time.

9.  The applicant appealed the recoupment of educational expenses.  On 
19 March 2007, the Assistant Deputy Chief of Staff, G-1 ratified the validity of the applicant's Army ROTC scholarship debt and determined there was sufficient evidence to support recoupment.

10.  There are no service medical records available.

11.  Paragraph 3-43a(6) of Army Regulation 145-1 states nonscholarship and scholarship cadets will be disenrolled for failure to maintain a minimum semester or quarter cumulative academic GPA of 2.0 on a 4.0 scale or higher if required by the school and at least a 3.0 on a 4.0 scale or equivalent semester or quarter and cumulative average in all ROTC courses.  Paragraph 3-43a(13) of this regulation states nonscholarship and scholarship cadets will be disenrolled for inaptitude for military service as demonstrated by lack of general adaptability, skill, hardiness, ability to learn, or leadership abilities.

DISCUSSION AND CONCLUSIONS:

1.  Although counsel contends the applicant was not notified in a timely manner of his scholarship probations for failing classes and not maintaining a 2.0 GPA, the applicant's contract shows he agreed to maintain (as a minimum) a cumulative academic GPA of 2.0 on a 4.0 or equivalent scale and that this GPA must also be maintained for each semester or quarter.

2.  The evidence of record does not support counsel's contention the applicant clearly complied with the terms of his contract.  Evidence of record shows the applicant was disenrolled from the ROTC program based on his failure to maintain a minimum semester academic GPA of 2.0 on a 4.0 scale and lack of general adaptability, skill, hardiness, ability to learn, and leadership abilities as evidenced by his failure to pass the APFT.  

3.  Counsel's contention the applicant was erroneously disenrolled, and therefore should not be forced into repayment, was noted.  However, there is no evidence of record, and counsel has provided no evidence, which shows the applicant was improperly disenrolled from the ROTC program under the provisions of Army Regulation 145-1, paragraphs 3-43a(6) or (13).  As a result of the breach of the applicant's ROTC contract, he was obligated to repay his scholarship.  Therefore, 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)                                         AR20100000526





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ABCMR Record of Proceedings (cont)                                         AR20100000526



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