IN THE CASE OF:	  

		BOARD DATE:   6 July 2010 

		DOCKET NUMBER:  AR20100001118 


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, the mother of an active duty service member [hereafter referred to as the service member], requests, in effect, that her son's Reserve Officers’ Training Corps (ROTC) debt be waived.

2.  The applicant states, in effect, that the service member completed a DD Form 2789 (Waiver/Remission of Indebtedness Application) on 31 January 2007 and chose to enlist in the Army in order not to have to repay the debt.  She adds that he is on a current deployment to Iraq.

3.  The applicant provides the following:

* A copy of two general powers of attorney, one dated 8 January 2007 and annotated as "void - new one created" and one dated 3 September 2009, valid until January 2012
* A copy of a memorandum from Headquarters, United States Army Cadet Command, Fort Monroe, VA, subject:  Disenrollment from the U.S. Army ROTC Program, dated 20 July 2006
* A DD Form 2789
* A copy of a Defense Finance and Accounting Service (DFAS) Account Statement, dated 22 January 2007
* A DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 6 December 2006


CONSIDERATION OF EVIDENCE:

1.  The service member is currently serving in the active Army in the rank/grade of specialist (SPC)/E-4.

2.  On 8 September 2005, the service member enlisted in the U.S. Army Reserve (USAR) ROTC Control Group.  Paragraph 5 of his 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 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.

3.  Paragraph 5c of the service member's DA Form 597-3 stated that 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.

4.  Paragraph 6 of the service member’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; for 4 years if the breach occurred during MS IV, or for 4 years after completion of MS IV if he was a 2, 3, or 4 year scholarship recipient.  Paragraph 6 also states, scholarship recipients who are granted extended scholarship benefits beyond 4 years incur an additional active duty service obligation equivalent to the length of the extended period of scholarship benefits and any unexpired portion of the enlistment obligation remaining after such active duty must be served in a Reserve Component.

5.  On 19 April 2006, Cadet Command, Georgia Military College notified the service member by letter that they were initiating his disenrollment from the ROTC program for dismissal from the Corps of Cadets at Georgia Military College.  A copy of his DA Form 5315-R (U.S. Army Advanced Education Financial Assistance Record) shows he was in MS III when he was disenrolled from the ROTC program.  This record also shows that he received $8,427.00 in scholarship benefits.
6.  The service member acknowledged receipt of the letter on 3 May 2006 and waived his right to a hearing.  He elected to decline a call to active duty within
60 days after the completion of his current projected graduation date or upon withdrawal or dismissal from school.  He also declined an expeditious call to active duty (Special Active Duty Provision).  In accordance with Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program: Organization, Administration, and Training), paragraph 3-43a(16), he was placed on a leave of absence pending his disenrollment from the ROTC program.

7.  On 20 July 2006, Headquarters, United States Army Cadet Command notified the service member that he was disenrolled from the ROTC program due to his dismissal from the Corps of Cadets at Georgia Military College.  He was advised that he must repay the scholarship assistance he received in the amount of $8,427.00 or be ordered to active duty.  He was also advised that if he chose to appeal/dispute the amount or validity of the debt, his appeal must be received no later than 14 days from the receipt of the letter.

8.  On 1 August 2006, he acknowledged receipt of the Cadet Command's disenrollment notification.  In fulfillment of his contractual obligation he promised to repay the total amount owed, $8,427.00, in monthly installments, plus interest on the amount owed, as specified in his scholarship contract.  He also acknowledged his understanding that DFAS would provide him a repayment schedule to liquidate his debt.

9.  A National Guard Bureau (NGB) Form 22-5-R-E (Addendum to DD Form 4) shows the service member requested an interstate transfer from the Georgia ARNG (GAARNG) to the Florida ARNG (FLARNG) on 15 August 2006.  In this request he acknowledges that the transfer is voluntary with a continued membership in the ARNG of the United States and as a Reserve of the Army for the period remaining on his current enlistment, with an Expiration of Term of Service (ETS) date of 5 October 2009.

10.  A copy of his DD Form 2789 shows he requested a waiver for the debt incurred as a result of his disenrollment from the ROTC program and lists his reason for the request as "enlisted in Army."  The gross amount of the debt is $8,427.00.  The applicant provided a DFAS printout, dated 22 January 2007 which shows the service member's adjusted account with a new balance of $8,511.81.

11.  His DD Form 4 shows he enlisted in the USAR on 6 December 2006 in the rank/grade of private (PV2)/E-2 for a period of 8 years under the Delayed Entry Program (DEP).  This form also shows he was discharged from the USAR DEP on 8 January 2007 and he enlisted in the Regular Army on 9 January 2007 in the rank/grade of private first class (PFC)/E-3 for a period of 4 years.   

12.  Page 2 of his DD Form 1966 (Record of Military Processing - Armed Forces of the United States) shows he placed an "X" in the "NO" block for the question, "Are you now or have you ever been in any regular or reserve branch of the Armed Forces or in the Army National Guard or Air Guard?"  The form also shows he enlisted for the following options and he was authorized to ship and be promoted to the rank/grade of PFC/E-3:

* 9A (United States Army Training Enlistment Program), Option 3, for military occupational specialty (MOS) 68W (Health Care Specialist)

* 9C (United States Army Incentive Enlistment Program)

* Code 50 - Partnership for Youth Success (PaYS) program
* Code 270 – U.S. Army Seasonal Bonus (High Priority Seat)
* Code 737 - Army College Fund (ACF) ($62,100.00) and U.S. Army 
   Cash Bonus ($10,000.00) for a 4-year option

13.  A copy of his DA Form 3286 (Statement for Enlistment United: States Army Enlistment Program) shows, in pertinent part, that he acknowledged that he was qualified and enlisting for an MOS or career management field (CMF) that had a cash bonus.  He further acknowledged that the bonus for his MOS or CMF was $10,000.00 and will be paid in accordance with Department of the Army (DA) instructions.

14.  A memorandum from the FLARNG, Headquarters and Headquarters Battery, 3rd Battalion, 265th Air Defense Artillery, Sarasota, FL, subject:  Fraudulent Enlistment from FLARNG to Regular Army - PV2 [applicant's name], dated 5 May 2007, states that the service member withdrew from the Georgia Military College and reverted back to the GAARNG status.  He executed an interstate transfer to the FLARNG on 14 August 2006.  He later requested a within-battalion transfer because he wanted to be trained in MOS 68W.  His request was granted and he was transferred on 1 January 2007 but never reported for duty.  This memorandum also states the applicant never requested a release from the FLARNG and that a DD Form 368 (Request for Conditional Release) was not submitted.

15.  Army Regulation 135-210 (Order to Active Duty as Individuals for Other Than a Presidential Selected Reserve Call-up, Partial, or Full Mobilization) prescribes policies and procedures for ordering individual Soldiers of the ARNG of the United States and the USAR to active duty.  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.  Evidence of record shows that the service member was disenrolled from the ROTC program due to his dismissal from the Corps of Cadets at Georgia Military College.  He was subsequently found in breach of his ROTC contract and he was released back to his GAARNG unit to finish his military service obligation.

2.  The applicant's contention that the service member's ROTC debt be waived because he enlisted in the Army and is currently serving on active duty in Iraq was noted.  However, the available records show the service member enlisted in the USAR DEP on 6 December 2006 with a follow-on enlistment in the Regular Army on 9 January 2007.  These records also show that he did not disclose the fact that he was an active member of the FLARNG at the time of his enlistment.

3.  Available records also show the service member was authorized enlistment in the Regular Army in the rank/grade of PFC/E-3, training for MOS 68W, entitlement to the ACF for $62,100.00) and a cash bonus of $10,000.00.  However, had the service member accepted a call to active duty within 60 days after completion of his projected graduation date or upon withdrawal or dismissal from school, or been involuntarily ordered to active duty as a result of his disenrollment, he would have owed the Army 3 years of service, been assigned against the needs of the Army in the rank/grade of private (PV1)/E-1, and not have been eligible for any enlistment options.

4.  The prospect of negating the service member’s $8,511.81 debt because he enlisted in the Regular Army approximately 5 months after his disenrollment from the ROTC program, plus allowing him to receive a $10,000.00 cash bonus he ordinarily would not have received, would be a windfall.  While this Board has no jurisdiction to stop any bonus in this case, any such bonus would be a legitimate factor to consider in denying equitable relief regarding the ROTC debt.  Therefore, there is no basis for granting the applicant's requested relief on behalf of the service member.


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)                                         AR20100001118



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100001118



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1