BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20100008131 


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 his Reserve Officers’ Training Corps (ROTC) scholarship debt be forgiven based on his enlistment and service in the Army.

2.  The applicant states he was disenrolled from the ROTC program on 23 November 2006 and he was denied active duty service which he requested in accordance with his contract to fulfill his obligation.  Instead, he received a letter of indebtedness from the Defense Finance and Accounting Service (DFAS).  He submitted multiple letters of recommendation at the time requesting entry on active duty but he was denied.  Nevertheless, independent of his punishment, he enlisted in the Regular Army (RA) in May 2007, as soon as he became eligible and he continues to serve today.  He was the distinguished honor graduate in infantry training and received two awards of the Army Achievement Medal.  He also completed the Special Forces Selection and Assessment and was awarded a special forces military occupational specialty with a foreign language.  He also completed multiple training courses without any negative peer review or counseling.  He was awarded the Expert Infantryman Badge and he is currently deployed as a sniper with an infantry unit in support of Operation Iraqi Freedom.

3.  The applicant provides the following documents:

* a copy of a memorandum, dated 3 December 2004, Subject: Recommendation for branch change
* a copy of a memorandum, dated 3 December 2004, requesting branch change to Infantry
* a copy of his Acknowledgement of cadet document, dated 16 November 2005
* a copy of an Addendum to Part II, Agreement of Cadet Contract, Active Duty Option, dated 16 November 2005
* an undated self-authored statement
* copies of three letters of recommendation, dated in 2005 and 2006
* a copy of an undated letter from DFAS, Denver, CO
* a copy of his Enlisted Record Brief, dated 15 January 2010
* a copy of his deployment orders, dated 18 June 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) (ROTC Control Group) on 27 August 2001.  Paragraph 5 (Terms of Disenrollment) of the applicant's 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 reimburse the United States the dollar amount plus interest that bears the same ratio to the total cost of the scholarship financial assistance provided by the United States to the cadet as the unserved portion of active duty bears to the total period of active duty the cadet agreed to serve or was ordered to serve.

2.  Paragraph 6 (Enlisted Active Duty Service Obligation) of his 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, or for 4 years if the breach occurred during MS IV.

3.  On 14 September 2005, by memorandum, his Professor of Military Science (PMS) notified him of the initiation of disenrollment action from the ROTC due his misconduct.  Specifically, he cited his two civil convictions; reckless driving on
13 February 2005 and driving under the influence (DUI) on 30 April 2005.  He was further notified that he was placed on an administrative leave of absence pending completion of his disenrollment.  He was further informed that as a scholarship cadet, he could be called to active duty in an enlisted rank/grade of private (PV1)/E-1 or required to repay scholarship benefits in the amount of $56,605.53 in lieu of call to active duty.

4.  On 15 November 2005, the applicant acknowledged receipt of the above memorandum concerning disenrollment from the ROTC program.  He elected to waive his right to a hearing and elected to accept expeditious call to active duty 

in fulfillment of his contractual obligations.  He further acknowledged that he understood an order to active duty in an enlisted status in fulfillment of his contractual obligation would require him to serve for a period of 4 years.

5.  On 18 April 2006, by memorandum, the Commanding General, U.S. Army Cadet Command (USACC), approved the request and ordered the applicant disenrolled from the ROTC Program under the provisions of Army Regulation 145-1 (Senior Reserve Officers’ Training Corps Program: Organization, Administration, and Training) by reason of undesirable character as demonstrated by his conviction for two separate traffic offenses, reckless driving and DUI.  The memorandum also notified the applicant that when the ROTC scholarship contract is breached, an obligation to the Army must be satisfied by repaying the cost of advanced educational assistance provided by the Army and that the amount of monies spent in support of his education was $56,605.53.

6.  On 18 May 2006, the applicant acknowledged his disenrollment from the ROTC under the provisions of Army Regulation 145-1 and in deciding the method of fulfilling his contractual obligation, he elected to repay the total amount owed, $56,605.53, in monthly installments, plus interest on the amount owed as specified in his scholarship contract.

7.  Subsequent to this election, DFAS-Denver notified him that he was indebted to the U.S. Government in the amount of $56,605.53 for the recoupment of education expenses paid on his behalf during his participation in the ROTC program.

8.  On 21 May 2007, the applicant enlisted in the RA for a period of 5 years.  His DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows he enlisted in the rank/grade of private first class (PFC)/E-3 for a cash bonus of $27,000 and the Loan Repayment Program.  

9.  The applicant's records show he completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He also accomplished the following:

* He completed the Special Forces Warrior Leader Course
* He was awarded the Expert Infantryman Badge on 10 March 2009
* He was awarded an Army Commendation Medal on 10 August 2010
* He is currently assigned to the 2nd Battalion, 504th Infantry, Fort Bragg, NC, and is deployed as a sniper.



10.  He submitted the following documents:

	a.  An undated self-authored statement wherein he states that he asks nothing from the Army except that he be allowed to serve.  He chronicles his achievements during his time with the ROTC and states that he received two alcohol-related violations during his fourth year but his behavior was an isolated incident rather than a pattern.

	b.  Copies of various letters of recommendation, dated 2006 and 2007, from three individuals who strongly recommended that he serve on active duty.

	c.  A copy of a memorandum, dated 3 December 2004, wherein he requested to change his cadet branch to infantry because he loved what the infantry Soldiers do.

	d.  A copy of a memorandum, dated 3 December 2004, from his Professor of Military Science recommending a branch transfer for him.

11.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program.  Paragraph 3-43a(14) states a cadet may be disenrolled for undesirable character demonstrated by cheating on examinations; stealing; unlawful possession, use, distribution, manufacture, sale (including attempts) of any controlled substances; discreditable incidents with civil or university authorities; or similar acts characterized as misconduct.

12.  Title 10, U.S. Code, section 2005(a) states 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 under the terms of which such person shall agree:  (1) to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement; and (2) that if such person fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement.

13.  Title 10, U.S. Code, section 2005(f) states that the Secretary concerned shall require, as a condition to the Secretary providing financial assistance under section 2107a (financial assistance program for specially selected members:  Army Reserve and Army National Guard; i.e., ROTC) of this title to any person, that such person enter into an agreement described in subsection (a).  In addition to the requirements of clauses (1) through (4) of such subsection, any agreement required by this subsection shall provide (1) that if such person fails to complete the education requirements   the Secretary shall have the option to order such person to reimburse the United States (emphasis added) in the manner provided for without the Secretary first ordering such person to active duty as provided for under clause (2) of such subsection.

14.  Army Regulation 135-210 (Order to Active Duty as Individuals) 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 evidence of record confirms that the applicant enlisted in an ROTC program.  He agreed that if he were disenrolled from the ROTC program for any reason, he could repay his scholarship debt or be ordered to active duty in the rank/grade of PV1/E-1 for an appropriate number of years.  The evidence of record also shows he failed to satisfy the contractual requirements of this program due to two civilian convictions (reckless driving and a DUI).  Therefore, he was found in breach of his ROTC contract and was accordingly notified of his disenrollment from the program.

2.  Although he elected an expeditious call to active duty upon his notification of disenrollment proceedings, the evidence of record shows once his disenrollment was approved, he elected to repay his debt in monthly installments.

3.  Further, following his disenrollment, he voluntarily enlisted in the RA in the rank/grade of PFC/E-3 for 5 years and is now serving on active duty.  He contends his 5-year enlistment in the RA should fulfill his obligation under his breached ROTC contract.  However, 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 other incentives, which he received.

4.  Although the applicant’s current enlistment in the RA provides the Government the benefits of his service, had he elected an expeditious call to active duty to repay his debt for breaching his ROTC contract, he would have been assigned against the needs of the Army with a 4-year active duty commitment in pay grade E-1.  However, he enlisted in the RA in the pay grade of E-3.  

5.  His decision to breach his ROTC contract and enlistment in the Army were voluntary actions.  His voluntary enlistment in the Army is not an authorized remedy for ROTC debt repayment under the terms of his ROTC contract.  He received an educational benefit with a promise to fulfill his obligations.  He failed to do so due to his own misconduct.  He then used the education he learned to enlist in a higher grade otherwise not available to others.  Therefore, he should be required to repay the scholarship benefits in accordance with his ROTC contract.

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)                                         AR20100008131



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)