IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100009650 


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, that the amount of his Reserve Officers' Training Corps (ROTC) scholarship debt be reduced to an equivalent amount of the cost for a New York resident to attend the State University of New York (SUNY) for 3 years which is between $31,590 and $40,560.

2.  He states due to his family's financial situation, he would have attended a community college rather than an expensive university had he not been recruited by a senior instructor.  He concludes that he is financially incapable of repaying his current debt due to the following reasons:

* He is still attending school; therefore, he will be unable to work full-time until 2016
* Three of four family members are enrolled as full-time college students
* His mother is disabled and unable to work
* His father is self-employed and he has not worked since June 2009
* His family must rely on charitable food pantries
* He needs State medical aid

3.  He provides:

	a.  a self-authored statement;

	b.  student schedules for two additional family members;

	c.  a Department of the Treasury - Internal Revenue Service Form W-2 (Wage and Tax Statement) showing his gross earnings as $10,755 for the 2008 tax year;

	d.  a Department of the Treasury - Internal Revenue Service Form 1040 (U.S. Individual Income Tax Return) showing his parents' stated gross earnings as $25,765 for the 2008 tax year;

	e.  a Social Security Administration (SSA) Form 1099-SM (Social Security Benefit Statement) showing his mother's net benefits for tax year 2008 were $13,180.80; and

	f.  a letter from his mother's primary care physician depicting the conditions for which she is being treated.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a student at the University of Connecticut.

2.  On 9 September 2006, he executed a DA Form 597-3 (ROTC Scholarship Cadet Contract) enlisting in the U.S. Army Reserve (USAR) (ROTC Control Group) as an ROTC scholarship cadet.  In so doing, he acknowledged in paragraph 2f he agreed to undergo precommissioning drug and alcohol screening tests and agreed that if the result of any test was positive he would be subject to disenrollment from the ROTC program.

3.  Paragraph 5 (Terms of Disenrollment) of his DA Form 597-3 stated he acknowledged he understood and agreed that if he failed to complete the educational requirements of his agreement or was disenrolled from the ROTC program:  (1) the Secretary of the Army or his designee could order him to active duty as an enlisted Soldier for a specified period of time; or (2) in lieu of being ordered to active duty, he could be required to repay (with interest) the financial assistance he received through the ROTC program.

4.  Paragraph 6 (Enlisted Active Duty Service Obligation) of his DA Form 597-3 stated 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.

5.  On 26 May 2009, the Professor of Military Science (PMS) of the Nathan Hale Army ROTC Battalion, University of Connecticut, Storrs, CT notified him by memorandum of the initiation of disenrollment proceedings due to a breach of contract as a result of testing positive for steroid use on or about 16 April 2009.  In accordance with paragraph 3-43a(16), Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program:  Organization, Administration, and Training), he was placed on a leave of absence pending disenrollment from the ROTC program.  The PMS also informed him the Army would determine whether to order him to active duty or direct repayment the scholarship funds he had received in the amount of $85,784.

6.  On 3 June 2009, he acknowledged receipt of the Cadet Command's disenrollment notification, acknowledged the amount and validity of his debt, and waived the opportunity to appeal or to present matters regarding the amount or validity of his indebtedness before a board or an investigating officer.  He elected to accept call to active duty within 60 days after completion of his current projected graduation date or upon withdrawal or dismissal from school, in fulfillment of his contractual obligation.  He declined expeditious call to active duty.

7.  On 20 October 2009, the Commanding General (CG) of the U.S Army Cadet Command (USACC), Fort Monroe, VA, notified him by memorandum that he was disenrolled from the ROTC Program under the provisions of paragraph 3-43a(11) of Army Regulation 145-1 due to the fact his positive urinalysis barred him from appointment as a commissioned officer.  The CG also informed him that when an 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 $85,784.  The CG also afforded him an opportunity to elect to either pay the total amount in lump sum or to initiate a repayment plan with the Defense Finance and Accounting Service (DFAS).

8.  On 10 November 2009 he promised to repay the total amount owed in monthly installments, plus interest on the amount owed, as specified in his scholarship contract.  He also acknowledged he understood that the 
DFAS-Denver Center would provide him a repayment schedule to liquidate his debt.  He concluded by informing the CG that he intended to submit an appeal.

9.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program.  Paragraph 3-43a(11) states a cadet may be disenrolled when it is discovered that a fact or condition exists that will bar a cadet for appointment as a commissioned officer, to include a positive urinalysis for drug and alcohol abuse.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was offered and accepted an Army ROTC scholarship.  In return, he agreed to accept an appointment as a USAR officer.  Additionally, he acknowledged that, should he be disenrolled after becoming obligated under the terms and conditions of the ROTC contract, he agreed to serve on active duty as an enlisted Soldier, or to reimburse the Government for the entire cost of his scholarship, plus interest.

2.  On 16 April 2009, he was notified he was disenrolled as a result of testing positive for steroid use.  He elected to waive the opportunity to appeal or to present matters regarding the amount or validity of his indebtedness before a board or an investigating officer.

3.  After consideration of his case by the USACC, he was determined to have entered into a valid contract and received educational assistance but failed to complete the requirements of this contract.  He was recommended for disenrollment and repayment of his debt.

4.  He subsequently promised to repay the total amount owed in monthly installments, plus interest on the amount owed, as specified in his scholarship contract.  He also acknowledged his understanding that the DFAS-Denver Center would provide him a repayment schedule to liquidate his debt.

5.  His family's financial status and his allegation that he would have attended a community college rather than an expensive university had he not been recruited by a senior instructor are duly noted.  However, neither of these situations eradicates the fact that he entered a contractual agreement to participate in the ROTC Program, received advanced educational assistance in the amount of $85,784, and failed to uphold the requirements of his contract.  He should not be allowed to profit from his failure to live up to Army standards.  The applicant breached his ROTC contract and he is not entitled to relief.  

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)                                         AR20100009650



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ABCMR Record of Proceedings (cont)                                         AR20100009650



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