IN THE CASE OF:	

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20100012855 


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 that his Reserve Officers' Training Corps (ROTC) scholarship debt be forgiven.

2.  The applicant states that subsequent to his ROTC disenrollment he enlisted and served in the U.S. Army Reserve (USAR) for 4 years and he recently accepted a commission as a Judge Advocate General's (JAG) Corps officer and incurred an additional 4 years of active Army service.  He plans on making the Army a career; however, this debt, coupled with his student loans, has become a tremendous burden for him and his family.

3.  The applicant states his inability to fulfill his contractual obligations as an ROTC cadet was caused by the injuries he received in a severe car accident in January 2002.  The accident resulted in a tremendous amount of blunt force trauma and pain to his chest and abdomen.  During the course of his treatment he suffered a dangerous drug interaction.  He nearly died as a result and suffered intestinal damage that took almost a year to fully recover from.  

4.  The applicant provides a self-authored statement, dated 17 February 2010; a copy of his Federal Student Account; a DA Form 1059 (Service School Academic Evaluation Report) and a certificate, dated 21 March 2009, showing completion of the Warrior Leader Course (WLC); a DA Form 638 (Recommendation for Award), dated 15 January 2009, showing award of the Army Achievement Medal; a Certificate of Achievement, dated 25 July 2008; a certificate, dated 25 July 2008, showing completion of the Paralegal Course; a Letter of Recommendation, dated 28 July 2008; a letter, dated 7 April 2010, from the Defense Finance and Accounting Service (DFAS), Indianapolis, IN; and a his ROTC Disenrollment Memorandum, dated 13 June 2005, in support of his request.

5.  On 19 April 2010, he submitted a copy of his DA Form 71 (Oath of Office – Military Personnel), dated 7 February 2010.

6.  On 26 April 2010, he submitted the following additional documentary evidence in support of his request:  His ROTC Cadet Command Form 131-R (Cadet Action Request), dated 29 September 2004; Cadet Actions Printout, dated 17 February 2004; a copy of a previously-submitted DFAS letter, dated 7 April 2010; a memorandum, dated 12 February 2004, Subject: Investigation Notification; an undated DA Form 3881 (Rights Warning Procedure/Waiver Certificate); a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 4 February 2004; a memorandum, dated 29 January 2004, Subject: the Failure of the Army Physical Fitness Test (APFT); a memorandum, dated 
29 January 2004, Subject: Disenrollment of Scholarship Cadet from ROTC; a memorandum, dated 29 January 2004, Subject: Appointment of Investigating Officer (IO) to Determine Suitability for Retention in the ROTC Program and Amount and Validity of Scholarship Debt; a memorandum, dated 12 February 2004, Subject: Board Notification for Witness; a memorandum, dated 2 March 2005, Subject: Disenrollment from the ROTC Program; a list of exhibits; his 
DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 
26 July 2008; and a self-authored statement, dated 26 April 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a student at Marquette University, Milwaukee, WI.

2.  On 5 November 2002, he executed a DA Form 597-3 (ROTC Scholarship Cadet Contract) enlisting in the US Army Reserve (ROTC Control Group) as an ROTC scholarship cadet.  In so doing, he acknowledged in paragraph 5 (Terms of Disenrollment) of his DA Form 597-3 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.

3.  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.
4.  On 29 January 2004, the U.S Army Cadet Command (USACC) notified him by memorandum of the initiation of disenrollment proceedings due to a breach of contract for failure to pass the APFT.  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.

5.  On 29 January 2004, he acknowledged receipt of the Cadet Command's disenrollment notification.  He requested an opportunity to present matters regarding the amount or validity of his indebtedness before a board of investigating officers.

6.  On 18 February 2004, a formal hearing was conducted at Marquette University to determine the validity and the amount of his scholarship debt as stated in the disenrollment memorandum.  The board found the applicant entered into a valid ROTC contract and he received educational assistance in the amount of $18,200 but failed to complete the requirements of this contract due to APFT failure.  The board recommended that he:

	a.  not be retained in Army ROTC as a scholarship or non-scholarship cadet due to continued APFT failure.

	b.  be disenrolled from Army ROTC for failure to meet contract requirements resulting in a breach of contract.

	c.  not be released from the ROTC contractual obligation.

	d.  not be ordered to active duty in an enlisted status.  He was not physically fit and would not have performed well as an enlisted Soldier.

	e.  be ordered to repay his debt in the amount of $18,200 because he took the benefits of his scholarship contract but ignored his obligations to remain physically fit. 

7.  On an unknown date subsequent to this board the convening authority approved the findings and recommendations. 

8.  On 13 June 2005, by memorandum, USACC, Fort Monroe, VA, notified the applicant that he was disenrolled from the ROTC program in accordance with Army Regulation 145-1 due to breach of contract based on his failure to pass the APFT.  The memorandum informed the applicant of his obligation to satisfy the terms of his ROTC contract through active Army duty in an enlisted status or through the repayment of the cost of the educational assistance provided by the Army.  This memorandum further shows he appealed the validity of the scholarship debt and that his debt was found valid.  He was ordered discharged with uncharacterized service.  A debt was established in the amount of $18,200.

9.  On 25 August 2006, in connection with his enlistment in the USAR, he underwent a physical examination at the Chicago Military Entrance Processing Station.  He completed a DD Form 2807-1 (Report of Medical History) and indicated that he had chickenpox at age 6 and a hand-injury to remove debris and clean a wound in July 2005.  Aside from those entries, he indicated that he had not had any illnesses, diseases, or injuries.  He certified the information on the DD Form 2807-1 was true and complete and authenticated this form by placing his signature in the appropriate place.

10.  On 25 August 2006, he enlisted in the USAR for a period of 8 years without a concurrent order to active duty.  In connection with this enlistment, he was authorized an $11,000 non-prior service enlistment bonus and $20,000 under the student loan repayment program.

11.  He entered active duty for training (ADT) on 23 May 2008 and completed advanced individual training for military occupational specialty 27D (Legal Specialist).  He was released from ADT to the control of his USAR unit on 26 July 2008.  He completed 2 months and 21 days of creditable active service.

12.  During his USAR service, he attained the rank/grade of sergeant/E-5, was awarded the Army Achievement Medal as well as a Certificate of Achievement, and he completed WLC.

13.  On 11 January 2010, he was ordered to active duty in the rank of first lieutenant for a period of 132 days to attend the JAGC Officer Basic Course from 7 February to 6 July 2010.  He executed an oath of office on 7 February 2010.

14.  In a self-authored statement, dated 17 February 2010, the applicant indicated that he was unable to fulfill his ROTC contractual obligation due the medication that he was taking after being involved in a severe car accident.  

15.  On 7 April 2010, DFAS-Indianapolis notified him that his original ROTC debt was established in the amount of $18,226.66.

16.  In a self-authored statement, dated 26 April 2010, he compared his case to that of another Soldier who was discharged due to inadequate academic performance and subsequently enlisted in the U.S. Navy for 4 years.  The Board granted him relief based on the fact that the Department of Defense was still getting the benefits of his service.  In his situation, the applicant states that not only did he enlist in the USAR for 4 years, but he has also taken a 4-year commission and intends to make the Army a career.  He adds that the Board should at least grant him partial relief because the Army is receiving the benefit of his ROTC training.  He also states that his APFT failure and subsequent disenrollment were due to a medical condition and the prescribed medications.  The drugs he was prescribed poisoned his body.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that he 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.  He was notified of his disenrollment due to his failure to pass the APFT.  He elected a hearing and was afforded the opportunity to present matters on his own behalf.  After consideration of his case, 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 payment of his debt.

3.  He subsequently served in the USAR from August 2006 to January 2010 and received an enlistment bonus as well as $20,000 worth of benefits under the student loan repayment program.  He completed 2 months and 23 days of creditable active service.  The terms of the ROTC scholarship contract require a cadet to either monetarily repay his debt or agree to be ordered to active duty as an enlisted Soldier through ROTC channels based on the needs of the Army.  He did not do so.  

4.  There is no evidence in the available records and the applicant failed to submit any evidence that shows his APFT failure was a result of a medical condition or medication that he was taking at the time.  In addition, he either overstated the extent of his injuries he suffered in the car accident in January 2002, or he understated his prior medical history when he enlisted in the USAR in August 2006.  Had he fully reported his prior medical history in August 2006, it is possible he would not have been found fit for enlistment.

5.  Each case is considered on its own merits.  In his case, not only did he fail to serve an appropriate number of years on active duty in an enlisted status, but he also received monetary benefits during his enlistment in the USAR that far exceeded the debt incurred as a result of his ROTC failure.  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)                                         AR20100012855



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ABCMR Record of Proceedings (cont)                                         AR20100012855



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