BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100014358 


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 her Reserve Officers' Training Corps (ROTC) scholarship debt be forgiven based on her transfer to a U.S. Navy ROTC Program.

2.  The applicant states that service members are allowed the internal transfer from one service to another.  She transferred from an Army ROTC Program to a Navy ROTC Program at the same university.  As a result of this transfer, the Army disenrolled her from the ROTC Program and required her to pay back all tuition and allowances totaling over $35,000.00.

3.  The applicant provides the following documents:

* a letter to the Defense Finance and Accounting Service (DFAS)
* a letter from Headquarters, U.S. Army Cadet Command (USAAC)
* two letters from DFAS
* verification of her Navy service

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve Control Group (ROTC) on 2 September 2003.  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 her DA Form 597-3 states that if she were called to active duty for a breach of contract under the provisions of paragraph 5, she would be ordered to active duty for 2 years if the breach occurred during Military Science II, for 3 years if the breach occurred during Military Science III, or for 4 years if the breach occurred during Military Science IV.

3.  On 22 August 2005, her Professor of Military Science notified her by memorandum of the initiation of disenrollment action from the ROTC due to her failure to enroll in the Army ROTC Program at Hampton University, which was a breach of her scholarship contract.  She was also notified that she retained the status of cadet until disenrollment and discharge action were complete and as such may not enlist in any other military service or component or sign any other scholarship contract.  She was further informed that as a scholarship cadet she 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 $28,170.00 in lieu of a call to active duty.

4.  Her records contain a memorandum indicating she failed to respond to the memorandum concerning disenrollment from the ROTC Program.  In doing so, she waived her right to a hearing.  However, it remains unclear if her intent was an election to accept an expeditious call to active duty in fulfillment of her contractual obligations or an acknowledgement that an order to active duty in an enlisted status in fulfillment of her contractual obligation would require her to serve for a period of 2 years.

5.  On 21 November 2005, 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 ROTC Program:  Organization, Administration, and Training) by reason of failure to enroll in the Military Science 301 class for the Fall 2005 semester.  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 her education was $28,170.00.

6.  On 12 December 2005, the applicant acknowledged her disenrollment from the ROTC under the provisions of Army Regulation 145-1 and in deciding the method of fulfilling her contractual obligation, she elected to repay the total amount owed, $28,170.00, in monthly installments plus interest on the amount owed as specified in her scholarship contract.

7.  Subsequent to this election, DFAS-Denver notified her that she was indebted to the U.S. Government in the amount of $28,170.00 for the recoupment of education expenses paid on her behalf during her participation in the ROTC Program.

8.  On 18 July 2007, in response to the applicant's submission of a waiver of the debt, a DFAS official notified her that by Public Law 92-453 any payment that is legal and proper when paid may not be considered for a waiver.  At the time she received her $28,170.00 Army ROTC scholarship, payment was proper.  Therefore, this debt is not an erroneous payment subject to a waiver under the law.

9.  On 31 August 2007, she responded to DFAS and stated that she entered the ROTC Program on 3 September 2003 at Hampton University.  She requested a lateral transfer from the Hampton University Army ROTC Program to the Hampton University Navy ROTC Program, but the Army denied her request for no reason.  After being denied, she was disenrolled from the Army ROTC Program.  She then enrolled in the Navy ROTC Program in November 2003 at the same university.  She basically laterally transferred and her 6-year obligation to her country and the U.S. Government remained the same.  She would finish her Navy ROTC Program in 2007 and she would begin serving her active duty service in the Navy as a commissioned Navy Ensign.  The U.S. Government funds both programs.  Therefore, she should not have to pay back any money.

10.  On 9 October 2007, a DFAS official responded to her by saying her response was neither timely nor justified and that DFAS did not have the legal authority to waive the recoupment.

11.  On 28 November 2007, the USACC Deputy Chief of Staff, G-1, notified her by letter that legal restrictions precluded the USACC from granting a waiver of a properly-established debt for the recoupment of scholarship funds arising from breach of the ROTC contract.

12.  On 5 December 2007, she petitioned the Army Board for Correction of Military Records (ABCMR) for a waiver of her debt.

13.  An advisory opinion was obtained from USACC on 12 May 2008 in the processing of her December 2007 petition.  An official at USACC stated that:

	a.  the terms of the ROTC scholarship contract require a cadet to either repay the debt monetarily or agree to be ordered to active duty through ROTC channels based on the needs of the Army.  The applicant was offered these options on 21 November 2005 after being disenrolled from the ROTC Program due to breach of contract.  She chose to repay in monthly installments and a debt was accordingly established on 6 January 2006.

   b.  Per paragraph 3-47b of Army Regulation 145-1, a lateral transfer is not authorized.  She enrolled in the Navy ROTC Program prior to her release from the Army ROTC Program.  Based on the information she listed on her application to the ABCMR, she was to enter active duty for a total of 6 years upon completion of the Navy ROTC Program.  Her current active duty service commitment is not in satisfaction of her ROTC contractual obligation.  Her service in the Navy is not an authorized remedy for debt repayment under the terms of her Army ROTC contract.  Her $28,170.00 benefits are profits she should not be allowed to retain.  Her actions should not eliminate her debt to the U.S. Government.

14.  She responded with a letter on 17 June 2008 wherein she requested an extension to submit a rebuttal due to a death in the family.  However, she never submitted the rebuttal.

15.  On 15 October 2008, a staff member of the ABCMR notified her by letter that under normal circumstances an ROTC scholarship cadet who disenrolls and accepts active duty in lieu of debt repayment would be required to serve a set term of active duty enlisted service.  She disenrolled in her third year and enrolled in a Navy ROTC Program.  Since she has not completed the 2-year period of active duty required by the conditions of her Army ROTC Program contract, her application was administratively closed and returned without action.

16.  She submits a statement from the Personnel Support Activity Detachment, Fort Meade, MD, dated 8 April 2010, verifying her current active duty service in the Navy with an indefinite separation.

17.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract.  Breach is defined as any act, performance, or nonperformance on the 

part of a student that breaches the terms of the contract regardless of whether the act, performance, or nonperformance was done with specific intent to breach the contract or whether the student knew that the act, performance, or nonperformance breaches the contract.  One of the reasons for disenrollment is to receive an appointment or enter an officer training program other than ROTC.  The release must be approved by the region commander or higher headquarters.

18.  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.

19.  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 in the manner provided for without the Secretary first ordering such person to active duty as provided for under clause (2) of such subsection.

20.  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 she enlisted in an ROTC Program.  She agreed that if she were disenrolled from the ROTC Program for any reason, she could repay her 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 

she failed to satisfy the contractual requirements of this program due to her voluntary transfer to another program prohibited by her contractual agreement.  Therefore, she was found in breach of her ROTC contract and was accordingly notified of her disenrollment from the program.  Once her disenrollment was approved, she elected to repay her debt in monthly installments.

2.  Further, prior to her disenrollment, she voluntarily entered another ROTC Program and has since completed it and is now serving on active duty.  She contends her Navy ROTC enrollment and current active duty service should fulfill her obligation under her breached Army ROTC contract.  However, her 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 she received.

3.  Her current active duty service commitment is not the result of being ordered to active duty through ROTC channels in satisfaction of her ROTC contractual obligation.  Nevertheless, her active service in the U.S. Navy serves the same purpose as would have been served had she been ordered to active duty in the Army.  The Department of Defense continues to get the benefits of her current service in the U.S. Navy.  She would have owed the Army 2 years had she been ordered to active duty.  As a matter of equity it would be appropriate to consider her U.S. Navy active service to have met the active duty obligation required by her ROTC scholarship contract.

BOARD VOTE:

___x_____  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her ROTC scholarship contract to show she would satisfy the 

$28,170.00 debt under the original terms of the ROTC contract by successfully completing 2 years of active duty service in the U.S. Navy.



      ____________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)                                         AR20100014358



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100014358



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1