IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100015954 


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 relief from the debt he incurred when he was disenrolled from the Army Reserve Officers' Training Corps (ROTC).

2.  He states Vanderbilt University (VU) ROTC failed to correct one of his grades or to inform him to begin attending classes again.

3.  He provides copies of:

* a letter from the Defense Finance and Accounting Service (DFAS) regarding the status of his account
* letters he wrote to the Secretary of the Army, a Major K--t, and the Internal Revenue Service (IRS)
* correspondence related to his disenrollment
* administrative and academic records pertaining to his ROTC disenrollment

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame 


provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 5 December 2001, the applicant accepted a 4-year ROTC scholarship by executing a DA Form 597-3 (ROTC Scholarship Cadet Contract).

	a.  He acknowledged that if his scholarship benefits were temporarily inactivated by a leave of absence or administrative suspension, or terminated due to his failure to meet academic or military retention standards for scholarship cadets, as prescribed by law, Army regulation or the contract, he would not be relieved of his obligations to the U.S. Army and his obligations under the contract would remain in effect.

	b.  He acknowledged that if he failed to meet the requirements and conditions of his contract or was disenrolled from the ROTC program the Secretary of the Army or his designee could order him to active duty as an enlisted Soldier for a period of not more than 4 years or, 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.

	c.  He indicated he understood he could be deemed to have failed to comply with the terms and conditions of the contract regardless of whether he knew that the failure violated the contract and regardless of whether the failure was the result of an act or omission on his part made with a specific intent to avoid responsibilities under the contract.

3.  His academic transcript from Fisk University (Fisk), Nashville, TN, shows he matriculated in the fall semester of 2001.  He did not attend military science (MS) courses during his first academic year, but enrolled in MS courses at VU beginning in the fall semester of 2002.  (VU provides ROTC courses and training for students from several Nashville-area universities, including Fisk.)

4.  Copies of e-mails in the case file maintained by the U.S. Army Cadet Command (USACC) show he informed his MS instructor:

* on 10 September 2002, he would not attend a field training exercise due to a family emergency


* on 24 November 2002, he did not attend class on 21 November 2002 because his mother was rushed to the hospital
* on 22 January 2003, he would not be in class all week because he had a bad cold
* on 17 March 2003, he was sorry he had not attended class, explaining he had been making frequent trips to take care of his sick mother
* on 17 March 2003, apparently after receiving a response from his instructor, that if ROTC couldn't understand that his mother "might not be here tomorrow" and that he wanted "to spend every last minute" he could with her, then he didn't think his presence in ROTC was needed anymore

5.  The record is void of documentation confirming his mother was ill.

6.  On 29 April 2003, an administrative assistant at the VU Department of Military Science reported his MS course grade for the 2003 spring semester to the Registrar's Office at Fisk.  The memorandum shows he received a grade of "I" [incomplete] for MS 151, American Military History:  Principles of War.

7.  An undated printout from the Fisk Office of the Registrar shows his grade for MS 151 was changed from "I" to "F" [fail] on 12 June 2003.

8.  A Fisk transcript, dated 13 June 2003, shows he received a grade of "E" in the MS course he enrolled in at VU during the spring 2003 semester.  The Fisk website states the grade of “E” is a failing grade, indicating failure to meet the minimum requirements of the course.  Under some circumstances, the "E" grade is given when the student's work is incomplete or when the student has withdrawn from the course.  A course for which the grade of "E" is given must be repeated and a higher grade earned, if credit is desired.

9.  A DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record), certified on 18 August 2003, shows he had received a cumulative total of $21,690.00 in financial assistance as of that date.

10.  On 18 August 2003, the Professor of Military Science (PMS) at VU notified the applicant he was initiating his disenrollment from the ROTC program due to his breach of contract by failing to maintain a 3.0 semester and cumulative ROTC grade point average (GPA).  He further informed him he was being placed on leave of absence (LOA) pending disenrollment.


11.  The PMS informed him that:  

* he had the right to request a hearing by a board of officers or an investigating officer, or to waive that right
* if he failed to respond to the notification or future notifications during the disenrollment process, proceedings would continue in his absence and without his input
* he might waive his right to present matters regarding his indebtedness or disenrollment if he failed to respond or appear at the appropriate times
* if he failed to respond within 10 working days, proceedings would continue without his input and might prejudice his rights
* if he was disenrolled he could be ordered to active duty or to repay scholarship funds he had received

12.  On 9 September 2003, the notice was returned as unclaimed mail.

13.  On 4 December 2003, he signed an acknowledgment form indicating he had read and thoroughly understood why he was being disenrolled from the ROTC program.  He requested a board of officers or investigating officer be appointed so that he could personally appear and respond regarding his disenrollment and his scholarship indebtedness.  He declined expeditious call to active duty.

14.  Additionally on 4 December 2003, he sent a letter to the PMS.  He stated he was shocked by the disenrollment action.  He acknowledged he had received a grade of "I" for MS 151 because he had missed days and the final exam due to the fact that his mother was ill during the semester, but indicated he believed he had a semester to make up the missed exam and receive the correct grade.  He also stated the "I" grade was improperly changed to an "E" and that his MS instructor had his cell phone number and did not inform him of the situation.

15.  On 16 December 2003, the PMS again notified him he was initiating his disenrollment from the ROTC program.  This notification states he was being disenrolled due to breach of contract for failing to enroll in ROTC classes for the fall semester of 2003.  The PMS confirmed he had received a grade of "I" for MS 151 and that his Fisk transcript showed the grade of "E."  The PMS directed he take the matter up with the Fisk registrar.  The PMS again informed him of his rights, the effects of disenrollment, the amount of his scholarship debt, and his obligation to respond within 10 working days of receipt of the notification.


16.  On 19 December 2003, he responded to the PMS.  He reiterated his position that the grade shown on his Fisk transcript was incorrect and he indicated that he took issue with being disenrolled on the new basis of failing to enroll in ROTC classes.  He stated that at Fisk he could not enroll in an ROTC class.  The policy was to attend class and the grade would appear on the transcript at the end of the semester.  He did not attend class because he was told he was on LOA.  He also indicated he wished to appear before a board.

17.  On 21 January 2004, the PMS appointed Major (MAJ) R--n S. J---s as Board President to hear evidence and determine if the applicant should be disenrolled for breach of contract for failing to enroll in ROTC classes for the fall semester of 2003 and be required to repay a debt of $21,690.00 and, if so, whether he should make repayment in the form of active duty service or by repaying the funds.

18.  In a memorandum, dated 23 February 2004, the PMS informed him he had appointed a board of officers to hear evidence and determine if he should be disenrolled for breach of contract.

19.  On 25 February 2004, MAJ J---s signed a Memorandum for Record (MFR) documenting his attempts to contact the applicant.  The MFR shows:

* on 5, 11, and 12 February 2004, he called the applicant to speak with him about setting a board date, got no answer, and left messages to contact him
* he called once again on 20 February 2004, got no answer, and left a message informing him of the date, time, and location of the board
* on 24 February 2004, he mailed notice of the board date, time, and location to the applicant

20.  On 25 February 2004, his MS instructor signed an MFR listing the conditions he had to meet to receive MS credit for the spring semester of 2003 and recounting communication with him during that period.  The MFR shows:

* he failed to attend class during the 2003 spring semester
* he was counseled on his lack of attendance and participation in the program
* he was given, and failed to meet, the following conditions for receiving credit in the class:

* take an online quiz
* take the semester final on 2 May 2003
* take an Army Physical Fitness Test (APFT) on 1 May 2003

* he was told the conditions he had been given were a one-time solution and if he failed his scholarship benefits would be terminated
* he did not make contact after he was presented with the conditions for keeping his scholarship
* he was counseled on his responsibility to keep the program aware of his situation and his mother's welfare
* the instructor had two e-mails in which he replied that he did not care about the scholarship
* the instructor talked to his sister about their mother's health and she informed him it was not as bad as he was leading them to believe
* the PMS at the time told the instructor to give him a grade of "I" so he could try and help him
* he never came back to the program
* the instructor tried numerous times to contact him by phone, through other cadets, and through his family
* he told two officers he was quitting the program and to stop bothering him about ROTC

21.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows the board convened on 11 March 2004 and that the applicant was present.  The form shows the board completed its findings and recommendations on 6 April 2004 and that the PMS approved the findings and recommendations.

	a.  The board found he:

* entered into a valid Army Senior ROTC Cadet Contract
* received advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $21,690.00 that constituted a valid debt to the U.S. Government
* voluntarily failed to complete the requirements of the ROTC Cadet Contract in that he did not return to enroll in the fall semester of 2003

	b.  The board recommended he should:

* not be retained in ROTC as a scholarship or nonscholarship cadet
* be disenrolled from ROTC under the provisions of Army Regulation 145-1 (Senior ROTC Program:  Organization, Administration and Training), paragraph 3-43a(16)
* not be released from ROTC contractual obligation


* be ordered to active duty after graduation in May 2005 (as requested) or, if not able to recall, be ordered to repay his valid debt to the U.S. government

22.  On 13 July 2004, the PMS notified him of the board's recommendation that he be disenrolled from the ROTC program for breach of the terms of his contract.  The PMS provided him with a copy of the findings, recommendations, and summary of proceedings, and informed him he had 15 days from the receipt of the letter to submit a rebuttal.  The record does not show that he chose to submit a rebuttal.

23.  On 4 November 2004, the Director, Personnel and Administration, USACC, sent a memorandum to the PMS informing him the applicant's file was returned for further administrative action as being insufficient for disenrollment.  She stated, in effect, the record showed no evidence that the applicant had been removed from his LOA status and instructed to enroll in ROTC.  She further informed the PMS that if he intended to disenroll the cadet for failing to maintain an ROTC GPA of 3.0 or more, he should be re-notified that this was the reason for disenrollment and that the cadet must be given the opportunity to waive his rights and rebut the disenrollment.

24.  On 15 November 2004, an administrative assistant at the VU Department of Military Science reported his MS course grade for the 2003 spring semester to the Registrar's Office at Fisk.  The memorandum shows he received a grade of "F" for MS 151.

25.  On 15 November 2004, the PMS notified him a third time he was initiating his disenrollment from the ROTC program.  This notification shows the reason for disenrollment was his breach of contract by failing to maintain a 3.0 semester and cumulative ROTC GPA.  The PMS again informed him of his rights, the effects of disenrollment, the amount of his scholarship debt, and his obligation to respond within 10 working days of receipt of the notification.

26.  On 22 November 2004, the applicant signed an acknowledgment form indicating he had read and thoroughly understood why he was being disenrolled from the ROTC program.  He requested a board of officers or investigating officer be appointed so he could personally appear and respond regarding his disenrollment and his scholarship indebtedness.  He declined expeditious call to active duty.


27.  The record includes e-mail correspondence, dated 15 December 2004, between his MS instructor and an employee at Fisk.  

	a.  His instructor sent the following to the Fisk employee:

First, [the applicant] failed to come to class.  (He only attended class twice during the entire semester.)  I talked to [him] on the phone several times and each time he promised he would be at the next class.  Finally, I got him to come to my office after class and we worked out a schedule and a plan for all the work to be completed and delivered via e-mail and pass an end of semester APFT.  This plan was made to help [him] deal with the extreme burden of going to college full-time and taking care of his terminally ill bedridden mother.  [He] failed to execute any of the plans laid out in the counseling session.  On numerous occasions, I called to remind [him] about assignments and upcoming exams.  [He] stopped answering his cell phone around the time he was supposed to come in and take his final.  The ROTC Program went above and beyond for this student….  [He] failed to meet any set forth standard in any way, shape, or form.  When [he] was given the incomplete on the transcript it was again giving him the benefit of the doubt that he would still show up and complete the work.

When finals time came, I called [his] mother's home and his sister informed me that their mother was not bedridden and not terminally ill.  I asked her to get in touch with him and explained that he needs to see me as soon as possible.  To this day, [he] has never once called or spoken with me concerning this matter.

	b.  In response to a follow-on inquiry, the MS instructor confirmed that the applicant received an "F" for MS 151 in the spring semester of 2003.

28.  On 29 March 2005, the applicant sent an e-mail to MAJ J---s regarding his situation.  He stated, in effect, that he questioned the action of his MS instructor in changing his grade for MS 151 and he wanted to know why he was not put on scholarship probation and allowed to continue to participate in the program rather than being disenrolled.

29.  On 30 March 2005, his MS instructor signed an MFR in response to the applicant's e-mail.  He stated he followed the unit standing operating procedure by submitting his course grades to the administrative technician who then generated a grade report which was faxed to Fisk.  He denied calling the Fisk registrar to change the applicant's grade.

30.  Additionally, on 30 March 2005, the administrative technician at the VU Department of Military Science signed an MFR confirming he had faxed the ROTC grade report to Fisk on 29 April 2003 and, when he received a copy of the applicant's transcript at the end of May 2003, the grade had been changed from an "I" to an "E."  He states he spoke to the applicant several times and tried to resolve the problem, but the Fisk registrar was uncooperative.  He further states he told the applicant he could be disenrolled for failing the ROTC class, but he never told him not to return to enroll in the fall semester of 2003, which he needed to do to complete his grade of "I."

31.  On 27 April 2005, MAJ J---s signed an MFR documenting events that occurred from 5 November 2004 to 27 April 2005.  MAJ J---s found no conclusive evidence to change any of the board recommendations, but did find that the grade error did not lie within the VU ROTC Department and that the applicant did not use prudent judgment with regard to following up with VU ROTC Department and returning for the fall semester of 2003.

32.  On 23 August 2005, a USACC Attorney Advisor returned the applicant's disenrollment package for further administrative action.  He noted the packet did not include an appointing order, notification of the respondent, a DA Form 1574 recording the proceedings of the third board, findings of the board, or action by the appointing authority.

33.  On 25 August 2005, USACC staff sent a request for additional information to MAJ J---s with a suspense date of 8 September 2005.  The record shows USACC did not receive a response by the suspense date, and, on 13 September 2005, informed MAJ J---s the action was closed and could be reopened upon receipt of the requested information.

34.  On 11 November 2005, an Associate Provost at Fisk confirmed to the applicant that his grade in MS 151 was officially recorded as an "E."

35.  On 23 January 2006, the PMS relieved MAJ J---s from his appointment as the Board President and appointed Captain (CPT) D----t T. L------e to hear evidence and determine if the applicant should be disenrolled for breach of contract for failing to enroll in ROTC for the fall semester of 2003 and be required to repay a debt of $21,690.00 and, if so, whether he should make repayment in the form of active duty service or by repaying the funds.

36.  On 23 January 2006, CPT L------e informed the applicant of his appointment as Board President and that he had reviewed the record.  He further informed the 


applicant he could submit additional testimony, evidence, or information within 10 working days of receipt of the notification.

37.  A second DA Form 1574 shows the board convened on 22 February 2006.  The applicant was not present.  The record shows the board completed its findings and recommendations on or about 27 February 2006 and provided them to the applicant.  

	a.  The board found he:

* received advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $21,690.00 that constituted a valid debt to the U.S. Government
* entered into a valid Army Senior ROTC Cadet Contract
* voluntarily failed to complete the requirements of the ROTC Cadet Contract in that he did not return to enroll in the fall semester of 2003

	b.  The board recommended he should:

* not be retained in ROTC as a scholarship or nonscholarship cadet
* be disenrolled from ROTC under the provisions of Army Regulation 145-1, paragraph 3-43a(16)
* be released from ROTC contractual obligations
* not be ordered to active duty 
* be ordered to repay his valid debt to the U.S. Government comprised of advanced educational assistance received in the form of scholarship benefits in the amount of $21,690.00

	c.  The PMS approved the findings and recommendations.

38.  CPT L------e entered the following note on the DA Form 1574:

On Feb 8, 2006, I was able to speak with [the applicant] and we discussed his case in a summary detail.  However, we agreed to set up a phone appointment on 13 Feb 2006.  This phone conversation would outline a plan for [him] to either rejoin Army ROTC or be disenrolled.  [He] never called me on 13 Feb 2006.  Also, I called and left a message on [his] cell phone stating that he missed the appointment date.  As [of] 8 March 2006, [he] has not returned my call.


39.  On 13 April 2006, CPT L------e submitted the findings and recommendations into command channels.  The chain of command concurred and the findings and recommendations were submitted to the USACC for final approval.  

40.  On 10 August 2006, a USACC attorney advisor informed the USACC G-1 he found the proceedings legally sufficient to support disenrolling the applicant for failing an MS course in the spring 2003 semester.

41.  On 16 October 2006, the approval authority informed the applicant he was disenrolled and would be discharged from the ROTC program under the provisions of Army Regulation 145-1, paragraph 3-43a(6), for failing to maintain a minimum semester and cumulative GPA of 3.0 on a 4.0 scale in all ROTC courses.  The approval authority also informed him of his options for repaying his debt of $21,690.00 and that he had 14 days to respond with his election.  The record does not show he made an election.

42.  On 10 January 2011, DFAS notified the applicant his total debt, including interest, penalties, and administrative fees, was $22,073.16.  

43.  During the processing of this case, on an advisory opinion was obtained from the USACC, Deputy Chief of Staff, G-1.  The advisory official states the applicant was given an opportunity to complete MS 151 during the fall semester of 2003, he failed to enroll, and therefore he received a failing grade for the course.  When given the opportunity to present evidence and argue his case before a board, he failed to appear.  When given an opportunity to present additional information before the Board President made his findings and recommendations on 23 January 2006, he failed to respond.  He was subsequently disenrolled and a debt was established with DFAS.

44.  On 23 January 2011, the applicant responded to the advisory opinion.  His response centers on the issue of his changed grade for MS 151.  He states, in effect, that:

* the grade was improperly changed
* he informed VU ROTC what they needed to do to correct the grade on his Fisk transcript, but they took no action
* VU ROTC cannot provide any documentation stating he was told to return to the program


45.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program.  

	a.  Paragraph 3-43a(6) states a scholarship cadet will be disenrolled for failing to maintain a minimum semester or quarter cumulative academic GPA of 2.0 on a 4.0 scale or higher if required by the school and at least a 3.0 on a 4.0 scale or equivalent semester or quarter and cumulative average in all ROTC courses.

	b.  Paragraph 3-43a(16) states scholarship cadets will be disenrolled for 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for relief from the debt he incurred when he was disenrolled from ROTC.  

2.  He contends that his grade of "I" for MS 151 was improperly changed to a failing grade of "E" in his record at Fisk.  As a result, he was placed on LOA and he was not told he was required to participate in the ROTC program during the fall semester of 2003.

3.  The ABCMR has no jurisdiction over his Fisk transcript because it is not an Army record.  Any issues he has with grades recorded on his Fisk transcript must be taken up with that institution.

4.  The evidence shows he breached his ROTC scholarship contract when he failed to complete the course requirements for MS 151 during the spring semester of 2003.  His MS instructor offered him reasonable alternative means of completing the course requirements, but he failed to act on the offer.  In February 2006, he was given an opportunity to discuss options for reentering the program and honoring his contract, but failed to respond.

5.  Had he been interested in honoring his contract, the obvious choice would have been to pursue his MS instructor's offer of alternative means of completing his course requirements and to communicate proactively with the VU ROTC program regarding the steps required to meet the terms of his contract.  The record shows he did neither.

6.  Although the record shows errors in his case caused a lengthy delay in processing his disenrollment, he was ultimately properly disenrolled for failing to maintain a 3.0 GPA in his ROTC courses, and he is now obligated to repay the funds expended in support of his education.

7.  In view of the foregoing, there is no basis for granting the requested 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)                                         AR20100015954



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ABCMR Record of Proceedings (cont)                                         AR20100015954



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