IN THE CASE OF:	  

		BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20100016110 


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 reconsideration of his previous request to correct his records by forgiving his Reserve Officers’ Training Corps (ROTC) scholarship debt based on his enlistment and service in the Army.

2.  The applicant states:

* The advisory opinion provided by the Deputy Chief of Staff, G-1, United States Army Cadet Command (USACC), in response to his original application cited an updated ROTC contract to recommend disapproval of his request.  The original ROTC contract which he signed did not contain the language cited by the G-1
* He did not decline "expeditious call to active duty."  He merely deferred his decision concerning call to active duty vice repayment of his ROTC scholarship debt until after he graduated
* He never received the Cadet Command's September 2004 letter requiring him to elect a payment plan or agree to be called to active duty through ROTC channels based on the needs of the Army
* When he sought to enlist in September 2006, he fully informed his recruiter concerning his prior disenrollment from ROTC

3.  The applicant provides:

* An 8 June 2010 memorandum for record
* A copy of the Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP), Docket Number AR20090001439, dated 24 November 2009
* A copy of his enlistment contract
* Copies of assignment orders
* Copies of DA Forms 597-3 (Army Senior ROTC Scholarship Cadet Contract), dated June 1995 and July 1995
* Copies of Defense Finance and Accounting Service (DFAS) documents
* A copy of a USACC disenrollment letter, dated 13 September 2004
* A copy of a University of Missouri - Columbia ROTC Battalion disenrollment memorandum, dated 5 November 2002

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090001439 on 24 November 2009.

2.  The applicant provides new argument and new evidence addressed in his Memorandum for Record, dated 8 June 2010, which was not previously considered and which warrants consideration by the Board.

3.  The applicant was born on 16 August 1981.  At age 19, he attended the University of Missouri - Columbia, where he entered into a 4-year Army ROTC Scholarship Cadet Contract on 6 September 2000.

4.  During his freshman year of college, on 22 September 2000, the applicant was apprehended by civil authorities for misdemeanor possession of intoxicants by a minor.  He was given probation for this offense.  He did not inform his ROTC chain of command of this incident.

5.  On 10 November 2001, the applicant was again apprehended by civil authorities for possession of intoxicants by a minor.  This second arrest also constituted a violation of his probation, resulting in a fine which he failed to pay.  On 13 May 2002, a warrant was issued for his arrest for failure to pay the fine, and the matter came to the attention of ROTC authorities.

6.  On 5 November 2002, at the beginning of his 3rd year as a cadet, the applicant's Professor of Military Science (PMS) initiated disenrollment action against him for the intoxicant arrests, failure to pay his fine, and for failing to 


notify his chain of command of his civil conviction.  He was told should he be disenrolled, he was subject to a call to active duty or to repayment of $36,077.89 in scholarship awards.  He was placed on a leave of absence pending final action on disenrollment by the USACC.

7.  On 5 November 2002, the applicant acknowledged notification and stated he understood the basis for the disenrollment action.  He waived his right to a hearing while acknowledging the amount and validity of his scholarship debt.  He also elected to decline expeditious call to active duty.

8.  On 13 September 2004, USACC sent the applicant a memorandum informing him he was disenrolled from the ROTC program and directing him to make arrangements to repay his scholarship debt of $37,077.89.

9.  DFAS documents provided by the applicant show he established a debt repayment plan with DFAS on 18 September 2006 to repay $328.00 per month for 120 months.

10.  The applicant enlisted in the Regular Army (RA) on 29 September 2006, entering active duty in the rank/grade of specialist (SPC)/E-4 for a period of 4 years and 22 weeks.  His DA Form 3286 (Statement for Enlistment, U.S. Army Enlistment Program) shows he enlisted for the U.S. Army Training Enlistment Program for military occupational specialty (MOS) 13B (Cannon Crewmember), and the U.S. Army Incentive Enlistment Program (High Grad Bonus, U.S. Army Seasonal Bonus, U.S. Army College Fund, and U.S. Army Cash Bonus).  He received a $17,000.00 cash enlistment bonus. 

11.  On 28 October 2006, the applicant provided DFAS with documentation confirming his enlistment in the RA and requesting suspension of debt collection efforts.

12.  The applicant served on active duty in an enlisted status for 2 years, 7 months and 26 days, spending 13 months in Iraq.  In 2009, he attended Officer Candidate School (OCS).  He completed OCS and was honorably discharged in the rank of sergeant/E-5 (SGT/E-5) on 15 July 2009 for the purpose of accepting an RA commission.  On 16 July 2009, he was commissioned a second lieutenant (2LT)/0-1 and he continues to serve in an active duty status.

13.  The applicant asserts, as new argument, the G-1 advisory opinion rendered in his original case incorrectly states "his enlisted service in the RA is not an authorized remedy for debt repayment under the terms of his ROTC contract."  As proof, he provides two versions of the DA Form 597-3.

   a.  The version, dated June 1995, states in paragraph 7d, "If I am disenrolled,  the Secretary of the Army or his or her designee may order me to active duty as an enlisted Soldier for a period of not more than four years or, in lieu of being ordered to active duty, may require me to reimburse the United States through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the United states for my advanced education…."

   b.  The version, dated July 1995, states in paragraph 5e, "If I am disenrolled from ROTC, I understand the Secretary of the Army, or his or her designee, retains the prerogative to either order me to active duty or order monetary repayment of my scholarship benefits.  Therefore, if I am required to repay my advanced educational assistance under the terms of this contract, my subsequent enlistment in an Armed Service will not relieve me from my repayment obligation [emphasis added]."

14.  The applicant states he executed the June 1995 version of the DA Form 597-3, which does not specifically prohibit subsequent enlistment from satisfying the repayment obligation.  Therefore, the G-1 advisory opinion is incorrect in stating his enlisted service in the RA is not an authorized remedy for debt repayment.

15.  The applicant asserts he did not decline expeditious call to active duty; he merely deferred his decision concerning call to active duty vice repayment of his ROTC scholarship debt until after he graduated.  Proof of this assertion rests with the fact he graduated from college in June 2006 and he enlisted in the RA under the Delayed Entry Program (DEP) in September 2006.

16.  In his original case to the ABCMR, the Board denied the applicant's request essentially because he was disenrolled from the ROTC program based on misconduct as a result of discreditable incidents with civil authorities, said misconduct arising from underage drinking.

17.  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 such things as 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.

18.  The legal drinking age in Missouri is 21; however, state law does not prohibit consumption by minors - only purchase, possession, and intoxication by minors are prohibited.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was disenrolled from the ROTC program based on misconduct, as a result of discreditable incidents with civil authorities, which included arrest for a misdemeanor (possession of intoxicants by a minor), probation violation (second arrest for a misdemeanor of possession of intoxicants by a minor), issuance of a warrant based on his failure to pay a fine, and his failure to inform the PMS of a civil conviction.  This breach of 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 the other incentives, or repayment of his ROTC debt.  The disenrollment action taken against the applicant by his PMS and USACC was accomplished in accordance with the rules and procedures then in effect.  The imposition of the $36,077.89 ROTC scholarship debt was completely proper.

2.  The applicant's argument is correct that the language in the DA Form 597-3 changed as pertains to enlistment in the Army subsequent to the establishment of a requirement to repay advanced educational assistance under the terms of the ROTC contract.  The applicant's assertion that he signed the June 1995 version of the contract which did not contain language prohibiting subsequent enlistment from relieving the repayment obligation cannot be verified.  The applicant's ROTC contract is not available for review.

3.  The applicant's argument he did not decline expeditious call to active duty, but merely deferred a decision until after he graduated, is not persuasive.  On 5 November 2002, he signed an "Acknowledgment of Cadet" form clearly indicating, "I also elect to decline expeditious call to active duty."

4.  Shortly after graduation in 2006, the applicant enlisted in the RA.  He was trained in MOS 13B, spent 13 months in Iraq, achieved the rank/grade of sergeant (SGT)/E-5, and completed Officer Candidate School (OCS).  He ultimately spent 2 years, 7 months, and 26 days on active duty as an enlisted Soldier.  He is now a second lieutenant (2LT)/O-1 and has served another full year on active duty (for more than 3 years and 7 months of total service).

5.  In similar cases, the ABCMR has accepted such service as qualifying as repayment of an ROTC scholarship debt.  The only difference between the applicant's circumstances and those of others who were granted relief involves the causes for his disenrollment.  The applicant was disenrolled for misconduct, not for grades or a technical violation of rules.  The applicant's misconduct consisted of underage possession of alcohol - he was 19 and 20 years of age when the legal drinking age was 21.  However, Missouri state law does not make consumption of alcohol by minors illegal; just purchase, possession, and intoxication.  Given the propensity of college-age youths to drink, this ambiguity in Missouri law is confusing.  This, coupled with the fact the applicant was charged only with possession and not with public intoxication or disorderly conduct, mitigates the seriousness of his offenses.

6.  The mitigation of the applicant's disenrolling offenses and his subsequent service as an RA enlisted Soldier and officer is sufficient to permit that service to satisfy repayment of his ROTC scholarship debt just as if he accepted expeditious call to active duty.  However, the applicant received a $17,000.00 enlistment bonus which he would not have been eligible for had he submitted to expeditious call to active duty.  It is not the intent of this Board to create a windfall for the applicant in the granting of his request for relief.  Therefore, the applicant's ROTC scholarship debt will be satisfied, but only to the extent as indicated below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___X____  ___X____  ___X___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20090001439, dated 24 November 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his ROTC scholarship contract to show that he would satisfy a portion of the $36,077.89 ROTC scholarship debt under the original terms of the ROTC contract by successfully completing his current term of service in the Regular Army.

2.  The portion of the ROTC debt that would be satisfied by the above correction will be the total amount of the ROTC debt minus the $17,000.00 he received as a cash enlistment bonus.


3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to complete relief of his ROTC scholarship debt.



      __________XXX________
               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)                                         AR20100016110



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ABCMR Record of Proceedings (cont)                                         AR20100016110



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