IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100028971 


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

2.  The applicant states the debt assigned to him following his disenrollment from Pacific Lutheran University (PLU) ROTC should be forgiven or he should be allowed to complete the service obligation established in his cadet command contract.  He further states the attached supporting documents and Department of the Army (DA) Inspector General (IG) complaint lists the misconduct and procedural due process violations committed by the U.S. Army Cadet Command (USACC).  The IG investigator can be reached telephonically and interagency communication is requested for faster resolution of this injustice.  He further states the cadet command committed multiple violations of his due process rights while rushing to disenroll him from the ROTC program at PLU.  This error or injustice was caused by a failure of leadership to abide by Army regulations and by the failure of leaders to give him a fair and impartial hearing at all stages of the appeals process.

3.  The applicant provides:

* A statement of support
* DA Form 1559 (IG Action Request)
* DD Form 2351 (DOD (Department of Defense) Medical Examination Review Board Report of Medical Examination)
* DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract)
* Four certificates of appreciation
* Eleven DA Forms 5500 (Body Fat Content Worksheet)
* Seven DA Forms 4856 (Developmental Counseling Form)
* Three DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard)
* Seven APFT worksheets
* One-page printout titled Timeline
* Three pages of emails
* DA Form 5315-F (U.S. Army Advanced Education Financial Assistance Record)
* Two letters from PLU to the applicant
* Seven DA memoranda
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* Twenty pages titled Applicant's Rebuttal to Disenrollment
* Memorandum from the applicant to the Commander, USACC
* Defense Finance and Accounting Service (DFAS) Account Statement
* One page titled Award History
* Two pages titled Registration History
* Five pages titled AR (Army Regulation) 15-6/ROTC Disenrollment
* Six pages titled PLU Academic Policy and Procedures
* Twenty-two pages from AR 15-6 (Procedures for Investigating Officers and Boards of Officers)
* Three pages from AR 350-1 (Army Training and Leader Development)
* One page from AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures)
* One page from AR 135-210 (Order to Active Duty as Individuals for Other Than a Presidential Selected Reserve Call-up, Partial or Full Mobilization )
* Twelve pages from AR 145-1 (Senior Reserve Officers' Training Corps Program: Organization, Administration and Training)
* One page from AR 600-9 (Army Weight Control Program)
* One page from Field Manual 21-20 (Physical Fitness Training)
* DOD Instruction Number 1215.08 (Senior ROTC Programs)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) (ROTC Control Group) on 14 September 2007.  Paragraph 5 (Terms of Disenrollment) of the applicant's DA Form 597-3 states that if the cadet were disenrolled from the ROTC program for any reason, 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 in lieu of being ordered to active duty, he could be required to repay the dollar amount plus interest equal to the entire amount of the financial assistance paid by the United States to the cadet. 
2.  Paragraph 6 (Enlisted Active Duty Service Obligation) of his DA Form 597-3 states that 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.

3.  On 23 April 2009, his Professor of Military Science (PMS) notified him by memorandum that he was being placed on an administrative leave of absence In accordance with paragraph 3-43a(16), AR 145-1 pending disenrollment action from the ROTC program. 

4.  On 30 April 2009, his PMS notified him of the initiation of disenrollment action from the ROTC program based on his breach of contract due to his failure to meet body fat standards and his failure of the APFT on 22 April 2009.  He was informed he could request a hearing by a board of officers or an investigating officer to hear his case.  He was further informed that as a scholarship cadet, he could be called to active duty in an enlisted rank/grade of private/E-1 or required to repay scholarship benefits in the amount of $54,618.00 in lieu of call to active duty.

5.  On 16 May 2009, the applicant acknowledged receipt of the above notification concerning disenrollment from the ROTC program.  He elected to request a formal hearing, decline call to active duty within 60 days after completion of his current projected graduation date, and decline expeditious call to active duty. 

6.  On 20 May 2009, an investigating officer (IO) was appointed to conduct an investigation in accordance with AR 15-6 to determine the applicant's suitability for retention in the Army ROTC program and the amount and validity of his scholarship debt.

7.  On 7 July 2009, his PMS notified the applicant of the initiation of disenrollment action from the ROTC program for failure to maintain a minimum grade point average (GPA) of 2.0 or higher in addition to the breach of contract for not maintaining the standards of height and weight and multiple APFT's per the applicant's ROTC contract.  His PMS also notified the applicant that this notification superseded the one dated 30 April 2009.

8.  On 10 September 2009, the IO conducted a formal hearing.  The applicant testified at the hearing telephonically and was represented by legal counsel.  In his findings, dated 16 September 2009, the IO found the applicant did enter into a valid ROTC contract, received $54,618.00 in scholarship monies that constituted a valid debt to the government, and did voluntarily fail to complete the requirements of the ROTC contract by failing to meet the requirements of the Army weight control program, failing the APFT, and failing to maintain the minimum GPA.  He recommended the applicant be disenrolled from the ROTC program and be ordered to active duty in an enlisted status for a period of 2 years.

9.  The applicant's PMS concurred with the IO findings and approved the disenrollment of the applicant from the ROTC program.  However, he recommended the applicant not be ordered to active duty as the applicant's performance as a cadet for height/weight, APFT, and academic failure did not meet the minimum standards required of an enlisted Soldier and the applicant would be detrimental to any unit he would be assigned to.  He further recommended the applicant be ordered to repay his valid debt to the government.

10.  In a rebuttal to the board findings, dated 6 October 2009, the applicant argued the board proceedings did not comply with legal requirements and there was insufficient evidence to support the findings of the board.

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

12.  On 1 April 2010, by memorandum, the Commanding General, USACC, ordered the applicant disenrolled from the ROTC Program under the provisions of AR 145-1 by reason of failure to maintain a minimum academic GPA of 2.0 and breach of the ROTC contract based on the applicant's failure to maintain APFT standards.  The applicant was also notified 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 his education was $54,618.00.

13.  On 21 May 2010, the USACC Deputy Chief of Staff, G-1, notified him 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.

14.  A DFAS account statement, dated 14 July 2010, indicated in deciding the method of fulfilling his contractual obligation, the applicant elected to repay the total amount owed of $54,618.00 plus interest, in monthly installments. 

15.  The applicant provides a statement of support from his legal advisor, dated 24 November 2010, wherein she (the legal advisor) stated the debt assigned to the applicant should be forgiven and he should be allowed to complete the service obligation established in his contract.  She also stated:
	a.  A surprise APFT was given to the applicant on 23 [sic] 22 April 2009 and when he failed the test by 2 [sic] 4 pushups the actions taken by the PLU cadre were excessively harsh.  The cadre and cadet command failed to provide him a fair and impartial evaluation of his case at every level and violated his due process rights.  Following the APFT failure, his PMS incorrectly prevented him from completing his course work which lowered his GPA.  

	b.  Following his disenrollment, he was entitled to a formal AR 15-6 investigation but the IO did not remain impartial thereby violating the applicant's due process to a fair hearing.  His PMS was newly appointed, unfamiliar with the applicant's case, and nonconcurred with the IO's recommendation that the applicant serve 2 years as an enlisted Soldier.  

	c.  The applicant received unofficial information on 6 January 2009 [sic] 2010 from Mr. M**** of the Western Region Cadet Command that the AR 15-6 investigation was insufficient and would go no further as he was the decision authority.  Mr. M**** stated the applicant should immediately enroll in the ROTC program at Cameron University which he did.

	d.  The applicant received notification of his disenrollment on 15 April 2010 and appealed the decision within 14 days of receiving the memorandum but his appeal was not considered.  On 30 April 2010, he received a letter indicating a debt had already been established and his only option was to appeal to the Army Board for Correction of Military Records (ABCMR).

16.  AR 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.  Paragraph 3-43a states a cadet may be disenrolled for failure to maintain a minimum academic GPA of 2.0 or for failure to meet the requirements of the Army weight control program and the APFT as required of active duty Soldiers prior to the end of the last school term of the MS III year.

17.  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.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant enlisted in an ROTC program.  He agreed if he were disenrolled from the ROTC program for any reason, he could be ordered to repay his scholarship debt and/or be ordered to active duty for an appropriate number of years.  The evidence of record also shows he failed to satisfy the contractual requirements of this program due to failing to maintain academic standards, body fat standards, and for failing the APFT.  Therefore, he was found in breach of his ROTC contract and was accordingly notified of his disenrollment from the program.

2.  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.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Although the applicant stated he complained to the IG, he did not provide the results of this complaint.

4.  The applicant was disenrolled from the ROTC program due to his failure to meet body fat standards and the APFT.  The IO recommended the applicant be ordered to active duty; however, the PMS recommended the applicant not be ordered to active duty.  The separation authority was not bound by either recommendation.  He ordered the applicant disenrolled and the debt be paid.  Having exceeded the body fat standards and having failed his APFT, he would not have been qualified to enter active duty. 

5.  In any case, the ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  The applicant is advised that although no change is being recommended to his entry on active duty, this does not mean that he is disqualified from reentering military service.  He should contact a local recruiter who can best advise a former service member as to the needs of the service at the time.

6.  The evidence of record shows the applicant breached his ROTC contract.  He should not be allowed to profit from his failure to live up to Army standards.  In view of all of the foregoing, it is concluded that the applicant's ROTC debt is valid and he is not entitled to forgiveness of his ROTC debt.

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)                                         AR20100028971





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ABCMR Record of Proceedings (cont)                                         AR20100028971



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