IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011  

		DOCKET NUMBER:  AR20100029859 


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.  Through counsel, the applicant requests:

* cancellation of the involuntary orders to active duty
* authorization to repay the government $20,561.98 for the Reserve Officers' Training Corps (ROTC) scholarship benefits he received 

2.  The applicant's statements and supporting documents are provided by counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's record be corrected as outlined above.  

2.  Counsel states the applicant requested disenrollment from the ROTC prior to the start of the MSIII year and did not enroll in the MSIII class to avoid being viewed as an MSIII cadet.  He states the applicant believed, as he had been advised by his recruiter, that by taking the step to initiate disenrollment proceedings prior to the start of the MSIII year he would be allowed to repay the educational monies owed.  

3.  Counsel states it was never a matter of meeting the demands, but rather his unwillingness to serve in the military.  He claims the applicant lost all desire to serve in the military and he is not agreeable to doing so.  He states the applicant is not in the proper state of mind to serve in the military.  The applicant was not agreeable to continuing in the ROTC program which would have resulted in him being commissioned and serving as an officer; he is certainly not agreeable to doing so as an enlisted member upon graduation from college.  

4.  Counsel claims the applicant opposes the present course our military has taken over the last 2 years and is not prepared in any respect to be placed on active duty.  He further indicates the applicant's family has deposited the sum of $20,561.98 into the applicant's counsel's trust account, which the applicant understands is the amount of recoupment applicable in this matter.  The applicant has authorized his counsel to disburse the full amount due to the government to satisfy the debt owed for educational benefits upon the government releasing the applicant from any obligation to serve in the Army.  

5.  Counsel provides a petition brief and the 20 attachments identified therein in support of the application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant entered into an ROTC contract on 31 October 2006.  By signing the contract, he acknowledged his understanding of the conditions of the contract and that he concurred with them.

2.  At the time the applicant entered into his ROTC contract, he further acknowledged his understanding that if he failed to complete the educational requirements of his agreement or he was disenrolled from the ROTC program, the Secretary of the Army or his designee could order him to active duty as an enlisted Soldier; or in lieu of being ordered to active duty, he could be required to repay the financial assistance he received through the ROTC program, plus interest. 

3.  On 24 June 2008, the applicant, through counsel, requested to be separated/disenrolled from the ROTC program based on his desire to become a health care provider.  He concluded the course requirements conflicted with his ROTC obligations.  The applicant stated he was willing to reimburse the government for his education.  

4.  On 29 July 2008, the applicant’s mother submitted a request to the Commanding General (CG), U.S. States Army Cadet Command (USACC), in which she requested the CG’s consideration of her son’s request for disenrollment from the ROTC and confirmed she and her husband were willing to reimburse the government for the applicant’s education.  


5.  On 13 August 2008, applicant’s counsel queried the professor of military science (PMS) regarding his response to the applicant’s disenrollment request.  The PMS responded by indicating he had been on temporary duty at Fort Lewis, Washington for the majority of the summer and he had just returned.  He stated he had the applicant’s request read to him over the phone when it was first received and he would respond after he had a chance to talk to the applicant.  

6.  On 2 September 2008, the PMS in an electronic mail (e-mail) message to the applicant confirmed applicant’s failure to enroll in the MSIII class for the fall semester constituted a breach of his ROTC contract; and as a result, he had no choice but to place the applicant in a leave of absence status and initiate disenrollment action.  He further indicated the CG, USACC had the option to either require the applicant to repay the monies he received from the Army to attend school, or be ordered to serve in an active duty status to pay back the debt.  

7.  On 3 September 2008, the PMS initiated the applicant’s disenrollment from the ROTC under the provisions of paragraph 3-43a (16), Army Regulation 145-1 based on breach of contract, as evidenced by the applicant’s failure to enroll in MSIII as required by his ROTC contract.  The applicant was informed of his right to a hearing and that his failure to request a hearing means he waived his right to rebut or appeal any decisions made in the matter.  It further indicated he could be called to active duty or required to repay scholarship benefits in the amount of $20,561.98 in lieu of being called to active duty in fulfillment of his contractual obligation.  The applicant was informed to complete and return the option statement enclosed.

8.  On 8 September 2008, the applicant completed the disenrollment acknowledgment statement in which he waived his right to a hearing and declined expeditious call to active duty.  

9.  On 23 September 2008, the PMS recommended the applicant’s disenrollment from ROTC and his placement on active duty upon his graduation from the University of Florida.  

10.  On 3 September 2009, the CG, USACC informed the applicant his involuntary call to active duty for 36 months had been approved by the Assistant Secretary of the Army (Manpower and Reserve Affairs) and that orders had been published accordingly.  

11.  On 2 October 2009, the applicant’s counsel requested a delay in his active duty reporting date (September 2011) based on his scheduled college graduation date.  He also requested that the applicant’s active duty orders be rescinded in exchange for repayment of the ROTC scholarship benefits.  

12.  On 4 January 2010, the USACC Deputy Chief of Staff, G-1 responded to counsel’s 2 October 2009 request and confirmed the applicant’s active duty orders were being amended based on his graduation date and the orders would be sent to him.  He further indicated the ASA (M&RA) approved the applicant’s involuntary order to active duty and because approval was at the Secretary of the Army level, there was no higher level to appeal to.  

13.  The applicant responded to the G-1 letter of 4 January 2010 and indicated that in September 2008, when he signed his disenrollment papers in the presence of the PMS, he expressed his desire to repay the scholarship benefits debt in lieu of call to active duty and the PMS gave the appearance he would support that request.  The disenrollment paperwork was held up and he had no further communication with the PMS and a year later in September 2009, he was informed his disenrollment was finalized and that he was being called to active duty.  He stated he was again requesting to be allowed to repay the debt to fulfill his contractual obligation.

14.  On 26 April 2010, a representative of the USACC informed the applicant his file had been sent to The Judge Advocate General (TJAG) for clarification on what could be done.  The TJAG response was that in accordance with the doctrine of administrative finality, the final decision could not be changed.  However, the applicant had the option to petition the ABCMR for relief.  

15.  Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program: Organization, Administration, and Training) prescribes policies and general procedures for administering the Army's Senior ROTC (SROTC) Program.  Paragraph 3-43 provides guidance on disenrollment.  It states a nonscholarship cadet may be disenrolled by the PMS.  A scholarship cadet may be disenrolled only by the CG, USAROTCCC.  Disenrollment authority does not include the discharge authority for SMP participants.  Paragraph 3-43a provides a list of reasons supporting disenrollment which includes breach of contract which is outlined in sub-paragraph (16).   

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his record should be corrected by cancelling the involuntary orders to active duty and authorizing him to repay the government $20,561.98 for the ROTC scholarship benefits he received has been carefully considered and found to have merit.  

2.  By regulation, the CG, USACC has the option to allow fulfillment of the ROTC contract through either repayment of scholarship benefits or involuntary order to active duty.  

3.  The evidence shows the applicant requested disenrollment for personal or hardship reasons prior to not enrolling in MSIII which ultimately led to his disenrollment and the subsequent decision to involuntarily order him to active duty.  It further shows the applicant in completing his disenrollment acknowledgment declined order to active duty and requested he be allowed to repay the scholarship benefits he received through the ROTC program.  

4.  Given the regulation allows fulfillment of the ROTC contract through
repayment of scholarship benefits, the applicant consistently agreed to repay the scholarship benefits, and even if not intentionally, he was led to believe repayment was an option upon disenrollment, it would appear appropriate to correct the record to allow this option.  

5.  In view of the facts of this case it would be appropriate to correct the applicant’s record to show his request to repay the scholarship benefits in lieu of involuntary call to active duty was approved and to revoke his involuntary order to active duty when the $20,561.98 payment is received. 

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:

   a.  showing his request to repay the scholarship benefits that he received in lieu of involuntary call to active duty was approved; and 


   b.  revoking his involuntary order to active duty upon payment of the $20,561.98 educational debt.




      ___________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)                                         AR20100029859



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100029859



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1