IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110010919 


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 that he has served on active duty for over 24 months.  Officials at the Defense Finance and Accounting Service (DFAS) told him that after 24 months, he could request to have the debt forgiven.

3.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document)
* Summary of Disenrollment Board Proceedings
* Enlisted Record Brief

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the New York Army National Guard (NYARNG) on 28 January 2005.  He completed basic combat training at Fort Leonard Wood, MO, from 1 June 2005 to 12 August 2005.  

2.  On 8 September 2005, he enlisted in the U.S. Army Reserve Control Group (ROTC).  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.

3.  Paragraph 6 (Enlisted Active Duty Service Obligation) of his DA Form 597-3 states that if he were called to active duty for a 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 II, for 3 years if the breach occurred during Military Science III, or for 4 years if the breach occurred during Military Science IV.

4.  On 7 February 2008, his Professor of Military Science notified him by memorandum of the initiation of disenrollment action from the ROTC due to his failure to meet the height and weight standards in the Army ROTC Program at Hofstra University, which was a breach of his scholarship contract.  He was also notified that he 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.  He was further informed that as a scholarship cadet he 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 $64,930.00 in lieu of a call to active duty.

5.  On 14 February 2008, the applicant acknowledged receipt of the disenrollment memorandum.  He requested a hearing and personal appearance in order to respond to the validity of the debt.  He further declined expeditious call to active duty. 

6.  On 25 March 2008, a Disenrollment Board convened at Hofstra University to consider the applicant for retention in or disenrollment from the ROTC program.  The Board found the applicant had entered into a valid contract and received $64,930.00 worth of educational benefits.  The Board also found the applicant failed to complete the requirements of his ROTC contract in that he failed to maintain height and weight standards and that he should repay the debt to the Government.  The Board recommended the applicant:

* Not be retained in the ROTC program as a scholarship or non-scholarship cadet
* Not be released from his contractual obligations
* Not be ordered to active duty in an enlisted status for 4 years
* Should be ordered to repay his valid debt to the Government

7.  On 27 June 2008, 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 maintain Army weight standards.  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 his education was $64,930.00.

8.  The applicant acknowledged his disenrollment from the ROTC under the provisions of Army Regulation 145-1 and in deciding the method of fulfilling his contractual obligation, he elected to repay the total amount owed, $64,930.00, in monthly installments plus interest on the amount owed as specified in his scholarship contract.

9.  Subsequent to this election, DFAS-Denver notified him that he was indebted to the U.S. Government in the amount of $64,930.00 for the recoupment of education expenses paid on her behalf during his participation in the ROTC Program.

10.  On 13 November 2008, he enlisted in the Regular Army in the rank/grade of specialist/E-4 for a period of 4 years on 13 November 2008.  He enlisted under Options 9A (training enlistment program) and 9C (high school graduate bonus - $8,000.00)   

11.  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.

12.  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.
13.  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.

14.  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 he enlisted in an ROTC Program.  He agreed that if he were disenrolled from the ROTC Program for any reason, he could repay his 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 he failed to satisfy the contractual requirements of this program due to not meeting the Army weight standards.  Therefore, he was found in breach of his ROTC contract and was accordingly notified of his disenrollment from the program.  Once his disenrollment was approved, he elected to repay his debt in monthly installments.

2.  Further, few months after his disenrollment, he voluntarily enlisted in the Regular Army for 4 years, in pay grade E-4, and for an enlistment bonus of $8,000.00.  He contends his enlistment and current active duty service should fulfill his obligation under his breached Army ROTC contract.  However, 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 other incentives (such as a bonus), which he received.

3.  Although the applicant’s 4-year enlistment in the RA provides the Government the benefits of his service, had he elected an expeditious call to active duty to repay his debt for breaching his ROTC contract, he would have been assigned against the needs of the Army with a 4-year active duty commitment, in pay grade E-1, and not allowed any enlistment options.  However, he enlisted in the RA in the pay grade of E-4 and was authorized a $8,000.00 enlistment bonus.  While the Board has jurisdiction to stop any enlistment bonus in this case, any such bonus would be a legitimate factor to consider in granting or denying equitable relief regarding the ROTC debt.  

4.  In view of the facts of this case, it would be appropriate to consider his enlistment in the RA to have met the active duty obligation required by his ROTC scholarship contract as a matter of equity.  If he fails to complete 4 years of active duty obligated as a result of his ROTC scholarship either voluntarily or because of misconduct, his ROTC debt should be required to be recouped on a prorated basis.

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 a recommendation for partial relief.  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 $64,930.00 ROTC debt under the original terms of the ROTC contract by successfully completing his current enlistment in the RA.

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 $8,000.00 he received as an enlistment bonus. 

3.  If the individual concerned fails to complete the period of enlisted service obligated as a result of his amended ROTC scholarship contract either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis in accordance with his DA Form 597-3.



4.  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 waiving the entire ROTC indebtedness amount.



      _______ _   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)                                         AR20110010919





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ABCMR Record of Proceedings (cont)                                         AR20110010919



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