IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110015348 


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 forgiveness of his Reserve Officers' Training Corps (ROTC) scholarship debt.

2.  The applicant states his ROTC debt is unjust for three reasons, in effect:

* he was removed from Wentworth Military Academy by individuals of questionable moral character
* he was removed from the ROTC Program as a result of being removed from the school and not attending the Simultaneous Membership Program (SMP) drill [Army National Guard (ARNG) weekend assemblies]
* although he declined an expeditious call to active duty, he enlisted in the Regular Army (RA) and has served in an active duty status over 7 years
* he has deployed on 3 separate occasions – once to Iraq and twice to Afghanistan for a total of 37 months; therefore, he has more than fulfilled his service obligation

3.  The applicant provides:

* DD Form 1966 (Record of Military Processing – Armed Forces of the United States)
* Statement for Enlistment – United States Army Enlistment Program
* Orders 405-0011, Military Entrance Processing Station, Kansas City, MO, dated 19 February 2004
* U.S. Military Entrance Processing Command (USMEPCOM) 
Form 680-3ADP (Request for Examination)
* Reenlistment Eligibility Data Display Report, dated 26 July 2011
* Army Board for Correction of Military Records (ABCMR) Docket Number AR20100016110 (Record of Proceedings)
* An internet article "Wentworth Academy Official Arrested in Internet Sex Sting" KMBC.com, dated 27 June 2002
* internet article titled "Academy Commandant Charged with Internet Sex Crime" ArmyTimes.com, dated 27 June 2002 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) as an ROTC cadet on 31 August 2000.  He signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) and a DA Form 597-3A-R (Addendum to Army Senior ROTC Scholarship Cadet Contract) as addenda to his DD Form 4 (Enlistment/ Reenlistment Document – Armed Forces of the United States). 

   a.  Paragraph 7 of his DA Form 597-3 states that if he is disenrolled from the ROTC Program for any reason, the Secretary of the Army could order him 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 U.S. for his advanced education from the commencement of his contractual agreement to the date of his disenrollment or refusal to accept a commission.  

   b.  Paragraph 8 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 7, 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.

2.  On 25 September 2000, he enlisted in Headquarters and Headquarters Company (HHC)/Materiel Management Center, 35th Support Command, Missouri, ARNG (MOARNG).  

3.  A memorandum, dated 7 March 2001, shows the applicant's ROTC battalion commander notified him that he was initiating action to disenroll him from the ROTC Program due to a Wentworth Military Academy Honor Board finding him guilty of lying on 31 January 2001.  The board recommended that he be suspended from the Academy.  The memorandum also cited his indifferent attitude or lack of interest in military training, as evidenced by his frequent absences from physical training and SMP drill, as further causes for disenrollment.  He was further informed that he could be called to active duty in fulfillment of his contractual obligation or, if a scholarship cadet, he may be required to repay scholarship benefits in the amount of $11,895 in lieu of a call to active duty.

4.  On 2 April 2001, he acknowledged receipt of the disenrollment memorandum, waived his right to a hearing, acknowledged the correctness and validity of his debt as cited in the notification memorandum, and declined expeditious call to active duty. 

5.  A MOARNG memorandum, dated 7 May 2001, notified the applicant he had accumulated 10 unexcused absences within 1 year.  After the accumulation of 
9 unexcused absences, he could be considered an unsatisfactory participant, subject to grade reduction, discharge from the MOARNG, and transfer to the Individual Ready Reserve.

6.  Orders 181-068, Office of the Adjutant General, MOARNG, dated 30 June 2001, discharged him from the MOARNG with service characterized as under honorable conditions and assigned him to the USAR Control Group (Annual Training), effective 7 May 2001.  

7.  On 19 February 2004, he enlisted in the RA for a 6-year term, in the rank/grade of private/E-1.  His Statement for Enlistment – U.S. Army Enlistment Program shows he enlisted for Program 9C (the U.S. Army Incentive Enlistment Program) and an $11,000 enlistment bonus.  He completed training and was awarded military occupational specialty 52D (Power Generation Equipment Repairer).  

8.  On 10 August 2011, a Defense Finance and Accounting Service (DFAS) staff member informed an ABCMR staff member that, according to DFAS systems, the applicant’s original debt was $11,895 and his outstanding balance including interest and penalties is $13,282.16.

9.  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.



10.  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.

11.  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.

12.  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 would repay his scholarship debt or be ordered to active duty in the rank/grade of PVT/E-1 for an appropriate number of years.  The evidence of record further shows he was found in breach of his ROTC contract and was accordingly notified of his disenrollment from the program.  He waived his right to a hearing, acknowledged the correctness and validity of his debt, and declined expeditious call to active duty. 

2.  On 19 February 2004, he voluntarily enlisted in the RA, for a 6-year term in pay grade E-1.  He completed this period of service and it appears that he may be presently serving in an active duty status.  His belief that his 6-year enlistment in the RA should fulfill his obligation under his breached ROTC contract was considered and found to have partial merit.  Although his 6-year enlistment 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, in pay grade E-1 without the benefit of any enlistment options, which he received.  Nevertheless, in this case, his enlistment in the RA serves the same purpose as it would have served had he been ordered to active duty through ROTC channels. 

3.  He enlisted in the RA in the pay grade of E-1 and was authorized an $11,000 enlistment bonus.  Any such bonus should be a legitimate factor in the Board's consideration in granting or denying equitable relief regarding his ROTC debt.  

4.  In view of the facts of this case, and as a matter of equity, it would be appropriate to consider his enlistment in the RA to have met the active duty obligation required by his ROTC scholarship contract.  

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 his $11,895 ROTC debt under the original terms of the ROTC contract by successfully completing his initial 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 as determined by DFAS, minus the $11,000 he received as an enlistment bonus.


3.  The Board further determined 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 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)                                         AR20110010919



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ABCMR Record of Proceedings (cont)                                         AR20110015348



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