IN THE CASE OF:	

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20110024320 


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 defers his request to counsel.

2.  The applicant makes no statement.

3.  The applicant provides no additional documentation.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's Reserve Officers’ Training Corps (ROTC) records be corrected to remove his disenrollment action and waive the resulting debt.

2.  Counsel states, in an 8-page brief, the following explanations and arguments:

	a.  On 4 March 2011, the applicant was informed by his superior officers that he was being disenrolled from the Army ROTC for failure to appear at mandatory training events and for an alleged attitude of indifference.  He was placed on immediate leave of absence pending disenrollment.

	b.  Counsel argues that the applicant's rights to due process were violated throughout the disenrollment process and that such disenrollment should be removed from his record and any debt related to his scholarship should be waived.

	c.  Counsel contends the applicant entered the university in the fall semester, 2009 and began his training.  During his first year, he received a grade of "A-" in his Military Science class.  However, despite having registered and participated in Military Science classes over the following three semesters, only the first semester grade appears on his transcript.  In March 2011 when disenrollment was initiated, he had an overall grade point average of 2.77 and an above average Army physical fitness test (APFT) score of 255.

	d.  Counsel contends that beginning in January 2011, the applicant was ill with a lingering stomach virus and the flu.  He missed many classes including some in Military Science.  The applicant obtained notes for each lecture from his classmates.  He also made reasonable attempts to inform the cadre of his situation.  He sent memos to superior officers letting them know he had been ill.

	e.  On 29 January 2011, the applicant called a superior officer to inform him that he was still ill and would be unable to attend.  As his illness subsided, he began to attend every physical training session and ROTC training event.

	f.  On 10 February 2011, the applicant went to the university health center to obtain a note detailing the extent of his illness.  He was not provided with a retroactive excusal letter, but was provided with some medication.

	g.  On 23 March 2011, the applicant was formally counseled and informed of the intention to disenroll him from the ROTC program.  He had received earlier counseling about the importance of attending class and training events, but had not faced suspension or loss of his stipend.

	h.  Counsel contends that an investigatory board convened on 13 May 2011 for the purpose of determining whether the applicant should continue in the program or face disenrollment.  The actions and comments of the board demonstrated their intention was to disenroll him rather than to give him a forum to present his case.  It became clear during the hearing that the applicant had not received all information as requested under the Freedom of Information Act (FOIA) and the Privacy Act.  This made proper preparation of his case impossible.  During the board's questioning they abandoned their administrative duty and began to advocate disenrollment on behalf of the taxpayer.

	i.  Counsel contends that it became necessary for him to intervene on behalf of the applicant.  It was at this point that the President of the board decided to adjourn the hearing.  Counsel argues that the Army did a disservice to the applicant when it convened an investigatory board that had the unequivocal intent of disenrolling him.

	j.  Counsel contends that the applicant is deserving of relief because he was denied due process because:

* His absences were due to extended illness rather than an indifferent attitude
* He has always cared about his military training and never shirked his duties
* Any miscommunication was the result of the cadre's failure to actively involve cadets from other campuses
* He was never provided an impartial administrative hearing to determine whether he should remain in the ROTC program
* He was unable to adequately prepare for the investigatory board hearing because he was not provided with complete records as he requested
* The investigatory board used alleged misconduct beyond the scope of the hearing and adjourned when counsel intervened on his behalf
* The investigatory board alleged he had breached his contract by not enrolling in Military Science classes even though according to his superior officers he received letter grades for these courses

	k.  Counsel contends that the applicant's attitude has never been one of indifference.  His absences were the result of extended illness and after each missed training event he sent memos to superior officers informing them of his situation.  Even though unit standing operating procedure is to send memos prior to missing a training event, an error in procedure does not warrant disenrollment.  As his illness subsided, he attended training events with regularity and made a conscious effort to make up for lost ground.  His attendance and efforts were witnessed by his friends and fellow cadets.  Prior to disenrollment, he had the right to present his case before an impartial administrative board but was never afforded such opportunity.  Disenrollment of a cadet who is willing and able to serve is an extreme and ultimately unjust decision.  A preferable course of action would have been to actively mentor the applicant, followed by a period of probation with the loss of stipend had any alleged misconduct persisted.  By disregarding these preferable courses of action, a disservice was done to the Army and an injustice to the applicant.

	l.  Counsel contends that according to the president of the investigatory board, the purpose of the hearing was to determine if the applicant should be disenrolled from the ROTC program due to indifferent attitude or lack of interest in military training.  The board members were sworn in and promised to "impartially examine" the evidence presented.  These oaths were not honored and the applicant's rights to due process and an impartial hearing were ignored.  During the hearing the applicant's advisor was called as a witness.  A discussion ensued about why only one Military Science grade appeared on the applicant's transcript.  The advisor testified about emails between him and the registrar's office.  The applicant asked for copies of these emails and any other evidence that was not provided in conjunction with his request under the FOIA.  Because he had not received all of the necessary information prior to the hearing, he was unable to cross-examine the witness or to adequately prepare a defense.  Later in the hearing, questioning was directed at the applicant.  The board had abandoned the issue of absences and began to advocate disenrollment on behalf of the taxpayers and on the applicant's physical appearance at the hearing.  This line of questioning clearly exceeded the scope of the hearing and necessitated counsel's intervention.  Shortly thereafter the hearing was adjourned by the president.  For the aforementioned reasons, the applicant is entitled to relief.

	m.  Counsel argues that the debt in this case should be waived in the interest of justice and fairness.  His disenrollment was due to a persistent illness and an administrative hearing that was set on disenrollment from the time it convened.  To compel the applicant to pay $65,000 in light of the facts of this case would simply be unconscionable.

3.  Counsel provides copies of:

* Memorandum, U.S. Army Cadet Command, dated 24 January 2012 with enclosures
* Three Developmental Counseling forms, dated 7 February, 4 March, and 23 March 2011
* Statement and receipt from the university health center, dated                 10 February 2011
* Copy of applicant's college transcript
* Supporting statement, dated 10 May 2011
* Statement from another cadet, dated 12 May 2011
* DA Form 1574 (Report of Proceedings by the Investigating Board of Officers), page 1 only
* Copy of Transcript from the Investigatory Board Hearing

CONSIDERATION OF EVIDENCE:

1.  On 15 October 2009, the applicant signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract).  Paragraph 2 (General Cadet Agreement) states that he agreed to enroll in the necessary courses and successfully complete, within the prescribed time, the requirements for the degree in the academic major (International Affairs) stated in this contract.  He further agreed to remain enrolled in and successfully complete the ROTC program.
Paragraph 5 states if he were disenrolled from the ROTC Program for breach of contractual terms or any other disenrollment criteria established then or in the future by Army regulations, he would be subject to the following terms:

	a.  He agreed to serve on enlisted active duty.  The Secretary of the Army, or his designee, may order him to active duty as an enlisted Soldier, if he is qualified, for a period of not more than 4 years.

	b.  He agreed to reimburse the U. S. Government.  If he is offered the opportunity to repay his advanced educational assistance in lieu of being ordered to active duty, he would be required to reimburse the U.S. Government 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 this contractual agreement to the date of his disenrollment or refusal to accept a commission.

	c.  He understood and agreed that if he voluntarily or because of misconduct failed to complete any period of active duty or duty in a Reserve status not on active duty that he incurred under this contract, he would be required to reimburse the U.S. Government.

2.  A DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record), dated 7 March 2011, indicates the applicant was in MS II and he had received a total of $65,566.50 in educational benefits.

3.  A DA Form 4856 (Developmental Counseling Form) dated 7 February 2011 covered the applicant's four unexcused absences during the spring semester, 2011.  Three absences were due to illness but no doctor's note was provided to cadre.  One absence was due to his staying up all night working and sleeping through the next day.  His phone was out of battery, causing him not to wake up in time to call.  He was told he could not miss anymore ROTC events without presenting valid doctor's documentation at the immediate request of his superiors.  Failure to meet this requirement would result in a formal recommendation for placement on probation and possible disenrollment from the ROTC program.  The applicant agreed with the counseling.

4.  A DA Form 4856, dated 4 March 2011 counseled the applicant on his indifferent attitude or lack of interest in military training as evidenced by his frequent absences from military science classes or drill and an established pattern of shirking.  Because he had received numerous warnings and counseling about his sub-standard performance and the possible repercussions if he did not improve, and yet continued to miss class and other training events, he was informed that the disenrollment process was being initiated.  He was immediately placed on a leave of absence and was no longer authorized to go to any ROTC labs or physical training.  However, he was required to continue going to his military science class.  He was informed that the ROTC office would contact him for a time to receive the official notification documentation of his pending disenrollment.  The applicant indicated his disagreement with the counseling but made no comments.

5.  DA Form 4856, dated 23 March 2011, indicates that the applicant was formally notified of his potential disenrollment from the ROTC program.  He had missed the mid-term for Military Science during 21-25 February 2011, and had not even registered for Military Science in the current semester.  This was a clear violation of his cadet contract which required him to remain enrolled in and successfully complete the ROTC program.  Accordingly, the applicant was advised that he was required to review and return the attached disenrollment paperwork within 10 business days, on 6 April 2011, with his signatures.  The applicant indicated his disagreement with the counseling but did not provide any comments.

6.  On 5 April 2011, the applicant acknowledged that he had read and understood the statements concerning disenrollment from the ROTC program.  He requested to personally appear before a hearing.  He declined a call to active duty.

7.  A DA Form 1574 reports that a board of officers convened on 13 May 2011 to determine whether the applicant should be disenrolled from the ROTC program.  Present were the president, recorder, two members, the applicant and his civilian counsel.

	a.  The board found that the applicant had entered into a valid cadet contract.

	b.  The applicant had received advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $65,566.50.

	c.  The applicant breached the ROTC cadet contract by failing to show up to mandated training (class, labs, physical training or a combination thereof).

	d.  The applicant's behavior constituted misconduct that warranted recoupment of financial assistance expended by the U.S. Government.

8.  The DA Form 1574 reports that the board recommended that the applicant:

	a.  not be retained in the ROTC program as a scholarship cadet;
	b.  be disenrolled from the ROTC program;

	c.  not be released from his ROTC contractual obligations;

	d.  not be released to active duty in an enlisted status; and

	e.  should be ordered to repay his valid debt to the U.S. Government.

9.  The DA Form 1574 also contains the following board statement:

	"The board believes that [the applicant] was well aware of his contractual obligations with the United States Government and understood what was expected of him in order to successfully commission as a 2LT in the United States Army.  Despite knowing and understanding the standards, he still failed to meet/or maintain them with regards to attendance at mandatory training events.  He was counseled on numerous occasions that, if he continued to miss class, labs, and/or PT, he could potentially be disenrolled and be required to pay back any scholarship monies that he received.  He was counseled by his instructor on 16 Feb 2011 that, based on his history of missing class, labs, and PT, he would be disenrolled if he missed another one without a valid, approved excuse.  He then missed the very next week of class.  Although the [applicant] has testified that he was sick with a stomach virus/flu during the month of January and that is what led to many of his unexcused absences, he was unable to provide any medical documentation verifying his illness.  The only piece of documentary evidence he presented with regards to his illness was a receipt of purchase for a prescription for Phenazopyridine, dated 10 Feb 2011.  Phenazopyridine, however, is prescribed to relieve urinary tract pain, burning, or irritation.  This in no way backs up his claims that his stomach virus was so severe as to prevent him from coming to required training.  For these reasons, the board believes that [the applicant] should be disenrolled and be required to pay back the scholarship monies he has thus far received."

10.  The appointing authority for the board of officers approved the findings and recommendations of the board, with the exception that he be expeditiously called to active duty within 30 days in order to maintain the good order and discipline of this program.

11.  The applicant was notified by letter, dated 24 January 2012, of his disenrollment from the U.S. Army ROTC Program due to his failure to maintain a minimum semester cumulative academic grade point average of 2.0 on a 4.0 scale.  The letter further explained that his educational costs were $43,560.00 and that he had the option of paying this debt in full or initiating a repayment plan.  He also had the option of being ordered to active duty in an enlisted status for a period of 3 years rather than make monetary payment of the debt.

12.  In a memorandum, dated 25 July 2012, the Chief, Cadet Actions and Standards Division, Headquarters, U.S. Army Cadet Command requested establishment of a debt with the Defense Finance and Accounting Service (DFAS).

13.  On 12 May 2011, a person (relationship to applicant not stated) signed a statement saying that in the 4 weeks leading up to the applicant's disenrollment, he went to every physical training event.  The author further stated that his attendance was inconsistent prior and throughout the month of January.

14.  A walkout statement, printed on 10 February 2011, as provided by the applicant's counsel, shows that the applicant was an outpatient on that day and had been prescribed Phenazopyridine.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through his counsel, contends that his ROTC records should be corrected to remove his disenrollment action and waive the resulting debt.

2.  The available evidence of record clearly shows that the applicant breached the contractual elements of his ROTC program agreement by failing to show up for classes, labs, physical training or a combination thereof.

3.  Counsel contends that the applicant missed classes due to a lingering stomach virus and the flu.  However, no substantiating evidence has been provided showing that he was diagnosed with such illness, or that this illness was the proximate cause of his absences.  Furthermore, there is no documentary evidence showing that the applicant requested and was granted excusal letters for each of his absences.  There also is no evidence showing that any relevant material was withheld from the applicant, or that his ability to prepare his case was in any way hindered.

4.  The available counseling statements clearly show that the applicant was informed of his obligation to attend all training and classes and that failing to do so could result in his dismissal from the ROTC program and requirement to repay all scholarship monies thus received.  Even though the applicant had disagreed with the counseling, he never provided any written comments or explanations at the time.

5.  Counsel contends that the board of officers intended from the start to disenroll him rather than to give him a forum to present his case.  There is no available evidence that substantiates counsel's argument.

6.  Counsel contends that the applicant was disenrolled due to his indifferent attitude.  The evidence shows he was disenrolled for missing classes and training, which in turn indicated that he had an indifferent attitude.

7.  Counsel contends that the board of officers failed to provide the applicant with an impartial hearing based on the board's questions concerning his physical appearance, lack of military bearing, and the use of taxpayer money for his schooling.  The argument is without merit.  The only reason for the applicant's disenrollment was his failure to attend classes and training events.  There is no evidence showing that there was any bias on the part of the board of officers, or that any such bias led to an erroneous or unjust recommendation.

8.  In view of the above, the applicant's request should be denied.

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)                                         AR20110024320





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ABCMR Record of Proceedings (cont)                                         AR20110024320



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