IN THE CASE OF:	  

		BOARD DATE:  27 November 2012

		DOCKET NUMBER:  AR20120002529 


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:

	a.  revocation of his Reserve Officers' Training Corps (ROTC) disenrollment with reimbursement for the unpaid remainder of his ROTC scholarship in the amount of $106,564.00;

	b.  his May 2008 Army Physical Fitness Test (APFT) result be changed from "fail" to "pass";

	c.  all administrative suspensions and negative counseling statements be stricken from his military record;

	d.  a letter from the Board clarifying whether or not contracted ROTC cadets are military members; and

	e.  that if it is determined he currently has an unfavorable reenlistment code or anything other than an honorable discharge that it be changed to an honorable with a favorable reenlistment code.

2.  The applicant states he was wrongfully taken off scholarship in violation of his contract, Army Regulation 350-1 (Army Training and Leader Development), Cadet Command regulation, and battalion-level policy.  This was due to the Professor of Military Science (PMS) holding ROTC cadets at Rochester Institute of Technology (RIT) to a higher standard than other ROTC programs.


	a.  He states on 3 December 2007, he accepted an ROTC scholarship for a
3 2/3-year instead of a 4-year scholarship as he was originally offered.  He did not meet the prerequisites for joining ROTC as he was never orally administered the oath of enlistment in the presence of a commissioned officer, in violation of Army Regulation 601-210 (Active and Reserve Components Enlistment Program).  Despite this, Lieutenant Colonel (LTC) LAL signed and dated his enlistment contract swearing to have witnessed his signature.

	b.  He alleges that his wrongfully being placed on administrative suspension for failing the APFT resulted in a financial hardship that caused his grades to drop because of malnutrition and inadequate living conditions.  He states he was improperly administered an APFT because he should have been exempt based on a profile stemming from an injury incurred while participating in an ROTC event.  He states he reinjured his ankle when he rolled it on a chipping asphalt drop off on a running course that was inappropriate due to numerous problems, such as cracking asphalt, mud, and oncoming traffic that at times hindered their running.

	c.  He alleges the leadership issues and the negative command climate, as substantiated by the Inspector General (IG), adversely affected his grades.  In retaliation for submission of an IG complaint, he was disenrolled from ROTC 2 months later.  The Department of Defense (DOD) IG's office said they were "sympathetic" but would not investigate the case.

	d.  In an effort to exhaust administrative remedies he filed IG complaints, complaints with the RIT, and he filed a lawsuit against the university for an arbitrary and capricious hearing process.

	e.  He filed an appeal with the Department of the Army (DA) who agreed with his argument and granted him relief from paying back of tuition funds based on the negative command climate and leadership issues with the ROTC program at RIT.

3.  The applicant provides a list of 64 exhibits including:

* a 12-page statement describing the circumstances beginning with his application to enter the ROTC program to his disenrollment from the ROTC program at RIT
* DD Form 4 (Enlistment/Reenlistment Document)
* two incomplete DA Forms 597-3 (Army Senior ROTC Scholarship Cadet Contract)
* APFT results


* counseling statements
* DOD IG document
* documents from two court cases
* LTC PTH's sworn statement

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) Control Group (ROTC) on 3 December 2007.  Item 19 of the DD Form 4 shows LTC LAL administered the enlistment oath for the applicant. 

2.  There is no completed DA Form 597-3 available showing his contract under the Senior ROTC Scholarship Program, though he states the contract was for a period of 3 2/3 years.

3.  He submits documents indicating he was placed on the Dean's List for the Fall term in 2007-2008 and that he met all standards or exceeded expectations early on in the ROTC program.

4.  He submits medical documentation from the RIT Student Health Center regarding an appointment on 11 March 2008 related to his ankle injury/sprain that he sustained while playing soccer in an ROTC-sponsored event.

5.  He submits his APFT results for four tests showing he passed three of the tests and failed the fourth test on 12 May 2008 due to failing the run event.  He states he reinjured his ankle when he rolled it on a chipping asphalt drop off on a running course that was inappropriate due to numerous problems. 

6.  He submits medical documentation from the RIT Student Health Center regarding an appointment on 15 May 2008 related to continued pain in his ankle as a result of an injury/sprain that he sustained while playing soccer in an ROTC-sponsored event.

7.  On 6 June 2008, the RIT ROTC PMS (LTC LAL) approved the recommendation to place the applicant on administrative suspension for the Fall 2008 quarter for failing to pass the run portion of his record APFT in May 2008.

8.  On 26 November 2008, LTC LAL approved the recommendation to place the applicant on administrative suspension for the Winter 2008-2009 quarter for receiving a Fall quarter grade point average (GPA) of 1.85.


9.  The applicant submits a Headquarters, Eastern Region, U.S. Army Cadet Command Report of Investigative Inquiry, dated 26 November 2008.  The inquiry unsubstantiated the applicant's allegation that he was improperly administered an APFT on 12 May 2008.

10.  On 15 December 2008, he was counseled by Captain LPM regarding his conduct and performance.  The counseling statement addressed his missing physical training sessions and missing an ROTC class.  He was also counseled on his failure to follow guidance on more than one occasion.

11.  On 29 January 2009, he was placed on a leave of absence pending disenrollment.  The reason stated for his disenrollment was an indifferent attitude or lack of interest in military training and/or breach of his ROTC Scholarship Cadet Contract in that he failed to maintain a minimum quarterly academic GPA of 2.0 on a 4.0 or equivalent scale, and/or failing to remain enrolled in and successfully completing the ROTC.  He was advised that among the options available to him, he could request a hearing, consult with any reasonably available military officer or civilian counsel to help him decide whether or not to waive a hearing and otherwise assist him in exercising his options, and he could submit written statement(s) in his own behalf.

12.  On 7 October 2009, the applicant was disenrolled from the ROTC program under the provisions of Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 3-43a (16), 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).  Disenrollment was due to his breach of the ROTC contract based on his failure to maintain a minimum quarter academic GPA of 2.0 on a 4.0 scale and his withdrawal from the ROTC program.  This memorandum of notification informed him of his options to satisfy his debt ($19,254.00) of repaying the cost of advanced education assistance provided by the Army.

13.  Order Number 280-01, issued by the U.S. Army ROTC Battalion, RIT, dated 7 October 2009, discharged the applicant from the USAR Control Group (ROTC) under the provisions of Army Regulation 145-1, effective 7 October 2009.  The discharge order contains no additional instructions, nor does it show a characterization of service or reenlistment code.

14.  The Assistant Secretary of the Army (Manpower and Reserve Affairs) ASA (M&RA) granted the applicant relief from his $19,254.00 debt to the government for tuition already paid.  The ASA (M&RA) further directed the disenrollment of the applicant from the ROTC program and waived any obligation incurred per Chapter 3c(1) of his DA Form 597-3.

15.  An email from the DOD Office of the IG, dated 18 November 2010, stated the office of the ASA (M&RA) confirmed the applicant's disenrollment was due only to failing to maintain a 2.0 GPA.

16.  He submits a sworn statement authored by LTC PTH, the Recruiting Operations Officer and Scholarship Coordinator for the Army ROTC program at RIT at the time, dated 24 January 2012.  LTC PTH describes how from the onset it was difficult dealing with LTC LAL (newly assigned PMS at the time) at RIT.  He states that after he transferred out, he was contacted as a witness by a Cadet Command IG conducting an investigation into LTC LAL's conduct as PMS at RIT.  In the report the IG issued, he cited a negative command climate, distrust for LTC LAL by the cadets and staff, and lack of confidence in her ability to lead.  He states it is his belief that within that environment, the applicant was treated unfairly by LTC LAL and the treatment was inconsistent with Army policies and procedures.

17.   The applicant submits copies of a DOD IG document and two court cases related to whether or not a member of the ROTC is also a military member.  The court in one case held that Congress did not consider ROTC training as regular military service.  In the other case it was determined that the ROTC scholarship cadet was enlisted in the Army and was therefore a member of the armed forces, even if not on active duty. 

18.  Army Regulation 140-1 (Mission, Organization, and Training) provides policy guidance on the mission, organization, and training of the USAR.  This regulation states the USAR Control Group (ROTC) consists of cadets enrolled in the Senior ROTC.  The control group is under the administrative jurisdiction of the Commander, ROTC Cadet Command and is prescribed by Army Regulation
145-1.  Army Regulation 140-1 defines an ROTC cadet as a student enrolled in the Senior ROTC.

19.  Army Regulation 145-1, paragraph 3-41, prescribes that a DA Form 597-3 must be completed by the ROTC scholarship recipient.  Scholarship students must, without exception, execute the loyalty oath.

	a.  Paragraph 3-42 prescribes that except for cadets who are enrolled in the advanced course under paragraph 3-17, a DD Form 4 will be completed by the student and the PMS.  This is a prerequisite for enrollment in the advanced course (MS III) or scholarship program.  The forms will be completed on the same date that the enrollment is confirmed (Part IV of DA Form 597 or DA Form 597-3).

	b.  Section VI (Disenrollment, Discharge, Separation, Transfer, and Leave of Absence) states a scholarship cadet may be disenrolled only by the Commanding General, ROTC Cadet Command (CG, ROTCCC).  Nonscholarship and scholarship cadets will be disenrolled for reasons including:

		(1)  At their own request, if they are nonscholarship basic course cadets. The 4-year scholarship cadets may be disenrolled at their own request during MS I only.

		(2)  Failure to maintain a minimum semester or quarter cumulative academic GPA of 2.0 on a 4.0 scale or higher if required by the school and at least a 3.0 on a 4.0 scale or equivalent semester or quarter and cumulative average in all ROTC courses.

		(3) Failure to meet the same 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.

		(4)  Inaptitude for military service as demonstrated by a lack of general adaptability, skill, hardiness, ability to learn, or leadership abilities.

		(5)  Indifferent attitude or lack of interest in military training as evidenced by frequent absences from military science classes or drill, an established pattern of shirking, failure to successfully complete an established weight control program, or similar acts.

	c.  A board of officers will be appointed by the PMS, the brigade commander, or the region commander according to the formal procedures outlined in Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) as modified by this regulation and guidance from the CG, ROTCCC, to consider the case of a cadet considered for disenrollment or when deemed necessary.  Additionally, in cases where a board of officers is not appointed, the PMS will appoint an investigating officer to inquire into the case of any scholarship or advanced course cadet being considered for disenrollment, to include voluntary disenrollment or disenrollment to join another officer procurement program.

	d.  Cadets undergoing board or investigative action will be placed on a leave of absence when the cadet is notified of the board of investigative hearing which will suspend tuition and subsistence payments pending outcome of the board or investigation.  The ROTC contract will be annotated to show the date and reason for disenrollment or discharge.

	e.  Paragraph 3-44 states the CG, ROTCCC is the only authority for discharge of scholarship cadets.  ROTC cadets normally will be honorably discharged on the date of disenrollment from the ROTC program, except those ordered to active duty under the terms of their ROTC contract.  Cadets assigned to USAR Control Group (ROTC) may be discharged or separated for the convenience of the Government for any of the reasons listed below.

		(1)  Termination of a 4-year scholarship.  The 4-year scholarship cadets whose status is terminated during the first year may be discharged without disenrollment from the ROTC.  (Membership in the USAR is not a requirement for enrollment in the basic course as a nonscholarship cadet.)

		(2)  Upon disenrollment from the ROTC, a cadet assigned to the Control Group (ROTC), who is not ordered to active duty or pending such an order and has no previous military service, or who has not completed a basic training course, will be discharged.  The effective date of discharge or transfer will be the date of disenrollment from the ROTC.

20.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Paragraph 6-18 states a commissioned officer of any Service will administer the Oath of Enlistment in DD Form 4 orally, in English, to each applicant.

21.  Title 10, U.S. Code, section 2005(a)(3), states 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 with the Secretary concerned under the terms of which such person shall agree that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed by the Secretary to protect the interest of the United States, such person will reimburse the United States in an amount that bears the same ratio to the total costs of advanced education provided such person as the un-served portion of active duty bears to the total period of active duty such person agreed to serve.

22.  DOD Financial Management Regulation (DODFMR), Volume 7A, Chapter 1 provides that service as a member of the Army ROTC is creditable service for pay purposes only when the member has concurrent Reserve status for duty performed.



DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the USAR Control Group (ROTC) on 3 December 2007 in conjunction with his contracting as an ROTC scholarship cadet.

2.  He contends that, in effect, he had a valid profile to exempt him from taking the APFT in May 2008; therefore, he was wrongfully administered the APFT.  Evidence shows he was injured during an ROTC-sponsored soccer event in March 2008.  However, there is no evidence of record and he has not shown that he had a valid written profile that would have exempted him from taking the APFT in May 2008 or authorized an alternate event.  He also contends the running course was not to standard.  However, it is reasonable to presume that other cadets used the same course and passed the run portion of the APFT.  He has failed to show that he did not fail a properly-administered APFT in May 2008.  Therefore, there is an insufficient evidentiary basis for which to support changing his May 2008 APFT results from "fail" to "pass."

3.  He further alleges he was wrongfully placed on administrative suspension for failing the APFT resulting in a financial hardship that caused his grades to drop from malnutrition and inadequate living conditions.  However, a report of investigative inquiry found his allegation of being improperly administered an APFT on 12 May 2008 was unsubstantiated.  As such, there was no basis for supporting his contention that he was wrongfully placed on administrative suspension for failing the APFT.  Further, his statement that this action caused his grades to drop from malnutrition and inadequate living conditions is not substantiated.

4.  The applicant contends he did not meet the prerequisites for joining ROTC as he was never orally administered the oath of enlistment in the presence of a commissioned officer, in violation of Army Regulation 601-210.  Records show LTC LAL signed and dated his enlistment contract certifying the oath was administered, subscribed, and duly sworn to (or affirmed) before her on
3 December 2007.  This record also shows he authenticated the DD Form 4 with his signature and date apparently with the intent to fulfill his obligation.  Therefore, there is no basis for showing he did not meet the prerequisites for enrolling in ROTC for this reason.

5.  In regard to his request for Board clarification on whether or not contracted ROTC cadets are military members, the applicant completed a DD Form 4 and became a member of the USAR Control Group ROTC.  The court cases he submitted determined that an ROTC scholarship cadet was enlisted in the Army and was therefore a member of the armed forces, even if not on active duty.  Therefore, he was a member of the USAR from the date of his enlistment on the DD Form 4 (3 December 2007) until the date of his discharge.

6.  The discharge order does not show a characterization of service or reenlistment code.  ROTC cadets normally will be honorably discharged on the date of disenrollment from the ROTC program, except those ordered to active duty under the terms of their ROTC contract.  As such, it appears there is no error or injustice to consider regarding this portion of his request.

7.  Evidence supports his contentions that the command climate was unfavorable at the ROTC program at RIT, which is unfortunate.  However, evidence indicates he was disenrolled from the ROTC program only due to not meeting the academic GPA requirements.  This was substantiated by the office of the ASA (M&RA) and DOD IG.  His allegation that the IG substantiated leadership issues and that the negative command climate adversely affected his grades and that he was disenrolled from ROTC 2 months later in retaliation for submission of an IG complaint is not substantiated.  Therefore, it appears there is no error or injustice regarding his disenrollment.

8.  The fact remains, he breached his ROTC contract and therefore he was disenrolled from the ROTC program in accordance with regulatory policy and his rights were not significantly jeopardized.  To provide him relief in this case would provide him benefits not offered to other cadets who had less than favorable command climates and/or leadership in their ROTC programs.

9.  He specifically requests all administrative suspensions and negative counseling statements be stricken from his military record, revocation of his ROTC disenrollment, and reimbursement for the unpaid remainder of his ROTC scholarship in the amount of $106,564.00.  However, he has not shown the administrative suspensions and negative counseling statements were erroneous or unjust, that he was unjustly disenrolled from ROTC, or that it would be appropriate to reimburse him for the unpaid remainder of his ROTC scholarship.

10.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.


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)                                         AR20120002529



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ABCMR Record of Proceedings (cont)                                         AR20120002529



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