IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120008981 


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, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* the applicant's reinstatement into the Reserve Officers' Training Corps (ROTC) Program
* the recoupment of $135,773.23 in ROTC debt be stopped

2.  As a matter of clarity, the following individuals are identified:

* Major General (MG) JMD, Commanding General (CG), U.S. Army Cadet Command (USACC)
* Lieutenant Colonel (LTC) JCS, Professor of Military Science (PMS)
* Colonel (COL) SLW, Commander, 3rd Brigade, USACC, Great Falls, IL
* Captain (CPT) SG, Investigating Officer (IO)
* LTC SCB, PMS and President of Board of Officers

3.  Counsel states:

	a.  On 19 December 2011, the applicant was officially disenrolled and discharged from the University of North Dakota ROTC program pursuant to Army 
Regulation 145-1 (Senior Reserve Officers' Training Corps Program: Organization, Administration, and Training), paragraph 3-43a(14).  Disenrollment was to due to the finding that the applicant was in breach of contract based on his undesirable character as demonstrated in pervasive, unwanted sexual comments and advances towards subordinate female cadets.

	b.  On 4 April 2011, the applicant was notified that multiple female cadets submitted complaints of unwanted sexual advances.  On 6 April 2012, CPT SG, the IO, concluded his investigation and recommended to LTC JCS that the applicant be disenrolled despite the fact that CPT SG had yet to speak with the applicant.  On 11 April 2011, the applicant submitted his sworn statement to CPT SG, and LTC JCS submitted a memorandum initiating the disenrollment of the applicant.  On 4 May 2011, the applicant requested a formal board and on 5 May 2011, COL SLW appointed LTC SCB to be the President of the formal board.  COL SLW's memorandum details that the board will use formal procedures established under Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) to determine if the applicant should be disenrolled per Army Regulation 145-1, paragraph 3-43a(14).  LTC SCB recommended disenrollment.  As detailed herein, the Army failed to follow regulatory procedures for conducting the 12 May 2011 formal board hearing.  Subsequently, the hearing worked to the applicant’s prejudice and the failure to follow mandatory procedures infringed on his right to due process.

	c.  The applicant was a dedicated member of the University of North Dakota ROTC program.  For more than 3 years, he exhibited the character and ethics of a future Army officer.  He earned leadership roles in the battalion and maintained a high grade point average (GPA).  Prior to April 2011, he had no disciplinary action taken against him by the ROTC program or by the University of North Dakota.  The decision to disenroll him is disproportionate to any indiscretion he allegedly committed.  Witness testimony and sworn statements reveal a great deal of ambiguity surrounding the nature of his relationship with each of the female cadets and suggests that while he did have conversations with these female cadets that were sexual in nature, evidence does not support the conclusion that these conversation were pervasive and unwanted.  Each female cadet actively participated in these conversations with him and one of the female cadets, Cadet DZ, had a sexual relationship with him.  Additionally, there are significant inconsistencies between the 4 April 2011 sworn statements of the female cadets and their 12 May 2011 board testimonies.  These inconsistencies raise doubts as to the authenticity of the claims of harassment in the sworn statements.

	d.  The applicant entered the ROTC program at the University of North Dakota with all intentions of completing his course work and being commissioned as an officer in the U.S. Army.  He served honorably and with distinction in both his roles as a student and as a scholarship member of the Fighting Sioux Battalion.  As a student, he was exemplary.  He maintained a high GPA throughout his entire collegiate career.  Even under the stressful circumstances of disenrollment proceedings during his final semester, he was able to complete his degree and maintain a 3.8 GPA.  He was also an exemplary cadet.  Out of recognition for his dedication and high performance, he was rewarded with an executive officer (XO) position during the fall semester of 2010.  He was very dedicated to his leadership role and participated in every physical training (PT) session during the semester.  Additionally, he went beyond the call of duty and voluntarily organized and led numerous swim training exercises for cadets who were struggling with their swim requirements.  This was not a requirement of his XO duty but it was a sincere expression of his desire that all cadets in the Fighting Sioux Battalion succeed.  He was recognized by fellow cadets (both male and female) and ROTC instructors for his commitment and dedication to Army values.  Helicopter Flight Instructor SE notes that the applicant was "always dependable and consistently displayed a remarkable transparency of honesty….I am confident that [Applicant] is a trustworthy and genuine individual and without compromise."  Cadet MT (battalion commander for fall semester 2010), a friend and now a commissioned officer, notes that the applicant would "make a great officer in the United States Army….he knows the difference between right and wrong, and is never afraid to choose the hard right over the easy wrong."  The additional character letters included here, in addition to his exemplary behavior in the classroom and with the battalion, overwhelmingly attest to his dedication to the Army Values:  Loyalty, Duty, Respect, Self-less Service, Honor, Integrity, and Personal Courage.

3.  Counsel makes the following argument:

* The formal board hearing failed to follow mandatory procedural regulations

* Army Regulation 15-6, paragraph 1-6 was violated by CPT SG and LTC JS during the investigation and by LTC SB in his findings and recommendation memorandum
* Army Regulation 15-6, paragraph 1-9(c)(1) and paragraph 5-5 were violated when the applicant did not receive CPT SG's investigation until May 2011
* Army Regulation 15-6, paragraphs 3-8(b) and (d) were violated during the board hearing; witnesses were texting in the sequestered witness room; one cadet and her family were seated in the witness room and LTC SB provided no explanation for the presence of a female
* LTC SB cited and applied Army Regulation 600-20 (Army Command Policy) selectively that prejudiced the applicant  

* The principles of equity that govern the Board should compel the Board to grant the requested relief

* There are significant inconsistencies between the sworn statements of many of the female cadets and their testimony during the formal board hearing
* The negative influence of one of the cadets was not thoroughly examined by the formal board

* The Board should grant relief because the applicant would be a valuable addition to the Army as an officer

4.  Counsel provides:

* Disenrollment from the ROTC Program Approval Memorandum
* Disenrollment from the ROTC Program Notification Memorandum
* Appointment of a Formal Board of Officers Memorandum
* Unofficial Transcripts
* Diploma from the University of North Dakota
* Letters of support
* Multiple sworn statements
* Formal Disenrollment Board Findings and Recommendations
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve as a cadet for a period of 8 years on 13 November 2007.  In connection with this enlistment, he executed a DA 597-3 (Army Senior ROTC Scholarship Cadet Contract), dated 13 November 2007, and agreed to receive scholarship benefits for a period of four academic years, including tuition and fees, books, laboratory expenses, and monthly subsistence, at the University of North Dakota in exchange for appointment as a Reserve of the Army upon successful completion of all academic, military, and other requirements of the Army ROTC program.

2.  Paragraph 5 (Terms of Disenrollment) of his DA Form 597-3 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 service 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 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 (MS) II; 3 years if the breach occurred during MS III; or for 4 years if the breach occurred during MS IV.

4.  Upon the commencement of the 2010/2011 academic school year, cadets DZ, AJ, KW, KE, CW, and JL (collectively referred to as subordinate cadets) were enrolled in the ROTC program as MS-I's.  

	a.  The applicant was the Cadet Battalion XO for the Fighting Sioux Battalion.  He befriended each of the subordinate cadets on Facebook and through text messages.  He began conversations with each under the guise of inquiring about their enjoyment of the ROTC program.  The conversations quickly turned sexual in nature with each individual.  The applicant did not discuss the sexually natured topics with each of the individuals. Instead, he would text message or Facebook chat with them regarding sexually natured topics.  

	b.  Some comments are quite vulgar, explicit in nature, obscene, lewd, lascivious, and indecent.  Some cadets described him as saying "they owe him sexual favors" and some text messages sent by him to one of the cadets showed he was asking for "car sex" and a "threesome."  The individuals would request he cease his sexual comments innuendo and he would do so but would re-initiate communications again after a short period of time.  After one such encounter when he was asked to cease his comments, he contacted two cadets via Facebook as their battalion XO and demanded they remove a status disparaging the President of the United States.  The cadets regarded this action confusing because as long as he was having sexual conversations with them, there was no disciplinary discussion or comments about his status as XO.  However, as soon as they attempt to cease the conversation, he would attempt to discipline them as their leader.  In what the subordinate cadets believed was retaliation for not acting on his sexual advances, he would recommend disciplinary action against at least two of the cadets through the cadet chain of command. 

	c.  After meeting with other cadets, one subordinate cadet decided to come forward with their allegations about the applicant and report them to the PMS, LTC JCS.  As such, on 4 April 2011, LTC JCS received the complaint from the female cadets.  He immediate counseled the applicant and notified him that he was under investigation by an IO.  The IO informed LTC JCS on 6 April 2011 that the applicant did not possess the appropriate Army values to commission as an Army officer due to harassment of subordinate cadets.  The applicant submitted a statement which was reviewed with other cadets' statements.  

5.  On 11 April 2011, in a memorandum addressed to the applicant, the PMS notified him that he was initiating action to disenroll him from the ROTC program based on his undesirable character as demonstrated by his pervasive unwanted sexual comments and advances towards subordinate female cadets within the battalion.  He was further advised of his rights and informed that he would be placed on leave of absence pending disenrollment.  Additionally, he was notified that as a scholarship cadet, if the disenrollment was approved, he could be called to active duty in an enlisted grade of E-1 or be required to repay scholarship benefits in the amount of $135,773.23 in lieu of call to active duty in fulfillment of his contractual obligations.

6.  On 18 April 2011, he acknowledged receipt of the memorandum notifying him of his disenrollment from the ROTC program.  He also acknowledged he understood he may be called to active duty in an enlisted grade of E-1 or be required to repay scholarship benefits in the amount of $135,773.23.00 in lieu of call to active duty in fulfillment of his contractual obligations.  On 4 May 2011, he requested a personal hearing.  He further declined expeditious call to active duty.

7.  On 5 May 2011, COL SLW ordered a board of officers be appointed and convene to hear the evidence and determine if the applicant should be disenrolled from the Senior ROTC Program due to pervasive unwanted sexual comments and advances towards subordinate female cadets within the battalion, which would prohibit him from being commissioned.  

8.  On 12 May 2011, a board of officers convened and found the applicant.  Several individuals, including the applicant and his civilian counsel were present. During the board, the following individuals testified:

	a.  Cadet DZ had known the applicant almost 4 years, they were in the same high school and worked at a pool.  They had engaged in consensual sex the previous semester and after the conversations would get out of hand, she could not feel she could tell him to stop because she was intimidated by him being her XO and felt there would be repercussions if she did.  Previously, cadet DZ's mother was going to turn the applicant in to the former PMS because she found his behavior disconcerting but cadet ZD convinced her not to do so.  

	b.  Cadet CW stated the applicant had requested her on Facebook.  She never went to his apartment by herself or have him over to hers.  She found some of his comments towards her and “what he wanted to do to her" during chats as unwanted, sexual advances and inappropriate.  She did not tell him but whenever she felt uncomfortable, she would change the subject.

	c.  Cadet KE stated the applicant requested her on Facebook.  During their chats, he would refer to his size multiple times.  She found that inappropriate but was mostly concerned about him saying she owed him sexual favors.  

	d. Cadet KW stated the applicant had requested her on Facebook.  They would chat and the conversations would turn sexual which she initially thought was funny but as they continued, she became uncomfortable and would leave [the chat].  She did send him an inappropriate website but immediately regretted it.  She also stated she was afraid of drinking and did not want to do because she did not want to get in trouble.  The applicant had offered to let her come over to his apartment to drink and crash on his couch.  She soon requested he delete her and unfriend her.  

	e.  Cadet AJ stated there was one time she was at his apartment with a group of cadets.  She did not say anything about the comments being made about her but felt uncomfortable.  However, since she was a freshman and he was a senior, she was afraid of what would be said about her.  

	f.  Cadet MT stated he had known the applicant for 4 years and had never known him to say or do anything of an inappropriate sexual nature to a subordinate female in the battalion.  He knows the applicant cheated on his girlfriend but not with another female in the battalion.  He also confirmed the presence of underage drinking as a campus-wide issue and the presence of a “air of sexual openness" present on campus.  

	g.  Cadet GW stated had known the applicant for 3 years and befriended him on Facebook.  He had never heard of the applicant making any threats before.

	h.  Cadet BM stated he consumed alcohol with and was provided by the applicant.

9.  The board of officers found the applicant:

* Received advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $135,773.23 that continued to be a valid debt
* By his own admittance, the applicant failed to complete the requirements of a valid ROTC cadet contract by making pervasive, unwanted sexual comments and advances towards subordinate female cadets within the battalion
* The applicant displayed moral turpitude through the use of obscene, lewd, lascivious, and indecent language in conversations with subordinates within the battalion 
* By his own admittance, the applicant did so when not in uniform and stopped when asked, but the fact remains that he did make the comments to subordinate cadets
* By his actions, the applicant displayed questionable moral character which disqualified him from enrollment in ROTC and which also prohibited him from commissioning in any branch of the U.S. Military
* The applicant conducted disrespectful acts/speech toward female cadets  which interfered with the ROTC mission
* The applicant admitted to the board that he contributed to the delinquency of a minor and violated North Dakota's "Social Host" and underage drinking law by providing underage cadets a safe location to consume alcohol, some of which he purchased

10.  The board of officers recommended the applicant:

* Should not be retained in ROTC as a scholarship cadets
* Should not be retained in ROTC as a non-scholarship cadet
* Should be disenrolled in accordance with Army Regulation 145-1, paragraphs 3-43(a)(12), 3-43(a)(14)
* Should not be released from his contractual obligations
* Should not be ordered to active duty in an enlisted status in any military service
* Should be ordered to repay his valid debt of $135,773.23

11.  On 29 July 2011, the PMS recommended the applicant's disenrollment from the ROTC Program.  He based his recommendation on the applicant's undesirable character as demonstrated by his pervasive and unwanted sexual comments and advances towards subordinate cadets.

12.  On 7 September 2011, the Commander, 3rd Brigade, USACC, also recommended approval based on the applicant's undesirable character as demonstrated by his pervasive and unwanted sexual comments and advances towards subordinate cadets.  He further stated he concurs that the applicant should pay back the benefits he received and that he not be allowed to enter the Army as either an officer or an enlisted member.  He recommended the applicant be withdrawn from the program immediately.

13.  On 9 December 2011, the CG, USACC, ordered the applicant disenrolled from the ROTC program in accordance with Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph
3-43a(14) due to breach of ROTC contract based on his undesirable character as demonstrated by his pervasive, unwanted sexual comments and advances towards subordinate female cadets within the battalion.
14.  The applicant was provided an addendum to his scholarship contractual agreement with options to be ordered to active duty, repayment of the debt in a lump sum, or repayment in monthly installments.  He was also notified that failure to respond within 14 days of the disenrollment approval would result in the issuance of active duty orders or initiation of involuntary collection action.  He failed to make a choice.

15.  It appears subsequent to this action, DFAS officials notified the applicant of his scholarship debt in the amount of $135,773.23 with options to make installment payments.

16.  Army Regulation 145-1 prescribes polices and general procedures for administering the Army’s Senior ROTC Program.

	a.  Paragraph 3-31 states the Army ROTC Scholarship Program provides financial assistance to those students who have demonstrated academic excellence and leadership potential.  The U.S. Army Scholarship Program’s purpose is to provide for the education and training of highly qualified and motivated young men and women who have a strong commitment to military service as commissioned officers

	b.  Paragraph 3-39 states a non-scholarship cadet may be disenrolled by the PMS and a scholarship cadet may be disenrolled only by the CG, ROTC Cadet Command.  Nonscholarship and scholarship cadets will be disenrolled for a variety of reasons.

	c.  Paragraph 3-43a(12) states a cadet may be disenrolled due to misconduct, demonstrated by disorderly or disrespectful conduct in the ROTC classroom or during training, or other misconduct that substantially interferes with the ROTC mission, including participation in unlawful demonstrations against the ROTC, illegal interference with rights of other ROTC students, or similar acts.

	d.  Paragraph 3-43a(14) states a cadets may be disenrolled due to an undesirable character demonstrated by cheating on examinations, stealing, unlawful possession, use, distribution, manufacture, sale (including attempts) of any controlled substances, as listed or defined in Title 21, U.S. Code, section 812, discreditable incidents with civil or university authorities, falsifying academic records or any forms of academic dishonesty, failure to pay just debts, or similar acts.  Such acts may also be characterized as misconduct.

17.  Army Regulation 37-104-3 (Financial Administration – Military Pay and Allowances Policy) provides the policies and provisions for entitlements and collections of pay and allowances of military personnel.  Chapter 59, currently in effect, provides for recoupment of educational expenses, e.g., ROTC, U.S. Military Academy, and advanced civilian schooling under a previous agreement when obligated active duty service has not been completed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was accepted into an Army ROTC scholarship program.  However, he failed to satisfy the contractual requirements of this program based on his undesirable character as demonstrated by his pervasive, unwanted sexual comments and advances towards subordinate female cadets within the battalion which constituted a breach of contract.

2.  He was disenrolled from the ROTC program and he was subsequently found in breach of his ROTC contract.  He was advised of his rights and elected a board of officers.  He also declined an expeditious call to active duty that would 
have ordered him to active duty in lieu of paying his debt.  A board of officers subsequently convened and found him in breach of his ROTC contract due to misconduct.  During the board of officers he had the opportunity to present all matters in his defense and his issues were addressed.

3.  The terms of the ROTC scholarship contract required a cadet to either monetarily repay the debt or agree to be ordered to active duty (emphasis added) as an enlisted Soldier through ROTC channels based on the needs of the Army.  He elected not to serve on active duty.  He should not be allowed to profit from his failure to satisfy his contractual obligations.  The applicant breached his ROTC contract; therefore, he is not entitled to relief.

4.  The quality of a member's service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel. These standards are found in the Uniform Code of Military Justice, ROTC directives and regulations, and the time-honored customs and traditions of military service.  The quality of service of a Soldier in the ROTC Program is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  The applicant's quality of service was diminished by his pervasive unwanted sexual comments and advances towards subordinate female cadets within the battalion.  As such, there is no reason to reinstate him in a program that he neither honored nor respected.

5.  With respect to counsel's arguments:

	a.  As a student and a cadet in the ROTC program, the applicant clearly displayed poor character; committed misconduct by making pervasive unwanted sexual comments and advances towards subordinate female cadets and provided his home as a safe location for minors to consume alcohol; and showed a lack of the Army Values by repeatedly sexually harassing subordinate female Cadets.  The Army regulation that governs the cadets ROTC program states ROTC applicants must be of good moral character.  Here, contrary to counsel's arguments that the applicant lived the Army values, the evidence shows he did not display good moral character demonstrated by his actions when he used obscene, lewd, lascivious, and indecent language in conversations with subordinate female cadets.

	b.  By regulation, scholarship cadets are disenrolled for misconduct, demonstrated by disorderly or disrespectful conduct in the ROTC classroom or during training, or other misconduct that substantially interferes with the ROTC mission, including illegal interference with the rights of other ROTC students; and an inaptitude for military service as demonstrated by lack of general adaptability or leadership skills.  The applicant selected certain cadets, befriended them, and after gaining their trust as a senior cadet, proceeded to make unwanted and unsolicited sexual advances towards them.  This type of behavior is not tolerated in the Army or in any capacity.  

	c.  The reason Army Regulation 600-20 (Army Command Policy) is mentioned is because it defines sexual harassment is unacceptable behavior and will not be tolerated.  Specifically, paragraph 7-4 states sexual harassment as unwanted sexual advances; requests for sexual favors; and, any person in a supervisory position who uses or condones explicit sexual behavior to affect the job of a Soldier.  The applicant's actions meet all of the previously outlined part of the definition of sexual harassment.  But even if this regulation is not mentioned at all, it is a well known fact that each university has a code that outlines the rights and responsibilities enjoyed by the students, faculty, and staff.  Members are presumably expected to be familiar with the rules and regulations contained within that code and act in compliance at all times.

	d.  All students are expected to maintain a high standard of conduct, both on and off campus and each student is expected to be responsible for his/her actions whether acting individually or in a group. By his own admission, the applicant made his comments and suggestions when not in uniform and his actions were those of a typical college student. 

	e.  The applicant entered into a valid Army Senior ROTC Cadet Contract.  He received advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $135,773.23 that constitutes a valid debt to the U.S. Government.  By his own admission he voluntarily failed to complete the requirements of a valid ROTC contract when he made pervasive unwanted sexual comments and advances towards subordinate female cadets within the "Fighting Sioux Battalion".  He displayed moral turpitude through the use of obscene, lewd, lascivious, and indecent language in conversations with subordinate female Cadets within the "Fighting Sioux Battalion".  By his actions, he displayed questionable moral character which disqualifies him from enrollment in ROTC which would prohibit him from commissioning in any branch of the US Military.  He conducted disrespectful acts/speech towards female cadets which interfered with the ROTC mission.  He admitted to the board that he contributed to the delinquency of a minor and violated the university underage drinking rules by providing underage Cadets a "safe location" to consume alcohol, some of which he purchased.  

	f.  His acts of misconduct are non-waiverable contracting disqualifiers.  Due to his misconduct, he failed to complete the requirements of the ROTC cadet contract in that, because of misconduct, he is no longer remains eligible for enrollment in the required military training.  From a statutory, regulatory, and equity standpoint, the applicant is not entitled to any 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)                                         AR20120008981



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ABCMR Record of Proceedings (cont)                                         AR20120008981



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