IN THE CASE OF:	  

		BOARD DATE:  3 January 2013

		DOCKET NUMBER:  AR20120010919 


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 of $70,125.00 be forgiven.

2.  The applicant states:

	a.  He dropped out of the ROTC Program and enlisted in the Regular Army (RA) to repay the expenses rendered for his education.  He now knows he was incorrect in the way he went about things and that he acted with ignorance of the system.  He understands that he is responsible for paying the expenses paid for his education.  However, the overall end state is that the Army is receiving enlisted service as payment for his schooling.    

	b.  He is disputing the debt because he and his family could never realistically pay that kind of money no matter how long of a payment plan they are given.  They are not well off financially.  Money is tight and they already have a $25,000 loan in addition to other bills.  They rely on assistance to survive from month to month.  

3.  The applicant provides:

* A statement from his former company commander
* Disenrollment approval memorandum
* Educational Program Account
* Unsigned Scholarship Contractual Agreement
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) Control Group (ROTC) on 19 September 2007.  

2.  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.  He attended the University of La Verne, La Verne, CA from September 2007 to December 2009.  During this period, he performed poorly in his academic classes and his grade point average (GPA) deteriorated in:

* Fall 2007, he failed to meet academic requirements and earned 
9 semester hours with a GPA of 1.23
* Spring 2008, he met academic requirements
* Fall 2009, he failed to meet academic requirements and earned 
1 semester hour with a GPA of 0.05

5.  On 30 December 2009, while still under contract as a cadet, he enlisted in the USAR under the Delayed Entry Program (DEP) for 8 years.  His DD Form 1966 (Record of Military Processing) shows he enlisted for the U.S. Army Training Enlistment Program for a period of 5 years, he was authorized a $1,000 enlistment bonus, and enlistment in the grade of E-3 upon his entry on active duty (24 May 2010), by virtue of having completed 48 or more semester hours.

6.  On 13 January 2010, he withdrew from school/college because he indicated "he did not like the school" and on the same date, he was placed on leave of absence and then counseled about his withdrawal.  

7.  On 24 May 2010, he executed a 5-year enlistment in the RA. 

8.  On 15 September 2010, his Professor of Military Science (PMS) notified him by memorandum of the initiation of disenrollment action from the ROTC and placement on leave of absence based on his withdrawal from his academic institution, which was a breach of his scholarship contract.  He was advised of his rights to request a hearing and 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 $70,125.00 in lieu of a call to active duty.

9.  On 20 October 2010, 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 did not make an election regarding payment of the debt or accepting/declining expeditious call to active duty. 

10.  On 27 October 2010, an investigating officer (IO) was appointed to determine the applicant's suitability for retention in the ROTC Program.  The IO determined the applicant had withdrawn from the ROTC Program and possibly executed a fraudulent enlistment while under a scholarship cadet contract.  

11.  On 4 November 2010, a disenrollment board convened to consider the applicant for retention in or disenrollment from the ROTC Program, with the applicant present.  The board found the applicant had entered into a valid contract and received $70,125.00 worth of educational benefits.  The board also found the applicant failed to complete the requirements of his ROTC contract in that he withdrew from the program 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
* Be ordered to active duty for 3 years

12.  On 16 November and 3 December 2010, the PMS and the brigade commander recommended active duty.

13.  On 22 March 2011, the Commanding General, U.S. Army Cadet Command, 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), paragraph 3-43a(4) based on his withdrawal from school.  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 $70,125.00. 

14.  Additionally, the commanding general provided the applicant with a DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record) detailing the debt and ordered the applicant to elect an option as far as paying the full amount in one lump sum payment or initiate a repayment plan.  He was further notified that the addendum with his election must be received within 14 days of his receipt and failure to respond by the suspense date may result in the initiation of involuntary collection action. 

15.  The applicant provides an unsigned Addendum to Part I of the Scholarship Contractual Agreement.  This form shows he did not make an election.  

16.  Subsequent to this election, the Defense Finance and Accounting Service (DFAS)-Denver notified him that he was indebted to the U.S. Government in the amount of $70,125.00 for the recoupment of education expenses paid on his behalf during his participation in the ROTC Program.

17.  He provides a statement, dated 20 January 2012, from his former company commander who states:

	a.  At the end of the fall semester of 2009, the applicant met with his military science instructor for his end of semester counseling.  He was advised that since his grades were not acceptable, he should consider fulfilling his contract by enlisting.  On 30 December 2009, he enlisted in the DEP with the intent of fulfilling the payment obligation stated on his September 2007 ROTC contract.  His recruiter never informed him that he was not following proper procedure.  He enlisted on 24 May 2010 and left for Fort Benning, GA, for basic and advanced individual training.

	b.  In July 2010, he was surprised to learn of the $70,000 debt and sought assistance through the post staff judge advocate.  He was advised to meet with the disenrollment board at the Claremont McKenna College ROTC Program to initiate the disenrollment process.  During the meeting, he was advised to wait up to a year for a decision and to call if he had not heard anything.  A year later, in November 2011, he called as advised and discovered that in March 2011, a decision had been reached and he had never received notification.  

	c.  The applicant admitted he was at fault and that he should have read his contract.  Nevertheless, he is a good Soldier and he wants to serve his country in whatever capacity he can.  He enlisted with no intent to deceive and his intent is to repay the Army in a proper manner.  The debt has had a severe financial impact on him and his family.  His enlistment is a valid means to repay his ROTC debt. 

18.  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.

19.  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.

20.  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.

21.  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 USAR 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 the applicant enlisted in an ROTC Program.  He agreed that if he were disenrolled from the ROTC Program for any reason, he would have to 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 shows he failed to satisfy the contractual requirements of this program due to not meeting academic standards and withdrawing from the program.  While he was still under a contractual obligation, he voluntarily enlisted in the RA for 5 years on 24 May 2010.  

2.  As he was found in breach of his ROTC contract, he was accordingly notified of his disenrollment from the program.  He elected consideration of his case by a disenrollment board.  This board found him in breach of his contract and recommended disenrollment from the ROTC Program and service on active duty as an enlisted Soldier in lieu of paying back scholarship monies he had received. His disenrollment was ultimately approved by the appropriate official. 

3.  He contends his enlistment and current active duty service should fulfill his obligation under his breached Army ROTC contract.  Had the applicant chosen active duty or been involuntarily ordered to active duty as a result of his disenrollment, he would have been assigned against the needs of the Army, in pay grade E-1, and not allowed any enlistment options.  He enlisted for 5 years on 24 May 2010 in the grade of E-3 and received a cash bonus.  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.

4.  The applicant acknowledges his error and poor judgment.  His former commander speaks highly of him and his 24 May 2010 enlistment in the RA serves the same purpose as it would have had he been ordered to active duty in the U.S. Army.  In other words, the Department of Defense is still getting the benefit of his service (for a period of 5 years whereas his ROTC contract would have required only 3 years of active duty).  Therefore, 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. 
5.  The prospect of negating the applicant's $70,125.00 debt for a free education he received from the Army without becoming an officer, plus allowing him to receive an enlistment bonus he ordinarily would not have received, would be a windfall.  While the Board has no jurisdiction to stop any enlistment bonus in this case, his $1,000.00 bonus would be a legitimate factor to consider in granting or denying equitable relief regarding the ROTC debt.

6.  If the applicant fails to complete the period of enlisted service obligated as a result of his ROTC scholarship either voluntarily or because of misconduct, his ROTC debt should be recouped on a pro-rated 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 he would satisfy the service obligation under the original terms of the ROTC contract as a RA enlisted Soldier.

2.  That DFAS determine if he has been paid or is due to be paid the $1,000.00 enlistment bonus.  In the event that he has been paid that enlistment bonus or becomes due for payment of that enlistment bonus, that bonus payment should be recouped to offset an equal portion of his ROTC scholarship debt.

3.  If he 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)                                         AR20120010919



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ABCMR Record of Proceedings (cont)                                         AR20120010919



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