IN THE CASE OF:	  

		BOARD DATE:	 1 August 2013 

		DOCKET NUMBER:  AR20120021877 


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, in effect, that his Reserve Officers’ Training Corps (ROTC) debt be satisfied by his subsequent active duty service.

2.  The applicant states, in effect, based on an email he received from an official at the Defense Finance and Accounting Service (DFAS) his ROTC debt should be waived because he completed two years of active service after his disenrollment from the ROTC program, which was, according to an official at DFAS, all that was required to fulfill his contractual obligation.

3.  The applicant provides:

* DA Form 5315-E (U.S. Army Advanced Education Finance Assistance Record), dated 19 November 2003
* Last page of a memorandum entitled "Disenrollment of Scholarship Cadet from ROTC…"
* Orders 131-01, dated 8 May 2005
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) and DD Form 1966 (Record of Processing - Armed Forces of the United States), dated 8 October 2009
* DA Forms 3286 (Statement of Understanding) (Annex A and B), dated 
8 October 2009
* Orders 189-0013, dated 8 July 2011
* Orders 200-0007, dated 19 July 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DFAS Account Statement, dated 3 March 2011
* Various emails

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 8 June 2001 and later he entered into the ROTC program as scholarship cadet on an unknown date.  His DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) is not available for review in this case.

2.  He would have completed a DA Form 597-3 prior to being accepted into the ROTC program as a scholarship cadet.  The form he signed and agreed to would have stated that:

	a.  he understood and agreed that if he breached the terms of the contract, the Secretary of the Army could order him to active duty as an enlisted Soldier for a period of active service commiserate with the number of years of schooling he completed. 

	b.  he understood that if he was disenrolled from ROTC for breach of contract he could, at the discretion of the Army, be directed, in lieu of being ordered to active duty as a private for a specified period, 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 United States for his advanced education from commencement of the contractual agreement to the date of his disenrollment.

3.  His disenrollment packet is not available for review in this case; however, he provided the last page of a memorandum issued by his professor of military science (PMS) on an unknown dated which states:

	a.  he would retain the status of a cadet until his disenrollment and discharge action was complete and, therefore, was not eligible to enlist in any other military service or component.

	b.  as a scholarship cadet, he could be called to active duty or required to repay scholarship benefits in the amount of $44,487.00 in lieu of a call to active duty in fulfillment of his contractual obligation.  If eligible he could choose an expeditious call to active duty in order to satisfy his breach of contract.

4.  The evidence of record does not indicate whether the applicant chose to repay his ROTC scholarship debt, an expeditious call to active duty, or declined to make a choice.  Additionally, there is no evidence to show how many years of education he successfully completed prior to his disenrollment from the ROTC program and how many years he would have been required to complete to fulfill his contractual obligation if he was ordered to active duty.

5.  He provided Orders 131-01, issued by 6th Brigade, Eastern Region, U.S. Army Cadet Command, Spartan Battalion, University of Tampa, Tampa, FL, on 
8 May 2005, which discharged him from the USAR Control Group ROTC the same day.

6.  On 8 October 2009, he enlisted in the Regular Army in the rank/grade of specialist/E-4 for a period of 4 years.

7.  His record contains a DA Form 199 (Physical Evaluation Board (PEB)), dated 11 May 2011, which shows a PEB found him physically unfit and recommended he be separated from active duty with severance pay.

8.  On 7 August 2011, he was honorably discharged from active duty by reason of a non-combat related disability with severance pay.  His DD Form 214 shows he completed 1 year and 10 months of net active service.

9.  He provided a DA Form 5315-E, dated 19 November 2003.  This form shows he was a Senior ROTC student with a 4-year scholarship, and as of 
19 November 2003 the total Army ROTC scholarship benefits he had received was $34,701.00.

10.  He provided Orders 189-0013, issued by Headquarters, 3rd Infantry Division, Fort Stewart, GA, on 8 July 2011.  He underlined the following sentence under additional instructions:  "Your service time is 1 years, 10 months, and 0 days of service as computed 10 USC Section 1208."

11.  He provided Orders 200-0007, issued by Headquarters, 3rd Infantry Division, Fort Stewart, GA, on 19 July 2011.  He underlined the following sentence under additional instructions:  "Your service time is 2 years, 2 months, and 5 days of service as computed 10 USC Section 1208."

12.  He provided a DFAS Account Statement, dated 3 March 2011, which shows his account balance as $50,177.82.

13.  He provided an email, dated 13 April 2011, wherein a DFAS official stated his account was in suspension until June 2011.  The official further stated that after he completed two years of active duty service he could apply to the ABCMR and request to have his debt removed.

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

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

	b.  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.

15.  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 applicant argues his ROTC debt should be waived because he completed two years of active service after his disenrollment from the ROTC program, which was, according to an official at DFAS, all that was required to fulfill his contractual obligation.

2.  It appears that upon his disenrollment from ROTC in May 2005, he chose either not to make an election or to repay his ROTC scholarship debt in lieu of the Army exercising its right to order him to active duty.  

3.  His ROTC debt was suspended when he enlisted in the Regular Army in October 2009.  However, he underwent a PEB and was discharged from active duty with a disability prior to completing two years of active service.  

4.  The orders he provided showing he completed 2 years, 2 months, and 5 days of military service were incorrectly calculated.  Based on his date of entry on 
active duty and his date of discharge he completed a total of 1 year and 10 months of net active service.  Additionally, his DD Form 214 correctly shows his net active service as 1 year and 10 months.
5.  Notwithstanding the fact that he was discharged for a disability as a result of a PEB, the orders he provided, and the email from the DFAS official, it would not be equitable to allow the applicant's active duty service to satisfy the conditions of his ROTC contract.  Entry on active duty 4 years and 5 months after he would have been called to active duty in lieu of repayment of his ROTC debt is not a reasonable expectation of alternate service.  It is too remote in time to tip the equitable scale in his favor.

6.  In view of the foregoing, there is no basis for granting the 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)                                         AR20120021877





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ABCMR Record of Proceedings (cont)                                         AR20120021877



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