BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20120022388 


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 relief from the education debt he incurred when he was disenrolled from the Reserve Officers' Training Corps (ROTC).

2.  He states he has a debt he would not have otherwise incurred because of a 4-year delay in the decision to disenroll him from ROTC.  The Army ROTC program at Louisiana State University (LSU) waited until August 2011, 1 year after his graduation, to inform him that he should have been disenrolled 4 years earlier.  At the time of his arrest for driving under the influence (DUI), he expected to lose his scholarship, but the Department of the Army continued to provide his scholarship funds for the remainder of his time at LSU.  Had he been correctly informed at the hearing held a week after the DUI arrest, he would have left the program and avoided further obligation.  He states information in appeal and rebuttal letters has never been addressed.

3.  He provides:

* memorandum, subject:  Request for Waiver for [Applicant}, dated 15 June 2011
* DA Form 4856 (Developmental Counseling Form)
* memorandum, subject:  Request for Waiver [Applicant], dated 15 August 2011
* memorandum, subject:  Civil Conviction Waiver for Improper Lane Usage and Driving While Intoxicated for [Applicant] of Louisiana State University (LSU), dated 15 August 2011
* memorandum, subject:  Notification of Intent to Disenroll from ROTC - [Applicant], dated 15 August 2011
* Acknowledgement of Cadet, dated 12 September 2011
* memorandum, subject:  Appointment of a Formal Board of Officers/Investigating Officer (IO) to Determine Suitability for Retention in the Army ROTC Program and Amount and Validity of Scholarship Debt, dated 13 September 2011
* memorandum, subject:  Notification of Respondent Board of Officers/Investigating Officer, dated 13 September 2011
* self-authored statement, dated 7 October 2011
* memorandum, subject:  [Applicant] Disenrollment Board Recommendation and Rebuttal Notice, dated 18 October 2011
* memorandum, subject:  Disenrollment of [Applicant], dated 18 October 2011 
* self-authored memorandum, subject:  Rebuttal to Board Findings, dated 2 November 2011
* letter and account statement from the Defense Finance and Accounting Service (DFAS), dated 5 September 2012
* DFAS Account Statement, dated 10 January 2013

CONSIDERATION OF EVIDENCE:

1.  On 18 December 2006, the applicant enlisted in the U.S. Army Reserve (USAR) as a cadet.  On the same date, he signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) accepting a 4-year ROTC scholarship to attend LSU.

2.  By signing the DA Form 597-3, he agreed that:

	a.  he would incur an active duty and/or reimbursement obligation after the first day of his Military Science (MS) II year (sophomore year); 

	b.  once he became obligated, if he were to be disenrolled from the ROTC Program for breach of contractual terms or any other disenrollment criteria established then or in the future by Army regulations (including, but not limited to, Army Regulation 145-1 (Senior ROTC Program:  Organization, Administration, and Training)), he would be subject to terms that included:

		(1)  being ordered to active duty as an enlisted Soldier, if qualified, for a period of not more than 4 years if he failed to complete the ROTC Program and

		(2)  if offered the opportunity to repay his advanced educational assistance in lieu of being ordered to active duty, being required to reimburse the United States Government through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the United States for his education from the date of the contract through the date of his disenrollment.

3.  On 13 June 2007, he was cited for driving while intoxicated (DWI) and improper lane usage.  

4.  A DD Form 368 (Request for Conditional Release) shows, on 10 October 2009, the applicant requested conditional release to enlist or be appointed in the Louisiana Army National Guard (LAARNG).  Section II (Approval/Disapproval) shows the request was approved and that the release was valid until 15 May 2010.  Item 6 (Authorizing Official) shows the name of the applicant's ROTC battalion commander and a signature dated 20 November 2009.  The signature does not match the signature the battalion commander provided on any other documents in the applicant's record.

5.  On 4 May 2010, he enlisted in the LAARNG for a period of 8 years.  On 7 May 2010, he signed an agreement to the terms of participation in the ARNG Simultaneous Membership Program (SMP).  The agreement stipulated, in part, that if he was a member of the USAR Control Group (ROTC), he would be discharged from the USAR Control Group (ROTC) and transferred for enlistment/reenlistment in the ARNG.  His record is void of documentation showing he was discharged from the USAR Control Group (ROTC) at that time.

6.  On 15 June 2011, he provided a statement describing the offenses of improper lane usage and DWI that occurred on 13 June 2007 and describing his sentence.  He indicated that, under a provision of Louisiana law, because it was his first offense, upon completing his sentence and paying a fine, the offense was to be acquitted and dropped from his record.  He stated this happened in March 2010 after some delay due to being unable to appear for a court date because he was completing Warrior Forge 2009.  The statement was witnessed by his ROTC professor of military science (PMS) (also named as the ROTC battalion commander on the DD Form 368 described above).  

7.  In a memorandum, subject:  Request for Waiver for [Applicant], dated 15 June 2011, the PMS neutrally endorsed granting the applicant's request for a waiver [for his civil conviction].  

	a.  The PMS stated:

* the applicant had performed in an average fashion in the ROTC Program
* while waiting for word on his waiver status, the applicant had been elusive
* the applicant had shown little motivation with respect to taking required Army Physical Fitness Tests and maintaining contact with the PMS with regard to appointments
* the applicant had been accessed into the LAARNG

	b.  The PMS further stated he had conducted an informal investigation into why a waiver had not been processed sooner.  The PMS stated the applicant's court date was 8 July 2008.  He could find no evidence that a waiver had been submitted by cadre members no longer associated with LSU.  He stated the applicant was executing all of his duties as a cadet and operating under the assumption that a waiver had been approved.  When processing the applicant's commissioning packet, it was discovered this was not the case.  

8.  In a memorandum, subject:  Request for Waiver [Applicant], dated 15 August 2011, the PMS stated:

* he "strongly [endorsed] granting a waiver" for the applicant
* the applicant had "completed all requirements for commissioning in a highly satisfactory manner"  
* there was "no substantial reason to deny his commission"  
* "administrative errors [were] a command issue and the cadet [had] performed his duty"  
* "without contrary notification from the cadre, [the applicant] completed his contractual obligations to the ROTC program and was awarded a Bachelor of Arts in 2010"
* the applicant "operated under the assumption that a waiver had been approved; the contrary was discovered as his commissioning packet was prepared"

9.  On 15 August 2011, the Commander, Headquarters, Sixth Brigade, U.S. Army Cadet Command (USACC), Savannah, GA, disapproved a civil conviction waiver and directed the PMS, LSU, to begin the disenrollment process on the applicant. 

10.  On 15 August 2011, the PMS notified the applicant that he was initiating his disenrollment from the ROTC Program under the provisions of Army Regulation 145-1, paragraph 3-43a(16), based on the disapproval of his civil conviction waiver for DWI.  He advised the applicant he was placing him on a leave of absence beginning 15 August 2011 pending disenrollment.  He advised the applicant of his right to:

* request a hearing
* consult with any reasonably available military officer or civilian counsel
* submit written statements in his own behalf
* waive his rights

The PMS advised him that, as a scholarship cadet, he could be called to active duty in an enlisted status or be required to repay scholarship benefits in the amount of $24,132.20.

11.  On 12 September 2011, the applicant acknowledged receipt of the notification.  He requested a hearing so that he could personally appear and respond regarding his disenrollment and/or respond to the amount or validity of the debt.  He declined a call to active duty within 60 days after completion of his current projected graduation date or upon withdrawal/dismissal from school, whichever occurred first.  He declined an expeditious call to active duty.

12.  On 13 September 2011, the PMS appointed a formal board to hear evidence and determine:

* if the applicant should be disenrolled for breach of contract based on his civil conviction
* if he should be required to repay a debt of $24,132.20, and if so, whether he should be ordered to active duty or be required to repay funds expended on his behalf

13. On 13 September 2011, the applicant was notified that a board of officers had been appointed, and he was advised of the specific matters to be investigated.  

14.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows the board commenced on 29 September 2011 and that the applicant was present.  

15.  A narrative summary attached to the DA Form 1574 shows the board attempted to determine the reason for the delay in processing a waiver for the applicant's conviction.  

	a.  Members of two former chains of command that had been in place during the period of the delay recalled being aware of the incident.  

		(1)  A former PMS stated he believed paperwork had been filed.  There were no records to substantiate that statement.  The former PMS also stated the applicant "was involved in several drinking issues throughout his time as a cadet and that his actions were not in keeping with that of a commissioned officer and that he should not be commissioned."  The board again noted there were no records to substantiate the statement.

		(2)  Captain (CPT) H______ stated he did not recall what documents had been completed or submitted to the brigade, but believed a serious incident report had been submitted.  This officer also stated that the applicant "had several other incidents with alcohol and hazing while a member of the LSU program and that his actions were not that of a soon to be commissioned officer."  The board noted there were no documents to support or deny any of these allegations.

	b.  The current PMS had submitted waiver requests 10 and 12 months after the applicant had graduated.  Items to be submitted with waiver requests included court documents.  The applicant's court documents were not completed until 8 March 2010.  The board stated this was a potential reason for the lack of a waiver request, but the board did not find a reason for the further delay from March 2010 to June 2011.  

	c.  The board noted the applicant had stated his intent to serve as an Army officer if a waiver had been granted.  The board also noted the applicant had enlisted in the LAARNG, which entailed completing a waiver for conditional release from this ROTC contract and completion of an SMP contract.  The applicant stated he was directed by a recruiter to complete these documents.  However:

* SMP contracts were not valid for scholarship cadets 
* the DD Form 368 showed the forged signature of the current PMS as confirmed by the PMS
* there was no need for a new enlistment contract

The board noted there was no explanation as to why these documents were being processed when the applicant was 2 months away from receiving an ARNG commission. 

	d.  The board concluded that although the applicant had met all ROTC obligations and the waiver request took much longer than should be expected, he was a marginal cadet and the waiver denial should be upheld.  The board determined the applicant should not serve an active duty commitment, but should repay the educational assistance he received in his first 3 years in the ROTC Program.  The board stated he should not be made to repay the educational assistance he received in his final year because of the organization's failure to process his case.

16.  On 7 October 2011, the applicant provided the following statement in a letter addressed to the Commander, Headquarters, Sixth Brigade, USACC:

	On the night of 13 June 2007, during the summer after my freshman year of college, I selfishly and foolishly got behind the wheel of my truck while intoxicated.  Fortunately, I was stopped and arrested before I had the chance to kill myself or someone else.  I pleaded guilty to the crime, and endured all the consequences, including fines, community service, classes, and legal fees.

	On 31 August 2011, more than four years after my arrest, I was notified that, based on my DUI conviction, I was being disenrolled from the ROTC program, and that I had to pay the Army $24,000 [sic] for the cost of my education.  I ask that you reconsider this decision and allow me to commission.  I cannot minimize the seriousness and dangers of driving while intoxicated, but I just ask you to consider that I was 19 at the time of my arrest, and that I am no longer the type of person who engages in that sort of behavior.  

	That said, I understand that I have not been singled out for punishment, and that the Army has essentially taken the position that DUI offenders are unfit to be commissioned.  While I disagree with that premise, I can understand and respect it.

	But I respectfully have a very hard time understanding why it took over four years to determine that I should be disenrolled.  Had I known on June 14, 2007 that my Army career was finished, I could have left the program with no financial penalties.  Instead, I stayed with the program and did everything that was asked of me, only to learn that it had all been for naught.

	I understand that I made a serious mistake.  It has caused numerous hardships and will continue to follow me throughout my civilian life.  But waiting over four years to take action on something like this is not right, and I respectfully ask that, if you are not willing to retain me in ROTC, that you be willing to forgo the scholarship repayment.

17.  The DA Form 1574 shows the board completed its findings and recommendations on 18 October 2011 and the PMS approved the recommendations.  

	a.  The board found the applicant:

* entered into a valid Army Senior ROTC Cadet Contract
* received advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $24,132.20 that constituted a valid debt to the U.S. Government
* did not voluntarily fail to complete the requirements of the ROTC Cadet Contract 
* due to misconduct, did fail to complete the requirement of the ROTC Cadet Contract in that because of misconduct and denial of a waiver he no longer remained eligible for commissioning 
* had committed misconduct under Title 10, U.S. Code, Section 2005(a)(3) (10 USC 2005(a)(3)) that warranted recoupment of financial assistance expended by the U.S. Government

	b.  The board recommended he should:

* not be retained in ROTC as a scholarship or nonscholarship cadet
* be disenrolled from ROTC in accordance with Army Regulation 145-1, paragraph 3-43a(16)
* not be released from ROTC contractual obligation
* not be ordered to active duty
* be ordered to repay his debt to the U.S. Government comprised of advanced educational assistance in the form of scholarship benefits for the period of his first 3 years in the program totaling $17,690.80

18.  On 18 October 2011, the PMS recommended the applicant be disenrolled from the Army ROTC Program and that he be ordered to repay his valid debt for the period of his first 3 years in the program totaling $17,690.80.

19.  On 24 October 2011, the applicant acknowledged receipt of the board recommendations.  

20.  On 2 November 2011, the applicant submitted the following rebuttal to the board findings.  

	I respectfully disagree with the recommendations of the Disenrollment Board conducted on 29 September 2011.  The board's recommendations, while thorough and detailed, do not include a reasonable explanation as to why it took more than four years to conclude that my DUI arrest rendered me unfit for commissioning.  More importantly, even if that delay was justified, the recommendations offer no reason why such a delay does not cause an injustice to the cadet who spends four years of his life working towards a goal that, unbeknownst to him, had become unattainable years before.

	I also note that each officer contacted by the Board of Officers explicitly recalled being told of my DUI arrest.  This shows I promptly notified the cadre of the incident, which should have allowed them, or anyone else who knew, to tell me that my Army career had effectively ended on the night of my arrest.  

	CPT H______'s recollection that I was involved in a hazing incident while serving as a cadet is mistaken.  There was indeed a "pepper spray" incident (which must be what he was referring to) that occurred during my time at LSU.  But I was not present when it occurred, and only learned of it days later.  A review of whatever records were generated by this event - if any were in fact generated - will bear this out.

	I am disappointed that I cannot rebut the other allegations in the narrative summary that are described only as "incidents," as I don't know what they are referring to.  My position on these "incidents" is the same as it is for the DUI - if these were going to be used against me to prevent my commissioning, then I should have been told about it years ago, and had the opportunity to leave the program without accruing further debt.

	I respectfully ask that I not be made to repay anything beyond the costs of the tuition for my first year.

21.  On 14 January 2012, the Commander, Sixth Brigade, USACC, recommended approval of the recommendation to disenroll the applicant and further recommended that he be required to repay his full scholarship and be released to his [LAARNG] unit.

22.  On 24 May 2012, the Commanding General (CG), USACC, disenrolled the applicant and discharged him from the ROTC Program under the provisions of Army Regulation 145-1, paragraph 3-43a(16).  The disenrollment was due to his breach of his ROTC contract based on the disapproval of his civil conviction waiver.  The CG directed that, because the applicant was a member of the ARNG under the SMP, he would be released to his LAARNG unit.  The CG also directed he would be obligated to satisfy his obligation to the Army by repaying the total amount of monies spent in support of his education:  $24,132.20.

23.  On 7 May 2013, Joint Force Headquarters-Louisiana, issued Orders 127-042 discharging the applicant from the ARNG and assigning him to the USAR Control Group (Individual Ready Reserve) effective 3 May 2013.  

24.  He provides a DFAS account statement, dated 5 September 2012, showing a debt was established in the amount of $24,132.20.  He provides a second account statement, dated 10 January 2013, showing that, with accrued interest, his debt balance was $24,217.71.

25.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program.  Paragraph 3-43a(16) states scholarship cadets will be disenrolled for 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.

26.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States and the USAR.  It states persons who have a record of convictions by any type of military or civil court are not eligible for appointment unless a waiver is authorized.  

27.  Army Regulation 601-100 (Appointment of Commissioned and Warrant Officers in the Regular Army) prescribes policy, eligibility requirements, and administrative procedures for the appointment of commissioned and warrant officers in the Regular Army.  It states applicants for appointment in the Regular Army must not have any civil convictions, adverse juvenile adjudication, pretrial diversion for a felony, or any type of court-martial conviction.  A waiver may be granted for an offense under military or civil codes if the offense was not a felony and the offense did not involve moral turpitude.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for relief from the education debt he incurred when he was disenrolled from ROTC.

2.  The applicant appears to believe it was solely the responsibility of his chain of command to ensure a request for a civil conviction waiver was processed in a timely manner.  While it appears he informed his chain of command of the incident for which he was convicted in a timely manner, there is no documentary evidence showing he submitted a waiver request until well after his conviction.  The governing regulations clearly state that a waiver is required for appointment of individuals with a civil conviction.  

3.  While his chain of command should have processed a waiver in a timely manner, he also had a responsibility to ensure that he was in good standing to be commissioned.  It is reasonable to expect that a prospective officer would have taken action to ensure he understood how his civil conviction might affect his status in the ROTC Program and to ensure that a waiver was in place allowing him to meet his contractual obligations.  It appears that, once he informed his chain of command of the incident for which he was convicted, he did nothing, opting to assume (incorrectly) that he was in good standing when he should have pursued a documented decision on his status.  

4.  In the end, the applicant received a degree that was paid for by the Army.  He was unable to provide the commissioned service he had promised in return for his educational assistance, and he was unwilling to provide the alternative enlisted service specified in his contract.  Notwithstanding the delay in processing his waiver, the record shows he was properly disenrolled and his rights were protected throughout the disenrollment process.  As a result of his disenrollment, he incurred a just debt that he is now obligated to repay.  

5.  He states information in appeal and rebuttal letters he provided has never been addressed.  In the absence of evidence showing otherwise, it must be presumed that the authority who approved the recommendation to disenroll him considered the applicant's appeal and rebuttal letters and determined any matters raised therein were insufficient reasons to change the recommendation that he should be disenrolled.  

6.  In view of the foregoing, there is an insufficient basis upon which to grant 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)                                         AR20120022388





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ABCMR Record of Proceedings (cont)                                         AR20120022388



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