BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20130001694 


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, reinstatement in the Reserve Officers’ Training Corps (ROTC) Program or commissioning through the ROTC in the U.S. Army Reserve (USAR).  

2.  The applicant states:

	a.  He officially joined the Army on 25 October 2001 at the time they needed medics.  He completed training and was sent to his first unit.  He was deployed during Operation Enduring Freedom.  After four years of active duty he knew he had the ability to serve his country in a higher capacity.  He knew he would make a good officer.  He joined the Clarkson ROTC program to both help afford the cost of tuition and obtain a commission in the USAR.

   b.  He missed physical training (PT) on two occasions because there were several nights that he stayed up until 1:00 or 2:00 am studying for a test the following day.  This extra duty time paid off on both the Order of Merit List and grade point average (GPA).  As a result, he graduated from Clarkson University with approximately a 3.8 GPA and he was ranked above 80 percent of the cadets in the nation.  He was not the only one to be absent from PT.  He made up both the days he had missed.
   
   c.  After completing the Leadership Development and Assessment Course (LDAC) he began having fiancée difficulties.  They had dated for around 2 years prior to these problems.  She found someone else while he was at LDAC and the engagement and impending marriage were broken off.  This bothered him greatly so he attempted to change his mood by going for a motorcycle ride.
   
   d.  While traveling through the village of Potsdam, a police officer stopped him because his tail pipes on the motorcycle were too loud for that time of night.  The officer asked him if he had been drinking and he replied he had not.  The officer shined his very powerful mag light into his eyes and then administered a field sobriety test.  He failed, so he was arrested and taken to the police station where a breathalyzer test was administered.  He was accused of using marijuana because he failed the horizontal gaze test.  He provided a blood sample and many months later the results confirmed he was not using marijuana.

	e.  His fiancée and he did not end up staying together.  Her actions were unforgiveable and this caused him a great deal of stress.  Prior to his departure to LDAC, he had purchased an additional vehicle for her exclusive use.  Because she had found a gentleman to replace him prior to the conclusion of their relationship, he decided to repossess his property from her and this angered her very much.  As an act of vengeance she fabricated some story up about him assaulting her to the police.  He never assaulted her or for that matter was ever violent with her at any time.  The Potsdam court system had him appear every Wednesday morning for several months.

	f.  Eventually he graduated from Clarkson University and it was then that he was offered a plea.  He never had any intention of remaining in Potsdam after he graduated so this matter needed to be concluded.  When the judge read the definition of harassment he read, "Did I do anything to annoy Jxxxxxx?"  He found it impossible to defend against that question since he repossessed his vehicle without prior warning to her.

   g.  He was a student and by no means rich while attending Clarkson.  The village of Potsdam extracted approximately $1,000.00 from him in fines.  He had the unfortunate luck of graduating while the economy was in a bit of a slump.  It took him nearly a year and half to find a job.  He was applying to both engineering positions and regular laborer positions.  As soon as he was able to pay the fines he did.
   
   h.  He acknowledges that he may have had a few problems while in ROTC and he has taken responsibility of his actions.  He made up any missed PT sessions.  He paid the fines associated with the traffic violations while riding his motorcycle.  He even paid the fines associated with fraudulent claims by Jxxxxxx. He took full responsibility because he was in the wrong place at the wrong time and he must learn to anticipate and avoid these situations.  He believes that life was teaching him a lesson.  Leadership is everything for a unit and he knows he can bring exceptional leadership to any unit.  He knows he can learn and excel as an officer in the Army.  He asks to be given that opportunity.

3.  The applicant provides:

* 2009 Bachelor of Science degree transcript
* three letters of recommendation for continuance in the ROTC program
* Disenrollment of Scholarship/Nonscholarship Cadet from ROTC memorandum
* DA Form 2823 (Sworn Statement)
* 2008 and 2009 partial Cadet evaluation reports
* Disenrollment Board Memorandum for Record (MFR)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the following relief for the applicant:

* reinstatement as an ROTC Cadet in the U.S. Army 
* commission as a second lieutenant (2LT) in the USAR upon completion of all requirements of the ROTC program
* removal from his record of all documents reflecting the incidents leading to his removal as a Cadet and the action taken by the command
* back pay and allowances from the date of discharge until the date of his reinstatement
* or, waiver of payment of the ROTC debt in the approximate amount of $47,000.00

2.  Counsel states:

   a.  The applicant did not receive his right to due process in the course of his discharge.  The applicant's separation was in violation of Army regulations and in any event his punishment was overly harsh considering his stellar performance.

	b.  The applicant originally enlisted in the Army on 25 October 2001 in order to defend the nation in the aftermath of 9/11 terrorist attacks.  He became a combat medic, working to save lives in combat situations.  He was deployed to Iraq from March 2003 to March 2004 and served in the same brigade responsible for the capturing of Saddam Hussein.  During his time in Iraq, he conducted countless patrols as a front line medic for Company A, 3rd Platoon, 1st Battalion, 22nd Infantry.  He was also responsible for medical coverage and education to the Iraq Civil Defense Corps (ICDC).  By all accounts, he served admirably and diligently and was awarded an Army Commendation Medal as an enlisted Soldier.
	c.  After completion of his initial enlistment, he decided he would stay in the USAR and drill while using the college benefits.  He also decided to take the ROTC opportunity as it was the best way for him to serve the Army given his skills and his new college education.  He was accepted into Clarkson University and their ROTC program and majored in Mechanical Engineering.  He was an outstanding student, eventually graduating in 2009 with a 3.8 GPA in Mechanical Engineering, enough for Magna Cum Laude.

	d.  While he had no problems with academics, he did apparently have some issues adjusting to life as an ROTC cadet, despite his otherwise stellar enlisted career.  According to his commanding officer, he only strived to do the minimum. Lieutenant Colonel (LTC) Hxxxxxxx stated that he had been approached by the cadre with concerns over the applicant's attitude, but he did not initiate disenrollment proceedings because he wanted to see if the applicant would improve after attending the LDAC.  LTC Hxxxxxxx provided the applicant with no counseling or guidance or indication that he was considering disenrolling him.

	e.  The applicant missed PT on two occasions; however, LTC Hxxxxxxx stated he did not keep formal attendance.  The applicant argues that numerous cadets missed PT and this was acceptable as long as they made up any missed PT's by the end of the week.  The applicant argues that any PT he missed he promptly made up as required.

	f.  According to LTC Hxxxxxxxm, there was an issue with the applicant for having alcohol in an open container, which was against university rules.  The applicant was not, however, charged with any particular criminal violation to mount an adequate defense at any hearing.  He was never charged with having numerous criminal convictions as part of his pattern of misconduct.  Having numerous convictions would indeed be a very serious issue that may merit discharge, but the applicant did not have numerous convictions.  He had one – a misdemeanor for disorderly conduct.

	g.  This is an insignificant misdemeanor and one to which he pled guilty only to avoid a lengthy court trial to clear himself completely.  He pled guilty to this lesser charge in connection with an altercation with an ex-girlfriend.  It is important to note that he was never found guilty of any violence in connection with this event.  He utterly denied any assault on the woman.  Furthermore, this incident occurred in 2008, a full 3 years before the discharge proceedings.  If he was demonstrating a series of misconduct, he would have had further altercations.


	h.  LTC Hxxxxxx noted that the applicant was arrested for driving under the influence of drugs.  This is a very serious charge to make against a future officer.  Unless he was convicted of such a serious crime, the arrest and comment of LTC Hxxxxxxx should not be in any way, shape, or form, used against him.  He completely and utterly denied the use of any illegal drugs.  

	i.  The charge against him that he allegedly violated a court order to stay away from his ex-girlfriend is devoid of his being convicted of such a serious charge against him.  The record is unclear exactly how this charge was made against him, but apparently it had to do with him showing up at a court hearing in regard to the matter.  Such a charge is of course unsustainable.  

	j.  The record of a charge of criminal contempt in the second degree was merely a result of failing to pay one of the traffic fines on time, a period during which he was a student and not working.  He promptly cured this issue by paying the appropriate fine.  Regardless, this is hardly serious enough to warrant discharge from ROTC.

	k.  The second allegation of misconduct by being disrespectful to a police officer is not a crime or a violation of any regulation, the Uniform Code of Military Justice (UCMJ), or code of ethics.  Individual citizens have an absolute right to be disrespectful to police officers.  The First Amendment guarantees such freedom of speech.  Furthermore, the charge is vague and unsubstantiated.  

	l.  For the alcohol violation charge, the applicant admits to one incident where he was drinking on campus in violation of university policy.  However, this is only one incident and a relatively minor one, not sufficient enough to warrant discharge from the ROTC program.  

	m.  Finally, he was charged with disrespect toward a senior officer.  This is indeed a very serious charge and obviously in violation of the UCMJ.  But once again the allegation as made is vague and unsubstantiated.  He was never formally charged with such a serious UCMJ violation and the charge made against him was vague as to whom he supposedly disrespected and precisely how he was being disrespectful.  There was one incident of record where he was accused of being disrespectful to a more senior cadet who was in charge of a PT event.  However, the incident occurred in 2008 and he was counseled on that matter and no further allegations were made against him.

   n.  The record does indicate that certain members of the ROTC command had other issues with the applicant, but he was never formally charged with any other issues in relation to his pattern of misconduct.  It was improper for the board to consider issues for which he was not specifically charged.
	o.  If the Board should decide that the applicant should still be dismissed from the service then he should not be required to reimburse the Army for the cost of his education.  He had met all the requirements of commissioning and should be commissioned.  He had lost opportunities to pursue other sources of funding for his degree.  If he was incapable of being an Army officer, then the service should have identified such a deficiency early on in the process before he incurred such a large debt.  Such a hardship should not be imposed on the applicant without serious consideration to the long-term detrimental impact.

   p.  The applicant is not a perfect Soldier, but he is more definitely a man of integrity and honor.  He has the potential to be a valuable asset as an infantry officer in the USAR and deserves to be afforded that opportunity.  

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army, in pay grade E-1, on 25 October 2001.  He completed training and was awarded military occupational specialty 91W (Health Care Specialist).  He served in Iraq from 28 March 2003 through 18 March 2004.  He was honorably released from active duty in pay grade E-4 on 24 October 2004 and was transferred to a Reserve unit.  

2.  His military records contain a DA Form 2166-8, for the period 30 October 2006 through 2 June 2007, which shows he was assessed as needing improvement in Responsibility and Accountability.  His overall performance and potential was rated as marginal and fair.

3.  On 8 January 2008, he executed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), which shows in:

		(1)  Part I (Agreement of the Department of the Army) an agreement for a period of 2 academic years for full tuition and fees and flat rate of $1,200.00 for books and laboratory expenses; 

		(2)  Paragraph 5 (Terms of Disenrollment) 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; and 

		(3)  Paragraph 6 (Enlisted Active Duty Service Obligation) 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 received the following counseling:

* 7 October 2008 – for his negative attitude, continual failure of the Army Physical Fitness Test, and disenrollment from the program and recommendation for repayment of his scholarship benefits
* 13 January 2009 – for failing to show up at a regularly scheduled PT event on 19 January 2009, failing to contact any cadre member to seek permission to miss PT, and referral to the battalion commander for disenrollment
* 13 January 2009 – for failing to show up at a regularly scheduled PT event on 12 and 13 January 2009, failing to contact any cadre member to seek permission to miss PT, and referral to the battalion commander for disenrollment

5.  On 31 August 2009, the battalion commander placed the applicant on a leave of absence pending disenrollment.  The battalion commander stated the applicant was in breach of the terms of an Army ROTC contract to include indifferent attitude or lack of interest in the military training as evidenced by frequent absences from military science classes or drill, an established pattern of shirking.

6.  On 18 October 2011, his Professor of Military Science (PMS) notified him by memorandum of the initiation of disenrollment action from ROTC based on his failure to obtain a criminal conviction waiver following his arrest on 9 December 2009 as required by Army Regulation 145-1 (ROTC) and Cadet Command (CC) Pamphlet 145-4 (Army ROTC Scholarship Policy, Administrative, and Procedural Instructions), undesirable character as demonstrated by a pattern of misconduct, numerous arrests, disrespect to a superior officer, disrespect to a police officer, an on-campus alcohol violation, and breach of the Army ROTC student contract.  He was advised of his rights to appear before a board of officers or investigating officer and present matters regarding his disenrollment or indebtedness.  He was also advised he may consult with any reasonably available military officer or civilian counsel at no expense to the Government and submit a written statement in his own behalf.  The PMS further advised him that the final decision was with the Commander General (CG), U.S. Army Cadet Command (USACC).

7.  The applicant provides copies of the following:

   a.  DA Form 2823, dated 20 October 2011, wherein LTC Hxxxxxxx stated:

		(1)  He placed the applicant on a leave of absence pending disenrollment. He recommended the applicant pay back the scholarship benefits he had received.  The applicant had been a marginal cadet throughout his time in the program.  He was approached by Cadre members in the past because they were very uncomfortable with the applicant becoming a lieutenant due to his behavior of striving for the minimum and communicating that to other Cadets and Cadre as well as being very self-centered.  

		(2)  He did not initiate disenrollment procedures in the past because he had seen Cadets return from LDAC more mature, focused, and ready to lead.  The applicant did not return from LDAC with a change in attitude.  The applicant did not show up for the first ROTC event of the year (17 August 2009).  The applicant called him, but did not leave a message which was indicative of his behavior.  The applicant did just enough so as to not get into trouble.  On 31 August 2009, he missed PT once again without calling and asking to be excused.

		(3) The university reports summarized the applicant as having an alcoholic drink out in public which was against university policies, running away from university officials, refusing to provide his name, and then threatening university officials. That was the second incident he was aware of that the applicant had threatened someone.  

		(4)  When the applicant returned his paperwork asking for a disenrollment board, he pointed his finger at him and in a very insubordinate tone stated, "You don't have anything on me, the only thing you had, was on my arm, but had it removed.  He subsequently learned the applicant carved "die bitch die" into his arm.  On 9 September 2009, he was informed the applicant had an incident in the town of Potsdam.  He was charged with:  unnecessary noise, moving from lanes unsafely, operating an unregistered motor vehicle, and operating a motor vehicle while impaired by drugs.  On 9 December 2009, he was arrested in violation of a restraining order.

	b.  A partial cadet evaluation report, for the period 25 August 2008 through 25 April 2009, which shows he was assessed as a satisfactory performer by his rater and qualified by his senior rater.  

	c.  A partial cadet evaluation report, for the period 29 June 2009 through 27 July 2009, which shows he was assessed as meeting the standards by his rater.

8.  On 30 October 2011, he acknowledged receipt of the disenrollment memorandum and requested a hearing.  He also declined call to active duty within 60 days after completion of his current projected graduation withdrawal/dismissal from school, whichever comes first and he declined expeditious call to active duty.

9.  The applicant also provides a copy of an MFR, dated 17 January 2012, pertaining to the minutes from his disenrollment board which convened on 6 January 2012.

10.  On 17 January 2012, a board of officers recommended the applicant:

* not be retained as an ROTC scholarship cadet
* be disenrolled from the ROTC
* not be ordered to active duty in an enlisted status
* be ordered to repay his valid debt

11.  On 24 February 2012, the PMS recommended the applicant's immediate disenrollment.

12.  On 27 June 2012, the CG, USACC, approved the request for disenrollment and ordered the applicant disenrolled from the ROTC Program under the provisions of Army Regulation 145-1, paragraph 3-43a(14) and (16) based on his unexcused absences from PT and other ROTC activities, undesirable character as demonstrated by his disrespect toward superior officers, on–campus alcohol violation, and evading university officials and threatening bodily harm to a university residence assistant.  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 $47,390.00.  The memorandum further advised the applicant of his options.

13.  The applicant is void of a signed agreement indicating his promise to repay the total amount owed.

14.  In an advisory opinion, dated 29 March 2013, the Deputy Chief of Staff for Personnel, Deputy G1, Headquarters, USACC and Fort Knox, KY, stated:

	a.  The applicant's request for reinstatement into the ROTC program or his request to be commissioned through the ROTC program will not be reconsidered.  He voluntarily breached his contract and is responsible for repaying the full amount of scholarship money that was expended on his education.

	b.  While a student at Clarkson University and a Cadet in the ROTC program, the applicant's academic record was excellent, but the personal behavior he exhibited was definitely not becoming for an officer or a student and subsequently led to his disenrollment.  He was involved in a number of on and off campus incidents and at least one resulted in him being placed on disciplinary probation for the duration of his time at Clarkson University.  Although the applicant may not have been convicted for all of his indiscretions with civil authorities, his behavior presented a pattern of behavior that is not tolerable as an Officer or Soldier.

	c.  The applicant's enlisted service in the USAR is not an authorized remedy for debt repayment under the term of the ROTC contact.  He should be required to repay the scholarship benefits in the amount of $47,390.00 in accordance with his ROTC contact because he voluntarily breached the terms of his contract.

15.  The advisory opinion was forwarded to the applicant for acknowledgment and/or rebuttal.  In a rebuttal on behalf of the applicant, dated 19 April 2013, counsel stated:

	a.  According to the USACC, the applicant exhibited personal behavior that was not becoming of an officer or student and this led to his disenrollment.  However, none of these incidents are detailed and it is not clear to what incidents the command refers.  The letter then admits that the applicant was in fact not convicted of the offenses which he may have been (or may not have been) charged, nonetheless he should be disenrolled anyway.

	b.  They strongly disagree with the implication of the Cadet Command's letter.  If the applicant was not found guilty, he should be considered not to have done the offenses in question and the command should never have taken a position to the contrary.  The charges that were leveled against the applicant are vague and lacking in any kind of specificity.  Some reflect positively on the individual and other negatively.  Even for the allegedly negative ones, the severity of such a connotation is open to interpretation based on the specific facts.  But once again the command has not identified the specific facts that the applicant did that are sufficiently bad to warrant his disenrollment.

	c.  These minor issues are just not sufficient to warrant his disenrollment from ROTC.  The first minor traffic violation is arguably less severe than a speeding ticket.  The second issue, is slightly more serious, but still hardly sufficient to warrant ROTC disenrollment.  The campus disciplinary issue they note the letter placing him on probation states it would be rescinded upon giving certain apologies and not repeating the incident.  The applicant did make the apology in writing to the individuals required and as such the matter was closed.  These issues are hardly serious enough to warrant dismissal.

   d.  The applicant was never charged or convicted of driving under the influence or driving under the influence of drugs as alleged.  He was never charged or convicted of disrespecting a police officer.  Even if the Board should decide the applicant's other actions were sufficiently severe, the Board should still reverse the decision to disenroll on the simple grounds of basic due process.
   
   e.  Counsel reiterates his requests for the applicant and provides copies of the applicant's driver's record, a State of New York, Department of Motor Vehicle Policy Statement, and excerpt of the laws of New York – penal section.

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

	a.  Paragraph 3-39 states the CG, USACC is the approving authority for termination of scholarship and/or disenrollment.  A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3–43.  The 4-year scholarship students can be disenrolled at their own request during MS I only.

	b.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract.  Sub-paragraph 3-43a(14) states a cadet may be disenrolled by the PMS for undesirable character demonstrated by discreditable incidents with civil or university authorities.  Such acts may also be characterized as misconduct.  Sub-paragraph 3-43a(16) states 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.  

17.  Title 10, U.S. Code, section 2005(a), 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 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.

18.  Title 10, U.S. Code, section 2005(f), states 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was accepted into an Army ROTC scholarship program.  He fully understood and accepted the terms of his enrollment.  However, during his time, he was involved in a number of on and off campus incidents with one resulting in him being placed on disciplinary probation.

2.  The applicant's and counsel's contentions were carefully considered.  However, notwithstanding the fact he was not convicted of all of his indiscretions with civil authorities his behavior presented a pattern of behavior that was unbecoming an officer.  His PMS did not initiate disenrollment procedures early on, he wanted to see if the applicant would return from LDAC more mature, focused, and ready to lead.  In his opinion, the applicant did not return with a change in attitude.

3.  He acknowledged the proposed disenrollment action and requested a hearing before a board of officers.  This board recommended his disenrollment from the ROTC Program with repayment of his scholarship benefits.  It appears he declined an expeditious call to active duty that would have ordered him to active duty in lieu of paying his debt.




4.  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 and that constitutes a valid debt to the U.S. Government.  Neither the applicant nor counsel has provided sufficient evidence to show the applicant was erroneously disenrolled from the ROTC Program.  

5.  Cancelling the applicant’s debt and, in effect, providing him a free education without having to become an officer, would be a windfall.  Since the applicant’s disenrollment from the ROTC Program was due to his failure to maintain appropriate standards of behavior, it would not be appropriate to grant the requested relief in this case.

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)                                         AR20130001694





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ABCMR Record of Proceedings (cont)                                         AR20130001694



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