IN THE CASE OF:	  

		BOARD DATE:	    8 October 2013

		DOCKET NUMBER:  AR20130001891 


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 that his records be corrected to reflect that he does not owe any Reserve Officers’ Training Corps (ROTC) debt as a matter of law and equity because he was wrongfully discharged from the ROTC, that he is entitled to continue in the ROTC program at Northeastern University and graduate from the ROTC Program and that he be commissioned as a second lieutenant in the U.S. Army or as an alternative, that he be allowed to reimburse the U.S. Government by entering the Army and serving on active duty as an enlisted person.

2.  The applicant defers his comments to counsel. 

3.  The applicant allows counsel to provide supporting documents. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that his records be corrected to reflect that he does not owe any ROTC debt as a matter of law and equity because he was wrongfully disenrolled from the ROTC, that he is entitled to continue in the ROTC program at Northeastern University and graduate from the ROTC Program and that he be commissioned as a second lieutenant in the U.S. Army or as an alternative, that he be allowed to reimburse the U.S. Government by entering the Army and serving on active duty as an enlisted person.

2.  Counsel states, in effect, that the applicant was unjustly disenrolled from the ROTC for breach of contract but he never breached his contract and should not have been disenrolled.  He goes on to state that the applicant enrolled in Northeastern University in a 5-year academic program, rather than a 4-year program in the fall of 2005 and was expected to graduate in May 2010.  His ROTC contract specified that his education was to commence on 7 September 2005 and was to be completed on 30 May 2010, which was 5 academic years and consisted of a freshman, sophomore, middler, junior and senior years.  He continues by stating that the error here is that the applicant was disenrolled from the ROTC based upon an alleged violation of a contractual provision in the ROTC Agreement that does not take into account or even mention the “middler year.”  He was disenrolled for failing to maintain full-time student status during the Spring 2008 semester, which was during his middler year.  However, the applicant had enrolled in sufficient courses to advance to his junior academic year upon completion of his middler year and it was not taken into account by the ROTC in determining whether he had breached his ROTC Agreement.

3.  Counsel continues by stating that the applicant withdrew from Northeatern University on 12 January 2009 because he had been involuntarily disenrolled from ROTC in December 2008 and no longer had the financial ability to continue.  He also states that he was never notified by the University that he was not a full-time student nor was he put on academic probation by either the university or the ROTC.  He had earned more than sufficient credits to advance to his junior year and therefore did not violate his ROTC Agreement.  He further states that the applicant was not placed on academic suspension as is the normal policy but instead had disenrollment procedures initiated against him.  He also states that the applicant appeared before a disenrollment board of officers with his father present as an observer and tried to explain that he was in good standing with the university, that he had sufficient grades/credits to advance to his junior year and was belittled and reprimanded by the board for not making sufficient efforts to earn more credits during the Spring of 2008.  The board recommended that he repay the funds received and that he not be ordered to active duty.  He continues  by stating that the applicant has never been provided an explanation of why his disenrollment was upheld by the Army on appeal and why, despite his being ready, willing and able to enter active duty as an enlisted person, he has not been able to enter active duty as an enlisted person and to repay the government through service to the United States.  He also states that as a matter of equity the Board should allow him to serve on active duty as a means of satisfying his debt to the government as it did in previous cases (AR20040010336 and AR20050009078) and contends that to do so would serve the same purpose as if he had been ordered to active duty by the Secretary of the Army.

4.  Counsel provides a 13-page legal brief explaining the applicant’s application along with affidavits from the applicant and his father and supporting documents numbered 1 through 84. 
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enrolled in Northeastern University for a degree in political science for the period 7 September 2005 to 30 May 2010.  On 7 September 2005 he also signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) for 4 Academic years consisting of full tuition and fees, a monthly stipend and a flat rate of $900.00 for books and laboratory expenses.  As part of his contract he acknowledged that he understood that if he was disenrolled from ROTC, he understood that the Secretary of the Army or his or her designee retained the prerogative to either order him to active duty or order monetary repayment of his scholarship benefits.  He also acknowledged that if he was required to repay his advanced educational assistance under the terms of his contract, his subsequent enlistment in an Armed Service would not relieve him from his repayment obligation (paragraph 5e).

3.  On 29 August 2008, a memorandum was dispatched to the applicant from an assistant professor of military science (PMS) which indicates that numerous attempts were made to contact him regarding his academic issues which consisted of classes he did not complete, his failure to meet the suspense for completion of an essay by staff of the ROTC and his failure to complete two ROTC classes.  He was advised that failure to make contact with the ROTC staff would result in initiation of disenrollment action for breach of contract for failure to maintain full-time student status. 

4.  On 12 November 2008, the PMS dispatched a memorandum to the applicant notifying him that she was initiating action to disenroll him from the ROTC program based on his failure to maintain full-time student status.  He was advised that he could request a hearing and that he could submit a statement in his own behalf.  

5.  On 30 November 2008, the applicant elected to request a hearing so that he could personally appear and respond regarding his disenrollment and the validity of the debt.  He also elected to decline call to active duty within 60 days after completion of graduation or dismissal from school and he declined an expeditious call to active duty. 

6.  On 15 December 2008, the PMS at the Massachusetts Institute of Technology (MIT) notified the applicant that a board of officers had been appointed to hear evidence and determine his suitability for retention in the Army ROTC Program and that the hearing would be held at Northeastern University on 22 December 2008.  The applicant was advised of his rights and the matters to be investigated. 

7.  On 22 December 2008, the PMS at MIT dispatched a memorandum to the applicant which included the Report of Proceedings (DA Form 1574) with enclosures and exhibits.  It also advised the applicant that he had 15 days in which to rebut the findings and recommendations in writing.

8.  The Report of Proceedings indicates that the board of officers found that the applicant did not maintain good standing for his required 12 credits to be in compliance with the terms of his contract and the applicant stated that he made choices not to attend the classes due to personal matters regarding a friend of his.  The board recommended that he be disenrolled from ROTC, that he be required to repay his educational expenses and that he not be ordered to active duty.

9.  On 25 January 2009, the applicant submitted a rebuttal of findings of the disenrollment board in which he disputed the comments made by the investigating officer (PMS of MIT).  He also stated that he understood the implications of his failure to fulfill his contractual obligations and accepted responsibility for his inability to correct the situation at the end of the Spring Semester of 2008.  He also stated that he made several mistakes during the Spring Semester of 2008 and he never denied it.  In short, he dug himself a hole that he could not get out of.

10.  On 27 April 2009, the U.S. Army Cadet Command dispatched a memorandum to the applicant notifying him that he had been disenrolled from the ROTC program due to his failure to maintain full-time student status in Spring 2008 at Northeastern University.  The memorandum also advised him of his right to appeal the disenrollment action within 14 days of receipt of the memorandum.

11.  On 26 May 2009, the applicant’s counsel submitted the applicant’s appeal of his disenrollment and asserted that the applicant had more than sufficient credits to advance to his next year and graduate on time.  He went on to state that the disenrollment action was unjust and that the disenrollment proceedings were invalid because there was not an official from the university present for the hearing.

12.  On 13 March 2012, the Assistant Secretary of the Army (Manpower and Reserve Affairs) found that the applicant’s disenrollment was warranted and that his request for a waiver of repayment of educational expenses was not warranted.  He found the debt to be valid and that the applicant be ordered to repay educational expenses in the amount of $89,451.00 with interest if applicable.

13.  The documents submitted by the applicant with his application reflects that the applicant has requested assistance from his congressional representative on several occasions regarding the failure of the Assistant Secretary of the Army (Manpower and Reserve Affairs) to address his being allowed to enlist in the Army as a means to satisfy his debt.

14.  Title 10, U.S. Code (10 USC), section 2005(a)(3), states, in pertinent part, 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 with the Secretary concerned under the terms of which such person shall agree that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed by the Secretary to protect the interest of the United States, such person will reimburse the United States in an amount that bears the same ratio to the total costs of advanced education provided such person as the un-served portion of active duty bears to the total period of active duty such person agreed to serve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was wrongfully disenrolled from the ROTC program, that he is entitled to continue in the ROTC program at Northeastern University and graduate from the ROTC Program and that he should be commissioned as a second lieutenant in the U.S. Army or as an alternative, that he be allowed to reimburse the U.S. Government by entering the Army and serving on active duty as an enlisted person along with his supporting documents have been carefully considered and appear to lack merit.  

2.  On 29 August 2008, a memorandum was dispatched to the applicant from an assistant PMS which indicates that numerous attempts were made to contact him regarding his academic issues which consisted of classes he did not complete, his failure to meet the suspense for completion of an essay by staff of the ROTC and his failure to complete two ROTC classes.  He was advised that failure to make contact with the ROTC staff would result in initiation of disenrollment action for breach of contract for failure to maintain full-time student status. 

3.  The available evidence shows that the applicant was subsequently advised by ROTC personnel that he was in danger of disenrollment action for breach of contract for failure to maintain full-time student status and that it was imperative that he meet with ROTC personnel to resolve his issues and complete the work for which he had failed to complete to date.

4.  He was subsequently notified that disenrollment action was being initiated and he was afforded the opportunity to appear before a board of officers to determine his suitability for retention in the Army ROTC Program and had the opportunity to make his assertions at that time.  He was also afforded the opportunity to appeal the decision of the board and it is noted that the applicant admitted in his appeal  that he understood the implications of his failure to fulfill his contractual obligations and accepted responsibility for his inability to correct the situation at the end of the Spring Semester of 2008.  He also stated that he made several mistakes during the Spring Semester of 2008 and he never denied it.  In short he dug himself a hole that he could not get out of.  That in itself is sufficient to establish that he was aware that he was not meeting the conditions of his contract.

5.  It is also noted that he elected to decline a call to active duty within 60 days after completion of graduation or dismissal from school and he declined an expeditious call to active duty.

6.  While the Board does not have the transcript of the board of officers for review, it is apparent that the applicant did not impress the board members sufficiently for them to recommend the applicant be allowed to serve on active duty as a means of repaying his educational expenses and therefore it was recommended that he repay the debt to the government.

7.  It is further noted that the applicant appealed the decision of the board of officers and while the delay in processing his appeal is not readily visible, it appears that after considering the available evidence in his case the Assistant Secretary of the Army (Manpower and Reserve Affairs) denied his appeal on    13 March 2012.

8.  In regard to the applicant’s contention that he should be allowed to enlist in the Army in order to satisfy his debt, the Board decides each case based on its individual merits and circumstances.  While the decision to order an individual to active duty as a means to repay educational expenses has always rested with the Secretary of the Army or his or her designee, the applicant elected to decline an order to active duty and elected to repay his debt even before he made his appeals.  

9.  Therefore, it would not be appropriate for the Board to grant the applicant the authority to enlist with the provisions that his ROTC debt would be satisfied by his service.

10.  Accordingly, it appears that the applicant was properly disenrolled from the ROTC Program with no violations of any of his rights, that his debt is valid, and that there is no basis to grant him authorization to enlist as a basis to repay his debt.  

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)                                         AR20130001891





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ABCMR Record of Proceedings (cont)                                         AR20130001891



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