IN THE CASE OF:	  

		BOARD DATE:  24 October 2013

		DOCKET NUMBER:  AR20130001909 


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 remission/cancellation of the entire amount of the established Reserve Officers' Training Corps (ROTC) debt to include fees, interest, and penalties.

2.  The applicant states:

	a.  While he will not dispute the fact that he did not complete the two-year ROTC/Simultaneous Membership Program (SMP) and he was not commissioned as an officer, he did complete the first year of the ROTC Program.  This was the one year for which he was compensated.  In completing this portion of the program, he was an integral member of the Arizona State University (ASU) Battalion, not only bringing civilian and professional leadership as a master's student (all other cadets were pursuing their bachelor degrees), but also as a prior service member of the Army National Guard (ARNG).

	b.  He was also consistently one of the top physical fitness performers while being older than most of the cadets and added insight on ways to improve fitness and nutrition.  He also provided guidance, leadership, motivation, and friendship to dozens of cadets – both from a Soldiering perspective and also from a student and nonmilitary interpersonal perspective.  

	c.  He has the utmost respect for the ROTC Program and he learned a great deal that he is still able to use in his current ARNG unit and in his civilian life.  Most importantly, he is still fulfilling his commitment as an enlisted Soldier in the ARNG, so while he is not an officer, he is still serving his country in the original capacity in which he joined the military.

	d.  He left the ROTC Program after one year due to a combination of financial duties and workplace pressure.  Due to the rigors of ROTC and his master's program, he was only able to pursue a part-time job on campus making $7.50 per hour.  He worked roughly 20 hours per week in the ASU Athletic Department as a ticket sales representative and while the job did not pay well, he did perform the job well enough to warrant a promotion to a full-time position.  His dilemma was that while he did not want to leave the ROTC Program because he had signed a contract and he was an important part of the battalion, he was under quite a bit of financial stress.  The promotion offer included a modest salary and commission structure, but much more than the hourly $7.50, plus the stipend from ROTC he was earning.

   e.  Due to time and scheduling issues, he would not have been able to take this promotion and still fulfill his requirement to the ASU ROTC.  This was not an easy decision for him, but it made sense for his future, and he felt comfortable with it considering he is still serving his country in the ARNG.
   
   f.  Beyond what he contributed and earned from the ROTC Program during 2010-2011, he made a very large personal sacrifice in the form of a combination of time and money.  First, he forfeited $10,000.00 of his enlistment bonus, yet he was still fulfilling his original enlistment contract.  Second, he forfeited $4,500.00 in Federal Tuition Assistance and the remaining $14,000.00 of Student Loan Repayment (SLRP) money he was offered in his enlistment contract.  This is a large sum of money that he would have used toward the first year of his master's degree at ASU in lieu of the scholarship, which he is being forced to repay.
   
   g.  The time commitment to the ROTC did not allow him to work a full-time job while attending classes at night.  As a master's student and bachelor's degree holder, he had much more earning power than the $7.50 an hour and the ROTC stipend he was earning.
   
   h.  He is now under a financial hardship as he does not have the aforementioned student/post graduate benefits, plus he is being charged a massive debt by the Defense Finance and Accounting Service (DFAS).  There is no possible way for him to pay back $31,498.00 on top of his student loans from the second year of his program on top of normal living expenses, even though he has a full-time job and drill pay.  In the case of Federal student loans, he is able to pay based on his income.  Not even that was offered by DFAS.
   
   i.  There is confusion and a lack of communication on the part of DFAS and/or the Department of the Treasury.  The original debt established by the ASU ROTC was $31,498.00, but the letter, dated 10 January 2013, from DFAS includes fees, interest, and penalties, which equal $40,432.38.  He is appealing the entire amount.  He does not see it fit to charge upwards of $9,000.00 in "fees" especially without communicating them prior.  He knows of no agency, public or private, which operates in this fashion.
   
   j.  He completed the portion of the cadet program for which he was paid and forfeited a vast amount of time and money to do so.  Now he is being charged with repaying that time and money without being able to recoup any of the time lost or money.  He believes this is an unjust.

3.  The applicant provides 

* DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* National Guard Bureau (NGB) Form 600-7-5-R-E (Annex L to DD Form 4 – SLRP Addendum – ARNG of the U.S.
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 2010 Memorandum for Record (MFR)
* NGB 594-1 (ARNG SMP Agreement)
* DA Form 597 (Army Senior ROTC Non-Scholarship Cadet Contract)
* DA Form 597- 3 (Army Senior ROTC Scholarship Cadet Contract)
* Cadet Command (CC) Form 203-R (Guaranteed Reserve Forces Duty Scholarship Cadet Contract Endorsement)
* Three DA Forms 4856 (Developmental Counseling Form)
* Cadet Record Brief – Active
* 5th Brigade Cadet Form 1 (Boards – Disenrollment Checklist)
* ROTC Disenrollment Package
* DA Form 5315-E (Addendum to Part I – Scholarship Contractual Agreement)

CONSIDERATION OF EVIDENCE:

1.  The applicant was awarded a Bachelor of Science degree on 6 May 2006.

2.  He enlisted in the Arizona ARNG (AZARNG) on 23 January 2009, with eligibility for the SLRP.  He entered active duty for training (ADT) on 26 February 2009.  He completed training and was awarded military occupational specialty 92Y (Unit Supply Specialist).  He was honorably released from ADT on 9 July 2009.

3.  The applicant provides copies of the following:

   a.  An MFR, dated 25 June 2010, wherein he was notified of his acceptance for participation in the SMP.

   b.  An NGB 594-1 he executed on 29 June 2010 for participation in the SMP.

   c.  A DA Form 597-3 he executed on 20 October 2010 which shows in:

		(1)  Part I (Agreement of the Department of the Army) shows an agreement for a period of 2 academic years of tuition and educational fees up to an amount of $30,000.00 and for books and laboratory expenses a flat rate of $1,200.00; 

		(2)  Paragraph 5 (Terms of Disenrollment) of the applicant's DA Form
597-3 states that if the cadet was 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) of his DA Form 597-3 states that if he was 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.

   d.  A CC Form 203-R (front page), agreeing to become part of the Army Senior ROTC Scholarship Cadet Contract.

   e.  Three DA Forms 4856, dated 4 October 2010, 8 December 2010, and 18 January 2011, which show he received counseling on expectations for performance, training, attendance, and conduct.

   f.  CC Form 131-R (Cadet Action Request), dated 13 July 2011, wherein he requested a leave of absence for breach of contract and failure to maintain a minimum semester academic grade point average of 2.0 on a 4.0 scale (Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 3-43a(6).

4.  On 14 February and 30 June 2011, he was notified of his termination from the Non-Prior Service Enlistment Bonus due to his entrance on the SMP/ROTC, without recoupment.

5.  On 13 June 2011, his Professor of Military Science (PMS) notified him by memorandum of the initiation of disenrollment action from ROTC based on his failure to maintain a minimum semester and cumulative ROTC grade point average of 2.0 on a 4.0 scale.  The applicant was advised of his rights.  The memorandum also advised that the applicant 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 be required to repay scholarship benefits in the amount of $31,498.00 in lieu of a call to active duty.  The PMS further advised him that the final decision was with the Commander, U.S. Army Cadet Command (USACC).

6.  On 13 July 2011, the applicant acknowledged receipt of the disenrollment memorandum and requested a hearing.  He also declined a 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.

7.  On 1 June 2012, the Commanding General (GC), 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(6) based on his failure to maintain a minimum semester and cumulative ROTC grade point average of 2.0 on a 4.0 scale.  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 $31,498.00.

8.  Additionally, the CG provided the applicant 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. 

9.  The available evidence is void of a signed agreement indicating his promise to repay the total amount owed of $31,498.00.  An information sheet shows a debt was established on 27 June 2012 and his appeal was received on 5 July 2012.

10.  On 11 July 2012, in response to his 5 July 2012 appeal, the Deputy G1, USACC, notified the applicant that legal restrictions precluded the Commander, USACC from granting a waiver of a properly-established debt for recoupment of scholarship funds arising from a breach of his ROTC contract.  He was further advised he could request remission or termination of the debt to the Army Board for Correction of Military Records.

11.  On 18 July 2012, the AZARNG, notified him that a discrepancy had been discovered with his bonus incentive contract and he may be eligible for an Exception to Policy.

12.  On 20 January 2013, DFAS notified him that he was indebted to the U.S. Government in the amount of $31,587.80.

13.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program.  Paragraph 3-39 states the CG, USACC is the approving authority for termination of scholarship and/or disenrollment.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract.  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.  

14.  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.

15.  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 ARNG; 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 second year, he failed to maintain a minimum semester and cumulative ROTC grade point average of 2.0 on a 4.0 scale which constituted a breach of contract.

2.  He was informed of the decision to initiate disenrollment action and his rights. The memorandum also advised that when the ROTC scholarship contract was breached repayment of cost of advanced education assistance must be satisfied by repayment.  He declined an expeditious call to active duty that would have ordered him to active duty in lieu of paying his debt.  He also submitted an appeal.

3.  The terms of the ROTC scholarship contract required a cadet to either monetarily repay the debt or agree to be ordered to active duty.  There is no evidence of record and he has provided insufficient evidence to show he elected to pay back the debt. 

4.  His contention that he completed one year of the program was carefully considered and found not to have merit.  He entered into a valid Army Senior ROTC Cadet Contract and received advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $31,498.00.  That constitutes a valid debt to the U.S. Government.  There is no evidence of record and he did not provide sufficient evidence to show he was unjustly prevented from completing his studies or contractual obligation.  He breached his ROTC contract by not maintaining a grade point average of 2.0 or above.

5.  Aside from the lack of a statutory or regulatory reason to waive his valid debt, it is contrary to equity to even consider the prospect of negating his entire debt for a free education he received from the Army without becoming an officer while thousands of other ROTC cadets annually complete their education through the very same program and fulfill their military obligation.  Therefore, he is not entitled to his 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)                                         AR20130001909



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ABCMR Record of Proceedings (cont)                                         AR20130001909



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