BOARD DATE:	 17 October 2013

		DOCKET NUMBER:  AR20130002539 


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 the following:

* remission/cancellation of the late fees associated with his Reserve Officers' Training Corps (ROTC) debt repayment
* removal of the prohibition to serve in the Armed Forces in the future

2.  The applicant states:

	a.  He would like the Board to remove the late fees associated with his repayment so he would only have to repay the amount he received under his scholarship.  He would also like the Board to remove the prohibition on serving in the Armed Forces in the future which was included in his disenrollment decision.

	b.  The charge which led to his disenrollment from the ROTC was "lying" to the cadre during a physical training (PT) session about the amount of drinks he had the night before.  He completed the required PT, but he smelled like he had been drinking.  When questioned, he answered that he had 2 or 3 drinks.  When advised to think about his answer, he then stated he had maybe 4 to 5 drinks.

	c.  He had previously received counseling during his sophomore year about telling the truth after being caught bringing beer into his dorm.  He truthfully told the cadre that he did not buy the beer.  But, he told the Assistant Dean that he had to help his roommate who was already on probation and could have been in serious trouble.   
	d.  The contact ROTC cadre member, Captain (CPT) Txxxxxx, who managed the dependent unit at Boston College, had his scholarship removed for the sophomore year offense and his scholarship and participation in ROTC cancelled for the second year.  He and CPT Txxxxxx had a personality clash during the first month of his freshman year.  He should have done more to avoid trouble, but he honestly thinks he was treated more harshly than others who got into trouble.

   e.  When preparing for his hearing, he noticed the forms stated that disenrollment offenses included:  fraud, drug use, and other serious offenses.  He did his best to remain in the program and he believes his failings were not close to the types of offenses stated.  Other cadets in his Boston College unit received alcohol violations on campus and received punishments of community service usually given by Student Affairs and not the ROTC.  Two cadets received driving under the influence offenses, a much more serious offense in the military community, and received only a warning.

	f.  He had a perfect fitness score, higher grades in his Military Science courses, and had one of the highest grade point averages of the cadets.  He wanted to remain in ROTC and to serve his country.  A Boston College chaplain helped him and the chaplain could not believe he was being disenrolled for the mistakes he had made.  An Army Judge Advocate General (JAG) official assisted him in assembling his arguments, letters of recommendation, and such. The JAG official was unable to attend his hearing due to a schedule conflict.  The JAG official requested the Professor of Military Science (PMS), from a neighboring ROTC detachment, to change the date, but the PMS said it couldn't be done.

   g.  A cadre told him of the policy regarding repayment of his scholarship, but he never heard anything until in 2012 when a collection agency contacted him. After he returned from working in Brazil for a year he learned the debt had been transferred to the Department of Treasury and then to Progressive Financial Services, Inc.  He was then advised a fine of $20,285.64 had been added to his ROTC amount.  It will be hard for him to pay back the scholarship amount in addition to his student loans, but he is committed to doing this.  

3.  The applicant provides 

* Disenrollment of Scholarship/Nonscholarship Cadet from ROTC memorandum and acknowledgement packet
* ROTC Disenrollment from ROTC memorandum



* DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record)
* Letter from Progressive Financial Services, Inc.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records are not available to the Board for review.  However, his available military records located on the U.S. Army Human Resources Command Integrated Web Service system and the documents provided by the applicant contain sufficient evidence for the Board to conduct a fair and impartial review of this case.  

2.  On 18 September 2006, he executed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), which shows in:

   a.  Part I (Agreement of the Department of the Army) an agreement for a period of 4 academic years for full tuition and fees and flat rate of $900.00 for books and laboratory expenses; 

	b.  Paragraph 5 (Terms of Disenrollment) 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 

   c.  Paragraph 6 (Enlisted Active Duty Service Obligation) 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.

3.  On 23 February 2009, his PMS notified him by memorandum of the initiation of disenrollment action from ROTC, based on his undesirable character as demonstrated by a pattern of lying, under the provisions of Army 
Regulation 145-1 (ROTC), paragraph 43a(14).  The memorandum advised the applicant of the following:

* his rights to appear before a board of officers or investigating officer and present matters regarding his disenrollment or indebtedness
* the right to consult with any reasonable available military officer or civilian counsel at no expense to the Government and submit a written statement in his own behalf
* retention of cadet status until disenrollment and discharge action was complete, and as such, he could not enlist in any other military service or component
* as a scholarship cadet he could be called to enlisted active duty in an enlisted grade of E-1 or required to repay scholarship benefits in the amount of $72,260.00 in lieu of call to active duty in fulfillment of his contractual obligation
* the final decision was with the Commanding General (CG), U.S. Army Cadet Command (USACC)

4.  In February 2009, he acknowledged receipt of the disenrollment memorandum and requested a hearing.  There is no evidence he declined call to active duty within 60 days after completion of his current project graduation withdrawal/dismissal from school, whichever comes first and/or he declined expeditious call to active duty.

5.  On 16 December 2009, 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) based on his undesirable character traits as demonstrated by a pattern of lying.  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 $72,260.00.

6.  Additionally, the CG provided the applicant with a DA Form 5315-E detailing the debt.

7.  The available evidence is void of a signed agreement by the applicant indicating his promise to repay the total amount owed.  

8.  He provides a copy of a letter, dated 9 April 2012, from Progressive Financial Service, Inc., wherein he was advised that they had notified him of his delinquent account thirty days ago and as of the date of the letter the amount owed was $92,545.64 because of interest and penalties assessed by his creditor.

9.  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 act may also be characterized as misconduct.  

10.  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.

11.  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 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.

12.  Department of Defense Financial Management Regulation Volume 7a, chapter 50, paragraph 500105 (Interest, Penalties, and Administrative Costs, states:

   a.  With respect to collections other than routine adjustments, the Secretary of the Military Department concerned shall charge a minimum annual rate of interest on an outstanding debt to the United States that is equal to the average investment rate for the Treasury tax and loan accounts for the 12-month period ending on September 30 of each year, rounded to the nearest whole percentage point. 
   b.  Interest shall accrue from the date on which notice of debt and the interest requirements are first mailed or hand delivered to the debtor or such date as specified in the notice.
   
   c.  Interest may not be charged if the amount due on the claim is paid within 30 days after the date from which interest accrues in subparagraph 500105.B. 

   d.  The Secretary concerned shall assess charges to cover administrative costs of processing and handling a delinquent debt. 

   e.  A penalty charge not to exceed 6 percent a year shall be assessed for failure to pay a part of a debt more than 90 days past due.  The charge will be calculated on the 91st day of delinquency, but shall accrue from the date the debt became delinquent. 

   f.  Interest does not accrue on charges assessed under subparagraphs 500105.D and 500105.E.  However, if the member defaults on a repayment agreement, then uncollected interest, administrative costs, and penalty charges shall be added to the principal to be repaid. 

   g.  The Secretary concerned may prescribe regulations identifying circumstances appropriate to waiving collection of interest and charges under subparagraphs 500105.A, 500105.D, and 500105.E. 

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, his undesirable character as demonstrated by a pattern of lying constituted a breach of contract.

2.  He was informed of the decision to initiate disenrollment action and his rights. The memorandum also advised him that the terms of the ROTC scholarship contract required a cadet to either monetarily repay the debt or agree to be ordered to enlisted active duty.  The memorandum further advised him that he would be retained in the cadet status until disenrollment and discharge, and as such, he could not enlist in any other military service or component.  

3.  He acknowledged the proposed disenrollment action memorandum and requested a hearing before a board of officers.


4.  He 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.  There is no evidence of record and he provided none to show he was erroneously disenrolled from the ROTC Program.  

5.  In accordance with regulatory guidance interest shall accrue from the date of the notice of debt.  Administrative costs of processing and handling a delinquent debt shall also be assessed.  If a member defaults on a repayment agreement, then uncollected interest, administrative costs, and penalty charges shall be added to the principal to be repaid.  With his disenrollment he incurred a valid debt and this debt was subject to uncollected interest, administrative costs, and penalty charges on the delinquent amount.  Based on the foregoing, he is not entitled to remission of those charges.

6.  Cancelling even a portion of his debt would be a windfall.  Since his disenrollment from the ROTC Program was due to his failure to maintain an honorable character and appropriate standards of behavior, it would not be appropriate to grant the requested relief in this case.

7.  The disenrollment action memorandum advised him that he would be retained in a cadet status and he was prohibited from enlisting in any other military service or component until disenrollment and discharge action was complete.  It appears the prohibition to serve in the Armed Forces was in effect at that time because he was still serving in a cadet status.  Therefore, there is no evidentiary basis to support his contention.  There is no evidence of record and he provided none to show he was unjustly prohibited from serving in the Armed Forces at that time or in the future.  The prohibition was not permanent.

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)                                         AR20130002539





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ABCMR Record of Proceedings (cont)                                         AR20130002539



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