IN THE CASE OF:	  

		BOARD DATE:	    24 September 2013

		DOCKET NUMBER:  AR20130013289 


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 remission/cancellation of his Reserve Officers' Training Corps (ROTC) scholarship debt in the amount of $20,923.62.

2.  He states he enlisted in the U.S. Army Reserve (USAR) for 5 years with the intent that his service obligation in ROTC of 3 years would be fulfilled.  He offers the bonus he received of $3,000.00 was due to him signing a 5-year contract.  He states if the bonus is considered a windfall, he will return it.

3.  He provides:

* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* DA Form 3286 (Statement for Enlistment United States Army Enlistment Program) Annex A and Annex B
* DD Form 139 (Pay Adjustment Authorization)
* DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract)
* Enlisted Record Brief
* Memorandum, Subject:  Disenrollment from the U.S. Army ROTC Program
* DA Form 5315-R (U.S. Army Advanced Education Financial Assistance Record)




CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army ROTC as a cadet on 28 August 2006. In connection with this enlistment, he completed a DA Form 597-3 that shows his education commenced on 28 August 2006 with a projected completion date of 15 May 2009.

2.  Paragraph 5 (Terms of Disenrollment) of his DA Form 597-3 states that:

	a.  If he failed to complete the ROTC Program the Secretary of the Army could order him to active duty as an enlisted Soldier for a period of not more that 4 years.  If he was disenrolled after the point of obligation, he may be ordered to active duty based upon the year during which his disenrollment was initiated.

   b.  If he was offered the opportunity to repay his advanced education assistance in lieu of being ordered to active duty, he would be required 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 accrued from the day he was first notified of the amount he owed as reimbursement under the contract.  

	c.  If he was disenrolled from ROTC, the Secretary of the Army, retained the prerogative to either order him to active duty or order monetary repayment of his scholarship benefits.  Therefore, if he was required to repay his educational assistance under the terms of the contract, his subsequent enlistment in an Armed Service would not relieve him from his repayment obligation.

3.  Paragraph 6 (Enlisted Active Duty Service Obligation) of his DA Form 597-3 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 3 years if the breach occurred during Military Science III, or for 4 years after completion of MS IV if he was a 2, 3, or 4-year scholarship recipient.

4.  He attended the University of South Florida from the Fall of 2006 through the Spring of 2008.  

5.  On 22 October 2008, the Commanding General (CG), U.S. Army Cadet Command (USACC) ordered the applicant to be disenrolled from the ROTC Program under the provisions of Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 3-43a(6) and (16) based on his failure to enroll in military science class and his failure to maintain a minimum semester grade point average (GPA) 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 $20,932.62. 

6.  Additionally, the CG provided the applicant with a DA Form 5315-R 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.  

7.  The applicant's record is void of an addendum showing his election.

8.  On 30 January 2009, the USACC submitted a DD Form 139 to the Defense Finance and Accounting Service (DFAS) authorizing a charge of the applicant's account in the amount of $20,923.62.

9.  On 5 May 2010, he enlisted in the USAR for a period of 5 years in the rank/grade of private (PVT)/E-1.  He enlisted for a $3,000.00 cash bonus and $79,848.00 Army College Fund.  He successfully completed basic training and advanced individual training.

10.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a 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.  Paragraph 3-43a states a cadet may be disenrolled for failure to maintain a minimum academic GPA of 2.0 or for failure to meet the requirements of the Army Weight Control Program and the Army Physical Fitness Test prior to the end of the last school term of the MS III year.

11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant enlisted in an ROTC Program.  He agreed if he were disenrolled from the ROTC Program for any reason, he would have to repay his scholarship debt or be ordered to active duty for an appropriate number of years.  The evidence of record shows he failed to satisfy the contractual requirements of this program based on his failure to enroll in military science class and his failure to maintain a minimum semester GPA of 2.0.  As he was found in breach of his ROTC contract, he was accordingly disenrolled from the program.  

2.  He contends his 5-year enlistment in the USAR should fulfill his obligation under his breached Army ROTC contract.  As specified in his ROTC contract, if he was disenrolled from ROTC, he could either be ordered to active duty or ordered monetary repayment of his scholarship benefits.  Notwithstanding the fact that he enlisted in the USAR, it would not be equitable to allow the applicant's USAR service to satisfy the conditions of his ROTC contract.  Enlistment in the USAR for 5 years after he would have been called to active duty in lieu of repayment of his ROTC debt is not a reasonable expectation of the requirement to fulfill his contractual obligation.

3.  In view of the foregoing, there is no basis for granting 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)                                         AR20130013289





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130013289



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1