IN THE CASE OF:	  

		BOARD DATE:	  23 April 2014

		DOCKET NUMBER:  AR20130013655 


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 her Reserve Officers’ Training Corps (ROTC) records be corrected to show her debt was waived.

2.  The applicant states another ROTC cadet had assaulted her, for which she received medical treatment.  She was abused and she feared for her life.  She had trouble sleeping and was depressed.  She requested a protection order and filed two incident reports.  Neither the university nor the ROTC department seem to understand or care.  They wanted her to continue on at the university.  She states that she refused to do so because of the seriousness of the assault and abuse by the other cadet.

3.  The applicant provides copies of:

* DA Form 597-3 (Army ROTC Scholarship Cadet Contract), dated             20 August 2007
* Alabama Uniform Incident/Offense Report, dated 13 August 2009, with statement 
* Statement by the applicant to ROTC Chain of Command, dated 8 March 2010
* Alabama Uniform Incident/Offense Report, dated 3 September 2010, with confidential address information sheet
* Petition for Protection from Abuse, dated 10 March 2010
* Temporary Protective Order, Circuit Court of Dale County, Alabama, dated 11 March 2010
* Applicant's one-page narrative, dated 23 March 2010
* Letter from the applicant's general psychiatrist, dated 16 April 2010
* Protective Order, Circuit Court of Dale County, Alabama, dated 30 April 2010
* Letter to whom it may concern, from the applicant's psychiatrist, dated       1 May 2010
* Orders 313-522, Alabama National Guard, dated 9 November 2011
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 8 November 2011
* Memorandum, subject: Disenrollment from the U.S. ROTC Program), dated 23 January 2012
* DA Form 5315 (U.S. Army Advanced Education Financial Assistance Record)
* Memorandum, subject: Disenrollment from the U.S. Army ROTC Program, dated 12 June 2012
* Memorandum, subject: Request an Appeal to the Decision, disenrollment for (the applicant), undated and unsigned by the applicant
* Letter from the Defense Finance and Accounting Service (DFAS), dated 28 June 2013
* Account Statement from DFAS, dated 28 June 2013
* Information Paper, subject: Sexual Assault and Sexual Harassment, from the U.S. Army, Chief of Staff, undated
* Photograph of a woman presumed to be that of the applicant, undated and without any comments

CONSIDERATION OF EVIDENCE:

1.  On 20 August 2007, the applicant signed a DA Form 597-3.

	a.  Paragraph 2 (General Cadet Agreement) states that she agreed to enroll in the necessary courses and successfully complete, within the prescribed time, the requirements for the degree in the academic major (International Affairs) stated in this contract.  She further agreed to remain enrolled in and successfully complete the ROTC program.

	b.  Paragraph 5 (Terms of Enrollment) states if she were disenrolled from the ROTC Program for breach of contractual terms or any other disenrollment criteria established then or in the future by Army regulations, she would be subject to 
serve on active duty.  The Secretary of the Army, or his designee, may order her to active duty as an enlisted Soldier, if she is qualified, for a period of not more than 4 years.  If offered, she could agree to reimburse the U. S. Government in lieu of being ordered to active duty.  If she is offered the opportunity to repay her advanced educational assistance she would be required to reimburse the U.S. Government through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the U.S. for her advanced education from the commencement of this contractual agreement to the date of disenrollment.

	c.  She acknowledged she understood and agreed that if she voluntarily or because of misconduct failed to complete any period of active duty or duty in a Reserve status not on active duty that she incurred under this contract, she would be required to reimburse the U.S. Government.

2.  An Alabama Uniform Incident/Offense Report, as provided by the applicant, dated 13 August 2009, states the applicant reported she was assaulted by her boyfriend, who had anger issues.  She was trying to end the relationship but she was afraid of what he might do.

3.  On 8 March 2010, the applicant, in a written statement, said she had been emotionally and physically abused by the same individual identified in the incident report discussed above for the previous 8 months.  She further contended that she was going to swear out a warrant for his arrest.  She believed that the individual was mentally unstable and that he would hurt her again if he had the chance.

4.  On 9 March 2010, the applicant filed a complaint of harassing communication with the local police.  She cited multiple text messages threatening to do her bodily harm.

5.  On 11 March 2010, a circuit court order issued a temporary protective order against the individual who had assaulted and harassed the applicant.  In April 2010, the same court issued another protective order against that individual.

6.  On 16 April 2010, a general psychiatrist made a written statement wherein he said the applicant, who was his patient, was going through severe depression and had decreased energy and motivation.  She was not sleeping or eating.  The physician recommended that she be allowed to drop her current class at the university.

7.  On 1 May 2010, the applicant's psychiatrist wrote that she was currently on high doses of medication for severe/major depression, severe attention deficit hyperactivity disorder and severe sleep apnea.  He opined that based on a complete and thorough medical examination, she was unfit for military service.

8.  Orders 313-522, Alabama National Guard, dated 9 November 2011, announced the applicant's discharge from the Army National Guard and as a Reserve of the Army, effective 8 November 2011.
9.  A memorandum from Headquarters, U.S. Army Cadet Command, dated 
23 January 2012, pertaining to the disenrollment of the applicant from ROTC, stated the following:

	a.  The disenrollment proceedings were legally and administratively insufficient to support the applicant's disenrollment.  More evidence was required to show that she had performed poorly.  Such evidence was to provide dates of missed classes or missed training.  The evidence was to also show which classes were dropped on 22 April 2010.  Her beginning leave of absence (LOA) date of 13 April 2010 was prior to her dropping the classes, so evidence needed to be submitted showing her dropping those classes was a breach of contract rather than a response to being put on LOA.

	b.  The applicant's father had objected to the recording of his testimony.  The applicant was not allowed all reasonable alternatives prior to the board convening to obtain the testimony of her father.  The father should have been offered the opportunity to submit a sworn statement.  The applicant must be offered the option to have another board session to allow the father to provide the testimony the applicant wanted and for the board to consider that testimony.

10.  A DA Form 5315, dated on 30 April 2012, provided by the applicant certified that she received a total of $19,183.32 in Army ROTC scholarship benefits.

11.  A memorandum from Headquarters, U.S. Army Cadet Command, dated 
12 June 2012, pertaining to the disenrollment of the applicant from ROTC, stated the following:

	a.  This memorandum was notification that the applicant was disenrolled and discharged from the ROTC program due to a breach of the ROTC contract based on her indifferent attitude and lack of interest in military training as evidenced by her frequent absences from ROTC classes, leadership labs, and required Army Physical Fitness Test sessions.

	b.  This memorandum further explained that when the ROTC scholarship contract is breached, any obligation to the Army must be satisfied by repaying the cost of advanced education assistance provided by the Army.  The total amount of monies spent in support of her education was shown as $19,183.32.

	c.  This memorandum directed her to elect one of the options listed on the addendum (not provided by the applicant, and unavailable for review).  She was given 14 days in which to chose either to pay the full amount shown above in a lump sum or to initiate a repayment plan.
	d.  This memorandum informed her that she could appeal/dispute the amount or validity of the debt by submitting an explanation for the basis of such appeal or dispute and providing supporting documentation.

12.  In an undated and unsigned memorandum, it appears the applicant wrote the following:

	a.  She contended that the disenrollment proceedings were legally and administratively insufficient because she was not allowed all reasonable alternatives prior to the board convening to obtain the testimony of her father.

	b.  She argued that her father should have been afforded the opportunity to submit a sworn statement.

	c.  She argued that she should have been offered the option to have another board session opened to allow her father to provide testimony that the board could have considered in addition to the evidence prior to making new findings and recommendations.

	d.  She argued that she should have been provided a copy of the corrected board proceedings and given the opportunity to rebut.

	e.  She stated that her medical conditions while enrolled in the Senior ROTC program should have medically eliminated her from the program.  She contends that a thorough medical examination should have been conducted by an Army physician, which did not take place.

	f.  She requested that her appeal be granted.

13.  In a letter, dated 28 June 2013, DFAS notified the applicant that she was delinquent in paying her debt.  She was given a 30-day period in which to make her payment; otherwise, her account may be referred to a commercial collection agency.

14.  The applicant has provided a two-page information paper from the U.S. Army Chief of Staff (CSA), subject: CSA Sends: Sexual Assault and Sexual Harassment.  This information sheet addresses the CSA's concerns about sexual assault and harassment in the U.S. Army and states that resolution of these issues requires that commitment of every Soldier, civilian, and family member.  The information paper does not make any direct reference to the applicant in this case.

15.  The applicant has provided a photograph presumed to be of the applicant.  It shows bruising on her left arm as if someone might have squeezed her with their fingers.

16.  Cadet Command Pamphlet 145-4 (Enrollment, Retention and Disenrollment Criteria, Policy and Procedures) provides that cadets who are disenrolled for medical disqualification will not be ordered to active duty or recommended for recoupment, unless the medical condition had resulted from an act of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her ROTC records should be corrected to show her debt was waived because she was abused and feared for her life.  She further argued that the university did not seem to care, but only wanted her to continue on, which she refused to do.

2.  The available evidence shows the applicant was disenrolled from the ROTC program due to a breach of the ROTC contract based on her indifferent attitude and lack of interest in military training as evidenced by her frequent absences from ROTC classes, leadership labs, and required Army Physical Fitness Test sessions.

3.  The applicant has presented evidence showing that she had filed complaints with the police department concerning being assaulted and harassed.  She also provided evidence from her psychiatrist saying she was going through severe depression and had decreased energy and motivation.  He opined that based on a complete and thorough medical examination she was unfit for military service.

4.  Unfortunately, there is no documentary evidence showing that the applicant ever brought her medical conditions to the attention of the university in general or any official of the ROTC program in particular.

5.  Nevertheless, as a matter of equity and based on the psychiatric diagnosis of the applicant being severely depressed with decreased energy and motivation, and a recommendation that she should be allowed to drop the course, it would be appropriate to show she was found to be medically disqualified, and that such condition was the proximate cause of her failing to attend required classes, labs, and testing sessions.

5.  In view of the above, the applicant's request should be granted.



BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.   showing that she was disenrolled from ROTC by reason of a medical disqualification and that there was no failure to disclose or misconduct; and

     b.  as a result of the above correction, canceling her ROTC debt including any accrued interest and refunding to her any portion of the debt that may already have been collected.



      _______ _   __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)                                         AR20130013655



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ABCMR Record of Proceedings (cont)                                         AR20130013655



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