IN THE CASE OF: 

		BOARD DATE:	    29 April 2014

		DOCKET NUMBER:  AR20130014073 


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 his Reserve Officers' Training Corps (ROTC) scholarship debt in the amount of $5,780.00 be forgiven.

2.  The applicant states:

* he believes this debt is invalid because his contract states his first year on the scholarship was to be without penalty
* he began the ROTC scholarship program in 2006; but, in 2007 he was hit with hard times within his family and he was not meeting academic standards
* he made his Professor of Military Science (PMS) aware of the circumstances and the PMS in turn suspended the scholarship until the situation improved
* his PMS retired in 2008 and he was replaced with another PMS who did not agree with the suspension and instead destroyed the scholarship and forced his exit
* the scholarship was suspended before he began Military Science II (MSII) and he did not receive any money beyond the first year
* he tried - unsuccessfully - to erase this debt by contacting and coordinating with various agencies to no avail
* the debt is affecting his credit, financial wellness, employment, ability to obtain credit, and overall life



3.  The applicant provides:

* DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) 
* Disenrollment approval memorandum
* Defense Finance and Accounting Service (DFAS) Account Statement
* Account Summary by Term

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 enlisted in the U.S. Army Reserve (USAR) Control Group (ROTC) as a cadet on 23 August 2006.  In connection with this enlistment, he completed a DA Form 597-3.

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

4.  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 2 years if the breach occurred during MS II, for 3 years if the breach occurred during MS III, or for 4 years if the breach occurred during MS IV. 

5.  He attended North Georgia College and State University.  


6.  On 2 September 2008, his PMS notified him by memorandum of the initiation of disenrollment action from the ROTC and placement on leave of absence (from 22 May to 3 November 2008) based on his failure to maintain a minimum semester or quarter cumulative grade point average (GPA) of 2.0 on a 4.0 scale, which was a breach of his scholarship contract.  He was advised of his rights to request a hearing and also notified that he retained the status of cadet until disenrollment and discharge action were complete and as such he 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 required to repay scholarship benefits in the amount of $5,780 in lieu of a call to active duty.

7.  His college transcripts show he began college attendance in September 2006. He attended: 

* Fall Semester 2006, GPA: 2.00
* Spring Semester 2007, GPA: 1.32
* Summer Semester 2007, GPA: 1.46
* Fall Semester 2007, GPA: 1.51
* Spring Semester 2008, GPA 1.51
* Summer Semester 2008, GPA 1.54
* Overall GPA: 1.95

8.  On 4 September 2008, the applicant acknowledged receipt of the disenrollment memorandum.  He elected to waive his right to a hearing and personal appearance in order to respond to the validity of the debt.

	a.  He acknowledged that the amount and validity of his debt as stated in the disenrollment memorandum is correct.  He also understood by waiving this right, he waived his opportunity to present matters regarding the disenrollment and the amount and/or validity of his indebtedness before a board of investigating officers.

	b.  He declined call to active duty within 60 days after completion of his current projected graduation date or upon withdrawal/dismissal from school whichever occurs first.  

	c.  He declined expeditious call to active duty.

9.  On 3 November 2008, the Commanding General (CG), U.S. Army Cadet Command (USACC) ordered the applicant disenrolled from the ROTC Program under the provisions of Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 3-43a(6) based on his failure to maintain a minimum semester or quarter cumulative 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 $5,780.00. 

10.  Additionally, the CG provided the applicant with 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.  He was provided an unsigned Addendum to Part I of the Scholarship Contractual Agreement.  

11.  On 4 December 2008, the applicant signed the Addendum to Part I of the Scholarship Contractual Agreement.  He promised to repay the total amount of the debt in monthly installments, plus interest.  

12.  On 1 August 2009, USACC initiated a DD Form 139 (Pay Adjustment Authorization) charging the applicant with $5,780.00 worth of ROTC education benefits. 

13.  On 20 May 2010, DFAS corresponded with the applicant and provided him an Account Statement detailing the debt, with an interest rate of 0.530 percent, for the recoupment of education expenses paid on his behalf during his participation in the ROTC Program.  A breakdown of payments received is as follows:

* 13 October 2006	/$450
* 12 January 2007	/$450
* 17 January 2007/$2,440
* 27 April 2007/$2440
* Total $5,780

14.  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.  
15.  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.

16.  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 (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.

17.  Army Regulation 135-210 (Order to Active Duty as Individuals) prescribes policies and procedures for ordering individual Soldiers of the ARNG and USAR to active duty during peacetime.  In pertinent part, it states that former ROTC cadets, when ordered to active duty, will be ordered to report to the U.S. Army Reception Battalion and will be ordered to active duty in pay grade E-1.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant enlisted in an ROTC Program.  He agreed that if he was disenrolled from the ROTC Program for any reason, he would have to repay his scholarship debt or be ordered to active duty in the rank/grade of PV1/E-1 for an appropriate number of years.  The evidence of record shows he failed to satisfy the contractual requirements of this program due not achieving the minimum required academic GPA. 

2.  He was found in breach of his ROTC contract and he was accordingly notified of his disenrollment from the program.  He waived consideration of his case by a disenrollment board.  He was placed on leave of absence from 22 May to 
3 November 2008 when his disenrollment was ultimately approved by the appropriate official. 


3.  He contends he did not receive any scholarship money for MS II.  However, his contractual agreement stated in Paragraph 6 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 MS II, for 3 years if the breach occurred during MS III, or for 4 years if the breach occurred during MS IV.  The breach occurred during MS II; it did not occur during MS I.   Although he did not receive any payments as an MSII (because he was on probation) he did participate in two MSII classes and received grades, thereby making him responsible for the money he received during his MSI year.  

4.  The applicant was advised of his rights and the opportunity to request a board/hearing.  He also acknowledged the validity of the debt and was understood the choices he had.  He declined active duty service as an enlisted Soldier and he elected to repay the debt.  

5.  The prospect of negating the applicant's $5,780.00 debt for a free education he received from the Army without becoming an officer and without serving on active duty in an enlisted status would be an injustice to the thousands of young men and women who signed a similar agreement but satisfactorily completed their contractual obligations.  

6.  His decision to breach his ROTC contract was a voluntary action.  He received an educational benefit with a promise to fulfill his obligations.  He failed to do so.  He should not be allowed to profit from his failure to satisfy his contractual obligations.  The applicant breached his ROTC contract; therefore, he should be required to repay the full scholarship benefits in accordance with his ROTC contract.

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)                                         AR20130014073



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ABCMR Record of Proceedings (cont)                                         AR20130014073



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