IN THE CASE OF:	  

		BOARD DATE:  29 October 2013

		DOCKET NUMBER:  AR20130014760 


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 termination of his Reserve Officers' Training Corps (ROTC) scholarship debt or at a minimum that it be suspended until his release from active duty (REFRAD).

2.  The applicant states, in effect, that he was disenrolled from the Army ROTC program in December 2011 after having received scholarship benefits for 2 1/2 years and received a debt notice from the Defense Finance and Accounting Service (DFAS) in the amount of $100,560.00.  He goes on to state that he enlisted in the Regular Army for a period of 5 years and requests that his 5-year enlistment serve to repay his debt or at a minimum that the debt be suspended until his REFRAD.   

3.  The applicant provides copies of his debt notices from DFAS and the Treasury Department, his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), his disenrollment notice, and his Leave and Earnings Statement (LES). 

CONSIDERATION OF EVIDENCE:

1.  In December 2011 the applicant, a Military Science III, 4-year scholarship Simultaneous Membership Program (SMP) cadet, was notified that he was being disenrolled from the ROTC Program due to his failure to maintain a minimum semester academic grade point average of 2.0 on a 4.0 scale.  

2.  On 17 January 2012 he waived his right to appear before a formal board.  His command recommended he be ordered to active duty, and he elected to accept a call to active duty.  However, staff nonconcurred with his command’s recommendation as he had not been released from his SMP unit.  On 17 March 2012 he declined a call to active duty and accepted the obligation to repay his scholarship benefits in the amount of $100,560.00.

3.  On 23 May 2012 he was disenrolled from the ROTC Program and was discharged from the ROTC Control Group.

4.  On 12 February 2013 he enlisted in the Regular Army for a period of 5 years under the Special Forces enlistment option.  His contract makes no mention of any monetary incentives offered at the time of his enlistment.

5.  Title 10, U.S. Code (10 USC), section 2005(a)(3), states, in pertinent part, 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 with the Secretary concerned under the terms of which such person shall agree that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed by the Secretary to protect the interest of the United States, such person will reimburse the United States in an amount that bears the same ratio to the total costs of advanced education provided such person as the un-served portion of active duty bears to the total period of active duty such person agreed to serve. 

6.  Army Regulation 135-210 prescribes policies and procedures for ordering individual soldiers of the Army National Guard of the United States and the U.S. Army Reserve to active duty during peacetime.  It states 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 for up to 4 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his active duty service in the Regular Army should fulfill his obligation under his breached ROTC contract was carefully considered.  The applicant's ROTC contract called for an expeditious call to active duty in an enlisted status through ROTC channels at the needs of the Army.  Nevertheless, in this case, the applicant’s enlistment and active duty service in the Regular Army more than serve the same purpose as would have been served had he been ordered to active duty in the Army through ROTC channels provided that he completes his enlistment.  
2.  The record shows that as a result of the applicant’s active duty service, the Government will receive the benefits of his service for more than the period he would have served had he been ordered to active duty as a result of breaching his ROTC contract.  

3.  In view of the facts of this case, it would be appropriate to consider his active duty service to have met the active duty obligation required by his ROTC scholarship contract as a matter of equity, provided he completes his enlistment.  

4.  If the applicant fails to complete the period of enlisted service obligated as a result of his ROTC scholarship (4 years) either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis.

5.  Had the applicant chosen active duty or been involuntarily ordered to active duty as a result of his disenrollment, he would have been assigned against the needs of the Army, in pay grade E-1, and not allowed any enlistment options.  While his available records do not show that he received any enlistment bonus, the prospect of negating the applicant's debt for a free education he received from the Army without becoming an officer, plus allowing him to receive any enlistment bonus he ordinarily would not have received, would be a windfall.  

6.  If DFAS records show the applicant did in fact receive an enlistment bonus, and while the Board has no jurisdiction to stop any enlistment bonus in this case, any such bonus would be a legitimate factor to consider in granting or denying equitable relief regarding the ROTC debt.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 amending his ROTC scholarship contract to show that he will satisfy his ROTC scholarship debt of $100,560.00 under the original terms of the ROTC contract as a result of completing 4 years of active duty in the Regular Army and that his debt will be held in abeyance until such time as he completes this service. 

2.  The portion of the ROTC debt that would be satisfied by the above correction will be the total amount of the ROTC debt minus any cash enlistment bonus he may have received.  

3.  If he fails to complete the period of enlisted service obligated as a result of his amended ROTC scholarship contract either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis.




      _______ _  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)                                         AR20130014760





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ABCMR Record of Proceedings (cont)                                         AR20130014760



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