IN THE CASE OF:	  

		BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130016230 


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 remainder of her Reserve Officers' Training Corps (ROTC) scholarship debt be forgiven.

2.  The applicant states she was originally disenrolled from the Army ROTC in 2005.  She elected to reimburse the Army monetarily at the time.  She did not believe being an enlisted Soldier was the best option at the time.  She continued her own nursing program while at the same time she continued to make timely payments of the original debt of $37,325.00.  After graduating from nursing school, she joined the U.S. Navy (USN) in 2009.  She still continued to make her payments.  She completed 4 years of USN active duty and she was honorably separated in April 2013.  She still has a remaining Army ROTC balance of $18,364.64 as of August 2013.  

3.  The applicant provides:

* Disenrollment notification memorandum
* Disenrollment approval memorandum
* Developmental Counseling Form
* Mandatory Leave of Absence Memorandum
* Addendum to Part I - Scholarship Contractual Agreement
* Orders 7-1 (discharge)
* USN DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Email exchange
* 2013 letter from DFAS

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve Control Group (ROTC) on    4 December 2002.  She executed a DA Form 597-3 (Army Senior ROTC Scholarship Contract) in connection with this enlistment. 

2.  Paragraph 5 (Terms of Disenrollment) of the applicant's 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.

3.  Paragraph 6 (Enlisted Active Duty Service Obligation) of her DA Form 597-3 states that if she were called to active duty for a breach of contract under the provisions of paragraph 5, she 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.

4.  On 8 February 2005, her Professor of Military Science (PMS) notified her by memorandum of the initiation of disenrollment action from ROTC and placement on leave of absence based on her lack of interest and stated desire not to become an officer.  She was advised of her rights to request a hearing.  She was also notified that she retained the status of cadet until disenrollment and discharge action were complete and as such may not enlist in any other military service or component or sign any other scholarship contract.  She was further informed that as a scholarship cadet she could be called to active duty in an enlisted rank/grade of private (PV1)/E-1 or be required to repay scholarship benefits in the amount of $37,326.00 in lieu of a call to active duty.  The PMS further advised her that the final decision was with the Commander, U.S. Army Cadet Command (USACC).

5.  On 15 February 2005, the applicant acknowledged receipt of the disenrollment memorandum.  She waived her right to a hearing and personal appearance in order to respond to the validity of the debt and acknowledged that:

* the amount and validity of the debt as stated in the disenrollment memorandum is correct
* by waiving her right, she waived the opportunity to present matters regarding her disenrollment and the amount/validity of the debt
* she waived her right to appeal the disenrollment and/or the amount and validity of the debt
* she declined expeditious call to active duty 

6.  On 29 July 2005, the Commanding General (CG), USACC, approved the request for disenrollment and 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, based on the applicant's lack of interest in military training as evidenced by her failure to enroll in MS classes during the fall semester, 2004.  The CG's 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 her education was $37,326.00.

7.  Additionally, the CG provided her a DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record) detailing the debt and ordering the applicant to elect an option as far as paying the full amount in one lump sum payment or initiate a repayment plan.  She was also notified that the addendum with her election must be received within 14 days of her receipt and failure to respond by the suspense date may result in the initiation of involuntary collection action.

8.  On 1 August 2005, the applicant executed an Addendum to Part I (of her DA Form 597-3) electing to pay the total amount owed, $37,326.00, in monthly installments plus interest on the amount owed.  

9.  On 12 September 2005, she was discharged from the USAR Control Group (ROTC).  

10.  She provides a USN DD Form 214 that shows she entered active duty in the USN as a Nurse Corps Officer on 4 March 2009 and she was honorably separated on 1 April 2013 by reason of completion of her required active service. She was transferred to the Navy Personnel Command.  She completed 4 years and 28 days of active service.

11.  She corresponded via email with members of her USN chain of command as well as legal assistance officers regarding this debt.  In one of the emails, she indicates she received a Nurse Accession Bonus upon her entry into the USN. 

12.  On 5 August 2013, DFAS notified her that they have collected $18,364.64 to date of her original debt of $37,325.00 that was established on 4 November 2005. 
13.  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.  

	b.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract.  Sub-paragraph 3-43a states 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.  Lack of interest in military training and/or failure to enroll in classes is reasons for disenrollment. 

14.  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.

15.  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.

16.  Army Regulation 135-210 prescribes policies and procedures for ordering individual Soldiers of the Army National Guard of the United States and the USAR to active duty during peacetime.  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 was accepted into an Army ROTC scholarship program.  She fully understood and accepted the terms of her enrollment.  However, she failed to satisfy the contractual requirements of this program due to lack of interest in military training as evidenced by her failure to enroll in MS classes during the fall semester, 2004. 

2.  She agreed that if she were disenrolled from the ROTC Program for any reason she would have to repay her scholarship debt or be ordered to active duty in the rank/grade of PV1/E-1 for an appropriate number of years.  As she was found in breach of her ROTC contract, she was accordingly notified of her disenrollment from the program.  She waived consideration of her case by a disenrollment board.  Her disenrollment was ultimately approved by the appropriate official.  She declined expeditious call to active duty and elected to repay the debt in monthly installments.  

3.  Shortly after her disenrollment, she accepted a USN appointment and entered active duty on 4 March 2009.  She appears to have received a Nurse Accession Bonus in connection with this appointment.  She completed 4 years and 28 days of active service and she was honorably separated on 1 April 2013.  

4.  The applicant's appointment and service in the USN serve the same purpose as it would have had she been ordered to active duty in the U.S. Army.  In other words, the Department of Defense received the benefit of her service (for a period of 4 years whereas her ROTC contract would have required only 3 years of active duty).  Therefore, as a matter of equity, it would be appropriate to consider her appointment in the USN to have met the active duty obligation required by her ROTC scholarship contract. 

4.  The prospect of negating the applicant’s entire ROTC debt for a free education she received from the Army without becoming an officer in the Army, plus allowing her to receive an accession bonus she ordinarily would not have received, is a windfall.  While the Board has no jurisdiction to stop any accession bonus in this case, a bonus would be a legitimate factor to consider in denying equitable relief regarding the entire ROTC debt.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ____x____  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her ROTC scholarship contract to show she would satisfy the service obligation under the original terms of the ROTC contract as a U.S. Navy commissioned officer.

2.  That DFAS determine if she has been paid or is due to be paid a bonus or any other monetary incentives.  In the event that she has been paid a Nurse Accession Bonus from the Navy or becomes due for payment of that accession bonus, that bonus payment should be recouped from the original debt to offset an equal portion of her ROTC scholarship debt.

3.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to “forgiving” any amount of her ROTC debt that would be offset by any accession bonus she may have received.



      ____________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)                                         AR20130016230



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ABCMR Record of Proceedings (cont)                                         AR20130016230



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