BOARD DATE:	  3 December 2013

		DOCKET NUMBER:  AR20130016527 


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, in effect, his enlisted service be shown to have met the requirements for remission of his Reserve Officers’ Training Corps (ROTC) debt.

2.  The applicant states he was told that for remission of his debt he only has to serve on enlisted active duty service for two years.

3.  The applicant provides copies of:

* his Enlisted Record Brief (ERB)
* his military Identification Card
* a 14 December 2007 DA Form 597-3 (ROTC Scholarship Cadet Contract)
* five Army Physical Fitness Test (APFT) scorecards
* a 28 January 2010 proposed disenrollment notification
* an 8 February 2010 disenrollment notification acknowledgment and election
* a 19 April 2010 ROTC final disenrollment notification
* an ROTC record of educational payments
* an account statement showing an ROTC debt of $77,304.14
* a May 2010 agreement to pay monthly installments on his ROTC debt
* a 10 May 2010 enlistment contract
* a 27 January 2011 Defense Finance and Accounting Service (DFAS) debt notification
* a 16 January 2013 Letter of Recommendation

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 available record does not include any documentation related to the applicant's ROTC commitment or disenrollment, all documentation related to this portion of the application was provided by the applicant.

3.  On 14 December 2007, the applicant enlisted in the U.S. Army Reserve (USAR) with acceptance into a 4-year ROTC program.  His educational commencement date is shown as 20 August 2007.  He received payment of ROTC scholarship monetary benefits on nine occasions, five for tuition between 4 February 2008 and 26 August 2009, totaling $77,270.00.

4.  The five APFT scorecards, dated between 9 January 2008 and 13 January 2010, show that out of 20 APFT tests, the applicant failed the 2-mile run on 12 occasions.

5.  On 28 January 2010, based on his repeated APFT failures, his command initiated action to disenroll the applicant from the ROTC program.  The following day the applicant acknowledged the proposed disenrollment.

6.  On 8 February 2010, the applicant submitted a notification that if he was found to be in violation of his ROTC contract, he elected not to decline a call to active duty and to accept an expeditious call to active duty to fulfill his contractual obligation.  

7.  The applicant appears to have been officially disenrolled from the ROTC program in April 2010.  A Cadet Command notification at that time indicated the only options he had were to pay a lump sum ($77,270.00) or set up a monthly repayment plan.  


8.  On 10 May 2010, the applicant completed an enlistment contract.  He enlisted in the USAR for 8 years, in pay grade E-1, under the Delayed Entry Program (DEP).  He had an active duty service obligation of 3 years and 21 weeks and entered active duty in the Regular Army on 15 September 2010.

9.  On 27 May 2010, the applicant responded to the Headquarters, Cadet Command letter, electing monthly repayments in lieu of lump sum payment.

10.  The applicant entered active enlisted service on 15 September 2010.  He completed training, including basic airborne training, and was awarded the military occupational specialty 19D (Cavalry Scout).  He reenlisted in the Regular Army for 4 years on 19 October 2012.

11.  On 27 January 2011, DFAS notified the applicant of pending recoupment actions for his ROTC educational debt.

12.  His ERB shows:

* assignment to duty in Germany for the period from 8 March 2011 through 31 July 2013
* deployment to Afghanistan from 25 June 2012 through 17 March 2013
* promotion to sergeant on 1 April 2013
* award of two Army Commendation Medals, two Army Achievement Medals, National Defense Service Medal, Afghanistan Campaign Medal, Global War on Terrorism Service Medal, Army Service Ribbon, two Overseas Service Ribbons, Combat Action Badge, Parachutist Badge, and the Driver and Mechanic Badge with Driver-W Bar

13.  The letter of recommendation from the applicant's company commander highly commends and recommends the applicant.  He states the applicant has set himself apart from most Soldiers through his outstanding dedication and determination.  The applicant has excelled and been selected for positions of responsibility and advancement ahead of his peers.

14.  The standard DA Form 597-3 (ROTC Scholarship Cadet Contract) includes the following provisions and options.  It states:

	a.  If a cadet is disenrolled from the ROTC Program for breach of contractual terms or any other established disenrollment criteria, the Secretary of the Army may offer the cadet the opportunity to reimburse the U.S. government the 
amount of money equal to the entire amount of financial assistance paid by the United States for the cadet's advanced education from the commencement of the contractual agreement to the date of the cadet's disenrollment.
	b.  Cadets who fail to complete the ROTC program may be ordered to active duty as an enlisted Soldier, if qualified, for a period of not more than 4 years.  If called to active duty for breach of contract the enlisted active duty service obligation will be based on the year during which the breach occurs: Military Science (MS) II, 2 years; MS III, 3 years; MS IV, 4 years.

	c.  Cadets are required to acknowledge that they understood and agreed that if they voluntarily or because of misconduct fail to begin or fail to complete any period of active duty that they may have incurred under the contract, they would be required to reimburse the United States an amount of money, plus interest, that bore the same ratio to the total cost of the financial assistance provided as the unserved portion of such duty bore to the total obligation.

	d.  If disenrolled from the ROTC, the cadet may not enlist in the Active Army while they are a contracted ROTC cadet unless properly released.

	e.  Any obligation to reimburse will not be altered by subsequent enlisted duty.  The Secretary of the Army, or their designee, retains the prerogative to either order them to active duty or order monetary repayment for their scholarship benefits.

15.  Army Regulation 135-210 (Order to Active Duty as Individuals for Other Than a Presidential Selected Reserve Call-up, Partial, or Full Mobilization), 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.

16.  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.

17.  Title 10, U.S. Code, section 2005 (c), 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 paragraphs (1) through (4) of such subsection, the agreement shall specify that, if the person does not complete the education requirements specified in the agreement or does not fulfill any term or condition prescribed pursuant to paragraph (4) of such subsection, the person shall be subject to the repayment provisions of section 303a (e) of title 37 without the Secretary first ordering such person to active duty as provided for under subsection (a)(2) and sections 2107 (f) and 2107a (f) of this title.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence confirms the applicant enlisted in the USAR under the ROTC Program and that he failed to satisfy the contractual requirements of this program due to repeated failure of the APFT.  At the time he entered the contract, he agreed that 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 in the rank/grade of PV1/E-1 for an appropriate number of years.  

2.  At the time he of his disenrollment, it appears he had received tuition payment for five semesters which would make him an MS III year and carry a three-year service obligation.  

3.  In response to his disenrollment processing elections, he had elected to serve in an enlisted status to meet his obligations.  This election does not appear to have been formally recognized or acted upon. 

4.  The month following his official notification of disenrollment, he enlisted, in pay grade E-1, with a 3 year and 21 week active duty obligation.  It appears the only option or benefit that was afforded him was choosing the MOS in which to receive training.  In order to accept this MOS option it appears he had to enter under the DEP.

5.  The applicant entered active duty on 24 September 2010, successfully completed training, including voluntary airborne training, has served for over 
3 years, including a combat tour in Afghanistan.  His awards include two Army Commendation Medals, two Army Achievement Medals, and a Combat Action Badge.

6.  The applicant appears to have been either misinformed or misunderstood the means to meet his total service obligation as a result of his ROTC obligation.  He appears to have been an MS III cadet at the time of disenrollment which carries a 3-year service obligation.  It is appropriate that this entire service obligation be met.  It is not appropriate to reduce the service obligation requirement to 2 years.

7.  It appears that the applicant was attempting to comply with his service obligation agreement when he enlisted in May 2010.  He did not benefit financially from this voluntary enlistment.  The fact that he received a guaranteed school option has been an advantage to the Army as demonstrated by his outstanding military record. 

8.  Therefore, it is appropriate to amend his ROTC scholarship contract to show his service obligation under the original terms of the ROTC contract would be met by a voluntary enlistment for and completion of a period not less than 
3 years of active enlisted service.

9.  The applicant would have met the 3-year obligation as of 15 September 2013.  As such it is appropriate to halt any collection actions and reimburse him any monies recouped.  

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.  amending his ROTC scholarship contract to show he would satisfy the service obligation under the original terms of the ROTC contract by his voluntary enlistment for 3 years and

   b.  halting any collection actions and reimbursing him any monies recouped to date.  




      _______ _   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)                                         AR20130016527



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ABCMR Record of Proceedings (cont)                                         AR20130016527



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