IN THE CASE OF:	  

		BOARD DATE:	  12 November 2013

		DOCKET NUMBER:  AR20130016685 


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 the entire amount of his established Reserve Officers' Training Corps (ROTC) debt.

2.  The applicant states he believes the record to be unjust because he is fulfilling his military obligation by serving on active duty in the United States Army.

3.  The applicant provides copies of his 2013 Enlisted Record Brief and permanent change of station orders. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve, ROTC Program, as a cadet, on 29 January 2008.  On the same day, he executed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) which shows in:

	a.  Part I (Agreement of the Department of the Army) an agreement for a period of 4 academic years of tuition and educational fees up to an amount of $20,000.00 and for books and laboratory expenses at a flat rate of $1,200.00; 

	b.  Paragraph 5 (Terms of Disenrollment) that if the cadet was 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; and 

	c.  Paragraph 6 (Enlisted Active Duty Service Obligation) that if he was 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 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.

2.  On 13 May 2010, the applicant's Professor of Military Science (PMS) notified him by memorandum of the initiation of disenrollment action from the ROTC Program based on his failure to maintain a minimum semester academic grade point average (GPA) of 2.0 on a 4.0 scale.  The applicant was advised of his rights.  The memorandum also advised the applicant he was being placed on leave of absence as of 1 May 2010, pending disenrollment.  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 be required to repay scholarship benefits in the amount of $12,677.34 in lieu of a call to active duty.  The PMS further advised him that the final decision was with the Commander, U.S. Army Cadet Command (USACC).

3.  On 12 July 2010, the applicant acknowledged receipt of the disenrollment memorandum and requested a hearing.  He also declined a call to active duty within 60 days after completion of his current projected graduation withdrawal/ dismissal from school, whichever comes first, and he declined expeditious call to active duty.

4.  A Cadet Command Form 131-R (Cadet Action Request), dated 17 July 2010, shows he requested a medical waiver for an eye astigmatism to continue in the ROTC Program.

5.  On 18 February 2011, the Brigade Commander, USACC, recommended approval of the applicant's disenrollment and the repayment of his scholarship.

6.  On 23 February 2011, the applicant's PMS recommended approval of the applicant's disenrollment.  He stated:

   a.  For two consecutive semesters the applicant's GPA was below 2.0.  The applicant showed no motivation to improve his physical standings to meet the requirements of the Leader Development and Assessment Course and he was subsequently taken off the list for attendance after failing the record and make-up Army Physical Fitness Test.  
   
	b.  The applicant had been counseled several times on his performance and was placed on Administrative Suspension; however, no improvement was achieved.  Additionally, his overall performance in the ROTC Program continued to be unsatisfactory.  He was repeatedly absent from training events and physical fitness sessions.  He had demonstrated a lack of commitment and apathy for military service and should not be allowed to continue in the program.

7.  On 8 August 2011, 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, paragraph 3-43a(6) based on his failure to maintain a minimum semester and cumulative ROTC grade point average 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 $12,677.34.

8.  Additionally, the CG provided the applicant 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. 

9.  He was discharged from the ROTC Program effective 8 August 2011.

10.  On 15 August 2011, the applicant signed an agreement indicating his promise to repay the total amount owed of $12,677.34.  His record is void of his appeal.

11.  He enlisted in the Regular Army, in pay grade E-3, on 29 January 2013, with a medical waiver, for a period of 3 years and 19 weeks.  There is no indication he enlisted for a bonus.

12.  On 18 July 2013, he extended his 29 January 2013 enlistment by 1 month for the purpose of meeting the service remaining requirement for the Command Sponsorship Program, with a new expiration term of service date of 9 July 2016.

13.  On 13 September 2013, a staff member of the Defense Finance and Accounting Service (DFAS) advised this Board that as of May 2013 the applicant's account showed a debt in the amount of $12,747.10 after penalties and interest.  It appears the applicant contacted DFAS in June and advised that he was on active duty.  DFAS recalled his account from the Collection Agency.  The applicant called again on 20 September 2013 and advised he had applied to the ABCMR.  No payments had been made.

14.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program.  Paragraph 3-39 states the CG, USACC is the approving authority for termination of scholarship and/or disenrollment.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract.  Sub-paragraph 3-43a(16) 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.  

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 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.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was accepted into an Army ROTC scholarship program.  He fully understood and accepted the terms of his enrollment.  However, during his second year, he failed to maintain a minimum semester and cumulative ROTC GPA of 2.0 on a 4.0 scale which constituted a breach of contract.

2.  He was informed of the decision to initiate disenrollment action and his rights. The memorandum also advised that when the ROTC scholarship contract was breached and the cost of advanced education assistance must be satisfied by repayment.  He declined an expeditious call to active duty that would have ordered him to active duty in lieu of paying his debt.  He also elected to submit an appeal; however, his record is void of that appeal.  The terms of the ROTC scholarship contract required a cadet to either monetarily repay the debt or agree to be ordered to active duty.  

3.  However, although not provided for in his DA Form 597-3, the applicant's enlistment and entry on active duty on 29 January 2013 serves the same purpose as if he would have been ordered to active duty through ROTC channels based on the needs of the Army.  Therefore, it would be equitable to amend his ROTC scholarship contract to show that his present enlistment in the Army will satisfy the service obligation under the terms of the original ROTC contract while serving as an enlisted Soldier on active duty.  

4.  Had the applicant chosen active duty or been involuntarily ordered to active duty for 2 years as a result of his disenrollment, he would have been assigned against the needs of the Army, in pay grade E-1.  Instead, he enlisted in the Army in January 2003, in pay grade E-3.

5.  Information was provided from DFAS that shows as of May 2013 the applicant's debt was $12,749.10 with penalties and interest. 

6.  Therefore, his records should be corrected to show he would satisfy his ROTC scholarship debt by completing 2 years of service same as the term under his original ROTC contracts.  If the applicant fails to complete the period of enlisted service he obligated himself to as a result of his original ROTC scholarship, either voluntarily or because of misconduct, his ROTC debt will be recouped on a pro-rated basis.


7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

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:

   a.  Amending the applicant's ROTC contract to show he would satisfy his ROTC scholarship debt in the amount of $12,749.10 under the terms of the original ROTC contact by successfully completing 2 years of his current enlistment in the Army.  

   b.  If he fails to complete the period of service he obligated himself to as a result of his original ROTC scholarship contract, either voluntarily or because of misconduct, his ROTC debt will be recouped on a pro-rated basis in accordance with his DA Form 597-3.

2.  The Board further determined the evidence presented is 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 granting him full relief of his ROTC scholarship debt at this time.  



      _______ _ 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)                                         AR20130016685



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ABCMR Record of Proceedings (cont)                                         AR20130016685



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