IN THE CASE OF:	  

		BOARD DATE:	  2 December 2013

		DOCKET NUMBER:  AR20130019033 


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 $31,878.00 be forgiven.

2.  The applicant states, in effect, he incurred this debt after being disenrolled from the Virginia Military Institute (VMI) ROTC program.  He enlisted in the military and he is currently still serving in an active component.  He has served in the Army for 7 years now.  He originally enlisted for 24 months but after enlisting he did not hear from the Defense Finance and Accounting Service (DFAS).  He thought the debt was settled.  However, on 13 September 2013, he received a statement from DFAS concerning this out of service debt. 

3.  The applicant provides:

* Enlisted Record Brief
* 2007 letter from DFAS
* DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract)
* DA Form 4824-R (Addendum to Certificate and Acknowledgement of Service Requirements for All Personnel Applying for Participation in the ROTC Simultaneous Membership Program (SMP)
* CC [Cadet Command] Form 203-R (Guaranteed Reserve Forces Duty Scholarship Cadet Contract Endorsement) 
* Disenrollment notification
* CC Form 131-R (Cadet Action Request)
* Notification of Cadet Action
* DA Form 4187 (Personnel Action)
* Request for Conditional Release
* Orders 320-1, discharging him from the U.S. Army Reserve (USAR), dated 16 November 2006
* Orders 07-134-00009, discharging him from the USAR
* Account Statement

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR Control Group (ROTC) on 30 August 2004.  He was also in the Simultaneous Membership Program (SMP).  He executed a DA Form 597-3 in connection with this enlistment.  He attended VMI, Lexington, VA.

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 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 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 21 April 2006, his Professor of Military Science (PMS) notified him by memorandum of the initiation of disenrollment action from ROTC and placement on leave of absence based on his conviction for assault, which was a breach of his scholarship contract.  He was advised of his rights to request a hearing.  He was also notified that he 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.  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 $31,791.00 in lieu of a call to active duty.  The PMS further advised him the final decision was with the Commander, U.S. Army Cadet Command (USACC).

5.  On 21 April 2006, the applicant acknowledged receipt of the disenrollment memorandum.  He waived his right to a hearing and personal appearance in order to respond to the validity of the debt.  He acknowledged that:

* the amount and validity of the debt as stated in the disenrollment memorandum is correct
* by waiving his right, he waived the opportunity to present matters regarding his disenrollment and the amount/validity of the debt
* he waived his right to appeal the disenrollment and/or the amount and validity of the debt

6.  Additionally, on 21 April 2006, he accepted call to active duty within 60 days after completion of his current projected graduation date or upon withdrawal/ dismissal from school, whichever came first and he declined expeditious call to active duty.

7.  On 21 April 2006, the applicant authenticated a statement indicating that he acknowledged he had been in breach of his ROTC contract and if eligible, he requested to be ordered to active duty in an enlisted status to fulfill his contractual obligations.  

8.  On 25 April 2006, the applicant’s battalion commander (PMS) recommended approval of the applicant’s disenrollment from the program.  He further recommended approval of the applicant's entry on active duty as an enlisted Soldier.

9.  In November 2006, the 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 conviction for assault.  Although the CG's memorandum is not available for review with this case, it would have 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 $31,791.00.

10.  Additionally, the CG would have provided the applicant 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.  He would have also been 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. 
11.  On 29 September 2006, the applicant submitted a DA Form 4187 through the U.S. Army Recruiting Battalion, Mid-Atlantic, Lakehurst, NJ, wherein he requested enlistment in the Regular Army (RA).  

12.  Also on 29 September 2006, the applicant submitted a Request for Conditional Release wherein he requested to be released from his USAR unit for the purpose of enlisting in the RA.  His request was approved on 2 October 2006 and remained valid through 1 April 2007. 

13.  On 16 November 2006, Headquarters, First Region (ROTC), USACC, VMI, Lexington, VA published Orders 320-1 discharging the applicant from the USAR Control Group (ROTC) effective 16 November 2006 by reason of failing to receive a waiver for his civil conviction of assault.  

14.  On 14 April 2007, by letter, a DFAS official notified the applicant that he was indebted to the U.S. Government in the amount of $31,791.00 for the recoupment of education assistance paid on his behalf while participating in the ROTC program.  He was advised that if he was an enlisted member of an active component, he must complete 24 months of continuous active duty before he could apply for the termination of this debt.

15.  On 14 May 2007, Headquarters, 80th Division (Institutional Training), Richmond, VA, published Orders 07-134-00009 honorably discharging him from the USAR, effective 6 March 2007, as a result of his immediate enlistment in the RA.  

16.  He enlisted in the RA for a 5-year term, in the rank/grade of specialist/E-4, on 7 March 2007.  He would later complete the required training and hold military occupational specialty 18D (Special Forces Medical Sergeant).  

17.  On 7 December 2010, he executed a 3-year reenlistment in the RA.  He was also promoted to staff sergeant/E-6 on 1 May 2011.  He now serves with the 1st Battalion, 5th Special Forces Group, Fort Campbell, KY. 

18.  On 6 November 2013, DFAS issued the applicant an Account Statement that show he continues to owe a debt in the amount of $31,978.00 for the recoupment of education expenses paid during his participation in the ROTC Program.

19.  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.  Paragraph 3–39c identifies the exception pertaining to 4-year scholarship winners discharged early from active duty.  A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3–43.  The 4-year scholarship students can be disenrolled at their own request during MS I only.

	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.  Undesirable character or misconduct are reasons for disenrollment. 

20.  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.

21.  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.

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 third year, he failed to satisfy the contractual requirements of this program due to conviction by civil court. 


2.  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.  The evidence of record shows he failed to satisfy the contractual requirements of this program due his misconduct.  As he was found in breach of his ROTC contract, he was accordingly notified of his disenrollment from the program.  He waived consideration of his case by a disenrollment board.  His disenrollment was ultimately approved by the appropriate official. 

3.  Shortly after his disenrollment, he enlisted in the RA, in the rank/grade of SPC/E-4 for a period of 5 years on 7 March 2007.  He also executed a 3-year reenlistment in the RA on 7 December 2010.  He has continuously served in the RA for nearly 7 years, since his enlistment in March 2007.  

4.  The applicant's enlistment and subsequent reenlistment in the RA serve the same purpose as it would have had he been ordered to active duty in the U.S. Army.  In other words, the Department of Defense is still getting the benefit of his service (for a period of nearly 7 years whereas his ROTC contract would have required only 3 years of active duty).  Therefore, as a matter of equity, it would be appropriate to consider his enlistment in the RA to have met the active duty obligation required by his ROTC scholarship contract. 

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 amending his ROTC scholarship contract to show he would satisfy the service 

obligation under the original terms of the ROTC contract as a RA enlisted Soldier.



      _______ _   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)                                         AR20130019033



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019033



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1