IN THE CASE OF:	

		BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130020650


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 reconsideration of his previous request for remission/cancellation of his Reserve Officers' Training Corps (ROTC) scholarship debt in the amount of $20,923.62.

2.  He states he believes a mistake was made in the Record of Proceedings in Army Board for Correction of Military Records (ABCMR) Docket Number AR20130013289.  The Record of Proceedings continually states he enlisted in the U.S. Army Reserve (USAR) for a period of 5 years.  However, his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 3 August 2010, shows he enlisted in the Regular Army on 3 August 2010 for a period of 5 years after being discharged from the Delayed Entry Program with a total military service obligation of 8 years.  He believes this misunderstanding had a negative impact on his case.  He believes that 5 years of active duty service satisfies his contractual obligation.

3.  He provides a self-authored statement, dated 10 November 2013.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130013289 on 24 September 2013.

2.  The applicant provides a self-authored statement containing a new argument which was not previously considered by the Board; therefore, it warrants consideration.

3.  The applicant enlisted in the U.S. Army Reserve Control Group (ROTC) as a cadet on 28 August 2006.  In connection with this enlistment, he completed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) showing his education commenced on 28 August 2006 with a projected completion date of 15 May 2009.

	a.  Paragraph 5 (Terms of Disenrollment) of his DA Form 597-3 states that:

		(1)  If he failed to complete the ROTC Program, the Secretary of the Army could order him to active duty as an enlisted Soldier for a period of not more than 4 years.  If he was disenrolled after the point of obligation, he may be ordered to active duty based upon the year during which his disenrollment was initiated.

		(2)  If he was offered the opportunity to repay his advanced education assistance in lieu of being ordered to active duty, he would be required 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 accrued from the day he was first notified of the amount he owed as reimbursement under the contract.

		(3)  If he was disenrolled from ROTC, the Secretary of the Army retained the prerogative to either order him to active duty or order monetary repayment of his scholarship benefits.  Therefore, if he were required to repay his educational assistance under the terms of the contract, his subsequent enlistment in an Armed Service would not relieve him from his repayment obligation.

	b.  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 3 years if the breach occurred during Military Science (MS) III or for 4 years after completion of MS IV if he was a 2, 3, or 4-year scholarship recipient.

4.  His DA Form 5315-R (U.S. Army Advanced Educational Financial Assistance Record), dated 19 March 2008, shows his breach of contract occurred during MS III.  Additionally, his records indicate that he attended the University of South Florida from Fall 2006 through Spring 2008.

5.  On 22 October 2008, the Commanding General, U.S. Army Cadet Command (USACC), issued a memorandum ordering his disenrollment from the ROTC Program in accordance with Army Regulation 145-1 (Senior ROTC Program:  Organization, Administration, and Training), paragraphs 3-43a(6) and 3-43a(16), based on his failure to enroll in MS class and his failure to maintain a minimum semester grade-point average (GPA) of 2.0 on a 4.0 scale.

	a.  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 $20,932.62.  Additionally, the Commanding General, USACC, provided the applicant with a DA Form 5315-R detailing his ROTC scholarship debt and directed him to select an option to indicate his election to either repay the full amount of his ROTC scholarship debt in one lump sum or initiate a repayment plan.

	b.  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 an involuntary collection action.  However, his records are void of an addendum showing his election.

6.  On 30 January 2009, the USACC submitted a DD Form 139 (Pay Adjustment Authorization) to the Defense Finance and Accounting Service (DFAS) authorizing a debt in the amount of $20,923.62.

7.  On 5 May 2010, he enlisted in the Regular Army for a period of 5 years in the rank/grade of private/E-1.  He enlisted for a $3,000.00 cash bonus and the Army College Fund in the amount of $79,848.00.  He successfully completed basic and advanced individual training.

8.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract.  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.  Paragraph 3-43a states a cadet may be disenrolled for failure to maintain a minimum academic GPA of 2.0 or for failure to meet the requirements of the Army Weight Control Program and the Army Physical Fitness Test prior to the end of the last school term of the MS III year.

9.  Title 10, U.S. Code, section 2005(a), states 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.

10.  Title 10, U.S. Code, section 2005(f), states 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) 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 enlisted under an ROTC Program.  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 private/E-1 for an appropriate number of years.  The evidence of record shows he failed to satisfy the contractual requirements of this program due to not meeting academic standards and withdrawing from the program.

2.  He contends his enlistment and current active duty service should fulfill his obligation under his breached Army ROTC contract.  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.  He enlisted in the Regular Army for 5 years on 3 August 2010 in pay grade E-1 and received a cash bonus.  However, his ROTC contract called for an expeditious call to active duty through ROTC channels based on the needs of the Army without the benefit of incentives (such as a bonus) which he received.

3.  The Department of Defense is still receiving the benefit of his service for a period of 5 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 Regular Army to have met the active duty obligation required by his ROTC scholarship contract.

4.  The prospect of negating the applicant's $20,923.62 debt for the free education he received from the Army without becoming a commissioned officer, plus allowing him to receive an enlistment bonus he ordinarily would not have received, would be a windfall.  While the Board has no jurisdiction to stop any enlistment bonus in this case, his $3,000.00 bonus would be a legitimate factor to consider in granting or denying equitable relief regarding the ROTC debt.

5.  He has already served over 3 years of his 5-year enlistment.  Therefore, he met the requirements stipulated in his ROTC contract and is entitled to remission/cancellation of his ROTC scholarship debt in the amount of $20,923.62.  However, his enlistment bonus in the amount of $3,000.00 should be recouped to offset an equal portion of his ROTC scholarship debt.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 his ROTC scholarship contract to show he would satisfy the service obligation under the original terms of the ROTC contract as a Regular Army enlisted Soldier.

2.  In the event that DFAS determines he has been paid the $3,000.00 enlistment bonus or becomes due for payment of that enlistment bonus, that bonus payment should be recouped to offset an equal portion of his ROTC scholarship debt.


3.  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 waiving the entire ROTC debt amount.



      ___________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)                                         AR20130013289



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ABCMR Record of Proceedings (cont)                                         AR20130020650



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