IN THE CASE OF:	  

		BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130021168 


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 of $5,044.00 be forgiven.

2.  The applicant states:

* he was given the ROTC scholarship as a cadet at the New Mexico Military Institute during school year 2002 through 2003
* he and his parents were assured that the debt would be dismissed if he transferred to another military service
* he first served in the Navy ROTC and then he made a commitment to the Marine Corps Platoon Leaders Course in 2005 in Denver, CO
* he elected to serve on active duty in lieu of repayment
* on 18 May 2007, he accepted his commission and has an active duty date of 29 June 2007
* his original request for debt remission was submitted 1 year early
* his ROTC debt was only suspended and not dismissed as he had believed
* he recently received notification that the ROTC debt still exits

3.  The applicant provides:

* self-authored statements
* ABCMR Docket Number AR20070007048, dated 16 January 2008 (administratively closed)
* Billing Statement from the Defense Finance and Accounting Service (DFAS)
* Marine Corps Total Force System (MCTFS) Basic Individual Record printout, dated 22 November 2013
* 4 Permanent Change of Station Orders
* 3 U.S. Marine Corps Web Orders

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) Control Group ROTC on 3 December 2002.

2.  Paragraph 5 (Terms of Disenrollment) of the applicant's DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) 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.  He attended New Mexico Military Institute, Roswell, NM from fall 2002 through spring 2003.

5.  On 3 July 2003, his Professor of Military Science notified him by memorandum of the initiation of disenrollment action from the ROTC and placement on leave of absence based on his withdrawal from his academic institution, which was a breach of his scholarship contract.  He was advised of his rights to request a hearing and 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 required to repay scholarship benefits in lieu of a call to active duty.



6.  On 3 July 2003, 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 also declined expeditious call to active duty. 

7.  On 23 November 2004, the Commanding General, U.S. Army Cadet Command, 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(4) based on his withdrawal from school.  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 $5,044.00.

8.  Additionally, the commanding general provided the applicant with 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.  On 10 December 2004, the applicant signed the Addendum to Part I of the Scholarship Contractual Agreement.  This form shows he did elect to repay the total amount owed, $5,044.00, in monthly installments, plus interest on the amount owed as specified in his scholarship contract.

10.  Subsequent to his election, DFAS notified him that he was indebted to the U.S. Government in the amount of $5,044.00 for the recoupment of education expenses paid on his behalf during his participation in the ROTC Program.

11.  On 2 April 2007, the applicant appealed his ROTC debt to the ABCMR.

12.  On 16 January 2008, the ABCMR advised the applicant to resubmit his request in August 2008 at which time he would have completed 3 years of active duty.  The ABCMR further directed DFAS to suspend collection of his debt until 30 September 2008.  The applicant was instructed to confirm this extension with DFAS.  There is no evidence he resubmitted his request in 2008.

13.  The applicant provided an MCTFS printout, dated 22 November 2013, that shows he is serving on active duty in the U.S. Marine Corps in the rank of captain and shows:
* 18 May 2007 – date of his enlistment or acceptance
* 15 August 2005 – his Armed Forces original entry date
* 17 May 2015 – his expiration of obligated service

14.  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.  One of the reasons for disenrollment is to receive an appointment or enter an officer training program other than ROTC.  The release must be approved by the region commander or higher headquarters.

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 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.

17.  Army Regulation 135-210 (Order to Active Duty as Individuals) 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.  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.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant enlisted in an Army 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 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 to withdrawing from the program.  .

2.  As he was found in breach of his ROTC contract, he was accordingly notified of his disenrollment from the program.  He elected to pay back scholarship monies he had received in lieu of expeditious call to active duty.  His disenrollment was ultimately approved by the appropriate official. 

3.  He voluntarily accepted a commission in the U.S. Marine Corps on 18 May 2007.  He contends his commission 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 U.S. Marine Corps on 15 August 2005.  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 advancement in rank or other incentives.

4.  Nevertheless, his active duty service in the U.S. Marine Corps serves the same purpose as would have been served had he been ordered to active duty in the Army.  The Department of Defense is still getting the benefit of his service 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 U.S. Marine Corps active duty service 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 contract to show he would satisfy the $5,044.00 debt under the original terms of the ROTC contract by successfully completing 3 years of active duty service in the U.S. Marine Corps.




      _____________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)                                         AR20130021168



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ABCMR Record of Proceedings (cont)                                         AR20130021168



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