BOARD DATE:	 21 October 2014 

		DOCKET NUMBER:  AR20140001614 


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 her previous request for forgiveness of her Reserve Officers' Training Corps (ROTC) scholarship debt in the amount of $18,143.00.

2.  The applicant states, in effect, that she is not responsible for repaying this debt because the rules were only applied to her and not to her fellow cadets who did not have to pay for their indiscretions.  She contends that the Army betrayed her by not thoroughly investigating her claims and denying her the opportunity at a fourth attempt to pass the Land Navigation Course as promised to her and that others received.  Further, there is nothing in her original ROTC contract that reads she must repay her loan upon being involuntarily separated without first being given the opportunity to return to Leadership Development and Assessment Course (LDAC) the following summer as stated in her release paperwork from LDAC.

3.  The applicant provides a self-authored statement.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130004061, on 26 November 2013.

2.  The applicant contends that the ABCMR overlooked discrepancies in her contract, all of her previous rebuttal letters, and the Army's responses to her letters.  Further, she provides the names of cadets who she contends were afforded the opportunities to complete LDAC and go on to be commissioned despite having violated established policies.  In the interest of justice and fairness, her new arguments should be considered by the Board.

3.  The applicant previously argued that after failing to successfully complete the LDAC Land Navigation Course for the third time she was wrongfully dismissed from the ROTC program for breach of contract.  She further contended that she would have complied with the terms of her contract had she been allowed to make a fourth attempt or if she had been allowed to return to LDAC the following year to complete the training.  Both of these options were originally offered to her and other cadets but only she was denied the opportunity.

4.  In the original ROP, the Board concluded that she was properly disenrolled from the ROTC program due to her failure to complete LDAC which constituted a breach of contract.  The Board also concluded that the debt incurred was found to be valid and that:

	a.  she was informed of the decision to initiate disenrollment action against her and was advised of her rights and waived a board of officers; 

	b.  she declined an expeditious call to active duty which would have relieved her of the debt;

	c.  she elected to accept a call to active duty within 60 days after the completion of her current projected graduation date or upon withdrawal or dismissal from school; she did not return to active duty; and

	d.  all of her arguments/issues were considered and none of them either individually or in sum warranted the relief requested.

5.  She now provides the names of other ROTC scholarship cadets who she states broke the rules outlined in their ROTC contracts and yet were not required to repay their scholarships.  According to the applicant a cadet who was charged with driving under the influence (DUI) and another cadet was pregnant while serving in the ROTC program.  These cadets were allowed to graduate and be commissioned, while others were held to the requirements of the contract and forced to repay their loans.


6.  In addition, she contends:

	a.  that had she stayed in the service and attended school, she would have been awarded approximately the same amount of money to complete school had she used the funds of the tuition assistance program.  So in all actuality she is paying back money that was hers to begin with; 

	b.  she did not return to active duty because she was told that she would have to enlist in the pay grade of private (PV1/E-1) and because she was told by her spouse, an Army recruiter, that there were no positions for her military occupational specialty (MOS) of 92Y (Unit Supply Specialist); and

	c.  her ROTC disenrollment letter did not give her an option to return to active duty in lieu of payment.  It only stated that she had to repay her scholarship through payments or in a lump sum.

7.  Her record contains an LDAC Cadet Waiver Request.  This document shows that she attempted the Night Land Navigation course on three separate occasions and failed to achieve the minimum passing score of 21.  Her Platoon Tactical Officer, Company Tactical Officer, and Regimental Tactical Officer (RTO) recommended approval of the waiver and to allow her a fourth attempt in order to access with her class.

8.  The Commander of Cadets recommended that she return next year.

9.  The Warrior Forge Commander acting as the final approval authority made the decision to dismiss the applicant without credit and authorized her to return the next year.

10.  On 17 August 2011, the Austin Peay State University, Professor of Military Science (PMS) initiated her disenrollment from the ROTC program for being dismissed from LDAC for failing the Land Navigation Course.

11.  She acknowledged receipt of her disenrollment on 2 September 2011 and at that time she waived her right to a hearing and accepted a call to active duty within 60 days after completion of her current projected graduation date or upon withdrawal or dismissal from school.  The addendum signed by the applicant on 2 September 2011 states as a scholarship cadet if should she fail to fulfill this active duty service obligation, she would be subject to the terms of repayment as specified in her scholarship contract.

12.  On 16 September 2011, the PMS recommended that the applicant be disenrolled from the University ROTC program and repay her scholarship money.
13.  Title 10, U.S. Code, section 2005(a)(3), 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 with the Secretary concerned under the terms of which such person shall agree that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed by the Secretary to protect the interest of the United States, such person will reimburse the United States in an amount that bears the same ratio to the total costs of advanced education provided such person as the un-served portion of active duty bears to the total period of active duty such person agreed to serve.

14.  Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program) provides that a scholarship cadet may be disenrolled only by the Commanding General, Army Cadet Command.  Cadets may be disenrolled for breach of contract.  Breach of contract 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 the specific intent to breach the contract or whether the student knew that the act, performance or nonperformance breaches the contract.  

15.  Army Regulation (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration that her ROTC scholarship debt be forgiven has been carefully considered and found to lack merit.

2.  The evidence of record shows her LDAC cadre recommended she be granted a waiver and allowed a fourth attempt to complete the Land Navigation course; however, the approval authority disapproved her waiver request and dismissed her from LDAC without credit but with authorization to return the next year.  However, her PMS initiated ROTC disenrollment action.

3.  In regard to other cadets receiving preferential treatment, the applicant provides no evidence, other than her personal account, to support her contention that other cadets received a fourth attempt at the Land Navigation course or that certain cadets were allowed to violate the terms of their ROTC contract without consequence.  The ABCMR is not an investigative body and as such does not call witnesses or examine third-party records.  All cases are examined based on the evidence of record or evidence provided by the applicant.  The applicant was provided an opportunity to present matters at the time which could have included her perception of biased treatment and the fact that she fully intended to complete the LDAC course the following year at a hearing but she waived her right to do so and forfeited her opportunity to possibly avoid disenrollment.

4.  She further contends that had she stayed in the service she would have received the same amount of tuition assistance as she received in scholarship benefits.  This argument is fundamentally flawed because it asks the Board to grant relief based on a hypothetical situation and to disregard the fact that she failed to fulfill the terms of her contract.  The evidence shows that she breached her contract and as such she is required to repay her scholarship benefits or serve on active duty.

5.  She states that she did not return to active duty because she did not want to serve in a lower grade and because her spouse, an Army Recruiter, told her that her military specialty was overstrength.  Her ROTC contract specifically states that if she was disenrolled that she could be ordered to active duty as an enlisted Soldier.  Her contract did not guarantee her a specific pay grade or MOS; therefore, her reason for not returning to active duty was strictly her personal decision and there is no error or injustice.

6.  Her contention that her ROTC disenrollment letter did not give her an option to return to active duty in lieu of repayment is not supported by the evidence of record.  Her disenrollment letter clearly shows that she acknowledged the validity of her debt, accepted a call to active duty within 60 days after completion of her current projected graduation date or upon withdrawal or dismissal from school, and that she acknowledged that if she failed to fulfill this active duty service obligation she would be subject to the terms of repayment as specified in her scholarship contract.

7.  There is no evidence, other than her own personal statement, to show that her dismissal from LDAC was unwarranted or that her removal from the ROTC program was unjust.  The applicant's arguments have been given careful consideration.  However, they do not sufficiently show that the Board's original determination was unjust.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X______  ___X_____  __X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130004061, dated 26 November 2013.




      _______ _  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)                                         AR20140001614





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ABCMR Record of Proceedings (cont)                                         AR20140001614



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