IN THE CASE OF:	  

		BOARD DATE:	  23 April 2014

		DOCKET NUMBER:  AR20140004667 


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 be waived and termination of recoupment of $39,771.00 in education expenses paid on his behalf during participation in the ROTC program based upon his date of enlistment in the U.S. Air Force (USAF). 

2.  The applicant states that although he did not enter the U.S. Army as a second lieutenant as per his original contract, he has enlisted in the Active Duty USAF and is currently an airman first class/E-3 with a 6-year commitment.  He contends that this contractual agreement with another branch of the military for the same obligation of service time that was agreed upon in his original contract with the Army ROTC should suffice for repayment of his debt, as outlined in his original contract.  His indebtedness was due payable effective 7 September 2011.

3.  The applicant provides:

* ROTC enrollment documents
* ROTC disenrollment documents
* an extract from his USAF enlistment contract
* verification of service in the USAF

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) as a cadet for a period of 8 years on 14 November 2007.  In connection with this enlistment, he executed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) and agreed to receive scholarship benefits for a period of 
4 academic years, including tuition and fees, books, laboratory expenses, and monthly subsistence, at Virginia Military Institute (VMI) located in Lexington, VA in exchange for appointment as a second lieutenant in the Army Reserve upon successful completion of all academic, military, and other requirements of the Army ROTC program.

2.  Paragraph 5 (Terms of Disenrollment) of his 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 Obligations) 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 29 September 2011, a Professor of Military Science (PMS) notified him of the initiation of disenrollment action from the ROTC and placement on leave of absence based on his failure to pass the Army Physical Fitness Test (APFT) required for commissioning, which constituted a voluntary withdrawal and breach of his 4-year Army ROTC 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 (although his battalion commander was recommending private (PV2)/E-2) or be required to repay the full monetary amount of his scholarship benefits in lieu of a call to active duty.

5.  The applicant provides a document rendered in order for him to acknowledge receipt of the notification memorandum and his understanding that failure to maintain his academic standing could result in his disenrollment from the ROTC program as stated in his contract.  However, this copy he provided does not bear his signature or a date.

6.  On 7 October 2011, the applicant was notified that action was being initiated to disenroll him from the ROTC program at VMI based on breaching his contract by failing to pass the APFT for commissioning.  The PMS also noted that the applicant had been placed on a leave of absence pending disenrollment.  The commander informed the applicant of his rights during the disenrollment process and that as a scholarship cadet, if the disenrollment was approved, he could be called to active duty in an enlisted grade of E-1 or be required to repay the total amount of scholarship benefits he had received ($40,371.00) in lieu of call to active duty in fulfillment of his contractual obligations.  This form shows the applicant was given an opportunity to either elect or decline several options pertaining to either repaying the debt or being ordered to active duty as an enlisted Soldier in order to fulfill his contractual obligation.  The copy of this document that the applicant provided does not show which elections he chose nor does it bear his signature or the date that he received the disenrollment notification memorandum.

7.  The notification memorandum indicates the applicant was provided a DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record) detailing the debt; however, he did not provide this document along with his application. 

8.  The applicant provides a portion of a DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) which shows he enlisted in the USAF Reserve Delayed Entry Program for a period of 8 years on 31 July 2012.  This extracted portion of his contract does not show whether or not he received a cash bonus.

9.  The applicant provides an Active Duty Enlisted Data Verification Brief that shows he entered active duty in the USAF on 13 November 2012.

10.  On 31 August 2013, a customer service representative from the Defense Finance and Accounting Service (DFAS), Directorate of Debt and Claims Management sent a letter to the applicant in regard to his account.  DFAS records showed he had indebtedness in the principal amount of $39,771.00 for the recoupment of education expenses paid on his behalf during his participation in the U.S. Army ROTC.  Records also showed that he was currently on active duty in the USAF.  The applicant was advised that he could apply to the Army Board for Correction of Military Records (ABCMR) for suspension or termination of this indebtedness and provided an application form.

11.  Department of the Air Force, Headquarters Air Force Personnel Center, Randolph Air Force Base, TX, memorandum, dated 18 October 2013, shows the applicant was currently an airman first class who enlisted and entered extended active duty on 13 November 2012 for a period of 6 years.  On 26 March 2014, an ABCMR analyst verified that the applicant is still an active duty member of the USAF with an expiration term of service date of 12 November 2018.

12.  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.

13.  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 (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.

14.  Army Regulation 145-1 prescribes polices and general procedures for administering the Army’s SROTC Program:  

	a.  Paragraph 3-31 states the Army ROTC Scholarship Program provides financial assistance to those students who have demonstrated academic excellence and leadership potential.  The U.S. Army Scholarship Program’s purpose is to provide for the education and training of highly qualified and motivated young men and women who have a strong commitment to military service as commissioned officers

	b.  Paragraph 3-39 states a non-scholarship cadet may be disenrolled by the PMS and a scholarship cadet may be disenrolled only by the CG, U.S. Army ROTC Cadet Command (USAROTCCC)).  Nonscholarship and scholarship cadets will be disenrolled for a variety of reasons.

	c.  Paragraph 3-43 states 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.  

15.  Army Regulation 135-210 (Order to Active Duty as Individuals for Other Than a Presidential Selected Reserve Call-up, Partial or Full Mobilization) prescribes policies and procedures for ordering individual Soldiers of the Army National Guard of the United States and the U.S. Army Reserve 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 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 was accepted into an Army ROTC scholarship program and he failed to satisfy the contractual requirements of this program based on his failure to pass the APFT required for commissioning which constituted a breach of contract.  

2.  As he was found in breach of his ROTC contract, he was accordingly notified of his disenrollment from the program.  His disenrollment was ultimately approved by the appropriate official. 

3.  He contends his enlistment and current active duty service in the USAF 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.  

4.  He enlisted in the USAF for 6 years on 13 November 2012 in the grade of E-3 and the extracted portion of his contract provided did not show whether or not he 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 advancement in grade or other incentives (such as a bonus).

5.  The applicant acknowledges his breach of contract.  However, his November 2012 enlistment in the USAF serves 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 6 years whereas his ROTC contract would have required only 4 years of active duty).  Therefore, as a matter of equity only, it would be appropriate to consider his enlistment in the USAF to have met the active duty obligation required by his ROTC scholarship contract. 

6.  The prospect of negating the applicant's $39,771.00 debt for a free education he received from the Army without becoming an 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, any Air Force enlistment bonus would be a legitimate factor to consider in granting or denying equitable relief regarding the ROTC debt.

7.  If the applicant fails to complete the period of enlisted service obligated as a result of his ROTC scholarship either voluntarily or because of misconduct, his ROTC debt should be recouped on a pro-rated basis.

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:

	a.  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 USAF enlisted Airman.

	b.  DFAS determine if he has been paid or is due to be paid an Air Force enlistment bonus.  In the event that he has been paid that enlistment bonus or becomes due for payment of that enlistment bonus, that bonus payment should offset an equal portion of his ROTC scholarship debt.

	c.  DFAS reimburse him for any payments he has made to DFAS toward resolving his ROTC debt.  

2.  If he fails to complete the 4-year period of enlisted service obligated as a result of his amended ROTC scholarship contract either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis in accordance with his DA Form 597-3.

3.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  In the event the applicant has received a USAF enlistment bonus, the Board recommends denial of so much of the application that pertains to waiving the entire ROTC debt amount 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)                                         AR20140004667





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ABCMR Record of Proceedings (cont)                                         AR20140004667



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