BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140005276 


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 active duty service from 5 April 2008 to 14 March 2013 be accepted in lieu of his Reserve Officers' Training Corps (ROTC) scholarship debt.

2.  The applicant states his orders to active duty show an active duty commitment of 36 months.  Initially he did not meet this commitment; however, the orders did not state the obligation had to be met by a particular date.  He reenlisted in 2008 and left active duty in 2013.  

3.  The applicant provides:

* Headquarters, U.S. Army Cadet Command, Fort Monroe, VA Orders 
175-1, dated 23 June 2000
* a letter, dated 23 January 2014, from the Defense Finance and Accounting Service (DFAS)
* email, dated 7 March 2014 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 26 August 1996, he enlisted in the U.S. Army Reserve (USAR) for 8 years for military occupational specialty 51B (Carpentry and Masonry Specialist) and an enlistment bonus of $3,000.

3.  The date he entered the ROTC Scholarship Program is not shown in his official military personnel file (OMPF).  The date of his disenrollment from ROTC is not shown in his OMPF.

4.  Headquarters, U.S. Army Cadet Command Orders 175-1, dated 23 June 2000, ordered the applicant to active duty for a period of 36 months.  His reporting date was 23 August 2000.  The orders contain the statement "RECOUPMENT of SCHOLARSHIP FINANCIAL ASSISTANCE RECEIVED ($28,861.00) APPLIES IF THIS SERVICE OBLIGATION IS NOT FULFILLED, WHICH INCLUDES FAILURE TO MEET THE PHYSICAL STANDARDS FOR ACCESSION."

5.  On 20 September 2000, he was discharged by reason of failing to meet procurement medical fitness standards.  He completed 27 days of active service.

6.  On 9 April 2008, he enlisted in the Regular Army for 3 years for MOS 09S (Commissioned Officer Candidate) and the U.S. Army Loan Repayment Program (LRP).  The amount of the loans for the LRP is not shown on his application for enlistment.  On 10 September 2008, he was discharged to accept a commission in the Army.  He completed 5 months and 2 days of active service.

7.  On 11 September 2008, he was commissioned a second lieutenant in the Regular Army.  On 14 March 2013, he was released from active duty in the grade of captain and transferred to a troop program unit.  He completed 4 years, 
6 months, and 4 days of active service that was characterized as honorable.

8.  A letter, dated 23 January 2014, from DFAS informed the applicant a debt in the amount of $29,138.78 remained valid.

	a.  A debt of $79.92 was due to recoupment of ROTC subsistence allowance paid to him for 19 May 2000.

	b.  A debt of $28,738.86 was due to repayment of tuition assistance he received prior to his separation.  The original amount was dated 20 September 2000.

9.  Email, dated 7 March 2014, informed the applicant that because the debt was so old his only recourse for relief was to file an appeal to the ABCMR.

10.  Army Regulation 145-1 (Senor ROTC Program: Organization, Administration, and Training) 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.  

11.  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.

12.  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.

13.  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.  Headquarters, U.S. Army Cadet Command Orders 175-1, dated 23 June 2000, showed his active duty obligation for the scholarship financial assistance he received was 36 months.  He was later commissioned in the Regular Army and served 4 years, 6 months, and 4 days of honorable active service.

2.  The record shows that as a result of the applicant’s subsequent 4 years, 
6 months, and 4 days of active service, the Army is receiving the same military service benefit it would have gained had the applicant reported for active duty as a result of breaching his ROTC contract. 

3.  In view of the facts of this case, it is appropriate to correct the record to show that he has satisfied his ROTC debt by remitting his $29,138.78 ROTC debt.  

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 the Department of the Army records of the individual concerned be corrected by amending his ROTC scholarship contract to show that he satisfied his ROTC scholarship debt of $29,138.78 under the original terms of the ROTC contract by successfully completing 4 years, 6 months, and 4 days in the Regular Army.


      _______ _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)                                         AR20140005276



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ABCMR Record of Proceedings (cont)                                         AR20140005276



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