IN THE CASE OF:	  

		BOARD DATE:	  18 June 2014

		DOCKET NUMBER:  AR20140006141 


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 cancellation of his Reserve Officers' Training Corps (ROTC) Scholarship Program debt.

2.  The applicant states he was disenrolled from ROTC because of his domestic arrest; however, the charges were dismissed.  He requested to appear before a board of officers to plead his case.  Upon completion of the board hearing, the investigating officer (IO), Major Mxxxxxx Bxxxx, concurred that he should be retained as a scholarship cadet.  His Professor of Military Science (PMS) still discharged him.  His waiver for exception pertaining to his domestic arrest was approved and he is currently serving on active duty in the Army.

3.  The applicant provides copies of the following:

* U.S. Army Advanced Education Financial Assistance Record
* Letter from the Assistant Jackson County Attorney
* DA Form 1574 (Report of Proceedings by IO/Board of Officers)
* Memorandum for Record (MFR)
* Disenrollment from the U.S. Army ROTC Program memorandum
* Addendum to Part I Scholarship Contractual Agreement
* DD Form 1966 (Record of Military Processing – Armed Forces of the United States)




CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve, ROTC Program, as a cadet, on 12 November 2008.  On the same day, he executed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract).  Although not available for review with this case, a standard DA Form 597-3 would have shown in: 

	a.  Paragraph 5 (Terms of Disenrollment) that if the cadet was 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; and 

	b.  Paragraph 6 (Enlisted Active Duty Service Obligation) that if he was 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.

2.  On 30 January 2011, he was arrested by the Jackson County Sherriff, Iowa, and issued a Police Citation and Complaint for the civilian charge of domestic assault.  He pled not guilty and he was released on his promise to appear in court. 

3.  On 16 February 2011, the applicant was offered a deferred judgment by the Jackson County Attorney to complete the 24-week Batterer's Education Program which he completed on 19 September 2011.  His case was dismissed by the Jackson County Attorney.  

4.  On 28 September 2011, a Cadet Command Form 131-R (Cadet Action Request) was initiated by the applicant wherein he requested a civil conviction waiver to stay in the ROTC Program. 

5.  On 6 October 2011, by memorandum, the applicant's PMS, University of Northern Iowa, stated that he did not support the applicant's civil waiver request as the applicant had been arrested for domestic assault on 30 January 2011.  The applicant was pending disenrollment from the ROTC since his arrest.

6.  On 20 October 2011, the applicant's senior commander recommended disapproval of the civil conviction waiver for domestic assault.  
7.  On 8 February 2012, the Commanding General (CG), Headquarters, U.S. Army Cadet Command (USACC) disapproved the applicant's request.  He ordered that the applicant's continued participation in the ROTC program was not in the best interest of the Army. 

8.  On an unknown date in 2012, his PMS notified him by memorandum of the initiation of disenrollment action from ROTC and placement on leave of absence based on a condition that bars his appointment as a commissioned officer (failure to obtain a civil conviction waiver for domestic violence).  He was advised of his rights to request a hearing.  He was 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 be required to repay scholarship benefits in the amount of $66,010.00 in lieu of a call to active duty.  The PMS further advised him that the final decision was with the Commander, USACC.

9.  The applicant acknowledged receipt of the notification.  He elected consideration of his case by a board of officers.  He provides an Addendum to Part I Scholarship Contractual Agreement that advised him that his election of the repayment option and his subsequent enlistment in any branch of the Armed Forces would not relieve him from that repayment obligation.  This document is void of the applicant's signature indicating his promise to repay the total amount owed.  

10.  On 29 May 2012, a board of officers convened to consider the applicant's domestic arrest.  The board stated that the applicant and his attorney initially requested a trial, but before the case went to pre-trial conference, the victim made an offer to dismiss as long as the applicant completed the Batterers Education Program.  The board found that the applicant acted in an appropriate manner under the circumstances and prevented a minor issue from turning into a major catastrophe.  The board recommended the applicant be retained in the ROTC as a scholarship cadet, he not be disenrolled or released from his contractual obligation, or be ordered to active duty in an enlisted status to repay the debt comprised of advanced education assistance.

11.  On 4 September 2012, by memorandum, the PMS disagreed with the IO's findings and recommendations, dated 29 May 2012.

12.  The appointing authority (3rd Brigade Command, USACC, Great Lakes, IL), disapproved the findings and recommendations of the board. 

13.  On 13 December 2012, the CG, USACC directed the applicant's discharge from the ROTC program under the provisions of Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph             3-43a(11), due to a fact or condition that bars the cadet's appointment as a commissioned officer and the failure to obtain a waiver for Domestic Violence.  The memorandum also requested the return of the completed disenrollment action for a final decision.

14.  On 5 March 2013, the PMS notified the applicant of his disenrollment from the U.S. Army ROTC Program and discharge from the ROTC Program under the provisions of Army Regulation 145-1.  The applicant was further informed that as a scholarship cadet he could be called to active duty in an enlisted rank/grade of PV1/E-1 or be required to repay scholarship benefits in lieu of a call to active duty.  The PMS further advised him that the final decision was with the Commander, USACC.

15.  On an unknown date, it appears the applicant acknowledged receipt of the disenrollment memorandum and declined a call to active duty within 60 days after completion of his current projected graduation withdrawal/dismissal from school, whichever comes first, and he declined expeditious call to active duty.

16.  He enlisted in the Regular Army, in pay grade E-4, on 18 November 2013, with an approved waiver of his dismissed domestic assault.

17.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program.  Paragraph 3-39 states the CG, USACC is the approving authority for termination of scholarship and/or disenrollment.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract.  Sub-paragraph 3-43a(11) states a breach of contract occurs if it is discovered that a fact or condition exists that will bar a cadet for appointment as a commissioned officer.  

18.  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.


19.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was accepted into an Army ROTC Scholarship Program.  He fully understood and accepted the terms of his enrollment.  However, during his time, he was arrested for domestic assault.  The charge was subsequently dismissed.  

2.  He acknowledged the proposed disenrollment action and requested a hearing before a board of officers.  This board recommended he be retained in the ROTC program as a scholarship cadet or be ordered to active duty in an enlisted status to repay the debt.  His PMS disagreed with the findings and recommendations of this board.  While he may not have been convicted, it appears the PMS concluded the applicant's exhibited personal behavior was not becoming of an officer or student and led to his disenrollment.

3.  He contends, in effect, his current enlistment in the RA with an approved waiver of the domestic arrest should cancel the debt.  However, there is no evidence he elected or declined an expeditious call to active duty that would have ordered him to active duty in lieu of paying his debt at the time of his disenrollment.  There is also no evidence and he did not provide sufficient evidence showing he was erroneously disenrolled from the ROTC Program.  

4.  Cancelling his debt, in effect, providing him a free education without having to become an officer, would be a windfall.  Since his disenrollment from the ROTC Program was due to his failure to maintain appropriate standards of behavior, it would not be appropriate to grant the requested relief in this case as he voluntarily breached the terms of his contract.




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 for correction of the records of the individual concerned.



      _______ _   _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)                                         AR20140006141





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ABCMR Record of Proceedings (cont)                                         AR20140006141



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