IN THE CASE OF:	  

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140008358 


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:

The applicant defers his request, statement, and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of his previous request for:

* the applicants’ reinstatement into the Reserve Officers’ Training Corps (ROTC) Program
* cancellation of the recoupment of $135,773.23 in ROTC debt 

2.  Counsel states: 

* he is providing new evidence that was not previously considered
* new evidence demonstrates that the applicant’s chain of command violated his due process rights by depriving him of a fair and impartial disenrollment process 

3.  Counsel provides two letters of support.

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 AR20120008981, on 30 May 2013.
2.  The applicant enlisted in the U.S. Army Reserve as a cadet for a period of 
8 years on 13 November 2007.  In connection with this enlistment, he executed a DA 597-3 (Army Senior ROTC Scholarship Cadet Contract), dated                    13 November 2007, and agreed to receive scholarship benefits for a period of four academic years, including tuition and fees, books, laboratory expenses, and monthly  subsistence, at the University of North Dakota in exchange for appointment as a Reserve of the Army upon successful completion of all academic, military, and other requirements of the Army ROTC program.

3.  On 4 April 2011, the applicant was notified that multiple female cadets had submitted complaints of unwanted sexual advances.  

4.  On 11 April 2011, in a memorandum addressed to the applicant, the Professor of Military Science (PMS) notified him that he was initiating action to disenroll him from the ROTC program based on his undesirable character as demonstrated by his pervasive unwanted sexual comments and advances towards subordinate female cadets within the battalion.  He was further advised of his rights and informed that he would be placed on leave of absence pending disenrollment.  Additionally, he was notified 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 scholarship benefits in the amount of $135,773.23 in lieu of call to active duty in fulfillment of his contractual obligations.  

5.  On 18 April 2011, he acknowledged receipt of the memorandum notifying him of his disenrollment form the ROTC program.  He also acknowledged he understood he could be called to active duty in an enlisted grade of E-1 or be required to repay scholarship benefits of $135,773.23 in lieu of call to active duty in fulfillment of his contractual obligations.  On 4 May 2011, he requested a personal hearing.   He declined expeditious call to active duty.

6.  On 12 May 2011, a board of officers convened and found the applicant:

* received advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $135,733.23 that continued to be a valid debt
* by his own admittance, failed to complete the requirements of a valid ROTC cadet contract by making pervasive, unwanted sexual comments and advances towards subordinate females within the battalion
* displayed moral turpitude through the use of obscene, lewd, lascivious, and indecent language in conversations with subordinates within the battalion
* by his own admittance, did so when not in uniform and stopped when asked, but the fact remains that he did make the comments to subordinate cadets
* by his actions, displayed questionable moral character which disqualified him from enrollment  in the ROTC program and which prohibited him from commissioning in any branch of the U.S. Military 
* conducted disrespectful acts/speech toward female cadets which interfered with the ROTC mission
* admitted to the board that he contributed to the delinquency of a minor and violated North Dakota’s “Special Host” and underage drinking law by providing underage cadets a safe location to consume alcohol, some of which he purchased

7.  The board of officers recommended the applicant

* should not be retained in ROTC as a scholarship cadet
* should not  be retained in ROTC as a non-scholarship cadet
* should be disenrolled in accordance with Army Regulation 145-1(Senior Reserve Officers’ Training Corps Program:  Organization, Administration, and Training), paragraph 3-43(a)(12), 3-43(a)(14)
* should not be released from his contractual obligations
* should not be ordered to active duty in an enlisted status in any military service
* should be ordered to repay his valid debt of $135.773.23  

8.  On 9 December 2011, the applicant was disenrolled from the University of North Dakota ROTC program.  Disenrollment was due to finding that the applicant was in breach of contract based on undesirable character as demonstrated in pervasive, unwanted sexual comments and advances towards subordinate female cadets.

9.  The applicant was provided an addendum to his scholarship contractual agreement with options to be ordered to active duty, repayment of the debt in a lump sum, or repayment in monthly installments.  He was also notified that failure to respond in 14 days of the disenrollment approval would result in the issuance of active duty orders or initiation of involuntary collection action.  He failed to make a choice.

10.  It appears that subsequent to this action, Defense and Accounting Finance Service (DFAS) officials notified the applicant of his scholarship debt in the amount of $135,733.23 with options to make installment payments.


11.  Counsel argues that new evidence demonstrates that the applicant's chain of command violated his due process rights by depriving him of a fair and impartial disenrollment process.

12.  Counsel contends that the applicant’s Brigade Commander at the time spoke to the female cadet accusers in a teleconference to convince them not to back out of their statements/testimony.  He contends the teleconference was necessary because a number of the accusers wanted to recant their stories and they were convinced not to. To ensure that they would not recant, they were given amnesty, regardless of what they said to incriminate themselves.

13.  A memorandum, subject: Letter Recommending Correction of Record and Subsequent Commissioning, [Applicant], dated 24 January 2014, written by Major H_______ states:

* the applicant’s chain of command repeatedly engaged in unlawful command influence to achieve a pre-ordained decision that the applicant was guilty of sexual misconduct and misusing his duty position
* the command influence was pervasive and persistent, and it trampled the applicant’s rights and denied him a fair or just hearing
* he was told:

* the brigade commander at the time spoke to female cadets in a    teleconference to convince them not to back out of their statements/testimony
* this teleconference was necessary as a number of females wanted to recant their statements, but were told they could not back out at that point
* to help ensure they would not recant he gave all the females carte-blanche amnesty regardless of what they said or how it could incriminate them
* the applicant was guilty even before the Captain began his 15-6 investigation
* he was going to have the applicant disenrolled regardless of the findings of the investigation 

* the only sexual harassment training the applicant and his class received was the three classes in the ROTC curriculum; they were not conducted until late spring
* the cadet command knew the cadets did not understand sexual harassment
* the applicant was held to a different standard; he was expected to fully understand something he had not been taught
* he was the applicant’s instructor for three years
* he has seen several relationships between upper and lower ROTC classmates on three different campuses where he has taught  
 
14.  A memorandum, subject: Letter Recommending Correction of Record and Subsequent Commissioning, [Applicant], dated 20 April 2014, written by, Captain (Retired) D______ essentially states, 

* the applicant’s rights were trampled, and he was denied a fair and just trial
* the command climate of University of North Dakota Army ROTC during the time was toxic and resulted in the applicant being guilty until proven guilty
* she was not privy to most of the closed door meetings, but was appointed to assist with the applicant’s trial
* her duties were to ensure the smooth transition of witnesses, have all regulations on hand, and ensure that thorough video and audio recordings were taken
* she later was ordered to transcribe the recordings
* she watched the trial multiple times and she was deeply disturbed
* the applicant was held to a different standard
* she was involved the ROTC program throughout the applicant’s enrollment in the program
* the applicant excelled in academics outside of the ROTC and in the extensive military leadership training in the ROTC program
  
15.  Army Regulation 145-1 prescribes polices and general procedures for administering the Army’s Senior ROTC 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, ROTC Cadet Command.  Nonscholarship and scholarship cadets will be disenrolled for a variety of reasons.

	c.  Paragraph 3-43a(12) states a cadet may be disenrolled due to misconduct, demonstrated by disorderly or disrespectful conduct in the ROTC classroom or during training, or other misconduct that substantially interferes with the ROTC mission, including participation in unlawful demonstrations against the ROTC, illegal interference with rights of other ROTC students, or similar acts.

	d.  Paragraph 3-43a(14) states a cadets may be disenrolled due to an undesirable character demonstrated by cheating on examinations, stealing, unlawful possession, use, distribution, manufacture, sale (including attempts) of any controlled substances, as listed or defined in Title 21, U.S. Code, section 812, discreditable incidents with civil or university authorities, falsifying academic records or any forms of academic dishonesty, failure to pay just debts, or similar acts.  Such acts may also be characterized as misconduct.

16.  Army Regulation 37-104-3 (Financial Administration – Military Pay and Allowances Policy) provides the policies and provisions for entitlements and collections of pay and allowances of military personnel.  Chapter 59, currently in effect, provides for recoupment of educational expenses, e.g., ROTC, U.S. Military Academy, and advanced civilian schooling under a previous agreement when obligated active duty service has not been completed.

DISCUSSION AND CONCLUSIONS:

1.  Applicant's counsel did not provide sufficient evidence to substantiate his assertion that the investigation leading the applicant's disenrollment from ROTC was not legally sufficient and that the applicant was denied due process.  

2.  The applicant was accepted into an Army ROTC scholarship program.  He failed to complete the requirements of the contract based on his misconduct towards subordinate female cadets within the battalion which constituted a breach of contract.   

3.  He was advised of his rights and elected a personal hearing before a board of officers.  He declined expeditious call to active duty that would have ordered him to active duty in lieu of paying his debt.  A board of officers convened and found him to be in breach of his contract due to misconduct.  He had an opportunity to present all matters in his defense and his issues were addressed.  In addition, it appears the applicant admitted to the board that he contributed to the delinquency of a minor and violated North Dakota’s “Special Host” and underage drinking laws.

4.  The statements submitted by counsel were considered, but there is insufficient evidence to show that the applicant was not afforded due process or that he was unjustly disenrolled from the ROTC program.

5.  The applicant entered into a valid Army ROTC Cadet Contract.   He received advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $135,773.23 that constitutes a valid debt to the U.S. Government.  Accordingly, the applicant is not entitled to his requested relief.

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)                                         AR20140008358



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ABCMR Record of Proceedings (cont)                                         AR20140008358



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