IN THE CASE OF:	   

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140009169 


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 a waiver of his Reserve Officers' Training Corps (ROTC) scholarship debt and termination of recoupment of $49,147.00 in educational expenses paid on his behalf during his participation in the ROTC Program based on his date of enlistment in the U.S. Army.

2.  The applicant states:

* the Defense Finance and Accounting Service (DFAS) debt he incurred to offset his 2-year ROTC scholarship tuition award should have been satisfied by his subsequent active duty service
* he enlisted in the Army and served honorably for over 3 years
* he deployed in support of Operation Enduring Freedom and received both the Army Commendation Medal (ARCOM) and the Combat Infantryman Badge (CIB)
* he was advised he needed to fulfill his enlistment contract before petitioning for remission of his debt

3.  The applicant provides:

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 638 (Recommendation for Award)
* ARCOM Certificate
* 198th Infantry Brigade, U.S. Army Infantry School Diploma
* DA Form 1307 (Individual Jump Record)
* DFAS letter of indebtedness, dated 21 April 2014
* DFAS Account Statement

CONSIDERATION OF EVIDENCE:

1.  The applicant's DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) is not in his available records for review, but records reflect and the applicant contends he received a 2-year ROTC scholarship while attending Marquette University and enrolled in the ROTC Program.

2.  Paragraph 5 (Terms of Disenrollment) of a standard 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 a standard DA Form 597-3 states that if the cadet 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.  According to an advisory opinion provided by Headquarters, U.S. Army Cadet Command and Fort Knox, dated 18 November 2014, the applicant was disenrolled from the ROTC Program at Marquette University as the result of his involvement in an incident that eventually led to his dismissal from the school and a civil conviction.

5.  The applicant was presumably properly notified of initiation of disenrollment action from the ROTC Program based on the breach of his contract, informed of his rights during the disenrollment process, and advised that if his disenrollment were 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 ($49,147.00) in lieu of call to active duty in fulfillment of his contractual obligations.  This notification document is neither in his available records nor has it been provided by the applicant.

6.  The 18 November 2014 advisory opinion provided by Headquarters, U.S. Army Cadet Command and Fort Knox, confirms that at the time of his disenrollment, the applicant requested active duty service as repayment of the educational assistance he received, but he was not granted a waiver for his civil conviction in order to enlist.  Therefore, he was ordered to repay the full amount of scholarship money that was expended on his behalf.

7.  Despite the previous denial of a waiver for enlistment at the time of his disenrollment from the ROTC Program, his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he enlisted in the U.S. Army Reserve Delayed Entry/Enlistment Program for a period of 8 years beginning in pay grade E-1 on 26 June 2008 consisting of 3 years and 19 weeks of active duty service in the Regular Army and 4 years and 33 weeks of U.S. Army Reserve service.

8.  His DA Form 3286 (Annex A – Statement for Enlistment – U.S. Army Enlistment Program – U.S. Army Delayed Enlistment Program), dated 10 June 2008, shows he contracted for a cash enlistment incentive in the amount of $19,000.00.

9.  His DD Form 4 further shows he was discharged from the U.S. Army Reserve Delayed Entry/Enlistment Program and he enlisted in the Regular Army for a period of 3 years beginning in pay grade E-2 on 26 June 2008.

10.  The applicant's DD Form 214 shows he entered active duty on 26 June 2008 and he was honorably discharged on 5 November 2011 after completing 3 years, 4 months, and 10 days of active service.

11.  His DD Form 214 also shows the applicant deployed to Afghanistan in support of Operation Enduring Freedom from 15 April 2009 through 1 March 2010 and he was awarded or authorized the:

* Army Commendation Medal
* Valorous Unit Award
* National Defense Service Medal
* Afghanistan Campaign Medal with two campaign stars
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* North Atlantic Treaty Organization Medal
* Combat Infantryman Badge
* Parachutist Badge

12.  The applicant's Master Military Pay Account (MMPA) maintained by DFAS reflects he received the final installment of his cash enlistment incentive on 
20 November 2010.
13.  DFAS records further reflect the applicant has indebtedness in the principal amount of $49,147.00 for the recoupment of educational assistance paid on his behalf during his participation in the ROTC Program.  The principal balance of $49,147.00 plus the administrative fees of $16,813.39 result in a new account balance of $65,960.39 as of 21 April 2014.

14.  Per the 18 November 2014 advisory opinion from Headquarters, U.S. Army Cadet Command and Fort Knox, that command is satisfied that the applicant has met his contractual obligation and recommended forgiveness of his scholarship debt based on the length and character of his active duty service.

15.  Title 10, U.S. Code, section 2005(a)(3), states the Secretary concerned may require, as a condition to the Secretary providing advanced educational 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 unserved portion of active duty bears to the total period of active duty such person agreed to serve.

16.  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.  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.  The evidence of record confirms the applicant was accepted into an Army ROTC Scholarship Program and later failed to satisfy the contractual requirements of the program, resulting in his disenrollment which constituted a breach of contract.

2.  At the time of disenrollment, he requested active duty service as repayment for the educational assistance he received.  However, he was not granted an enlistment waiver for his civil conviction.

3.  Despite not initially receiving an enlistment waiver, the applicant was subsequently able to enlist in the U.S. Army Reserve Delayed Entry/Enlistment Program for a period of 8 years beginning in pay grade E-1 on 10 June 2008.  He then enlisted in the Regular Army on 26 June 2008 beginning in pay grade E-2 and he completed 3 years, 4 months, and 10 days of active duty service.  The remaining 4 years and 33 weeks of his 8-year obligation is currently being served in U.S. Army Reserve Control Group (Reinforcement).

4.  The applicant's enlistment document shows he contracted for a cash enlistment incentive in the amount of $19,000.00 and his MMPA shows he received the cash incentive.

5.  In the event of a breach of contract, the applicant's ROTC contract called for an expeditious call to active duty through U.S. Army Cadet Command channels based on the needs of the Army without the benefit of advancement in grade or other incentives (i.e., bonus).

6.  The applicant's 26 June 2008 enlistment serves the same purpose as if he had been ordered to active duty at the time of his disenrollment from the ROTC Program.  His record of enlisted time reflects faithful service, to include deployment to Afghanistan and receipt of numerous awards.  Therefore, as a matter of equity, it would be appropriate to consider his enlistment and subsequent service to have met the active duty obligation required by his ROTC scholarship contract.

7.  Nonetheless, the prospect of negating the applicant's $65,960.39 debt for the free education he received from the Army without becoming a commissioned officer and allowing him to receive an enlistment bonus to which he ordinarily would not have been entitled would constitute a windfall.  Therefore, it would be appropriate to remit his ROTC debt by amending his ROTC scholarship contract to show he would satisfy his ROTC debt, minus the amount equivalent to the $19,000.00 enlistment bonus he received, under the original terms of the ROTC contract by his successful completion of his 3-year and 4-month enlistment in the Regular Army.


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 all Department of the Army records of the individual concerned be corrected by amending his ROTC scholarship contract to show he would satisfy the portion of the $65,960.39 ROTC debt minus the $19,000.00 cash enlistment bonus under the original terms of the ROTC contact by successfully completing his 3-year and 4-month enlistment in the Regular Army.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  The Board recommends denial of so much of the application that pertains to waiving the entire ROTC debt amount.



      ____________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)                                         AR20140009169



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140009169



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1