BOARD DATE:   6 March 2015

		DOCKET NUMBER:  AR20140010833 


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 he be commissioned as a second lieutenant (2LT)/O-1 and placed on active duty in lieu of repaying all scholarship monies.  He also requests all documentation relating to his civilian criminal case be removed from his military record.

2.  The applicant states that:

	a.  The 34th District Court, El Paso County, Texas, found that case number 2011C94781 was dismissed and met the qualification for expunction in that he was found not guilty of all charges.  The expunction order states that all files on him concerning the arrest on 19 May 2011, in El Paso, Texas, are expunged.  Therefore, all documents, records and files, including the order itself, once reviewed must be destroyed or returned to the Clerk of the Court.

	b.  He has been committed since high school to pursuing a career in the Army and would like to honor that commitment.  

3.  The applicant provides:

* his letter requesting re-enrollment in the Reserve Officer Training Corps (ROTC) Program and commission as a 2LT 
* DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), dated 
1 October 2007
* his University of Tampa Permanent Academic Record
* letter of support from Captain (CPT) J____ B. S____
* DD Form 785 (Record of Disenrollment from Officer Candidate-Type Training)
* Order of Expunction, 34th District Court, El Paso County, Texas

CONSIDERATION OF EVIDENCE:

1.  A DA Form 597-3, dated 1 October 2007, shows the applicant entered into a contract with the Amy for a four year ROTC scholarship at the University of Tampa, Tampa, Florida.  The applicant indicated he understood that he would incur an active duty service obligation in return for the financial assistance provided in the contract.  He also agreed that, after completion of all the requirements for appointment, he would accept appointment as a commissioned officer in the U.S Army Reserve (USAR) or the Army National Guard of the United States (ARNGUS).  He further agreed that if he was disenrolled from the ROTC Program for breach of contractual terms or any other disenrollment criteria he would serve on enlisted active duty, if ordered and qualified, or if he was offered the opportunity to repay the advanced educational assistance in lieu of being ordered to active duty he would reimburse the Army the amount required.

2.  A DD Form 785, dated 13 March 2012, shows the applicant was disenrolled from ROTC.  Section III (Reasons and Circumstances for Disenrollment) states:
"Under the provisions of Army Regulation 145-1, Senior Reserve Officers' Training Corps Program:  Organization, Administration and Training, paragraph 3-43a(15), July 1996, Disenrollment is due to undesirable character as demonstrated by his arrest for possession of a controlled substance marijuana.  Cadet is discharged with service uncharacterized in accordance with AR 
135-178, Enlisted Administrative Separations, paragraph 5-6d, March 2007."

3.  The Commanding General, U.S. Army Cadet Command and Fort Knox, Kentucky, notified the applicant that he was disenrolled from the ROTC Program based on his undesirable character as demonstrated by his recent arrest for unlawful possession of a controlled substance, marijuana.  (On 19 May 2011, in El Paso, Texas, the applicant was arrested by a Public Security Officer and charged with possession of marijuana.)  The applicant was informed that a total of $92,959.00 was spent in support of his education, as the ROTC contract had been breached he had to repay that amount.  Instructions on repayment elections were provided.  He was informed that if he chose to appeal/dispute the amount of validity of the debt he needed to submit an explanation for the basis of the appeal, with supporting documentation within fourteen days of the receipt of the disenrollment memorandum.  There is no available record of his response to the disenrollment memorandum.

4.  Orders 12-03-2, Headquarters, 6th Brigade, U.S. Army Cadet Command Spartan Battalion, dated 13 March 2012, shows the applicant was discharged from the USAR (Control Group ROTC).

5.  In his letter of support, CPT S____, related that he was a former Assistant Professor of Military Science at the University of Tampa from 2008 to 2011.

	a.  He chose the applicant to be his right hand man during their Brigade's Capstone Field Training exercise.  The applicant routinely handled a myriad of tasks with brilliant results; a performance not expected from a Cadet. 

	b.  CPT S____ states that he in no way condones the applicant's actions, is significantly disappointed in him, and has verbally counseled him several times in hopes of preventing another such occurrence.  He knows the applicant is extremely disappointed in himself, and carries with him severely damaged pride. 

	c.  As a young Cadet, CPT S____ too made mistakes, was reprimanded by his superior officers, and was fortunate to be allowed to remain in the Army, to later redeem himself.  He believes the applicant's conduct in this matter stemmed from a temporary poor lack of judgment.  His actions are in no way typical, they are actions most certainly attributed to a college kid's immaturity and way of thinking.  

	d.  The applicant was merely a Cadet when this mishap occurred and although it is a very poor excuse, he was not yet a commissioned officer, had not completed the officer basic course, and his actions were not in uniform, or in the presence of subordinates.

	e.  The applicant has always exhibited self-discipline and mature judgment; well beyond his years.  CPT S____ has recommended disenrollment for numerous Cadets; mainly because they did not possess what it takes.  In the applicant's case he would not recommend disenrollment, as he believes the applicant has what it takes, and except for a singular unfortunate lack of judgment, has certainly proven his worth to the U.S. Armed Forces. 

6.  29 July 2012, email from the Defense Finance and Accounting Service (DFASS) related the applicant debt total is $92,959.00 plus interest, penalty, and admin fees.

7.  The Order of Expunction, 34th District Court, El Paso, County Texas, states that the applicant is entitled to have all records concerning the charges arising out of arrest by the Department of Public Safety expunged.  

8.  Title 10, U.S. Code, section 2005, provides the law on reimbursement requirements for educational assistance from the Armed Forces.  It provides that the Secretary concerned may require any person provided advanced education assistance to reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided.  It also provides that any amount owed by such person to the United States under such agreement shall bear interest at the rate equal to the highest rate being paid by the United States on the day on which the reimbursement is determined to be due and shall accrue from the day on which the member is first notified of the amount due.

9.  Army Regulation 145-1 provides the policy for operation of the ROTC program.  It provides for the termination of scholarships and disenrollment by the Commander of the ROTC Cadet Command.  The scholarship will be terminated and the cadet disenrolled for inaptitude for military service, an indifferent attitude, or lack of interest in military training.  It also provides for disenrollment based on breach of contract, which is any act on the part of a student that breaches the terms of the contract, whether done with specific intent or not.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that he was accepted into an Army ROTC scholarship program and he agreed that if he was disenrolled from the program for any reason he could be ordered to reimburse the United States the dollar amount plus interest.

2.  He was disenrolled from the ROTC Program based on his undesirable character as demonstrated by his arrest for the unlawful possession of marijuana.

3.  The Commanding General, Cadet Command, made the decision that the applicant would be disenrolled and discharged from the ROTC Program based on the evidence available at the time.  There is no evidence of error or injustice in this decision. 

4.  While the 34th District Court issued an Order of Expunction, the basis for that order is not available.  Based on the available records, it cannot be determined if the decision to disenroll the applicant from the ROTC Program was based on information that was later determined to be erroneous.

5.  The evidence the applicant provided has been reviewed, but is insufficient to support his contention that his records should be commissioned as a 2LT and placed on active duty in lieu of paying all scholarship monies.

6.  In view of the above his request should be denied.  

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)                                         AR20110003589



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ABCMR Record of Proceedings (cont)                                         AR20140010833



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