IN THE CASE OF:	  

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140011795 


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 forgiveness of her Reserve Officers' Training Corps (ROTC) scholarship debt in the amount of $34,319.00.

2.  The applicant states an ROTC debt was established on 26 April 2012.  She left the ROTC program to support her deploying unit as a full-time active duty Soldier on rear support for 18 months.  At the time, she was told she would not have to pay back the debt by her ROTC commander if she went on active duty and was later commissioned through another source.  Since that time, she has finished her degree, graduated from college, graduated from Officer Candidate School (OCS), and was commissioned as a second lieutenant in the Pennsylvania Army National Guard (PAARNG).  She paid for the remainder of her degree with financial aid and loans and has remained a member of the same unit since she was in the ROTC.

	a.  Her military pay has been reduced so much that she has not been able to support herself and she has accrued massive credit card debt.  This debt is causing an incredible hardship because she is working full-time for the military and receiving less than half pay. 

	b.  She requested assistance from the Army Board for Correction of Military Records (ABCMR) before.  The ABCMR closed her case and stated that the debt could not be found; therefore, she should not be paying a debt.  Nevertheless, the money has continued to be deducted on a monthly basis since 2012.  The reason why the Defense Finance and Accounting Service (DFAS) could not find the debt was because it had been erroneously sent to the "out of service" debt department for collection.  This was an error because she never left the military.  The debt was then transferred back to the State U.S. Property and Fiscal Office (USPFO) and continues to be deducted from her monthly pay.  She has been working with the finance office and education officer who cannot reverse the debt without the ABCMR granting her request for relief.  

	c.  According to her ROTC contract, she would have incurred an obligation for her commissioning until 4 February 2017.  She has been in the Army since       23 July 2003, and with her current source of commissioning her current contractual obligation is until 13 February 2016, plus another two years for attending additional military schools which will take her out to 13 February 2018.  This last date is well past her ROTC contractual obligation.  This proves her commitment to the military is more than temporary since she currently has        11 years of service and by the time her current obligation is over she will have served 15 years.

3.  The applicant provides:  

* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 23 July 2008
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 4 February 2009
* Orders Number 034-01, issued by the Northeastern Pennsylvania Army ROTC, University of Scranton on 4 February 2009
* Cadet Command (CC) Form 203-R (Guaranteed Reserve Forces Duty (GRFD) Scholarship Cadet Contract Endorsement), dated 4 February 2009
* Amendment Orders Number 350-140, issued by the PAARNG on           16 December 2011
* two DFAS letters and account statements, dated 26 April 2012 and 
29 May 2012
* National Guard Bureau (NGB) From 337 (Oaths of Office, dated 
14 September 2013
* DA Form 71 (Oath of Office – Military Personnel), dated 14 September 2013
* DA Form 1059 (Service School Academic Evaluation Report), dated 
12 February 2014
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending on 14 February 2014
* Orders Number 059-080, issued by the PAARNG on 28 February 2014
* Application for Marriage License/Marriage License, dated 28 March 2014
* DA Form 4187 (Personnel Action), dated 1 April 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.  After previous enlisted service, the applicant enlisted as an ROTC cadet on   4 February 2009.  Her enlistment packet included the following documents:

	a.  Orders Number 034-01, issued by the by the Northeastern Pennsylvania Army ROTC, University of Scranton on 4 February 2009, which released her from the U.S. Army Reserve (USAR) Control Group (ROTC), effective 4 February 2009, because she was selected for the Simultaneous Membership Program (SMP) and assigned to Headquarters and Headquarters Company (HHC), 55th Special Troops Battalion, 28th Infantry Division (Mechanized).

	b.  A CC Form 203-R, dated 4 February 2009, which shows she had been awarded the GRFD scholarship and agreed to participate in the ROTC/SMP.  This contract states the Secretary of the Army agreed that under present circumstances her service on active duty would not be required upon completion of her degree requirements and successful completion of the Senior ROTC (SROTC).  She would instead serve an initial period of active duty for training (ADT) and remain a satisfactory participant in the Reserve Component (RC) for the period specified in Part I of her ROTC Cadet Contract.

	c.  DA Form 597-3 (Army SROTC Scholarship Cadet Contract), dated 
4 February 2009, wherein she agreed to receive scholarship benefits for a period of 2.5 academic years, including tuition and fees, books, laboratory expenses, and monthly subsistence, at the University of Scranton, Pennsylvania, in exchange for appointment as a Reserve commissioned officer upon successful completion of all academic, military, and other requirements of the Army ROTC Program.

		(1)  Paragraph 2b (General Cadet Agreement – Enrollment Agreement) of her DA Form 597-3 states, in effect, that she agreed to enroll in the necessary courses and successfully complete, within the prescribed time, the requirements for her degree.  She further agreed to remain enrolled in and successfully complete the ROTC Program, including all leadership and training requirements as prescribed by the Secretary of the Army as a prerequisite for commissioning.

		(2)  Paragraph 2c (General Cadet Agreement – Full-Time Student Agreement) of her DA Form 597-3 states, in effect, that she agreed to remain a full-time student in good standing at her educational institution, until she completed her degree. 
 
		(3)  Paragraph 5 (Terms of Disenrollment) of her DA Form 597-3 states, in effect, that she understood and agreed that once she became obligated and was disenrolled from the ROTC Program for breach of her contractual terms or any other disenrollment criteria:

			(a)  She agreed to serve on enlisted active duty, for a period of not more than 4 years, if she failed to complete the ROTC program.

			(b)  She agreed to reimburse the U.S. Government the cost of her advanced education assistance provided if she was offered the opportunity to repay her advanced educational assistance in lieu of being ordered to active duty.  She acknowledged that if she was disenrolled from the ROTC Program for any reason, the Secretary of the Army could order her to reimburse the United States for the cost of her advanced education assistance provided.

			(c)  She understood and agreed that if she voluntarily, or because of misconduct, failed to begin or complete any period of active duty or Reserve service incurred under this contract, whether as an officer or enlisted Soldier, she would be required to reimburse the U.S. an amount of money, plus interest, equal to or bearing the same ratio to the total cost of the financial assistance provided to her by the U.S. as the unserved portion of such duty bears to the total period of such duty she was obligated to serve.

			(d)  She understood and agreed that any obligation she incurred to reimburse the U.S. would not be altered by subsequent enlisted duty.  She acknowledged that if he was disenrolled from ROTC, the Secretary of the Army, or his designee, retained the prerogative to either order her to active duty or order her to repay the cost of her scholarship benefits.

		(4)  Paragraph 6 (Enlisted Active Duty Service Obligation) of her DA Form 597-3 stated that if she were called to active duty for breach of contract under the provisions of paragraph 5, she would be ordered to active duty for 2 years if the breach occurred during Military Science (MS) II, for 3 years if the breach occurred during MS III, or for 4 years if the breach occurred during MS IV.

3.  The complete circumstances surrounding her disenrollment from the ROTC/SMP is unknown, as her records do not contain and she has not provided any documentation from her commanders at the time, her Professor of Military Science or the Commanding General, U.S. Army Cadet Command.

4.  Her record is void of documentation that shows she was approved for a leave of absence by any member of her ROTC chain of command, including the Commanding General, U.S. Army Cadet Command.  

5.  Orders Number 098-097, issued by the PAARNG on 8 April 2011, show she was voluntarily ordered to ADT as an individual and not as a member of a mobilizing unit, for the period of 11 April 2011 to 18 February 2012, for home-station support of Oversea Contingency Operation Active Guard Reserve (AGR) Augmentation.

6.  Orders 350-140, issued by the PAARNG on 16 December 2011, amended Orders Number 098-097 to change the end date of her active duty period from  18 February 2012 to 15 October 2012.

7.  Her record contains her academic transcript from the University of Scranton, dated 4 November 2014, which indicates she took a leave of absence from her studies beginning with the Spring 2011 semester, which coincides with her period of active duty that began on 11 April 2011.  

	a.  Her transcript shows she completed 6 credit hours of study during the Intersession 2011 semester and 6 credit hours during the Spring 2012 semester. 

	b.  She returned to full-time attendance during the Fall 2012 semester; however, it does not appear that she returned to the ROTC Program.

8.  Her record contains a DD Form 214, for the period ending on 15 October 2012, which shows she completed 1 year, 6 months, and 5 days of net active service and was honorably released from active duty upon completing her ADT.

9.  On 26 May 2013, she was awarded her Bachelor of Science degree.

10.  On 2 August 2013, she completed the ARNG Officer Candidate School (OCS) at Fort McClellan, Alabama.

11.  On 14 September 2013, she was appointed as a second lieutenant in the PAARNG.

12.  Her record contains a DA Form 1059, dated 12 February 2014, which shows she exceeded the course standards during her attendance at the Basic Officer Leader Course.

13.  She provided two letters and account statements from DFAS, dated 26 April 2012 and 29 May 2012, which show as of 29 May 2012 she owed DFAS a total amount of $34,349.57 for her ROTC scholarship debt.  This amount included accrued interest.

14.  Her record contains a series of email transmission between the PAARNG Education and Incentives Branch Manager and DFAS, Out of Service Debt Department, dated 21-26 June 2012.
	
	a.  The emails show the PAARNG Education and Incentives Branch Manager stated the applicant had been dropped from the ROTC Program to deploy with her unit and was still on her 4 February 2009 enlistment contract until 2015.  He further stated there was another department within DFAS that had been handling the total absolution of the applicant's debt to then forward to DFAS Out of Service Debt Department to issue debt cancellation notices.

	b.  He requested that DFAS put her debt on hold until those notices had been received and requested that he be contacted immediately if the documentation he provided (not available) was not sufficient to absolve her debt for time in service in lieu of payment.

15.  Her record contains an advisory opinion, issued by the Office of the Deputy Chief of Staff, G-1, Incentives and Budget Branch, on 15 January 2013.  The advisory official stated that the applicant had requested her debt be removed from her records as a result of a DFAS entry that appeared on her credit report concerning an ROTC scholarship debt from 2011.  An inquiry with DFAS, Debt Management Branch, shows the applicant owed no debt pertaining to any ROTC scholarship related reasons.  The G-1 recommended the applicant be granted relief to the extent that the Board issue the applicant a letter saying she owed no debt related to her ROTC scholarship.

16.  On 7 May 2013, the ABCMR sent the applicant a letter informing her no action would be taken by the Board in her case, ABCMR Docket Number AR20120019164.  This letter relayed the information provided in the G-1's advisory opinion and stated there was no effective relief available as DFAS records indicate she owed no debt for her ROTC scholarship.
17.  Title 10, U.S. Code, section 2005(a)(3), 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 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 un-served portion of active duty bears to the total period of active duty such person agreed to serve.

18.  Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program: Organization, Administration, and Training) prescribes policies and general procedures for administering the Army's Senior ROTC Program.

	a.  Paragraph 1–16 (Special Reserve Officers’ Training Corps programs) states Simultaneous Membership Program (SMP) participants are cadets who are assigned to the ARNG and U.S. Army Reserve (USAR) units.  They do not mobilize with their units under full or partial mobilization.

	b.  Paragraph 3–43 (Disenrollment) states a scholarship cadet may be disenrolled only by the Commanding General, U.S. Army Cadet Command. Disenrollment authority does not include the discharge authority for SMP participants.  Scholarship cadets will be disenrolled because of withdrawal or dismissal from the academic institution and if breach of contract (including formerly used term willful evasion) is involved.  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 breached the contract.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was accepted into an Army ROTC/SMP scholarship program on 4 February 2009.  By her own admission and confirmed by the evidence of record, she voluntarily left her full-time studies during the Spring 2011 semester and committed to an 18-month period of active duty home-station support with the rear element of her deployed ARNG unit.  

2.  ROTC/SMP cadets do not deploy with their units; therefore, if she accepted a tour of active duty home-station support, she did so voluntarily.  In doing so, she did not continue her participation in the ROTC Program, in violation of her ROTC contract and SMP agreement.  

3.  It appears she breached her ROTC contract, since there is no evidence she was approved by her ROTC chain of command for a leave of absence.  The fact that she was commissioned through OCS and not the ROTC Program shows she did not return to fulfill the terms of her ROTC contract.

4.  Since she was determined to be in breach of her ROTC contract, she was required to monetarily repay the debt or agree to be ordered to active duty as an enlisted Soldier through ROTC channels based on the needs of the Army (Regular Army).  Since she was obligated to the ARNG by her SMP contract, she could not obtain a release to enlist in the Regular Army.  Therefore, her only available option was to repay her debt.

5.  She sought and received educational financial assistance through her membership in the ROTC Program.  She now seeks relief in the form of forgiveness of her debt.  The evidence shows she did not fulfill the terms of her contract, as she agreed to when she signed the contract, thereby being in breach of her contract.  She has not provided a compelling reason why she should not have to repay the cost of the educational financial assistance provided.

6.  Based on the foregoing, there is insufficient evidence to grant the 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)                                         AR20140011795





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ABCMR Record of Proceedings (cont)                                         AR20140011795



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