IN THE CASE OF:	  

		BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140014552 


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, in effect, that his debt for not completing the requirements of his Reserve Officers' Training Corps (ROTC) scholarship be forgiven.

2.  He states he was informed that if he enlisted into the active Army the debt would be paid (cancelled) by his enlisted service after 2 years.  He has not completed the 6 years of service for which he enlisted.

3.  The applicant provides:

* DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract)
* ROTC disenrollment documents
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) 
* DD Form 2366 (Montgomery GI Bill Act of 1984 (MGIB))
* DA Form 3286 (Statement for Enlistment - United States Army Enlistment Program)
* Defense Finance and Accounting Service (DFAS) debt collection letter, dated 19 February 2014
* DD Form 2789 (Waiver/Remission of Indebtedness Application), dated 
		6 March 2014
* Leave and Earnings Statement (LES), dated July 2014
* Enlisted Record Brief (ERB), dated 5 August 2014
* memorandum for record, dated 5 August 2014

CONSIDERATION OF EVIDENCE:

1.  On 4 September 2006, the applicant signed a DA Form 597-3.  Section 5 (Terms of Disenrollment) states "I understand and agree that once I become obligated and I am disenrolled from the ROTC program for breach of contractual terms or any other disenrollment criteria established now or in the future by Army regulations (which include, but are not limited to AR [Army Regulation] 145-1 [Senior ROTC Program:  Organization, Administration, and Training]) Incorporated herein by reference, I am subject to the terms in paragraphs 5a through 5e below."

	a.  Paragraph a (I Agree to Serve on Enlisted Active Duty) states "Under the terms of this contract, the Secretary of the Army or his or her designee, may order me to active duty as an enlisted Soldier, if I am qualified, for a period of not more than 4 years if I fail to complete the ROTC program.  If I am disenrolled after the point of obligation, I may be ordered to active duty for one of the periods listed in paragraph 6 below based upon the year during which my disenrollment was initiated."

	b.  Paragraph e (I Agree that any Obligation to Reimburse will not be Altered by Subsequent Enlisted Duty) states "If I am disenrolled from ROTC, I understand the Secretary of the Army, or his or her designee, retains the prerogative to either order me to active duty or order monetary repayment of my scholarship benefits.  Therefore, if I am required to repay my advanced educational assistance under the terms of the contract, my subsequent enlistment in an Armed Service will not relieve me from my repayment obligation." 

2.  Section 5 also states, in part, the cadet understood and agreed that, if he voluntarily or because of misconduct failed to begin or failed to complete any period of active duty that he may have incurred under the contract, he would be required to reimburse the United States an amount of money, plus interest, that is equal to or bore the same ratio to the total cost of the financial assistance provided him as the unserved portion of such duty bore to the total period of such duty he was obligated to serve.

3.  A memorandum from Headquarters, U.S. Army Cadet Command, subject:  Disenrollment from the U.S. Army ROTC Program, dated 14 February 2008, indicates the applicant was disenrolled from the ROTC program under the provisions of Army Regulation 145-1, paragraph 3-43a(4) because of withdrawal or dismissal from the academic institution.  Since he was a member of the Army National Guard (ARNG) under the Simultaneous Membership Program, he would be released to his ARNG unit to fulfill his military obligation.  In addition, when the ROTC contract is breached, any obligation to the Army must be satisfied by repaying the cost of advanced educational assistance provided by the Army.  The total amount of monies spent in support of his education was $25,435.00.  He was given the option to pay the total in a lump sum or initiate a payment plan. His suspense to return the addendum was 14 days from the date of this decision. The addendum is not available for the Board's review.  There is no indication in this memorandum that he was involuntarily ordered to active duty through ROTC channels based on the needs of the Army in lieu of breach of contract.  

4.  On 29 July 2008, the applicant enlisted in the Regular Army, in pay grade E-1, for 3 years and 19 weeks in military occupational specialty 13D (Field Artillery Tactical Data System Specialist).  His enlistment options included:

* MGIB
* U.S. Army Incentive Enlistment Program (U.S. Army Seasonal Bonus (High Priority Seat, IIIB) - $20,000.00

5.  He provided a letter from DFAS, dated 19 February 2014, showing he owed the U.S. Government $25,605.67 based on an ROTC tuition assistance debt.  

6.  The DD Form 2789 the applicant provided shows he was aware of the debt and was informed that if he enlisted into the active Army, the debt would be paid by the active service time after he completed his initial enlistment contract. 

7.  He also provided an LES for the month of July 2014.  It shows a miscellaneous debt of $450.00 was collected that month.  He had a remaining balance of $24,855.67.

8.  The ERB and memorandum of record, dated 5 August 2014, show he had a basic active service date of 14 July 2008.  His record shows he currently has an expiration term of service date of 30 July 2016 based on reenlistments and/or extensions. 

9.  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 ARNG of the United States and the USAR to active duty.  It states that 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.

10.  Army Regulation 145-1, paragraph 3-43a(16) specifies that a breach of contract 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 non-performance breaches the contract.  Paragraph 3-43e specifies that a cadet who is involuntarily ordered to active duty for breach of his or her contract will be so ordered within 60 days after they would normally complete baccalaureate degree requirements.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his ROTC debt be waived because he enlisted in the Regular Army and is currently serving on active duty was noted.  However, there is no evidence in the available record and he has not provided sufficient evidence to show he was involuntarily ordered to active duty for breach of contract.  

2.  Evidence of record shows that the service member was disenrolled from the ROTC program due to his dismissal from the academic institution.  He was subsequently found in breach of his ROTC contract and he was released back to his ARNG unit to finish his military service obligation.  The available records show he enlisted in the Regular Army on 29 July 2008 and his enlistment options included a $20,000.00 enlistment bonus.  

3.  Had the applicant been involuntarily ordered to active duty as a result of his disenrollment, he would have been assigned against the needs of the Army and not allowed any enlistment options.  

4.  Although not provided for in his DA Form 597-3, the applicant’s enlistment in the Regular Army serves the same purpose as would have been served had he been ordered to active duty in the Army.  The Army is still getting the benefits of his service for the period of his 3-year and 19-week initial enlistment, along with any subsequent reenlistments since he is currently still serving on active duty.  As a matter of equity, it would be appropriate to consider his enlistment in the Army to have met the active duty obligation required by his ROTC scholarship contract.   

5.  A debt collection letter from DFAS, dated 19 February 2014, shows the applicant's ROTC debt totaled $25,605.67 at the time.  An LES, dated July 2014, shows deductions are currently coming out of his military pay for this debt.  It appears he has already paid a portion of the debt and any monies collected should be taken into account when determining the amount he still owes.

6.  However, the prospects of negating the entire balance of the ROTC debt, plus allowing him to receive a $20,000.00 enlistment bonus he ordinarily would not have received, is a windfall.  While the Board has no jurisdiction to stop the enlistment bonus in this case, the bonus is a legitimate factor to consider in granting or denying equitable relief regarding the ROTC debt. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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:

	a.  amending his DA Form 597-3 to show that he would satisfy a portion of the $25,435.00 ROTC debt under the original terms of the ROTC contract by successfully completing his 3-year and 19-week initial enlistment contract, dated 29 July 2008;

	b.  the portion of the ROTC debt that would be satisfied by the above correction will be the total amount of the ROTC debt minus the $20,000.00 he received (or will receive) as a cash enlistment bonus (excluding any taxes taken from this bonus) and minus any monies already collected; and
  
	c.  amending the Disenrollment from the U.S. Army ROTC Program memorandum, dated 14 February 2008, to show that he only owed the U.S. Government the calculated amount in paragraph b, above. 










2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a records correction for full relief of the indebtedness 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)                                         AR20140014552





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140014552



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1