BOARD DATE:	  3 March 2015

		DOCKET NUMBER:  AR20140019281 


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, the Reserve Officers’ Training Corps (ROTC) debt of $5,000 be waived.

2.  The applicant states he disputes this debt.  The original amount of this debt was $5,000. DFAS has already started collecting on this disputed debt.  He received the $5,000 debt in question as a bonus for completing the Leadership Training Course while an ROTC cadet.  This money was the only money he received from ROTC. When he later disenrolled from ROTC, he was given the option to pay back the $5,000 or enlist on active duty.  He chose the latter.  He properly disenrolled from ROTC and enlisted in lieu of paying back the money.  Therefore, he does not owe the $5,000.

3.  The applicant provides: 

* Letter, dated 5 August 2014, from DFAS
* Letter, dated 2 July 2014, from him to DFAS
* DA Form 597 (Army Senior ROTC Nonscholarship Cadet Contract)
* U.S. Army Cadet Command (USACC) Form 597-5 (Leaders Training Course, Addendum to Army Senior ROTC Cadet Contract)
* Disenrollment Approval Memorandum
* Orders to active duty
* Hearing Finding
* Debt Balance Inquiry
* DFAS Notification of Collection
* Self-authored statement (provided separately)
* College transcripts (provided separately)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve Control Group (ROTC) on    3 December 2010.  He indicated he was attending George Mason University commencing on 30 August 2008 and with a projected completion date of 12 January 2013.

2.  He executed a DA Form 597-3 (Army Senior ROTC Scholarship Contract) in connection with this enlistment.  This form shows in Paragraph 5 (Terms of Disenrollment) he understood and agreed that if he were 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, Army Regulation 145-1 (Senior ROTC Program Organization, Administration, and Training).  This form shows: 

	a.  He agreed to serve on enlisted active duty:  Under the terms of this contract, the Secretary of the Army or his or her designee, may order him to active duty as an enlisted Soldier, if he was qualified, for a period of not more  than two (2) years if he failed to complete the ROTC program and is disenrolled after the point of obligation.  Any unexpired portion of his enlistment obligation remaining after such active duty must be served in the USAR Control Group (Reinforcement).

	b.  He agreed to transfer to the Individual Ready Reserve (IRR), if applicable. If he is disenrolled from ROTC and assigned to the ROTC Control Group, and he is not ordered to active duty and is not pending such an order under the terms of this contract, applicable Army regulations, or statute, then: 

		(1)  If he has previously completed basic training (BT) or eight weeks of one station unit training (OSUT) and he does not join a troop program unit, then he would be transferred to the IRR.

		(2)  If he has not completed BT or eight weeks of OSUT and he has no previous military service, he would be discharged from the USAR unless he finds a Reserve unit vacancy and is accepted to fill that vacancy within 60 days of disenrollment.

	c.  He agreed that he may not enlist while pending discharge.  He may not enlist in the active Army, another military service, or in a military service academy while he is a contracted ROTC cadet unless he is properly discharged from the ROTC program.
3.  On 10 December 2010, he and his Professor of Military Science (PMS) signed a U.S. Army Cadet Command (USACC) Form 597-5.  This form is used in conjunction with a DA Form 597 (Army Senior ROTC Non-Scholarship Cadet Contract) or DA Form 597-3 to specify the contractual agreements and obligations and to document contracting in the Army and accepting the Leader’s Training Course Bonus.  He agreed to accept the $5,000 bonus.  In exchange, he acknowledged/agreed to: 

	a.  Meet and maintain the requirements outlined in his Army ROTC Contract (DA Form 597 or 597-3).

	b.  Reimburse the United States government; if he accepts payment of the Leader Training Course Bonus upon contracting and fail to fulfill any part of his military service obligation (MSO) or active duty service obligation (ADSO, if applicable), outlined in his Army ROTC Contract, he would be required to reimburse the United States government through repayment of an amount of money, plus interest, equal to the entire amount of the bonus paid by the United States.

4.  On 8 July 2012, the Commanding General (CG), USACC, ordered the applicant’s disenrollment from the ROTC Program for breach of contract (academic).  Additionally, since the applicant elected the Special Active Duty Provision in order to fulfill his contract obligation to the U.S. Army, he was ordered to active duty as a Private (E-1).  The term of active duty will be 48 months as specified in his ROTC contract.  Accordingly, orders directing him to report for 48 months of active duty have been issued.

5.  On 8 July 2012, Headquarters, USACC, Fort Knox, KY, published Orders (unnumbered/unsigned) ordering the applicant to active duty for a period of 48 months and with a report date to Fort Benning, GA, on 12 September 2012.  The orders state: 

* Ordered to active duty to satisfy the terms of contract DA Form 597-3 under the Special Active Duty Provision
* An individual who has been ordered to active duty and who fails to obey such orders becomes liable to disciplinary action under the Uniform Code of Military Justice 
* Recoupment of financial assistance received ($5,000) applies if the service obligation is not fulfilled or if the individual fails to meet the standards for accession, to include the physical standards

6.  On 8 July 2013, the applicant enlisted in the Regular Army for a period of 3 years and 21 weeks, in the rank/grade of private first class (PFC)/E-3.  He enlisted for the Army Training Enlistment Program for training in military occupational specialty (MOS) 92Y (Unit Supply Specialist). 

7.  He completed basic combat and advanced individual training and the Basic Airborne Course and he was awarded MOS 92Y1P on or about 18 February 2014.  He was subsequently assigned to Fort Bragg, NC. 

8.  On an unknown date, by letter in response to the applicant’s request for a hearing, DFAS referenced Title 31, U.S. Code, section 3720D and Title 31, Code of Federal Regulation, section 285.11, and stated a review of the applicant’s records showed that he is currently serving in the U.S. Army; therefore, a request to terminate Administrative Wage Garnishment (AWG) was forwarded to the U.S. Treasury in March 2014.  This does not mean the debt is not valid, but that the debt account will be returned to the Defense Debt Management System (DDMS) for collection.  Since AWG is no longer a consideration, a hearing is not required. Collection action will cease by the U.S. Treasury and their fees of 28% of the amount originally transferred to their office will not be assessed; however, the debt will continue to be referred to the Treasury Offset Program for possible offset from the applicant’s federal income tax return.  The applicant is required to contact the Debt and Claims Customer Care Center to make arrangements to repay the debt.  If he does not contact the Customer Care Center, the debt will be forwarded to your active duty pay office for collection from his active duty pay.

9.  On 2 July 2014, he corresponded with DFAS and disputed the debt.  He stated: 

	a.  He does not owe the money associated with that debt.  In December 2010, he became a contracted Army ROTC cadet at George Mason University, VA.  When he completed the Leadership Training Course, he received a $5,000 bonus.  Unfortunately, however, by May 2012, his grades had fallen, and he was no longer academically eligible to stay in ROTC.  At that point, he had two options: pay back the $5,000 or enlist (if approved for active duty).  He chose to enlist and had his ROTC battalion started seeking the necessary approval.  

	b.  Disenrollment procedures for ROTC cadets are outlined in Cadet Command Pamphlet 145-4, chapter 6.  He waived his right to a hearing, so only two further steps were required:  (1) having USACC approve his coming onto active duty and (2) having USACC issue orders calling him to active duty.  Both of those required steps occurred and he has attached the supporting documentation to this letter.  First, he attached a memorandum from the CG, USACC, ordering his disenrollment from ROTC.  This is the approval of the appropriate authority.  Second, he was issued orders that called him to active duty, which were drafted by USACC.  These orders fulfilled the second requirement for disenrollment.  

   c.  As the above makes clear, he was disenrolled from Army ROTC using the proper procedures outlined in USACC Pamphlet 145-4.  In the “Terms of Disenrollment” paragraph of his ROTC contract, it is clear that active duty service is meant to be in lieu of repaying any money received.  This intent is also clear in the orders calling me to active duty.  In additional instruction (d), the orders state, “Recoupment of Scholarship Financial Assistance Received applies if the service obligation is not fulfilled.”  This statement makes clear that the $5,000 is only supposed to be returned if he does not complete the required active duty service. Because he is currently serving on active duty and is in the process of completing that obligation, the money should not be collected from him. Recoupment should only take place if he leaves active duty before completing his 48-month obligation.

	d.  As the foregoing explanation shows, he is still entitled to keep the $5,000 he received from Army ROTC.  Therefore, he requests collection be ceased and the monies be returned to him together with administrative fees associated with collection that had already been taken from him. 

10.  On 5 August 2014, DFAS responded to the applicant.  An official stated the original amount of the debt is $5,000.00 has been referred to active duty for offset.  He should contact his finance office for assistance.  In order to have this debt for ROTC education tuition terminated, he may petition this Board.

11.  On 23 January 2015, he provided a copy of his college transcripts together with a self-authored statement clarifying matters in his case.  Specifically, he stated he wanted to explain why he did not enter basic training until July 2013, confirm that he did not receive any benefit during his enlistment process as a result of his participation in ROTC, and acknowledge his intention to serve on active duty for 4 years to fulfill his contractual obligation.  He states: 

	a.  Entry into Basic Training:  he first wants to clarify a seeming discrepancy between the documents disenrolling him from ROTC and the timeline that ultimately played out when he enlisted.

		(1)  He was academically disqualified from ROTC in May 2012.  At that time, he applied to enlist and serve on active duty to fulfill his contractual obligations.  This application was accepted and, in July 2012, he received orders calling him to active duty.  The orders stated that he needed to report to the nearest recruiting station within 5 days of receipt to receive an MOS and to start the process of enlisting.  The orders also said to report to Fort Benning, GA, for Basic Training in September 2012.  As the orders required, he reported to his nearest recruiting station within 5 days.  At that office, located in Fairfax, VA, he began submitting the required documentation to enlist.  Among those documents was evidence of a surgery to his left knee performed in July 2009.  This surgery became a significant obstacle to reaching basic training on time.  The prior surgery flagged him as needing a medical waiver, and he had to wait for that paperwork to be processed before he could be sent to the nearest Military Entrance Processing Station (MEPS) to continue inprocessing.  Furthermore, until he had completed the required steps at MEPS, he could not be assigned an MOS.  All of those benchmarks had to be reached before he would be able to report to Fort Benning for basic training.  Between July and September 2012, he went to the recruiting station 2-3 times per week to see if they had any updates on his medical situation.  They kept telling him that his paperwork was getting "kicked back" by medical and that they needed to resubmit it.  Consequently, by the time his report date in September arrived, he had not been to MEPS, completed the required physicals, or been assigned an MOS-all of which was necessary to be in the system as ready to report. 

		(2)  Things continued to get held up.  In October, he was told by the recruiting station that they had updated their operating system and that he needed to give them additional copies of all the paperwork, which had been lost in the migration.  He did so, and at first it seemed there was progress.  They got a response back that the medical clearing personnel were waiting on information about a surgery to his right knee.  Although he had gotten stitches in his right knee after a deep cut, he never had surgery on that knee.  The surgery was on his left knee.  To be safe, though, he submitted the paperwork regarding the stitches to his right knee to supplement the paperwork on his left knee surgery he had already submitted.  Yet this information did not satisfy the medical personnel reviewing his file.  They still wanted surgery information on his right knee.

		(3)  After a few weeks, it appeared the issue was not working toward resolution.  He inquired about contacting the medical personnel directly to see if he could clarify the problem.  The recruiting office would not let him do so, though, since coordinating with medical was "their lane."  Consequently, he felt like he did not have a way to push his paperwork along, even though he knew his report date was just getting further and further delayed.  By March 2013, it was clear the recruiting station in Fairfax could not solve his problem.  He had continued to stop in weekly, and they could never give him a status update.  So, on a whim, he decided to bring all his paperwork with him when he went to visit his dad near Houston, TX.  He went to the recruiting station in Katy, TX, and asked them for help.  Shortly thereafter, in early April, the Katy recruiting station had figured out the hold-up.  One of the doctors who had seen him had notated a surgery on the right knee, rather than the surgery on the left knee.  In light of that note, the medical office thought the paperwork on that surgery was missing, and that is what they were trying to obtain.  Once the Katy office clarified this misunderstanding, they had the Fairfax recruiting office transfer his entire file to them, so the Katy office could complete the enlistment process for him.  From there, things progressed quickly and smoothly.  He visited the Houston MEPS station on 14-15 May 2013, completed the remaining physicals, and was assigned an MOS.  At that time, he was finally ready to report to basic training and was given a revised report date of 7 July 2013.   He reported to Fort Benning, GA, on that day.

	b.  Benefits Received at Enlistment:  When he enlisted, he entered the Army at the rank of PFC/E-3, rather than as an E-1.  This advanced promotion status was not the result of any benefit he had already received from the U.S. Government.  Prior to entering ROTC, he had already completed two years at a community college.  He had completed 58 credit hours before enrolling at George Mason University and starting ROTC.  He has attached a transcript from Thomas Nelson Community College confirming these facts.  Under Army Regulation 601-210 (Active and Reserve Components Enlistment Program), paragraph 2-18(a)(7), anyone who has completed more than 48 semester hours from a degree-granting institution is entitled to enlist as an E-3.  Accordingly, he would have been eligible to enlist as an E-3 regardless of his participation in ROTC.  His advanced grade was not the result of any benefit he had previously received from the Government.  Furthermore, he would like to confirm that he did not receive any enlistment bonus when he enlisted.  He received no further monetary benefit than what he had already received from ROTC.

	c.  Intent to Continue Serving:  Finally, he wants to acknowledge that he fully intends to continue serving on active duty until his 4-year contractual obligation is fulfilled.  When he enlisted, the standard initial enlistment period associated with his MOS was 3 years and 21 weeks.  Although this time period was a few weeks short of his 4-year contractual obligation, he was not given any option to make the initial obligation longer.  That said, when he is due to begin the reenlistment process in December 2015, he fully intends to reenlist.  At that time, his separation date will be more than 4 years after he entered active duty as an enlisted Soldier. 

	d.  In light of this intent, he requests that the Board consider cancelling the debt when he reenlisst, at which time the date he is due to be released from the Army will be more than 4 years from when he entered active duty.  At that point, it will be clear that he would have fulfilled his ROTC contractual obligation.  If the Board will not relieve the debt when he reenlists, however, he asks in the alternative that the Board cancel the debt once he has completed 4 years of active service.
12.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program.

	a.  Paragraph 3-39 states the CG, USACC is the approving authority for termination of scholarship and/or disenrollment.  A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3–43.  

	b.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract.  Sub-paragraph 3-43a states 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 breaches the contract.  Lack of interest in military training and/or failure to enroll in classes is reasons for disenrollment. 

13.  Title 10, U.S. Code, section 2005(a), 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 under the terms of which such person shall agree:  (1) to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement and (2) that if such person fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement.

14.  Title 10, U.S. Code, section 2005(f), states that the Secretary concerned shall require, as a condition to the Secretary providing financial assistance under section 2107a (Financial Assistance Program for Specially Selected Members:  Army Reserve and Army National Guard; i.e., ROTC) of this title to any person, that such person enter into an agreement described in subsection (a).  In addition to the requirements of clauses (1) through (4) of such subsection, any agreement required by this subsection shall provide (1) that if such person fails to complete the education requirements, the Secretary shall have the option to order such person to reimburse the United States in the manner provided for without the Secretary first ordering such person to active duty as provided for under clause (2) of such subsection.

15.  Army Regulation 135-210 prescribes policies and procedures for ordering individual Soldiers of the Army National Guard of the United States and the USAR to active duty during peacetime.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was accepted into an Army ROTC scholarship program.  He fully understood and accepted the terms of his enrollment.  However, he did not satisfy the contractual requirements of this program due to academic reasons.

2.  He agreed that if he were disenrolled from the ROTC Program for any reason he would have to repay his scholarship debt, including the amount of $5,000 he received for completing the Leadership Training Course, or be ordered to active duty in the rank/grade of PV1/E-1 for an appropriate number of years, 4 years in his case.  As he was found in breach of his ROTC contract, he was accordingly notified of his disenrollment from the program.  He waived consideration of his case by a disenrollment board.  His disenrollment was ultimately approved by the appropriate official.  

3.  During the disenrollment process, he elected to enlist and his ROTC officials recommended approval.  When the appropriate official approved his disenrollment, he ordered him to 4 years of active duty in September 2012.  At this point things did not go as well as they should have.  His active duty orders, issued by the very same officials who ordered him to active duty, were neither signed nor assigned order numbers.  Additionally, recruiting officials, the officials who would have executed the intent of the ROTC officials, complicated the matter by misplacing or mismanaging his paperwork. 

4.  He ultimately enlisted for 3 years and 21 weeks and entered active duty on 8 July 2013.  This enlistment and service on active duty serve the same purpose as it would have had he been ordered to active duty in the U.S. Army.  In other words, the Department of Defense continues to receive the benefit of his service. Additionally, he has clearly declared his intent to reenlist.  Therefore, as a matter of equity, it would be appropriate to consider his enlistment in the Regular Army on 8 July 2013 to have met the active duty obligation required by his ROTC scholarship contract, provided he continues to serve satisfactorily on active duty through 7 July 2017.
   
   
   
   
   
   
   
   
   
BOARD VOTE:

___x_____  ___x_____  __x___  GRANT FULL RELIEF 

________  ________  ________  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 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 service obligation under the original terms of the ROTC contract, including eligibility for the $5,000 bonus, as a U.S. Army enlisted Soldier, via his enlistment on 8 July 2013.

2.  That DFAS determine if he has been paid or is due to be paid a bonus or any other monetary incentives.  In the event that he has been paid an enlistment or reenlistment bonus or becomes due for payment of such bonus, that bonus payment should be recouped from the original debt to offset an equal portion of his ROTC scholarship debt.

3.  The Board further determined that if he was separated from active duty prior to completing his contractual obligations on 8 July 2017 due to any reason other than completion of his required service, he would be required to repay the U.S. Government a pro-rated portion of the waived ROTC debt. 



      _________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)                                         AR20140019281



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ABCMR Record of Proceedings (cont)                                         AR20140019281



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