IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140011474 


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 cancellation of the debt he incurred when he was disenrolled from the Reserve Officers' Training Corps (ROTC).

2.  The applicant states he completed 6 years of active duty service and has served 20 months of active Reserve time.  Therefore, he has served the required active duty time in order to have his ROTC debt waived.  He believes his account was placed in suspension and he was not notified about the debt until 26 April 2012, when his account was transferred from the Defense Finance and Accounting Service (DFAS) – Denver Center to the DFAS Indianapolis Center.  He was never sent a notice of debt since his enlistment in September 2006.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 4 February 2002
* DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) and   DA Form 597-3A-R (Addendum to Army Senior ROTC Scholarship Cadet Contract), each dated  4 February 2002
* a memorandum from Headquarters, U.S. Army Cadet Command, Fort Monroe, Virginia, dated 12 May 2004, subject:  Disenrollment from the U.S. Army ROTC Program (with allied documents) 
* Orders 162-01, issued by Army ROTC Battalion, Niagara University, Niagara University, New York on 10 June 2004
* DD Form 4, dated 23 June 2006
* Orders 625001, issued by the Military Entrance Processing Station (MEPS) at Niagara, Niagara Falls, New York on 7 September 2006
* DA Form 3286 (Statement of Enlistment – U.S. Army Enlistment Program)
* a letter from DFAS, Indianapolis, Indiana, dated 21 April 2014, pertaining to his ROTC debt
* DD Form 5315-E (U.S. Army Advanced Education Financial Assistance Record)

CONSIDERATION OF EVIDENCE:

1.  On 4 February 2002, the applicant enlisted as a cadet in the U.S. Army Reserve Control Group (ROTC).

2.  His DA Form 597-3 states in:

	a.  Paragraph 7, if the cadet is disenrolled from the ROTC program for any reason, the Secretary of the Army could order him/her to reimburse the United States through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the United States for his advanced education from the commencement of the contractual agreement to the date of his disenrollment or refusal to accept a commission; or, the cadet could be ordered to active duty for not more than 4 years.

	b.  Paragraph 8, if he/she was called to active duty for breach of contract, he/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.

	c.  Paragraph 12, 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 to him by the United States as the unserved portion of such duty bore to the total period of such duty he was obligated to serve.

3.  By memoranda, dated 15 March and 12 May 2004, he was notified that he was being disenrolled from the ROTC program under the provisions of Army Regulation 145-1 (Senior ROTC Program), paragraph 3-43(a)(16), for failure to enroll in MS classes for the spring of 2004.

4.  He was advised that when an ROTC scholarship contract is breached, any obligation to the Army must be satisfied through order to active duty in an enlisted status or by repaying the cost of advanced education assistance provided by the Army.  He was also informed that the total amount of monies spent in support of his educational assistance was $34,390.00.  He was provided an option statement to complete and return.

5.  He completed an Acknowledgement of Cadet statement, in which he elected to waive his right to a hearing.  He acknowledged that the amount and validity of his debt as stated in the disenrollment notification was correct.  He also elected to decline expeditious call to active duty.

6.  On 23 June 2006, he enlisted in the USAR Delayed Entry Program.  On 
7 September 2006, he enlisted in the Regular Army, in pay grade E-4, for a period of 6 years.

7.  His DA Form 3286 shows he enlisted for a cash bonus in the amount of $23,000.00.

8.  On 6 September 2012, he was released from active duty and transferred to the USAR Control Group (Reinforcement).  His DD Form 214 shows he served in Afghanistan from 8 December 2007 to 1 May 2008 and from 28 July 2009 to 
12 August 2010.

9.  On 7 January 2013, he was reassigned from the USAR Control Group (Reinforcement) to the 1st Battalion, 390th Regiment, a troop program unit of the USAR in Buffalo, NY.

10.  In a letter dated 21 April 2014, DFAS – Indianapolis Center informed the applicant that he had a debt in the amount of $33.841.56 as a result of the recoupment of education assistance paid on his behalf during his participation in the ROTC Program.  He was also informed that as a result of his active duty service in the U.S. Army, he could apply for suspension or termination of his debt.  DFAS pointed out that his account had already been afforded an extended suspension and that a payment plan was required.  

11.  On 22 June 2014, he was honorably discharged from the USAR.

12.  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 Reserve Component Soldiers 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.

13.  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 service in the Regular Army and in the USAR should fulfill his obligation under his breached ROTC contract has been carefully considered.

2.  The evidence of record shows he was disenrolled from the ROTC program due to his failure to enroll in MS classes for the spring of 2004.  He was subsequently found in breach of his ROTC contract.  

3.  The evidence also shows he enlisted in the Regular Army on 7 September 2006 and his enlistment options included a $23,000.00 enlistment bonus.  Had he been involuntarily ordered to active duty as a result of his breach of contract, 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, his service in the Regular Army served the same purpose as would have been served had he been ordered to active duty in the Army.  The Army received the benefits of his service for the period of his 6-year enlistment, which includes two deployments to a hostile zone.  Therefore, as a matter of equity, it would be appropriate to consider his service in the Army to have met the active duty obligation required by his ROTC scholarship contract.   

5.  A debt collection letter from DFAS indicates his ROTC debt totaled $33.841.56 as of 21 April 2014.  However, the prospects of negating the entire balance of the ROTC debt, plus allowing him to retain a $23,000.00 enlistment bonus he ordinarily would not have received, is considered a windfall.  

6.  The enlistment bonus he received is a legitimate factor to consider in granting or denying equitable relief regarding his ROTC debt.  Accordingly, it would be appropriate to grant him relief from his ROTC debt, minus the amount of the bonus he received from his 2006 enlistment.

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 ROTC debt under the original terms of the ROTC contract by successfully completing his enlistment contract, dated 7 September 2006;

	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 $23,000.00 he (presumably) received as an enlistment bonus (excluding any taxes taken from this bonus); and 

	c.  amending the Disenrollment from the U.S. Army ROTC Program memorandum, dated 12 May 2004, 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)                                         AR20140011474



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ABCMR Record of Proceedings (cont)                                         AR20140011474



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