IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20150000589 


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 his Reserve Officers' Training Corps (ROTC) debt of $16,800.00 be waived.  

2.  The applicant states he voluntarily withdrew from the ROTC program and enlisted in the Regular Army (RA) at a later date.  He subsequently met the service obligation initially required for the debt to be waived.

3.  The applicant provides:

* a self-authored statement
* Enlisted Record Brief
* college transcripts

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists counsel, he did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.




CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve Control Group (ROTC) on    30 January 2009.  He executed a DA Form 597-3 (Army Senior ROTC Scholarship Contract) in connection with this enlistment.

2.  Paragraph 5 (Terms of Disenrollment) of the applicant's DA Form 597-3 states that if the cadet were disenrolled from the ROTC Program for any reason, the Secretary of the Army could order the cadet to reimburse the United States the dollar amount plus interest that bears the same ratio to the total cost of the scholarship financial assistance provided by the United States to the cadet as the unserved portion of active duty bears to the total period of active duty the cadet agreed to serve or was ordered to serve.

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

4.  The applicant's record contains a letter from the applicant, dated 6 September 2010, in which he states, "I am disenrolling from the ROTC program at California State University, Fullerton.  I no longer wish to continue with the program and become an officer at this time.  I am requesting that I be able to pay back all scholarship money that I have received since I first enrolled in the program in the Spring of 2009."

5.  On 27 September 2010, the applicant acknowledged receipt of a disenrollment memorandum.  He waived his right to a hearing and personal appearance in order to respond to the validity of the debt and acknowledged that:

* the amount and validity of the debt as stated in the disenrollment memorandum is correct
* by waiving his right, he waived the opportunity to present matters regarding his disenrollment and the amount/validity of the debt
* he waived his right to appeal the disenrollment and/or the amount and validity of the debt
* he declined expeditious call to active duty 

6.  In a memorandum to the Commander, 8th Brigade, U.S. Army Cadet Command (USACC), dated 24 October 2010, a Professor of Military Science stated the applicant was an outstanding cadet.  He participated flawlessly in his Military Science I and II years.  He graduated from the Combat Divers Qualification Course (CDQC) in July 2010.  Upon his return from CDQC, he asserted his interest in leaving the ROTC program due to his preference to serve in the enlisted corps.  The influence of the noncommissioned officers he served with during his short stint at the CDQC has changed his whole career perspective as evident by his own admission and cadre's conclusion. 

7.  On 5 July 2011, the Commanding General (CG), USACC, approved the applicant's request for disenrollment and ordered the applicant disenrolled from the ROTC Program under the provisions of Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 3-43a(4), based on the applicant's failure to enroll in Military Science classes during the fall semester, 2010.  The CG's memorandum also notified the applicant that when the ROTC scholarship contract is breached, an obligation to the Army must be satisfied by repaying the cost of advanced educational assistance provided by the Army and that the amount of monies spent in support of his education was $16,800.00. 

8.  Additionally, the CG provided him a DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record) detailing the debt and ordering the applicant to elect an option as far as paying the full amount in one lump sum payment or initiating a repayment plan.  He was also notified that the addendum with his election must be received within 14 days of his receipt and failure to respond by the suspense date may result in the initiation of involuntary collection action. 

9.  There is no evidence present which shows the applicant executed an Addendum to Part I (of his DA Form 597-3) electing to pay the total amount owed.  

10.  On 20 March 2012, he enlisted in the RA for a period of 4 years and
19 weeks in the rank/grade of private first class (PFC)/E-3.  His DD Form 1966 (Record of Military Processing – Armed Forces of the United States) shows he enlisted for training in military occupational specialty 11X (Infantry Recruit, U.S. Army Airborne Ranger).  

11.  Evidence shows the applicant successfully completed Airborne training and he was awarded the Parachutist Badge.  He was awarded the Ranger Tab for successful completion of Ranger training in June 2013, and the Expert Infantryman Badge in September 2013.  On 1 May 2014, he was promoted to the rank/grade of sergeant (SGT)/E-5.

12.  The applicant provides a self-authored statement in which he states:
   a.  He was given the opportunity to either pay the money back or enlist in the RA instead of paying the debt in full.  At the time, he was still unsure if enlisting in the RA was what he wanted to do with his future or if he wanted to continue as a student so he initially elected to pay back the debt.  However, within 12 months he had enlisted at his hometown recruiting station and signed a 4-year, 17-week enlistment contract.  Despite the fact that he chose to enlist only a few months later, he was still stuck with the full amount of the debt for his scholarship.

   b.  He strongly believes the tuition money was not wasted and has benefited both himself and the Army because the credits he earned directly assisted him in his promotion as an enlisted Soldier.  He does not believe he should have to pay back the debt when he currently meets the requirements that were asked of him in order for the debt to be forgiven, which was to enlist in the RA for three or more years.  He was asked to repay the debt in full because at the time he was cutting all ties with the Army and he was going to give the Army back nothing in return; however, that is not the case.  He has served on active duty for the past two and a half years and he will continue to do so until his expiration term of service in July 2016.      

13.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract.  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.

14.  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.

15.  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.

16.  Army Regulation 135-210 (Order to Active Duty as Individuals) prescribes policies and procedures for ordering individual Soldiers of the Army National Guard of the United States and the U.S. Army Reserve to active duty during peacetime.  In pertinent part, 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 enlisted in the ROTC Program. He agreed that if he were disenrolled from the ROTC Program for any reason, he would repay his scholarship debt or be ordered to active duty in the grade of E-1 for an appropriate number of years.  The evidence of record further shows he was found in breach of his ROTC contract upon his request to disenroll from the program in September 2010.  

2.  On 20 March 2012, he voluntarily enlisted in the RA for a 4-year 19-week term in pay grade E-3.  It appears that he is presently serving in an active duty status in the rank/grade of SGT/E-5.  

3.  His belief that his subsequent service in the RA should fulfill his obligation under his breached ROTC contract was considered and found to have merit.  Although his subsequent service provides the Government the benefits of his service, had he elected an expeditious call to active duty to repay his debt for breaching his ROTC contract he would have been assigned against the needs of the Army, in pay grade E-1, without the benefit to enlist in pay grade E-3 or any other enlistment option, which he received.  

4.  The prospect of negating the applicant's $16,800.00 debt for a free education he received from the Army without becoming an officer, plus allowing him to enlist in pay grade E-3 for training that he ordinarily would not have received, is hardly a windfall.  Therefore, his enlistment and subsequent service in the RA serves the same purpose as it would have served had he been ordered to active duty through ROTC channels. 

5.  In view of the facts of this case, and as a matter of equity, it would be appropriate to consider his enlistment in the RA on 20 March 2012 to have met the active duty obligation required by his ROTC scholarship contract, provided he continues to serve satisfactorily on active duty through 30 July 2016.  

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 via his enlistment in the RA on 20 March 2012.

2.  That the Defense Finance and Accounting Service determine if he has ever 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 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 30 July 2016 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)                                         AR20150000589





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ABCMR Record of Proceedings (cont)                                         AR20150000589



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