BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20150003289 


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) scholarship debt in the amount of $34,000 be invalidated and that he be reimbursed installment payments in the amount of $12,000.

2.  He states he entered ROTC in 2000 and became a contracted scholarship candidate in 2001.  He adds he was disenrolled from the ROTC program in 2003. He states he entered active duty on 20 April 2010 and was commissioned as an officer on 4 November 2010.  He maintains he has now completed over 4 years of active service and he has met the original obligation listed in his cadet contract for a disenrolled Military Science (MS) IV cadet.  He offers that his original cadet packet could not be located. 

3.  He provides:

* Enlistment/Reenlistment documents
* Memorandum, Subject:  Verification of Active Duty Service, dated 28 April 2014
* DA Form 71 (Oath of Office)
* Memorandum, Subject:  Appointment as a Commissioned Officer . . . Title 10, United States Code (USC), dated 4 November 2010
* Officer Record Brief (ORB)
* ROTC Scholarship Cadet Contract documents
* Email
* Memorandum, Subject:  ROTC Disenrollment Verification - Applicant, dated 28 January 2014

CONSIDERATION OF EVIDENCE:

1.  Title 10, USC, 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.  On 7 November 2001, the applicant enlisted in the U.S. Army Reserve (USAR) as a cadet.  On the same date, he signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) accepting an 8-year service obligation in order to receive an ROTC scholarship to attend the University of Pittsburgh for the purpose of obtaining a degree in Spanish. 

3.  The DA Form 597-3 shows his education was to commenced on 27 August 2001 and it was completed in April 2004.  By signing the DA Form 597-3, he agreed, in part, to the following terms:

	a.  Remain a full-time student at the University of Pittsburgh.

   b.  Maintain eligibility for enrollment in ROTC, enlistment in the USAR, commissioning, as defined by statue, Army regulation, and the contract, throughout the period of the contract except as hereafter provided.  To meet the same requirements of the Army Weight Control Program and the Army Physical Fitness Test as required of active duty Soldiers prior to the end of the last school term of his MS III year.  
   
   c.  If he failed to remain in an active enrolled scholarship status until the 45th day after the start of classes of each academic year, he will be in breach of his contract and he will be liable for the current costs of his tuition and any other fees due the institution, in addition to the consequences of breach of contract as specified in the contract.
   
   d.  If his scholarship benefits are temporarily inactivated by a leave of absence or administrative suspension, or terminated due to his failure to meet academic or military retention standards for scholarship cadets, as prescribed by law, Army regulation or contract, he would not be relieved of his obligation to the U.S. Army and his obligation under the contract remain in effect.
   
   e.  He also understood and agreed that if he disenrolled from the ROTC program for falling to complete the educational requirements specified in the agreement or other educational requirements for ROTC cadets as specified in Army regulations; failing to comply with other terms and conditions of the contract; and misconduct; and other disenrollment criteria established or fail to accept a commission, if offered, the Secretary of the Army or his or her designee may order him to active duty as an enlisted Soldier for a period of not more than four years.  In lieu of being ordered to active duty, he may be required to reimiburse the U.S. Government through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the U.S. Government for his advanced education from the commencement of the contractual agreement to the date of his disenrollment or refusal to accept a commission.  
   
   f.  If he is called to active duty for breach of contract, he will be ordered to active duty for one of the periods listed below, based upon the year during which the breach occurs:

* During MS II, 2 years
* During MS III, 3 years
* During MS IV, 4 years
* After completion of MS IV, 4 years if he was a 2, 3, or 4-year scholarship  recipient 
   
   g.  He understood that if he was disenrolled from the ROTC program for any reason or if he failed to accept a commission if offered he may, at the discretion of the Army, be directed, in lieu of being ordered to active duty as a private/E-1 for a period as specified above, 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.
   
   h.  On consideration of the above agreement to the term of the ROTC scholarship contract, the Department of the Army agrees to pay for a period of 
3 academic years.  

4.  On an unknown date, the applicant was disenrolled from the ROTC program.  His record is void of any evidence that shows the reason for his disenrollment.

5.  On 20 April 2010, the applicant enlisted in the Regular Army (RA) in the pay grade of E-4.  He was honorably discharged on 3 November 2010, to accept a commission as a second lieutenant (2LT) in the RA the following day.  He is currently serving in the grade of captain (CPT) with a date of rank of 1 November 2014.

6.  In a memorandum, Subject:  ROTC Disenrollment Verification, Applicant, dated 28 January 2014, the author wrote that he served as the Assistant Professor of MS for the University of Pittsburgh ROTC program.  The applicant was enrolled in the program and in the spring semester of 2002, the applicant sustained an ankle injury during a physical training session and was unable to pass the Army Physical Fitness Test required to maintain his scholarship.  His final ROTC semester was in the fall of 2003 and his final disenrollment was effective spring of 2004.  Since his enrollment, the applicant's original documentation could not be produced.  

7.  On 26 February 2014, DFAS stated that their records show the applicant was indebted in the principal amount of $34,240 for the recoupment of education expenses paid on behalf of his participation in the ROTC program.  However, the amount he has paid towards the loan is not specified.

8.  In a letter, dated 28 April 2014, the applicant's battalion commander verified that the applicant had completed 4 years of active service from April 2010 to April 2014.  He maintains the applicant has fulfilled the requirement of his initial ROTC contract; therefore, he recommended approval of the applicant's request.

9.  In an email, dated 26 March 2015, DFAS verified that the applicant was indebted to the Government for an ROTC debt in the amount of $29,668.86.  However, there is no information concerning the amount he has already paid toward his debt. 

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

	a.  Paragraph 3-39 states the Commanding General, U.S. Army Cadet Command is the approving authority for termination of scholarship and/or disenrollment.  Paragraph 3–39c identifies the exception pertaining to 4-year scholarship winners discharged early from active service.  A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3–43.  The 4-year scholarship students can be disenrolled at their own request during MS I only.

	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.  Undesirable character or misconduct are reasons for disenrollment. 

11.  Title 10, USC, 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.

12.  Title 10, USC, 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.

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 was disenrolled from the course during his fourth year.

2.  His ROTC scholarship contract specified that he could be ordered to active duty as an enlisted Soldier for a period of not more than 4 years or be required to reimburse the U.S. Government the entire amount of financial assistance he received if he were disenrolled for a breach of contract. 

3.  Even though his contract called for an expeditious call to active duty in the pay grade of E-1 through ROTC channels for a breach of contract, the evidence shows he enlisted in the RA on 20 April 2010, in the pay grade of E-4.  It further shows he was discharged on 3 November 2010, to accept a commission as a second lieutenant in the RA the following day.  He has since served over 4 years as a commissioned officer and he has attained the rank of CPT.  Therefore, as a matter of equity, it would be appropriate to consider his enlistment in the RA and his subsequent commission as an Army officer to have met the active duty obligation required by his ROTC scholarship contract.

4.  However, by his own admission he was disenrolled in 2003 and he did not enlist until 2010, which is 7 years later and in the pay grade of E-4 instead of E-1. Therefore, his delay in taking the necessary action and the fact that he enlisted in the pay grade of E-4 and was subsequently commissioned as a 2LT precludes this Board from reimbursing him for debt installment payments in the amount of $12,000.

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 amending his ROTC scholarship contract to show he would satisfy the service obligation under the original terms of his ROTC contract first as an RA enlisted Soldier and subsequently as a commissioned officer.








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 reimbursing him installment payments made toward his ROTC debt in the amount of $12,000.



      _______ _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)                                         AR20150003289



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ABCMR Record of Proceedings (cont)                                         AR20150003289



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