IN THE CASE OF:	  

		BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20150007220 


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 suspension of the debt he incurred after he was disenrolled from the Reserve Officers' Training Corps (ROTC) Program while he completes his active duty service obligation.  He further requests the debt be terminated after he completes his service obligation and that all monies collected be refunded to him.

2.  The applicant states he enlisted in the Regular Army for 5 years and he completed one station unit training on 7 November 2014 and airborne training on 28 November 2014.  He has served on active duty for 9 months. 

3.  The applicant provides his Regular Army enlistment contract, reassignment orders, and a letter from the Department of the Treasury, Bureau of the Fiscal Service.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he executed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) on 29 November 2011.  The DA Form 597-3 states:

	a.  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.  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.  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.

2.  He enlisted in the Army National Guard (ARNG) on 26 January 2012.

3.  By memorandum dated 31 May 2012, he was informed by his Professor of Military Science that he was initiating his disenrollment from the ROTC program because of his breach of contract by failing to maintain the requirements of the Army Physical Fitness Test and Army Weight Control Program.  He was advised of his right to:

* request a hearing
* consult with any reasonably available military officer (who need not be an attorney) or civilian counsel at no expense to the Government 
* submit a written statement in his own behalf

4.  He was also informed that he could be called to enlist on active duty, in an enlisted grade of E-1, or required to repay scholarship benefits in the amount of $12,064.00 in lieu of call to active duty in fulfillment of his contractual obligation.

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.  By memorandum, dated 31 July 2012, 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 meet the requirements of the Army Weight Control Program.

7.  He was advised that when an ROTC scholarship contract is breached, any obligation to the Army must be satisfied 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 $12,064.00.  

8.  A U.S. Army Advanced Education Financial Assistance Record, certified on 25 May 2012, suggests his disenrollment from the ROTC Program occurred during MS III.

9.  He was discharged from the ARNG on 2 October 2012.  

10.  He enlisted in the Regular Army on 21 July 2014 for a period of 5 years, in pay grade E-3, and for training in military occupational specialty 18X (Special Forces Recruit).  

11.  His enlistment contract and/or DA Form 3286 (Regular Army Statement of Understanding) do not show he was granted an enlistment bonus.  

12.  He provided a letter from the Department of the Treasury, Bureau of the Fiscal Service, dated 8 April 2015, informing him that this agency applied all or part of his Federal payment in the amount of $884.00 to his debt with the Defense Finance and Accounting Service.  

13.  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.

14.  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.

15.  Title 10, U.S. Code, section 2005(a)(3), states, in pertinent part, 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 with the Secretary concerned under the terms of which such person shall agree that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed by the Secretary to protect the interest of the United States, such person will reimburse the United States in an amount that bears the same ratio to the total costs of advanced education provided such person as the un-served portion of active duty bears to the total period of active duty such person agreed to serve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his service in the Regular Army 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 meet the requirements of the Army Weight Control Program. He was subsequently found in breach of his ROTC contract.  

3.  The evidence also shows he enlisted in the Regular Army on 21 July 2014, in pay grade E-3, for a period of 5 years.  His enlistment options do not include an 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 in pay grade E-1.

4. Although not provided for in his DA Form 597-3, his service in the Regular Army serves the same purpose as would have been served had he been ordered to active duty through ROTC channels.  The Army will receive the benefit of his service throughout his 5-year enlistment period.  

5.  Therefore, as a matter of equity, it would be appropriate to consider his enlistment in the Regular Army to have met the active duty obligation required by his ROTC Program scholarship contract.  However, if he fails to complete a minimum of 3 years of active service as outlined in the terms of his ROTC Program scholarship, either voluntarily or because of misconduct, his ROTC debt will be required to be recouped on a pro-rated basis.


BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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:

	a.  amending his ROTC Program scholarship contract to reflect that his debt obligation will be satisfied upon successful completion of a minimum of 3 years of active duty service as an exception to policy; 

	b.  showing that if he fails to complete the period of active duty service obligated as a result of his amended ROTC Program scholarship contract, either 
voluntarily or because of misconduct, his ROTC debt will be required to be recouped on a pro-rated basis in accordance with his DA Form 597-3; and 

	c.  refunding to him any monies that may have been already collected as a result of the breach of his ROTC contract.  




      ____________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)                                         AR20150007220



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150007220



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1