IN THE CASE OF:  	  

		BOARD DATE:  13 October 2015	  

		DOCKET NUMBER:  AR20150011414 


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 that his current active duty service be accepted in lieu of repayment of his Reserve Officers' Training Corps (ROTC) scholarship debt in the amount of $18,705.00.

2.  The applicant states he has completed the terms of his contract by serving 
2 years active service in the U.S. Air Force (USAF).

3.  The applicant provides:

* DD Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), dated 
7 November 2007
* a memorandum, dated 9 April 2010, from the "Bobcat Battalion," U.S. Army Cadet Command
* a memorandum, dated 23 August 2010, from Headquarters, U.S. Army Cadet Command
* DD Form 139 (Pay Adjustment Authorization), dated 15 September 2010
* a letter, dated 2 December 2010, from the Defense Finance and Accounting Service (DFAS)
* AF Form 899 (Request and Authorization for Permanent Change of Station - Military), dated 11 September 2013
* DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States)
* a memorandum, dated 20 May 2015, from the 50th Space Wing (AF Space Command)
* a DA Form 5315-E (U.S. Army Advance Education Financial Assistance Record)
* a copy of his USAF identification card

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, 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 2007, the applicant signed a DA Form 597-3 enrolling him in the ROTC Program.  This form represents an agreement entered into between the United States Army and the applicant to effect his participation in the ROTC Scholarship Program.

	a.  The Department of the Army agreed to pay scholarship benefits for a period of four academic years.  This included books and laboratory expenses.

	b.  The applicant understood and agreed he would incur an active duty and/or reimbursement obligation after the first day of Military Science (MS) II year (sophomore year), if he was a 3, 4, or 5-year scholarship recipient. 

   c.  Paragraph 5 (Terms of Disenrollment) states if the cadet was 
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 service the cadet agreed to serve or was ordered to serve.

   d.  Paragraph 6 (Enlisted Active Duty Service Obligation) states 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 year, for 3 years if the breach occurred during Military Science III year, or for 4 years if the breach occurred during Military Science IV year.  

3.  On 9 April 2010, the applicant's Professor of Military Science (PMS) notified him by memorandum of the initiation of disenrollment action from the ROTC and placement on leave of absence based on his failure to meet the academic standards of maintaining a 2.0 average on a 4.0 scale and his failure to meet the standards for physical fitness by failing the Army Physical Fitness Test, which was a breach of his scholarship contract.  The applicant was advised of his right to request a hearing and that he would retain the status of cadet until disenrollment and discharge action were complete and as such he may not enlist in any other military service or component or sign any other scholarship contract.  He was further informed that as a scholarship cadet he could be called to active duty in an enlisted rank/grade of private (PV1)/E-1 or required to repay scholarship benefits in the amount of $18,705.00 in lieu of a call to active duty.

4.  He waived his right to a hearing and declined a call to active duty within 
60 days after completion of his current projected graduation date.

5.  On 23 August 2010, the Commanding General, U.S. Army Cadet Command notified the applicant he was disenrolled and he would be discharged from the ROTC Program due to his breach of the ROTC contract based on his failure to meet the academic standards of maintaining a 2.0 average on a 4.0 scale and his failure to meet the standards for physical fitness by failing the Army Physical Fitness Test.

6.  Additionally, the commanding general provided the applicant a 
DA Form 5315-E 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 further 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. 

7.  On 3 September 2010, the applicant provided an Addendum to Part I of the Scholarship Contractual Agreement electing to repay the total amount owed, $18,705.00, in monthly installments, plus interest on the amount owed as specified in his scholarship contract.

8.  A letter from DFAS, dated 2 December 2010, established a debt as a result of the cost of educational expenses paid in his behalf.

9.  His discharge orders were not available for review.

10.  On 1 October 2012, he enlisted in the USAF Ready Reserve Delayed Entry/Enlistment Program.  There are no annexes available for review to determine if he is receiving any bonuses or other benefits as a result of this enlistment.  

11.  On 26 March 2013, he enlisted in the USAF in pay grade E-3 for 6 years.  There are no annexes available for review to determine if he is receiving any bonuses or other benefits as a result of this enlistment.

12.  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.  

13.  Title 10, U.S. Code (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.

14.  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.

15.  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 USAR 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 applicant's request that his ROTC educational debt be eliminated since he is now enlisted in the USAF, thereby electing to use active duty service in lieu of the option for repayment, was carefully considered.   

2.  On 9 April 2010, the applicant's Professor of Military Science (PMS) notified him by memorandum of the initiation of disenrollment action from the ROTC and placement on leave of absence based on his failure to meet the academic standards of maintain a 2.0 on a 4.0 scale and his failure to meet the standards for physical fitness by failing the Army Physical Fitness Test, which was a breach of his scholarship contract.  As such, he was subject to reimbursing the Government for his educational costs pursuant to Title 10, USC, section 2005.  

3.  The applicant contends he has completed the terms of his ROTC contract by serving 2 years of active service in the USAF.  

4.  His date of enrollment in ROTC was 4 September 2007.  He entered his junior year in September 2009.  His breach of contract occurred in April 2010, thereby placing him in his MS III year.  According to paragraph 6 of his DA Form 597-3, if a breach of contract occurs during the MS III year the active duty obligation is 
3 years.

5.  On 26 March 2013, he enlisted in the USAF in pay grade E-3.  The portion of his contract provided did not show whether he received any cash bonuses or other entitlements.

6.  Although not provided for in his DA Form 597-3, the applicant's active service in the USAF serves the same purpose as would have been served had he been ordered to active duty through ROTC channels based on the needs of the Army.  In other words, the Department of Defense is still getting the benefit of his active service.  As a matter of equity only, it would be appropriate to consider his enlistment in the USAF to meet the active duty obligation required by his ROTC scholarship contract.

7.  Notwithstanding the fact that he entered a contractual agreement to serve in the USAF, it would be premature and unfair to forgive his debt prior to his completion of 3 years of active service with the USAF.  With regard to a possible USAF enlistment bonus, while the Board has no jurisdiction to stop any enlistment bonus, a USAF enlistment bonus would be a legitimate factor to consider in granting or denying equitable relief regarding his debt, since this would be considered in essence a windfall.

8.  As a result, his debt to the Government should be placed in a suspended status pending his successful completion of 3 years of active service in the USAF.  If he fails to satisfactorily complete any portion of 3 years of active  service with the USAF, his debt is to be reinstated by DFAS at a prorated amount, including any additional interest incurred in the interim, and debt collection should be resumed.  If he satisfactorily completes 3 years of active duty service in the USAF, his service will have satisfied his debt to the Government.  

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:

     a.  All Department of the Army records of the individual concerned be corrected by showing he would satisfy his $18,705 ROTC scholarship debt under the original terms of the ROTC contract upon successful completion of 3 years of active duty in the USAF.

     b.  DFAS determine if he has been paid or is due to be paid a USAF enlistment bonus.  In the event that he has been paid an enlistment bonus or becomes due for payment of the enlistment bonus, that bonus payment should offset an equal portion of his ROTC educational debt.  

     c.  DFAS reimburse him for any payments he has made toward resolving his ROTC educational debt.

2.  If he fails to complete the 3 years of active service obligated as a result of his ROTC contract either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis, including any additional interest incurred in the interim.   




      _______ _   _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)                                         AR20150011414





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ABCMR Record of Proceedings (cont)                                         AR20150011414



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