RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 April 2006
      DOCKET NUMBER:  AR20050012432


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Reserve Officers' Training Corps (ROTC)
scholarship debt be cancelled.

2.  The applicant states, in his 10 June 2004 letter to the Commanding
General, (CG) U. S. Army Cadet Command (USACC), that he was never convicted
of any crimes.  His probation officer, who supervised him while on juvenile
probation, provided him guidance on how he should respond to questions
about disclosure of civil convictions on his scholarship application.  His
probation officer advised him that the charges in question stayed in
juvenile court, and he was adjudicated. His probation officer told him he
was not found guilty of any crimes; thus, he did not breach his contract as
he had no civil convictions.

3.  The applicant provides his 10 June 2004 letter to the CG, USACC; an
      11 August 2003 letter from his probation officer; his disenrollment
memorandum; his financial assistance record; and two letters from the Army
Review Boards Agency, dated 27 August 2004 and 20 September 2004.

CONSIDERATION OF EVIDENCE:

1.  On 5 September 2000, the applicant completed a Cadet Command Form  139-
R (Cadet Statements).  On page 2, in the section Statement of Criminal
Proceedings by Civil or Military Authorities, the applicant checked and
initialed the block "The above statement is true" to the statement "I have
not been indicted or summoned into court under civilian or military law as
a defendant in a criminal proceeding, to include any and all proceedings
involving juvenile or adult criminal offenses, but excluding traffic
violations which involved a fine or forfeiture, alone, of $250 or less.  I
have never been convicted fined, imprisoned, placed on probation, paroled
or pardoned except traffic violations as defined above.  I will advise…as
soon as practical under the circumstances."

2.  On 5 September 2000, the applicant signed a DA Form 597-3 (Army Senior
Reserve Officers' Training Corps (ROTC) Scholarship Cadet Contract.

3.  Paragraph 2a of the contract stated the applicant understood that, by
executing the contract, he represented that he met all eligibility criteria
for enrollment in the ROTC Program and commissioning, as defined by
statute, Army regulation, and the contract.  If he was ineligible for
enrollment in ROTC or commissioning and such ineligibility could be waived,
he must obtain an approved waiver before executing the contract.

4.  Paragraph 7 of the contract stated the applicant understood that if he
were disenrolled from the ROTC program for failing to complete the
educational requirement specified in the agreement; for failing to comply
with other terms and conditions of the contract; for misconduct; or for
other disenrollment criteria, the Secretary of the Army could order him to
active duty as an enlisted Soldier for a period of not more than four years
or, in lieu of being ordered to active duty, could require him 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.  He understood that he could be
deemed to have failed to comply with the terms and conditions of the
contract (breach of contract) regardless of whether he knew that the
failure violated the contract and regardless of whether the failure was the
result of an act or omission on his part with a specific intent to avoid
responsibilities under the contract.

5.  Paragraph 9 of the contract stated the applicant understood that if he
were disenrolled from the ROTC program for any reason he could, at the
discretion of the Army, be directed, in lieu of being ordered to active
duty as a private, 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.


6.  Paragraph 10 of the contract stated the applicant agreed that if he
were disenrolled from the ROTC Program for any reason, any money he was
determined to owe the United States that was not paid in a lump sum on the
date it was due should bear interest at a rate set in the contract.

7.  Paragraph 11 of the contract stated the applicant understood the cost
of his education under the Program was, for all purposes, a debt owed to
the United States and entered into voluntarily on his part which could not
be discharged by declaration of bankruptcy.

8.  In a Security Questionnaire completed and signed on 16 March 2003, the
applicant answered "NO" to the question, in item 24, "Have you ever been
charged with or convicted of any offenses(s) related to alcohol or drugs?
For this item, report information regardless of whether the record in your
case has been "sealed" or otherwise stricken from the record.  The single
exception to this requirement is for certain convictions under the Federal
Controlled Substances Act for which the court issued an expungement order
under the authority of       21 U. S. C, 844 or 18 U. S. C. 3607."

9.  On 17 September 2003, the applicant completed an ROTC Cadet Command
Form 131-R (Cadet Action Request), requesting an after-the-fact waiver for
his civil convictions.  He stated he had discussed the incidents with his
probation officer, who explained that his offenses were adjudicated in
Juvenile Court and he was not found guilty of any crimes.  He honestly
believed that since he was not found guilty of any crimes that he did not
need to report the incidents at all.

10.  The applicant's Professor of Military Science (PMS) supported his
request for a waiver.  He stated the applicant's offenses became known to
him recently during the conduct of his security clearance background check.
 The offenses were (1) possession of marijuana (less than an ounce) in
1998; (2) possession of drug paraphernalia in 1998 and 1999; and (3) a
minor in possession of alcohol in 1999.  The applicant did disclose that he
had experimented with marijuana three times in high school.  Offenses (1)
and (2) required a waiver from the CG, USACC.  Offense (3) could be waived
by the PMS.

11.  The applicant's PMS stated he believed the applicant's performance
since the fall of 2000, when he became an ROTC cadet, spoke volumes as to
the applicant's true character, ability, and potential to serve as a junior
officer in the Army.  The PMS believed the offenses were acts committed in
juvenile naivety and did not represent the applicant's current (and
matured) persona.  The PMS was troubled by the applicant's failure to
disclose his offenses in terms of the applicant's integrity, but he felt
the probation officer's letter lent enough evidence to allow sufficient
benefit of the doubt to be given that the applicant honestly did not
believe he needed to report the offenses that were adjudicated in Juvenile
Court to the USACC.

12.  On or about 16 December 2003, a disenrollment board found (1) the
applicant entered into a valid Army Senior ROTC contract; (2) received
advanced educational assistance in the form of ROTC scholarship monies in
the amount of $54,875.00 that constituted a valid debt to the Government;
(3) breached the terms of his contract by failing to disclose arrests,
charges, and probation for possession of marijuana, possession of drug
paraphernalia (twice), and possession of alcohol as a minor; (4)
demonstrated an undesirable character per Army Regulation 145-1, paragraph
3-43a(14):

      (a) in the year 2000, he was placed on Deferred Housing Suspension
and required to perform 20 hours of community service by Boston College for
misappropriation of food;

      (b) in February of 2001, he was directed to vacate university housing
by Boston College for unauthorized entry into another student's room,
disorderly conduct, physical altercation, continual harassment, and
consumption of alcohol as a minor.  He was also instructed to arrange an
appointment with the school's Drug and Alcohol Education office, and
apparently did not do so;

      (c) in 2002, he was charged with possession of a false identification
by civilian authorities;

      (d) in March 2003, he made a false statement on his security
clearance application by indicating he had never been charged with any
offense(s) related to alcohol or drugs;

      (e) in 2003, he was involved in an altercation and charged with
assault by civilian authorities; and

      (f) in October 2003, he missed the Fall Field Training Exercise, a
mandatory training event.  He did that without notifying Army ROTC of his
intention to do so and had stated that he would be present for movement;

(5) demonstrated an indifferent attitude or lack of interest in military
training per Army Regulation 145-1, paragraph 3-43a(15):

      (a) he was counseled in September 2003 for failing to prepare for and
failure to supervise the trainer for a Cadet First Aid Lab;

      (b) in September 2003, he was removed from the Ranger Challenge Team
for multiple absences from Ranger Challenge Physical Fitness Training;

      (c)  in October 2003, he was absent from Physical Training Formation
and the Fall Field Training Exercise.  He had been tasked with supervising
a training event and his absence necessitated that another cadet cover his
duties on short notice.

13.  The disenrollment board recommended the applicant not be retained in
ROTC as either a scholarship or nonscholarship cadet, that he be
disenrolled from ROTC, that he not be released from ROTC contractual
obligations, that he not be ordered to active duty in an enlisted status,
and that he be ordered to repay his valid debt to the Government comprised
of advanced educational assistance received in the form of scholarship
benefits.

14.  On 16 December 2003, the applicant indicated he had received a copy of
the disenrollment board's Report of Proceedings, the approved findings and
recommendations, and a copy of all enclosures and exhibits.  He indicated
he desired to submit a response in writing.

15.  By letter to the CG, USACC dated 10 June 2004, the applicant appealed
the validity of his $54,857 debt obligation.  He stated the memorandum sent
to him indicated he was being disenrolled due to breach of contract based
on failure to disclose civil convictions prior to contracting.  He stated
he did not fail to disclose civil convictions as he was never convicted of
any crimes.  He provided a letter from his probation officer in support of
his appeal.

16.  In a letter dated 11 August 2003, the applicant's probation officer
stated he recalled in October or November 1999 he reviewed the application
process with the applicant.  The applicant "had some questions in regards
to a question which asked if (the applicant) was ever found guilty of any
crimes.  This officer told (the applicant) that since his charges stayed in
Juvenile Court and he was adjudicated, that he was not found guilty of any
crimes...  It is also my understanding that (the applicant) failed to
answer yes to a question that stated have you ever been on probation.  It
is my opinion that (the applicant) answered no to that question because he
thought it was referring to adult probation."

17.  By letter dated 30 April 2004, the USACC notified the applicant he was
disenrolled from the ROTC Program under the provisions of Army Regulation
145-1, paragraph 3-43a(16) due to breach of contract based on his failure
to disclose civil convictions prior to contracting.  He was notified he
owed the Government $54,857.00, and he was requested to elect his payment
option (pay in full or in monthly installments).  He apparently failed to
make a payment election.

18.  In the processing of this case, an advisory opinion was obtained from
the USACC.  The advisory opinion noted that the applicant's decision to
breach the terms of his ROTC contract by failing to disclose his juvenile
civil charges and probation were voluntary actions and recommended his
request not reduce the amount he is required to reimburse the United States
for his advanced educational assistance.

19.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

20.  Title 10, U.S. Code, section 2005, provides the law on reimbursement
requirements for educational assistance from the Armed Forces.  It provides
that the Secretary concerned may require any person provided advanced
education assistance to reimburse the United States in an amount that bears
the same ratio to the total cost of advanced education provided.  It also
provides that any amount owed by such person to the United States under
such agreement shall bear interest at the rate equal to the highest rate
being paid by the United States on the day on which the reimbursement is
determined to be due and shall accrue from the day on which the member is
first notified of the amount due.

21.  Army Regulation 145-1 provides the policy for operation of the ROTC
Program.  In pertinent part, it states a scholarship will be terminated and
the cadet disenrolled for any of several specified reasons.  Paragraph 3-
43a provides for disenrollment based on breach of contract (breach is
defined as any act, performance, or nonperformance 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).

DISCUSSION AND CONCLUSIONS:

1.  On 5 September 2000, the applicant completed a Cadet Command Form  139-
R wherein he checked and initialed the block "The above statement is true"
to the statement "I have not been indicted or summoned into court under
civilian or military law as a defendant in a criminal proceeding, to
include any and all proceedings involving juvenile or (emphasis added)
adult criminal offenses, but excluding traffic violations which involved a
fine or forfeiture, alone, of $250 or less.  I have never been convicted
fined, imprisoned, placed on probation (emphasis added), paroled or
pardoned except traffic violations as defined above.  I will advise…as soon
as practical under the circumstances."

2.  The applicant stated his probation officer provided him guidance on how
he should respond to the above question and, since his case was adjudicated
in  juvenile court, he was not found guilty of any crimes.

3.  In his 11 August 2003 letter, the applicant's probation officer stated
he recalled the applicant "had some questions in regards to a question
which asked if (the applicant) was ever found guilty (emphasis added) of
any crimes."  The probation officer also stated it was his "understanding
that (the applicant) failed to answer yes to a question that stated have
you ever been on probation.  It is my opinion that (the applicant) answered
no to that question because he thought it was referring to adult
probation."

4.  The phrasing of the probation officer's 11 August 2003 letter raises
reasonable doubt that the probation officer ever saw the Cadet Command Form
139-R and may have been advising the applicant based on the applicant's
paraphrasing of the questions on that form.  He did state that he reviewed
the "application process" with the applicant, not that he reviewed the
application itself.

5.  The first question in that Statement did not ask if the applicant was
ever found guilty of any crimes.  The first question asked if he had been
summoned into court as a defendant in a criminal proceeding, to include any
and all proceedings involving juvenile or adult criminal offenses, but
excluding traffic violations which involved a fine or forfeiture, alone, of
$250 or less.

6.  The second question did not refer to adult probation alone.  Because
there was only one response ("The above statement is true") to the entire
Statement, the only way to read the second question was to refer back to
the first question ("to include any and all proceedings involving juvenile
or adult criminal offenses") and to read it as referring to either juvenile
or adult probation.

7.  In addition, the applicant completed a Security Questionnaire on 16
March 2003 on which he answered "NO" to the question "Have you ever been
charged with or convicted of any offenses(s) related to alcohol or drugs?
For this item, report information regardless of whether the record in your
case has been "sealed" or otherwise stricken from the record.  The single
exception to this requirement is for certain convictions under the Federal
Controlled Substances Act for which the court issued an expungement order
under the authority of       21 U. S. C, 844 or 18 U. S. C. 3607."

8.  The applicant could not have been placed on probation for a drug
offense if he had not been charged with a drug offense.  The Questionnaire
wanted an answer to the question even if the record had been "sealed" or
otherwise stricken from the record, which might have been the case in a
juvenile offense.  However, even the applicant's probation officer did not
advise him his offense had been "sealed" or otherwise stricken from the
record, or that a court had issued an expungement order as noted for the
single exception to the requirement.

9.  Paragraph 7 of the applicant's contract stated the applicant understood
that if he were disenrolled from the ROTC program for misconduct or for
other disenrollment criteria, the Secretary of the Army could require him
to reimburse the United States 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. He understood that he could be deemed to
have failed to comply with the terms and conditions of the contract (breach
of contract) regardless of whether he knew that the failure violated the
contract and regardless of whether the failure was the result of an act or
omission on his part with a specific intent to avoid responsibilities under
the contract.

10.  The applicant's 30 April 2004 disenrollment letter may have misstated
the reason for his breach of contract (i.e., "failure to disclose civil
convictions prior to contracting").  However, the disenrollment board's
findings were very clear that he breached his contract because he failed to
disclose arrests, charges, and probation for drug and alcohol offenses.
The Army Board for Correction of Military Records is not convinced that his
two failures to disclose his pre-ROTC offenses were the result of simple
misunderstandings of the requirement to disclose the requested information.

11.  The applicant was properly disenrolled from ROTC for breach of
contract and his debt for repayment of advanced educational assistance he
received in the form of ROTC scholarship benefits is valid.  Further, the
disenrollment board's findings regarding the applicant's conduct subsequent
to his enrollment in ROTC fail to convince the ABCMR that it would be in
the interest of justice to cancel his debt.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __lf____  __jcr___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012432                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060420                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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