RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 January 2006
      DOCKET NUMBER:  AR20050015076


      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:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Rose M. Lys                   |     |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 he be paid the final $16,000 of his Reserve
Officers' Training Corps (ROTC) scholarship as provided for in his
contract.

2.  The applicant states the Army induced him to enter into a 3-year cadet
scholarship contract.  Albany Law School was paid directly $16,000 per
annum between Fall 2000 and Spring 2002.  The Army did not make the $16,000
payment for his final year of law school.

3.  The applicant provides a 5 June 2000 letter from the Professor of
Military Science (PMS), U. S. Army ROTC Instructor Group, Siena College;
his DA Form 597-3 (Army Senior Reserve Officers' Training Corps (ROTC)
Scholarship Cadet Contract); his U. S. Army Reserve Control Group (ROTC)
enlistment contract; a 28 May 2003 letter from the Albany Law School
Registrar's Office; a DA Form    71 (Oath of Office – Military Personnel);
an Accessions Data printout; and a Statement of Student Account.

CONSIDERATION OF EVIDENCE:

1.  On 5 June 2000, the PMS, U. S. Army ROTC Instructor Group, Siena
College sent a letter to the applicant informing him of his conditional
selection to receive a 3-year ROTC scholarship to be effective at Albany
School of Law starting in the fall of school year 2000/2001.

2.  The Accessions Data printout provided by the applicant shows the
applicant received a 3-year scholarship in return for a 4-year active duty
obligation.

3.  On 21 August 2000, the applicant signed a DA Form 597-3.  Page 1 of the
DA Form 597-3 showed the educational institution as Albany Law School,
showed his education would commence on 21 August 2000, and showed his
education would be completed in May 2003.  Page 9 of the DA Form 597-3
showed the Department of the Army agreed to pay, for a period of 3 academic
years (provided funds were appropriated by Congress), tuition and
educational fees up to an annual amount of $16,000.

4.  The applicant completed the requirements for a Juris Doctor degree at
Albany Law School.  His diploma was dated 31 May 2003.

5.  The applicant signed his oath of office on 31 May 2003.  He was ordered
to active duty in the rank of second lieutenant in Military Intelligence
for 4 years on or about 5 October 2003.  On 27 February 2004, he was
appointed a first lieutenant in the Judge Advocate General's Corps and on
this date was ordered to active duty in this rank and Corps for 4 years.

6.  In the processing of this case, an advisory opinion was obtained from
the attorney-advisor, U. S. Army Cadet Command.  The advisory opinion
acknowledged the PMS, Siena College signed the applicant's scholarship
contract on behalf of the Army but erroneously stated in the contract that
the scholarship was for 3 vice 2 years.  The applicant was ineligible [for
a 3-year scholarship] and the PMS had no actual authority to waive the 2-
year limitation as it is based in law.

7.  The advisory opinion stated ROTC scholarships are governed by Title 10,
   U. S. Code, section 2107, which provides, in relevant part, "The
Secretary of the military department concerned may provide financial
assistance…to a student enrolled in an advanced educational program beyond
the baccalaureate degree level if the student also is a cadet...in an
advanced training program."  Title 10,
U. S. Code, section 2101 defines "advanced training" as "…the training and
instruction offered in the Senior Reserve Officers' Training Corps to
students enrolled in an advanced education program beyond the baccalaureate
degree level…."  It is limited to 2 academic years.  The only exception is
that the Secretary may approve a fifth year of scholarship eligibility for
students enrolled in a baccalaureate program which requires more than 4
years to complete.  There is no similar exception for graduate programs.

8.  The advisory opinion noted that the applicant received the benefit of
the bargain.  The Army paid his scholarship for 2 years, the maximum it was
allowed to pay under the law.  The advisory opinion noted that no relief is
appropriate in this case.

9.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  The applicant stated the advisory opinion
acknowledged that the ROTC scholarship contract was for 3 years and that
the PMS signed the scholarship contract on behalf of the Army.  The federal
statue was not brought into the issue until the third year of law school,
after he asked the Army why it never made its scheduled payment to Albany
Law School.  The advisory opinion stated he received the benefit of the
bargain.  The applicant rebutted this by stating not partial, but the
complete, assurances of both parties make up the benefit of this bargain.
The Army would not receive the benefit of this bargain if he only served
two and a half years of his 4-year active duty commitment.  However, the
applicant indicated he would serve his 4-year active duty commitment
because of Army values and personal morals.

10.  Title 10, U. S. Code, section 1552, the law which provides for the
Board, states, “The Secretary may pay, from applicable current
appropriations, a
claim for the loss of pay, allowances, compensation, emoluments, or other
pecuniary benefits, or the repayment of a fine or forfeiture, if, as a
result of
correcting a record under this section, the amount is found to be due the
claimant on account of his or another’s service in the Army, Navy, Air
Force, Marine Corps or Coast Guard, as the case may be.”

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant signed a contract assuring
him the Army agreed to pay, for a period of 3 academic years, tuition and
educational fees up to an annual amount of $16,000 (presumably Congress
appropriated such funds for the 3-year period).  The contract was in error
because the law provided only for such payment for a period of 2 academic
years.  The Army paid for the applicant's first 2 years of law school.  The
applicant paid for his third year of law school.

2.  Normally, the Army is not liable for the erroneous actions of its
officers, agents, or employees, even though committed in the performance of
their duties. However, this case did not involve a mere matter of a verbal
promise to the applicant or a miscalculation of funds to be paid.  In this
case, the applicant entered into a written contract with the Army whereby
the applicant agreed to serve 4 years on active duty in return for a 3-year
scholarship to attend law school.  The applicant entered active duty in
October 2003 for 4 years to fulfill his part of the contractual obligation.

3.  In the interest of justice and equity, it would be appropriate to
provide the applicant the full benefits outlined in his scholarship
contract.  The Army paid for his first 2 years of law school; he paid for
his third year.  The applicant is required to complete 4 years of active
duty to obtain the full benefits of the scholarship.  He entered active
duty in October 2003.  The Defense Finance and Accounting Service (DFAS)
will be requested to establish a debt on a prorated basis should he not
serve the required active duty.

4.  The applicant’s military records may be corrected to show his
scholarship contract was amended to include the sentence, “If it is
determined you are not eligible for the full (i.e., 3 years) benefits of
this scholarship and such determination results in nonpayment of any
portion of the scholarship, the Army Board for Correction of Military
Records may pay the portion of the scholarship determined to be ineligible
for payment, at its sole discretion, in accordance with Title 10, U.S.
Code, section 1552.”  This would allow the Board to invoke that provision
and pay him the amount (i.e., $16,000) he paid the school out of his own
pocket.

BOARD VOTE:

__jtm___  __jcr___  __rml___  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 the applicant's military records may be corrected to show his
scholarship contract was amended to include the sentence, “If it is
determined you are not eligible for the full (i.e., 3 years) benefits of
this scholarship and such determination results in nonpayment of any
portion of the scholarship, the Army Board for Correction of Military
Records may pay the portion of the scholarship determined to be ineligible
for payment, at its sole discretion, in accordance with Title 10, U.S.
Code, section 1552.”

2.  That as a result of the foregoing correction the Defense Finance and
Accounting Service shall remit payment to the applicant the $16,000.00 to
which he is entitled as a result of this correction and advise him if he
does not serve the required active duty a debt, on a prorated basis, will
be established.




                                  __John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015076                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060126                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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