RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           28 February 2006
      DOCKET NUMBER:  AR20060001687


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. John M. Moeller               |     |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, in effect, revocation of his order to active
duty based on his breaching his Reserve Officer Training Corps (ROTC)
contract; and that he be allowed to repay his scholarship debt.

2.  The applicant states, in effect, he recently received orders from the
United States Army Cadet Command (USACC) which required him to report to
active duty.  He claims these orders came as a surprise because he had been
trying to receive information regarding his disenrollment from the ROTC
program because he had an interest in joining the Army National Guard
(ARNG) or United States Army Reserve (USAR).  He contends that active duty
was not an option given his present state.  He states that he has a great
job as Editor-In-Chief of the Augusta Focus, which is Georgia’s award
winning African-American Newspaper, and he would like to have the
opportunity to continue this career with the newspaper.

3.  The applicant claims that he is a driving force in his community and he
volunteers at local schools, community centers, and civic groups, which
gives him reason to believe his presence is more needed in his community
than on active duty.  He also states that he would like to be there for his
two children, and that there are too many absentee Dads in today’s society.
 For these reasons, he would like the opportunity to repay his scholarship
debt of $5,960.00 instead of going on active duty.  He requests a
resolution that is both fair to him and the Army.

4.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  On 21 August 2000, the applicant entered into an ROTC contract as a 2-
year scholarship cadet.  By signing the contract, he acknowledged his
understanding of the conditions of the contract and that he concurred with
them.

2.  At the time the applicant entered into his ROTC contract, he further
acknowledged his understanding that if he failed to complete the
educational requirements of his agreement or was disenrolled from the ROTC
program, the Secretary of the Army or his designee could order him to
active duty as an enlisted Soldier for a period of not more than 4 years
or, in lieu of being ordered to active duty, he could be required to repay
financial assistance he received through the ROTC program, plus interest.

3.  In the Spring of 2003, the applicant withdrew from all classes and on
12 March 2003, he was placed on a leave of absence pending disenrollment
proceedings.

4.  On 21 May 2003, the Professor of Military Science initiated
disenrollment proceedings on the applicant.  The applicant requested a
board of officers/investigating officer be appointed so that he could
personally appear and respond regarding his disenrollment.

5.  On 12 August 2003, the IO considered the applicant’s case and completed
his report.  The IO found that the applicant did enter into a valid Army
ROTC contract, that he received advanced educational assistance in the
amount of $5,960.00, and that he did voluntarily fail to complete the
requirements of the ROTC cadet contract.  The IO recommended that the
applicant not be retained in the ROTC as a scholarship cadet, and that he
be disenrolled from the ROTC.  The IO also recommended that the applicant
not be released from his ROTC contractual obligation, that he be ordered to
active duty in an enlisted status, and that he not be allowed to repay his
valid advanced education scholarship benefits debt.  The Appointing
Authority concurred with the IO and recommended the applicant be recalled
to active duty and that he pay back scholarship monies.

6.  On 27 October 2003, a copy of the board proceedings/IO report with the
findings and recommendations were mailed to the applicant.  This packet was
returned as undeliverable on 21 January 2004.

7.  On 9 April 2004, the applicant’s packet was received at the USACC, and
on 26 April 2004, it was forwarded to the Command Judge Advocate (CJA) for
review.

8.  On 8 July 2004, a CJA representative reviewed the applicant’s case and
determined that it was legally sufficient to support the applicant’s
disenrollment from the ROTC program.  The CJA representative recommended
the applicant be disenrolled and that he be subject to recoupment of
scholarship money he received in lieu of call to active duty.  The CJA
indicated that although the command recommended the applicant’s order to
active duty, she was recommending repayment of the scholarship monies in
lieu of being ordered to active duty based on the significant delays in
processing the case.

9.  On 5 August 2004, the Chief, Actions and Standards Division, USACC,
requested the CJA’s office review the applicant’s case again to determine
if it was legally sufficient to support the applicant’s order to active
duty.

10.  On 6 October 2004, a representative of the CJA’s office found the
applicant’s disenrollment packet was legally sufficient to support the
applicant’s call to active duty.

11.  On 29 October 2004, the commanding general of the USACC submitted a
request that the applicant be involuntary ordered to active duty to
Department of the Army (DA).

12.  On 12 August 2005, the Acting Assistant Secretary of the Army
(Manpower & Reserve Affairs) approved the recommendation to disenroll the
applicant from the ROTC program, and that the applicant be ordered to
active duty for four years.

13.  On 24 October 2004, the commanding general of the USACC published a
memorandum disenrolling the applicant from the ROTC program based on his
indifferent attitude and lack of interest in military training.  He further
indicated that the applicant had been directed to serve on active duty for
a period of 48 months to satisfy his contractual agreement.

14.  USACC Orders Number 299-002, ordered the applicant to active duty as a
private E-1 and directed he report to Fort Benning, Georgia on 1 December
2005.

15.  On 30 November 2005, the applicant was contacted by telephone and he
informed his command that he had not received the initial orders, and an
amendment to the orders were published with a reporting date of 16 February
2006.

16.  On 30 November 2005, the applicant appealed the decision to order him
to active duty.  In his appeal, he cited his current employment situation
and his contributions to the community, and his desire not to be an
absentee Dad as the reasons for his request.  He further requested to be
allowed to fulfill his obligation in the Reserves, as opposed to active
duty.

17.  On 11 January 2006, the DA Office of the General Counsel (OGC)
determined that the 12 August 2005 decision of the Acting Assistant
Secretary of the Army (Manpower & Reserve Affairs) was considered final;
however, the applicant could apply to the Army Board for Correction of
Military Records for relief.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant breached his ROTC
scholarship contract, which subjected him to an expeditious call to active
duty, and that his order to active duty was accomplished in accordance with
the applicable law and regulation.  However, there are equity
considerations in this case that should be addressed.

2.  The evidence of record confirms the initial disenrollment packet, and
the board of officers/IO notification was never received by the applicant,
which is confirmed by the return receipt being returned as undeliverable.
As a result, the applicant did not have the opportunity to appear before a
disenrollment board of officers or IO to present his case during the
disenrollment process.

3.  The evidence of record further shows the applicant was placed on a
leave of absence pending disenrollment processing in March 2003, a board of
officers/IO was not appointed until July 2003, and the IO did not complete
his investigation until 12 August 2003.  Further, the disenrollment packet
was not received at the USACC until April 2004, more than a year after the
process began.  This delay in processing was noted in the original CJA
legal review, and resulted in a recommendation that the applicant be
required to repay the scholarship debt, but not be ordered to active duty.
Although the CJA later provided a determination that the packet was legally
sufficient to support the applicant’s order to active duty, it appears the
first recommendation, which accounted for the extraordinary delays in
processing, was justified.

4.  In all similar ROTC breach of contract cases reviewed by this Board,
the initial disenrollment letter includes an option statement that allows
the disenrolled member the choice of satisfying the terms of his ROTC
contract by either being ordered to active duty, or repaying the
scholarship debt, not both.  It seems likely that had the applicant been
involved in the initial disenrollment processing, he would have been given
these options, and as he now confirms, he would have elected to repay the
debt rather than being ordered to active duty.  This factor, coupled with
the extensive delays in processing, support granting the requested relief
in the interest of justice and equity.

5.  In view of the evidence, the applicant’s record should be corrected to
show he elected to repay the $5,960.00 scholarship debt, in lieu of being
ordered to active duty, and that this request was approved.  Further, the
applicant’s order to active duty should be revoked and a debt in the amount
indicated should be established by the Defense Finance and Accounting
Service (DFAS).

BOARD VOTE:

__HOF __  ___CAK_  __JMM__  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
showing his election to repay the ROTC scholarship debt to satisfy the
terms of his ROTC contract, in lieu of being ordered to active duty, was
approved; by revoking his order to active duty; and by the Defense Finance
and Accounting Service establishing a $5,960.00 debt to Government on him
at this time.




            ____Hubert O. Fry_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20060001687                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/28                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1. 1026  |112.1200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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