AR20150009153

IN THE CASE OF:

BOARD DATE: 5 April 2016

DOCKET NUMBER: AR20150009153

BOARD VOTE:

____X_____ ___X____ ____X____ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

2�Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 5 April 2016

DOCKET NUMBER: AR20150009153

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 all Department of the Army records of the individual concerned be corrected by amending his ROTC scholarship contract to show he would satisfy the service obligation under the original terms of the ROTC contract, as a U.S. Army enlisted Soldier, via his enlistment on 9 August 2010.

2. The Board further recommends that the Defense Finance and Accounting Service determine if he has been paid or is due to be paid a bonus or any other monetary incentives. In the event that he has been paid an enlistment or reenlistment bonus or becomes due for payment of such bonus, that bonus payment should be recouped from the original debt to offset an equal portion of his ROTC scholarship debt.

_____________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.

IN THE CASE OF:

BOARD DATE: 5 April 2016

DOCKET NUMBER: AR20150009153

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, in effect, his Reserve Officers’ Training Corps (ROTC) debt be waived.

2. The applicant states, in effect, he continues to pay his ROTC debt. However, he has been on active duty for the past 5 years and believes his active duty service is sufficient repayment. He was discharged from the U.S. Army Reserve (USAR) following his disenrollment from ROTC. At no point does it state that further repayment was necessary nor does his Leave and Earnings Statement (LES) indicate any kind of repayment or debt. If the Army was remiss in making him repay this debt, he would hope his past and future service would be sufficient to pay this debt.

3. The applicant provides:

* LES dated September 2010 and April 2015
* Enlisted Record Brief
* 2005 DD Form 4 (Enlistment/Reenlistment Document)

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the USAR Control Group (ROTC) on 22 August 2005. He indicated he was attending the Florida Institute of Technology commencing on 22 August 2005 with no projected completion date.

2. He executed a DA Form 597-3 (Army Senior ROTC Scholarship Contract) in connection with his enlistment. This form shows he acknowledged and agreed that he understood the financial or service implications if he were disenrolled from the ROTC program for breach of contractual terms or any other disenrollment criteria established now or in the future by Army regulations (which included, but was not limited to, Army Regulation 145-1 (Senior ROTC Program Organization, Administration, and Training)).

a. Paragraph�5 (Terms of Disenrollment) states that if the cadet were 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 duty the cadet agreed to serve or was ordered to serve.

b. Paragraph�6 (Enlisted Active Duty Service Obligation) states that 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 (MS)�II, for 3�years if the breach occurred during MS III, or for 4�years if the breach occurred during MS IV.

3. During the spring of 2006, the applicant’s grade point average (GPA) was 1.8. He withdrew from all classes in the spring of 2007 but then turned around and met academic and scholarship requirements in the fall of 2007. He again withdrew from all classes in the spring of 2008, and in the fall of 2008, he was placed on academic probation.

4. On 13 March 2008, his Professor of Military Science (PMS) notified him by memorandum of the initiation of disenrollment action from ROTC and placement on leave of absence based on his withdrawal from classes. He was advised of his right to request a hearing. He was also notified that he retained 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 be required to repay scholarship benefits in the amount of $37,855 in lieu of a call to active duty. The PMS further advised him that the final decision was with the Commander, U.S. Army Cadet Command (USACC).

5. On 14 March 2008, the applicant acknowledged receipt of the disenrollment memorandum. He waived his right to a hearing and personal appearance to respond to the validity of the debt and he acknowledged that:

* the amount and validity of the debt as stated in the disenrollment memorandum was correct
* by waiving his right, he waived the opportunity to present matters regarding his disenrollment and the amount/validity of the debt
* he waived his right to appeal the disenrollment and/or the amount and validity of the debt
* he declined expeditious call to active duty

6. On 17 June 2008, the Commanding General (CG), USACC, approved the request for disenrollment and ordered the applicant disenrolled from the ROTC Program under the provisions of Army Regulation 145-1, paragraph 3-43a, based on his breach of contract due to withdrawal from classes. The CG’s memorandum also notified the applicant that when the ROTC scholarship contract is breached, an obligation to the Army must be satisfied by repaying the cost of advanced educational assistance provided by the Army and that the amount of monies spent in support of his education was $37,855.

7. Additionally, the CG provided him a DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record) detailing the debt and ordering the applicant to elect an option as far as paying the full amount in one lump sum payment or initiate a repayment plan. He was also 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 an involuntary collection action.

8. On 17 July 2008, the applicant executed an Addendum to Part I (of his DA Form 597-3) electing to pay the total amount owed, $37,855, in monthly installments plus interest on the amount owed.

9. He enlisted in the Regular Army (RA) in the rank/grade of private first class (PFC)/E-3 on 9 August 2010 for training in military occupational specialty (MOS) 89B (Ammunition Specialist). He also reenlisted in the RA on 1 April 2014 and 7�April 2015. He continues to serve in the RA.

10. On 4 March 2015, the case analyst of record contacted the applicant. He stated that he does not have any correspondence from the Defense Finance and Accounting Service and that he found out about the debt when his federal taxes were garnished. He indicated that he was under the impression that his enlistment would automatically waive the debt.

REFERENCES:

1. Army Regulation 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program.

a. Paragraph 3-39 states the CG, USACC is the approving authority for termination of scholarship and/or disenrollment. A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3-43.

b. Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract. Sub-paragraph 3-43a states 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. Lack of interest in military training and/or failure to enroll in classes are reasons for disenrollment.

2. Title�10, U.S.�Code, 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.

3. Title�10, U.S.�Code, 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.

4. Army Regulation 135-210 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. 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:

1. The evidence of record confirms the applicant was accepted into an Army ROTC scholarship program. He fully understood and accepted the terms of his enrollment. However, he failed to satisfy the contractual requirements of this program due to withdrawal from classes.

2. He agreed that if he were disenrolled from the ROTC Program for any reason he would have to repay his scholarship debt or be ordered to active duty in the rank/grade of PV1/E-1 for an appropriate number of years. As he was found in breach of his ROTC contract, he was accordingly notified of his disenrollment from the program. He waived consideration of his case by a disenrollment board. His disenrollment was ultimately approved by the appropriate official. He declined expeditious call to active duty and elected to repay the debt in monthly installments.

3. Shortly after his disenrollment in 2008, he enlisted in the RA for 4 years, in the rank/grade of PFC/E-3, for training in MOS 89B. He served his contract and has since reenlisted twice. He reenlisted in the RA in April 2014 and in April 2015. He has completed over 5 years of active service since enlistment in August 2010.

4. The applicant’s enlistment and service in the RA serve the same purpose as it would have had he been ordered to active duty. In other words, the Department of Defense received and continues to receive the benefit of his service. It is appropriate, from an equity standpoint, to consider his RA enlistment to have met the active duty obligation required by his ROTC scholarship contract.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009153

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009153

5

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2