MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   

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

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Mark D. Manning		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his military records be corrected to show that he did not breach his ROTC contract.

APPLICANT STATES:  He did not breech his ROTC contract.

In support of his application he submits his ROTC contract and excerpts from his ROTC personnel file.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  The information contained herein was derived from documents provided by the applicant himself.

On 28 September 1988 the applicant executed a DA Form 597-3, Army Senior Reserve officer’s Training Corps Scholarship Cadet Contract.  Paragraph 1c of that contract states that “I will remain a full time student at the institution listed above while in pursuit of my degree . . . This includes the required Army ROTC classes which may be part of or in addition to those courses required for my degree.”  Paragraph 1e states “I agree to maintain a minimum semester/quarter academic grade point average of 2.0 or higher until the completion of the academic requirements for my degree.  If my academic discipline or the school I am attending requires me to maintain a higher minimum academic grade point average than a 2.0, I agree to do so until the completion of the requirements for my degree . . .”

On 28 November 1988 the applicant was notified that he was being placed on probation as an ROTC cadet in accordance with Army Regulation 145-4 because he failed to achieve a 2.0 grade point average for the fall 1988 quarter.  That notification states he had received a 0.71 grade point average (GPA).

On 29 September 1989 the applicant was notified that he was again being placed on probation as an ROTC cadet because he failed a college course.

On 8 December 1989 the applicant’s professor of military science (PMS) requested the applicant be given a third probationary status.  The First ROTC Region commander denied that request, terminated the applicant’s scholarship status for failure to maintain academic standards, and directed that the applicant be retained in the ROTC as a nonscholarship cadet.

In an undated letter the applicant rebutted the denial of his third probation and resultant termination of his scholarship.  He stated that his scholarship contract did not contain any clause stating that he could not fail a course, that the contract only stipulated that he must maintain a cumulative 2.0 GPA, which he had done.  The applicant also requested that his second probation be stricken from his records since it too was based solely on his failure of a college course.

On 16 April 1990 that appeal was denied.  The denial letter stated that the applicant’s college transcripts showed that he had failed to maintain a quarterly GPA of 2.0 for the second time and had received a failing grade in courses in two other quarters.

On 10 September 1990 the applicant was notified that a board of officers had been appointed to determine his suitability for retention in the ROTC program based on his failure to maintain a cumulative GPA of 2.0 and failing college courses.

It appears that a board of officers was then convened.  On 4 October 1991 the Cadet Command returned the proceedings to the applicant’s PMS stating that there was insufficient grounds to support the applicant’s disenrollment from breach of contract since he had a cumulative GPA of 2.33.  Cadet Command added that a new investigation or board would be appointed if other grounds for disenrollment existed.

On 29 January 1992 the applicant was informed of the Cadet Command’s decision and invited to re-enroll in the ROTC.

On 12 February 1992 the applicant’s PMS made a memorandum for record stating that although his contract did not specify that he had to pass all of his college courses, he hadn’t maintained enrollment requirements (presumably enrolling in ROTC courses).  The PMS stated that he had informed the applicant that he was appointing an investigating officer to determine whether he was in violation of his contract in that regard.  The PMS acknowledged that he had initially notified him of his intent to disenroll him for the wrong reason.

On 10 July 1992 a board of officers was convened to determine whether the applicant should be disenrolled from the ROTC.  Provided to the Board was a summary of board proceedings which is not a part of the record of board proceedings nor which is authenticated in any way.  In that summary the past probation’s, the validity of those probation’s, and the fact that passing all courses was not a part of his ROTC contract were all discussed.  The applicant then stated that he had declined to re-enroll in the ROTC when offered because he was in the middle of the quarter and was enrolled in a CO-OP.  On the prior occasion when it was directed that his scholarship be revoked and that he be retained as a nonscholarship cadet, the applicant stated that he had requested a leave of absence due to financial hardship.  He had never been given an answer to that request.  He continued that he had been unclear what his status had been throughout the ordeal as he had been given conflicting statements by the school’s cadre concerning his status.  While it had been implied that he was not wanted in the ROTC, nobody actually told him not to enroll or attend military science classes.  The applicant maintained that it was his belief that he had not violated the terms of his ROTC scholarship contract and that his scholarship had been revoked without just cause.  When the applicant’s PMS testified, he stated that the applicant had not shown any interest in returning to ROTC and had not contacted him to attempt to return to the program.  When asked if he would return to the ROTC if he were allowed to do so, the applicant stated that it would cause him financial problems but would consider re-enrolling.

The board concluded that, although there was a contrast between the applicant’s contract and the Army regulation which requires a cadet to pass all college courses, the applicant had received monies from his scholarship and understood the terms of his ROTC contract which required him to enroll in military science classes.  Even with that knowledge he did not re-enroll in ROTC classes or try to otherwise rectify the situation.  The Board recommended that the applicant be disenrolled from the ROTC for reasons other than willful evasion or voluntary breach of the term of his ROTC contract.

On 5 February 1993 the applicant was notified that Cadet Command had determined that he was in breach of his scholarship contract based on his failure to enroll in the required military science classes.  He was then advised that he would either be ordered to involuntary active duty in his enlisted status or be required to pay back his scholarship money, in the amount of $13,504.40.

On 24 July 1997 the applicant was honorably discharged from the ROTC.

As part of the applicant's enlistment in the ROTC, a cadet must sign a DA Form 597-3, which is the agreement between the Army and a potential ROTC cadet.  That form contains the promises made between the Army and the potential cadet, and includes what action the Army will take in the event that a cadet fails to successfully complete the terms of the contract.  In that form the applicant stated that "I understand the commitment point at which I may not voluntarily withdraw from the scholarship program without penalty varies by scholarship as follows:  (1)  A four-year recipient cannot voluntarily withdraw at any time after beginning the first Military Science class of the sophomore year; MS ii or the second year of the scholarship." and "If, subsequent to the commitment points listed above, I fail to abide by the terms and conditions set forth in this contract and am disenrolled, I understand that the Secretary of the Army may order me to active duty as an enlisted member, and I will serve on active duty for the periods listed below:  During MS II - 2-years; During MS III - 3-years; [and] During MS IV or refuse to accept commission - 4-years." and "I also understand that I do not have the option to elect monetary reimbursement in lieu of my service on Active Duty and/or duty in the Reserve Component as prescribed by the Army."  That form defines willful evasion as "...an intentional act or omission, on the part of a student, which act is designed to breach the terms of this contract or to avoid appointment or service as an officer.  The parties specifically agree that the following acts, although not all inclusive, are expressly defined as acts of "willful evasion" as that term is used within this contract.  (1) Refusal of the cadet to take steps to initiate the application for a commission at the time of the cadet's completion of the ROTC program.  (2) Refusal to accept a commission at the time it is offered to the cadet.  (3) Without having first obtained the prior written consent from the PMS, dropping ROTC from the normal course load of the cadet, reducing the course load to a level below that of a full time student, as that term is defined by this contract, dropping out of school, transferring to another institution of advanced education with the written permission of the PMS, feigning a disqualifying physical condition, or deliberately concealing a disqualifying condition during the application process, failing ROTC course work while maintaining an overall grade point avenge adequate for degree attainment, voluntarily withdrawing from Advanced Camp or entering the officer production program of another armed service."

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant appears to build his case solely on the fact that his contract did not specifically state that he had to pass all of his college courses while a scholarship cadet.  

2.  While the implication of his contract may well have been that all courses must be completed successfully, it was not written that way in his contract.  As such, the applicant’s argument is accepted by this Board.

3.  However, the applicant was not disenrolled due to academic failure, he was disenrolled due to his failure to enroll in military science classes, as required by his ROTC contract.  The applicant had testified during his disenrollment board that he was given the impression that he was not to re-enroll in military science classes.  The applicant has not, however, submitted any evidence to support that contention.  In the presence of a legally binding contract, it is contingent upon all parties concerned to obtain written verification of any deviation or exception to the stated terms of the contract.  There is absolutely no evidence that the applicant obtained such written verification or was led to believe that a written verification was not necessary.

4.  The applicant was given a written notice inviting him to re-enroll, he did not 
re-enroll, and he did not make any attempt to re-enroll.  When asked by the disenrollment board if he would honor his ROTC contract by taking the required ROTC courses if permitted, he stated that he would only consider that option.  These facts lead this Board to agree with Cadet Command’s assessment, that the applicant’s lack of action to enroll in military science classes constituted a breach of his scholarship contract based on his failure to enroll in the required military science classes.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_SAC___  _FKM  ___  _EPM___  DENY APPLICATION

						Loren G. Harrell
						Director

CASE ID	AC98-10503/AR1998003577	
SUFFIX		
RECON		
DATE BOARDED	19990203	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.10	
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