PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  15 March 2000
	DOCKET NUMBER:   AR1999029044

	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.  

			Director	
	Ms. Lee Tinsley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Margaret Patterson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the terms of his ROTC Army Scholarship contract be amended to permit his enlistment in the Navy to satisfy his repayment/service obligation.

3.  The applicant states that his final year at Shippenburg University was filled with trauma as well as misery.  His dream of becoming an Army Officer fell short because of multiple mishaps he had no control over.

4.  The applicant enrolled in the ROTC at Shippenburg University on 
31 October 1995 on a Nonscholarship Cadet Contract but signed Cadet Command Form 167-R (U.S. Army ROTC Scholarship Acceptance/Declination Statement) accepting a 2-year, Tier IV Oncampus Scholarship on 
29 November 1995.

5.  The applicant was considered for disenrollment from the ROTC, by a formal disenrollment board on 25 September 1997 based on breach of contract arising from his failure to meet both the height/weight and Army Physical Fitness Test (APFT) requirements prior to commissioning.  The board proceedings contain testimony of 3 officers indicating that the applicant was offered numerous opportunities and assistance to pass the APFT requirements.  Also included in the board proceedings were the journal entries, covering a 10-day period, of the Gold Bar Recruiter that attempted to assist the applicant pass the APFT.  These proceedings resulted in a recommendation that the applicant be disenrolled from ROTC.

6.  The applicant enlisted in the U.S. Navy Delayed Enlistment Program on 
25 October 1997 in the paygrade of E-3.  On 3 November 1997 he went on active duty for a period of 4 years and extended his enlistment an additional 2 years to attend school.

7.  On 28 September 1998, the Navy initiated an investigation for fraudulent enlistment on the applicant due to the applicant’s own admission to being under contract to the Army.  The applicant did this after being informed, by memorandum dated 3 April 1998, by ROTC Cadet Command, that he was in breach of his scholarship contract and disenrolled from Army ROTC.  He states he was serving in the Navy at the time he received the notification and that he was boarded from ROTC in September 1997.

8.  The applicant was discharged from the Army on 31 July 1998 per memorandum dated 31 July 1998.  The Navy closed their investigation on the applicant in December 1998, charges unfounded, due to the applicant and recruiter not understanding what constituted “proper release from ROTC cadet status” and “completion of disenrollment and discharge actions.”

9.  USC Title 10, section 2005(a)(3), states in pertinent part, 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 with the Secretary concerned under the terms of which such person shall agree that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed pursuant to clause, such person will reimburse the United States in an amount that bears to the total period of active duty such person agreed to serve and to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States.

CONCLUSIONS:

1.  The applicant was offered advice and moral support in order to pass the AFPT.  The applicant showed no motivation nor applied the advice he was offered.

2.  The applicant was given the opportunity to make repayment in lieu of being ordered to active duty.  By his own admission, he was told to repay scholarship monies or enlist in the Army for 4 years, he did not want to spend 4 years in the Army to be looked on by the same people he went through ROTC with, therefore he enlisted in the Navy.

3.  The applicant further benefited due to being able to enlist in the U.S. Navy as an E-3 versus E-1 if the Army had ordered him to active duty by way of an education that the Army paid for.  By enlisting in the Navy the applicant was allowed the opportunities to receive bonuses, select his duty station and choose his military occupational specialty.

4.  The main purpose of the advance education assistance programs is for the Services to obtain ADSOs (active duty service obligation) from qualified personnel in exchange for educational assistance.  The applicant entered into a six year ADSO to the United States, albeit serving in the Navy instead of the Army as required by his ROTC contract.  Thus, the spirit of 10 USC 2005 has been satisfied.

5.  Notwithstanding the above paragraph, it is concluded based on equity consideration that the applicant’s records be corrected to allow him to serve his active duty service obligation (ADSO) in the Navy.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the applicant be allowed to fulfill his ADSO incurred as a result of his breach of contract of the ROTC contract by performing a two year ADSO in the Navy concurrent with his current enlistment.

BOARD VOTE:  

__RO___   ___VC___   ___MP__  GRANT AS STATED IN RECOMMENDATION

________   ________   ________  GRANT FORMAL HEARING

________   ________   ________  DENY APPLICATION

						      Raymond V. O’Connor, Jr.      
						        CHAIRPERSON

INDEX

CASE ID	AR1999029044	
SUFFIX		
RECON		
DATE BOARDED	20000315	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  128.14	ROTC Scholarship Debt Forgiveness	
2.		
3.		
4.		
5.		
6.