MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 August 2000                   
	DOCKET NUMBER:   AR2000039431

	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. Carl W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Roger Able		Member	
	Mr. Charles Gainor		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 he be relieved of a debt imposed by his failure to fulfill the terms of his Reserve Officers' Training Corps (ROTC) scholarship contract.

APPLICANT STATES:  Essentially as outlined in counsel's letter.

COUNSEL CONTENDS:  That the applicant was dismissed from the ROTC program for breach of contract for failing to disclose his disqualifying medical condition (depression and suicidal ideation); that the applicant was not classified or labeled with depression until after he was contracted with the ROTC program; that the term "suicide" was used by the applicant's mental health counselor in his report, but that the applicant never used the term or displayed any suicidal ideations; and that the applicant's substandard performance in college and in the ROTC program was due to circumstances beyond his control.  Counsel adds that he is "concerned that [applicant's] constitutionally protected due process rights as relates to a determination of financial liability have not been protected . . . and the determination [to hold applicant financially liable] has been arbitrary and capricious."

EVIDENCE OF RECORD:  The applicant's military records show:

He was born on 9 May 1969.  Upon completion of a successful high school academic career, he enrolled in college and also enlisted in the United States Army Reserve for 8 years on 10 September 1987 in order to participate in the ROTC program as a 4-year scholarship cadet.  In so doing, he signed a contract (DA Form 597-3, Army Senior Reserve Officers' Training Corps Scholarship Cadet Contract) essentially agreeing to complete the ROTC program or monetarily reimburse the United States a certain sum (to be calculated) plus interest.

The applicant was a poor student, receiving low grades and establishing a pattern of unexcused absences from class and from the ROTC program.  After the spring 1990 semester, he was dismissed from school as an academic failure. An informal investigation was conducted under the provisions of Army Regulation (AR) 145-1, Senior Reserve Officers' Training Program: Organization, Administration, and Training.  On 10 September 1990, a formal investigation by a board of officers was directed under the provisions of AR 15-6, Procedure for Investigations Officers and Boards of Officers.  The applicant was officially notified on 19 September 1990, at which time he was advised of his rights.

On 31 October 1990, a formal hearing was conducted.  During the hearing, evidence was presented by a clinical psychologist retained by the applicant to show that the applicant reported " . . . having suicidal thoughts throughout high school . . .."  The psychological report indicated that the applicant felt "lonely and depressed" and "trapped in his major of Chemical Engineering and in his ROTC obligations, both of which he felt were not right for him."  The report concluded that the applicant " . . . reported feelings of depression and suicidal thoughts beginning during his high school years" and that his level of depression had worsened since high school with " . . . evidence of ongoing suicidal ideation."

Subsequent to the hearing by the board of officers, the applicant was given a psychiatric evaluation by the Fort Knox, Kentucky Community Mental Health Service.  He was diagnosed with dysthymia, primary type, early onset, severe.  He was found not to meet physical standards for enlistment, appointment or induction, nor retention.  The board of officers found:  that the applicant entered into a valid ROTC Scholarship Contract and received monies from the US Army; that he breached the terms of his contract (absence from training and academic failure); but that said breach of contract was neither willful nor voluntary due to depression.  The board recommended that he be disenrolled from Army ROTC by reason of medical disqualification even though there is evidence to merit disenrollment for inaptitude and poor grades.

The result of the board of officers was forwarded to Headquarters, US Army ROTC Cadet Command where it was determined that the applicant had a disqualifying condition (depression and suicidal ideation) which barred him from continuance in the ROTC program and appointment as a commissioned officer.  Furthermore, the applicant had this condition upon entrance into the ROTC program and failed to disclose it thereby breaching his contract.  He was ordered to repay the monies paid to him in support of his college education.

Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program.  The regulation mandates the completion of a contract (DA Form 597-3) which outlines requirements and penalties for breach of contract.

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

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The AR 15-6 investigation and hearing before a board of officers established conclusively that the applicant suffered from depression and suicidal thoughts while in high school.  Although the term "suicide" was, indeed, used by the applicant's therapist, the therapist was relating what the applicant had stated during counseling (i.e., that he had been depressed and considered suicide in high school).  The applicant did not disclose this preexisting medical condition upon enrolling in the ROTC program.  His SF 93, Report of Medical History, completed upon his enlistment reflects no trouble sleeping, no depression or excessive worry, and no nervous trouble of any sort.  This withholding of information constituted a breach of contract.

3.  Although the AR 15-6 investigation found that the applicant's breach of contract was "neither willful nor voluntary due to depression" and recommended disenrollment for medical reasons as opposed to other valid reasons of inaptitude or academic performance, it did not recommend excusing his obligation to repay any scholarship monies.  Furthermore, AR 145-1 does not provide for excusing a scholarship student's debt for breach of contract regardless of reason.

4.  The applicant’s administrative proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant was afforded all due process protections and nothing was done to violate the applicant's rights during any phase of the proceedings.

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

__jdm___  __ra_____  __cg____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000039431	
SUFFIX		
RECON		
DATE BOARDED	20000829	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	128.1400	
2.		
3.		
4.		
5.		
6.