PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            24 October 2000                  
	DOCKET NUMBER:   AR2000040503

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Edwin S. Castle		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 his Reserve Officers Training Corps (ROTC) debt be forgiven.  He also requests that his service in the US Army Reserve (USAR) be approved to satisfy his military service obligation.

3.  The applicant states that he is being penalized with a debt collection for ROTC tuition assistance received.  The Defense Finance and Accounting Service (DFAS) is collecting because they mistakenly believe he was not commissioned.

4.  In support of his application he submitted a DFAS, Military Leave and Earning Statement which shows that his debt was $6,040.00 and that monies were being deducted from his pay towards the debt, and a diploma from South Carolina State University, which indicates he graduated in December 1996.

5.  The applicant’s military records show that he enrolled in the ROTC program at South Carolina State University on 18 August 1994, by completing a DA Form 597-3, Army Senior ROTC Scholarship Cadet Contract and DD Form 4/1, Enlistment Document.  The applicant is currently a 1st lieutenant on active duty as a member of the Active Guard and Reserve program.

6.  The DA Form 597-3 obligated the applicant upon completion of all requirements to apply for and accept an appointment as a commissioned officer in the Regular Army or USAR or Army National Guard of the United States (ARNGUS).  In addition, that he would not resign a commission in either the USAR or ARNGUS and would not resign such Reserve appointment before completion of his original Regular Army appointment’s eighth anniversary date.

7.  On 22 July 1997 the applicant was notified that he was in breach of his Army ROTC scholarship contract.

8.  On 23 October 1997, the applicant submitted a DA Form 61, Application For Appointment.

9.  On 13 April 1998, the applicant was notified of his appointment as a reserve commissioned officer of the USAR and instructed to promptly execute an oath of office.

10.  On 29 April 1998, a DA Form 71, Oath of Office – Military Personnel, was prepared and executed commissioning the applicant as a 2nd lieutenant in the USAR.

11.  On 24 November 1998, a DA Form 1059, Service School Academic Evaluation Report, was prepared which indicates that the applicant completed the chemical officer basic course.

12.  On 8 July 1999, orders were issued ordering the applicant to active duty in the Active Guard and Reserve program.

13.  On 3 December 1999, the Office of the US Army Cadet Command (USACC) stated that based on verbal guidance from the Office of the Assistant Secretary, Manpower and Reserve Affairs, it recommended that the applicant’s current service on active duty be used to fulfill his contractual obligation.

14.  On 1 March 2000, the Office of the Judge Advocate General prepared a legal opinion for the Office of the Deputy Chief Staff for Personnel.  The opinion stated the applicant was disenrolled from the ROTC program for failure to obtain a security clearance.  The security matter was resolved following the applicant’s graduation from college and he was given a direct commission in the USAR.  They opined that the recoupment of the debt was valid.  However, they did note that while disenrollment based on failure to obtain a security clearance is a valid basis, it appeared that the Commander, USACC may have acted prematurely in disenrolling the applicant.  They have consistently opined that the Commander, USACC, has deferred commissioning authority and may tender a commission to a cadet following completion of all ROTC requirements if the cadet, at the time of graduation, has a temporary disqualifying condition which prevents commissioning immediately upon graduation.  It appeared that the Commander, USACC had failed to take advantage of such power in the applicant’s case.  It was recommended that the applicant apply to this Board for correction of his ROTC service agreement to reflect that his current period as an Active Guard and Reserve officer satisfy his service obligation under the original terms of the ROTC contract.

CONCLUSIONS:

1.  The records available and documents submitted provide the necessary evidence for the Board to conclude that the applicant, while not commissioned immediately upon graduation, is nevertheless through his current USAR service meeting the obligations stipulated by his ROTC scholarship contract.  It would be unfair and unjust to the applicant for the Army to collect the ROTC tuition payments when the applicant is meeting both the legal and spirit of the ROTC scholarship contract.

2.  The Board concludes that it would be appropriate to correct the record to show that the USACC deferred the applicant’s commission; thereby, removing the basis for the debt collection.

3.  Since there is no basis for the debt collection it would be appropriate to refund any monies collected based on an ROTC breach of contract.

4.  He was properly appointed in the USAR.
5.  The Board further concludes that as a matter of equity it would be appropriate to correct the applicant’s ROTC contract to reflect that the current service as an Active Guard and Reserve officer will satisfy the service obligation under the original terms of the ROTC contract.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

	a.  show that the USACC deferred the applicant’s commission; 

	b.  refunding the monies erroneously collected; and

	c.  correcting the ROTC contract to show that as an Active Guard and Reserve officer, he will satisfy the service obligation under the original terms of the ROTC contract.

2.  That so much of the application as in excess of the foregoing be denied.

BOARD VOTE:  

___mkp__  ___jtm__  ___esc __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________Margaret K. Patterson___
		        CHAIRPERSON

INDEX

CASE ID	AR2000040503	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001024	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	104.03	
2.	128.14	
3.		
4.		
5.		
6.