MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           22 March 2001
	DOCKET NUMBER:   AR2000048263

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Regan k. Smith		Member	
	Mr. John P. Infante		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: In effect, that his Reserve Officer Training Corps  (ROTC) debt be forgiven.

APPLICANT STATES: That while he was enrolled in the ROTC program he was charged with driving while intoxicated (DWI).  The next day he informed Major (MAJ) K. (his ROTC instructor) of the charge.  MAJ K. informed him that a conviction for DWI would be a disqualifying event.  In the summer of 1995 instead of a DWI charge he was charged with reckless driving and was offered community service as punishment.  However, MAJ K. and Mrs. H. (school scholarship administrator) told him that if he did not complete the punishment by his commissioning date he would not be commissioned.  He could not complete the community service prior to the commissioning date, therefore he turned down the community service and completed the sentence mostly by confinement on weekends.  He finished the sentence prior to the commissioning date.  After he completed the sentence he was informed that he would be commissioned because he did not receive a DWI conviction.  On the morning of graduation he was informed that he would have to wait until after graduation to be commissioned.  In September 1995 MAJ K. informed him that he was to be disenrolled from the ROTC program, but would not be required to repay any money.  He then signed papers on MAJ K’s instruction and command.  It was at this time that he learned that he had been misinformed, lied to and abused concerning the options available to him.  In response to a letter he received, he contacted the ROTC Department and spoke with MAJ K. who informed him that there was to be a hearing the next day at the school.  He informed MAJ K. that he could not attend the next day and requested that the hearing be rescheduled. He was told the hearing was only to consider disenrolling him, that he did not need to be present and that he would not owe any money.  He later received a letter stating he did owe money.  He contacted the school and spoke with Mrs. H. She admitted to him that she and MAJ K. had given him poor advice, but they would not admit it.  He further states that if he had not been misinformed he would have taken community service and would have been commissioned on his graduation date.

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

In 1991 the applicant was awarded a three year ROTC scholarship at Texas A&M University.

On 21 October 1996 a board of officers convened to determine his suitability for retention in the ROTC program.  It was noted that the applicant failed to appear for the proceedings.

The board of officers found that there were grounds for the applicant’s disenrollment in accordance with AR 145-1 (Senior ROTC Program), paragraph 3-43a (11) in that he had received a reckless driving citation, which required serving jail time after becoming a contracted cadet.

On 12 November 1997 the applicant was disenrolled from the ROTC program.

As part of a scholarship enlistment in the ROTC, an individual must sign a Department of the Army (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 potential cadet states that I understand and agree that if, after investigation by a duly appointed board of officers or investigating officer, I am disenrolled from the ROTC program because of misconduct under the disenrollment criteria established now or in the future by Army regulations, incorporated herein by reference or if I fail to accept a commission, if offered, the Secretary of the Army or his or her designee may order me to active duty as an enlisted soldier for a period of not more than four years or, in lieu of being ordered to active duty, may require me to reimburse the United States for my advanced education from the commencement of this contractual agreement to the date of my disenrollement or refusal to accept commission.  I understand that I may be deemed to have failed to comply with the terms and conditions of this contract (breach of contract) regardless of whether I knew that the failure violated the contract and regardless of whether the failure was the result of an acto or omission on my part made with a specific intent to avoid responsibilities under the contract.

AR 145-1 provides, in pertinent part, that all request for waivers must be sent through channels to ROTC Cadet Command, for determination.  The supporting recommendations at each command level and appropriate comments will be included when requesting waiver for a conviction that resulted in a sentence of confinement in a prison, stockade, or detention area, or in a sentence to hard labor.

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.  The applicant is incorrect in his contention that if he had completed community service instead of serving jail time on the weekends he would have been commissioned.  In either case, the applicant would have had to request a waiver through channels to ROTC Cadet Command for a determination in his case.

2.  The applicant, in effect, asks this Board to consider disenrolling him from the ROTC program because he received bad advice.  The applicant made an error in judgement by not seeking legal advice in the matter of the DWI.  He has failed to explain why he never contacted the professor of military science or others senior to MAJ K. even after he believed that MAJ K. had given him bad advice.  In his supporting letter he accuses MAJ K. of misrepresentations, fraud and breach of duties.  Yet, even with this opinion of MAJ K., he again followed MAJ K.’s advice that he did not need to appear before the board of officers because it was only considering his disenrollment and that he would not have to repay any monies received.  This advice was opposite that stated in the applicant’s ROTC contract. The applicant’s decision not to officially respond to the board of officers notice to appear and then not to appear before the board was another serious misjudgment.  Had he appeared, he could at least have presented all of his issues about the advice MAJ K. and Mrs. H. had given him and the board could have corrected any misinformation he had received.

3.  This Board believes that the applicant should have known that disenrollment from ROTC would result in his call to active duty in an enlisted status or reimbursement of the scholarship money he had received.  The Board finds the applicant’s scenario of events without supporting evidence is insufficient to overturn the official documentation present in the records.  The Cadet Command was within its authority in reaching their decision to recommend his disenrollment for breach of contract.

4.  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.

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:

____slp_  ____rkm    ____joi___  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000048263	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED		
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.	110.00	
2.		
3.		
4.		
5.		
6.