MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 April 2001                   
	DOCKET NUMBER:   AR2000049792

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Thomas F. Baxter		Member	
	Mr. John T. Meixell		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 the terms of his Tuition Assistance (TA) agreement to release him from active duty (REFRAD) be enforced or that the TA agreement be declared null and void and he be REFRAD.

APPLICANT STATES:  That he signed a TA contract for the payment of tuition expenses on 3 August 1999.  He understood and agreed to incur an additional active duty service obligation (ADSO) of two consecutive years to his current service obligation.  He reasonably understood the contract to require the Army’s automatic and mandatory waiver of his ADSO upon his submission of a qualifying request for voluntary release.  He agreed to voluntarily reimburse the Army for the tuition expenses incurred upon his release.  At no time did he believe his REFRAD rested in the U. S. Total Army Personnel Command’s (PERSCOM) absolute discretion.  He understood the contract mandated the granting of his REFRAD and waiver of his ADSO simply upon his voluntary request for release and tuition repayment.  Had he understood the terms to mean PERSCOM retained absolute discretion to deny his REFRAD and decline waiving his ADSO, he would not have contracted to receive TA.

COUNSEL CONTENDS:  That the express contractual terms of the applicant’s TA agreement require his REFRAD upon his submission of a qualifying REFRAD and repayment of educational expenses.  The contract does not grant absolute discretion in the U. S. Total Army Personnel Command (PERSCOM) and PERSCOM’s denial of his request for REFRAD constitutes a breach of the TA contract and an injustice.  Alternatively, even interpreting the contract as bestowing absolute discretion in PERSCOM to decline his REFRAD, the applicant contracted with the understanding that his REFRAD was mandatory upon submission of a qualifying request and repayment of his TA expenses.  If the Army urges that interpretation of the contract, then there was no meeting of the minds concerning the meaning of essential terms and the applicant requests that the contract be declare null and void as a matter of law. 

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

He was commissioned on 19 May 1989 and entered active duty in November 1990.  He was promoted to captain in the Military Intelligence branch on 1 July 1994.

On 3 August 1999, the applicant signed a TA contract for payment of up to 75 percent of his tuition costs to attend a Master of Business program.  Paragraph 6 of the Statement of Understanding for Army Tuition Assistance states “COMMISSIONED OFFICERS:  If I am commissioned officer, I understand that I must agree to remain on active duty for two years after completion of a course for which TA has been provided unless involuntarily separated by the Army.  I understand that my military branch must waive the two-year service obligation if I request voluntary separation.  If service obligation is waived, I understand I must reimburse the Army the amount of TA that represents the unserved portion of the 2-year obligation if I voluntarily separate or the Army discharges me for misconduct before I complete the service obligation (Title 10 USC 2005).”

Apparently, on 14 April 2000 the applicant requested voluntary REFRAD and it was disapproved by PERSCOM.  

Apparently, in April 2000, the Office of Education Services requested the applicant sign a Memorandum for Record.  Paragraph 2 of the Memorandum for Record read “I understand that the Army carefully reviews officer’s requests for release from active duty service obligations and that in some cases the Army may deny the request based on TA obligations.”  He apparently refused to sign this document.

Apparently, on 22 June 2000 the applicant resubmitted a request for voluntary REFRAD and again PERSCOM disapproved it.  

In the processing of this case, an advisory opinion was obtained from the PERSCOM Office of the Command Judge Advocate (JA).  That office opined that there is no automatic waiver of ADSOs under the TA program; that the contract does not operate outside the scope of the applicable regulations; and that the contract, read in its entirety, does not require the Army to grant waivers of the ADSO incurred.  That office cited Army Regulation 350-100 (which establishes policies for the receipt, computation, and notice of ADSOs for all active duty Army officers), paragraph 1-11b(8) which states that a request for separation may be denied where an officer has not fulfilled an ADSO specified in that regulation.  Paragraph 1-9 states that officers must fulfill ADSOs before they are eligible for voluntary separation, and that Headquarters, Department of the Army may grant non-statutory exceptions.  Paragraph 4-1 states that statutory service obligations will not be waived except for the convenience of the Government, personal hardship, or compassionate reasons.  The authority provided by this regulation to grant waivers or exceptions to this regulation will be referenced in all contractual obligations, and when not expressly incorporated, will be implied to be present.  That office stated that the applicant misapplied the rules of contract interpretation by seeking to read one sentence in isolation to support the contention that the Army must waive his ADSO if he requests an early release.  The three sentences in the applicable paragraph must be taken together to obtain the only reasonable interpretation that a waiver must be done by the branch if a release is granted, and if granted recoupment of the TA is required.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  Paragraph 1-11 states that an officer may request separation from the Army under the provisions of this regulation.  A request for separation may be disapproved by the approval authority under a number of circumstances to include when the officer has not fulfilled an ADSO specified in Army Regulation 350-100.  The steps required for processing a voluntary REFRAD due to personal reasons are outlined in Table 2-1.  That Table states that after the request is received, reviewed, and processed by the battalion S-1, it will be forwarded by commanders exercising general court-martial convening authority jurisdiction and commanders at a comparable level of command to the Commander, PERSCOM for final action.

Webster’s Third New International Dictionary gives several definitions to the verb “must.”  The second listed definition is “is compelled by physical necessity to (man must eat to live); is required by immediate or future need or purpose to (we must hurry if we want to catch the bus)...”  

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.  In addition to the legal arguments provided by the PERSCOM JA, the Board concludes that it is not reasonable for a commissioned officer to believe that his ADSO had to be waived simply because he requested REFRAD.  Reading Army Regulation 600-8-24 preparatory to submitting his request for REFRAD he should have seen that PERSCOM was the separation approval authority.  The military branches are subsections under the Commander, PERSCOM and are not approval authorities themselves.  However, the branches have the necessary force structure and personnel manning information applicable to the branches they manage.  It is only reasonable that they would provide a recommendation to the separation authority as to whether a particular individual in a particular grade in a particular branch is essential or excess to force requirements.  Therefore, the Board finds it difficult to believe that a commissioned officer would interpret paragraph 6 of the TA contract as anything other than how the PERSCOM JA interpreted it – his military branch was required by an immediate need (to process his request for REFRAD) to recommend whether or not his services were required for the remainder of his ADSO.  If his branch determined his services were not required and his ADSO was waived, he would be required to reimburse the Army an appropriate amount of the TA.

3.  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

__wtm___  __tfb___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049792	
SUFFIX		
RECON		
DATE BOARDED	20010403	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	136.06	
2.		
3.		
4.		
5.		
6.