PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            11 September 2001
	DOCKET NUMBER:    AR2000050719

	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. Celia L. Adolphi		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Donald P. Hupman		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 in effect, termination of the recoupment of his Reserve Officer Training Corps (ROTC) scholarship debt of $12,042.50.

3.  He states that his service in the US Marine Corps (USMC) should be considered for acceptance in lieu of recoupment.  He says that a physical disability prevented him from completing his full four-year enlistment contract in the USMC.

4.  In support of his request, he submits a copy of the medical records describing the 1993 surgery to his achilles tendon, his ROTC and USMC enlistment physical examinations, his DD Form 214 (Certificate of Release or Discharge), and a copy of the debt repayment letter from the Defense Finance and Accounting Service (DFAS).

5.  His Cadet Record Brief reflects that in 1994, he accepted a 2-year ROTC scholarship at Seton Hall University.  He was placed on academic probation for the period January 1995 to May 1995 and on 13 December 1996, he was disenrolled for reason D05 (DO5 is the code for failure to attend or complete Advanced Camp) which constituted a breach of contract.  The code D05 does not indicate disenrollment for medical reasons.

6.  In a separate statement the applicant says, in effect, that he did not go to Advanced Camp because of a reinjury to his achilles tendon which caused him to be disabled.  While disabled and receiving physical therapy, he continued to attend classes.  Someone told him that he would have to serve four years in any branch of the military service in order not to be financially responsible for his ROTC debt.  The US Army, Navy and Air Force would not medically qualify him for enlistment because of his past achilles tendon injury.  However, the USMC found him to be medically qualified for enlistment and training as an infantryman.

7.  On 6 January 1994, the applicant underwent a physical examination for the purpose of entering the ROTC program and attending airborne training.  Item 37 (Lower Extremities) of the Report of Medical Examination (SF 88) contains a handwritten statement that the applicant had surgery on his left achilles tendon.  The applicant was found qualified for the ROTC program and attendance at airborne training.

8.  On 19 September 1996, the applicant was notified by Cadet Command that it had been determined that he was in breach of his scholarship contract based on his failure to complete ROTC Mini and Advanced Camp in 1996.  He was reminded that under the terms of his contract, the Army had the right to order him to active duty as a private in the Army to fulfill his contractual obligations.  He was informed that at that point his debt to the US was $12,042.50. 

9.  On 25 March 1997, the applicant underwent a physical examination for the purpose of enlisting in the USMC.  Item 37 (Lower Extremities) of the SF 88 contains a handwritten statement that the applicant had an abnormal left achilles. The second page of the form where it would indicate whether he was found medically qualified is missing.  However, the applicant’s subsequent service on active duty would indicate that he was found medically qualified for enlistment.

10.  On 29 December 1997, he entered the USMC, was trained as a machine gunner and achieved the rank of private first class.

11.  On 22 January 1999, a Physical Evaluation Board (PEB) determined that the applicant had chronic left achilles tendinitis a condition that was unfitting.  The PEB recommended that he be separated from active duty without benefits.

12.  On 28 February 1999, he was honorably discharged from the USMC for a disability that existed prior to service.  He had served for a period of 1 year and 2 months. 

13.  DFAS informed the applicant that the original debt he incurred from participating in the Army ROTC scholarship program was $12,042.50.  As of June 2001, the applicant has paid $1,736.55 towards his ROTC debt.

14.  As part of the ROTC scholarship enlistment process, an individual must sign a DA Form 597-3, which is the agreement between the Army and a potential ROTC cadet.  The form contains the promises made between the Army and the potential cadet, and includes the action the Army will take in the event the cadet fails to successfully complete the terms of the contract.  The applicant acknowledged that he understood the terms of the contract and agreed that if he was disenrolled from the ROTC program during Military Science III, he could be called to active duty for a period of three years or required to reimburse the government for the amount of funds spent on his scholarship.

15.  The applicant also agreed to the provision which reads “I understand and agree that if I voluntarily or because of misconduct fail to begin or fail to complete any period of active duty or duty in a reserve status not on active duty that I have incurred under this contract whether as an officer or an enlisted soldier, I will be 
required to reimburse the US an amount of money, plus interest, that 
is equal to or bears the same ratio to the total cost of the financial assistance provided to me by the US as the unserved portion of such duty bears to the total period of such duty I was obligated to serve.”

CONCLUSSION:

1.  There is no medical evidence in the available record, nor has the applicant provided any evidence to support his contention that he failed to attend Advanced Camp due to an achilles tendon injury.  In the absence of such evidence, the Board must presume regularity in that his disenrollment from the ROTC program was for failure to attend Advanced Camp for reasons other than physical disability.  The Board concludes therefore, that the applicant breached his ROTC contract, was disenrolled from the ROTC scholarship program and thereby incurred a debt to repay his scholarship funds.  There appears to be no error or injustice in this scenario.

2.  The available evidence does indicate that the applicant informed the Cadet Command and the USMC of his achilles tendon surgery prior to enlisting.  Both organizations found him medically qualified and accepted him for training.  As a matter of equity, the Board is of the opinion that the applicant’s service in the USMC should be considered in determining his liability for repayment of his ROTC debt.

3.  Normally the Board would consider active service as a means of reimbursement.  In light of the fact that the applicant is currently medically disqualified from military service the Board will not consider future service as a possible means of reimbursement. The Board concludes that he made a good faith effort to fulfill his active service obligation.  He was involuntarily separated from the USMC through no fault of his own; therefore, it would be unfair to require the applicant to reimburse the government for the amount of funds spent on his scholarship.

4.  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:

a.   showing that the applicant accepted a call to active duty in the USMC in lieu of repayment of his ROTC debt to the Government,

     	b.  showing that the applicant’s active duty obligation was completed upon his separation from active duty on 28 February 1999, and that he is not indebted to the Government for Army ROTC scholarship program expenses; and

c.  showing that the ROTC debt is remitted and discharged, and any funds he has paid on the debt shall be returned to him.

BOARD VOTE:  

___dph__  ____clgcla________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____________Celia L. Adolphi_____
		               CHAIRPERSON

INDEX

CASE ID	AR2000050719	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010911	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	 	
REVIEW AUTHORITY		
ISSUES         1.	128.10	
2.		
3.		
4.		
5.		
6.