PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           8 October 2002                   
	DOCKET NUMBER:   AR2002068180

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. James E. Anderholm		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 her Reserve Officer Training Corps (ROTC) records be corrected to show that she did not willfully evade her ROTC contract.

3.  The applicant states that an Assistant Professor of Military Science (APMS), a captain, told her that she could study abroad during the second semester of her junior year.  This was told to her when she was still in Military Science (MS) I, which was a point in time when she was able to disenroll from the ROTC without penalty.  She contends that this verbal assurance constituted a modification to her written ROTC contract, and the Army’s failure to honor that modification constituted a breach of contract.  

4.  She continues that the ROTC disenrollment board was not impartial as its president was not senior to the PMS.  It also failed in the execution of its duties in that it did not ascertain and consider evidence from both sides of the dispute.  This failure was evident in the disenrollment board’s failure to question either the APMS who informed her that she could study abroad during her second semester of her junior year, or her PMS.  She charges that the disenrollment board refused to acknowledge the materiality of the Army’s breach of contract when it found that a sincere attempt was made by the PMS to accommodate her desire to study abroad.  The PMS’s offer to allow her to attend ROTC camp after her senior year eliminated a fundamental component of her verbally altered ROTC contract, to attend summer camp upon her return from abroad in 1999, and would result in her getting the “leftovers” in branch selection when she was commissioned.  A subsequent offer made to her by the Commanding General, Cadet Command, that he would reinstate her in military science classes and allow her to attend the next available ROTC advanced camp, was also unacceptable to her since it was a year and a half late.  By then she had “pressed on with my life, made the necessary career adjustments, and to be perfectly honest my trust in Army leadership has been irreparably altered by this experience.”

5.  The applicant’s military records show that on 27 August 1996 the applicant enlisted for the ROTC Control Group with a 4-year scholarship.  Her scholarship contract stated, in pertinent parts, “I understand and agree if I am a 3, 4, or 
5-year scholarship recipient, that I may not voluntarily withdraw from the scholarship program without incurring an active duty and/or reimbursement obligation after the first day of MS II class (sophomore year)” and “I understand that if I am disenrolled from the ROTC program for any reason or if I fail to accept a commission if offered I may, at the discretion of the Army, be directed, in lieu of being ordered to active duty as a private (E1) for a period as specified . . . 

reimburse the United States through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the United States for my advanced education from the commencement of this contractual agreement to the date of my disenrollment.”

6.  On 4 November 1998 a board of officers was convened to determine whether the applicant should be disenrolled from the ROTC and, if disenrolled, whether the reason for the disenrollment was willful evasion.  That board found that the applicant willfully evaded her ROTC scholarship contract when she intentionally failed to enroll in the required MS class in her junior year of college.  That board noted that an APMS called the applicant and warned her that if she failed to enroll in that class she could be considered in violation of her ROTC scholarship contract, and the applicant responded that she had no intention of enrolling in that class.  

7.  During the hearing the applicant argued that her contract was voided when she was given erroneous information by the APMS, that she could study abroad as an ROTC cadet.  She explained that prior to her freshman year she asked the APMS if she could study abroad during her junior year, and was told she could.  During her sophomore year, she informed the APMS that the college had switched the Australia study abroad program to the spring for business majors, and asked if it were possible for her to participate under those conditions.  The APMS informed her that she could go to Australia in the spring of 1999, her junior year, and could take the required MS course by correspondence.  She attested that information led her to decide to continue with her ROTC scholarship instead of withdrawing when she could do so without penalty.  The applicant also stated that her ROTC scholarship contract was invalidated when the APMS attempted to disenroll her from the study abroad program without her knowledge.  

8.  The applicant admitted that the PMS had offered to allow her to participate in the study abroad program if she consented to attend the advanced ROTC camp when she completed her senior year of college.  The applicant stated that she declined that offer because she was less likely to get her first choice of branch (Finance Corps) if she attended advanced ROTC camp in her senior year.  

9.  The disenrollment board noted that there had been no cases in which a cadet from the university had been allowed to study abroad during the preceding four years, and no cadet had ever been allowed to study abroad during the second semester of their junior year because of the required ROTC advanced camp scheduled for that timeframe.  That board “infers from the testimony and evidence presented that as late as [the applicant’s] sophomore year, she really 

may have been mistakenly misinformed it was not a problem to study overseas the second semester of her junior year and then attend Advanced Camp that summer.  However, the board also infers from [the applicant’s] own testimony that a sincere attempt was made by the [PMS] to accommodate [the applicant’s] ‘future plans’ by making a special arrangement for [the applicant] to fulfill her contract obligations and fulfill her stated desire to participate in the study abroad program.  While [the applicant] was probably misinformed on her ability to Study Abroad and take [the required MS class] by correspondence during her second semester and then proceed to Advanced Camp, she certainly had been warned by at least both [the PMS and the APMS] to sign up for [the required MS class] during the first semester of her junior year to prevent a breach of contract.  [The applicant]; however, made a conscious decision based on her faulty understanding of contract law, and chose to not enroll in [the required MS class] the first semester of her junior year.  This act constituted a willful breach of her contract.”  That board recommended that the applicant be disenrolled from the ROTC for voluntary breach of the terms of her ROTC contract and ordered her to active duty as a private.

10.  On 11 January 1999, the applicant was provided a copy of the board proceedings and given an opportunity to submit a rebuttal.  On 12 February 1999, the applicant submitted a rebuttal in which she made essentially the same allegations and conclusions as she has made to this Board, and also requested that the disenrollment board’s recommendation that she be ordered to involuntary active duty be reconsidered.

11.  The applicant then appealed the disenrollment board’s findings and recommendation to the Department of the Army Deputy Chief of Staff for Personnel (DCSPER, now G-1), submitted an Inspector General Action Request, and submitted a Congressional inquiry into the matter.

12.  On 30 September 1999, the Commanding General, Cadet Command, 
e-mailed the applicant’s father and said “While the Army’s skirts are not 100% clean in that a young Army CPT told your [daughter] she could go to Australia in the spring of her junior year without clearing it with the Professor of Military Science, the disenrollment action is fully supportable and legally sufficient.  However, I am more interested in trying to assist your [daughter] with her education and obvious interest in the military.  It is apparent she was a good cadet and top notch student, as such I would like to see her finish her commitment to ROTC and the Army.  Accordingly, I am willing to continue her in the program with a two year scholarship.  If she is a full fledged senior academically this year she can still take MS III and then go to camp next summer 

return for a year of grad school and then commission and serve her country . . . finishing grad degree wherever she is assigned.  With her background and this arrangement I am convinced she will get her branch choice of finance . . . If none of this is appealing to her or you then I will sign the disenrollment packet and we will proceed with the dollar recoupment action to get back the two years worth of scholarship dollars.  Arrangements can be made to pay this back over time at nominal amounts so as not to put you or her in dire financial straights.”

13.  On 18 January 2001 the Department of the Army Inspector General (DAIG) responded to the applicant’s elected representative.  In that letter it was stated that the applicant’s disenrollment board was conducted in accordance with applicable regulations, and she was afforded due process.  The DAIG continued that the applicant’s breach of contract allegation was reviewed three times:  First by the disenrollment board, second by the Commanding General of Cadet Command, and third by the Director of Military Personnel Management, DCSPER.  None of these reviews found her contention that the Army breached her ROTC contract to have any merit.  The DAIG added that the applicant was required to enroll in the necessary MS courses and complete ROTC advanced camp by the terms of her ROTC scholarship contract.  When she failed to enroll in MS classes, a disenrollment board was required to be convened.

14.  On 3 August 2001 the (new) Commanding General, Cadet Command, responded to another appeal submitted by the applicant’s father.  In that response the applicant’s father was reminded that the PMS had made an offer to the applicant which would allow her to go to Australia and complete her ROTC obligations, which was refused by the applicant, and the former Commanding General, Cadet Command, also offered the applicant a method to complete her ROTC commitment and avoid recoupment of her scholarship monies.  The applicant’s father was also reminded that both the DA DCSPER and the DAIG had denied his daughter’s appeals, and her father was informed that his daughter had exhausted her appeal channels.

CONCLUSIONS:

1. The applicant’s assertion that the university ROTC program breached the contract, relieving her of her obligation to complete her performance of the contract, is correct.  Further, the administrative investigation conducted by the university ROTC program is fatally flawed in that the appointing authority, the PMS, was the officer that the applicant alleged to have originally breached the contract.

2.  As a matter of law, the applicant is entitled to the relief she seeks.  During her freshman year, after she had signed the contract, but before she had obligated herself to military service by accepting a second year’s scholarship assistance, the applicant informed the APMS in particular and the government in general, that one of her major educational objectives was to participate in a junior year abroad program.  She asked the APMS whether that would be possible if she continued in the ROTC program and was clearly and unequivocally informed by the APMS that it was possible.  Both the applicant’s objective and the APMS’s representation were entirely within the terms of the contract that she had signed and the bounds of the applicable regulations.  

3.  The agreement reached between the applicant and the APMS in her freshman year, that the applicant could participate in a junior-year abroad program and still meet the requirements of the university’s ROTC program, was a binding supplementation of the contract.  The applicant offered to perform an act that she was not otherwise obligated to perform, to continue in the ROTC program, in exchange for the accommodation that she be allowed to participate in a junior-year abroad.  The position asserted by the ROTC Command that only the PMS could make such a commitment is both erroneous and irrelevant.  The PMS was bound by the acts of his agent.  Further, when the APMS attempted to withdraw the applicant from the study abroad program, without her knowledge, at the direction of the PMS, both the APMS and the PMS acted in bad faith.  The contract breached, the applicant was entitled to withdraw, which she did, directly and in good faith.  

4.  Furthermore, the board of officers directed to determine whether the applicant had breached her ROTC contract was appointed by the PMS whom the applicant asserted had breached the contract and every member of the board was a subordinate of the PMS.  

5.  As a matter of law, the application should be granted in full.  The government breached the contract; the applicant was released from her obligation.  The contract voided, any debt that might have accrued under the contract is also void.

6.  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 individual concerned was disenrolled from the ROTC due to breach of contract on the part of the Army;
	b.  showing she was discharged from the USAR in accordance with Army Regulation 135-178, paragraph 4-4, Secretarial Authority; and

	c.  terminating her debt to the Government which resulted from the erroneous recoupment of her ROTC scholarship monies.

BOARD VOTE:  

____jea__  ____jlp__  ___mhm_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__________Melvin H. Meyer_________
		        CHAIRPERSON

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021008	
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.		
2.		
3.		
4.		
5.		
6.