PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           05 SEPTEMBER 2002                  
	DOCKET NUMBER:   AR2002068705

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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, that her current active duty commitment and service be accepted in lieu of repayment of her Reserve Officer Training Corps (ROTC) debt or service obligation.  She states, in effect, that she believed by enlisting in the Active Army that her ROTC scholarship debt would be excused.  

3.  Records available to the Board indicate the applicant entered a 4-year ROTC program on 26 August 1996 and commenced her studies at Hampton University on 3 September 1996.  Imbedded in her 10 page Army Senior Officers' Training Corps (ROTC) Scholarship Cadet Contract (DA Form 597-3), which the applicant authenticated, were provisions which stated that she understood that she could "not enlist in the Active Army, another military service, or in a military service academy while I am a contracted ROTC cadet unless I am properly released from my ROTC cadet status."  The contract also stated that if the applicant were disenrolled from the ROTC program 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 through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the United States…."

4.  A 1 May 1998 General Counseling Form, which was part of her "end of semester counseling" indicated that she was a highly motivated cadet but that her "academic studies…faltered…early on."  The counseling form, which did not include an authentication page, recommended the applicant be "given another opportunity to excel…."  At the time the applicant departed Hampton University she would have been a Military Science II (MS II) cadet.  In a 5 May 1998 memorandum from the applicant, written from her home in California, she acknowledged that she failed to maintain the required GPA (grade point average) specified in her ROTC contract.  The "subject" of that memorandum, addressed to her Professor of Military Science, was "Appointment of Formal Board of Officers to Determine Suitability for Retention in the Army ROTC Program."  In her memorandum she asked "for another chance to continue in the program."  In a separate statement, also dated 5 May 1998, the applicant indicated that her parents could not afford to finance her education and if her scholarship was not reinstated she asked that her enlistment in the Army "as an E-1" be expedited.

5.  On 4 June 1998 a board convened and recommended that the applicant "be afforded the opportunity to complete the ROTC Advance Course as a nonscholarship student" and that if her "financial status will not facilitate this course of action, she should be brought onto active duty as an enlisted soldier."  The applicant was not present, however, counsel represented her and responses to questions from the Board were extracted from her 5 May 1998 memorandum.

6.  On 27 July 1998 the applicant enlisted in the Army Reserve under the DEP (Delayed Entry/Enlistment Program).  She was discharged from the DEP and enlisted in the Regular Army for training as a medical specialist, in pay grade 
E-3, on 1 September 1998.

7.  On 9 November 1998, after the applicant was already on active duty as an enlisted soldier, a memorandum was forwarded to her home address in California informing her of the results of the 4 June 1998 board.  In spite of the fact that the applicant was already on active duty, she authenticated a Cadet Command Form 213-R (SROTC Contract Agreement Special Active Duty Provision Statement of Understanding) on 18 February 1999 indicating her desire to "serve on active duty immediately…under Cadet Command's Special Active Duty provisions in fulfillment of my SROTC obligation."

8.  The applicant continued to service in an active status under her September 1998 enlistment contract and on 10 February 1999 was assigned as a medical technician with the 565th Medical Company at Fort Polk, Louisiana.

9.  In a 9 February 2000 memorandum, addressed to the applicant at Fort Polk, she was informed that she had been disenrolled from the Army ROTC program.  She was also informed that under the terms of her contract it was determined that "either recoupment of educational expenses or an involuntary order to active duty in a U.S. Army Reserve enlisted capacity" would remedy her "breach of contract."  The memorandum noted that "voluntary enlisted service in the Regular Army is not an authorized remedy under the terms of your scholarship contract and cannot now be made a term of the contract."  She was asked to "elect one of the options described on the enclosed addendum and return the signed addendum" to the U.S. Army Cadet Command.  A copy of that "addendum" was not available to the Board.  However, the notification memorandum also informed the applicant that she could "choose to appeal/dispute" the decision by submitting an application to this Board.

10.  On 4 January 2001, nearly 3 years after the applicant dropped out of college and enlisted in the Army, she was discharged from the "US Army Reserve (USAR) (ROTC Control Group)."

11.  In September 2001 the applicant was informed by officials from the Defense Finance and Accounting Service-Denver Center, that she was indebted to the government in the amount of $12,491.78 as a result of "ROTC Education Assistance."  The debt notification letter informed the applicant that if she felt the debt was "created through an error or injustice" or if she entered active military 

service and performed duty for an amount of time equal to her ROTC service agreement she could request secretarial acceptance in lieu of recoupment via this Board.

12.  In the development of this case, an advisory opinion was requested from Headquarters, Cadet Command.  The Director, Personnel and Administration Directorate noted that the applicant "never responded to our communication to accept that option [enlistment] and apparently enlisted on active duty on her own."  While the Director indicated that "voluntary enlistment in the Army does not replace her [the applicant's] obligation to repay her scholarship debt" nevertheless, in similar cases individuals have been allowed to have their enlisted active duty service satisfy the ROTC contractual obligation.  

13.  A copy of the advisory opinion was forwarded to the applicant.  In response, the applicant noted that she had enlisted in the Army without "knowledge of a waiver" and that she was advised to enlist if her financial situation precluded her from remaining in the program as a non-scholarship student.  She noted that the "paperwork" had been sent to her home of record and did not reach her until she arrived at Fort Polk.

14.  The applicant submits a statement from a former Hampton University ROTC administrator.  He states that he does not believe "it was ever conveyed to her [the applicant] what the difference between Active Reserves/Regular Army/Voluntary Enlistment and or Involuntary Enlistment were in relation to satisfying her scholarship requirements."  He noted that the staff from the Hampton University ROTC Department knew the applicant's intentions prior to her departure and believes that "no one ever told her that she could not enlist in the Regular Army until she was directed to do so."

15.  The standard Army ROTC Scholarship Cadet Contract, DA Form 597-3, includes the following provisions and options:

a.  paragraph 7d states that if the cadet were disenrolled from the ROTC Program for any reason, the Secretary of the Army could order the cadet to reimburse the United States the dollar amount plus interest that bears the same ratio to the total cost of the scholarship financial assistance provided by the United States to the cadet as the unserved portion of active duty bears to the total period of active duty the cadet agreed to serve or was ordered to serve.  In lieu of repayment, the cadet could be ordered to active duty for not more than four years.

b.  paragraph 8 states that if called to active duty for breach of contract under the provisions of paragraph 7, the cadet would be ordered to active duty for a period of service based upon the year during which the breach occurs: i.e. for a Military Science II, 2 years; a Military Science III, 3 years; or a Military Science IV, 4 years.

c.  paragraph 12 requires acknowledgement that the cadet understood and agreed that if they voluntarily or because of misconduct fail to begin or fail to complete any period of active duty that they may have incurred under the contract, they would be required to reimburse the United States an amount of money, plus interest, that bore the same ratio to the total cost of the financial assistance provided as the unserved portion of such duty bore to the total obligation.

16.  In accordance with Army Regulation 135-210, former ROTC cadets, when ordered to active duty, will be ordered to report to the U. S. Army Reception Battalion, bypassing the recruiting function where enlistment options are offered and negotiated, and will be ordered to active duty in pay grade E-1. 

17.  Army Regulation 145-1 provides, in pertinent part, that a scholarship or non-scholarship cadet under consideration for involuntary call to active duty for breach of contract will be so ordered within 60 days after they would normally complete baccalaureate degree requirements or the cadet is no longer enrolled in school.  The cadet will not be discharged/disenrolled from ROTC until determination has been received from Headquarters, Cadet Command.  If it is determined that the cadet will be ordered to active duty, the cadet will not be discharged, but Headquarters, Cadet Command will issue orders ordering them directly to active duty.  

CONCLUSIONS:

1.   The available evidence indicates that the applicant was a MS II cadet at the time she departed Hampton University following completion of the spring 1998 semester.  The fact that the applicant enlisted within months after departing the university tends to support a conclusion that she was apparently aware that she would have to either repay her scholarship debt or serve on active duty.  What is unclear, from available evidence, is whether the applicant was aware that she could not "voluntarily" enlist and was required to wait until the ROTC disenrollment board made a determination.  However, the statement submitted in support of her application, the fact that the "rules" for disenrollment are imbedded in a lengthy scholarship contract, and the fact that the applicant attempted to respond to the notification of her "options" by completing the SROTC Contact Agreement Special Active Duty Provision Statement of Understanding in February 1999, nearly a year after her enlistment, convinces the Board that the applicant may not have been completely familiar with the provisions available for satisfying an ROTC scholarship debt.

2.  The available evidence and information does indicate that the applicant was properly though somewhat belatedly, disenrolled from the ROTC program and as such, the indebtedness was properly created and there is no error or injustice in that action.

3.  The applicant's ROTC contract states that if she disenrolled from the program she would be obligated to serve for a specific period on active duty or to repay the amount of monies advanced to her.  Enlistment via the normal recruitment process is not an option under the ROTC contract for meeting the service obligation. 

4.  However, the Board notes that there is sufficient evidence to indicate that the applicant was not aware of the prohibition against voluntary enlistment and it was nearly 3 years before the cadet command officially disenrolled her from the program thereby creating the indebtedness.  

5.  Although not provided for as an option on the DA Form 597-3, the applicant’s 1 September 1998 enlistment in the Regular Army does serve the same purpose as if she had been ordered to active duty.  The Department of the Army is still benefiting from her service for a period in excess of the 2 years obligated service she would have had to serve.  As a matter of equity it is appropriate to consider her first two years of this enlistment as meeting the active duty obligation required under her ROTC scholarship contract and thereby negating any indebtness she incurred as a result of the scholarship. 

6.  The Board further concludes that it would be appropriate for the Defense Finance and Accounting Service (DFAS) to audit the applicant's pay records and record of payment and refund any monies already collected against the indebtedness.

7.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below will correct an error.

RECOMMENDATION:

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

	a.  amending the applicant’s ROTC scholarship contract to show that she would satisfy the service obligation under the terms of the ROTC contract by enlisting in the Regular Army for a period equal to or in excess of her ROTC service obligation, thereby making her debt invalid; and

b.  refunding any monies already collected to the applicant.

BOARD VOTE:  

__CLA __  __MHM__  __JTM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Celia L. Adolphi______
		        CHAIRPERSON

INDEX

CASE ID	AR2002068705	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020905	
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.	128.10	
2.		
3.		
4.		
5.		
6.