PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           10 October 2002                   
	DOCKET NUMBER:   AR2002069711

	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:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able		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, the acceptance of his current service in the Army National Guard (ARNG) in lieu of repayment of his Reserve Officers Corps (ROTC) debt of approximately $5,000.00.

3.  The applicant states, in effect, that his service as a commissioned officer in the ARNG should erase his ROTC debt because he is fulfilling his military obligation.  He attended the University of Southern California, accepted an ROTC Scholarship and joined the USAR.  In 1994, he was awarded a two year ROTC scholarship.  In 1996, he completed all ROTC requirements mandated for commissioning to include all four years of ROTC classes and the Advanced Camp, however, he could not be commissioned because he had not earned a degree and became a so-called "continuation cadet."  By 1997, a new Professor of Military Science was assigned and he proceeded to drop all "continuation cadets" from the ROTC program in order to "clean the books."  Less than one year later, the applicant had earned a Bachelor of Science in Aerospace Engineering and joined the California ARNG.  He has completed all requirements mandated by the ROTC scholarship and should not have to reimburse the Army for the scholarship.

4.  In support of his request, he submits a statement of account from the Defense Finance and Accounting Service indicating that as of 4 February 2002, he had a remaining debt of $2,162.00.

5.  The applicant’s ROTC cadet records are not available.  His military records show, however, that on 31 August 1994, he enlisted in the United States Army Reserve (USAR) for eight years as a Cadet and was assigned to the USAR Control Group (ROTC).  He is currently a commissioned officer assigned to a unit in the California ARNG. 

6.  On 28 January 1998, orders were issued honorably discharging him from the USAR Control Group (ROTC) for failure to maintain enrollment standards.

7.  On 27 March 1998, a transcript was forwarded by the University of Southern California to the California Adjutant General showing that as of 16 December 1997, the applicant had earned a Bachelor of Science degree in Aerospace Engineering.

8.  On 16 August 1999, orders were issued appointing the applicant a second lieutenant in the ARNG.

9.  A Service School Academic Evaluation Report for the period 1 June 1998 through 21 August 1998, reflects that the applicant completed the Reserve Component Officer Candidate School.

10.  A Service School Academic Evaluation Report for the period 4 January 2000 through 4 May 2000, reflects that the applicant completed the Armor Officer Basic Course.  The US Army Armor School issued a diploma indicating the applicant had completed the US Armor School.

11.  His two DA Forms 67-9 (Officer Evaluation Reports) for the periods ending 3 January 2000 and 4 May 2001, indicate that the applicant performed his duties as a second lieutenant scout platoon leader in an outstanding manner.

12.  A copy of the applicant's signed DA Form 597-3 was not available.  However as a normal part of a scholarship enlistment in the ROTC, an individual must sign a 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 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 and agreed that disenrollment from the ROTC program could result in a call to active duty or a reimbursement obligation.  Section 3c indicates that upon completion of all requirements individuals may accept an appointment, if offered, as a commissioned officer in either the USAR or ARNGUS and not resign such reserve appointment before completion of their eight-year contractual military service obligation.  Section 8 provides that disenrollment during or after Military Science IV (for scholarship holders) incurs a four-year active duty service obligation.

13.  Title 10, USC Section 2005,provides, in pertinent part, that the Secretary concerned may require, as a condition to the Secretary providing advanced education assistance to any person, that such person enter into a written agreement with the Secretary concerned under the terms of which such person shall agree - (1) to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement; (2) that if such person fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement; (3) that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed pursuant to clause (4), such person will reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided such person as the unserved portion of active duty bears to the total period of active duty such person agreed to serve; and (4) to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States.

CONCLUSIONS:

1.  The applicant argues that his service as a commissioned officer in the ARNG should be taken into consideration, and the prospect of repaying his ROTC scholarship while serving in the ARNG is unfair.  In actuality, the applicant did not complete the ROTC program as contracted and agreed to repay the debt.  He then joined the ARNG with no prior agreement that it would negate his ROTC debt obligation.

2.  Notwithstanding the above, the Board will in this case accept eight years service in the ARNG in lieu of four years service in the Regular Army to satisfy the applicant’s ROTC active duty obligation.  This conclusion is strictly an exception to policy made on an individual basis.

3.  Further, the Board concludes that modification of the applicant’s ROTC contract to allow the applicant to complete his reserve service as a direct commissionee renders the existing collection erroneous because the applicant is in compliance with the contract as modified.  Therefore, all monies previously collected from the applicant as a result of his failure to perform under the contract will be returned.

4.  If the applicant fails to complete eight years of service in the ARNG either voluntarily or because of misconduct, his ROTC debt will be recouped on a pro-rated basis.

5.  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.  amending the applicant’s ROTC scholarship contract to show that he would satisfy the service obligation under the original terms of the ROTC contract as a commissioned officer in the ARNG;

	b.  showing that with this modification of the contract, further collection of the ROTC debt is suspended, as no collection is authorized under the contract unless the applicant fails to complete the required service;

c.  returning to him any money already collected from him; and 

	d.  showing that if he fails to complete the eight-year contractual military service obligation as a result of his amended ROTC scholarship contract either voluntarily or because of misconduct, his ROTC debt will be required to be recouped on a pro-rated basis in accordance with paragraph 12 of                    DA Form 597-3.

BOARD VOTE:  

____jtm__  ____rwa_  ___jtm__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__________Raymond J. Wagner______
		        CHAIRPERSON

INDEX

CASE ID	AR2002069711	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021010	
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.	104.03	
2.		
3.		
4.		
5.		
6.