RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            12 FEBRUARY 2004                  
	DOCKET NUMBER:   AR2003089976

	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. Joann H. Langston		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Robert J. Osborn		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that he be relieved of a debt of $990.00 that was imposed on him in January 1997 by the United States Army Cadet Command.  He also asks that monies that have already been collected from him be reimbursed.

2.  The applicant states he earned a 2-year Army ROTC (Reserve Officer Training Corps) Scholarship in August 1995 and argues that the pay he received between June and December 1996 was part of the earned scholarship and “not erroneous pay.”

3.  He states that his contract indicates that if his “scholarship benefits are temporarily inactivated by a leave of absence or administrative suspension, or terminated due to his failure to meet academic or military retention standards” he would “not be relieved of [his] obligation to the U.S. Army and [his] obligations under this contract remain in effect.”  He contends that this means he could still be paid if he was put on a leave of absence, unless a discontinuance of pay “was immediately and promptly put into effect.”

4.  He states that there was “no discontinue [sic] of pay during June 1996 to December 1996,” and that he was not relieved of all obligations until 6 June 2000.  As such, he contends he did not receive any erroneous pay.

5.  He states that his Reserve unit was not ordered to “disenroll me without further obligation to the Army or my Reserve Unit” until June 2000 and as such this would mean he was not obligated to pay the United States Government back.  He contends that his relief from further obligation also means that he is not obligated to pay any money back.  He states that even if he were obligated to pay funds back, “subsistence allowance would not be considered in the total cost of repayment.”

6.  The applicant provides copies of his scholarship contract, relief of obligation paperwork, and pay inquiry paperwork.

CONSIDERATION OF EVIDENCE: 

1.  Documents provided by the applicant indicate that in August 1995 he was notified that he had been awarded a “Two-year Tier IV Army ROTC Scholarship.” The notification letter indicated that he would receive up to $775.00 per semester 

for tuition and fees, $225.00 for books and supplies, and “$150.00 a month stipend for the months that you are in school [emphasis added] during the fall and spring semester.”

2.  On 24 August 1995 the applicant executed the scholarship contract.  The contract noted, among other things:

•	That he would enlist for a period of 8 years in the United States Army Reserve (USAR) “as a cadet for assignment to the USAR Control Group (ROTC).”  

•	That he would remain a full-time student at the educational institution.

•	Maintain, as a minimum, a cumulative academic grade point average of 2.0 on a 4.0 or equivalent scale.

•	Maintain at least a 3.0 on a 4.0 or equivalent scale in all ROTC courses.

3.  The contract noted that the applicant understood that:

•	If his scholarship benefits were temporarily inactivated by a leave of absence or administrative suspension, or terminated due to his failure to meet academic or military retention standards for scholarship cadets, he would not be relieved of his obligation to the United States Army and his obligations under the contract would remain in effect.

•	If he were disenrolled from the ROTC program for any reason he could be ordered to active duty in the grade of private, for a period of not more than four years, or, in lieu of being ordered to active duty, he could be required 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 from the commencement of the contractual agreement to the date of his disenrollment. 

•	The Secretary of the Army could, at any time release him without notice from the obligations under this contract and disenroll him from the ROTC Program without further benefits.

4.  In exchange for the applicant’s contractual obligation, the Army agreed to “pay a subsistence allowance at the rate prescribed by law…for satisfactory 

participation in the scholarship program” not to exceed 20 months for a 2-year scholarship.  The contract also contained a note indicating “subsistence allowance and pay are not considered in determining the total cost if repayment is necessary.”

5.  Although specific documents associated with the applicant’s academic situation and removal from the ROTC program were not available to Board, it appears that the applicant began studies in the fall of 1995.  By 12 June 1996 he had been placed in a “leave of absence” category pending disenrollment for failing to maintain the required grade point average.

6.  However, not withstanding the fact that he did not begin studies again in the fall of 1996 and was not in school, he was, nonetheless, paid his monthly $150.00 subsistence allowance.  He continued to receive that allowance through December 1996.

7.  In January 1997 a “pay inquiry” was submitted pertaining to the applicant.  The inquiry noted that the applicant had “been placed on leave of absence pending disenrollment as of 12 June 1996” and that the “cadet has received ROTC subsistence from Aug 1996 through 31 Dec 1996.”  The inquiry requested to “please change pay situation to a discontinue pay.”  The author of the inquiry noted that he did not “understand why it takes so long to take action on a cadet” and that he had been “paid right through since June of 96” and that such pay “will put him in a large debt status through no fault of his own as I see it.”

8.  In June 2000 the United States Army Cadet Command announced that the applicant had been disenrolled from ROTC and that his disenrollment was “based on his failure to maintain the required GPA and displaying an indifferent attitude in military training.”  The notification also indicated that “due to the mitigating circumstances surrounding the disenrollment board proceedings, the Professor of Military Science (PMS) is directed to disenroll Cadet [applicant] without further obligation.”

9.  Correspondence from the Defense Finance and Accounting Service to the applicant’s congressional representative noted that the applicant was placed in a leave of absence status on 12 June 1996 and as such “payments issued after that date were erroneous.”  A subsequent letter from that same office informed the applicant’s congressional representative that although the applicant believes the mistake was not his, the Comptroller General Decision B-124770, dated September 16, 1955, states that “persons receiving money erroneously paid by a government agency or official acquire no rights to the money and the courts have 

consistently held that such persons are bound in equity and good conscience to make restitution.”

10.  Funds the applicant would have received as part of tax refunds were applied to his debt in March and July 2001 and in March 2003.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board indicates that the applicant completed one year of his ROTC scholarship program (fall 1995 through spring 1996) for which he received funds for tuition, fees, books, and subsistence.  When the applicant failed to maintain the grade point average required under his contract, he was placed in a leave of absence category pending the outcome of his disenrollment action.  The disenrollment action was ultimately finalized in June 2000 at which time the applicant was disenrolled “without further obligation.”

2.  The evidence also shows that the applicant received a subsistence allowance commencing in the fall of 1996 when he was not in school.  

3.  The applicant’s argument that because he was in a leave of absence category and not disenrolled until 2000 he was therefore entitled to funds under the provisions of his contract, is without foundation.  If his argument were valid, one could argue that in addition to the subsistence allowance he received, he would also have been entitled to funds for tuition, fees, books, etc, while in the leave of absence state.  However, such was not the case.  The applicant was not attending school and as such would not have been entitled to any pay associated with his ROTC contract.

4.  The fact that a pay inquiry was submitted should have been an indication to the applicant that the subsistence pay that he received while not in school was erroneous.

5.  The applicant’s contention that he was still under contract, that subsistence pay was not included in “determining the total cost if repayment is necessary,” and that he has been relieved of all obligations, is evidence that he should be relieved of his debt is also without foundation.  When the applicant was finally disenrolled he was not required to reimburse the government for funds he received for his education during the 1995/1996 school year, he was not ordered to active duty, nor was he required to complete any of his 8 year statutory reserve obligation, all of which were provided for as part of his ROTC contract.  None of the actions relieved him from repaying funds that he received erroneously.

6.  The applicant knew, or should have known, that he was entitled to the subsistence allowance only while he was in school, as was provided for by his ROTC contract.  He should have known that if he continued to receive such pay, he would eventually be required to repay the erroneous amount.  The fact that payments were made through administrative error does not relieve the applicant of his responsibility to determine the true state of affairs in connection with the erroneous payment, nor relieve him of his obligation to repay the valid debt.  

7.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JHL___  __LE ___  __RJO __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		___Joann H. Langston___
		        CHAIRPERSON

INDEX

CASE ID	AR2003089976	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040212	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.