IN THE CASE OF: BOARD DATE: 20 August 2013 DOCKET NUMBER: AR20130002070 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests his Reserve Officers' Training Corps (ROTC) scholarship debt of $106,572.00 be forgiven. 2. The applicant states: a. He voluntarily withdrew from the ROTC program. While studying in Africa in the summer of 2010, he witnessed a mob brutally murder an alleged thief. He felt he could have intervened but only at extreme risk to himself and he decided not to do so. He subsequently felt guilt and he believes he was traumatized by the brutality of the attack. He voluntarily withdrew from ROTC. His Professor of Military Science (PMS) recommended he neither pay his scholarship nor be ordered to active duty. b. He believes the record to be unjust and in error because he was advised by cadre personnel to forego a review board in exchange for a recommendation by his PMS to waive financial responsibility. Upon discovery that the U.S. Army Cadet Command did not follow the recommendation by the PMS, an inquiry was submitted by a member of Congress and determined that the PMS' recommendation was not followed due to an apparent lack of supporting evidence. Neither he nor the PMS were aware of or informed of the level of documentation desired or required by the reviewing authority. 3. The applicant provides: * Letter to his Member of Congress * Clinical Assessment Form * Post-service psychologist statement * PMS statement CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) Control Group (ROTC) on 5 September 2008. He also executed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) in connection with this enlistment. 2. Paragraph 5 (Terms of Disenrollment) of the applicant's DA Form 597-3 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. 3. Paragraph 6 (Enlisted Active Duty Service Obligation) of his DA Form 597-3 states that if he were called to active duty for a breach of contract under the provisions of paragraph 5, he would be ordered to active duty for 2 years if the breach occurred during Military Science II, for 3 years if the breach occurred during Military Science III, or for 4 years if the breach occurred during Military Science IV. 4. He attended Loyola University, Baltimore, MD. However, during the spring semester of 2011, during MS III, he refused to return to the program (ROTC). He indicated that in early February 2010, while returning to his dorm from a meeting with a professor at the University of Ghana, he came upon a mob that had caught and brutally murdered a thief. He indicated that after witnessing this incident, he spent a year contemplating his continued participation in the ROTC program. He discussed the issue with his PMS who suggested speaking with a counselor. After many hours of counseling and an extensive period of self-reflection, he decided he no longer felt comfortable serving as a member of the Army. He felt his desire to serve his country would be better met by service in a more humanitarian branch. He decided to withdraw from ROTC to seek service that better fits his personal ethics. 5. On 16 June 2011, his PMS notified him by memorandum of the initiation of disenrollment action from ROTC and placement on leave of absence based on his withdrawal from his academic institution and refusal to return to the program, which was a breach of his scholarship contract. He was advised of his rights to request a hearing and also notified that he retained the status of cadet until disenrollment and discharge action were complete and as such may not enlist in any other military service or component or sign any other scholarship contract. He was further informed that as a scholarship cadet he could be called to active duty in an enlisted rank/grade of private (PV1)/E-1 or required to repay scholarship benefits in the amount of $106,317.00 in lieu of a call to active duty. The PMS further advised him that the final decision was with the Commander, U.S. Army Cadet Command (USACC). 6. On 3 August 2011, the applicant acknowledged receipt of the disenrollment memorandum. He waived his right to a hearing and personal appearance in order to respond to the validity of the debt. He acknowledged that: * the amount and validity of the debt as stated in the disenrollment memorandum is correct * by waiving his right, he waived the opportunity to present matters regarding his disenrollment and the amount/validity of the debt * he waived his right to appeal the disenrollment and/or the amount and validity of the debt 7. Additionally, on 3 August 2011 he declined call to active duty within 60 days after completion of his current projected graduation date or upon withdrawal/dismissal from school, whichever comes first and he declined expeditious call to active duty. 8. On 22 August 2011, the battalion commander (PMS) recommended approval of his disenrollment from the program. 9. On 11 September 2011, by memorandum to the Commanding General, USACC, the applicant's brigade commander indicated the applicant had failed to keep his contractual agreement by failing to enroll in Army ROTC classes/lab for the spring semester of 2011. He recommended the applicant pay back the scholarship monies of $106.317.00 and not be ordered to active duty. 10. On 28 September 2011, the applicant's PMS restated the events that occurred with regard to the applicant's withdrawal from ROTC after witnessing the murder of an alleged thief in Africa. He stated that the applicant attended six professional counseling sessions sponsored by the Army while he continued his participation in the program. The treatment, however, was unsuccessful and he voluntarily withdrew from ROTC. The PMS recommended the applicant neither repay his debt nor be ordered to active duty. 11. On 17 January 2012, the CG, USACC, approved the request for disenrollment and ordered the applicant disenrolled from the ROTC Program under the provisions of Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 3-43a(16) based on his failure to sign up for MS classes and lab for the 2011 spring semester. The memorandum also notified the applicant that when the ROTC scholarship contract is breached, an obligation to the Army must be satisfied by repaying the cost of advanced educational assistance provided by the Army and that the amount of monies spent in support of his education was $106,317.00. 12. Additionally, the CG provided the applicant with a DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record) detailing the debt and ordered the applicant to elect an option as far as paying the full amount in one lump sum payment or initiate a repayment plan. He was further notified that the addendum with his election must be received within 14 days of his receipt and failure to respond by the suspense date may result in the initiation of involuntary collection action. 13. On 5 March 2012, the applicant signed a statement indicating his promise to repay the total amount owed of $106,317.00 in monthly installments plus interest. 14. Subsequent to this action, the Defense Finance and Accounting Service (DFAS) notified him that he was indebted to the U.S. Government in the amount of $106,317.00 for the recoupment of education expenses paid on his behalf during his participation in the ROTC Program. 15. On 18 April 2012, in response to an inquiry launched through his Member of Congress, an official at the Office of the Chief of Legislative Liaison responded to the Member of Congress. He stated: a. This replies to your letter on behalf of [Applicant] concerning his disenrollment from the ROTC and debt with DFAS. Officials with USACC advise that [Applicant] was informed in his disenrollment memorandum that the USACC commander may direct him to repay the ROTC scholarship monies he received while enrolled in the program (the USACC commander is the sole decision authority for scholarship disenrollmenls). His PMS recommended no recoupment; however, the brigade commander recommended monetary repayment. [Applicant] waived his right to a board to appeal the decision; therefore, no board was held. He did not provide any documents or evidence to support a waiver of his debt in his disenrollment file; as a result, the USACC commander required repayment. b. Since [Applicant's] disenrollment from ROTC and subsequent establishment of a debt with DFAS, he is required to make monthly payments. Since the debt repayment requirement has already been established, legal restrictions preclude the USACC commander from granting a waiver of a properly established debt for recoupment of scholarship funds arising from breach of the ROTC contract. 16. He provides a post-service statement, dated 30 October 2012, from a licensed clinical psychologist, who states: a. [Applicant] was recently referred to my office for increased problems with anxiety and panic attacks. During these attacks, which usually occur at night, he develops an extreme sense of foreboding. He becomes agitated and restless and unable to sleep. He reported that these episodes appear to be triggered by being exposed to violence in the media that reminds him of having witnessed the brutal beating to death by stone of a man by an angry mob/gang while in Ghana. It appears he was not adequately prepared for the possibility of witnessing such killings before his arrival in Ghana. And yet, these killings occur on a fairly frequent basis according to a 2010 Human Rights Report available at the U.S. Department of State web site. Men and women are lynched for suspected robberies of even small items. Some incidents of ritual killings have been reported along with lynching of those suspected of involvement in ritual killings. Disputes about land succession rights are common due to overpopulation and these disputes can also result in deaths and property destruction. Vigilante and societal violence occurs on a regular basis in spite of legal prohibition. b. He was not aware of this possibility, nor did he receive any training about whether to intervene, or how to intervene should he come across such behavior during his stay in the country. At the time he witnessed this event, he was with someone who advised him to not intervene due to the danger it was likely to cause him by the same mob. He experienced an extreme conflict between his conscience, i.e., his desire to help another human being, and the advice he felt compelled to follow during the terrifyingly violent incident. The experience of having to "avoid coming to the aide" [sic] of man being beaten to death and the horror of witnessing this level of human to human violence ruptured his view of himself as an honorable person who valued life. It destroyed his confidence in his ability to defend his country through acts of violence due to having witnessed the barbaric reality involved in taking another human's life. He lost confidence that he could give back to his country meaningfully by learning to kill and he made the decision to withdraw from ROTC. c. Lieutenant Colonel D---- G------, based on research described in his book "On Killing: The Psychological Cost of Learning to Kill in War and Society," noted that "The vast majority of combatants throughout history, at the moment of time when they could and should have killed the enemy, have found themselves to be conscientious objectors." In fact, military experts now know that to get people with a conscience to kill with consistency requires two things, an authority to be present in the field with them, and having been led to believe that the enemy is not human (known as "moral exclusion"), or they will act in line with their intimate consciences and avoid killing. We also know that when a man's conscience is over-ruled by authority, inducing a man to kill, he is very likely to suffer post-traumatic stress disorder (PTSD) immediately and for the rest of his life (along with its concomitant problems with depression, divorces, addictions, ulcers and heart disease). [Applicant] was given the opportunity in the moment of witnessing a brutal killing to rethink his choice of a military career and he exercised his conscience and pursued disenrollment. Unfortunately, he was not offered the opportunity to choose to avoid killing as part of his training prior to this event, nor as part of his upbringing. In fact, he was raised in a conservative home in which his father controlled others with fear, guilt and anger, and stigmatized others for being "light-headed and yellow." Such an environment will exclude prematurely one's opportunity to consider whether military involvement is consistent with one's conscience. In spite of suffering from confusion and fearing stigmatization, he was able to act on his sense of right and wrong. Nevertheless, he could not avoid losing his former view of the world as safe and secure, because he now has the understanding that such events can occur, and he may not always know when. d. On evaluation, [Applicant] continues to meet full criteria for PTSD. He prefers to avoid thoughts about his experience, and when he is reminded of it he becomes hyper-vigilant, tense, agitated, anxious; his heart rate increases; and he is unable to sleep. Vivid intrusive memories of the event occur unexpectedly. He has lived with an excessive amount of self-doubt, anxiety and fearfulness since that time and has been unable to adequately support his request for waiver of recoupment. The information omitted when it was recommended that the requirement of recoupment be waived as part of his disenrollment, was regarding how this experience led him to examine and act on his conscience, and that the experience also left him suffering from PTSD that has continued to the present. Having to pursue an appeal of the final decision to require the recoupment payments has been very difficult for him because he is reminded of the traumatic event each time he has to face the tasks necessary to support the appeal. He has delayed the process, not submitted supporting documents in the past when required to do so, and left the appearance of not deserving the waiver. e. He (the psychologist) opines with 95 percent certainty that receiving a waiver will help to vindicate his difficult, but brave decision to withdraw from the ROTC program. It would serve to lessen the stigma he feels and help validate his choice to withdraw as equal in merit to the choice to continue. Not waiving the recoupment reinforces the notion that a conscientious decision not to kill is a reflection of some type of character inadequacy. It would be a travesty to leave this young man with that impression, when in fact, given the social context of his upbringing and the ROTC, his decision was very courageous. As Stanley Milgram pointed out in his studies on obedience after World War II, it is the people who are not obedient who bear the burden of their choice, not the people who shift the responsibility of their actions to an authority. He urges this Board to consider the decision and move to help this young man of conscience move forward with his life in a healthy self-respecting manner by showing that his decision was of equal merit to those who choose to stay in the military. 17. Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program. a. Paragraph 3-39 states the CG, USACC is the approving authority for termination of scholarship and/or disenrollment. Paragraph 3–39c identifies the exception pertaining to 4-year scholarship winners discharged early from active duty. A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3–43. The 4-year scholarship students can be disenrolled at their own request during MS I only. b. Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract. Sub-paragraph 3-43a(16) states breach is defined as any act, performance, or nonperformance on the part of a student that breaches the terms of the contract regardless of whether the act, performance, or nonperformance was done with specific intent to breach the contract or whether the student knew that the act, performance, or nonperformance breaches the contract. 18. Title 10, U.S. Code, section 2005(a), states 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 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 and (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. 19. Title 10, U.S. Code, section 2005(f), states that the Secretary concerned shall require, as a condition to the Secretary providing financial assistance under section 2107a (Financial Assistance Program for Specially Selected Members: Army Reserve and Army National Guard; i.e., ROTC) of this title to any person, that such person enter into an agreement described in subsection (a). In addition to the requirements of clauses (1) through (4) of such subsection, any agreement required by this subsection shall provide (1) that if such person fails to complete the education requirements, the Secretary shall have the option to order such person to reimburse the United States in the manner provided for without the Secretary first ordering such person to active duty as provided for under clause (2) of such subsection. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant was accepted into an Army ROTC scholarship program. He fully understood and accepted the terms of his enrollment. However, during his third year, he failed to satisfy the contractual requirements of this program due to his unilateral decision to not sign up for MS classes/lab for the 2011 spring semester which constituted a breach of contract. 2. He was informed of the decision to initiate disenrollment action against him. Likewise, he was informed that the approval authority to disenroll him was the CG, USACC. He was advised of his rights and waived a board of officers. He also declined an expeditious call to active duty that would have ordered him to active duty in lieu of paying his debt. 3. The terms of the ROTC scholarship contract required a cadet to either monetarily repay the debt or agree to be ordered to active duty. He elected to pay back the debt and declined service on active duty. The applicant breached his ROTC contract; therefore, he is not entitled to relief. 4. The applicant's academic standing and his current personal belief with regard to serving in the Armed Forces are not in question. However, he was never diagnosed with a medical condition that prevented him from completing his studies or contractual obligation. Aside from the lack of a statutory or regulatory reason to waive his valid debt, it is contrary to equity to even consider the prospect of negating his $106,317.00 debt for a free education he received from the Army without becoming an officer while thousands of other ROTC cadets annually complete their education through the very same program and fulfill their military obligation. 5. The applicant entered into a valid Army Senior ROTC Cadet Contract. He received advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $106,317.00 that constitutes a valid debt to the U.S. Government. By his own admission he voluntarily chose to withdraw from the program. The PMS could only make a recommendation regarding payment of the debt or active service. The final decision belonged to the CG, USAAC. From a statutory, regulatory, and equity standpoint, the applicant is not entitled to his requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ___x____ 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. _______ _ _x______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20130002070 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130002070 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1