IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150004095 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 termination of his Reserve Officers’ Training Corps (ROTC) scholarship debt. 2. The applicant states he served on active duty (AD) for more than 2 years, was deployed to Afghanistan from March – November 2014 in support of Operation Enduring Freedom (OEF) and is currently a Soldier in good standing. 3. The applicant provides: * United States Army Recruiting Command (USAREC) Message 12-008 * two Permanent Change of Station (PCS) Orders * DD Form 785 (Record of Disenrollment from Officer Candidate – Type Training) * Assignment Order * Discharge Order CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve as a cadet for 8 years on 26 August 2009. He indicated he was attending Butler University, Indianapolis, Indiana, commencing on 26 August 2009 with a projected completion date of 5 May 2013. 2. In connection with this enlistment, he executed a DA Form 597-3 (Army Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract) and agreed to receive scholarship benefits for a period of four academic years, including tuition and fees, books, laboratory expenses, and monthly subsistence, in exchange for an appointment as a Reserve of the Army upon successful completion of all academic, military, and other requirements of the Army ROTC program. 3. Paragraph 5 (Terms of Disenrollment) of his DA Form 597-3 states if the cadet was 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 service the cadet agreed to serve or was ordered to serve. 4. Paragraph 6 (Enlisted Active Duty Service Obligation) of his DA Form 597-3 states that if he were called to active duty for 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 (MS) II; 3 years if the breach occurred during MS III; or for 4 years if the breach occurred during MS IV. 5. On 29 December 2011, the professor of military science (PMS) placed the applicant on a leave of absence pending disenrollment from the ROTC program. 6. On 10 January 2012, the applicant completed Cadet Form 131-R (Cadet Action Request). It shows he requested a waiver of his rights, leave of absence, probation, and a medical determination based on his withdrawal from Butler University on 10 January 2012. 7. On 10 January 2012, the PMS also notified the applicant by memorandum of the initiation of disenrollment action from the ROTC program due to breach of the ROTC contract based on the applicant’s withdrawal from Butler University. On 10 January 2012, the applicant acknowledged he was briefed on the terms of his ROTC contract and indicated that if he was found to be in breach of his contract, he indicated his desire to serve on active duty immediately (normally within 30 days) under the Cadet Command’s Special Active Duty Provision in fulfillment of his ROTC obligation. 8. On 10 January 2012, the PMS recommended the applicant's disenrollment from the ROTC program. He also recommended the applicant be ordered to active duty to repay his scholarship debt. 9. On 7 February 2012, the applicant completed an Addendum to Part II Agreement of Cadet Contract (Active Duty Option). He indicated: a. Having been briefed on the terms of my Senior ROTC (SROTC) contract and found to be in breach of his contract, if eligible, request to be ordered to active duty in an enlisted status in fulfillment of my contractual obligation. b. The Commander, Cadet Command will issue active orders for two years in accordance with the terms of my contract. In pertinent part, if I am dismissed or withdraw from school prior to my graduation, I will be ordered to active duty within 60 days of such withdrawal or dismissal. c. If I am a scholarship cadet and I fail to fulfill this active duty service obligation, which includes meeting the physical standards for accession, I will be subject to the terms of repayment as a specified in my scholarship contract. 10. On 24 February 2012, the applicant acknowledged receipt of the disenrollment memorandum. He waived his right to a hearing and acknowledged the amount and validity of the debt as stated on the disenrollment notification was correct. He accepted a call to active duty within 60 days and declined expeditious call to active duty. 11. On 12 June 2012, the Commanding General (CG), U.S. Army Cadet Command (USACC), ordered the applicant’s disenrolled from the ROTC program in accordance with Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 3-43a (4)) due to breach of ROTC contract based on his withdrawal from school. Additionally, he incurred a debt in the amount of $62,804. USACC Orders Number 163-01 dated 12 June 2012, directed the applicant’s discharge from the United States Army Reserve Control Group, ROTC. 12. On 15 February 2013, the applicant enlisted in the Regular Army (RA) for a period of 6 years in the rank/pay grade of private first class (PFC)/E-3. Section VI (Remarks Continuation) of his DD Form 1966/6 shows the applicant was a disenrolled ROTC cadet and not ordered to active duty. 13. To date, the applicant continues to serve on active duty in the RA. 14. The applicant provides U.S. Army Recruiting Message 12-008, dated 11 October 2011, Subject: Disenrolled ROTC (Updated). This message reiterates guidance regarding the processing of ROTC cadets that have disenrolled and desire to enter AD only. It does not deal with the breach of contract or any debts due as a result thereof. 15. 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. A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3–43. b. Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract. Sub-paragraph 3-43a 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. Lack of interest in military training and/or failure to enroll in classes is reasons for disenrollment. 16. 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. 17. 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. 18. Army Regulation 135-210 prescribes policies and procedures for ordering individual Soldiers of the Army National Guard of the United States and the U.S. Army Reserve to active duty during peacetime. It states that former ROTC cadets, when ordered to active duty, will be ordered to report to the U. S. Army Reception Battalion and will be ordered to active duty in pay grade E-1. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant accepted an Army ROTC scholarship. He fully understood and accepted the terms of his enrollment. 2. He was disenrolled from the ROTC program as a result of his withdrawal from Butler University and he was subsequently found in breach of his ROTC contract. He was advised of his rights and elected to enter active duty in lieu of paying his debt. The CG approved the disenrollment; however a decision concerning the call to active duty was not included with his case or filed in his official military personnel file. 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 (emphasis added) as an enlisted Soldier in the Army through ROTC channels based on the needs of the Army, in the rank/grade of PVT/E-1. As he was disenrolled during his MS III academic year, per his contract he is required to serve 3 years of active duty service. 4. He enlisted in the RA for 6 years on 5 February 2013, in the pay grade of E-3. His enlistment in the RA serves the same purpose as it would have had he been ordered to active duty in the U.S. Army. In other words, the Department of Defense is still getting the benefit of his service. As a matter of equity only, it would be appropriate to consider his enlistment in the RA to have met the active duty obligation required by his ROTC scholarship contract. 5. Notwithstanding the fact that he entered a contractual agreement to serve in the RA, it would be premature and unfair to forgive his debt prior to his completion of 3 years of active service. Therefore, his debt to the Government should be placed in a suspended status pending his successful completion of 3 years of active service in the RA. If he fails to satisfactorily complete any portion of 3 years of active service, his debt is to be reinstated by DFAS at a prorated amount, including any additional interest incurred in the interim, and debt collection should be resumed. If he satisfactorily completes 3 years of active duty service, his service will have satisfied his debt to the Government. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x____ ___x____ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his ROTC scholarship contract to show he would satisfy his service obligation under the original terms of his ROTC contract as a Regular Army enlisted Soldier for a period of 3 years. a. DFAS will determine if he has been paid or is due to be paid a Regular Army enlistment bonus. In the event that he has received an enlistment bonus or becomes due for payment of an enlistment bonus, that bonus payment should be recouped to offset an equal portion of his ROTC scholarship debt. b. DFAS should reimburse him for any payments he has made toward resolving his ROTC educational debt. c. If he fails to complete the 3 years of active service obligated as a result of his ROTC contract either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis, including any additional interest incurred in the interim. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the termination of his ROTC scholarship debt until he completes 3 years of service. _______ _ 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) AR20150004095 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004095 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1