BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150005516 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, in effect, her Reserve Officers' Training Corps (ROTC) scholarship debt be waived and recoupment be terminated. 2. The applicant states she elected to appeal/dispute the validity of her debt from disenrollment of the Reserve Officers’ Training Corp (ROTC) program due to breach of contract based on her withdrawal from Military Science (MS) classes. She incurred repayment of advanced education assistance provided by the Army totaling $44,360.50. She did not breach her ROTC contract. She requested to withdraw from the ROTC program in June 2011. This can be proven by a statement provided by lieutenant colonel (LTC) C (Retired). She was in good standing at Wilkes University and within her contractual right to withdraw from the ROTC program without financial obligation. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests a waiver of the applicant’s ROTC scholarship debt and termination of recoupment of $62,533.44 in educational expenses paid on her behalf during her participation in the ROTC Program. 2. Counsel states: a. In 2010 the applicant attended Wilkes University and participated in the ROTC scholarship program. In May of 2011, she wanted to withdraw from ROTC and transfer to Marywood University to enroll in their nursing program. During this time she was still enrolled in Military Science (MS) I. She contacted the enrollment officer for ROTC, Major (MAJ) R, to get advice on the process. She asked if she could withdraw from ROTC without having to pay back any scholarship money. He responded that he would check the rules and let her know. b. MAJ R contacted LTC C (Retired) who was the applicant’s uncle and MAJ R’s former superior officer. During that conversation MAJ R advised LTC C that it was too late for the applicant to withdraw from the ROTC program without financial obligations. LTC C advised the applicant that she would not be able to withdraw from the ROTC program unless she paid back the scholarship money she received. c. The applicant and her mother met with LTC R, Professor of Military Science (PMS); LTC C; and captain (CPT) L, assistant PMS, at the University of Scranton. During this meeting no one from the University of Scranton’s ROTC program advised the applicant that she could withdraw from the ROTC program at that time without any financial obligation despite her making it clear that this was her desire. As a result of this misinformation she enrolled in MS II in the Fall of 2011 while she was a student at Marywood University. d. In March 2012 the applicant received a letter from the Army notifying her that she was being disenrolled from the ROTC program due to low grades at Marywood University. She appealed that decision by submitting a written statement and requesting a hearing. A hearing was conducted by MAJ T on 18 June 2012. This was the first time that the applicant was able to review a copy of her ROTC contract. She realized that she was incorrectly informed that it had been too late for her to withdraw without financial obligation when she first desired to do so. e. MAJ T upheld the disenrollment but failed to address the applicant’s request that she be relieved of financial obligations. MAJ T committed numerous errors including his conclusion that the applicant had broken her contract by transferring from Wilkes University to Marywood University without approval. The transfer took place without any interruption in scholarship money being paid to Marywood University. MAJ T also failed to address the conflicting comments made by LTC C and MAJ R as to what was discussed and communicated to the applicant about her right to withdraw from the ROTC program without financial obligation. MAJ T accepted the facts stated in MAJ R’s statement and ignored the sworn statement form LTC C. f. The applicant filed an appeal to the U.S. Army Cadet Command. The Cadet Command received the appeal on 9 November 2012, as evidenced by a certified mail return receipt card signed by a representative of the Cadet Command. The Cadet Command failed to properly consider the applicant’s appeal despite the fact that it was timely filed. g. The Department of Defense contacted the Defense Finance and Accounting Service (DFAS) to start collection efforts against the applicant. When the applicant called DFAS to ask why the collection efforts had started while her appeal was pending, she was advised by DFAS that they were not aware of any pending appeal. She was denied her Constitutional right to due process by the Cadet Command by not considering her appeal. It appears the applicant’s appeal was ignored because of a procedural error in the manner in which the Hearing Board President failed to sign the Board’s decision. The decision was sent back to the Board for the president’s signature and that is why the appeal was never considered. The failure to consider the timely appeal resulted in DFAS imposing a penalty of almost $20,000. The DFAS claim is now in excess of $62,000 and collection efforts are now being handled by the Department of Treasury. 3. On 28 December 2015, the applicant obtained new counsel. The new counsel made the same contentions as the previous counsel. 4. Counsel provides: * phone records * memorandum, subject: Notice of Appointment as Investigating Officer (IO) for the Disenrollment Board Pertaining to [Applicant], dated 18 June 2012 * academic records * emails * Freshman Nurse Cadet Counseling Form * Memorandum, subject: Pre-Contracting Counseling, dated 5 November 2010 * Wilkes University Calendar * letter from Marywood University * U.S Army Advanced Education Financial Assistance Record * Postal receipt * DA Form 597-3 (Army Reserve Senior Officers’ Training Corps (ROTC) Scholarship Cadet Contract) * DA Form 4856 (Developmental Counseling Form) * memorandum, subject: Disenrollment of Scholarship/Nonscholarship Cadet from ROTC-[Applicant], dated 28 March 2012 * memorandum, subject: Transcript of Disenrollment Board for [Applicant], dated 22 June 2012 * memorandum, subject: Official Disenrollment Board, dated 5 July 2012 * two letters of rebuttal * memorandum, subject: Disenrollment from the Army Reserve Officers’ Training Corps (ROTC) Program * orders * letter from Defense Finance and Accounting Service * letter from Department of Treasury * letter of support CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) Control Group (ROTC) on 5 November 2010. The name of the educational institution was Wilkes University. 2. Paragraph 1 (Department of the Army Agreements) of her DA Form 597-3 states she would be paid scholarship benefits for a period of 4 academic years. Paragraph 5 (Terms of Disenrollment) states that she understood and agreed that once she became obligated and was disenrolled from the ROTC program for breach of contractual terms the Secretary of the Army or his designee could order her to active duty as an enlisted Soldier for a specified period of time; or in lieu of being ordered to active duty, she could be required to repay the dollar amount, plus interest, equal to the entire amount of the financial assistance paid by the United States to the cadet. 3. A letter to the applicant from Dr. D. H., Chairperson, Department of Nursing, dated 22 December 2011, informed the applicant that she was unable to remain in the nursing program due academic reasons and she was dismissed. 4. A DA Form 4856, dated 23 January 2012, shows that applicant chose not to participate as a non-scholarship cadet due to being dropped from the Marywood University Nursing Program for losing her ROTC scholarship. 5. On 28 March 2012, her PMS notified her by memorandum of the initiation of disenrollment action from the ROTC program based on her breach of contract due to her withdrawal from Marywood University and her failure to maintain a minimum GPA of 2.75. She was informed she could request a hearing by a board of officers or an investigating officer to hear her case. She was further informed that as a scholarship cadet, she could be called to active duty in an enlisted rank/grade of private/E-1 or required to repay scholarship benefits in the amount of $44,360.50. 6. On 8 May 2012, she acknowledged receipt of the notification and requested a hearing. 7. A memorandum, issued by University of Scranton, Royal Warrior Army ROTC Battalion, Scranton, PA, dated 18 June 2012, shows MAJ KT was appointed as the Investigating Officer (IO) for the disenrollment board proceedings of the applicant. MAJ KT was appointed to conduct a fair and impartial investigation to determine if the applicant violated the terms of her contract. 8. The results of the investigation are not available; however, in a sworn statement obtained from Mr. R, formerly MAJ R, by the IO, he stated: a. He could only recall one phone conversation concerning the applicant, but he did not recall the date. It was prior to May as the applicant had not yet taken her MS I final and he was her MS I instructor. The conversation with LTC C centered on the applicant’s desire to transfer to the Marywood University School of Nursing. At that time and still Cadet Command did not recognized Marywood’s School of Nursing as a viable program due to repeated years of National Council Licensure Examination score for first time examinees being very low and did not allow new scholarships or transfer scholarships to Marywood University for Nursing. He advised LTC C that the applicant was talking about transferring to Marywood and that Cadet Command would not approve that move. That was all they discussed. b. He never discussed the subject of scholarship reimbursement with the applicant or anyone in her family. He informally suggested to the applicant that ROTC may not be for her as she always seemed to be miserable in ROTC class and activities. The applicant stated that she wanted to stay in ROTC and become an Army Nurse. He had planned to again suggest to her in her end of semester counseling that she may want to reconsider her decision to remain in ROTC but she was one the only one of 10 students who failed to attend her scheduled final counseling appointment. c. The applicant violated her contract twice. First when she failed to fulfill her obligation at the school listed in the contract and second when she transferred to another school without obtaining written approval from the PMS as required in the contract. He also witnessed LTC R offer her the option to be retained as a non-scholarship cadet in another major and she declined. 9. On 22 June 2012, the Disenrollment Board found that the applicant violated her contract by withdrawing from both Wilkes University and Marywood University without written permission. She also violated her contract by failing to meet minimum semester cumulative GPA. She was duly counseled as to her contractual obligation to SROTC during her contracting period, during the 2nd Brigade nurse’s visit, and by her MSII instructor. The applicant did not dispute her understanding of the contract nor her violation of the contract. The applicant contested disenrollment in two counts: a. Mr. R, MS I instructor, told LTC C over the telephone that the applicant could not leave the program at the end of her freshman year without financial obligation. LTC C then told the same information to the applicant. The led the applicant to continue through her MS II year. If she had known that she could withdraw program at the end of her MS I year without obligation, she would have done so. b. Universities charge the maximum amount of tuition to the government for ROTC scholarship. If she had been on her own, she would not have accumulated that much debt. According to counsel, that added to the punitive nature of the debt. 10. As to the applicant’s contested point 1, the Board found no existence of the telephone conversation between LTC C and Mr. R. In a sworn statement, Mr. R stated that he advised LTC C that the applicant was talking about transferring to Marywood University and that Cadet Command would not approve that move. The applicant transferred to Marywood University without written approval, also in violation of her contract. In his statement, Mr. R also stated that he informally advised the applicant, during her MS I year, that ROTC may not be for her, as she always seemed to be miserable in ROTC class and ROTC activities. 11. As to the applicant’s contested point 2, Cadet Command had no authority to dictate tuition rates at the universities the applicant attended and could not use those rates to punish the applicant. 12. On 17 July 2012, she submitted a rebuttal to the Disenrollment Board decision. She stated: a. The report failed to recognize the lack of counseling and the confusion that resulted. She was requesting to be released from any reimbursement to the U.S. Government because her decision to remain in the ROTC program was based on information provided to her that was contrary to her ROTC contract. b. She called MAJ R and informed him of her desire to leave the ROTC program around the middle of May. She informed him that she had transferred to Marywood University and she wanted to leave the ROTC program. Her primary reason for wanting to leave the program was her intense dislike of public speaking. She further informed him that if it was too late to depart the program without financial obligation she was prepared to continue in the program as an Army Nurse Cadet. He never contacted her directly; he communicated through her uncle, LTC C. She trusted MAJ R’s counsel and decided to remain in the Army ROTC program based on that information. c. Her uncle informed her that he had discussed her intent to leave the ROTC program with MAJ R on 11 June 2011 both on the phone and in person during the week of 6 June 2011. MAJ R informed him that it was too late to leave without financial obligation. d. As a result, she, her uncle, and her mother scheduled a meeting with LTC R and CPT L. The meeting took place in July 2011. In the meeting they discussed her transfer to Marywood University, her intense dislike of public speaking, and her continued service as an Army Nurse Cadet. Her uncle mentioned her transfer to Marywood University and their School of Nursing record. LTC R reported that it would not be an issue and there was no interruption in her scholarship. e. She was never informed by MAJ R that ROTC may not have been right for her. She concurred that the Cadet Command had no authority to dictate tuition rates at universities; however, her choice to accept the Army ROTC scholarship for merit caused her need-based university scholarship to be rescinded and Cadet Command did have the ability to release her from any reimbursement obligation. f. Her transfer to Marywood University was approved and her scholarship continued without interruption. She never withdrew from Marywood University and continues to be a full-time matriculating nursing student. g. She regrets that nursing and the ROTC program proved to be too much for her during the fall semester of 2011; however, during her freshman year as a Military Science I cadet at Wilkes University, she remained in good standing in the nursing program and met all of the conditions of her Army ROTC Scholarship Cadet contract. Her request to MAJ R to leave the Army ROTC program in May 2011 was within her contractual agreement. His advice and counsel was contrary to her contract and led to her decision to remain in the Army ROTC program as a cadet subject to reimbursement. 13. On 15 October 2012, she was notified by the U.S. Army Cadet Command that she was disenrolled from the ROTC program, would be discharged from the USAR Control Group (ROTC), and owed a debt of $44,360.50. 14. Orders 290-01, dated 16 October 2012, issued by the Royal Warrior Army ROTC Battalion, Scranton, PA, discharged her from the USAR Control Group (ROTC) effective 15 October 2012. 15. On 9 November 2012, she appealed to the U.S. Army Cadet Command and requested waiver of repayment of her ROTC scholarship debt. In her request she stated: a. She was a nursing student at Wilkes University during the fall semester of 2010 and she received a 2.7 GPA. She also received an A in the ROTC classes and physical training. As she progressed into the spring semester at Wilkes University she was taking 18 credit hours. As she completed the spring semester her cumulative average dropped to 1.9; however, she was able to maintain an A in ROTC. Overall her academic average was 2.0 and that allowed her to remain in good standing in the nursing program at Wilkes University. At the conclusion of the spring 2011 semester she realized that Wilkes University was not the right fit for her and she decided to transfer to Marywood University in order to continue acquiring a nursing degree. At that point she also realized that the ROTC program was not the future she was looking for. She was extremely uncomfortable with public speaking and her grades in the nursing program were suffering. b. She did not say anything to MAJ R until she was sure she was accepted at Marywood University. She had heard that a cadet had one year to make a decision about remaining in the ROTC program and she believed that meant a year from when she started in August 2010. She was never counseled about the ROTC timeline and decision points during the semester. c. After the spring semester she called MAJ R and told him she had transferred and did not want to remain in the ROTC program due to her issues with public speaking. She told MAJ R if it was too late to withdraw from the program she would continue with the program and fulfill her contract. She did not hear from MAJ R after that phone call. Her uncle, LTC C told her that MAJ R had talked to him and said it was too late to get out of the ROTC program. d. Over the summer her uncle arranged a meeting with LTC R and CPT L LTC R told her uncle that they did not want to lose her and that her grades were good. She wasn’t sure why he said that unless he was not aware of her spring semester grades. They discussed her issues with ROTC and public speaking. They agreed that she would try and overcome her issues and continue in the ROTC program at Marywood University. e. The ROTC program was to be completed in four years and because she transferred she had to catch up. She took 20 credit hours in the fall. She was already struggling and 20 credits were too much for her. She felt pressure to fit everything into a four year plan. There was no counseling during the process other than her uncle. He helped her register for ROTC classes at the University of Scranton and she later found out that they had registered incorrectly. f. Her fall semester nursing GPA was 2.38. It was not enough to continue in the nursing program at Marywood. She texted her MSII instructor and informed him that she was unable to continue in the nursing program at Marywood University. She did not hear from anyone in the ROTC program over the break. When she went back to school she started back with the ROTC PT at Marywood. She was still not aware of her status at that point. She finally requested to meet with SFC W, her MSII instructor. The meeting was awful. g. SFC W said she needed to state her plans in writing. She gave her letter stating she did not want to continue in the ROTC program without the scholarship. She did not want to be in the ROTC program after the first year and if she had been appropriately counseled about the date to disenroll this would not be an issue. After her uncle informed her that it was too late to disenroll, she fully intended to fulfill her contract; however, her course load became unmanageable and her nursing grades suffered, preventing her from fulfilling the scholarship requirements. h. If she had not taken advantage of scholarship she would have received more scholarship/financial aid from the colleges she attended and would have accumulated less debt. Requiring her to repay the debt would cause financial hardship on her and her family. 16. The decision on the appeal is not available for review. 17. On 8 March 2013, DFAS informed the applicant that her debt was currently in the amount of $44,360.50. She was advised that she could make payment arrangements. 18. On 23 December 2014, the Department of Treasury informed the applicant that her debt was currently in the amount of $62,533.44 to include fees, interest, and penalties. 19. Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program: Organization, Administration and Training) prescribes policies and general procedures for administering the Army’s Senior ROTC Program. Paragraph 3-43, in part, states that scholarship cadets will be disenrolled for a breach of contract. 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. Paragraph 3-43a states a cadet may be disenrolled for failure to maintain a minimum academic GPA of 2.0. 20. 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. 21. Army Regulation 37-104-3 (Finance Update) provides the policies and provisions for entitlements and collections of pay and allowances of military personnel. Chapter 59 currently in effect, provides for recoupment of educational expenses, e.g., ROTC, United States Military Academy, and advanced civilian schooling under a previous agreement when obligated active duty service has not been completed. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant enlisted in an ROTC program. She agreed if she were disenrolled from the ROTC program for any reason, she could be ordered to repay her scholarship debt. The evidence of record also shows she failed to satisfy the contractual requirements of this program due to her failure to maintain academic standards and her withdrawal from Wilkes University. Therefore, she was found in breach of her ROTC contract and was accordingly notified of her disenrollment from the program. 2. Counsel states and evidence shows the applicant was disenrolled from the ROTC program during her fall 2012 semester (sophomore) and was subsequently found in breach of her ROTC contract. She was, therefore, offered the opportunity to be ordered to active duty, repay the debt in a lump sum, or repay the debt in monthly installments. She was also notified that failure to respond within 14 days of the disenrollment approval would result in the issuance of active duty orders or initiation of involuntary collection action. She requested a hearing to personally appear and respond regarding her disenrollment and respond to the amount or validity of the debt. 3. On 22 June 2012, the Disenrollment Board found that the applicant violated her contract by withdrawing from both Wilkes University and Marywood University without written permission. She also violated her contract by failing to meet the minimum semester cumulative GPA. The Board found that she was duly counseled as to her contractual obligation to ROTC during her contracting period, during the 2nd Brigade nurse’s visit, and by her MS II instructor. The Board noted that she did not dispute her understanding of the contract nor her violation of the contract. 4. Counsel contends in May of 2011, the applicant wanted to withdraw from ROTC and transfer to Marywood University to enroll in their nursing program. During this time she was still enrolled in MS I. Counsel contends the applicant contacted the enrollment officer for ROTC, MAJ R, to get advice on the process; however, in the applicant’s own statement she admits she contacted MAJ R after she had transferred to Marywood University. There is no evidence and counsel does not provide any evidence to show that the applicant had written approval to transfer to Marywood University or that she requested to be disenrolled from the ROTC program. 5. Counsel contends that the LTC C, the applicant’s uncle, was told by MAJ R that it was too late for the applicant to withdraw from the ROTC program without financial obligation in during her MS I semester; however, MAJ R disputes this claim and there is no evidence substantiating this claim. 6. The terms of the ROTC scholarship contract require a cadet to either monetarily repay his/her debt or agree to be ordered to active duty as an enlisted Soldier through ROTC channels based on the needs of the Army. 7. She entered into a valid contract and received educational assistance but failed to complete the requirements of this contract. She was recommended for disenrollment and payment of her debt. She was subsequently disenrolled from the ROTC program due to her failure to meet academic standards and her withdrawal from Marywood University and Wilkes University. She breached her ROTC contract and the evidence of record confirms her ROTC debt is valid. 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) AR20150005516 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005516 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1