IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150011340 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: The applicant, in effect, defers to his counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests waiver of the applicant’s Reserve Officers’ Training Corps (ROTC) Scholarship debt and refunding any amount (including interest and penalties) already recouped. 2. Counsel states the applicant’s 4 years of active duty Regular Army enlisted service more than compensates for the funds spent on the ROTC scholarship. He points out that the applicant would only have been required to serve on active duty for 2 years if he had not voluntarily enlisted. Upon signing the ROTC withdrawal papers he did not understand that the Commander, U.S. Army Cadet Command had yet to make a final determination in his case. The final determination by the Commanding General, Army Cadet Command that the applicant should repay $15,773.32 was not provided to the applicant. Holding him responsible for that debt after he has served 4 full years of Regular Army active duty is unfair and indecent. The Army has already reaped the full benefit of the amount invested in the applicant’s scholarship. 3. Counsel provides copies of – * Cadet Command Memorandum, dated 15 April 2010, with the applicant’s acknowledgement * Senior ROTC Contract Agreement * Cadet Command Memorandum, dated 6 July 2010 * DA Form 3286 Statement for Enlistment CONSIDERATION OF EVIDENCE: 1. The applicant’s ROTC documents are not contained in his Interactive Personnel Electronic Records Management System. All such documents were provided by counsel. 2. On 1 October 2008 the applicant signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) in conjunction with his enrollment for the 2008 school year. Paragraph 2 (General Cadet Agreement) states that he agreed to enroll in the necessary courses and successfully complete, within the prescribed time, the requirements for the degree in the academic major (International Affairs) stated in this contract. He further agreed to remain enrolled in and successfully complete the ROTC program. Paragraph 2 states he was specifically required him to obtain permission from the Professor of Military Science before transferring to another educational institution or taking leave from the continuous performance of the contract. Paragraph 5 states if he were disenrolled from the ROTC Program for breach of contractual terms or any other disenrollment criteria established then or in the future by Army regulations, he would be subject to the following terms: a. The Secretary of the Army, or his designee, may order him to active duty as an enlisted Soldier, if he is qualified, for a period of not more than 4 years. b. If he is offered the opportunity to repay his advanced educational assistance in lieu of being ordered to active duty, he would be required to reimburse the U.S. Government through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the U.S. for his advanced education from the commencement of this contractual agreement to the date of his disenrollment or refusal to accept a commission. c. If he voluntarily or because of misconduct failed to complete any period of active duty or duty in a Reserve status not on active duty that he incurred under this contract, he would be required to reimburse the U.S. Government. d. Any obligation for him to reimburse would not be altered any subsequent enlistment in any of the ARMED Forces. 3. In a memorandum, dated 15 April 2010, the Professor of Military Science, Army ROTC Detachment, Northern Michigan University, informed the applicant that he was being placed on leave of absence pending his disenrollment. This action was taken based on the applicant's non-participation in the Program. a. The applicant was informed of his option to request a hearing and that either a board of officers or an investigating officer would be appointed. He would be permitted to appear before whichever was appointed for the purpose of presenting matters regarding his disenrollment. His case would be processed in his absence unless he requested a delay and it was granted. b. He was informed that he could consult with any reasonably available military officer or a civilian counsel at no expense to the Government. If he wanted a non-lawyer military officer to assist with his decision whether or not to waive appearance and otherwise assist in exercising his options, he was to make his request for such as soon as possible. c. He was informed that he could submit written statements in his own behalf. d. He was informed that he must sign and return this notification within 10 working days. Failure to respond or to appear would be considered a waiver of his right to present matters regarding his indebtedness or disenrollment. e. He was informed that he would have an opportunity to rebut the findings of the hearing before the final decision by the Commander, U.S. Army Cadet Command. f. He was informed that as a scholarship cadet, the Army would decide whether he would be ordered to active duty or required to repay the scholarship benefits. 4. The applicant acknowledged the notification on 15 June 2010 and indicated that he would accept an immediate call to active duty for 2 years and could anticipate orders to active duty within 30 days. 5. A 6 July 2010 memorandum from Headquarters, Cadet Command informed the applicant that he had been disenrolled and enclosed an addendum that offered him a choice of immediate full repayment of all funds or establishing a payment plan. 6. On 16 February 2011 the applicant enlisted in pay grade E-3 in the Regular Army for 6 Years and a $20,000 bonus, and guaranteed training in military occupational specialty (MOS) 35W (Electronic Warfare Signal Intelligence. He acknowledged that: a. an initial payment of $10,000 would be made upon completion of contracted MOS training and arrival at his first permanent duty station and b. the remaining bonus would be paid in equal anniversary payments for the remainder of his enlistment. 7. 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. a. Paragraph 3-39 states the Commanding General, U.S. Army Cadet Command is the approving authority for termination of scholarship and/or disenrollment from the ROTC Program. 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. Failure to maintain academic standards of 2.0 out of 4.0 is a reason for disenrollment. 8. 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 (emphasis added) 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 contract. However, he did not satisfy the contractual requirements of this program. By law, the applicant had no options; only the Service did and the responsible official determined that the applicant should reimburse the funds spent on his behalf. Furthermore, enlistment was specifically excluded as satisfying a recoupment requirement. 2. The applicant agreed that if he were disenrolled from the ROTC Program for any reason he would have to repay his scholarship debt, or be ordered to active duty in the rank/grade of PV1/E-1 for an appropriate number of years, 2 years in his case as he was disenrolled at the end of his second academic year. As he was found in breach of his ROTC contract, he was accordingly notified of his disenrollment from the program. His disenrollment was ultimately approved by the appropriate official. Although he elected immediate call to active duty the responsible authority determined that he should repay the amount expended to him or on his behalf and offered him a chance to establish a payment plan. There is no evidence that the applicant tried to do so. 3. Approximately 8 months after his disenrollment from the ROTC Program, the applicant enlisted in the Regular Army in pay grade E-3 with a $20,000 bonus and guaranteed training in a specific MOS. While counsel contends that the applicant did not understand that the Commander, U.S. Army Cadet Command had yet to make a final determination in his case. The applicant enlisted months after that decision had already been made. 4. It has been the consistent policy of this Board to consider active duty service count toward an ROTC scholarship contractual obligation. 5. While it is argued that the applicant’s active duty service serves the same purpose as it would have had he been ordered to active duty after his disenrollment from ROTC; it must be recognized that by enlisting in pay grade E-3, by receiving a bonus and by receiving guaranteed MOS training the applicant obtained substantial advantages that he was not entitled to and which his ROTC contract provided would not be considered as satisfying a recoupment requirement. 6. The applicant contends his first 24 months of active duty service have fulfilled his ROTC contractual obligations, the evidence of record suggests otherwise. In addition to the enlistment bonus, he received enlistment in pay grade E-3 and guaranteed training. Therefore, partial relief should be granted as set forth below. 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 recoupment provisions by service in the Regular Army on a year per year basis minus any bonus money he received for his first 2 years of active duty. 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 refunding any reimbursement payments or pay forfeited except to the extent that said amounts exceed the bonus money received by the applicant for his first 2 years of active duty. ___________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) AR20150011340 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150011340 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1