BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20160002249 BOARD VOTE: ____X_____ ___X____ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20160002249 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her ROTC scholarship contract to show she would satisfy the service obligation under the original terms of the ROTC contract, as a U.S. Navy enlisted member, via her enlistment on 8 January 2013. 2. The Board further recommends that the Defense Finance and Accounting Service determine if she has been paid or is due to be paid a bonus or any other monetary incentives. In the event that she has been paid an enlistment or reenlistment bonus, that bonus payment should offset an equal portion of her ROTC scholarship debt. _____________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. BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20160002249 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) debt in the amount of $12,955 be waived. 2. The applicant states she incurred a debt through the Army Senior ROTC scholarship program. Her entry into the U.S. Navy on active duty warrants termination of the education debt which originated from the Army. 3. The applicant provides: * DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) * DD Form 785 (Record of Disenrollment from Officer Candidate-Type Training) * letter, dated 16 August 2011 * DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) * orders, dated 6 May 2013 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) ROTC Control Group as a cadet on 25 September 2008. In connection with this enlistment, she completed a DA Form 597-3 on 25 September 2008 that shows her education commenced at the University of Alabama at Birmingham on 19 August 2008 with a completion date of 15 May 2011. 2. Paragraph 5 (Terms of Disenrollment) of her DA Form 597-3 stated, in part: a. She understood that if she was disenrolled from the ROTC program for breach of contract terms, or any other disenrollment criteria established now or in the future, the Secretary of the Army may order her to active duty as an enlisted Soldier for a period of not more than 4 years. b. If she was offered the opportunity to repay her education assistance in lieu of being ordered to active duty, she would be required to reimburse the United States the dollar amount, plus interest, equal to the entire amount of financial assistance paid by the United States for her advanced education from the commencement of the contract to the date of her disenrollment or refusal to accept a commission. c. If she was disenrolled from ROTC, the Secretary of the Army retained the prerogative to either order her to active duty or order monetary repayment of her scholarship benefits. Therefore, if she was required to repay her educational assistance under the terms of the contract, her subsequent enlistment in an Armed Service would not relieve her from this repayment obligation. 3. Paragraph 6 (Enlisted Active Duty Service Obligation) of her DA Form 597-3 stated that if she were called to active duty for a breach of contract under the provisions of paragraph 5, she would be ordered to active duty for 2 years if the breach occurred during Military Science (MS) II, 3 years during MS III, or for 4 years after completion of MS IV, if she was a 2, 3, or 4-year scholarship recipient. 4. In June 2010, she attended the Leader Development Assessment Course (LDAC), Joint Base Lewis-McChord, WA. However, she failed the initial Army Physical Fitness Test (APFT) and exceeded the Army weight and body fat standards. 5. Her record contains a LDAC Cadet Wavier Request form requesting the applicant be granted an APFT waiver and be retained in the course. Her chain of command recommended approval and stated, in part, the applicant was only a few seconds shy of passing the run. It was believed she would pass the second APFT attempt. She would turn 21 on 13 July 2010 and would be in a new age group for height/weight. She was passing the specifications for that age group and must meet body fat standards and pass the APFT in order to complete the course. On 28 June 2010, the Warrior Forge commander approved the waiver. 6. On 13 July 2010, the applicant was dismissed from the LDAC for exceeding the allowable body fat percentage. 7. On 29 July 2010, her Professor of Military Science (PMS) notified her by memorandum of the initiation of disenrollment action from ROTC and placement on leave of absence based on her being dismissed from advanced camp for exceeding the allowable body fat percentage in accordance with Army Regulation (AR) 600-9 (The Army Weight Control Program). She was advised of her right to request a hearing. She was also notified that she retained the status of cadet until disenrollment and discharge action were complete and may not enlist in any other military service. She was informed that as a scholarship cadet she could be called to active duty in the enlisted rank/grade of private/E-1 or be required to repay scholarship benefits in the amount of $12,955 in lieu of a call to active duty. The PMS further advised her the final decision was with the Commander, U.S. Army Cadet Command (USACC). 8. On 6 August 2010, the applicant acknowledged receipt of the disenrollment memorandum, waived her rights, and she acknowledged: * the amount and validity of the debt as stated in the disenrollment memorandum was correct * by waiving her rights, she waived the opportunity to present matters regarding her disenrollment and the amount/validity of the debt * she waived her right to appeal the disenrollment and/or the amount and validity of the debt * she declined expeditious call to active duty 9. On 25 August 2010, her PMS recommended disenrollment with monetary payback. On 1 October 2010, the Brigade commander recommended disenrollment with monetary payback. 10. On 10 November 2010, the Commander, USACC, approved the request for disenrollment and ordered the applicant disenrolled from the ROTC Program under the provisions of AR 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 3-43a, based on her breach of contract due to her dismissal from the LDAC without credit. She was notified 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 her education was $12,955. 11. The applicant provides: a. A DD Form 785, that shows she was disenrolled from the ROTC Program on 10 November 2010. It stated the applicant was dismissed from advanced camp, received a recommendation not to receive credit for advanced camp, and was dismissed for exceeding the allowable body fat. b. A letter, dated 16 August 2011, that stated the Defense Finance and Accounting Service (DFAS) was responsible for the collection of individual debts owed to Department of Defense (DOD). The enclosed account statement showed the balance of the debt she owed was $12,955. c. A DD Form 4 that shows she enlisted in the U.S. Naval Reserve Delayed Entry Program (DEP) on 12 October 2012, was discharged from the DEP on 7 January 2013, and enlisted in the Regular Navy on 8 January 2013 for a period of 4 years in the pay grade of E-3. 12. In an email, dated 1 November 2016, an official with DFAS confirmed the applicant was currently serving on active duty in the U. S. Navy in the pay grade of E-3. She entered active duty on 8 January 2013, enlisted for a period of 4 years, and her expiration of term of service was 7 January 2017. REFERENCES: 1. AR 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. Failure to meet Army standards was a reason for disenrollment. 2. 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. 3. 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. 4. AR 135-210 (Order to Active Duty as Individuals for Other Than a Presidential Selected Reserve Call-up, Partial or Full Mobilization) prescribes policies and procedures for ordering individual Soldiers of the Army National Guard of the United States and the USAR to active duty during peacetime. It states 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: 1. The evidence of record confirms the applicant was accepted into the Army ROTC scholarship program; she fully understood and accepted the terms of her enrollment. However, she failed to satisfy the contractual requirements of this program due to failure to maintain Army body fat standards. 2. She agreed that if she were disenrolled from the ROTC Program for any reason she would have to repay her scholarship debt or be ordered to active duty in the grade of E-1 for an appropriate number of years. As she was found in breach of her ROTC contract, she was notified of her disenrollment from the program. She waived consideration of her case by a disenrollment board and her disenrollment was ultimately approved by the appropriate official and she was ordered to repay the debt. 3. However, she enlisted in the U.S. Navy Reserve DEP in October 2012 and enlisted in the Regular Navy on 8 January 2013 in the pay grade of E-3 for a period of 4 years. Although she enlisted in pay grade E-3 vice E-1, she has served honorably since January 2013 and continues to serve on active duty. 4. The applicant's enlistment and service in the Regular Navy serve the same purpose as it would have had she been ordered to active duty when she was disenrolled from ROTC. In other words, the DOD received and continues to receive the benefit of her service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002249 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002249 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2