BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160004113 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160004113 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160004113 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 her debt of $52,019.03 to the U.S. Department of Treasury be cleared because her discharge from the Reserve Officers' Training Corps (ROTC) at Duke University is invalid. In effect, she requests her ROTC debt in the amount of $34,822.00 (original debt) be waived. 2. The applicant states, in effect, Duke University's Army ROTC program did not follow proper protocol when counseling her in regard to her height/weight standards during the 2002/2003 academic year. This is in direct violation of Army Regulation 600-9 (Army Weight Control Program), section III, part 21(b) and (c). Until her weigh-in on 18 May 2003 and 29 May 2003, she had met the ROTC height and weight standards. There was no precedence for failure. 3. The applicant provides: * Medical documents, dated 21 January 2003 * Letters, dated 2 June 2004 and 2 June 2005 to the Office of the Deputy Chief of Staff, G-1 * Letter, dated 26 June 2006, from the Defense Finance and Accounting Service (DFAS) * Letter, dated around January 2013 to DFAS * Family Medicine Final Report, dated 31 January 2013 * Body Fat Content Sheets CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's ROTC enrollment and disenrollment packets are not available for review. An exhaustive search was undertaken to locate her disenrollment packet. Unfortunately, it could not be found. However, the applicant provides sufficient evidence for the Board to conduct a fair and impartial review of her case. 3. The applicant enlisted in the U.S. Army Reserve (USAR) Control Group (ROTC) on an unknown date. Her enlistment contract is not available for review with this case. In connection with this enlistment, she presumably executed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) in 2001. She attended Duke University. The DA Form 597-3 would have stated in: a. Paragraph 2 (General Cadet Agreement) that the cadet agreed to maintain eligibility for enrollment and retention in ROTC and commissioning, as defined by statute, Army regulation, and the contract throughout the period of her contract. She agreed to meet and maintain the screening weight or body fat percentage required by the Army Weight Control Program required of active duty Soldiers each year. This would be a continuous requirement that she must continue to meet until the date that she reports to officer basic course or a Reserve Component unit and thereafter. She also agreed to keep herself informed of any changes in the standards through contact with her Professor of Military Science (PMS). b. Paragraph 5 (Terms of Disenrollment) that if she were disenrolled from the ROTC Program for any reason, the Secretary of the Army could order her 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 her 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. c. Paragraph 6 (Enlisted Active Duty Service Obligation) 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 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. On 29 May 2003, the applicant's PMS notified her by memorandum of his initiation of disenrollment action from ROTC and her placement on leave of absence based on her failure to maintain height and weight standards, which was a breach of her scholarship contract. 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 as such may not enlist in any other military service or component or sign any other scholarship contract. She was further informed that as a scholarship cadet she could be called to active duty in an enlisted rank/grade of private (PV1)/E-1 or be required to repay scholarship benefits in the amount of $34,822.00 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). 5. The applicant's acknowledgement of the receipt of the disenrollment memorandum is not available. It would have indicated if she waived her right to a hearing and personal appearance in order to respond to the validity of the debt. She would have acknowledged that: * the amount and validity of the debt as stated in the disenrollment memorandum is correct * by waiving her right, she also would have waived the opportunity to present matters regarding her disenrollment and the amount/validity of the debt * she appears to have waived her right to appeal the disenrollment and/or the amount and validity of the debt 6. On an unknown date, the Commanding General, 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 3-43(8), based on the applicant's height and weight failure. 7. Although the CG's memorandum is not available for review with this case, it would have 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 her education was $34,822.00. 8. Additionally, the CG would have provided the applicant a DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record) detailing the debt and ordering the applicant to elect an option as far as paying the full amount in one lump sum payment or initiate a repayment plan. The applicant would have also been notified that the addendum with her election must be received within 14 days of her receipt and failure to respond by the suspense date may result in the initiation of involuntary collection action. 9. On 2 June 2004 (and/or 2 June 2005), by letter to the Office of the Deputy Chief of Staff for Personnel, the applicant requested an appeal resulting from her hearing on 4 April 2004. She alleged that the PMS did not counsel her or record her height/weight measurements during the 2002/2003 academic year. She also alleged that the PMS unfairly removed her from the ROTC program and that he did not follow the regulation. 10. She provides: a. Multiple Body Fat Content Worksheets (Female) as follows: * Hand-written date: October 2002; height: 66 inches, weight: 159 pounds, body fat percent 30.35 percent * Hand-written date: 11 April 2003; height 66 inches, weight: 170 pounds, body fat percent: 31.83 percent * Hand-written date: 19 May 2003; height: 66 inches, weight: 170 pounds, body fat percent: 32.27 percent * Hand-written date: 28 May 2003; height: 66 inches, weight: 171 pounds, body fat percent: 34.34 percent Each form shows the standard (screening) weight allowed for her height of 66 inches was 146 pounds. For her age group from 21 through 27 years, the maximum allowable percent body fat was shown as 32 percent. In October 2002 and April 2003 she met the height and weight standards based on being under the body fat percentage. On two dates in May 2003, she did not meet the height and weight standards based on exceeding the maximum allowable body fat percentage. b. Post-service (ROTC) medical documents, dated on various dates in 2013, in relation to shoulder pain and/or magnetic resonance imaging of the shoulder. 11. The applicant initially applied to the ABCMR on 7 January 2006. On 26 July 2006, by letter the staff of the Army Review Boards Agency notified the applicant that her application was incomplete. The Agency requested she provide her ROTC disenrollment application and a statement from DFAS showing her debt. As her application was incomplete, her application was administratively closed without Board action. The applicant reapplied to the ABCMR on 5 February 2016. 12. An advisory opinion was received from the Army G-1 on 8 May 2017 in the processing of this case. An advisory official recommended disapproval of her request and stated: a. After careful review of this case, the Army G-1 recommend the Board disapprove the applicant’s request for relief. The record confirms that the Army disenrolled the applicant from the ROTC program for failing to maintain the height/weight standards prior to completing her obligation and while this is unfortunate, the Army does not have the authority to cancel her debt. b. The authorities to waive, remit, or cancel debt cannot be used under the circumstances surrounding her separation. Law precludes remitting or cancelling a debt under the authority of Title 10, U.S. Code, section 4837 (10 USC §4837), unless the debt was incurred while serving on active duty as a member of the Army-which the applicant was not. Additionally, the Army G-1 is precluded from waiving a debt under the authority of 10 USC §2774, because a debt arising from an ROTC Scholarship is not an erroneous payment, since the payment was proper at the time it was made. c. Finally, the applicant does not provide enough documentation to support her claim. In April 2003 her records do not list any limitations, but state "she's going to work aggressively on strengthening. We have to have her ready for her physical fitness test by the middle of May." Likewise, although her doctors operated on her shoulder in late 2003, there is no indication her removal from the program was directly related to her shoulder injury. 13. The applicant was provided with a copy of this advisory opinion to give her an opportunity to submit a rebuttal. She did not respond. REFERENCES: 1. 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. 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. One of the reasons for disenrollment is the failure to meet the same requirements of the Army Weight Control Program or the Army Physical Fitness Test as required of active duty Soldiers prior to the end of the last school term of the MSIII year. 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. DISCUSSION: The complete facts and circumstances surrounding the applicant's disenrollment from the ROTC program are not available for review with this case. However, the available evidence shows: a. The applicant was accepted into an Army ROTC scholarship program and appears to have understood and accepted the terms of her enrollment. She also appears to have not met the height/weight standards and as such, she was in breach of her contract. Accordingly, her Professor of Military Science initiated disenrollment proceedings against her. b. One of the terms of the ROTC scholarship contract required a cadet, in the event of disenrollment, to either monetarily repay the debt or agree to be ordered to active duty in the rank/grade of PV1/E-1 for an appropriate number of years. There is no evidence the applicant accepted expeditious call to active duty or agreed to enlist in a regular component of the Armed Forces. c. She failed to satisfy the contractual requirements of this program. As she was found in breach of her ROTC contract, she was presumably notified of her disenrollment from the program. She appears to have waived consideration of her case by a disenrollment board and her disenrollment was ultimately approved by the appropriate official. d. The applicant entered into a valid Army ROTC Cadet Contract. She received advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $34,822.00. She breached her contract when she failed to maintain the Army height and weight control standards. As she was in violation of her contract, she incurred a valid debt to the U.S. Government. e. As the G-1 official noted, in April 2003 her records did not list any limitations, but indicate she was going to work aggressively on strengthening to be ready for her physical fitness test by the middle of May. The Army G-1 official also noted that although doctors operated on her shoulder in late 2003, there is no indication her removal from ROTC was directly related to her shoulder injury. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004113 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004113 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2