IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160006471 BOARD VOTE: ____X_____ ___X____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160006471 BOARD DETERMINATION/RECOMMENDATION: 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 his ROTC scholarship contract to show he would satisfy the service obligation under the original terms of the ROTC contract, as a U.S. Army enlisted Soldier, via his enlistment on 10 May 2010. _____________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. IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160006471 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 correction of his records to show he does not owe a debt in the amount of $85,432.09. He also requests a personal appearance. 2. The applicant states he incurred a debt through the Senior Reserve Officers' Training Corps (SROTC) scholarship program at Loyola College (now Loyola University), Baltimore, MD. He elected to serve 2 years of active duty in lieu of the loan repayment and he completed the service obligation. After basic training (BT), his debt was placed in a suspended status pending completion of the 2-year service obligation. 3. The applicant provides: * DA Form 597-3 (Army SROTC Scholarship Cadet Contract) * DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) * DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record) * two memoranda, dated 28 August 2009 and 1 December 2009 * Cadet Command (CC) Form 131-R (Cadet Action Request) * CC Form 213R (SROTC Contract Agreement - Special Active Duty Provision Statement of Understanding) * a page titled Addendum to Part II Agreement of Cadet Contract (Active Duty Option) * orders * two letters from the Department of Treasury CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) ROTC Control Group as a cadet on 27 November 2007. In connection with this enlistment, he completed a DA Form 597-3 on 27 November 2007 that shows his education commenced at Loyola College on 4 September 2007 with a completion date of 25 May 2011. 2. Paragraph 5 (Terms of Disenrollment) of his DA Form 597-3 states that: a. He understood that if he 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 him to active duty as an enlisted Soldier for a period of not more than 4 years. b. If he was offered the opportunity to repay his education assistance in lieu of being ordered to active duty, he 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 his advanced education from the commencement of the contract to the date of his disenrollment or refusal to accept a commission. c. If he was disenrolled from ROTC, the Secretary of the Army retained the prerogative to either order him to active duty or order monetary repayment of his scholarship benefits. Therefore, if he was required to repay his educational assistance under the terms of the contract, his subsequent enlistment in an Armed Service would not relieve him from his repayment obligation. 3. Paragraph 6 (Enlisted Active Duty Service Obligation) of his DA Form 597-3 states that if he were called to active duty for a 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 during MS III, or for 4 years after completion of MS IV, if he was a 2, 3, or 4-year scholarship recipient. 4. His record contains a self-authored statement, dated 30 March 2009, wherein the applicant detailed the circumstances surrounding his record of convictions and stated he had not been convicted of any violations other than minor traffic violations or those reported as follows. a. On 23 December 2003, he was charged with "shooting at mark/target during season" and fined $252. After school, he and friends drove outside of town to the state game-lands to shoot at cans with a .22 caliber rifle. They were unaware it was archery season and the game warden called the police. He and his friends were fined for target shooting during archery season. b. On 29 January 2004, he was charged with "accidental damage to an unattended vehicle or property" and fined $350. That evening, he was driving a friend home; there was snow on the road and the driving conditions were bad. He was going too fast for the road conditions when the car skidded and he slid into a snow bank. The front of his car hit a mailbox and snapped the wooden post. He was fined for careless driving and he replaced the mailbox. c. On 13 May 2006, he was charged with a "speeding violation" and fined $700 in NC. He was driving to his sister's college graduation and was going 88 miles per hour (MPH) in a 55 MPH zone. He was unable to pay the entire fine at the time and did pay it by November 2006. NC suspended his license for not paying the fine in the prescribed time. d. On 18 September 2006, he was charged with "driving while operating privilege suspended" and fined $250. He was driving home from work and did not come to a complete stop at a stop sign. A police officer saw this and gave him a citation for running the stop sign and driving on a suspended license. e. On 21 September 2006, he was charged with "driving while operating privilege suspended" and fined $328. He was driving when a traffic light turned yellow and he went through it; it turned red by the time he entered the intersection. A camera took his picture and he received a citation for running the stop light and driving on a suspended license. f. On 3 June 2007, he was charged with "leaving scene of accident and driving with suspended license." He was fined $500 and sentenced to serve 25 days in county jail. He was driving to work when his car was struck by a truck after he entered an intersection. The accident occurred at low speed and his car was not damaged. He knew he was not at fault for the accident but was driving with a suspended license; he did not think things out and he left the scene of the accident. Shortly afterwards, he was contacted by the police. He went to talk to the police and was charged with the offenses [stated above]. The case went to trial and he pled guilty. He wanted to serve his sentence immediately as he was starting school in September so he served 25 days in York County Prison, York, PA. The experience made him much more humble and taught him to be responsible for his actions. 5. He provides DA Form 5315-E, dated 27 August 2009, wherein it shows as of that date he had received $72,055 in ROTC benefits. 6. On 28 August 2009, by memorandum, he was notified by his professor of military science (PMS) that: a. Under the provisions of Army Regulation 145-1 (SROTC Program), he (the PMS) was initiating his disenrollment from the ROTC program based on his undesirable character demonstrated by willfully omitting past traffic violations from his CC Form 139-R (Cadet Enrollment Record) as clearly directed. His trend toward undesirable behavior coupled with his inability to maintain a cumulative grade point average (GPA) of 2.0 contributed to his lack of confidence in the applicant's ability to meet commissioning standards and compelled his recommendation that the applicant be disenrolled from the program. He was placing the applicant on a leave of absence pending disenrollment. b. He may request a hearing and a board of officers or investigating officer would be appointed to hear his case. He may consult with an available military officer or civilian counsel a no expense to the Government to help him decide whether or not to waive a hearing. He may submit written statements in his own behalf and must sign and return the notification within 10 working days. c. The Army would determine whether to order him to active duty or direct repayment of any scholarship funds he had received. As a scholarship cadet, he may be called to active duty in the enlisted grade of E-1 to fulfill his contractual obligation, or required to repay scholarship benefits of $72,055, in lieu of call to active duty. d. He retained the status of cadet until disenrollment and discharge action was complete and may not enlist in any other military service or component. If eligible, he may choose expeditious call to enlisted active duty. If he elected this option, he would normally be ordered to active duty with 30 days of his disenrollment. On 1 September 2009, he acknowledged receipt of the memorandum. 7. On 1 September 2009, the applicant signed CC Form 213R, wherein he acknowledged: a. Having been briefed on the terms of his SROTC contract and found to be in breach of the contract, he stated he desired to serve on active duty immediately (normally within 30 days) under the special active duty provision (SADP) in fulfillment of his SROTC obligation. b. He understood that his active duty would be contingent on the disenrollment proceedings being reviewed at the U.S. Army Cadet Command (USACC). If the proceedings were legally sufficient and he was eligible to serve on active duty, Headquarters (HQ), USACC would approve the action and, based on his request, promptly issue him the necessary orders. He understood he would be ordered to active duty in the active Army for 2 years in fulfillment of his contractual obligation (emphasis added). 8. On 1 September 2009, the applicant signed the Active Duty Option Addendum wherein it stated that having been briefed on the terms of his SROTC contract and found to be in breach of the contract, if eligible, he requested to be ordered to active duty in an enlisted status. If he chose this option, the Commander, USACC would issue active duty orders for 2 years. The orders would be published with a reporting date within 60 days after his current projected graduation date of May 2011 if he agreed to continue to pursue his current baccalaureate degree at the school he was enrolled in. If he was dismissed or withdrew from school prior to graduation, he would be ordered to active duty within 60 days of such withdrawal or dismissal. 9. The applicant provides CC Form 131-R, addressed to HQ, USACC, wherein it shows his PMS signed the form on 9 September 2009 and certified the applicant's enrollment/retention information submitted with the request was accurate and complete. He recommended approval of the disenrollment waiver of rights action and stated he requested the applicant be called to active duty within 30 days in order to fulfill his contractual obligation. The applicant had requested the action and he approved. The applicant was physically fit and he believed he had the potential to serve honorably within the enlisted ranks. 10. Records show that one of the staff members of HQ, USACC subsequently recommended the applicant be ordered to active duty in lieu of repayment of the ROTC debt. A second staff member recommended he be ordered to repay the ROTC debt owed in lieu of being called to active duty due to his record of civil convictions. He stated, although the applicant accepted the call to active duty, there was no guarantee of waiver approval by the U.S. Army Recruiting Command (USAREC). 11. On 1 December 2009, by memorandum, the applicant was notified by the Commander, USACC that: a. He was disenrolled and would be discharged from the ROTC program. Disenrollment was due to his failure to maintain a minimum GPA of 2.0 and undesirable character as demonstrated by his failure to disclose prior civil offenses. b. When the ROTC scholarship contract was breached, any obligation to the Army must be satisfied by repaying the cost of the advanced educational assistance provided by the Army. The amount of monies spent in support of his education was $72,055. c. He could elect to pay the total amount owed in a lump sum and return the signed addendum with a certified check or money order. He could elect to initiate a repayment plan and return the signed addendum but not submit a payment at that time. His repayment selection would be forwarded to the Defense Finance and Accounting Service (DFAS) and they would provide him a repayment schedule. d. The addendum with his election must be received by their office no later than 14 days from the receipt of the memorandum. Failure to respond by the suspense date may result in the initiation of involuntary collection action. 12. Orders 335-1, dated 4 December 2009, issued by the Loyola University MD ROTC, disenrolled him for the ROTC program, and discharged him from the USAR Control Group (ROTC) effective 1 December 2009. 13. On 7 December 2009, the applicant signed an addendum to the scholarship contractual agreement, wherein it stated, in part, he promised to repay the total amount of $72,055 in monthly installments, plus interest, on the amount owed as specified in his scholarship contract. He understood DFAS would provide him a repayment schedule to liquidate his debt. 14. On 5 March 2010, the applicant was granted a moral waiver and enlisted in the USAR Delayed Entry Program (DEP) for training in military occupational specialty (MOS) 11X (Infantry Recruit). It is unknown if recruiting officials informed the applicant his ROTC debt would be suspended and remitted once he completed 2 years of active duty service. On 9 May 2010, he was discharged from the DEP. 15. On 10 May 2010, he enlisted in the Regular Army (RA) for a period of 3 years and 4 months in the rank/grade of private first class (PFC)/E-3 with no bonus. He successfully completed BT and advanced individual training and was awarded MOS 11B (Infantryman). 16. He was assigned to the Headquarters and Headquarters Company (HHC), 1st Brigade Special Troops Battalion (BSTB), Fort Hood, TX. He served in Iraq with his assigned unit in support of Operation New Dawn from on or about 2 July 2011 to 30 June 2012. He was subsequently promoted to specialist/E-4. 17. On 9 May 2013, he reenlisted in the RA for a period of 3 years for station of choice and no bonus. He was assigned to Joint Base Lewis McChord, WA. On 1 October 2013, he was promoted to sergeant (SGT)/E-5. 18. On 7 May 2015, he reenlisted in the RA for a period of 3 years and no bonus. He is currently serving in the RA in the rank of SGT. 19. The applicant provides: a. A letter from the Department of the Treasury, dated 18 February 2016, wherein it stated, as authorized by Federal law, they had applied all or part of his Federal payment to a debt owed. The collecting agency was DFAS and the amount paid was $6,386. b. A letter from the Department of the Treasury, dated 29 March 2016, wherein it stated his unpaid delinquent debt owed to DFAS had been referred to them for collection. According to DFAS records, he owed $65,710.07. Collection action would continue unless he made payment within 10 days of the date of the letter in the amount of $85,423.09, which included all applicable fees, interest, and penalties, as of today (the date of the letter). REFERENCES: 1. Army Regulation 145-1 prescribes policies and general procedures for administering the Army’s SROTC Program. a. Paragraph 3-43 states that non-scholarship and 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. b. Paragraph 3-43a states a cadet may be disenrolled for failure to maintain a minimum academic GPA of 2.0 or for failure to meet the requirements of the Army Weight Control Program and the Army Physical Fitness Test prior to the end of the last school term of the MS III year. 2. 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: USAR and Army National Guard (ARNG) (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. 3. Army Regulation 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 ARNG and the USAR 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. 4. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. 2. The evidence of record confirms the applicant was accepted into the Army ROTC scholarship program. He fully understood and accepted the terms of his enrollment. However, he failed to satisfy the contractual requirements of this program due to failure to maintain the required GPA and failure to disclose prior civil convictions. 3. He 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. As he was found in breach of his ROTC contract, he was notified of his disenrollment from the program. He waived consideration of his case by a disenrollment board and his disenrollment was ultimately approved by the appropriate official. Although he requested expeditious call to active duty, he was ordered to repay the debt instead of a call to active duty, as it appeared questionable if he would be granted a waiver by USAREC to enlist in the RA. 4. However, shortly after his disenrollment in December 2009, he enlisted in the USAR DEP and then the RA for 3 years and 4 months, in the rank of PFC for training in MOS 11B, and no bonus. Although he enlisted in pay grade E-3 vice E-1, he served honorably through his contract and has since reenlisted twice. He reenlisted in the RA in May 2013 and in May 2015. He served in Iraq, was promoted to SGT, has completed over 6 years of active service since his enlistment in May 2010, and he continues to serve on active duty. 5. The applicant's enlistment and service in the RA serve the same purpose as it would have had he been ordered to active duty when he was disenrolled from ROTC. In other words, the Department of Defense received and continues to receive the benefit of his 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) AR20160006471 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006471 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2