BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160008324 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ____x____ ____x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160008324 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 showing: a. his 18 October 2012 enlistment in the Regular Army met the requirements of the expeditious call to active duty defined in his DA Form 597-3 (Army SROTC Scholarship Cadet Contract) and b. remitting his ROTC scholarship debt of $51,058.00 except for the portion equivalent to the $20,000.00 RA enlistment bonus he received. 2. The Board further determined 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 remitting his full debt of $51,058.00 and personal appearance before the Board. ______________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: 17 October 2017 DOCKET NUMBER: AR20160008324 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 his debt to the U.S. Government for his Reserve Officers' Training Corps (ROTC) scholarship be remitted. He also requests personal appearance before the Board. 2. The applicant states he incurred a debt as a result of disenrollment from the Senior ROTC (SROTC) program. The debt is in a deferred status because he is currently serving in an enlisted status in the Regular Army (RA). He states the ROTC scholarship debt should be forgiven because he has served on active duty for more than 4 years, including a deployment to Afghanistan. 3. The applicant provided copies of his: * ROTC disenrollment orders * enlistment/extension documents * Enlisted Record Brief CONSIDERATION OF EVIDENCE: 1. A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the U.S Army Reserve (USAR) in pay grade E-1 on 7 January 2009 for a period of 8 years. An accompanying DA Form 5261-4 (Student Loan Repayment Program (SLRP) Addendum) shows he also contracted for an initial Selected Reserve term of at least 6 years concurrent with a contractual obligation for a maximum of $20,000.00 in student loan repayments. The terms of the SLRP show the requirement for qualification in military occupational specialty (MOS) 42A (Human Resources Specialist) for the initial ($3,000.00) annual payment. 2. Headquarters, 88th Regional Support Command, Fort McCoy, WI, Orders 2-321-00035, dated 17 November 2010, honorably discharged the applicant from the USAR effective 1 September 2010. 3. A DD Form 4 shows the applicant enlisted as a cadet in the USAR Control Group (ROTC) on 25 August 2010 for a period of 8 years. An accompanying DA Form 597-3 (Army SROTC Scholarship Cadet Contract) shows in: a. Part I (Agreement of Department of the Army (DA)), that DA agreed to pay scholarship benefits to the applicant for a period of 4 academic years, along with an annual flat rate of $1,200.00 for books and laboratory expenses, commencing 18 August 2010 and ending 9 May 2014. b. Part II (Agreement of Scholarship Cadet Contracting in the SROTC Program) shows in: * Item 2 (General Cadet Agreement) – * paragraph b (Enrollment Agreement): I agree to enroll in the necessary courses and successfully complete, within the prescribed time, the requirements for the degree in the academic major stated * paragraph d (Academic Grade Point Average (GPA) Agreement): I agree to maintain, at a minimum, a cumulative academic GPA of 2.0 on a 4.0 or equivalent scale. This GPA must also be maintained for each semester or quarter * item 5 (Terms of Disenrollment), paragraph a (I Agree to Serve on Enlisted Active Duty): Under the terms of this contract, the Secretary of the Army or his or her designee, may order me to active duty as an enlisted Soldier, if I am qualified, for a period of not more than 4 years, if I fail to complete the ROTC program * item 6 (Enlisted Active Duty Service Obligations): If I am called to active duty for breach of contract under the provisions of item 5, I will be ordered to active duty for one of the periods listed below, based upon the year during which the breach occurs – * during Military Science II – 2 years * during Military Science III – 3 years * during Military Science IV – 4 years c. The applicant and a professor of military science signed the form. 4. Headquarters, U.S. Army Cadet Command (USACC), Fort Knox, KY, memorandum, dated 16 August 2012, subject: Disenrollment from the U.S. Army ROTC Program (with enclosures) shows: a. Major General J__ A. S____, Commander, USACC, notified the applicant of his disenrollment from the ROTC program based on the applicant's failure to maintain a minimum term academic GPA of 2.0 on a 4.0 scale and that this constituted a breach of his ROTC contract. b. He was advised, as a scholarship cadet, that he may be called to enlisted active duty in an enlisted grade of E-1 or required to repay scholarship benefits in the amount of $51,058.00 in lieu of call to active duty in fulfillment of his contractual obligation. He was also: * informed the amount of monies spent in support of his education was $51,058.00 * advised he had 14 days from receipt of the memorandum to respond by (1) agreeing to pay the total amount owed in a lump sum or (2) promising to repay the total amount by initiating a repayment plan c. Enclosed was an Acknowledgement of Cadet, dated 1 August 2012, that shows the applicant acknowledged he read and understood the information concerning his disenrollment from the ROTC Program. He waived his right to a hearing and elected to accept expeditious call to active duty in fulfillment of his contractual obligation. He understood he would be ordered to active duty within 30 days. 5. U.S. Army ROTC Battalion, The University of Tennessee-Knoxville, Knoxville, TN, Orders 229-2, dated 16 August 2012, discharged the applicant from USAR Control Group (ROTC) effective 16 August 202. 6. A DD Form 4 shows the applicant enlisted in the RA, in pay grade E-3, on 18 October 2012, for a period of 6 years. An accompanying DA Form 3286 (Statement for Enlistment U.S. Army Enlistment Program) shows he enlisted for a U.S. Army Incentive (Cash Bonus) Enlistment Program in the amount of $20,000.00 and training in MOS 35P (Cryptologic Linguist Voice Intercept). 7. A DA Form 1695 (Oath of Extension of Enlistment) shows, on 1 September 2015, the applicant extended his 6-year enlistment for a period of 22 months (until 17 August 2020) to meet the remaining service requirement for training in MOS 18D (Special Forces Medical Sergeant) . 8. The applicant served in Afghanistan from 25 March to 4 July 2015 and was promoted to sergeant (pay grade E-5) in MOS 35P on 1 September 2016. 9. A review of the applicant's military personnel records failed to reveal a copy of a DA Form 3508 (Application for Remission or Cancellation of Indebtedness) or evidence that shows the applicant requested remission of an ROTC scholarship debt in the amount of $51,058.00. REFERENCES: 1. Title 10, U.S. Code (USC), section 2005 (Advanced education assistance: active duty agreement; reimbursement requirements), provides 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 with the Secretary concerned under the terms of which such person shall agree: a. to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement; b. that if such person failed to complete the education requirements specified in the agreement, such person would serve on active duty for a period specified in the agreement; c. that if such person does not complete the period of active duty specified in the agreement, or does not fulfill any term or condition prescribed, such person shall be subject to the repayment provisions of Title 37, USC, section 303a(e); and d. to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States. 2. Army Regulation 145-1 (SROTC Program: Organization, Administration, and Training) provides policies and general procedures for administering the Army's ROTC Program. Chapter 3 (Student Administration), paragraph 3-43 (Disenrollment), subparagraph a(6), provides that an ROTC cadet may be disenrolled for failure to maintain a minimum semester or quarter cumulative academic GPA of 2.0 on a 4.0 scale or higher if required by the school and at least a 3.0 on a 4.0 scale or equivalent semester or quarter and cumulative average in all ROTC courses. 3. Army Regulation 37-104-3 (Finance Update) provides policies and provisions for entitlements and collections of pay and allowances of military personnel. Chapter 59 provides for recoupment of educational expenses (e.g., SROTC, United States Military Academy, and advanced civilian schooling) under a previous agreement when obligated active duty service has not been completed. 4. Army Regulation 5-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. 5. Department of Defense Financial Management Regulation, volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), section 0201 (General Provisions), provides that a member of the Uniformed Services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "pay or benefit"), is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit. If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit. Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control. Conditions under which repayment will not be sought are set forth in section 0202. 6. Department of Defense Financial Management Regulation, volume 7A, chapter 2, section 0202 (Repayment and Non-repayment Conditions), provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member's control. In addition, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on one or more of the following: * contrary to a personnel policy or management objective * against equity and good conscience * contrary to the best interest of the United States DISCUSSION: 1. The applicant contends his ROTC scholarship debt should be remitted because he enlisted in the RA on 18 October 2012, has completed more than 4 years of his active duty service obligation, and his active duty service obligation continues through 17 October 2020. 2. The applicant's request for a personal appearance was considered. 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 is sufficient to render a fair and equitable decision at this time. 3. The evidence of record shows the applicant enlisted in the USAR in pay grade E-1 on 7 January 2009 with a SLRP incentive. It cannot be determined from the available evidence if the applicant was awarded MOS 42A or if he received an annual SLRP payment ($3,000.00) on the first anniversary of his enlistment. 4. The applicant enlisted in the USAR as a cadet in the ROTC scholarship program commencing 18 August 2010. a. He was disenrolled from the ROTC program based on failure to maintain the minimum cumulative academic GPA for his Bachelor of Science degree. He elected to be expeditiously called to active duty in the enlisted grade of E-1 in lieu of being required to repay ROTC scholarship benefits. b. He was discharged from the USAR Control Group (ROTC), effective 16 August 2012 with an ROTC scholarship debt in the amount of $51,058.00. c. The evidence of record shows the applicant's ROTC disenrollment and the discharge process was proper and in compliance with regulations. 5. The reasons for the Army not expeditiously ordering him to active duty are unknown. The evidence does show he voluntarily enlisted in the RA (more than 60 days after his discharge from ROTC) in pay grade E-3 with an enlistment incentive (cash bonus) in the amount of $20,000.00. 6. The applicant's enlisted service in the RA appears to have served the same purpose as it would have had he been ordered to active duty. In other words, the Department of Defense has received, and continues to receive, the benefit of his service. However, by voluntarily enlisting, he received cash benefits he would not have received had he been ordered to active duty upon disenrollment from ROTC. Relieving him of his full ROTC scholarship debt would amount to a windfall. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008324 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008324 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2