BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160011790 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 BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160011790 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 Reserve Officers' Training Corps (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 20 June 2011. 2. The Board further recommends that the Defense Finance and Accounting Service determine if he has been paid or is due to be paid a bonus or any other monetary incentives. In the event that he has been paid an enlistment or reenlistment bonus or becomes due for payment of such bonus, that bonus payment should be recouped from the original debt to offset an equal portion of his 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: 6 June 2017 DOCKET NUMBER: AR20160011790 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, remission of his Reserve Officers' Training Corps (ROTC) scholarship debt. 2. The applicant states: a. He enrolled in Central Michigan University (CMU) in the Fall of 2008. He received an ROTC Scholarship and completed the cadet contract. During the Fall/Spring Semester of 2010, he made the difficult decision to disenroll from CMU and the ROTC Program. He consulted with his ROTC cadre before making this decision and he was informed that he would need to enlist for 4 years or more to fulfill his contract and avoid being held responsible for the tuition and other benefits he received while enrolled in the ROTC Program. b. He also informed his cadet commander of his decision and discussed the fulfillment of his contract through enlisting on active duty. He went to a recruiter's office after completing the spring semester in May 2010. He was contacted by the recruiter towards the end of May 2010 and informed that since he had not been released from the ROTC his enlistment paperwork could not be completed. He immediately contacted the CMU ROTC Program and was informed that his disenrollment paperwork was still being processed and to call back the following week. In June 2010, they again informed him that his disenrollment paperwork was being processed and he was not provided any additional reasons for the delay. He continued to contact the CMU ROTC Program office throughout the months of June, July, and August. c. The CMU ROTC Program office contacted him requesting he visit their office to complete the disenrollment paperwork. During his visit, he was informed that his paperwork was not correctly processed and had to be restarted. He was only issued the disenrollment memorandum. He did not receive or sign paperwork in which he agreed to repay any monies. He was not briefed on the terms of his ROTC contact or any alleged breach. He was advised of the required forms to complete the disenrollment and he quickly signed and returned these forms. d. As the CMU ROTC Program was aware of his intention to enter active duty, he did not pay special attention to the disenrollment paperwork, nor was he advised of the significance of the paperwork. Inadvertently, he declined both a call to active duty and expeditious call to active duty. He was subsequently informed that the disenrollment paperwork had been completed and he could enlist. In December 2010, he visited the recruiter and learned the position for his requested program was no longer available. In January 2011, he signed up for the first available 18-series program position. He entered Regular Army (RA) active service on 20 June 2011. e. At this point, it was his understanding that he had satisfied the financial obligations associated with his disenrollment from the CMU ROTC Program by the terms of his enlistment. In November 2015, he began receiving notices for delinquent debt in the amount of $9,838.25. He then contacted the CMU ROTC Program and the Defense Finance and Accounting Service (DFAS) in an attempt to resolve the debt issue. His attempts were unsuccessful. He consulted and worked with a legal assistance attorney to resolve the dispute through the CMU ROTC Program, DFAS, and the U.S. Army Cadet Command (USACC). 3. The applicant provides: * DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) * DD Form 4-1 (Enlistment/Reenlistment Document/Armed Forces of the United States) * DA Form 3340-R (Request for Reenlistment or Extension in the RA) * Disenrollment of Scholarship Cadet from ROTC memorandum * three letters from DFAS and the Department of the Treasury * Lansing Military Entrance Processing Station (MEPS) Form 52-R-E (Lansing MEPS Processing Cover Sheet) and Enlistee Record 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 the cases 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. 2. On 4 September 2008, the applicant signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) for 4 academic years and he acknowledged: a. Paragraph 5 (Terms of Disenrollment), "I understand and agree that once I become obligated and I am disenrolled from the ROTC program for breach of contractual terms or any other disenrollment criteria established now or in the future by Army regulations (which include, but are not limited to Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training) incorporated herein by reference, I am subject to the terms in paragraphs 5a through 5e." b. Paragraph 5a, "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 four (4) years if I fail to complete the ROTC program. If I am disenrolled after the point of obligation, I may be ordered to active duty for one of the periods listed in paragraph 6 below based upon the year during which my disenrollment was initiated." c. Paragraph 5b, "If I am offered the opportunity to repay my advanced educational assistance in lieu of being ordered to active duty, I will 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 by the U.S. for my advanced education from the commencement of this contractual agreement to the date of my disenrollment or refusal to accept a commission." d. Paragraph 5c, "I understand and agree that if I voluntarily or because of misconduct fail to begin or fail to complete any period of active duty or duty in a reserve status not on active duty that I have incurred under this contract whether as an officer or as enlisted Solider, I will be required to reimburse the U.S. an amount of money, plus interest, that is equal to or bears he same ratio to the total cost of the financial assistance provided to me by the U.S. as the unserved portion of such duty bears to the total period of such I was obligated to serve." e. Paragraph 5e, "If I am disenrolled from ROTC, I understand the Secretary of the Army, or his or her designee, retains the prerogative to either order me to active duty or order monetary repayment of my scholarship benefits. Therefore, if I am required to repay my advanced education assistance under the terms of this contract, my subsequent enlistment in an Armed Service will not relieve me from my repayment obligation." f. Paragraph 6, "If I am called to active duty for breach of contract under the provisions of paragraph 5, I will be ordered to active duty for 2 years if the breach occurred during Military Science (MS) II; for 3 years if the breach occurred during MS III, or for 4 years if the breach occurred during MS IV." 3. He provided a Disenrollment of Scholarship Cadet from ROTC memorandum, dated 3 September 2010, wherein the Professor of MS notified the applicant that he was being disenrolled from the ROTC Program under the provisions of Army Regulation 145-1, paragraph 3-43(a)(16), for failure to register for classes, to include the required MS course for the Fall 2010 semester. The memorandum advised the applicant that if he were a scholarship cadet, he could be called to enlisted active duty in an enlisted grade of E-1 or be required to repay scholarship benefits in the amount of approximately $9,829.00 in lieu of a call to active duty fulfillment of his contractual obligation. He was also advised of his rights. 4. On 10 September 2010, the applicant completed his acknowledgement form and elected to waive his right to a hearing, declined a call to active duty within 60 days after completion of his current projected graduation date or upon withdrawal/dismissal from school, whichever occurs first, and declined expeditious call to active duty. 5. On 23 November 2010, the Commander, USACC, directed the applicant's disenrollment and discharge from the ROTC Program under the provisions of Army Regulation 145-1, paragraphs 3-43a(16), based on the applicant's failure to enroll in classes for Fall Semester 2010. The memorandum also advised the applicant that his breach of contract resulted in an obligation of him to repay the cost of advanced education assistance provided by the Army and provisions for electing one of two repayment options. 6. He enlisted in the Regular Army in the rank/pay grade of private first class (PFC)/E-3 on 20 June 2011 for a period of 5 years with a $4,000.00 enlistment bonus. On 2 March 2015, he extended his enlistment for a period of 11 months with a new expiration of term of service date of 19 May 2017. He is currently serving on active duty. 7. He also provided: * letter, dated 2 November 2015, wherein DFAS advised him of a debt in the amount of $9,837.03 * letter, dated 3 December 2015, wherein DFAS advised him of a debt in the amount of $9,838.25 * letter, dated 8 January 2015, wherein the Department of Treasury advised him of a delinquent debt owed to the Department of Defense in the amount of $9,838.25 REFERENCES: 1. Army Regulation 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program. 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. The cadet will not be discharged/ disenrolled from ROTC until determination has been received from Headquarters, USACC. If it is determined that the cadet will be ordered to active duty, the cadet will not be discharged, but Headquarters, USACC, will issue orders ordering the cadet directly to active duty. 2. Title 10, U.S. Code, section 2005(a), states 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 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: 1. The evidence of record confirms the applicant was accepted into an Army ROTC Scholarship Program. He was a 4-year scholarship recipient and he fully understood and accepted the terms of his enrollment. 2. 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 private/E-1 for an appropriate number of years. As he was found in breach of his ROTC contract and he was accordingly notified of his disenrollment from the program. He waived consideration of his case by a disenrollment board. His disenrollment was ultimately approved by the appropriate official. He declined expeditious call to active duty, which resulted in a debt for reimbursement of his ROTC scholarship. 3. Shortly after his disenrollment, he enlisted in the Regular Army for 5 years in the rank/grade of PFC/E-3 with entitlement to an enlistment bonus. He extended his enlistment to 19 May 2017 and is currently serving on active duty. He has completed over 5 years of active service since his enlistment in June 2011. It appears he may not have understood the difference between being ordered to active duty to fulfill his ROTC contractual obligation and voluntarily enlisting. 4. His enlistment and service in the Regular Army serve the same purpose as it would have had he been ordered to active duty. In other words, the Department of Defense received and continues to receive the benefit of his service. The Board may consider his Regular Army enlistment to have met the active duty obligation required by his ROTC scholarship contract as a matter of equity. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011790 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011790 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2