SAMR-RB 24 January 2018 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20170006057 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 4 January 2018, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by suspending the applicant's debt subject to completion of 4 years' service with waiver of the debt at that time, minus the amount of any bonus he received for enlisting. I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 24 May 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY Encl Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20170006057 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: 4 January 2018 DOCKET NUMBER: AR20170006057 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: 4 January 2018 DOCKET NUMBER: AR20170006057 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, cancellation of his Reserve Officers' Training Corps (ROTC) scholarship debt. 2. The applicant states, in effect, he believes the debt is unjust because of his active duty (AD) service and commitment to the Army. He enlisted for five (5) years and his debt should be relieved. 3. The applicant provides: * ROTC scholarship contract * enlistment contract * memorandum from his commander CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U. S. Army Reserve (USAR) Control Group ROTC on 30 April 2009. 2. On 30 Apirl 2009, the applicant contracted for a three and one half academic year scholarship. His DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) states in Part II – Agreement of Scholarship Cadet Contracting in the Senior ROTC Program: a. Under the terms of disenrollment from the ROTC program, he agreed that under the terms of this contract, the Secretary of the Army or his or her designee, may order him to active duty as an enlisted Soldier, if he was qualified, for a period of not more than 4 years if he failed to complete the ROTC program. If he was disenrolled after the point of obligation, he may be ordered to active duty for one of the periods listed in paragraph 6; based upon the year during which his disenrollment was initiated. b. He agreed that any obligation to reimburse the Government will not be altered by subsequent enlisted duty. If he were disenrolled from ROTC, he understood the Secretary of the Army, or his or her designee, retains 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 advanced educational assistance under the terms of his contract, his subsequent enlistment in an Armed Service will not relieve him from his repayment obligation. c. His enlisted service obligation was 4 years. He was an MS IV, 4-year scholarship completion cadet. 3. On 11 March 2014, the Professor of Military Science, ROTC Battalion, Morgan State University, recommended disenrollment of the applicant due to his inaptitude for military service as demonstrated by his lack of skill in physical fitness and his breach of contract. He failed to meet commissioning requirements. 4. He provides a memorandum, dated 24 March 2014, from the Professor of Military Science, ROTC Battalion, Morgan State University, wherein he was informed that he was being disenrolled from the ROTC program in accordance with Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training) based on his inaptitude for military service as demonstrated by his lack of skill, failure to pass Army Physical Fitness Test (APFT) and failure to maintain APFT standards. This constituted a breach of his SROTC contract. a. He was advised of his rights to request a hearing and also notified that he 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. b. The memorandum also notified him that if he was a scholarship cadet, he could be called to active duty as an enlisted Soldier or required to repay scholarship benefits in the amount of $60,847.00 in lieu of call to active duty. c. If eligible, he may choose expeditious call to active duty in order to satisfy the breach of contract. If he elected that option he would normally be ordered to active duty within 30 days of his disenrollment. 5. On 23 April 2014, the applicant acknowledged receipt of the disenrollment memorandum. He waived his right to a hearing and personal appearance in order to respond to the validity of the debt. He also declined expeditious call to active duty. 6. On that same day, he completed an addendum to part II, agreement of cadet contract (active duty option) requesting to be ordered to active duty in an enlisted status in fulfillment of his contractual obligation, if eligible. It also shows that if he was a scholarship cadet and failed to fulfill this active duty service obligation, which includes meeting the physical standards for accession, he would be subjected to the terms of repayment as specified in his scholarship contract. 7. On 25 September 2014, the Commanding General, U.S. Army Cadet Command, ordered the applicant disenrolled from the ROTC Program under the provisions of Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 3-43a(4) due to breach of his contract as evidenced by his inaptitude for military service as demonstrated by lack of skill, failure to pass the APFT and failure to maintain the Army Physical Fitness standards. It also shows: * he requested active duty in lieu of monetary recoupment to repay his debt * his active duty request was denied, because his chain of command did not recommend him for active duty * his obligation to the Army must therefore be satisfied by repaying the cost of advanced education assistance provided by the Army * the amount of monies spent in support of his education was $60,847.00 8. Additionally, the commanding general provided the applicant with a DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record) detailing the debt and ordered the applicant to elect an option as far as paying the full amount in one lump sum payment or initiate a repayment plan. He was further notified that the addendum with his election must be received within 14 days of his receipt and failure to respond by the suspense date may result in the initiation of involuntary collection action. 9. A Morgan State University (ROTC Department) memorandum shows he was discharged from the Morgan State University ROTC, effective 25 September 2014. 10. On 24 November 2015, he enlisted in the RA in the rank/grade of specialist (SPC)/E-4 for a period of 5 years and 26 weeks. He enlisted in military occupational specialty (MOS) 92F (Petroleum Supply Specialist) for a $10,000 cash bonus and was entitled to $56,304.00 in Montgomery GI Bill benefits. 11. 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. 12. In the processing of this case an advisory opinion was obtained from the Deputy Chief of Staff, G-1, Chief, Compensation and Entitlements Division. The opining official recommended approval of the applicant's request and noted: a. The record confirms the Army disenrolled the applicant from the ROTC program for a breach of contract for failing to maintain the height/weight standards prior to completing his obligation. However, even though his previous ROTC chain of command did not recommend him for active duty, he enlisted for a 5-year period on 24 November 2015. b. At the time of disenrollment, the applicant was an MS IV, which according to his DA Form 597-3 would require a four year commitment if to satisfy his obligation. The applicant is serving on active duty and although subparagraph 5.e. of this DA Form 597- 3 states that subsequent enlisted duty would not relieve him from repaying his obligation, this clause appears to be arbitrary and capricious, because any decision to enforce such a clause is without reasonable grounds or adequate consideration of the circumstances of his current enlistment. 13. The applicant was provided a copy of the advisory opinion and he did not respond. 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. One of the reasons for disenrollment is to receive an appointment or enter an officer training program other than ROTC. The release must be approved by the region commander or higher headquarters. 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. Army Regulation 135-210 (Order to Active Duty as Individuals) 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. In pertinent part, 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. 5. DOD Financial Management Regulation 7000.14-R, Volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay) governs active duty and reserve military pay. Chapter 2 (Repayment of Unpaid Portion of Bonuses and Other Benefits), paragraph 020204 (Conditions under review by the Secretary of the Military Department), provides that under circumstances not specifically mentioned in this chapter, 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 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 Regular Army (RA) on 24 November 2015, and his active duty service and commitment should serve as relief of his debt. 2. The evidence of record confirms the applicant enlisted in the USAR and enrolled in the ROTC program as a scholarship recipient. By signing his scholarship contract, he acknowledged that if he were disenrolled from the ROTC program as a scholarship recipient, he would have to repay his scholarship or be ordered to active duty in the rank/grade of private/E-1 for an appropriate number of years. As he was disenrolled during his MS IV year, the contract called for him to serve 4 years on active duty. The disenrollment memorandum reminded him of these requirements. The record shows he failed to satisfy the ROTC program contractual requirements due to his disenrollment from the university. Accordingly, he incurred a debt. 3. He received his discharge memorandum from the USAR Control Group (ROTC) and his chain of command did not recommend him for active duty service. He voluntarily enlisted in the RA on 24 November 2015 receiving an enlistment bonus in the amount $10,000 and entitlement to the Montgomery GI Bill. 4. On the surface, the applicant's enlistment and active duty service appears to have served the same purpose as it would have had he been ordered to active duty. In other words, the Army received the benefit of his service and continues to receive it for he remains on active duty. However, by voluntarily enlisting, he received cash benefits and enlistment in pay grade E-4 and guaranteed training I in non-combat MOS of 92F. The evidence indicates that relieving him of his full ROTC scholarship debt might amount to a windfall. His contract called for him to serve 4 years on active duty, and it is noted he has yet to complete that 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) AR20170006057 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170006057 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2