PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           6 July 2000                   
	DOCKET NUMBER:   AR1999030353

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his records be corrected to show his debt to the Army based on ROTC (Reserve Officer Training Corps) scholarship recoupment be remitted; that his records be amended to show he was never disenrolled from Army ROTC; that the $495.20 taken from him by the IRS (Internal Revenue Service) on the grounds that he had been disenrolled be returned to him; that he be allowed to appear before the Board; and that he receive monetary compensation of $6,000.00 for the wrongful impairment of his credit history.

3.  The applicant states the Army violated his due process and self-incrimination rights during its “sham” separation hearing; violated ROTC disenrollment policies and procedures; violated safeguards provided under Army Regulation 15-6; summarily disregarded his appeals; and ordered recoupment of scholarship monies from him in violation of governing regulations.  He seeks enforcement of the terms of his ROTC contract, which provides he is required to repay the Army only after he has been disenrolled from the ROTC Program.  He argues since the Program did not disenroll him until 1996, he has no debt because the time from 1990 through 1994 constituted time served in payment of his debt.  The applicant further alleges Army personnel engaged in a criminal conspiracy to deny him a fair and timely review of the debt.  He also requests a personal hearing before the Board to present the Government’s abuses in this “complex” case.

4.  The applicant’s military records show that he contracted in the Senior ROTC with a scholarship on 30 July 1986.  In part I, paragraph 1n of the contract, Agreement by Scholarship Cadet Enrolling in the Senior ROTC Program, he stated that he understood that if he either voluntarily or through misconduct failed to complete the period of active duty specified as an officer or enlisted member, he would be required to repay the scholarship, with interest.  Paragraph 1t stated that, as used in the contract, "misconduct” included, but was not limited to misrepresentation…criminal conduct, civil confinement,…and moral or professional dereliction.

5.  This Proceedings incorporates by reference the contents of the attached legal review.

CONCLUSIONS:

1.  The Board concludes that based on the record and applicable regulations, the Cadet Command disenrolled the applicant from the ROTC Scholarship Program in 1990, withholding final discharge from the U. S. Army Reserve until 1996.  Any regulatory language or text in the Cadet Command’s implementation of Army Regulation 145-1 has no binding effect to the extent it is incompatible with the definition and application of the term “disenrollment” in AR 145-1. 

2.  The Board concludes that the applicant’s service obligation under the contract has no bearing on his debt since he never entered active duty as required by his contract.  Under Title 10, U. S. Code, section 2005(a), persons agreeing to serve as commissioned officers on active duty in exchange for the military‘s payment of their college educational expenses will reimburse the Government if, due to misconduct, they fail to complete the active duty specified in the agreement.  The Board concludes that the Commanding General, Cadet Command properly declined to issue an enlistment waiver allowing the applicant to serve his active duty commitment in an enlisted status based upon his civil conviction.  At no time did he, in fact, serve on active duty.  His status as an inactive member of the USAR Control Group (ROTC) from 1990 through 1996 did not offset his debt.

3.  The Board concludes that the applicant’s debt is valid; however the Cadet Command’s 1990 recoupment demand from the applicant was not valid until the Acting Assistant Secretary for Manpower and Reserve Affairs ratified it in 1998.
The Army’s actions in processing the debt do not appear to violate any terms of the contract as the ROTC contract places no time limits on the Secretary’s power to seek reimbursement.  In addition, Federal law authorizes 10 years to initiate collection action from the date of the accrual of the claim.  By 1998, the Government executed the recoupment demand, and in the process ratified its prior 1990 recoupment demand.  Regardless of whether the recoupment order was in 1990 or 1998, the applicant is obligated to pay the Government.  Additionally, even if 1998 were determined to be the initial recoupment demand date, no refund would be due the applicant on the monies DFAS withheld from his Federal income tax refund.  The Assistant Secretary’s 1998 directive to DFAS to seek recoupment renders the funds offset in 1995 as the valid property of the Government as an offset to the current debt.

4.  The Board concludes that the applicant is not legally entitled to an investigation of the debt under Title 10, U. S. Code section 2005(g)(1), which became effective 30 April 1994.  In addition, his appeal to this Board, the highest administrative board in the Army for military personnel disputes, has furnished the Board with the current opportunity to examine the facts and issues in detail.  This independent review reasonably serves the purposes envisioned by Congress under Title 10, U. S. Code, section 2005(g)(1) to ensure any recoupment debt levied against the applicant is justified.  

5.  The Board concludes that the applicant was extended the opportunities made available to him during and after his board of officers hearing under the governing regulations and there was no violation of his due process rights.  The regulation provides that the administrative board is not bound by rules of evidence governing criminal trials.  The standard of proof requires the board’s findings to be supported by a greater weight of evidence than supports a contrary conclusion.  The Board concludes that the board of officers deduced from his indictment that the grand jury reviewed credible evidence indicating he was involved in the hazing incident.  That, combined with other evidence and testimony, led the board of officers to conclude his separation was supported by the greater weight of the evidence and so made their recommendation.  The Board concludes that the board of officers clearly understood that the applicant had the right against self-incrimination and so Colonel W___’s comments did not have a prejudicial impact on him.  In addition, the board of officers only made a recommendation.  Following his plea of guilty to assault, he advised the Professor of Military Science of his conviction and explained his involvement.  Thus, all parties in the decision-making chain were aware of his version of the facts.  Since the decision-makers knew he was convicted of assault and not malicious wounding and abduction, the Board concludes he was not prejudiced by the board of officer’s consideration of his indictment of abduction and malicious wounding.

6.  The Board concludes that the applicant’s administrative appeals of his disenrollment were not summarily denied or ignored.  

7.  The Board concludes that the applicant’s case is not sufficiently complex to warrant a formal hearing.

8.  The Board lacks the authority under Title 10, U. S. Code, section 1552 to award compensatory damages.  Therefore, the compensation for adverse credit reports sought by the applicant cannot be granted.

9.  Notwithstanding the above mentioned conclusions, the Board does find that there are grounds for granting the applicant some relief based on equity.  Although the Secretary ratified the 1990 disenrollment in 1998, the record suggests that the applicant was unaware of the legal problem regarding the Cadet Command’s 1990 recoupment action and the ratification.  While the Board concludes that the applicant’s debt is valid and has been since 1990, the Board has also determined that the Cadet Command’s explanations contributed materially to his belief that he did not owe a debt.  While it would not be fair to the taxpayers to cancel or reduce the debt, it would be fair to the applicant to adjust his records by establishing the debt as of the date of the Board’s action. 

10.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by re-establishing the applicant’s base debt for ROTC recoupment effective the date of the Board’s decision and cancelling all interest charges previously owing.

2.  That any payments already made on this debt, such as the monies withheld from the applicant’s tax refund, be credited toward payment of this debt.

3.  That DFAS correct the applicant’s credit history with regards to this debt in accordance with the correction noted above.

4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__cmf___  __emw___  __jpi___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Calvin M. Fowler
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999030353	
SUFFIX		
RECON		
DATE BOARDED	20000706	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.