PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:             24 May 2000                 
	DOCKET NUMBER:    AR1999031167

	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.  

	Mr. Carl W. S. Chun		Director	
	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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 through counsel that his active duty service commitment be corrected to show that he should not have been required to serve on active duty as a result of his ROTC scholarship, or if active duty was required, that it should have been limited to 2 years.

3.  The applicant states through counsel that he was accepted into the ROTC scholarship program for his last 2 years of undergraduate education.  At that time, he was told that he would owe the military 8 years in the Reserve or 2 years on active duty as payback for the financial assistance afforded him.  Since he had a 2-year scholarship, he was advised that if he had an active duty commitment it would be for no longer than 2 years.  After completing his undergraduate degree he elected to go to medical school.  In order to do so, he was advised that he had to agree to an educational delay document that would permit him to attend medical school without the danger of being called to active duty and disrupting his medical training.  He signed the ROTC Supplemental Agreement for Special Medical Program Participants, which was blank insofar as the active duty obligation block was concerned.  He applied for a Health Professionals’ Scholarship Program but was denied.  Thereafter, he attended medical school at his own expense.  He was subsequently recruited by the ARNG and on 1 November 1990 accepted an assignment with the Oklahoma Army National Guard (OKANG).  He remained a participating member of the OKANG before, during and following his medical training.  Following completion of medical school, he entered a Radiation Oncology residency program.  Neither his primary medical training nor his residency training were subsidized by the Army.  After completing his residency program and serving 8 years in the OKANG, he was advised by the Army that he should not have been allowed to serve in the Reserve during his medical school and residency training, and therefore, he still had an active duty commitment to pay back his 2-year undergraduate ROTC scholarship.  Thereafter, he was ordered to active duty effective 15 July 1998 for 4 years.

4.  Counsel contends that the Army paid a total of $16,000 in scholarship aid to the applicant and in return the applicant has contributed almost 10 years of honorable service.  The applicant has acted honorably and properly and fulfilled his obligation and should not be required to complete another 2 years of active service.

5.  The applicant’s military records were not provided with his request.  However, documentation provided with his application shows that he accepted a senior ROTC scholarship at Wake Forest University on 31 August 1998.  He completed the program in May 1990.  On 11 May 1990 he executed DA Form 591g (ROTC Supplemental Service Agreement for Special Medical Program Participants) which shows that as a result of his scholarship obligation he had a   4 year active duty obligation.  On 1 November 1990 he executed an Oath of Office for entry into the OKANG and on 17 January 1991 the US Army Reserve Personnel Center published orders appointing him a Reserve commissioned officer, removing him from the USAR Control Group and assigning him to the OKANG.  On 13 July 1998 he was voluntarily reassigned from the OKANG back to the USAR Control Group.  The applicant is currently serving as a major on active duty at Fort Sam Houston, Texas.  His active duty orders A-05-003622 dated      5 May 1998 reflect that he is an obligated volunteer officer with a 4 year active duty commitment who reported for duty effective 15 July 1998.

6.  In the processing of this case, a staff advisory opinion was obtained from the US Total Army Personnel Command (PERSCOM) Medical Corps Branch.  The PERSCOM opined that it could not support the applicant’s contention that his active duty service commitment should be limited to 2 years.  The PERSCOM maintains that his active service obligation is 4 years as pointed out on             DA Form 591g and the orders assigning him to active duty.

7.  The advisory opinion was provided to the applicant and his counsel who responded that the order to active duty for 4 years was merely restating the central issue of the case which the applicant is contesting: should he have been ordered to active duty for 4 years, if at all.  Counsel contends that the principal argument concerns the DA Form 591g, which states the applicant had incurred a 4-year commitment, and the manner in which DA Form 591g was completed.  The applicant was asked and completed a blank form.  The contractual obligation period was added later to indicate 4 years without the applicant’s knowledge.  A letter from a fellow student of the applicant’s at the time, accompanying the applicant’s rebuttal, asserts that it was normal practice to ask cadets to sign a blank form with the understanding that pertinent information would be filled in later.  Finally, counsel says that the DA Form 591g provides for an active duty period of 2 – 5 years.  It also provides for a period as stipulated in the ROTC contract, which provides for service on active duty or with a Reserve Component or a combination of active and Reserve service.  In any case, the applicant has honorably served his commitment to the Army.

8.  DA Form 597-3, Army Senior Reserve Officers’ Training Corps Scholarship Cadet Contract, completed by the applicant on 13 August 1998 provides in pertinent part, that the individual has the opportunity to request service on active duty or service with a Reserve Component Unit.  The individual also understands and agrees that his service obligation in return for the financial assistance provided under the scholarship program shall be determined by the Army according to its needs at the time of the individual’s appointment and shall consist of one of the following periods of service:

	(a)  Five years on active duty followed by three years in the Reserve Component (for individuals who receive a five year scholarship).
(b)  Two, three or four years on active duty followed by service in the Reserve Components for the remainder of the individual’s eight year military service obligation.

(c)  A short period of active duty (up to one year) for branch qualification which is followed by service in a Reserve Component Unit for the remained of the individual’s eight year military service obligation.

9.  DA Form 591g, ROTC Supplemental Service Agreement for Special Medical Program Participants, which the applicant signed on 11 May 1990 shows that item 3b – Scholarship obligation (Enter 2 through 5 years) has been completed in longhand to indicate a “4” year active duty obligation.

10.  The applicant is currently receiving annual Army Medical Corps Officer Specialty Pay (AMCOSP) through the period 30 September 2000.

CONCLUSIONS:

1.  The applicant’s ROTC contract (DA Form 597-3) provides that upon completion of all requirements the applicant would serve not less than a 2-year active duty period.  It also provides that if he accepted a Reserve Component appointment, which he did on 1 November 1990, he would be required to serve  8 years in the Reserve.

2.  He completed his 8-year commitment through service with the OKANG in July 1998.  Then the Army advised him that he should not have been allowed to serve in the Reserve and as far as the Army was concerned he still had a 4-year active service obligation.  Accordingly, he was ordered to active duty for 4 years effective 15 July 1998.

3.  The applicant believes that since he had accepted 2 years of ROTC scholarship aid he had no more than a 2-year active service obligation, which seems reasonable from the documentation in this case.  Obviously, he erred when he signed a blank form that was completed later to show that he had a     4-year active service obligation.  On the other hand, however; the Army should have had better controls in place for monitoring ROTC graduates in the educational delay program that would preclude their entry into a Reserve Component without prior consent.  

4.  Notwithstanding the foregoing, whether his obligation was active duty, Reserve Component duty or a combination of both, after performing                    8 years of satisfactory service with the OKANG, the Army should not now after the fact be allowed to say that his OKANG service was not acceptable.  The applicant has completed almost 10 years of honorable service and as a matter of equity should be given credit for that service and considered to have fulfilled his obligation upon completion of his 2 years of service in July 2000.  Additionally, he should be permitted to retain the prorated portion of his annual AMCOSP for the period that he has already served.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

	a.  amending orders A-05-003622 dated 5 May 1998 to show an active duty commitment of 2 years;

	b.  releasing him from active duty upon completion of his 2 year commitment; and

	c.  waiving recoupment of any Army Medical Corps Officer Specialty Pay already paid to him.

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

BOARD VOTE:  

__jns____  ___mdm   ___mw __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________John N. Slone_______
		        CHAIRPERSON

INDEX

CASE ID	AR1999031167	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000524	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.  113.04		
2.		
3.		
4.		
5.		
6.