PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           15 August 2002                   
	DOCKET NUMBER:   AR2001064274

	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. Walter Avery, Jr..		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright. 		Member	
	Mr. Jose A. Martinez 		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, termination of the recoupment of her Reserve Officer Training Corps (ROTC) scholarship debt of approximately      $26,170.00.

3.  The applicant states, in effect, that the Professor of Military Science (PMS), of the Sienna College ROTC program misled her about her active duty obligation.  The PMS is the senior military officer at the college level, responsible for administering the ROTC program.  She made it clear that it was her academic goal to attend law school immediately after college graduation.  Prior to signing the ROTC contract, she questioned the PMS regarding the paragraph concerning active duty.  He told her that only exceptional cadets that wanted to go on active duty would be selected and that the selection process required an extensive application, which she was not obligated to submit.  Around December 1997, the PMS and another officer informed her there was a 100% chance she would be going on active duty.  In addition, she learned that the dates to attend the ROTC Advanced Camp were nonnegotiable and that the camp dates would interfere with her law school aptitude test (LSAT) studies.  She understands that she entered into a contract with the Army and broke it.  However, she asks the Board to consider that when she entered into negotiations with the PMS she was a teenager and relied on the PMS’s superior knowledge and apparent sincerity.  She is now paying for her misplaced trust.  She would not have entered into the ROTC scholarship if the PMS had not misrepresented the facts.  She also would like the Board to consider that if it decides she must repay the debt, the Board subtract the amount of the financial assistance she forfeited to accept the ROTC scholarship.

4.  Counsel for the applicant is listed, but submits no contentions.

5.  The applicant's military records show that she was awarded a 3-year ROTC scholarship and enrolled in the ROTC program at Siena College, in Loudonville, New York on 4 September 1996, graduating in 1999.  She then entered the Brandeis School of Law, at the University of Louisville, in the fall of 1999 and graduated in May 2002.

6.  Freshman Year, 1995-1996.  In the fall of 1995, the 17-year old applicant enrolled in Siena College, as an English Literature major.  She turned 18 in October 1995.

a.  As a freshman, applicant was the recipient of approximately $9,300 to $12,600 in scholarships, grants, and other sources.  Her job as a resident assistant paid for her room.

b.  She also had numerous discussions with the PMS.  The content of some of those discussions are subject to dispute between the applicant and the PMS.

c.  In March of 1996, the applicant signed a Planned Academic Program Worksheet, which charted the integration of her Military Science courses with the remainder of her academic courses through her graduation.

7.  Sophomore Year, 1996-1997.  It is undisputed, that during the summer of 1996, the PMS aggressively recruited the applicant for the ROTC program.  During this time, Army personnel determined that the 18-year old applicant was overweight and her body fat was excessive.  The PMS advised the applicant's father, to “get somebody else” to tape her body fat.  The PMS sent the applicant's father a flurry of forms via fax.  Finally, according to the applicant's father, the school nurse “put down the right figures” on the form and the applicant was eligible for the ROTC Program.

a.  On 14 September 1996, the applicant, a month shy of her 19th birthday, executed a Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract.  The preamble provided, “the sole purpose of this agreement is to provide officers for the United States Army,” and “Entry into this program is a serious commitment.”  Part 1 provided that the cadet agreed to enlist in the U.S. Army Reserve for 8 years; complete the ROTC program, Advanced ROTC Training Camp, and other prescribed training; accept a commission as an officer, if a commission is offered, and serve worldwide on active duty; and reimburse the Government for educational costs in the event of disenrollment. 

b.  The compensation terms of the contract, at paragraph 21, obligated the Army to pay $12,800 annually for the applicant’s tuition and educational fees; a flat rate for textbooks, equipment and other classroom supplies; a subsistence allowance as authorized by Congress; and military pay and allowance entitlements for ROTC Advanced Camp.

c.  The applicant performed admirably during her first year in ROTC.  During the fall of her sophomore year, she earned a 3.4 grade point average (GPA) and A’s in Fundamentals of Military Science and the History of Military Applications.  In the spring, her GPA was 3.5 and she earned an A in the Fundamentals of Military Science.    

8.  Junior Year, 1997-1998.  The applicant quit the ROTC program at mid-year.  
During the fall semester, however, her GPA was 3.6, including a B- in Applied Military Leadership.  

a.  Applicant alleges that until December 1997, she believed she was in an ROTC Program, with a Reserve commitment and would be selected for active duty only if she applied for it (which she had no intention of doing).  She says she was shocked in December 1997 when two officers with the ROTC Department advised her that “the program is for active duty, and that there is almost a 100% chance” she would be going on active duty.  The next semester, January 1998, she withdrew from all military science classes and the ROTC program.

b.  On 19 February 1998, the PMS informed the applicant that action was being taken to disenroll her from the ROTC program and place her on a leave of absence pending disenrollment effective 19 February 1998.  The notification letter, which was sent to her by certified mail, also advised her that she may be required to repay the scholarship benefits received or that she may be eligible to choose an expeditious call to active duty.

c.  On 9 April 1998, the applicant was notified by certified mail, that a board of officers had been appointed to hear evidence and determine her suitability for retention in the Army ROTC program.

d.  The investigating board of officers commenced at Siena College on 28 April 1998.  The board found that the applicant did enter into a valid Army Senior ROTC Cadet Scholarshship Contract on 14 September 1996.  Based on the PMS’s testimony, he never guaranteed the applicant reserve forces duty.  He stated that he told the applicant that educational delays were possible for law school, and reserve duty was possible for scholarship cadets.  However, the decision to put a cadet on either active or reserve duty was based on the needs of the service at the time appointments were considered, and the needs of the service vary from year to year.  

e.  The following is an excerpt of the board proceedings of an exchange between the applicant and the PMS:

Applicant:  So, you are familiar with a contract?

PMS:  Yes.

Applicant:  You are familiar with the very first paragraph that says “Enlist for a period of eight years in the U.S. Army Reserve (USAR) as a cadet for assignment to the USAR Control Group (ROTC) to become a member of the Army ROTC Program” and you are familiar with the title of the contract “Army Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract,” in knowing that for someone having no previous knowledge of the Army, and how it works, in knowing that there is a good possibility that I would be going on reserve duty, was it possible then that I could have signed this contract thinking that I would go reserve?

PMS:  Again, I don’t know what your belief was at the time.  It was my belief that you understood the full ramifications of the contract.

Applicant: And you did not say to me that only the exceptional people could go active duty?

PMS:  Depending upon the time that things were occurring.  I have seen lots, I’ve seen years where . . . 

Applicant:  But did you say that to me?

PMS:  Only exceptional people go on active duty?

Applicant:  That only people who wanted active duty could get active duty.  In order to get active duty you had to be a very good candidate for it.  You had to meet the criteria for it, good grades, good physical fitness, good leadership ability and then only after requesting it you could get active duty.

PMS:  The process works, as I reiterate again, at the time of the accession packet which takes place in the fall of your senior year upon completion of summer camp a person may request active duty or reserve forces duty.  The accession packet goes forward and there is a process that takes place whereas you are graded on this process.

Applicant:  But what did you say to me sir?  What did you say to me?  Did you not say that to me?  Do you just not remember the conversation you had with me?

PMS:  You are one of many people that I discussed different things with.  As to specifics, I’m fairly certain, that one thing I would not have done is guarantee that you were going to go on reserve forces duty.

Applicant:  But, are you saying that it’s not possible that you did not say to me that if you wanted active duty you would have to request active duty?  You would have to be an exceptional candidate and meet the criteria and that you would have to request to be put on active duty?  Are you saying that you never said that to me?

PMS:  I do not recall that I ever said to you, what you say there is truth to it, generally speaking, when you want to go on active duty you have to ask for it.
Applicant:  So it is possible that is what you told me when we had this conversation that I would have to ask for active duty to get it?

PMS:  I don’t recall.

f.  The board found that the applicant voluntarily withdrew from her MS III courses, that she was aware that she was breaching her contract by doing so, that she withdrew from her courses with the intention of willfully evading her scholarship contract, and that there were grounds for disenrollment.  The board recommended that the applicant be disenrolled from the Army ROTC program for voluntary breach of the ROTC contract with intent to willfully evade the terms of her contract.

9.  On 27 May 1999, an attorney with the Administrative Law Section, Office of the Staff Judge Advocate, XVIII Airborne Corps and Fort Bragg, determined that the 29 April 1998 disenrollment proceedings were legally defective because they did not extend to the applicant her full rebuttal rights.  The proceedings were returned to the Cadet Command for correction.

10.  On 10 May 2000, an attorney with the Administrative Law Section, Office of the Staff Judge Advocate, US Army Cadet Command, determined the evidence was strong enough to support both sides depending on the interpretation of the decider of the facts.  He noted that the board found that the applicant had entered into a valid scholarship contract and that she breached it by withdrawing from her MS III courses.  However, a close review of the PMS’s testimony as well as the applicant’s assertions could also support a conclusion that the applicant was misled regarding a Reserve commitment when she signed her contract.  It was noted that during the applicant’s examination of the PMS, she inquired several times whether it was possible that she could have been under the impression that she was only obligated to reserve duty.  Instead of flatly denying that his conversations with the applicant could have created her alleged impressions, the PMS repeatedly stated that he could not recall his exact conversations with her and that generally, he informed cadets that the needs of the Army dictated.  The vagueness of the PMS’s responses tend to support the applicant’s arguments.  The applicant also alleged that other cadets were misled but that they opted to accept active duty assignments.  The board did not question those cadets.  If the Commanding General (CG), US Army Cadet Command, after reviewing the testimony found it credible, then the applicant’s contract was unenforceable and enlisted active duty would be inappropriate.

11.  On 5 June 2000, the CG, Cadet Command, disenrolled the applicant, and notified her that any appeal was due by 5 August 2000. 

12.  By memorandum dated 2 July 2000, the applicant filed her appeal.  She alleged fraudulent and deceptive recruitment practices by the Army; the PMS duped her, a “trusting young 17 year old girl with no preconceived notions of the Army” when he first pursued her; the PMS misrepresented and manipulated the entry requirements as evidenced by her failure to meet the weight requirements or pass the physical test prior to her signing the contract; the PMS led her to believe that weight and physical conditioning were not a problem, however she suffered from self-esteem problems in the program as she struggled with physical requirements and was embarrassed when another cadet called her “fat” in front of other cadets;  the contract was unenforceable because the PMS acted in bad faith in recruiting her; the PMS misled her by assuring her the Army is flexible and if she did not get enough sleep she would not have to attend physical training the next day;  the PMS “blatantly lied” to her and misrepresented many more facts;  she relied on the PMS misrepresentations to her detriment;  prior to signing the contract she saw a reference to active duty and “was very adamant about the [active duty] paragraph, but  the PMS assured her that “only real exceptional cadets who wanted to go to active would be selected for active duty”; that she “definitely expressed to the PMS she “only wanted a [R]eserve program and not active,” and the PMS assured” her she “did not have to worry about active duty”; the PMS explained to her that active duty involved an extensive application process which she did not have to undergo;  she had been “adamant with the PMS regarding her concern for her studies, preparation for law school and taking the LSAT and he “assured her” she “had no worries”; her participation in ROTC made her late for class and interfered with academic goals;  ROTC summer camp interfered with her ability to take the LSAT in the summer;  she has been the victim of sexual harassment;  she was harassed, abused and threatened for jumping the chain of command after she questioned the PMS about another cadet's policies and about the PMS’s order to drink more coffee as a solution to her sleeping problems; and, in December 1997, two assistant PMS's informed her that the program is for active duty and “there is almost a 100% chance” she would be called to active duty. 

13.  The applicant cited as financial losses stemming from her deceptive recruitment $9,300 in scholarship monies, consisting of $5,850 from the State of New York and $3,340 from a Siena College Grant.  While she requests excusal from all repayment obligations because of the fraudulent nature of the contract, she asks that any determination that finds that she has a repayment obligation deduct the amount of her pre-ROTC scholarships.  

14.  On 9 November 2000, the Cadet Command initiated steps to process the applicant’s debt with the Defense Finance and Accounting Service (DFAS) for collection.
15.  By letter dated 10 May 2001, DFAS sent a collection letter to the applicant.  She forwarded it to her attorney who requested a stay pending her appeal.

16.  On 13 December 2001, DFAS replied to an inquiry submitted by the applicant’s elected representative.  DFAS advised the Member of Congress that it had recalled the applicant’s case from a collection agency and that collection efforts would be temporarily suspended pending a decision by the Army Board for Correction of Military Records.

17.  A letter, dated February 2002, from the Office of The Judge Advocate General, advised the applicant they had received her statement of intent to enter active duty and that she was scheduled to attend the Judge Advocate General’s Corps Basic Course beginning 7 January 2003.  She was also advised that she must be admitted to practice before she could begin active duty.

18.  As part of a scholarship enlistment in the ROTC, an individual must sign a 
DA Form 597-3, which is the agreement between the Army and a potential ROTC cadet.  That form contains the promises made between the Army and the potential cadet, and includes the action the Army will take in the event a cadet fails to successfully complete the terms of the contract.  The applicant acknowledged that she understood and agreed that if she was disenrolled from the ROTC program during Military Science III she could be called to active duty for a period of three years or incur a reimbursement obligation.

Paragraph 1c of that contract states, “I will remain a full time student at the institution listed above while in pursuit of my degree . . . This includes the required Army ROTC classes.”

Paragraph 2c of the contract states “I further understand that my enrollment, continuation in, and completion of the ROTC Scholarship Program does not commit the Army to appoint me as an officer.”

Paragraph 3d of the contract states that service on active duty as a commissioned officer in the U.S. Army is based on the needs of the Army, followed by service in the Reserve Components until the remainder of an eight year contractual military service obligation has been served.

19.  The standard for requiring reimbursement is contained in Title 10 USC §2005(a)(3), which provides that a cadet will reimburse the total cost of the ROTC scholarship to the Government for voluntary or willful failure to fulfill the terms and conditions of the ROTC contract. 

20.  Information obtained from the Office of the Judge Advocate General shows that the applicant intends to enter active duty (as a Judge Advocate General Corps officer) on or about January 2003.

CONCLUSIONS:

1.  The applicant accepted the ROTC scholarship and agreed to remain a full time student and complete the required ROTC classes.  When she failed to enroll or attend ROTC classes, she was in breach of her ROTC contract, which resulted in the PMS initiating disenrollment action.

2.  The applicant contends that the PMS misled her regarding her active duty military obligation.  Even if the PMS made the representations alleged by the applicant, there is no evidence such alleged comments were pursuant to the knowledge of the Secretary or other high-ranking policy officials acting on his behalf.  Moreover, there is no evidence of ratification by the Secretary or any high-ranking policy official acting on his behalf.

3.  Additionally, it is well established that the Government is not bound by the erroneous representations of its agents.  Otherwise, if the Government were estopped from acknowledging the legal effect of such agents, those agents would bind the Government.

4.  The Board regrets that the PMS may have made material misstatements in his discussions with the applicant.  The faith and trust a cadet places in the honor and representation of the PMS, as an ambassador of the Secretary, is a foundational element in the cultivation of future leaders.  It is a bond that must be based on truth, trust, and mutual respect.  If those seminal elements were violated here and the PMS misled the applicant, the Board, on behalf of the Secretary, rejects his statements as unauthorized and without legal effect.  The Secretary is not legally bound by such ultra vires (beyond powers) representations and does not ratify that conduct.

5.  Further, despite any unfortunate misrepresentations by the PMS, the applicant is not completely blameless.  She contributed to her own plight through negligence. The applicant admits she did not read her ROTC agreement before entering ROTC.  Surprisingly, it is apparent that for the next 1½ years while she was in the ROTC program she still did not read her agreement.  Moreover, the applicant’s contention that she was naive and gullible does not rescue her from the agreement.  She was 18 when she entered the agreement.  She had excellent grades in college.  As an English Literature major, she was trained in analytical methods and she applied her considerable skills to examine the ROTC program in sufficient detail to know that it was an advantageous financial bargain for her to enter the program.

6.  The CG, US Army Cadet Command determined that the applicant breached her contract by withdrawing from ROTC.  However, in making his decision, he did not address the possible reasons for her withdrawal – the assertion by the applicant that the PMS purposely misled her.  Nor did he address the opinion of the legal advisor.  The Cadet Command legal advisor advised the CG that there was equal information to support the conclusion that the applicant was misled regarding a Reserve commitment.  The Board agrees with the legal advisor that a reading of the transcript indicates that the PMS was very evasive in his answers and appeared to agree with the overall points that the applicant asserted.  Was the PMS less than truthful with the applicant?  A reading of the ROTC contract reveals that he was technically correct in his assertions.  Wording in the ROTC contract does provide some basis for his comments.  The contract does indicate that all cadets are accessed into the reserve forces and accession into the Regular Army is based on the needs of the Army and that some scholarship students may not be accessed into the Regular Army.  However, the PMS knew that no potential cadet, awarded a scholarship, should sign a contract without the clear understanding that they should expect to serve on active duty, unless they have a guarantee reserve forces duty scholarship.  The PMS, when recruiting a teenager, who is unfamiliar with the Army and its terminology and who believes she can trust a senior officer; is morally obligated to provide the whole truth and ensure as much as is reasonable that a potential cadet clearly understands their academic and service obligations. 

7.  The Board is convinced that because the Cadet Command did not establish careful consideration of the applicant's appeal of her disenrollment, the perception of abuse of trust between the PMS and the applicant, and the protracted period of this appeal a substantial injustice has occurred.

8.  Additionally, the applicant's request and apparent selection for commissioning into the Judge Advocate General's Corps confirms her willingness to serve on active duty and further convinces the Board that she disenrolled from ROTC only when she thought that her continued participation would hinder her pursuit of a law degree and not to avoid her military service obligation.  The Board believes therefore that as a matter of equity it would be appropriate to grant the applicant's request.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:
a.  revising the Cadet Command scholarship disenrollment order dated 5 June 2000, and all other records pertaining to the applicant to reflect that she was separated from ROTC based on Secretarial Plenary Authority.

b.  correcting the applicant's record to show she has no ROTC reimbursement debt as a matter of law; has never had a valid ROTC reimbursement debt; and the debt asserted by DFAS at the prior request of the Cadet Command, and all interest, penalties, and any other charges arising therefrom, are void from their inception and inoperative or erroneous.  The Board, on behalf of the Secretary of the Army, overrules the U.S. Army Cadet Command, and rescinds the request for collection because there is no legal or valid debt;

c.  invalidating the DFAS initiated recoupment action, which was based on information provided by the Army, and directing DFAS to rescind all recoupment action, including the termination and quashing of all collection efforts regarding the invalidated and erroneous original debt; 

d.  having DFAS correct any adverse report or reports to the applicant's credit or financial history by reporting that the demand for repayment was erroneous and the applicant has never had, and does not currently have, an ROTC reimbursement debt.  DFAS will make this report to any and all credit bureaus or agencies receiving an adverse report regarding the applicant’s erroneous debt; all commercial collection agencies to which the erroneous debt was referred, if any; all other private services and companies involved, if any; and all Government agencies that may be involved, such as Federal courts, and parties involved in any garnishment proceedings; 

e.  directing that DFAS coordinate with the Internal Revenue Service and The Department of Justice, as required, to ensure any income tax withholdings are removed from the applicant's Internal Revenue Service records, or her Internal Revenue Service records reflect such withholdings were erroneous; and

f.  returning to the applicant any and all funds recouped, or withheld from her, or paid by her regarding the invalidated debt.

BOARD VOTE:  

________  ___inw__  ___jns___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

__jam____  ________  ________  DENY APPLICATION

		_______John N. Slone________
		        CHAIRPERSON

INDEX

CASE ID	AR2001064274	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020815	
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.	104.03	
2.		
3.		
4.		
5.		
6.