IN THE CASE OF: BOARD DATE: 13 October 2011 DOCKET NUMBER: AR20110004527 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 his Reserve Officers' Training Corps (ROTC) scholarship debt be waived and that the money he repaid after August 2009 be refunded to him based upon his date of appointment as an officer in the U.S. Coast Guard (USCG). 2. The applicant states that in July 2000 he left ROTC without completing his obligated service because he was going through a divorce and child custody battle. He entered into a voluntary repayment agreement and has been paying down his $22,000 debt ever since. 3. The applicant further states that on 31 December 2008 his debts were discharged in a Bankruptcy proceeding in the U.S. District Court for the Western District of Washington State. He did not list his ROTC educational debt because he mistakenly believed that it was not dischargeable by bankruptcy. He has since learned that because more than 5 years had elapsed since the debt was incurred, he should have included his educational debt in his bankruptcy filing. If complete waiver is not available, he requests waiver of all payments made after 30 September 2008, the date of his bankruptcy filing. 4. The applicant also states that he was commissioned as an ensign in the USCG in August 2009. He is currently on active duty with the USCG and deployed to the Gulf Coast as part of the response to the oil spill. He requests complete waiver of his ROTC debt because he is now fulfilling his service obligation in the USCG. If complete waiver is not available, he requests waiver of all payments made after 5 August 2009, the date he was commissioned in the USCG. He concludes that he is serving as a commissioned officer in the Armed Services, which was the intent of the ROTC scholarship. 5. The applicant provides: * U.S. Bankruptcy Court Discharge of Debtor document * USCG Appointment Certificate * Letter to the Defense Finance and Accounting Service (DFAS) 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 this case 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 for timely filing. 2. The applicant's records show he enlisted in the U.S. Army Reserve (USAR) as a cadet for a period of 8 years on 15 December 1997. In connection with this enlistment, he executed a DA Form 597-3 and agreed to receive scholarship benefits for a period of 3 1/2 academic years, including tuition and fees, books, laboratory expenses, and monthly subsistence, at Washington State University (WSU) located in Pullman, WA in exchange for appointment as a second lieutenant in the Army Reserve upon successful completion of all academic, military, and other requirements of the Army ROTC program. 3. Paragraph 7 of his DA Form 597-3 states that if the cadet were disenrolled from the ROTC program for any reason or if he failed to accept a commission if offered he may, at the discretion of the Secretary of the Army or his or her designated representative, be ordered to active duty as an enlisted Soldier for a period of not more than 4 years or, in lieu of being ordered to active duty, may be required to reimburse the U.S. through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the U.S. for his advanced education from the commencement of this contractual agreement to the date of his disenrollment or refusal to accept a commission. He understood that he may be deemed to have failed to comply with the terms and conditions of this contract (breach of contract) regardless of whether he knew that the failure violated the contract and regardless of whether the failure was the result of an act or omission on his part made with a specific intent to avoid responsibilities under the contract. 4. Paragraph 8 of his DA Form 597-3 states that if he were called to active duty for breach of contract under the provisions of paragraph 7, he would 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. 5. Paragraph 9 of his DA Form 597-3 states that if the cadet were disenrolled from the ROTC program for any reason or if he failed to accept a commission if offered he may, at the discretion of the Army, be directed, in lieu of being ordered to active duty as a private (E-1) for a period as specified in paragraph 8, to reimburse the U.S. through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the U.S. for his advanced education from the commencement of this contractual agreement to the date of his disenrollment. 6. Paragraph 11 of his DA Form 597-3 states he understood that the cost of his education under this program was, for all purposes, a debt owed to the U.S. and entered into voluntarily on his part, which, under the provisions of Subsection (d) of Section 2005, Title 10, U.S. Code, may not voluntarily be discharged by his declaration of bankruptcy if less than (5) years after the specified period of active duty. 7. A DA Form 4856 (Developmental Counseling Form), dated 21 December 1999, shows the applicant was counseled by an Assistant Professor of Military Science (APMS) regarding his academic performance and attendance in the Senior ROTC at WSU. Among other topics the APMS noted the following: * His performance during Fall 1999 had been unsatisfactory and he was not meeting the training requirements for completion of a course * He had extremely poor attendance throughout the Fall semester to include 12 unexcused absences and 9 excused absences * He had missed almost 25 percent of the required Army ROTC activities * Due to personal hardships experienced by the applicant, the APMS granted him another opportunity to complete course requirements 8. Department of Military Science, WSU, Pullman, WA, Orders 06-021, dated 30 March 2000, ordered the applicant to participate in Advanced Camp Training at Fort Lewis, WA from 20 June through 24 July 2000 with a reporting date of 20 June 2000. 9. On 20 July 2000, the Deputy Chief, Advanced Camp Cadet Personnel Division, Headquarters, Fort Lewis ROTC Advanced Camp, Fort Lewis, WA informed the PMS, Department of Military Science, WSU that the applicant failed to report to his assigned regiment for participation in Advanced Camp training. The PMS was advised that since failure to report to Advanced Camp was considered a breach of contract, the applicant must be placed on a leave of absence and proceedings to determine his retainability in the ROTC Program should be initiated immediately. 10. On 9 August 2000, in a memorandum addressed to the applicant, the WSU ROTC Battalion Commander notified the applicant that he was initiating action to disenroll him from the ROTC program based on breaching his contract by failing to attend Advanced Camp and that he was being placed on leave of absence pending disenrollment. The commander informed the applicant of his rights during the disenrollment process and that as a scholarship cadet, if the disenrollment was approved, he could be called to active duty in an enlisted grade of E-1 or be required to repay the total amount scholarship benefits he had received in lieu of call to active duty in fulfillment of his contractual obligations. 11. The applicant's U.S. Army Advanced Education Financial Assistance Record, certified on 22 August 2000, shows the total Army ROTC scholarship benefits he was paid amounted to $20,078.50 as of 22 August 2000. 12. On 28 August 2000, in a memorandum addressed to the applicant, the WSU ROTC Battalion Commander notified the applicant that he was placing him on probation for Fall Semester 2000 for receiving an "F" in one of his classes. The commander also reiterated to the applicant that in order to continue with Army ROTC and earn a commission in the U.S. Army he had to meet certain standards and provided him a list of the applicable minimum standards. 13. An ROTC Cadet Action Request was initiated by his PMS requesting a board of officers consider the applicant's disenrollment for breaching the terms of his ROTC contract by failing to attend Advanced Camp and that he be required to repay his scholarship benefits. 14. On 30 October 2000, the WSU ROTC Battalion Commander appointed a board of officers to hear evidence and determine if the applicant should be disenrolled for breaching the terms of his ROTC contract by failing to attend Advanced Camp 2000. The scope of the investigation was to include, but not be limited to: a. Did he enter into a valid Army Senior ROTC Scholarship Cadet contract (DA Form 597-3) of his own volition? b. Did he receive monies from the U.S. Government in the form of subsistence allowances and/or scholarship benefits while enrolled in ROTC? c. Are there grounds for disenrollment of the applicant in accordance with Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program: Organization, Administration, and Training ), paragraph 3-43a(16)? d. If disenrollment is recommended should cadet repay the amount of the scholarship benefits in the amount of $20,078.50 or be called to active duty? 15. On 31 October 2000, in a memorandum addressed to the applicant, the WSU ROTC Battalion Commander notified the applicant that a board of officers had been appointed to hear evidence and determine his suitability for retention in the ROTC Program. The commander also informed the applicant about the specific matters to be investigated, as mentioned in paragraph 13 above. The commander advised him of his right to consult with counsel and to have witnesses speak on his behalf. 16. A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows a board was held at WSU on 28 November 2000. Having carefully considered the evidence: a. The board recommended: (1) That the applicant be disenrolled from ROTC under the provisions of Army Regulation 145-1, paragraph 3-43a(16). (2) That the applicant be ordered to repay scholarship benefits received in the amount of $20,078.50. b. The appointing authority reviewed and approved the findings and recommendations of the board. 17. On 11 December 2000, in a memorandum addressed to the applicant, the WSU ROTC Battalion Commander notified the applicant that a disenrollment Board was held on 28 November 2000 to determine his suitability for retention in the ROTC Program at WSU. The commander informed the applicant of the board's recommendations and advised him that he had 15 days in which to send a rebuttal to his office. The applicant's record does not contain a rebuttal or any indication that he submitted one. 18. On 19 July 2001, the Commanding General (CG), U.S. Army cadet Command (USACC), ordered his disenrollment from the ROTC program in accordance with paragraph 3-43a(16) of Army Regulation (AR) 145-1 due to breach of ROTC contract based on his failure to Advanced Camp 2000. He was provided an addendum to his scholarship contractual agreement with options to be ordered to active duty, repayment of the debt in a lump sum, or repayment in monthly installments. He was also notified that failure to respond by the suspense date of 17 September 2001 could result in the involuntary issuance of active duty orders or initiation of involuntary collection action. He failed to make a choice. 19. Order WSU 9-1 issued by Department of Military Science, WSU on 10 October 2001 shows the applicant was discharged from USAR Control Group (ROTC), Fourth ROTC Region Senior Instructor Group, WSU, Pullman, WA, effective 19 July 2001. 20. The applicant provides: a. A Discharge of Debtor document rendered by the U.S. Bankruptcy Court, Western District of Washington, Seattle, WA on 31 December 2008 which shows he filed for Chapter 7 bankruptcy. This court order granted him a discharge of most, but not all, of his debts that existed on the date the bankruptcy case was filed. This document also shows some of the common types of debts which are not (emphasis added) discharged in a Chapter 7 bankruptcy case, among them is "Debts for most student loans." b. A USCG Appointment Certificate which shows he was appointed as a lieutenant junior grade (LTJG) in the USCG on 5 February 2011. c. A letter he sent to DFAS, Indianapolis, IN on 3 March 2011 wherein he informed DFAS that he was submitting a DD Form 149 (Application for Correction of Military Record) to the ABCMR to request a waiver of his ROTC debt. He adds that due to personal issues he left school prior to graduating and completing his ROTC requirements and it was determined he would have to repay the entire cost of his educational assistance. He mentioned that he was currently serving as a commissioned officer in the USCG in the grade of LTJG/O-2, which was the intent of the ROTC Scholarship. 21. AR 145-1 prescribes polices and general procedures for administering the Army’s SROTC Program: a. Paragraph 3-31 states the Army ROTC Scholarship Program provides financial assistance to those students who have demonstrated academic excellence and leadership potential. The U.S. Army Scholarship Program’s purpose is to provide for the education and training of highly qualified and motivated young men and women who have a strong commitment to military service as commissioned officers b. Paragraph 3-39 states a non-scholarship cadet may be disenrolled by the PMS and a scholarship cadet may be disenrolled only by the CG, (U.S. Army ROTC Cadet Command (USAROTCCC)). Nonscholarship and scholarship cadets will be disenrolled for a variety of reasons. c. Paragraph 3-43a(15) and (16) state that nonscholarship and scholarship cadets will be disenrolled due to an indifferent attitude, or lack of interest in military training as evidenced by frequent absences from military science classes or drill, an established pattern of shirking, failure to successfully complete an established weight control program, or similar acts. 22. AR 37-104-3 (Finance Update) provides the policies and provisions for entitlements and collections of pay and allowances of military personnel. Chapter 59 currently in effect, provides for recoupment of educational expenses, e.g., ROTC, United States Military Academy, and advanced civilian schooling under a previous agreement when obligated active duty service has not been completed. 23. AR 135-210 (Order to Active Duty as Individuals for Other Than a Presidential Selected Reserve Call-up, Partial or Full Mobilization) prescribes policies and procedures for ordering individual Soldiers of the Army National Guard of the United States and the U. S. Army Reserve 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 Army Reception Battalion and will be ordered to active duty in pay grade E-1. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant was accepted into an Army ROTC scholarship program and he failed to satisfy the contractual requirements of this program based on his failure to attend Advanced Camp which constituted a breach of contract. 2. He was disenrolled from the ROTC program and was subsequently found in breach of his ROTC contract. He was, therefore, offered the opportunity to be ordered to active duty, repay the debt in a lump sum, or repay the debt in monthly installments. He states he entered into a voluntary repayment agreement and has been repaying the debt ever since. 3. The fact that the applicant is currently serving as a commissioned officer in the USCG is noted. Notwithstanding the U.S. Coast Guard's national defense role, it would not be equitable to allow the applicant's current active duty service to satisfy the conditions of his ROTC contract. Entry on active duty over 9 years after he would have been called to active duty in lieu of repayment of his ROTC debt is not a reasonable expectation of alternate service. It is too remote in time to tip the equitable scale in his favor. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20110004527 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110004527 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1