IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150006851 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: The applicant defers his request, statement, and evidence to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests the applicant's Reserve Officers’ Training Corps (ROTC) debt in the amount of $13,269.28 be waived. He also requests a personal appearance. 2. Counsel states the applicant signed an ROTC scholarship agreement that provided for payment of tuition, fees, and books. In exchange, the applicant agreed to remain a full-time student and maintain satisfactory physical, academic, and moral standards. He agreed that if he failed to complete the ROTC program, he would either repay the educational benefits or serve on active duty in an enlisted status. The applicant was disenrolled for an indifferent attitude and lack of interest in military training evidenced by frequent absences from military science (MS) classes, failure to maintain the required grade point average (GPA), and failure to pass the Army Physical Fitness Test (APFT). The Army disenrolled him and determined he would be required to pay the debt despite his desire to perform active duty and his offer to enlist. He ultimately enlisted in the U.S. Navy (USN) and he is currently performing great service to our Nation. Counsel also argues that: * the applicant's value to the USN and our national defense exceeds the debt assessed by the Army * the applicant made it clear that he intended to enlist in the USN and he did so; he did not have to do so and could have simply paid the debt * the applicant continues his service in the USN and is performing above his pay grade * the Board has previously granted numerous applications presenting nearly identical circumstances 3. Counsel provides: * DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) * DD Form 4/1 (Enlistment/Reenlistment Document) * ROTC disenrollment packet with supporting documents * USN Enlistment Contract * Junior ROTC Certificate * USN Fitness Report * Statements of service/character reference statements * Previous Army Board for Correction of Military Records (ABCMR) decisions pertaining to ROTC scholarship debt * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 2366 (Montgomery GI Bill Act of 1984) * USN Evaluation Reports and Counseling Records CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) as a cadet for 8 years on 25 September 2008. He indicated he was attending Loyola College in Maryland commencing on 2 September 2008 with a projected completion date of 25 May 2012. 2. In connection with this enlistment, he executed a DA Form 597-3 and agreed to receive scholarship benefits for a period of four academic years, including tuition and fees, books, laboratory expenses, and monthly subsistence, in exchange for appointment as a Reserve of the Army upon successful completion of all academic, military, and other requirements of the Army ROTC program. 3. Paragraph 5 (Terms of Disenrollment) of his DA Form 597-3 states that if the cadet were disenrolled from the ROTC program for any reason, the Secretary of the Army could order the cadet to reimburse the United States the dollar amount plus interest that bears the same ratio to the total cost of the scholarship financial assistance provided by the United States to the cadet as the unserved portion of active duty bears to the total period of active service the cadet agreed to serve or was ordered to serve. 4. Paragraph 6 (Enlisted Active Duty Service Obligation) of his DA Form 597-3 states that if he were called to active duty for breach of contract under the provisions of paragraph 5, he would be ordered to active duty for 2 years if the breach occurred during MS II, 3 years if the breach occurred during MS III, or 4 years if the breach occurred during MS IV. 5. On 8 December 2009, his Professor of Military Science (PMS) counseled him regarding a risk of breaching his contract due to academic failure (he had received an "F" in MS 201), unexcused absence and failure to show up for the record APFT, not showing up for major training events, an indifferent attitude, and a lack of interest. The PMS recommended a plan of action the applicant would take to reach the agreed-upon goals. The applicant agreed. 6. On 18 December 2009, the PMS counseled the applicant again regarding his lack of progress, lack of motivation, and the consequences of breaching his contract. 7. On 3 February 2010, the PMS placed the applicant on a leave of absence pending disenrollment from the ROTC program. 8. On 15 February 2010, the PMS notified him of the initiation of disenrollment action from the ROTC program and placement on leave of absence due to his failure to maintain the minimum GPA of 2.0 out of 4.0 in all ROTC courses, having an indifferent attitude as evidenced by frequent absences from military science classes, failing to maintain APFT standards, and failing to meet height and weight standards. The applicant was advised of his right to request a hearing and notified that he retained the status of cadet until the disenrollment and discharge action were complete. He was advised that he could not enlist in any other military service or component or sign any other scholarship contract until he had been discharged. He was further informed that as a scholarship cadet, he could be called to active duty in an enlisted rank/grade of private (PV1)/E-1 or be required to repay scholarship benefits in the amount of $12,888.00 in lieu of a call to active duty. 9. Also on 15 February 2010, the PMS appointed a board of officers to determine the applicant's suitability for retention in the ROTC program and the amount and validity of the debt. 10. On 18 February 2010, the applicant was notified that a board of officers/investigating officer had been appointed to hear evidence to determine his suitability for retention in the ROTC program and whether he should pay the debt. On 9 March 2010, by email, the applicant stated that his intent was to enlist in the Army within 60 days of finishing school in order to fulfill his contract and debt. 11. On 10 March 2010, the applicant acknowledged receipt of the disenrollment memorandum. He waived his right to a hearing and acknowledged that the amount and validity of the debt as stated on the disenrollment notification were correct. He accepted a call to active duty within 60 days and declined expeditious call to active duty. 12. On 10 March 2010, the PMS recommended the applicant's disenrollment from the ROTC program. He also recommended the applicant be ordered to active duty to repay his scholarship debt. 13. On 24 March 2010, the Brigade Commander recommended approval of the disenrollment. The commander stated the applicant had shown an indifferent attitude or lack of interest as evident by his frequent absence from MS classes and training as well as failing to meet the APFT and height and weight standards. He also failed to maintain a minimum acceptable GPA. The Commander recommended the applicant be ordered to active duty in lieu of repayment of scholarship monies in the amount of $12,888.00. 14. On 25 May 2010, an executive summary was submitted to the Commanding General (CG), U.S. Army Cadet Command (USACC). It stated the applicant was being disenrolled from the ROTC program due to breach of contract. He waived his right to a formal hearing and elected active duty 60 days after graduation or withdrawal from school or he would be obligated to pay $12,888.00. The chain of command recommended active duty and the Command Judge Advocate supported this course of action. 15. On 21 July 2010, the CG, USACC, ordered the applicant disenrolled from the ROTC program in accordance with Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 3-43a (6) and (16), due to breach of his ROTC contract based on his failure to maintain a minimum semester academic GPA of 2.0 on a 4.0 scale in ROTC classes. Additionally, he incurred a debt in the amount of $12,888.00. 16. The applicant was provided an addendum to his scholarship contractual agreement with options to be ordered to active duty, to repay the debt in a lump sum, or to repay the debt in monthly installments. On 11 August 2010, the applicant acknowledged receipt and signed an addendum to his contractual agreement. He elected to pay the total amount of the debt. 17. On 6 June 2011, the applicant enlisted in the USN for a period of 4 years in pay grade E-3. 18. The applicant served on the USS Cole, in pay grade E-4. Since enlistment, he has received above-average evaluation reports and multiple certificates. Several members of his chain of command and colleagues speak of his dedication to our Nation. 19. He was honorably released from active duty and transferred to the Navy Reserve on 5 June 2015, in pay grade E-5. His DD Form 214 shows he completed 4 years of active duty service in the USN. 20. Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program. a. Paragraph 3-39 states the CG, USACC, is the approving authority for termination of scholarship and/or disenrollment. A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3–43. b. Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract. Sub-paragraph 3-43a states 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. Lack of interest in military training and/or failure to enroll in classes is reasons for disenrollment. 21. 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. 22. 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. 23. Army Regulation 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 USAR to active duty during peacetime. 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. 24. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. Counsel's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant's counsel is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The evidence of record confirms the applicant was accepted into an Army ROTC scholarship program. However, he did not satisfy the contractual requirements of this program due to his failure to maintain a minimum GPA of 2.0 in all ROTC courses, having an indifferent attitude as evidenced by frequent absences from military science classes, failing to maintain APFT standards, and failing to meet height and weight standards. 3. He was disenrolled from the ROTC program and he was subsequently found in breach of his ROTC contract. He was advised of his rights and elected to enter active duty in lieu of paying his debt. The CG approved the disenrollment but disapproved the applicant's call to active duty. He accepted this decision and promised to pay the debt back. 4. The terms of the ROTC scholarship contract required a cadet to either repay the debt or agree to be ordered to active duty as an enlisted Soldier in the Army through ROTC channels based on the needs of the Army, in the rank/grade of PVT/E-1. 5. He enlisted in the USN for 4 years on 6 June 2011, in pay grade E-3. Notwithstanding the fact that he enlisted at a higher pay grade than he would have held had he been ordered to active duty in the Army, his enlistment in the USN served the same purpose that would have been served had he been ordered to active duty in the U.S. Army. In other words, the Department of Defense still had the benefit of his active duty service. 6. The evidence supports considering his enlistment in the USN to have met the active duty obligation required by his ROTC scholarship contract. 7. The available evidence does not indicate whether or not he received a USN enlistment bonus. If he did, any relief he may be granted should be offset by the amount of any USN enlistment bonus he received. BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his ROTC scholarship contract to show he would satisfy the service obligation under the original terms of his ROTC contract as an enlisted member of the USN. 2. The Defense Finance and Accounting Service will determine if he was paid a USN enlistment bonus. In the event that he received an enlistment bonus, that bonus payment should be recouped to offset an equal portion of his ROTC scholarship debt. ___________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) AR20150006851 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006851 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1