BOARD DATE: 5 October 2017 DOCKET NUMBER: AR20160003220 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. BOARD DATE: 5 October 2017 DOCKET NUMBER: AR20160003220 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING ::x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 5 October 2017 DOCKET NUMBER: AR20160003220 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) debt in the amount of $65,607 be canceled. 2. The applicant states his ROTC scholarship debt is in error because he was no longer able to continue with the ROTC due to medical issues caused by the Government shut down in 2013 and the ROTC leadership/Cadre at Baylor University. He states the debt was wrongfully applied and if allowed to remain will result in a lawsuit and media attention. 3. The applicant provides: * Cadet Contract * two medical evaluations * four doctor letters/statements * Emails dated between January and September 2014 * two memoranda, dated 16 April 2014 and 7 May 2014, from the Department of Military Science, Texas Christian University, Fort Worth, TX * ROTC Memorandum for Record (MFR), dated 9 September 2014 * self-authored statement, dated 31 October 2014 * letter, dated 18 September 2015, from Headquarters, U.S. Army Cadet Command, Fort Knox, KY * letter, dated 15 December 2015, from the Defense Finance and Accounting Service (DFAS) CONSIDERATION OF EVIDENCE: 1. The applicant previously served in the Regular Army from 23 September 2009 to 11 August 2011. He was discharged to enter an officer training program. 2. On 12 August 2011, the applicant enlisted in the U. S. Army Reserve (USAR) as a Cadet and he signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract). This contract represents an agreement entered into between the U.S. Army and the cadet. Both parties agreed that the sole purpose of the ROTC scholarship program is to produce officers for the U.S. Army. a. The institution named was Texas Christian University/Baylor University. b. Education was to commence 22 August 2011 and the completion date was 15 May 2015 for a degree in finance. c. The scholarship benefits were for a period of 4 academic years. He agreed to enroll in the necessary courses and successfully complete, within the prescribed time; the requirements for the degree in the academic major stated. He agreed to remain a full-time student in good standing at the educational institution named until he received his degree. d. Paragraph 5 states if he were disenrolled from the ROTC Program for breach of contractual terms or any other disenrollment criteria established then or in the future by Army regulations, he would be subject to the following terms: (1) The Secretary of the Army, or his designee, may order him to active duty as an enlisted Soldier, if he is qualified, for a period of not more than 4 years. (2) If he is offered the opportunity to repay his advanced educational assistance in lieu of being ordered to active duty, he would be required to reimburse the U.S. Government through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the United States for his advanced education from the commencement of this contractual agreement to the date of his disenrollment or refusal to accept a commission. e. If called to active duty for breach of contract he would be ordered to 3 years active duty if the breach of contract occurred during MS III. 3. There are no records in the applicant's official military personnel file (OMPF) concerning his medical treatment or the processing of his disenrollment from ROTC. The evidence in this case was provided by the applicant. 4. On 3 December 2013, the applicant received an initial evaluation of allergies and fatigue. He denied cough or fever but stated he had a 15-16 pound unintentional weight loss over the last year. The examiner was DEH, a physician's assistant (PA). The examiner's impression was acute suppurative otitis media (form of middle ear inflammation associated with the presence of infection) without spontaneous rupture of eardrum and loss of weight. 5. On 21 January 2014, the applicant received a follow-up to his examination on 3 December 2013. He was educated and reassured including self-care, over the counter measures, possible etiology, treatment options, and use of medications. He was examined by DAG, PA. He was given a release from work/school. His Work/School Release form stated he could return to work/school on 23 January 2014. 6. Email, dated 22 January 2014, confirms the applicant had a medical issue. 7. In email dated 12 February 2014 between the applicant and DJK, Assistant Professor of Military Science (PMS) at Baylor University Army ROTC, the applicant informed the PMS of his medical appointment on 12 February 2014 and he did not plan on sending a letter attached to the email through the cadet chain of command. 8. A letter, dated 12 February 2014, from the Browder Clinic and addressed "To whom it may concern" was signed by JBB, M.D. and he stated: a. The applicant was a new patient at the Browder Clinic. b. He was suffering from multiple medical problems including insomnia, sleep deprivation, weight loss, decreased physical capacity, increased stress, and decreased testosterone levels. These medical problems were related to his inability to manage the overwhelming load and time constraints associated with running a business, attending business school at Baylor, and being a member of the ROTC at Baylor. c. It was Dr. JBB's medical opinion that the current conditions would prevent the applicant from participating in the required physical training and prevent him from performing his military duties. It was Dr. JBB's medical opinion that it would be in the best interest of the applicant's health to drop out of the ROTC program at Baylor at that time. 9. On 13 February 2014, JRK, an attorney, sent a letter to Major SHA, Assistant PMS, Department of Military Science, Baylor University Army ROTC, through DJK, Assistant PMS, stating his office had been requested to assist the applicant in being released from the ROTC program predicated upon his medical condition. a. He attached the letter from Dr. JBB, the applicant's treating physician. Dr. JBB indicated the applicant's medical condition would prevent both physical training as well as performing military duties. b. JRK requested the applicant be excused and released from the ROTC program in which he was enrolled. 10. In an email to the applicant, dated 13 February 2014, the assistant PMS informed the applicant a meeting would be scheduled for a future date and that until a final determination could be made the applicant needed to ensure he attended all classes, labs, and physical training sessions. 11. On 24 March 2014, Dr. JBB conducted a follow-up evaluation of the applicant. The applicant continued to suffer from insomnia, sleep deprivation, decreased physical capacity, increased stress, and decreased testosterone levels and had failed to gain back all of his weight loss. It was Dr. JBB's medical opinion that it would be in the best interest of the applicant's health to no longer serve in the military and drop out of the ROTC program at Baylor at this time. 12. A memorandum for the applicant, dated 16 April 2014, from Major SHA, Assistant PMS, Texas Christian University, subject: Medical Determination for [the applicant], stated: a. There was insufficient medical information to make a sound evaluation and a final decision based on the documentation he provided (Browder Clinic memoranda dated 12 February and 24 March 2014). Cadet Command directed a fit-for-duty evaluation in order to fairly and impartially assess his level of fitness. This evaluation must be conducted by a certified physician at a Military Treatment Facility. The results of the evaluation would be submitted to Cadet Command for adjudication by the final approving authority, the Commanding General (CG), U.S. Army ROTC Cadet Command. b. Fort Hood's Resiliency and Restoration Center was to contact the applicant to initiate this evaluation process by scheduling an appointment. 13. In an email, dated 6 May 2014, the applicant notified Major SHA he was unable to schedule an evaluation as directed. The applicant stated he would take no further action and await further instruction from the major. 14. In an email, dated 7 May 2014, Major SHA informed the applicant he could not receive a fit-for-duty evaluation through the military because he was not a Tricare beneficiary and because there was no clear diagnoses according to the documents he provided, "We" will proceed with disenrollment from the program. 15. A memorandum, dated 7 May 2014, from Major SHA informed the applicant he was deemed as medically qualified by the Cadet Command Surgeon due to a lack of medical documentation supporting the applicant's claim of change in health status. Based on these findings "we" will proceed with disenrollment from the program in accordance with Cadet Command regulations and contract stipulations. 16. On 6 September 2014, an email from JRK to Colonel Talcott outlined the situation concerning the applicant from 13 February through 7 May 2014. It was the attorney's position that the disenrollment and assertion of a debt to be collected from his client (Applicant) was erroneous. The attorney requested a copy of the determination and copies of all documentation reviewed by the Command Surgeon that deemed the applicant medically qualified. 17. An email, dated 9 September 2014, from Captain HWH, Baylor University Army ROTC, informed the applicant that under the provisions of Cadet Command Regulation and Army Regulation (AR) 145-1 (Senior ROTC Program: Organization, Administration, and Training), the command was under no obligation to talk with his attorney. a. On 27 August 2014, notification of regular disenrollment was sent to him through certified mail to his home of record and his address known by Baylor University. Certified mail and his lawyer's correspondence by email is proof he received the notification. b. He was given ten working days per Cadet Command Regulations to respond personally. He had until Friday, 12 September 2014, at 5 pm to provide written correspondence to Mrs. RL, and/or the captain in the Baylor Army ROTC Office stating whether he desired to attend the board to present the case on his behalf. After he notified the appropriate channels in writing, another letter would be sent stating where and when the board would occur. c. In accordance with AR 145-1, a board of officers was to be appointed by the PMS, the brigade commander, or the region commander according to the formal procedures outlined in AR 15-6, as modified by AR 145-1. d. In accordance with AR 145-1, "The cadet is entitled to be assisted in the preparation of the hearing by any reasonable available military officer (who need not be an attorney) or may hire civilian counsel at his or her own expense." In accordance with AR 145-1, "Counsel may not represent the cadet at the hearing or board, although counsel may be available to give advice." e. Counsel may not directly or indirectly address the board. At least one school official will be permitted to observe any hearings that may arise from the appointment of such board or investigation. The requirement for appointment of a board of officers or investigating officers is waived if the student subject to disenrollment action voluntarily waives in writing his or her right to such board review within 10 days of notification of pending disenrollment. 18. An MFR, date 9 September 2014, was submitted by Captain HWH, Assistant PMS, repeating the information in his 9 September 2014 email to the applicant. 19. A email, date 9 September 2014, to the applicant from his attorney, JRK, advised him if he elected to have a hearing his burden was to prove he was medically disqualified from military duty or that the Army breached its contract with him when the government shut down, thereby causing him great financial hardship from which he has not recovered. JRK stated: a. His assistance to the applicant was limited. He could not speak at the hearing or question any witnesses. This effectively meant he would be of little help to the applicant at the hearing. b. It would be best if his doctor would be more specific in his conclusion and state something to the effect, "It is my opinion that [the applicant] is medically disqualified for military service and that continuation of military service would present a danger to his health" or something along those lines. c. The attorney did not believe the applicant would be able to prevail on the breach of contract theory, but it needed to be thrown into the mix anyway. The idea is that if the Army has breached its agreement with him by failing to pay him or Baylor once the government shutdown, that breach excuses him from performing under his contract. In essence he would be arguing that when the Army breached its agreement with him, that breach excused any further performance by him. Once the contract was breached he had the right to end it and no longer be obligated under it. The attorney was clear he did not believe he would prevail on it. 20. A statement, dated 31 October 2014, from the applicant appears to be in response to other correspondence. The statement refers to exhibits that are not a part of the record. He also lists documents previously submitted to the ROTC. The document the applicant is responding to is not available for review. 21. On 18 September 2015, Headquarters, ROTC Cadet Command (ROTCCC), responded to the applicant's appeal concerning his disenrollment from the U.S. Army ROTC Program and repayment of the scholarship funds expended on his behalf by the U.S. Army. Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, reviewed his appeal and concluded that his scholarship debt was valid and the total amount of monies spent in support of his education was $65,607.00. A debt was established with the Defense Finance and Accounting Service (DFAS) in his name. 22. Documents specifying the specific reason and exact date of the applicant's disenrollment from ROTC are not available for review. 23. On 15 March 2017, an advisory opinion was received from the Office of the Deputy Chief of Staff, G-1 recommending disapproval of the applicant's request. a. The record confirms the applicant was disenrolled from the ROTC Program prior to completing his obligation. While that is unfortunate, the Army does not have the authority to cancel his debt. b. Law precludes remitting or canceling a debt under the authority of Title 10, United States Code (USC), section 4837, unless the debt was incurred while serving on active duty as a member of the Army, which the applicant was not. c. Waiving a debt under the authority of 10 USC section 2774 is precluded because a debt arising from an ROTC Scholarship is not an erroneous payment, since the payment was proper at the time it was made. d. The Cadet Command Surgeon deemed the applicant as medically qualified due to a lack of medical documentation supporting his claim of a change in health status. Although the applicant's doctor identified several medical conditions related to his inability to managing the overwhelming load and time constraints associated with running a business, attending business school, and being a member of the ROTC, his doctor did not diagnose the applicant with a medical condition that would disqualify him from participating in the ROTC Program. 24. On 20 March 2017, a copy of the advisory was provided to the applicant for the opportunity to submit any additional comments/rebuttal. The applicant has not provided any additional comments. REFERENCES: 1. AR 15-185 (ABCMR) provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Title 10, U.S. Code, section 2005, provides the law on reimbursement requirements for educational assistance from the Armed Forces. It provides that the Secretary concerned may require any person provided advanced education assistance to reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided. It also provides that any amount owed by such person to the United States under such agreement shall bear interest at the rate equal to the highest rate being paid by the United States on the day on which the reimbursement is determined to be due and shall accrue from the day on which the member is first notified of the amount due. 3. AR 145-1 provides the policy for operation of the ROTC program. It provides for the termination of scholarships and disenrollment by the CG, ROTCCC. Paragraph 3-43 provides the reasons non-scholarship and scholarship cadets will be disenrolled. a. The scholarship will be terminated and the cadet disenrolled for medical disqualification when determined and approved by Headquarters, ROTCCC, or higher. A medical condition that precludes appointment will be cause for disenrollment. b. The scholarship will be terminated and the cadet disenrolled for inaptitude for military service, an indifferent attitude, or lack of interest in military training. c. It also provides for disenrollment based on breach of contract, which is any act on the part of a student that breaches the terms of the contract, whether done with specific intent or not. 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. 4. Cadet Command Pamphlet 145-4 (Enrollment, Retention, and Disenrollment Criteria, Policy, and Procedures), dated 6 October 2000, paragraph 6-12, states that the Battalion Commander/Professor Military Science will forward the Cadet Form 131-R when requesting a medical determination/waiver to Headquarters, Cadet Command. If the Cadet Command Surgeon determines that the cadet is medically disqualified and not eligible for waiver and there is no failure to disclose, the cadet will be processed for disenrollment. Cadets disenrolled for medical disqualification will not normally be ordered to active duty or recommended for recoupment. DISCUSSION: 1. The Cadet Contract signed by the applicant represents an agreement entered into between the U.S. Army and the cadet. He agreed to remain a full-time student in good standing at the educational institution named until he received his degree. The applicant failed to fulfill this agreement. 2. His Cadet Contract stated if he was disenrolled from ROTC for breach of contract or any other disenrollment criteria established then or in the future Army Regulations he may be ordered to active duty as an enlisted Soldier for a period of not more than 4 years. There is no evidence the applicant served on active duty subsequent to his disenrollment. 3. His Cadet Contract stated if he was offered the opportunity to repay his advanced educational assistance in lieu of being ordered to active duty, he would be required to reimburse the U.S. Government through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the United States for his advanced education from the commencement of this contractual agreement to the date of his disenrollment or refusal to accept a commission. 4. The letters from the Browder Clinic identified several medical conditions related to his inability to managing the overwhelming load and time constraints associated with running a business, attending business school, and being a member of the ROTC. However, the applicant's doctor did not diagnose him with a medical condition that demonstrates unfitness for military service or that would disqualify him from participating in the ROTC program. 5. The Cadet Command Surgeon deemed the applicant medically qualified due to a lack of medical documentation supporting his claim of change in health status. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160003220 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003220 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2