SAMR-RB 13 November 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160003731 1. Reference the attached Army Board for Correction of Military Records of Proceedings, dated 26 September 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. Ifind there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army records of the individual concerned be corrected by: a. amending his ROTC scholarship contract to show he satisfied his remaining ROTC contract debt of $33,767.92 under the original terms of the ROTC contract, by his 19 May 2011 enlistment in the Regular Army; b. reimbursing him the $8,298.00 (debt collection) minus the $4,000.00 enlistment bonus he received in conjunction with his 19 May 2011 enlistment in the Regular Army. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 08 March 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003731 BOARD VOTE: _________ _______ ________ 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: 26 September 2017 DOCKET NUMBER: AR20160003731 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. _____________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. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003731 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, in effect, remission/cancellation of his Reserve Officers' Training Corps (ROTC) scholarship debt in the amount of $33,767.92 and reimbursement of installment payments paid towards that debt. 2. He states he enlisted for 6 years in the Regular Army (RA) in exchange for a waiver of his scholarship debt. 3. He provides: * Enlisted Record Brief * Enlistment/Reenlistment Documents * Orders 187-341, dated 6 July 2011 * Uniform Services Identification Card * Leave and Earnings Statements * Orders CR-012-0010, dated 12 January 2015 * Defense Finance and Accounting Service (DFAS) Email, dated 9 February 2016 CONSIDERATION OF EVIDENCE: 1. On 27 January 2007, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 8 years in military occupational specialty (MOS) 31B (Military Police). 2. On 8 June 2007, the applicant was reassigned from the USAR Delayed Entry Program to the 81st Regional Readiness Command Trainees, Transients, Holdees, and Students (TTHS) Account. 3. On 31 October 2008, the applicant contracted as a U.S. Army ROTC cadet and he completed a DA Form 597-3 (Army ROTC Scholarship Cadet Contract) showing his education at The Citadel commenced on 31 October 2008 with a projected completion date of 15 May 2012. a. Paragraph 5 (Terms of Disenrollment) of his DA Form 597-3 states that: (1) If he failed to complete the ROTC Program, the Secretary of the Army could order him to active duty as an enlisted Soldier for a period of not more than 4 years. If he was disenrolled after the point of obligation, he may be ordered to active duty based upon the year during which his disenrollment was initiated. (2) If he was offered the opportunity to repay his advanced education assistance in lieu of being ordered to active duty, he would be required 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 accrued from the day he was first notified of the amount he owed as reimbursement under the contract. (3) If he was disenrolled from ROTC, the Secretary of the Army retained the prerogative to either order him to active duty or order monetary repayment of his scholarship benefits. Therefore, if he was required to repay his educational assistance under the terms of the contract, his subsequent enlistment in an Armed Service would not relieve him from his repayment obligation. b. Paragraph 6 (Enlisted Active Duty Service Obligation) of his DA Form 597- 3 states that if he were called to active duty for a breach of contract under the provisions of paragraph 5, he would be ordered to active duty for 3 years if the breach occurred during Military Science III, or for 4 years after completion of MS IV if he was a 2, 3, or 4-year scholarship recipient. 4. A copy of the applicant's ROTC disenrollment packet is not available for the Board to review 5. On 10 February 2010, he was honorably discharge from the USAR. 6. On 19 May 2011, he enlisted in the RA for a period of 6 years and 10 weeks in the rank/grade of private first class (PFC). His contract shows he enlisted for a $4,000.00 cash bonus for a 6-year enlistment in MOS 13D (Field Artillery Tactical Data System Specialist). 7. He is currently serving on active duty in the rank/grade of sergeant (SGT)/E-5. 8. In an email, dated 9 February 2016, a representative from Out of Service Debt and Claims, DFAS, informed the applicant that his education debt was temporarily suspended until he served the 4-year (active duty) requirement in order to apply for termination of his debt. The representative added the applicant would continue to receive billing statements showing the interest that accrues monthly, but no payments were needed at that time. The applicant was advised to submit an application to this Board. 9. On 12 July 2017, DFAS informed a staff member of the Board that the applicant has an outstanding debt balance of $33,767.92 which includes $3,973.28 in independent public accounting charges. The representative states that DFAS has collected $8,298.00 towards the debt. The applicant's base level debt was $35,489.00. REFERENCES: 1. Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training) prescribes policies and general procedures for administering the Army's Senior ROTC Program. a. Paragraph 3-39 states the Commanding General, U.S. Army Cadet Command is the approving authority for termination of scholarship and/or disenrollment. Paragraph 3–39c identifies the exception pertaining to 4-year scholarship winners discharged early from active service. A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3–43. The 4-year scholarship students can be disenrolled at their own request during Military Science I only. 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. 2. 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. 3. 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. 4. Title 10, U.S. Code, section 1552 states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. a. No correction may be made under subsection (a)(1) unless the claimant or his heir or legal representative files a request for the correction within three years after he discovers the error or injustice. However, a board established under subsection (a)(1) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice. b. The Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be, or on account of his or another’s service as a civilian employee. 5. DOD Financial Management Regulation 7000.14-R, Volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay) governs active duty and reserve military pay. Chapter 2 (Repayment of Unpaid Portion of Bonuses and Other Benefits), paragraph 020204 (Conditions under review by the Secretary of the Military Department), provides that under circumstances not specifically mentioned in this chapter, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on the following: * contrary to a personnel policy or management objective * against equity and good conscience * contrary to the best interest of the United States DISCUSSION: 1. The applicant enlisted in the USAR and was assigned to a holding company within the 81st Regional Readiness Command. Shortly thereafter, he signed an ROTC contract on 31 October 2008 with a projected graduation date in May 2012. 2. The reason and date for his disenrollment in the ROTC Program is unknown. His record shows he was honorably discharged from the USAR on 10 February 2010 which appears to have been during his Military Science II academic year. Nonetheless, the evidence of record shows his ROTC contract addendum called for an expeditious order to active duty based on the needs of the Army in pay grade E-1 without the benefit of enlistment bonuses or other incentives. If he did not accept the expeditious call to active duty, he was required to repay his educational debt for breach of contract. DFAS confirmed his base line (educational) debt was $35,489.00. 3. On 19 May 2011, which is more than a year after his discharge from the USAR and, presumably, disenrollment from the ROTC Program, the applicant enlisted in the RA for a specified MOS in the grade of E-3 with a $4,000.00 enlistment bonus. There is no explanation in his record showing why the Department of the Army did not expeditiously call him to active duty within 30 days of his ROTC disenrollment and subsequent discharge from the USAR as required by his ROTC contract addendum. 4. For his own personal reasons, the applicant voluntarily enlisted in the Army. In February 2016, the applicant received an email from DFAS which stated his Army education debt was temporarily suspended. He was advised to apply for termination of his debt as he had served 4 years active duty and that he would continue to receive billing statements showing the interest accrual and debt balance. DFAS confirmed the applicant has a debt balance of $33,767.92 which includes $3,973.28 in independent public accounting charges. DFAS also confirmed the applicant previously paid $8,298.00 towards his educational debt. 5. The applicant's enlistment in the RA and subsequent 4 years of active service have, in effect, met the active duty service obligation required by his ROTC contract addendum. The applicant did receive an enlistment bonus that he would not have received had he been expeditiously ordered to active duty upon disenrollment from ROTC. A recommendation to grant relief in this case should take into consideration that such action would, in effect, make the enlistment bonus he received a windfall that should be offset. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003731 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003731 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2