IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20160006119 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20160006119 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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: a. amending his ROTC scholarship contract to show that he would satisfy his entire ROTC debt under the original terms of the ROTC contract by successfully completing 2 or more years of active duty commencing within 60 days of his college graduation; and b. reimbursing him all monies paid towards his ROTC 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. IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20160006119 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 correction of his military records by showing his Reserve Officers’ Training Corps (ROTC) debt was cancelled based on his subsequent active duty enlisted service in the U.S. Army. 2. The applicant states he contracted as a cadet in the ROTC program at the University of Albany from August 2008 to August 2009. He left the ROTC program without receiving a commission. He was briefed upon graduation from college that he would be required to pay back the tuition assistance he received through the ROTC program, or in lieu of payment, serve a term of enlistment. On 8 March 2016, he received official mail informing him that his tax return totaling $1,317.00 had been garnished by the Defense Finance and Accounting Service (DFAS) due to an outstanding balance of $7,890.27 stemming from the ROTC tuition assistance received. He would like the record corrected to show that he has served 68 months in lieu of the required repayment and to be reimbursed for the money garnished by DFAS. 3. The applicant provides copies of: * DD Form 4 (Enlistment/Reenlistment Document), dated 21 July 2010 * Enlisted Record Brief (ERB), dated 20 January 2016 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. On 24 May 2007, the applicant signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract). Paragraph 5 stated that if he were disenrolled from the ROTC Program for breach of contract, the Secretary of the Army could order him to active duty as an enlisted Soldier, if qualified, for a period of not more than 4 years. In lieu of being ordered to active duty, he could be offered the opportunity to repay his advanced educational assistance plus interest, equal to the entire amount of financial assistance paid by the U.S. for his education from the commencement of the contract to the date of his disenrollment. 3. A record from the Pay Operations Division, Cadet Command, dated 4 September 2008, shows that the applicant had received $7,218.00 in ROTC scholarship benefits. 4. A memorandum from the Professor of Military Science to the applicant, dated 12 September 2008, informed him that he was placed on a leave of absence pending disenrollment for breach of contract due to his failure to meet the Army physical fitness test (APFT) standards. He was informed that he retained the status of a cadet until disenrollment and discharge action was complete, and as such, may not enlist in any other military service or component. However, he was also informed that, if eligible, he could elect to complete his baccalaureate degree in the same school and then serve on active duty as an enlisted Soldier to fulfill his contractual obligation. If he chose this option, he would be ordered to active duty within 60 days after graduation, withdrawal, or dismissal from school, whichever came first. The applicant indicated on the letter his desire to waive his right to a hearing and to decline being called to active duty within 60 days after his graduation. He also declined an expeditious call to active duty. 5. The applicant’s ERB indicates that the applicant completed his 4-year degree in 2010 and received a Bachelor of Science degree in political science. 6. On 21 July 2010, the applicant enlisted in the Regular Army for 6 years, in pay grade E-4. He completed his initial training as an infantryman. 7. A DFAS Account Statement, dated 2 August 2010, reports that the applicant had incurred a $7,854.82 debt to the U.S. government due to non-performance related to his ROTC education tuition assistance. 8. On 1 June 2013, the applicant was promoted to sergeant, pay grade E-5. He was subsequently promoted to staff sergeant, pay grade E-6, on 1 March 2015. 9. A DD Form 4, dated 14 January 2016, and associated enclosures indicate that the applicant reenlisted in the Regular Army for a 2-year period in accordance with the needs of the Army. He has an expiration of term of service (ETS) of 13 January 2018, which will give him 7 years, 5 months, and 24 days of active duty service. 10. A letter from the Department of the Treasury to the applicant, dated 24 February 2016, informed him that his income tax refund of $1,317.00 was applied to his DFAS debt. 11. In a Memorandum for Record, dated 19 April 2016, the applicant stated, in response to receiving the Department of Treasury letter discussed above, that he was unaware that his ROTC scholarship debt had not been resolved. He had the understanding that he fulfilled his obligations for scholarship forgiveness by enlisting and serving for more than the 2 years required, as stated by DFAS. He further states in the letter that he had graduated on 29 May 2010 and enlisted on 20 July 2010. 12. A DFAS Out of Service Debt Account Status form shows the applicant’s account last received a payment on 11 March 2016 of $1,300.00 from the Department of Treasury, with a remaining balance of $6,573.27. REFERENCES: Army Regulation 135-210 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. In pertinent part, 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. DISCUSSION: 1. The applicant contends that his military records should be corrected by showing his ROTC debt was forgiven based on his subsequent active duty enlisted service in the U.S. Army. 2. The available evidence shows the applicant contracted as a cadet in the ROTC program from August 2008 to August 2009. He left the ROTC program without receiving a commission. He continued his education and graduated in May 2010 and enlisted in the Regular Army in July of the same year. He has been and still is on active duty in an enlisted status. His understanding and argument that his active duty service should have fulfilled his obligations and allowed for scholarship forgiveness is reasonable given the wording in the contract and dismissal letter. 3. The DFAS shows an unpaid balance, as of 11 March 2016, of $7,890.27. 4. Although not provided for in his DA Form 597-3, the applicant’s 21 July 2010 enlistment in the Regular Army and subsequent and continued enlisted service have served the same purpose as would have been served had he been ordered to active duty in the Army. The Army has received the benefits of his active duty service for a period of more than 6 years, and continues to do so. As a matter of equity, it would be appropriate to consider his enlistment in the Regular Army to have met the active duty obligation required by his ROTC scholarship contract. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006119 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006119 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2