BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160013507 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ___x_____ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160013507 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 the ROTC contract as a Regular Army enlisted Soldier, via his enlistment on 15 January 2009. 2. The Board further recommends that the Defense Finance and Accounting Service, who determined he was paid a bonus, recoup his bonus payment from the original debt to offset an equal portion of his ROTC scholarship debt. After this adjustment, the applicant should be reimbursed the monies he has paid toward his ROTC debt and the remainder of his debt cancelled. 3. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a full refund of the monies paid or owed to the U.S. Treasury as a result of his breached ROTC contract. ______________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: 1 June 2017 DOCKET NUMBER: AR20160013507 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 $43,333.00 and reimbursement of installment payments paid towards his debt. 2. The applicant states he was disenrolled from Auburn University's Army ROTC Program in May 2008. He then enlisted in the Regular Army (RA) on 15 January 2009 and he is scheduled to serve until 2019. He offers he has deployed to Afghanistan for a total of 12 months with several units and he was awarded the Purple Heart and three Army Commendation Medals, one with "V" Device during these deployments. 3. He provides: * Enlistment/Reenlistment Documents * DA Form 3340-R (Request for Reenlistment or Extension in the RA), dated 7 May 2012 * DA Form 1695 (Oath of Extension of Enlistment), dated 4 August 2015 * three Noncommissioned Officer Evaluation Reports 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 contracted as a U.S. Army ROTC cadet on 14 August 2002 and he completed a DA Form 597-3 (Army ROTC Scholarship Cadet Contract) that shows his education at Auburn University commenced on 19 August 2002 with a projected completion date of 15 May 2007. 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. 3. On 15 May 2008, the Commander, Eastern Region (ROTC) U.S. Army Cadet Command, War Eagle Battalion, Auburn University, AL, informed the applicant that he was initiating his disenrollment from ROTC Program. a. The commander stated his actions were based on the applicant's failure to maintain the Army Physical Fitness Test (APFT) standards. The applicant's rights were explained and the commander said as a scholarship cadet, he may be called to enlisted active duty in an enlisted grade of E-1 or required to repay scholarship benefits in the amount of $43,333.00 in lieu of call to active duty in fulfillment of his contractual obligation. b. The applicant elected to waive his right to a hearing. He acknowledged that the amount and validity of his debt as stated in the disenrollment notification was correct. He declined the call to active duty within 60 days after completion of his current projected graduation date or upon withdrawal/dismissal from school, whichever one occurs first. 4. On 22 October 2008, the Commanding General (CG), U.S. Army Cadet Command (USACC), notified the applicant that he was disenrolled from the ROTC Program under the provisions of Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 3-43a(16). He reiterated the specific reasons for the applicant's disenrollment as the applicant's failure to maintain APFT standards. a. The memorandum also notified the applicant that when the ROTC scholarship contract is breached, an obligation to the Army must be satisfied by repaying the cost of advanced educational assistance provided by the Army and that the amount of monies spent in support of his education was $43,333.00. b. Additionally, the CG provided the applicant with an addendum and ordered him to elect an option as far as paying the full amount in one lump sum payment or initiate a repayment plan. He was further notified that the addendum with his election must be received within 14 days of his receipt and failure to respond by the suspense date may result in the initiation of involuntary collection action. c. The applicant signed the addendum on 14 November 2008 promising to repay the total amount owed of $43,333.00 in monthly installments, plus interest on the amount owed, as specified in the scholarship contract. 5. On 15 January 2009, he enlisted in the RA for a period of 4 years and 16 weeks in the rank/grade of specialist (SPC)/E-4. He executed several reenlistment options and is currently serving in the rank/grade of sergeant (SGT)/E-5 with an expiration term of service (ETS) of 6 January 2019. 6. On 15 March 2017, Defense Finance and Accounting Service (DFAS) stated their records show the applicant was originally indebted in the principal amount of $43,333.00 with a current balance due of $13,739.96. Additionally, the agency stated he received an enlistment bonus of $10,000. REFERENCES: 1. Army Regulation 145-1 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 MS 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. APFT failure and lack of compliance with military training standards is reason for disenrollment. 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. DISCUSSION: 1. The evidence of record confirms the applicant was accepted into an Army ROTC scholarship program. He fully understood and accepted the terms of his enrollment. However, he was disenrolled from the course for APFT failure. 2. His ROTC scholarship contract specified that he could be ordered to active duty as an enlisted Soldier for a period of not more than 4 years or be required to reimburse the U.S. Government the entire amount of financial assistance he received if he were disenrolled for a breach of contract. The applicant elected to pay the debt owed in monthly installment payments. 3. Even though his contract called for an expeditious call to active duty in the pay grade of E-1 through ROTC channels for a breach of contract, the evidence shows he enlisted in the RA on 15 January 2009 in the pay grade of E-4. He has since served over 8 years in the Army and has attained the rank of SGT/E-5 with an ETS date of 6 January 2019. His enlistment in the RA has effectively met the active duty obligation required by his ROTC scholarship contract. 4. However, had the applicant elected an expeditious order to active duty to repay his debt for breaching his ROTC contract, he would have been assigned against the needs of the Army, in pay grade E-1, and not allowed any enlistment options such as the $10,000.00 enlistment bonus. Therefore, to remit the debt for the ROTC breach of contract and allow him to keep the $10,000.00 enlistment bonus would be considered a windfall. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013507 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013507 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2