ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 November 2019 DOCKET NUMBER: AR20160019342 APPLICANT REQUESTS: * remission/cancellation of his Reserve Officers’ Training Corps (ROTC) debt * reimbursement of $26,000.00 already paid toward the debt * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with attached statement * two DD Forms 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States) * DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) * email correspondence * Disenrollment from the USAR ROTC Program memoranda * New York Army National Guard (NYARNG) reenlistment * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He has an erroneous debt of $26,500.00 from his 4-year ROTC contract disenrollment. Since discovery of this debt there has been a process to include a congressional investigation to the origin of this debt that had led to this. At no time has this been neglected. This debt has caused an undue hardship for him. b. He received a 4-year ROTC scholarship upon high school graduation in the Spring of 2009. On 31 August 2009, he signed his ROTC Cadet contract as well as his initial enlistment as a Cadet in the ROTC program at Niagara University. Upon completion of my first semester as a Military Science (MS) I, he achieved a grade point average (GPA) of 1.73 in breach of his cadet contract requiring a GPA of 2.0 and was placed on administrative suspension. At this time, he received no financial aid from the ROTC program for the Spring 2010 semester. During the Fall 2010 semester, he received a GPA of 2.5 and the suspension was lifted. Upon beginning the Fall 2010 semester, he earned 16 credit hours (an academic freshman) which would make me an MS I as shown on part II, section C (cadet obligation), subsection 1 (cadets) in which it states that you will incur a reimbursement obligation upon the first day of your MS II (sophomore year). He was, however, overpaid by $350.00 earning the monthly sustenance pay of an MS II. During the Fall 2010 semester, he earned a .57 GPA, withdrew from the university, and was subsequently withdrawn from the ROTC program. At this point, he had 23 credits still leaving him one short of being an academic sophomore (MS II). Upon withdrawal, he enlisted in the ARNG on 24 January 2011. This is when, in a premobilization process in 2013, there was the discovery of debt. c. He believes this debt to be erroneous in that the ROTC program did not pay for more than 2 semesters (1 year), as well as his failure to become an academic sophomore (MS II), which is when he should have incurred any reimbursement debt. He believes he was overpaid by $350.00. He requests his debt be corrected to $350.00 and he be refunded all $26,000.00 already paid. 3. The applicant provides copies of the following: a. A DA Form 4/1 showing he enlisted in the U.S. Army Reserve, as a cadet, on 31 August 2009, under the ROTC program. b. A DA Form 597-3, dated 31 August 2009, showing he received an ROTC scholarship to Niagara University. c. Email correspondence, dated 16 September 2010, wherein the Niagara University was advised of the following: * the applicant’s scholarship was converted to a Dedicated ARNG Scholarship * ensure the applicant understood if he was eligible for CH 1606 MGIB he could not receive those benefits with a Dedicated ARNG Scholarship, but could with a GRFD-type scholarship conversion * the applicant should also that once accepted, this scholarship conversion could not be revoked or reconverted and he must serve in the ARNG upon commissioning for Dedicated ARNG scholarship conversion * if not already enrolled he should begin the Simultaneous Membership Program (SMP) in his respective Reserve Component unit once conversion took effect d. A Disenrollment of Scholarship ROTC Cadet memorandum, dated 31 January 2011, wherein the Professor of MS Science notified the applicant of initiation to disenroll him for the ROTC Program based on the applicant’s disenrollment from Niagara University. He advised the applicant of his rights and the procedures regarding his disenrollment from ROTC and indebtedness. e. A Niagara University Official Withdraw Form, he executed on 12 January 2011. f. A Disenrollment Executive Summary memorandum, dated 3 June 2011, wherein the Professor of MS stated: * the applicant had academic and personal issues and ultimately withdrew Niagara University * his disenrollment was based on Academic Failure and Withdrawal from school * he was a 4- year High School Scholarship winner * his 1st semester GPA was 1.73, he was placed on Admin Suspension, his Spring 2010 10 GPA was 2.5, administrative suspension was lifted * his Fall 2010 GPA was 0.57 and he withdrew over the winter break * during the Fall 2010 semester, he requested and was granted a conversion to a dedicated ARNG Scholarship * he began working with local units and recruiters to find an SMP unit * after he withdrew from school, he departed for basic training for the ARNG on 16 February 2011 * prior to his departure, he left a message that he had signed paperwork waiving his rights and that his mother would be mailing them to the Niagara University * after not receiving paperwork, they contacted family who stated that recruiter had them and they were eventually able to get the packet that the applicant had signed * he had read through the packet and have found them to be accurate and in accordance with the proper procedures. g. A DD Form 4/1 showing he enlisted in the NYARNG on 24 January 2011. h. A Disenrollment from the USAR ROTC Program memorandum, dated 21 October 2011, wherein the Commanding General (CG), U.S. Army Cadet Command (USARCC) disenrolled and discharged the applicant from the ROTC Program under the provisions of Army Regulation (AR) 145-1 (Senior ROTC Program: Organization, Administration , and Training), paragraph 3-43a(4), July 1996, due to his withdrawal from the Niagara University. The GC advised the applicant of the following: * when the ROTC scholarship contract was breached, any obligation to the Army must be satisfied by repaying the cost of advanced education assistance provided by the Army * the total amount of monies spent in support of his education was $26,500.00 * a DA Form 5315-E (US Army Advanced Education Financial Assistance Record) was enclosed detailing the debt 4. Review of the applicant’s service record shows: a. He enlisted in the NYARNG on 24 January 2011. b. He served on active duty in support of Operation Enduring Freedom from 20 February 2013 to 20 January 2014. He served in Qatar from 4 April to 13 December 2013. His DD Form 214 shows he completed the following: * 11 months and 4 days of net active service this period, which included 8 months and 10 days of foreign service * 4 months and 22 of prior active service c. He extended his enlistment in the NYARNG on 21 January 2017, for 6 years. His expiration of term of service (ETS) was established as 23 January 2023. d. Orders Number 171-103, issued by the NYARNG on 20 June 2017, announced his entry on active duty in an Active Guard Reserve status, from 20 June 2017 to 19 June 2020. e. On 25 February 2019, the Army Review Boards Agency requested the applicant provide a copy of the university enrollment/disenrollment contracts in which he attended with the addendums from the ROTC program and a copy of the letter from the Defense Finance and Accounting Service (DFAS) explaining the debt. f. An advisory opinion was received from the Chief, Officer Accessions and Policy Branch, Office of the Chief of Staff, G1, on 26 September 2019, in the processing of this case. The Army G1 official reiterated the applicant’s request and stated: (1) The applicant was a 4-year High School ROTC Scholarship winner and signed an 8-year U.S. Army Reserve enlistment contract as an ROTC Cadet with the Niagara University ROTC Program on 31 August 2009. He withdrew from Niagara University on 12 January 2011, enlisted in the ARNG on 24 January 2011, and disenrolled from the ROTC Program by the USACC CG on 21 October 2011. Pursuant to AR 145-1, paragraph 3-43(a)(4), a scholarship Cadet may be disenrolled by the USACC CG for withdrawing from an academic institution. His disenrollment directly resulted from his Niagara University withdrawal. (2) The applicant’s claim that his ROTC contract debt is erroneous is incorrect. He signed a DA Form 597-3 on 22 September 2009. That contract stated "I understand and agree that I will incur an active duty and/or reimbursement obligation after the first day of my MS II year (sophomore year) if I am a three-, four-, or five-year scholarship recipient." He began his sophomore year, including a second year MS II class, and completed a total of 23 credit hours, including three semesters of MS classes with passing grades in MIL 101, MIL 101 L, MIL 102, MIL 102L, and MIL 201 at the time of his disenrollment. (3) The DA Form 597-3 contract further included the applicant’s endorsement of the following: "I understand and agree that once I become obligated and I am disenrolled from the ROTC program for breach of contractual terms or any other disenrollment criteria established now or in the future by AR’s (which included, but were not limited to AR 145-1) incorporated herein by reference, I am subject to the terms in paragraphs 5a through 5e below ... e. I AGREE THAT ANY OBLIGATION TO REIMBURSE WILL NOT BE ALTERED BY SUBSEQUENT ENLISTED DUTY. If I am disenrolled from ROTC, I understand the Secretary of the Army, or his or her designee, retains the prerogative to either order me to active duty or order monetary repayment of my scholarship benefits. Therefore, if I am required to repay my advanced educational assistance under the terms of this contract, my subsequent enlistment in an Armed Service will not relieve me from my repayment obligation.” (4) The DA Form 597-3 contract terms also precluded the applicant from enlisting in any service until disenrollment. The contract disenrollment section, paragraph d. states "I AGREE THAT PENDING DISCHARGE FROM ROTC, I MAY NOT ENLIST. I may not enlist in the active Army, another military service, or in a military service academy while I am a contracted ROTC cadet unless I am properly released from my ROTC cadet status." The applicant completed more than his first day of class in his "MS II" sophomore year, which makes him fully obligated for the scholarship debt. Additionally, he violated contract terms by enlisting into the ARNG on 24 January 2011 prior to being discharged via the USACC CG's disenrollment memo of 21 October 2011. (5) If the applicant was ordered to, and served a 3-year period of active duty, recoupment of his debt would be waived. While there is no contractual obligation for the Army to waive his debt, as a matter of equity he has already completed his first term of active service in the ARNG, which has been continuous since January 2011. He has reenlisted and his current Expiration of Term of Service is 2023. His service in the Army includes nearly 2 years of active duty. Therefore, the G1 recommended the ABCMR grant relief through an Army request to DFAS to suspend collection of the applicant’s debt, pending completion of the equivalent of 3 years of active duty. If he was separated from the ARNG prior to completing 3 years of active duty, the suspension of the collection of his debt should be lifted. g. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. In his response, dated 14 October 2019, the applicant stated: (1) Following a standard fulltime student schedule, 12 credit hours per semester times two semesters per academic year equals 24 credit hours per successful academic year. Most academic institutions will not advance an individual to the next year until hitting the minimum requirements for credit hours. With the lack of a well-defined standard from the Army for what defines a sophomore they are left with the academic standard of 24 hours being required to be considered an academic sophomore of which he only achieved 23 by the time of his withdrawal as confirmed by the Army G1. Additionally, his class level of freshman indicated on his attached final transcripts. (2) In his last semester, he took a 200 level MS course. These courses however are open to all students at Niagara University and limited only by completion of the 101 and 102 course. Further evidence of that point was illustrated by his completion of MIL 200 in Spring 2010. In September 2010, the scholarship was converted to a Dedicated ARNG scholarship part of which was a required enlistment in an ARNG unit to participate in the SMP. (3) The Army G1 has incorrectly calculated his time in service and his basic active service date was 4 November 2015. He currently has 47 months (3 years and 11 months) of active service. This debt has already been collected in full and has resulted in significant financial hardship despite many years of appeals. He requests an alignment with the Army G1 advisory opinion that he be relieved of this debt obligation retroactively. 5. By regulation (AR 145-1), a scholarship cadets may be disenrolled from the ROTC program for failure to maintain a minimum semester or quarter cumulative academic GPA of 2.0 on a 4.0 scale or higher if required by the school and at least a 3.0 on a 4.0 scale or equivalent semester or quarter and cumulative average in all ROTC courses. A cadet may also be disenrolled for withdrawal from an academic institution. 6. By law, a cadet agrees to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement and, if the cadet fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement. Also by law, if a 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. 7. By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. Based upon a preponderance of the evidence, the Board did not agree with the advisory official’s recommendation to provide relief. The evidence shows the applicant received a just debt after he breached his contract with ROTC. His disenrollment notification did not provide for the option to join active service for 4 years, at the needs of the Army, at the lowest enlisted grade. He was required to return an addendum showing his payment options; however, the addendum was not available for the Board to review. The Board considered granting relief based upon completing 4 years of active military service; however, there is insufficient evidence showing he completed 4 years at this time. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. REFERENCES: 1. Title 10, U.S. Code (USC), section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 145-1 (Senior Reserve Officers’ Training Corps (ROTC): Organization, Administration, and Training) provides policies and general procedures for administering the Army's ROTC Program. Chapter 3 (Student Administration), paragraph 3-43, provides that scholarship cadets may be disenrolled by the Commanding General, U.S. Army ROTC Cadet Command, for failure to maintain a minimum semester or quarter cumulative academic GPA of 2.0 on a 4.0 scale or higher if required by the school and at least a 3.0 on a 4.0 scale or equivalent semester or quarter and cumulative average in all ROTC courses. A cadet may also be disenrollment from the ROTC Program for withdrawing from an academic institution. 3. Title 10, USC, 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. 4. Title 10, USC, 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 (emphasis added) in the manner provided for without the Secretary first ordering such person to active duty as provided for under clause (2) of such subsection. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019342 8 1