ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20170016053 APPLICANT REQUESTS: * forgiveness of his Reserve Officer Training Corps (ROTC) education debt * personal appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * legal counsel document * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) * SGLV 8286 (Service members’ Group Life Insurance Election and Certificate) * DD Form 93 (Record of Emergency Data) * DA Form 597-3 (Army Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract) * email from applicant * Jack3d product data * ROTC CDT CMD Form 57-9-C (Cadet Evaluation Report) * Army Physical Fitness Test record * height / weight record * notification of ROTC disenrollment * acknowledgement of disenrollment * cadet waiver * board of officers appointment * notification of respondent * letter from Professor of Pharmacology and Toxicology * DA Form 1574 (Report of Proceeding by Investigating Officer / Board of Officers) * transcripts for disenrollment board * findings of disenrollment board * disenrollment approval * financial assistance record * DD form (Record of Disenrollment from Officer Candidate – Type Training) * legal counsel appeal to ROTC scholarship recoupment * Department of the Treasury letter of unpaid debt * letter in response for request of records * Orders 139-1 * Orders 205-034 * Debt collection notice * applicant’s credit reports * applicant’s self-authored statement * character references * college transcripts 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 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. That the deciding official committed a harmful error by disregarding applicable law. The applicant had unrebutted good character evidence that he was an exceptional cadet for almost the full term of the scholarship contract that was improperly disregarded. The absence of the debt notice the applicant was denied due process and that the applicant was denied a meaningful exercise of his rights during the board which resulted in a denial of due process. b. The board of officers used an erroneous legal standard in adjudicating the applicant’s disenrollment: whether or not the applicant felt the effects of the drug, but whether the drugs were in his system. c. The applicant had unrebutted good character evidence that he was an exceptional cadet for almost the full term of the scholarship. This character was not properly considered by the board of officers. The unrebutted evidence alone was sufficient to find in the favor of the applicant. d. The applicant appealed the scholarship debt to the proper authority but was never properly notified of the denial and appellate rights to this board. This resulted in a significant inflation of the debt. e. The applicant was denied meaningful exercise of his rights during the board resulting in a denial of due process. The applicant had legal counsel at the board proceedings but was prohibited from representative participation by the board. f. The applicant suffers from substantial hardship as a result of the scholarship debt. The debt has caused extreme financial hardship on the applicant and his family as a result of the disenrollment from the ROTC program. The debt affects the applicant’s ability to obtain employment. g. The applicant suffers from substantial hardship as a result of the $110,436.01 scholarship debt with no means of being able to pay back the debt. He only holds part-time employment which brings in at most $250 per week so he can complete his Master degree in Biomedical Science. The applicants expenses exceed the income in a month include credit card payments, car payments, and basic essentials. 3. The applicant’s provides: a. An email dated 16 May 2013, from the applicant to Mr. X___ asking that the information regarding a pre-workout supplement be added to the information being sent to Cadet Command. In the email the applicant states that he has taken the supplement multiple times prior to working out at Lehigh gym and within a week of taking the supplement was given a urinalysis. The supplement is legal for purchase and can be found at all major retailers, but there is research that suggests that the supplement can trigger a positive result for amphetamine in a drug test. Jack3d product data provided. b. Cadet evaluation report for the period of 26 August 2012 to 18 May 2013, that states the applicant had unlimited potential for future active duty service, had natural leadership ability, successfully balanced responsibilities while seeking a Chemical Engineering degree. c. A letter from Dr. X__ that states to his knowledge the only evidence submitted by the government against the applicant was the GC/MS analysis results that showed the sample to contain 7849.24 Nano grams/milliliter of d-Amphetamine. The analysis alone, it was not possible to definitively state that the applicant ever felt the effects of the drug based upon the levels detected within the sample. d. Character reference from X__, who stated that he is a former Professor of Military Science for X__ University and that the applicant was one of the best cadets within the university’s program during his tenure. The applicant was dedicated, motivated, intelligent, and physically fit who had the intense and committed desire to succeed. e. Character reference from X__, who stated that he has known the applicant since 2010, to say that he would be an outstanding officer in the Army would be to sell him short. If the Army does not have officers like the applicant, the Army does not promote high standards. He met and exceeded standards in every facet, he consistently finished in the top three in the brigade. The applicant needs to be a leader in the Army to set the example for others to follow. f. Character reference from X__, who stated that he knew the applicant for 2 years while at X__ University and he had never seen him use any recreational, study or otherwise prohibited substances. X__ also emphasizes that recreational drugs that contain amphetamines are all hard radical drugs and using hard drugs was beyond the applicant’s realms of normal behavior. Drug use would be completely out of character for the applicant. g. Character reference from X__, who stated that he had known the applicant for over 3 years and he had contributed greatly to the overall high standards of the battalion and represented himself as an involved student, friend and community member on the X__ University campus. The applicant had never given reason to question his integrity. X__ believed that the applicant possessed strong morals and was aware of the right way of doing things. h. Character reference from X__, who stated that he met the applicant in 2010 and had been a colleague, classmate and friend. They have worked closely together and he has constantly observed the applicant taking proactive roles in improving the ROTC program. The applicant took on the responsibility of providing supplemental training for lower classmen. The applicant treated others with care, concern and utmost respect. i. Character reference from X__, who stated that the applicant had always exemplified the Army values and did more than what was asked of him, he was always well liked by both subordinates and superiors. If the applicant said the urinalysis was wrong then it was wrong. j. Character reference from X__, who stated that he has known the applicant since September 2010. The applicant had demonstrated the highest potential of technical competence, physical capacity, and mental fortitude, led from the front and always embraced a no excuses attitude to accomplish the mission. The applicant never hesitated to sacrifice personal time to coordinate supplemental training for subordinates. The applicant exemplified the essential values of the best future U.S. Army officer, he was motivated, professional, exceedingly competent, and dedicated to development of both peers and subordinates. k. Character reference from X__, who stated that the applicant had always been very focused and involved within the program. He showed tremendous determination to develop himself to become the best officer he can be. The applicant would never do anything to jeopardize his commission as his admiration for service and selflessness had always been clearly visible. l. Character reference from X__, who stated that the applicant was dedicated to physical health and wellbeing. He had prepared himself for leadership and being a real role model. The applicant set and achieved goals for himself and effectively driven others to do the same. He was a stellar example of service and strength. m. Character reference from X__, who stated he has known the applicant for 4 years and was a close friend. The applicant was smart and loyal with compassionate concern for doing the right thing in life. He was goal oriented, patriotic, and commands a large responsibility. n. Character reference from X__, who stated that on 4 May he observed the applicant drinking anywhere from nine to 11 alcoholic drinks which was not normal for the applicant. He was stumbling and had slurred speech, he had a weird glaze-like look in his eyes. X__ has not known the applicant to ever used drugs. He was adamantly against the use of drugs and spoke down to those who use them. o. Character reference from X__, who stated that the applicant always had his nose to the grindstone and was not one to relax. He was selected for a program for upper classmen to act as role models and mentors. The selection was based on leadership ability, qualities of thoughtfulness, self-control and willingness to volunteer and only people with utmost character are selected. p. Character reference from X__, who stated that he had known the applicant for 8 years. The applicant had reached out to X__ and had remained faithful friends throughout high school. The applicant was teachable and a great leader by example. q. Character reference from X__, who stated that he was struck and impressed by the applicant’s passion for what he did and determination to succeed. He had a steadfast commitment and ability to complete all required tasks in many facets of his life. r. Character reference from X__, who stated that the applicant had become a vital part of her life. The applicant was one of the most gentle, levelheaded and intelligent men that she knew. He was caring and compassionate and always ready to help a friend. 4. The applicant enlisted in the U.S. Army Reserve Control Group (ROTC) on 24 September 2011. In connection with this enlistment, he also executed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract). He contracted for a 3-year scholarship. He attended Lehigh University. a. Paragraph 5 (Terms of Disenrollment) states that if the cadet were disenrolled from the ROTC Program for any reason, the Secretary of the Army could order the cadet 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 the unserved portion of active duty bears to the total period of active duty the cadet agreed to serve or was ordered to serve. b. Paragraph 6 (Enlisted Active Duty Service Obligation) 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 2 years if the breach occurred during Military Science II, for 3 years if the breach occurred during Military Science III, or for 4 years if the breach occurred during Military Science IV. 5. On 23 July 2013 his Professor of Military Science (PMS) notified him by memorandum of the initiation of disenrollment action from ROTC and placement on a leave of absence based on undesirable character under the provisions of paragraph 3-43a (11), Army Regulation (AR) 145-1 (Senior ROTC Program: Organization, Administration, and Training) due to a positive urinalysis for drug or alcohol. He was advised of his right to request a hearing. He may appear before the board of officers or investigating officer and present matters regarding his disenrollment or indebtedness. He was also advised that he may consult with any reasonable available military officer, who need not be an attorney, or duly licensed civilian counsel at no expense to the government to help him decide whether or not to waive a hearing and otherwise to assist him in exercising his rights. He was advised that if he should elect to use civilian counsel, his counsel may only advise him and was not allowed to represent you as in a court room. He was also notified him that he retained the status of cadet until disenrollment and discharge action were complete and as such may not enlist in any other military service or component or sign any other scholarship contract. He was further informed that as a scholarship cadet he could be called to active duty in an enlisted Soldier or be required to repay any bonus and/or incentives in the amount of $86,260 in lieu of a call to active duty. The PMS further advised him the decision authority was the Commander, U.S. Army Cadet Command (USACC). 6. On 4 August 2013, the applicant acknowledged receipt of the disenrollment memorandum. He elected a hearing to review his proposed disenrollment and a personal appearance in order to respond to the validity of the debt. He also requested to present matters regarding his disenrollment and the amount/validity of the debt. 7. On 27 September 2013, a board convened at the Jordan Hall, Lehigh University to consider if the applicant should be retained in the ROTC Program. The applicant was present and submitted matters on his own behalf. a. The board found the applicant entered into a valid senior ROTC contract, received advanced educational assistance ($86,260), failed to complete the requirements of the ROTC contract in that because of the misconduct of the applicant and due to this misconduct he failed to complete the requirements of his ROTC contract and he no longer remained eligible for enrollment in the military training program. b. The board recommended the applicant not be retained as an ROTC scholarship cadet, should be disenrolled from the ROTC under AR 145-1, paragraph 3-43(a) (11), should not be ordered to active duty in an enlisted status for a period of 4 years, and should be ordered to repay the valid debt to the U.S. government in the amount of $86,260. 8. There is no evidence the applicant acknowledged receipt of the board notification results memorandum. Or if he further acknowledged he understood he could rebut the findings and recommendations of the board. He was provided 10 days to provide a rebuttal statement. 9. On 14 May 2014, the Commanding General (CG), USACC, approved the request for disenrollment and ordered the applicant disenrolled from the ROTC Program under the provisions of AR 145-1, paragraph 3-43a (11), due to a fact or condition that bars the applicant’s appointment as a commissioned officer, condition – positive urinalysis results for amphetamines. The CG's memorandum notified the applicant that when an 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 $86,260. 10. Additionally, the CG provided the applicant a DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record) detailing the debt and ordering the applicant to elect an option as far as paying the full amount in one lump sum payment or initiate a repayment plan. He was notified that the Addendum with his election must be received within 14 days of its receipt and failure to respond by the suspense date may result in the initiation of involuntary collection action. 11. There is no evidence the applicant acknowledged or signed the Addendum or made an election of the method to fulfill his contractual obligation (agreeing to pay the debt in one lump sum payment or in installments). 12. The Department of Military Science, Lehigh University Army ROTC published Orders 139-1 dated 19 May 2014, ordering his discharge from the U.S. Army Reserve Control Group (ROTC) effective 14 May 2014. 13. On 13 August 2014, by memorandum to the applicant from Department of the Army HQs, USACC and Fort Knox, stating the his request of appeal had been forwarded to Department of the Army, Office of the Deputy Chief of Staff, G-1 for determination concerning the validity of his debt. 14. On 13 January 2015, by memorandum to the applicant from Department of the Army, HQs, USACC and Fort Knox, stating the Department of the Army, Office of the Deputy Chief of Staff, G(General Staff)-1 acted on the applicant's appeal of his scholarship recoupment: a. Concluded that the scholarship debt was valid and that the total amount of the monies spent in support of education was $86,260. b. The debt had been established with the Defense Finance and Accounting Service (DFAS)-Indianapolis. Legal restrictions preclude the Commander, Cadet Command from granting a waiver of a properly established debt for recoupment of scholarship funds arising from breach of the ROTC contract. 15. By regulation 15-185 (ABCMR), applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 16. By regulation 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program. Except as an implementation of statue or otherwise prohibited, waivers and exceptions to the provisions of this regulation. BOARD DISCUSSION: 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. After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions and letters of support were carefully considered. While one Board member concluded one mistake by the applicant should not have caused his termination, the majority of the Board agreed that based upon the preponderance of evidence, the termination and disenrollment was just, and there was no error or injustice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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, 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 Army Board for Correction of Military Records (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. AR 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program. Except as an implementation of statue or otherwise prohibited, waivers and exceptions to the provisions of this regulation. a. Paragraph 3-39 states the CG, USAROTCCC is the approving authority for termination of scholarship and/or disenrollment. Paragraph 3–39c for the exception pertaining to 4-year scholarship winners discharged early from active duty. A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3–43. b. Paragraph 3-43a states that non-scholarship cadet may be disenrolled by the PMS. A scholarship cadets may be disenrolled by the CG, USAROTCCC. Disenrollment authority does not include the discharge authority for SMP participants. Sub-paragraph 3-43a (11) states it is discovered that a fact or condition exits that will bar a cadet from appointment as a commissioned officer, to include a positive urinalysis for drug and alcohol abuse. When a cadet is under charges, in confinement or under investigation, HQDA (TAPC-O-PP-P) will be notified immediately if the cadet is a MS IV and an accession file was evaluation by HQDA ROTC Selection board. 3. 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. 4. AR 15-185 (ABCMR) states Board members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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) AR20170016053 9 1