BOARD DATE: 31 January 2020 DOCKET NUMBER: AR20180002048 APPLICANT REQUESTS: correction of his record to show his active duty service is accepted in lieu of repayment of his Reserve Officers’ Training Corps (ROTC) debt of $20,784.38. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-authored letter in lieu of DD Form 149 (Application for Correction of Military Record) * University of Dayton, Ohio transcript, dated 21 November 2005 * DA Form 5315-E (U.S. Army Advanced Education Financial Assistance Record), dated 28 February 2006 * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 1 May 2015 * Army Board for Correction of Military Records (ABCMR) Docket Numbers: * AR20090000314, dated 31 March 2009 * AR20130005996, dated 28 May 2013 * AR20160006119, dated 30 August 2016 * AR20160016657, dated 14 September 2017 * Congressional assistance letter, dated 9 January 2018 with applicant’s attached letter * Enlisted Record Brief (ERB), dated 22 March 2018 * Defense Finance and Accounting Service (DFAS) letters, dated 24 May 2007, 11 September 2013, and 27 June 2016 * DFAS webpage * Spouse email FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160016657 on 14 September 2017. 2. The applicant states in pertinent part: a. He was an ROTC scholarship cadet for the 2004-2005 school year at the University of Dayton. In the fall of 2005 he asked to be released from ROTC so he would be allowed to enlist on active duty, as he was eager to serve his country. He was released from ROTC on 23 March 2006 and enlisted in the Regular Army (RA) on 29 March 2006, shipping for basic training on 20 April 2006. He was informed when he left ROTC he would have to enlist expeditiously (within 30 days) in order to have his service counted towards payment of his ROTC scholarship for his freshman year of college. He was led to believe through numerous conversations with his ROTC instructors and his recruiter that he was enlisting properly to fulfill his duty of two years of service for his one year of scholarship receipt, and even had it listed on his initial contract. b. He received a letter on 24 May 2007 informing him his debt had been deleted from his credit report and per discussions with DFAS was ensured his service had been sufficient for repayment of his ROTC scholarship. He did not receive any further notification of any debt until 11 September 2013. At that time DFAS informed him by letter that he owed $20,784.38. He immediately contacted DFAS and his local finance office to inquire about the bill. He was told no record of the debt could be found. He finally reached an official in the "Out of Service" department and he informed him the debt was mistakenly recorded due to DFAS having no record of his enlistment, or ever enlisting. c. He was instructed to send in a copy of his original enlistment paperwork, a current ERB, and DD Form 149. He did so, immediately, and was later informed that due to his receipt of a bonus and enlistment in the rank/grade of private first class (PFC)/E-3, his record would not reflect his service as payment for his ROTC scholarship. He did receive a bonus; however, he had already signed his contract for four years (two years to pay his debt and two additional years because he wanted to serve). His recruiter informed him that he qualified for a bonus after he signed for what he believed was to serve to repay his debt. He repeatedly inquired whether he was correct, due to the fact he was enlisting to repay his ROTC scholarship. He assured him the information was correct and his contract correctly reflected he had enlisted expeditiously (since he enlisted and shipped within 30 days of being released from ROTC) in order to repay his ROTC scholarship. He realizes now that information was incorrect. However, he has since reenlisted for needs of the Army with no bonus twice, for a total of five years. He did not receive any further correspondence from DFAS regarding the debt. He, again, inquired with his local finance office and the phone number provided on the DFAS website, and he was told no record of the debt could be found and it was taken care of. d. On 13 April 2016, he received a letter from the Treasury Department stating $9,318.00 of his and his wife's tax refund was garnished towards a debt of $42,281.94. He reached out to the Treasury Department and asked for an explanation of the debt and was told it was in regards to a debt of $20,761.70 that DFAS had recorded in December of 2015. He was not given an explanation of the additional $21,520.24 that was added to the original ROTC debt, other than the Treasury adds on a 28 percent collection fee. The 28 percent collection fee on the original debt of $20,761.70 would have been $5,813.28; leaving $15,706.96 in unexplained charges. e. He contacted DFAS and his local finance office again and was told, again, no record of the debt could be found. His local finance office submitted a report and no one could find record of the debt ever existing. It was suggested to try the "Out of Service" department again in case they had not updated his file. He did so, and after over 30 days of trying their number, he was finally able to reach someone in that department. During the prior 30 days a recording would say, "they were experiencing increased call volume," and disconnect. He was told he owed the debt because he had never enlisted. However, he had enlisted over 10 years prior and was currently on his third deployment. They could provide no explanation for the additional charges, and only said his tax return was garnished for payment. He asked why no one could find record of the debt and why the debt was not handled by his local finance office per DFAS guidelines for current members of the military with debts (he has attached a copy of their guidelines stating local finance offices handle debts for those currently serving). They could provide no explanation other than they still had no record of his enlistment. Then, on 27 June 2016 he received a letter from DFAS stating they recognized "He had served in lieu of collections." However, the debt had not been terminated yet. f. He is writing the Board to ask that his service be recognized as payment for his debt. He has reenlisted twice for needs of the Army with no bonus since his original enlistment, for a total of five years. He has deployed three times and will be leaving in two days for his fourth deployment. Additionally, he has served honorably for 11 years and 10 months on active duty in the RA. He honestly thought he had made the right choice to serve more immediately and that he had enlisted properly to repay his debt through his service. He is only asking that any of the two years of his service be recognized as payment for his scholarship debt; specifically, any of the two years of his service at the needs of the Army with no bonus. g. There have been previous Board cases where reenlistments have been counted towards payment of ROTC scholarship debts. He has attached a case where the Soldier in question enlisted as a specialist/E-4 and then reenlisted as a staff sergeant (SSG)/E-6 for needs of the Army; more than eight years after being dismissed from ROTC for failing to meet the Army Physical Fitness Test standards. The Board granted the Soldier full relief, recognizing his service of six years and his subsequent reenlistment had served the "same purpose as if he had been ordered to active duty in the Army," despite the fact he made no effort to enlist expeditiously (the Soldier waited two years before enlisting as a SPC) or to repay his debt. Furthermore, the Board recognized "as a matter of equity, it would be appropriate to consider his enlistment in the RA to have met the active duty obligation required by his ROTC scholarship contract" (ABCMR Docket Number AR20160006119). They also ruled to have his monies collected by the Treasury Department refunded. They made no consideration as to whether or not he had received an enlistment bonus, that he did not enlist expeditiously, nor that he enlisted as a SPC instead of a private/E-1 - rather they only took into consideration that he had served on active duty and eventually enlisted needs of the Army, as a SSG. He is humbly asking to have the opportunity to have the same considerations applied to his case. h. In the case of ABCMR Docket Number AR20160006119 the Soldier waited five years after being dismissed from ROTC and receiving three years of full ROTC scholarship totaling $30,500.00 (his debt was $20,761.70). The Soldier then waited to serve in lieu of collections for almost five years. Furthermore, she did not enlist as a PVT or for the needs of the Army; she commissioned in the Military Occupational Specialty (MOS) of her choice. Previously, his appeal was denied because during his initial enlistment he received a bonus, which as his recruiter explained would not affect his service being recognized as payment for his ROTC scholarship. The ruling stated due to the fact that he enlisted as a PFC and received a bonus that it would be a windfall to the Army if the Board recognized his service; which is a direct departure from the standard set in this case. i. However, in the case of ABCMR Docket Number AR20160006119, the Soldier commissioning as a second lieutenant, five years after being dismissed for failing to maintain standards, entitled her to increased pay of $3,340.50 per month (per 2009 pay charts). In both of our cases, we were initially denied approval for relief; however, in her case her service was eventually recognized despite her waiting nearly five years to not enlist, but commission into the Army. His case was denied because he enlisted as a PFC for four years and, therefore, received a $20,000.00 bonus. Of that $20,000.00 bonus he received approximately $17,600.00 after taxes. He received regular pay of $1,501.20 per month, as a PFC. In the case of ABCMR Docket Number AR20160006119, she received over $40,086.00 in regular pay in her first year, while she received $18,014.40. If you included the total amount of his bonus (before taxes and in a lump sum; not in installments as it was actually received) in his first year of service he would have made $38,014.40 while in the case of ABCMR Docket Number AR20160006119, she received $40,086.00 in pay ($2,072.00 more in pay than he earned). j. Furthermore, in the next year of her enlistment compared to his she again earned $40,086.00 while he would have earned $18,014.40 (bringing her total additional pay to $24,143.60 more than he earned for his first two years, assuming he received his bonus tax free in a lump sum). The Soldier's commissioning into the Army instead of enlisting, provided her with an additional $24,143.60 in her first two years of service over what he was paid enlisting as a PFC with a $20,000.00 bonus (assuming no taxes collected). Therefore, he is suggesting her commissioning provided her with more of a financial benefit than his enlistment as a PFC with a bonus, and this Soldier's ROTC scholarship debt was forgiven. Additionally, she waited nearly five years to enlist and then commissioned to serve in lieu of payment for her debt; while he enlisted and shipped within 30 days of being released from ROTC. His expeditious enlistment and ship date demonstrates his commitment and belief that he was enlisting expeditiously to serve to repay his debt; while also proving his desire to serve his country more immediately and actively by adding two years to his contract and through his continued service. k. In these cases, the Soldiers were dismissed from ROTC for failing to maintain APFT standards and waited years to enlist, made no effort to repay their debts, and enlisted or commissioned at higher ranks than he enlisted. He asked to be released and enlisted, as he believed, expeditiously, because he was eager to serve his country. He has never failed to maintain standards and has always served honorably. He has reenlisted for needs of the Army, as the Soldiers in these cases. However, he reenlisted needs of the Army six years into his career versus eight years as in the case of ABCMR Docket Number AR20160006119. In the Case of ABCMR Docket Number AR2009000314, the Soldier waited five years and commissioned into the Army. The Soldier was not ordered to active duty, nor did she enlist under needs of the Army, but rather commissioned into the Army in the MOS of her choice. l. In addition to the previous two cases listed, he has attached ABCMR Docket Number AR20130005996. In this case, the Soldier was dis-enrolled in 2007 and elected to pay back his debt. However, the Soldier was unable to do so and enlisted in the RA in 2011. He enlisted as a PFC in the MOS of his choice. DFAS notified the Soldier of his debt and the Soldier petitioned the board for forgiveness due to his enlistment in the RA. Initially, the Board denied his application. The Soldier then re- petitioned the Board due to their forgiving other Soldier's ROTC debts in similar situations. The Board acknowledged the Soldier had received some advantage over other ROTC dis-enrollees, although, the Soldier "demonstrated that the Army has benefited from his service as noted by his early advancement to SPC and his award of the Army Commendation Medal." The Deputy Assistant Secretary of the Army Review Boards then directed all the Department of the Army records of the individual concerned be corrected to show his two years of service had satisfied his contractual obligation to repay his ROTC debt. 3. A review of the applicant’s official records shows: a. On 1 February 2005, the applicant enlisted in the U.S. Army Reserve as a scholarship cadet. In conjunction with this enlistment a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) was completed showing the following: * he contracted for an education commencement date of 5 January 2005 and a completion date of 1 May 2008 at the University of Dayton * the Army would pay: * full tuition and educational fees for 3.5 academic years amounting to $20,000.00 annually * $900.00 books and laboratory expenses * monthly subsistence of $250.00 for military science cadets (1st year), $300.00 for military science cadets (2nd year) * upon satisfactory completion of the academic, military, and all other requirements of the Army ROTC program, a cadet may be appointed as a Reserve officer in the Army in the grade of second lieutenant * he understood and agreed he would incur an active duty and/or reimbursement obligation after the first day of the sophomore year if he was a three year scholarship recipient * he understood once obligated and was dis-enrolled from ROTC he was subject to being ordered to active duty by the Secretary of the Army or his designee as an enlisted Soldier, if qualified for a period of four years if he failed to complete the ROTC program * he also understood if he failed to complete any period of active duty incurred under the contract he would be required to reimburse the U.S. * he understood he could not enlist in the active Army unless properly released from ROTC cadet status * he agreed that any obligation to reimburse would not be altered by subsequent enlisted duty * his enlisted service obligation would be two years if called to active duty for a breach of contract * he endorsed this form with his signature b. On 16 March 2006, by memorandum, the applicant was informed he was being dis-enrolled and discharged from the ROTC program for his withdrawal from the university, and the amount of monies spent in support of his education was $20,649.00. He was offered the option to repay the total amount in a lump sum or to initiate a repayment plan. His election was to be received no later than 14 days from his receipt of the letter. His record is void of an election. c. On 23 March 2006, Orders Number 082-1, issued by the University of Dayton, discharged the applicant from the U.S. Army Reserve Control Group (ROTC), effective on 23 March 2006. d. On 20 April 2006, the applicant enlisted in the RA in military occupational specialty 11X (Infantry Recruit) for a $27,000.00 bonus. He remains on active duty and has attained the rank/grade of sergeant first class (SFC)/E-7. e. On 8 October 2013, the applicant petitioned the Board to waive his ROTC debt due to his enlisted service. On 25 February 2014, the Board denied his request citing the applicant received a $27,000.00 bonus when he enlisted in 2006, and a $7,000.00 bonus when he reenlisted in 2009, totaling $34,000.00 in bonuses he ordinarily would not have received, which would be an injustice to others who fulfilled their contracts and would violate the integrity of the ROTC program. f. On 15 August 2016, through the office of the Honorable Mr. R- P-, the applicant petitioned the Board for a reconsideration of his previous request to the Board. On 14 September 2017, the Board denied his request. 4. The applicant provides: a. Transcript from the University of Dayton providing his academic history. b. DA Form 5315-E showing the applicant had a ROTC debt of $20,649.00. c. ABCMR Dockets Number AR2009000314, AR20130005996, AR20160006119., and AR20160016657 previously summarized by the applicant in his opening statement and by the analyst of record in the record of proceedings. d. Letter from the Honorable Mr. R- P- stating his constituent was requesting a reconsideration of his case based upon a precedence being set in prior cases. e. ERB providing a brief of the applicant’s military service. f. DFAS letters: (1) 2007 letter wherein a DFAS official informed the applicant a deletion of his account was requested with the credit bureaus to which they report information. (2) 2013 letter wherein a DFAS official informed the applicant their records show he had a debt of $20,682.33 for recoupment of education assistance paid on his behalf for participation in the ROTC program. Their records also showed he served on active duty. g. DFAS webpage providing information salary offset with emphasis on military members who reenlist with a delinquent out-of-service debt; DFAS may refer the remaining balance to the member’s current finance office for action. h. Spouse email that states in part: * their request for her husband’s service to be recognized as payment of his ROTC debt was denied * they were confused because the Army has set precedents in previous cases granting partial or full relief in ABCMR Docket Numbers AR20080002842, AR20160006119, AR20160004440, and AR20070006695 which involve situations similar to her husband’s case * there is confusion on whether her husband was active or inactive * in April 2016, they were informed by mail by the Treasury Department their federal tax refund had been garnished in the amount of $9,318.00 without notification from DFAS * they went to their local finance office and were told no record of a debt could be located * they contacted the Treasury Department who contacted DFAS, and the Treasury Department then provided an invoice showing the ROTC debt in the amount of $20,761.00, but the Treasury Department was collecting $42,281.94 without explanation for the increase * May 2016, they spoke to the manager who handled out-of-service debts and they were still under the impression her husband had never enlisted in the RA despite them providing evidence * If the debt is legitimate then they are asking to pay $9,014.00 which would be the remainder after the garnishment of their taxes of $9,318.00 and the ability to properly handle the debt since DFAS has thus denied them the opportunity 5. Army Regulation (AR) 145-1 (Senior ROTC Program: Organization, Administration, and Training) prescribes policies and general procedures for administering the Army's Senior ROTC Program. Paragraph 3-43 states that non-scholarship and scholarship cadets will be dis-enrolled for a breach of contract. 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. One reason for disenrollment is a cadet's withdrawal from the academic institution. 6. AR 600-4 (Remission or Cancellation of Indebtedness) provides that, in accordance with the authority of Title 10 United States Code (USC), section 4837, the Secretary of the Army may remit or cancel a Soldier’s debt to the U.S. Army if such action is in the best interests of the United States. Indebtedness to the U.S. Army may not be canceled under Title 10 USC, section 4837 when the debt is incurred while not on active duty or in an active status. 7. Title 10, USC, 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. 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. 8. Title 10, USC, section 2005(a), states 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. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is warranted. 2. The Board noted that the applicant enlisted shortly after leaving the ROTC program and has had continuous active duty service since that initial enlistment. Although the basis for previous denials of this request were based in the enlistment bonuses he received, the Board found his arguments about relief granted in other cases to be compelling. The Board determined that, considering the applicant's length of service and in comparing the facts of his case to the other ABCMR cases he references, denying relief would be unjust. The Board determined the applicant's active duty enlisted service should be accepted as satisfying his ROTC scholarship debt in lieu of repayment. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to amend ABCMR's decisions in Docket Numbers AR20130019871 on 25 February 2014 and AR201600016657 on 14 September 2017. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his active duty service following his disenrollment from the Reserve Officers' Training Corps fulfilled the provisions of his scholarship contract allowing for active duty service in lieu of repaying educational assistance received. The Board further determined he should be reimbursed any monies he has paid toward his scholarship debt. 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. AR 145-1 (Senior ROTC Program: Organization, Administration, and Training) prescribes policies and general procedures for administering the Army's Senior ROTC Program. Paragraph 3-43 states that non-scholarship and scholarship cadets will be dis-enrolled for a breach of contract. 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. One reason for disenrollment is a cadet's withdrawal from the academic institution. 2. AR 600-4 (Remission or Cancellation of Indebtedness) in accordance with the authority of Title 10 USC, section 4837, the Secretary of the Army may remit or cancel a Soldier’s debt to the U.S. Army if such action is in the best interests of the United States. Indebtedness to the U.S. Army that may not be canceled under Title 10 USC, section 4837 when the debt is incurred while not on active duty or in an active status. 3. Title 10, U.S. Code (USC), 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. 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. 4. Title 10, USC, section 2005(a), states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002048 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1