IN THE CASE OF: BOARD DATE: 27 April 2022 DOCKET NUMBER: AR20210014913 APPLICANT REQUESTS: in effect, remission/cancellation of his Reserve Officers' Training Corps (ROTC) disenrollment debt predicated by service in lieu of. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 4-1 (Enlistment/Reenlistment Contract – Armed Forces of the United States) * letter FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 he is currently serving a 6-year active-duty contract with the U.S. Air Force (USAF). The Defense Finance and Accounting Service (DFAS) placed his debt in deferment status, based on his current active duty status. 3. The applicant provides his: a. DD Form 4/1, showing he enlisted in the USAF, in pay grade E-3, on 14 April 2020, for 6 years. b. Letter, dated 15 July 2020, wherein DFAS advised him that their records showed he had an indebtedness in the principal amount of $228,824.00, for the recoupment of education tuition assistance paid on his behalf during his participation in the U. S. Army Program. Records also showed he was currently active duty in the U. S. Air Force. His account had been placed in deferment. He could apply to the ABCMR for suspension or termination of that indebtedness. 4. A review of the integrated Personnel Electronic Records Management System and Soldier Management System, located on the U.S. Army Human Resources Command Integrated Web Service, failed to reveal a copy of the applicant’s records. However, his available records show: a. On an unknown date, he signed an eight-year enlistment contract along with a ROTC Scholarship Contract, for the purpose of entering Senior ROTC. In connection with this enlistment, he would have incurred an 8-year service obligation via the scholarship contract, which included 4 years on active duty if selected. b. Order Number 296-066, published by the U. S. Army Human Resources Command on 22 October 2012, announcing his promotion to first lieutenant, with an effective date and date of rank of 21 November 2012. c. The complete facts and circumstances surrounding his separation from the USMA are not available for the Board to review; i.e., * DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), wherein he would had acknowledged the obligatory and financial requirements associated with the Army’s ROTC program * Army Regulation (AR) 156-6 (Boards, Commissions, and Committees Procedures for Investigating Officers and Boards of Officers) investigation with all evidence * Memorandum, Subject: Disenrollment from the U.S. Army ROTC Program * DD Form785 (Record of Disenrollment from Officer Candidate Type Training) * Recoupment of Educational Assistance Costs actions * Discharge Orders and/or DD Form 214 (Certificate of Release or Discharge from Active Duty) and/or a separation document 5. On 21 January 2022, the Lead, Military Pay Branch, Office of the Deputy Chief of Staff (DCS), G-1, provided an advisory opinion in the processing of this case. The DCS, G-1, stated that office did not recommend relief be granted in the applicant’s request. On 27 December 2012, the DCS, G-1, approved the Superintendent, USMA’s request to separate the applicant based on findings as a result of an AR 15-6 investigation. The DCS, G-1, directed he repay the government the cost of his educational benefits in the amount in the amount of $228,824.00. Moreover, he was not eligible to request a remission unless his discharge was upgraded to an honorable discharge. The G-1 provided the following: a. An USMA Oath of Allegiance that cited the obligatory and financial requirements associated with an appointment as a ROTC cadet. b. The applicant’s separation memorandum, dated 8 March 2012, wherein the U. S. Army Superintendent, USMA, advised the G-1 of his recommendation to separate and discharge, with a general discharge. He also stated depending on the results of the AR15-6 investigation, he would recommend whether recoupment should be initiated. c. An Action memorandum, dated 9 March 2012, wherein the U. S. Army Superintendent, USMA, stated the following: (1) The finding that the applicant was deficient in conduct for exceeding his six- month demerit­with-tour allowance, was approved. The complete case file would be forwarded to Headquarters, Department of the Army (HQDA), with a recommendation that he be separated from the USMA and discharged from the United States Army with a General (Under Honorable Conditions) Discharge Certificate. (2) A call to active duty would not be appropriate. Therefore, he would additionally recommend that HQDA, direct that an AR 15-6 investigation be conducted to determine if he had breached his service agreement and whether he should be required to reimburse his educational costs. (3) The applicant was immediately suspended from the USMA until final action on his case was taken by HQDA. 6. On 1 February 2022, he was provided a copy of advisory opinion for his acknowledgement and/or rebuttal. In his response, transmitted via fax on 16 February 2022, the applicant stated: a. He was providing new evidence that was not originally considered in his 2012 AR 15-6 investigation. The advisory opinion concluded that he was not fit for military service and a call to active duty would not be appropriate. He enlisted in the USAF on 14 April 2020, choosing to volunteer in the medical field at the height of a global pandemic. He was selected as an Honor Graduate of Basic Military Training, awarded the Honor Graduate of his Technical Training Course, and was awarded the Humanitarian Service Medal for his actions directly in support of CoVid-19 operations. He was selected as the 341st Medical Group Airman of the Year for 2021. b. While his original Army contract was to serve 5 years Active Duty as an officer, he was continuing to fulfill the essence of the contract, having signed a 6- year Active- Duty Service Obligation with the USAF. Absent a complete remission due to his honorable service in lieu of recoupment he requests the almost 2 years of honorable service he has already completed count pro-rata towards his obligation. All he ever has wanted to do was serve his country. He was unable to fulfill that obligation with the Army nearly 10 years ago. He sincerely hoped his current honorable service would fulfill his obligation. As evidence of his continued desire to serve please review the attached memorandum, dated 11 July 2019, indicating that the Assistant Secretary of Defense for M&RA could be contacted to address whether his USN service would fulfill the recoupment obligation. c. He provided a letter, dated 11 July 2019, wherein the Chief, Accessions Branch, DCS, G-1, advised a Member of Congress of the following: (1) On 10 September 2012, the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA (M&RA)) order the applicant to be separated from the U. S. Military Academy (USMA) and to be discharged from the Army and directed the USMA to conduct a recoupment investigation. On 27 December 2012, the DCS, G-1, considered the USMA investigation findings and directed the applicant repay the educational benefits. (2) The ASA M&RA had the authority to order the applicant to active duty to fulfill his service obligation. He determined it was in the best interest of the Army to order a discharge and recoupment in lieu of military service after determining the applicant was unsuitable for service. Military service in the U. S. Navy (USN) in lieu of recoupment was not provided for in the governing Department of Defense Instructions (DODI) Number 1322.22. However, if the USN found the applicant suitable for service, the Assistant Secretary of Defense, M&RA, could be contacted to address whether that service would fulfill his recoupment obligation. 7. By regulation (AR 145-1 (Senior ROTC: Organization, Administration, and Training)), a scholarship cadet may be disenrolled from the ROTC program for a breach of contract. 8. 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. 9. By AR 600-4 (Remission or Cancellation of Indebtedness), a Soldier’s debts to the U.S. Army may be remitted or canceled on the basis of cases arising from payments made in error to a Soldier, debts acknowledged as valid, and debts incurred while serving on active duty. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the Office of the Deputy Chief of Staff (DCS), G-1 advisory opinion, the Board noted the advising official recommendation of denial. However, the Board determined based on the applicant’s record that reflect he enlisted into the United States Air Force in the pay grade E-3, on 14 April 2020, for 6 years. Evidence shows the applicant has already served two (2) years honorably of his six (6) year obligation. The Board agreed although the applicant was found unsuitable for military service with the Army, he met and is continuing to meet his obligation call to duty with the Air Force. Furthermore, the Board found the applicant actions notable as he has excelled in the Air Force during his enlistment in the medical field in supporting COVID-19 operations. 2. The Board found sufficient evidence to support the applicant’s remission/cancellation of his United States Military Academy (USMA) West Point debt in the amount of $228,824.00. The Board determined the applicant’s current service in the Air Force satisfies the debt established from his USMA dis-enrollment. The Board agreed remission/cancellation of his indebtedness and recoupment of funds already paid are warranted. Therefore, the Board granted full relief for the $228,824.00 remission associated with previous participation in the USMA program. 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 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 notifying DFAS that the applicant’s debt in the amount of $228,824.00 has been relieved that was established due to his military service. 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, United States Code (USC), 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. 2. Army Regulation (AR) 145-1 (Senior Reserve Officers’ Training Corps (ROTC): Organization, Administration, and Training), in effect at the time, provided policies and general procedures for administering the Army's ROTC Program. The regulation stated in: a. Paragraph 3-43, non-scholarship and scholarship cadets will be disenrolled 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. b. The DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) contract would have contained for an individual’s endorsement of 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.” 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 600-4 (Remission or Cancellation of Indebtedness), in effect at the time, stated a Soldier’s debts to the U.S. Army could be remitted or canceled on the basis of cases arising from payments made in error to a Soldier, debts acknowledged as valid, and debts incurred while serving on active duty. Requests for remission or cancellation of indebtedness must be based on injustice, hardship, or both. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014913 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1