IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20220000436 APPLICANT REQUESTS: * remission of his Reserve Officers' Training Corps (ROTC) scholarship indebtedness in the amount of $36,421.38 * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * power of attorney * brief from legal counsel * resume * tuition account summary * reference from * reference from * reference from 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 he joined the ROTC due to his interest in the military and financial means to attend a top engineering school with a guaranteed job with leadership experience upon graduation; however, he parted ways in January 2011 with the ROTC program and was discharged in August 2011. The discharge was due to failure to meet the Grade Point Average (GPA) requirements of the program, but there were unjust events that were major contributing factors that led to his discharge. The program required the cadets to pass the Army Physical Fitness Test (APFT) each semester; however, during the APFT in April 2010, he passed the push-ups and sit-ups, but during the aerobic event, which he did not complete, he experienced intestinal issues and went to the restroom. This caused him to fail the APFT. He feels that this should not have disqualified him from the entire test. Through his military science instructor, he rescheduled the APFT, but the week before the rescheduled APFT he participated in a Commander's Cup soccer match, where he was injured. He did not receive medical treatment as it was not necessary, but he sustained a bruise which caused discomfort while running. He again attempted to reschedule the APFT, but was advised due to finals and the end of the school year, it was okay for him to wait until the fall to pass his APFT. He returned to school in the fall and passed his APFT and received his monthly stipend, except the book stipend, which was historically delayed in disbursement. When he inquired about the book stipend, he was informed that he would not be receiving his ROTC scholarship and would have to come up with $18,000.00 to cover the tuition costs. The pressure of needing to get a $18,000.00 in 2-months caused him to get depressed and completely shut down, he stopped attending his classes and he received a GPA of 0.9 for the fall 2010 semester, which led to his dis-enrollment from the ROTC program. a. In the contract, there was a trial period which states contracted cadets could drop out of the program after the first year without having to pay back the tuition, book money, or stipend which was paid on their behalf. If he had known in April 2010, his fall semester would not be covered under the ROTC scholarship, he would have stayed at school to pass his APFT before returning home for the summer. He relied on the assurances of his military science instructor and the ROTC office manager. He attempted to pay back the indebtedness by enlisting, but he was denied due to his APFT failure. The emotional trauma of the entire situation caused his delay in petitioning for relief before now. b. After years of attempting to pay the debt, he filed for bankruptcy in October 2014, which still shows on his credit report. He worked hard to attain employment with Lockheed Martin, where he had been recognized as a good worker through accelerated promotions. However, through a security clearance investigation, the outstanding debt has come up as a questionable trustworthiness for him. He is hoping to have the debt cleared up due to miscommunication and extenuating circumstances. c. Through legal counsel, he requests a waiver of the recoupment of the advanced education that was extended on his behalf and requests the debt be reduced as it has severely impacted his ability to establish his life financially. The contention is that the educational debt imposed on him is excessive given the extenuating and mitigating circumstances that led to his dis-enrollment from the ROTC program. The dis- enrollment was not due to misconduct, but a culmination of a series of miscommunications that led to an extremely poor academic semester. This was uncharacteristic for someone who earned an ROTC scholarship to attend such a strong academic University. He was dis-enrolled from the ROTC program for failure to meet the GPA requirements. Had he been properly informed of vital information, he would not have remained enrolled in the ROTC program. Had he been informed of his removal from the ROTC program due to his APFT failure earlier, he would not have started his second year, which triggered the debt. d. Since his dis-enrollment, he has attempted to serve his country by supporting the warfighter as a contractor as a Field Sales Support Systems Engineer with Lockheed Martin. On 8 March 2021, he was informed the Department of Defense Consolidated Adjudication Facility intended to deny his security clearance partially based on the financial concerns stemming from this debt, nearly 10-years after this unjust debt was imposed. He requests the recoupment of the debt be waived so he can become a functioning member of civilian society. The excessive debt for a former ROTC cadet who received conflicting information which caused his failures, is an injustice that only the Board has the authority to correct. e. The Board shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. In assessing the debt imposed against him and the miscommunication that led to his dis-enrollment, the entire ordeal could have been avoided had someone explained the ramifications of the April 2010 APFT failure. He was not informed of the consequences and continued to proceed without concern. These errors were honest mistakes, and the dis-enrollment was not one inspired by misconduct. The applicant is precisely the case that deserves to be granted clemency and permitted to have his debt waived. 3. A review of the applicant's service record shows: a. The applicant enlisted in the U.S. Army Reserve (USAR) as a cadet on 16 November 2009. In conjunction with this enlistment DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) was completed where the Army agreed to pay scholarship benefits for a period of 4-years in the amount of full tuition and fees with a flat rate in the amount of $1,200.00 for books and laboratory expenses. The scholarship payment for tuition and fees will be made it the cadet remains actively enrolled as a scholarship student each academic year. A 45-day waiting period only applies to the first term of each academic year. The applicant agreed to remain a full time student in good standing and maintain a GPA of 2.0 which must be maintained each semester. He also agreed to maintain at least a 2.0 GPA for ROTC courses. Failure to maintain the minimum GPA would subject him to dis-enrollment from the ROTC program. He agreed to meet and maintain the APFT standard and screening weight each year and prior to attendance at ROTC Leader Development and Assessment Course. He agreed to incur an active duty and/or reimbursement obligation after the first day of Military Science II year (sophomore year) if a three-, four- five-year scholarship recipient. Once obligated and dis-enrolled from the ROTC program for breach of contractual terms or any other dis-enrollment criteria he was subject to service on enlisted active duty or reimbursement to the U.S. Government equal to the entire amount of financial assistance paid by the Government for advanced education. The debt owed to the U.S. Government for the cost of education may not voluntarily be discharged by declaration of bankruptcy if less than 5-years after the last day of the specified period of active duty. c. On 5 January 2011, the applicant's transcript shows he obtained a cumulative GPA of 1.67, he was placed on probation on 31 December 2009 and was restored to good standing on 7 May 2010. His enrollment was withheld on 31 December 2010. d. On 20 January 2011, the applicant acknowledged receipt of the Battalion Policy for Cadet Commissioning Requirements which stated all cadets must have a cumulative overall GPA of 2.0 or higher, and a cumulative ROTC GPA of 3.0 or higher and must maintain a full time student status. e. On 31 January 2011, the applicant was notified dis-enrollment from the ROTC program was being initiated for breach of contract for failure to meet academic standards and he was placed on a leave of absence pending dis-enrollment. He may be called to enlisted active duty in the enlisted grade of E1 or required to repay the scholarship benefits in the amount of $36,421.38 in lieu of call to active duty. f. On 11 February 2011, the applicant acknowledged he understood the terms of his ROTC contract and if found to be in breach of the contract he desired to serve on active duty for 2-years if he was eligible to serve on active duty if approved. g. On 14 February 2011, the commander of Headquarters Seventh Brigade initiated dis-enrollment proceedings against the applicant for breach of contract for failure to maintain the GPA of 2.0 or higher. He had a cumulative GPA at the end of the fall 2010 semester of 1.62 and he was previously placed on probation for failure to maintain a 2.0 GPA during the fall 2009 semester. The applicant waived his right to a hearing and elected to accept a call to active duty within 60 days after his withdrawal or dismissal from the school. h. On 30 July 2011, the applicant's Advanced Education Financial Assistance Record shows a total Army ROTC scholarship benefit received in the amount of $36,421.38. i. On 12 August 2011, the Senior Commander, U.S. Army Cadet Command, notified the applicant he was dis-enrolled and would be discharged from the ROTC program for breach of contract for failure to maintain a minimum semester and cumulative GPA of 2.0. The Senior Commander directed the applicant repay an amount of $36,421.38, in which the applicant was provided election options which was void of an election by the applicant. 4. The applicant provides: a. Tuition account summary showing total monies owed by the applicant, with a balance of $36,358.38 as of 9 February 2011. b. Reference from which states she works with the applicant at and he had been an exceptional asset to the team and a vital support teammate. The applicant was the sole interface between the project needs and the supply chain team. Without him, the team would not be set up for success. He is a problem solver and develops solutions to a variety of complex problems and is not afraid to think outside the box. highly recommended the applicant for admission to the Systems Engineering and Design Master Degree program at the University of Michigan. c. Reference from which states she offers her unreserved recommendation for the applicant's admittance into the System Engineering and Design Program at the University of Michigan. He began working at Lockheed Martin on 14 January 2019. She serves as a coach and mentor for the Supply Chain Management Operational Excellence Council and the applicant requested to co-lead the council. He had great insight and perspective, beyond his years. He is truly an asset and will continue to enhance the team culture, no matter where his career takes him. d. Reference from which states he strongly recommends the applicant for the Master of Systems Engineering Program. The applicant had the drive and determination to be an exceptional employee and leader on the team. The applicant has taken the time to guide teammates when they struggle with how to best mitigate issues. He has proven that his is a valuable asset to supply chain management and to Lockheed Martin as a whole. His commitment to excellence, attention to detail, and sense of urgency in his daily actions has translated to program success and the ability to support the warfighter. The applicant is well organized, thorough, and extremely effective when working with others and a model of professionalism. 5. On 25 May 2022, in the processing of this case, Headquarters, U. S. Army Cadet Command and Fort Knox, provided an advisory opinion regarding the applicant's request for remission of his ROTC scholarship indebtedness. The advisory official stated the applicant was dis-enrolled for breach of contract for failure to maintain a minimum semester GPA of 2.0. He received a total of $36,421.38 in scholarship funds. The applicant breached his ROTC contract and waived his rights to a formal board and appeal and was dis-enrolled from the program, therefore he has the obligation to pay back the scholarship money received. 6. On 3 June 2022, the Army Review Boards Agency, Case Management Division provided the applicant a copy of the advisory opinion for review and comment. The applicant’s attorney asks the Board to disregard the advisory opinion and grant the relief requested, stating the Advisory Opinion did not address or comment on many of the contentions made in the Original Petition regarding the circumstances leading up to the applicant’s poor academic performance or his honorable life post-disenrollment. a. The Advisory Opinion only cites to Army Regulation 145-1 in supporting its contention that the applicant was appropriately disenrolled. It also fails to include the transcripts referenced, despite indicating they were enclosed. Nevertheless, it is understood that the applicant’s grade point average in the Fall semester of 2010 was below standard, but the Advisory Opinion fails to articulate how that happened, which is a crucial question for this honorable Board. In addressing that question, we respectfully contend that the Department of Defense Financial Management Regulation (DoD FRM), Volume 7A, Chapter 2 (“DoD Regulation”) should provide persuasive guidance on this matter. This DoD Regulation notes the discretionary authority and applies that analysis to the unique and mitigating circumstances involved in applicant’s case, as an ROTC Cadet. Specifically, paragraph 020301 states: When the conditions of a written agreement are not fulfilled and repayment is determined appropriate, the member will be required to repay the United States the unearned portion of a pay or benefit. See DoD 7000.14-R. The written agreement in this case is the requirement for the applicant to maintain a minimum grade point average. This guidance, as prepared by the Under Secretary of Defense (Comptroller), makes clear that repayment and recoupment are required only when deemed appropriate. Thus, the implication that the recoupment order in his case was not appropriate, should have been more appropriately assessed by the Advisory Opinion. Paragraph 020303 provides guidance that is even more on-point for the applicant’s case: As a general rule, repayment action may not be pursued in situations in which the member’s inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member’s control. Id. Thus, there is an expectation that an analysis of the circumstances will be conducted in order to determine whether it was within the members control or not. In the applicant’s case, he was completely blindsided by the news of his semester not being funded. As was explained in the Original Petition, this news was contrary to all previous guidance he was assured during the previous Spring, when he was encouraged to run his APFT the subsequent semester. This news – that he would be personally responsible for tens of thousands of dollars in debt – sent him into a spiral. He was an 18-year-old man, had nowhere to turn, and his parents could not help. Moreover, his ROTC office was not helpful, and frankly was the reason he was in this position in the first place. The combination of all of these stressful events with the lack of professional help, expertise or support, led to him making the decision to no longer attend classes. By not attending the classes, his grades suffered. It is evident, based on the lack of supporting evidence and acknowledgements referenced in the Advisory Opinion, that the applicant received little to no advice during this process. Making matters worse, the “advice” he did receive in the Winter 2010 semester actually caused him to be indebted. We respectfully contend that these circumstances were largely beyond the control of a young man who was forced to navigate an extremely difficult situation on his own. b. Perhaps more importantly, in the time since, the applicant has managed to take control of his life. As was reflected in the Original Petition, he is a valued and accomplished contractor with Lockheed Martin. He was risen through the ranks, and his team and supervisors praise his work. He is a law abiding and successful member of society, who is focused on a career that supports the United States government. We note that the “Wilkie Memorandum” addresses several factors to consider when considering petitions on the basis of clemency. Most, if not all, of those factors are present in the applicant’s case. Accordingly, we respectfully request you disregard the Advisory Opinion and grant our original request that the recoupment of the educational debt be waived entirely or reduced to a substantial degree. We note that this is a discretionary authority, and that the case of the applicant is precisely the kind that rates this remedy. His failure was not due to any misconduct or intentional wrongdoing. It was due to academic deficiencies that were surely caused by extraordinary circumstances. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board found the evidence clearly shows the applicant breached his ROTC contract by failing to maintain the minimum required GPA. The Board found the requirement is clearly stated in his contract and, ultimately, the applicant is the only one who can be held accountable for meeting this requirement. He did not, and as a result a debt was established, also in accordance with the contract. After a thorough review of the facts in this case, the Board determined the establishment of the debt in question was not in error or unjust. 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, 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 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) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2–11 states 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. 3. AR 600-4 (Remission or Cancellation of Indebtedness) provides policy and instructions for submitting and processing packets for remission or cancellation of indebtedness to the U.S. Army. Requests for remission or cancellation of indebtedness must be based on injustice, hardship, or both. A Soldier's debt to the U.S. Army may be remitted or canceled on the basis of this regulation in cases arising from debts incurred while serving on active duty or in an active status as a Soldier. 4. AR 145-1 (Senior Reserve Officer's Training Corps Program: Organization, Administration, and Training), prescribes policies and general procedures for administering the Army's Senior Reserve Officers' Training Corps (SROTC) Program. Except as an implementation of statue or otherwise prohibited, waivers and exceptions to the provisions of this regulation will be forwarded through command channels to Headquarters, Department of the Army (HQDA) proponent, HQDA (DAPE– MPO). The Commanding General, U.S. Army Reserve Officers' Training Corps Cadet Command (CG, ROTCCC) will provide detailed procedures for the day-to-day operation of the Reserve Officers' Training Corps (ROTC) Program. a. Paragraph 3–39 (Termination of scholarship and disenrollment), the CG, ROTCCC, is the approving authority for termination of scholarship and/or disenrollment. A scholarship will be terminated and the cadet dis-enrolled for any of the reasons listed in paragraph 3–43. b. Paragraph 3–43 (Disenrollment), a. A non-scholarship cadet may be dis-enrolled by the PMS. A scholarship cadet may be dis-enrolled only by the CG, ROTCCC. Disenrollment authority does not include the discharge authority for SMP participants. Non-scholarship and scholarship cadets will be dis-enrolled for the following reasons: Subparagraph (14), undesirable character demonstrated by cheating on examinations, stealing, unlawful possession, use, distribution, manufacture, sale (including attempts) of any controlled substances, discreditable incidents with civil or university authorities, falsifying academic records or any forms of academic dishonesty, failure to pay just debts, or similar acts. Such acts may also be characterized as misconduct. 5. Title 10, USC, section 2005 (Advanced education assistance: active duty agreement; reimbursement requirements), provides 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 with the Secretary concerned under the terms of which such person shall agree: a. That if such person does not complete the period of active duty specified in the agreement, or does not fulfill any term or condition prescribed, such person shall be subject to the repayment provisions of Title 37, USC, section 303a(e); and b. To such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000436 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1