Military Times

Ask the Lawyer: ROTC cadet can fight being kicked out

Q. I am a third-year cadet in ROTC and am being disenrolled. The government wants me to pay back $150,000 in scholarship money. What should I do?

A. An ROTC program can launch a promising military career, as it did for me, or result in massive amounts of debt.

Whether prompted by misconduct, poor grades, medical issues or some other factor, involuntary disenrollment typically leaves cadets in a difficult situation. Depending on the circumstances, cadets may be left with the heavy burden of having to reimburse the government for a six-figure scholarship, as you are, or be required to serve on active duty without pay.

It's important for cadets to remember that disenrollment policies and procedures are complex, and many ROTC officials do not have a strong grasp of them.

It is not uncommon for ROTC officials to prematurely push for disenrollment when a cadet fails to meet physical fitness or weight control requirements, falls short of academic requirements, or triggers any of the other disqualifying criteria established under branch regulations, such as Army Regulation 145-1, Navy Service Training Command Instruction 1533.2A and Air Force ROTC Instruction 36-2011.

But that deprives cadets of their due process rights, which could include requirements for counseling, probation or administrative suspension actions prior to any formal disenrollment moves.

If such due process or procedural errors occur, a cadet will want to point them out to a disenrollment board or investigating officer. Cadets have a right to appear before such boards or officers.

Cadets also can retain private counsel for such hearings. An experienced military law attorney can gather documentation and testimony that highlight such due process and procedural errors for presentation to the board or investigating officer.

Not long ago, my law firm represented an ROTC cadet at a West Coast university who faced disenrollment for failing the pushup portion of the Army's physical fitness test by one pushup.

The program's professor of military science then moved to disenroll the cadet rather than taking the requisite steps of placing her on probation or administrative suspension. The professor also told the cadet that she would have to repay her tuition, prompting her to resign from the program rather than remain in it through the remainder of the semester, during which time she could have again tried to pass the physical fitness test.

My firm managed to show this withdrawal by the cadet was involuntary and that her due process rights were violated, ultimately saving her from having to pay an $84,000 scholarship bill.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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