MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:    
	 


	BOARD DATE:               11 February 1999
	DOCKET NUMBER:      AC96-05596
                                                 AR1999021500

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.




	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that the findings of the Board of Inquiry and the findings and recommendations of the Misconduct Board convened by the Commandant, U.S. Army Command and General Staff College (CGSC), Fort Leavenworth, Kansas on 16 and 20 November 1992, be set aside.  He further requests that he be restored to active duty, that his records be corrected to show completion of the CGSC or an equivalent level school, back pay and allowances from the date of his discharge, and placement of his records before a promotion board for the rank of lieutenant colonel (LTC) by all boards that would have reviewed his records had he not been unjustly discharged.

APPLICANT STATES:  In effect, that the misconduct board found that he had cheated on an examination because he had the answer key and that he had plagiarized a writing assignment by not giving proper credit to the author.  He goes on to state that the findings of that board were seriously flawed and were not supported by the evidence.  He also states that previous officers accused of the same offenses were treated differently and were allowed to complete the course; however, he was unfairly treated in this matter and was unjustly punished and discharged.  He continues by stating that he did not have an answer key nor did he use one to take the examination, nor was there any proof presented to show that he did.  He does concede that he used notes from another student who had taken the test and who was investigated under Army Regulation 15-6 along with three other officers who were exonerated and were allowed to complete the course, even after a copy of the examination was found on an unattended photocopy machine.  Furthermore, it was determined that his answers were similar to the answers given by those officers.  He also concedes that his writing assignment was poorly written and not properly footnoted, but that he gave credit in the bibliography.  Although it may not have been properly footnoted, it is simply a reflection of his ignorance about the proper way to write an academic paper rather than an attempt to deceive the institution or commit intentional plagiarism. He goes on to state that the actions taken in his case were more severe that the actions taken in similar cases, that his case was not handled as previous cases of this nature, and that he was unjustly discharged without the benefit of receiving due process after over 14 years of exemplary service.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was commissioned as a USAR second lieutenant on 28 May 1980 and entered active duty on 7 July 1980 as an air defense artillery officer.  He attended the officer basic course from 7 July 1980  to 24 November 1980 and he marginally achieved course standards.  Upon completion of the course he remained assigned to Fort Bliss, Texas.

He was promoted to the rank of first lieutenant on 7 January 1982.  He was promoted to the rank of captain on 1 April 1984, attended and successfully completed the officer advanced course, and was transferred to Germany in November 1984.  He was promoted to the rank of major on 1 June 1992.

On 22 July 1992, the applicant reported to Fort Leavenworth, Kansas to attend the resident CGSC.  While attending the course he was directed to appear before a misconduct board for violation of academic ethics for possessing and using an answer key and plagiarizing a written assignment.  The board found that the applicant had committed the acts of misconduct and recommended that he be dismissed from the CGSC.

On 12 January 1993 the applicant received a general officer memorandum of reprimand (GOMOR) from the deputy commandant of the CGSC for violations of CGSC ethics.

The applicant received an academic evaluation report (DA Form 1059) on 15 February 1993 indicating that he had been relieved from the CGSC and that he had failed to achieve course standards.  The report also indicated that he had marginal potential to succeed at higher levels.

On 13 September 1993, the applicant was referred to a board of inquiry (BOI) because of violations of academic ethics and personal misconduct as evidenced by the findings of the CGSC Misconduct Board that he had possessed and used an answer key to an examination (C310 – Fundamentals of Combat Operations), that he plagiarized an assignment (C610 – Introduction to Military Theory Paper), and that he had an unsatisfactory academic performance in C610.

The BOI met on 27 September 1993 and found that the applicant did commit acts of personal misconduct in that he did use an answer sheet or facsimile thereof in completion of C310 take-home examination; and that he did plagiarize his C610 writing requirement during the CGSC class of 1992-1993.

The applicant submitted an appeal of the BOI whereas he requested a personal appointment with the commanding general (CG) before a decision was made in his case and he asserted that he was being treated more severely than other students in the same circumstances and that he did not possess the answer sheet as the BOI contended.  He requested that the CG consider his excellent service record and the letters of support he had submitted and requested that he be retained on active duty.

A legal review was conducted in accordance with applicable law and regulations and no impediments were found that would prevent the CG from approving the findings and recommendations.  The reviewing officer also asserted that the applicant’s contention that he did not possess an answer key or facsimile thereof was without merit because during the BOI hearing, the applicant had testified that after reviewing all of the documents he had obtained from another student, he discovered that he did in fact have a copy of the answer key but that he did not know that he had a copy of the answer key, he simply thought they were copious notes.  He went on to contend that he should not be punished because he did not know that he had a copy of the answer key.  In regards to the applicant’s assertion that his case was handled differently than four other students suspected of cheating the previous year, the reviewing officer opined that his assertion was correct because each case is handled/treated based on its merits and in the case of the four students in question, an investigation was conducted which in essence recommended that no action be taken.  He further opined that there was no evidence to suggest that the applicant’s case was handled inappropriately or that he received disparate treatment.

After reviewing the evidence in the case as well as the applicant’s appeals/rebuttals, the CG recommended on 22 November 1993 that the findings and recommendations of the BOI be approved and that he be honorably discharged.  The CG also indicated that the applicant had been provided with a copy of the BOI report and that he had requested a copy of the board of review report.  The CG forwarded the recommendation to the CG of Training and Doctrine Command, Fort Monroe, Virginia who in turn forwarded the case to the Total Army Personnel Command (PERSCOM).

On 24 January 1994 the applicant was transferred to the Army Material Command in Alexandria, Virginia, for duty as an acquisition project leader.

The PERSCOM forwarded the recommendation for elimination to the Deputy Assistant Secretary of Department of the Army Review Boards and Equal Employment Opportunity Compliance and Complaints Review on 4 February 1994.  On 25 February 1994 the Army Board of Review for Eliminations, after reviewing the evidence in the case, in closed session and by secret written ballot, found that the preponderance of the evidence showed that the applicant should be eliminated from the service for significant misconduct, moral or professional dereliction.  The board recommended that he be discharged with an honorable discharge.  The appropriate authority approved the findings and recommendations of the board on 25 February 1994.

Accordingly, the applicant was honorably discharged in the rank of major on 28 March 1994 under the provisions of Army Regulation 635-100, paragraph     5-11, for unacceptable conduct.  He had served 13 years, 8 months, and 22 days of total active service.

In the processing of this case attempts were made to obtain the board proceedings from the CGSC pertaining to the applicant’s case.  However, the proceedings had already been destroyed in accordance with applicable regulations.

Army Regulation 635-100 serves as the authority for the separation of officers.  It states, in pertinent part, that adverse information filed in the OMPF, an evaluation report, or the failure by a Regular Army officer of a course at a service school gives rise to serious doubt as to the advisability of permitting the officer concerned to retain a commission or warrant and requires a review of his or her overall record to determine if elimination is warranted. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Inasmuch as the applicant did not provide a copy of the board proceedings for the Board to review and since the proceedings appear to be no longer available within the Department, the Board did not have the benefit of reviewing the board proceedings; therefore, absent a much stronger showing than has been made, the Board must presume regularity and rely on the subsequent legal review which determined that the proceedings were properly conducted and were legally sufficient. 

2.  Accordingly, based on the evidence submitted by the applicant and the evidence of record, the Board finds that the dismissal of the applicant from the CGSC was accomplished in compliance with applicable laws, regulations, and policies.  The dismissal was neither unjust nor disproportionate to the offenses, and there is no evidence of violation of any of the applicant’s rights.

3..  The Board finds that there is no evidence to support the applicant’s contentions that his case was handled unfairly and can find no reason why the faculty of the CGSC would single him out if there was no reason to believe that he had committed the acts for which he was accused.

4.  There was no requirement to convene a faculty board unless the commandant or CG deemed that the evidence so warranted.  The applicant was afforded the opportunity to submit matters he thought relevant to the case, and based on the available evidence, he did so.  However, the CG was apparently not convinced by his arguments or of his innocence.

5.  Accordingly, the applicant’s records were properly reviewed by a Department of the Army Active Duty Board and he was properly discharged in accordance with applicable law and regulations.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

____inw_  ___vbc__  __cjs___  DENY APPLICATION




						Loren G. Harrell
						Director



INDEX

CASE ID
AC96-05596/AR1999021500
SUFFIX

RECON
 
DATE BOARDED
1999/02/11
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  133.010

2.  131.010

3.  128.00

4.  103.00

5.

6.