MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 June 2002
         DOCKET NUMBER: AR2002067670

         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.

Mr. Carl W. S. Chun		Director
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Allen L. Raub		Member

         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)

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APPLICANT REQUESTS: In effect, that the Service School Academic Evaluation Report (AER) for the period 14 August 2000 through 30 May 2001 [herein identified as the "contested AER"], be removed from his Official Military Personnel File (OMPF) and that he be reinstated to the U.S. Army Sergeants Major Course (USASMC). The applicant also requests that he be restored to the Command Sergeant Major (CSM)/Sergeant Major (SGM) Promotion List.

APPLICANT STATES: That he is not guilty of the charge and the Board at Fort Bliss, Texas, relied on incomplete and insufficient evidence when reviewing his case. He states that the charge of plagiarism was derived from circumstances that did not involve him, but involved his original work on his Group Life 2 staff paper. He further states that his Group Life 2 assignment was properly and timely turned in on 27 November 2000 and was given a "satisfactory" review by the Faculty Advisor (FA). When his supervisory FA requested a copy of his original paper, he found a draft of the paper and delivered it to him. He was later informed by the Commander of the U.S. Army Sergeants Major Academy (USASMA) that he was being accused of plagiarism for work resembling his that was submitted in February and March 2001 by three students at the academy. He states that he provided the review board with examples from the resource disk which included resources provided to him by his previous Battalion Sergeant Major and the Battalion S-1 Officer in Charge.

He contends that the review board did not have the original copy of his work to compare with his resources and therefore, relied on insufficient evidence when ordering his dismissal for plagiarism. He also contends that the accusation of plagiarism is in direct conflict with his military records. Further, he states that he has served twenty-one years and has received excellent evaluations and reports during this time. He further contends that his Student Evaluation and Counseling Records have all been evaluated as "superior" across the board in every category. He states that he has received counseling from the Inspector General at Fort Bliss, Texas, and was advised on this matter. In conclusion, he states that his record at the academy does not reflect the work of a "plagiarist", but reflects the work of a competent and professional soldier.

In support of his application, he submits a supplemental letter; a Sworn Statement from his FA at the USASMA; two Noncommissioned Officer Evaluation Reports (NCOER); four Student Evaluation and Counseling Records; and four Statements of Character.

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

The applicant enlisted in the Regular Army on 10 June 1980 and completed infantry training. He has continued to serve on active duty through a series of reenlistments. The applicant was promoted to the rank of MSG with an effective date and date of rank of 1 May 1997.
The applicant was selected for promotion to the rank of SGM by the calendar year (CY) 1999 CSM/SGM Promotion List and was selected for attendance to the USASMC Resident Class Number 51.

On 3 May 2001, the applicant was notified by the Commandant of the USASMA, that he was dismissed from the USASMC for misconduct due to plagiarism. The Commandant indicated that, in accordance with Army Regulation 351-1, soldiers dismissed from the USASMC for any reason may, by the appropriate authority, be removed from the Army standing promotion list, have their conditional promotion status revoked, be barred from reenlistment, receive nonjudicial punishment, or be reclassified.

The applicant appealed his dismissal from the USASMC to the Commandant of the USASMA. On 15 May 2001, the Commandant recommended disapproval of the applicant's appeal. He further appealed to the Commanding General of the U.S. Army Air Defense Artillery Center and Fort Bliss. On 28 May 2001, the Commanding General decided to uphold the decision of the Commandant and directed that the applicant be administratively removed from the Department of the Army CSM/SGM Promotion List.

On 30 May 2001, the applicant received the contested AER. The preparing official marked the block "failed to achieve course standards" in
item 13 (Performance Summary). In item 16 (Comments), the preparing official indicated that the applicant was dismissed from the USASMC for misconduct for plagiarism under the provisions of Army Regulation 351-1 (Individual Military Education and Training), paragraph 5-30.

The preparing official rated the applicant "Unsatisfactory" for written communication and leadership skills under item 14 (Demonstrated Abilities). In item 16, he indicated that the applicant "plagiarized one written assignment" and "demonstrated unsatisfactory leadership skills and exercised poor judgment in submission of plagiarized course material which led to a question of individual integrity."

After signing the referred report, the reviewing official (the Commandant of the USASMA) referred the report and memorandum to the applicant for acknowledgement and comment. The applicant acknowledged receipt of the report on 18 June 2001 and elected not to submit a statement in his own behalf.

Records show that the contested AER was properly filed in the performance section of the applicant's OMPF. There is no evidence of record which shows the applicant appealed the contested AER.

On 25 June 2001, the applicant applied for voluntary retirement based on length of service requesting an effective date of 1 October 2001. His request was approved on 12 July 2001.

By a memorandum dated 12 July 2001, the U.S. Total Army Personnel Command (PERSCOM) notified the applicant that he was administratively removed from the CSM/SGM Promotion List due to his dismissal from the USASMC.

Orders were published by the U.S. Air Defense Artillery Center and Fort Bliss which released the applicant from active duty on 30 September 2001 and transferred him to the Retired List in the pay grade of E-8 effective 1 October 2001. He had served 21 years, 3 months and 21 days of total active service.

Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by : the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

Army Regulation 351-1 provides the policies and procedures for individual military education and training. It states, in pertinent part, that students may be removed from NCOES courses by the service school or NCOA commandant before course completion for disciplinary reasons, lack of motivation, other valid reasons, such as illness or injury, and academic deficiencies. Soldiers eliminated for cause may, by appropriate authority, be removed from the Army standing promotion list, barred from reenlistment, received nonjudicial punishment, or be reclassified.

Army Regulation 600-8-19 governs the enlisted promotions and reductions function of the military personnel system. Chapter 4 of this regulation provides the rules and steps for managing the Centralized Promotion System to sergeant first class (SFC), MSG, and SGM. It also provides that MSG who have been removed from a centralized promotions list for failure of USAMC will not be considered by future SGM boards.

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. The applicant was selected for promotion to the rank of SGM by the CY1999 CSM/SGM Promotion List and was selected for attendance to the USASMC Resident Class Number 51.

2. Records show the applicant was dismissed from the USASMC for misconduct (plagiarism). He appealed his dismissal from the USASMC, however, it was denied by the Commanding General of the U.S. Army Air Defense Artillery Center and Fort Bliss. As a result of his dismissal from the USASMC, the applicant was administratively removed from the CY1999 CSM/SGM Promotion List in accordance with the applicable regulation.

3. The Board considered the applicant's contentions that he was not guilty of the charge of plagiarism and that the decision to dismiss him from the USASMC was based on incomplete and insufficient evidence. However, the applicant has not provided any evidence to support his contention that he was unjustly dismissed from the USASMC.

4. The Board considered the applicant's request to remove the contested AER and reinstate him to the USASMC. However, there is no evidence that the contested AER was in error or unjust. In reviewing this case, the Board finds no compelling evidence to support the applicant's request. Therefore, there is no basis for removing the contested AER or reinstating the applicant to the USASMC.

5. The applicant has failed to show through the evidence submitted with his application or the evidence of record, that an error or injustice exists in his case. Therefore, there is no basis for overturning his dismissal from the USASMC or restoring him the CY1999 CSM/SGM Promotion List.

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 this 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

KAK_____ MHM_____ ALR_____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002067670
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020618
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20010930
DISCHARGE AUTHORITY	AR635-200
DISCHARGE REASON	Sufficient Service for Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	134.0000
2.	131.0200
3.
4.
5.
6.