RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            24 May 2005
      DOCKET NUMBER:   AR20040004164


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret V. Thompson          |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Leonard G. Hassell            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be reinstated to the U. S. Military
Academy (USMA) and allowed to graduate and receive his commission as an
Army officer and that he be allowed to return to the USMA as soon as
possible after the Army Board for Correction of Military Records (ABCMR)
renders its decision.

2.  Counsel states that the applicant's first two years at the USMA were a
time of tremendous challenge and growth.  His performance in academic and
military endeavors improved steadily, demonstrating his high intellectual
acumen and leadership capacity.  During the second semester of his third
year, he came under suspicion for cheating on a class project.  He was
called for an Approach for Clarification by the course convener, Lieutenant
Colonel (LTC) W___, who conducted the Approach for Clarification in a
highly partial and adversarial manner, in complete disregard of USMA
regulations.  The applicant's partner testified at the Honor Investigative
Hearing (HIH) that it seemed like all [the course convener's] questions
were aimed at guilt from the get go.  The consequence was that the
applicant was unable to clarify what had in fact transpired and thereby
avoid the need for referral to a Cadet Honor Board Hearing.

3.  Counsel states that a Cadet Honor Board considered two charges against
the applicant:  (1) that he cheated by copying all or part of Cadet L___'s
work on a Network Design project; and (2) that he cheated by copying all or
part of Cadet L__'s Microsoft Access database.  The Honor Board did not
find the applicant guilty on the second allegation, which occupied the vast
majority of the hearing time and deliberations.  The Honor Board did find
him guilty on the first allegation; however, the Honor Board recommended by
an 8 – 1 decision that the applicant not be separated from the Academy.
The Honor Board concluded that the applicant's actions were an extreme
departure from his normal character and conduct and that he was resolved to
live honorably and would make a fine military officer.

4.  Counsel states that, contrary to the Honor Board's findings and
recommendations, the Superintendent chose not to exercise his discretion to
retain the applicant and recommended he be separated and required to
perform active duty at an enlisted rank.  The evidence convincingly
demonstrates that the decision to separate him was erroneous,
unjustifiable, and contrary to the best interest of the USMA, the Army, and
the applicant:  (1) there was absolutely no motive for him to have acted
with the intent to gain unfair advantage or to deceive or mislead another;
(2) had USMA and Army regulations been properly adhered to in the Approach
for Clarification, it is unlikely that this matter ever would have come
before an Honor Board for adjudication; (3) the recommendation of
separation is, in light of the circumstances of this case, grossly
disproportionate and unjust punishment; and (4) the inexcusable delays in
processing the applicant's package have caused him extreme prejudice.

5.  Counsel states that the applicant was alleged to have copied an entire
database, originally prepared by Cadet L___ as well as two paragraphs of
text that Cadet L___ had generated for a similar course project the
previous semester, for the course "Theory and Practice of Military IT
Systems."  Cadet L___ had provided the applicant with an electronic version
of his own project for the applicant to use as a template for how the
project should be constructed.  The applicant made a clear and prominent
notation on his own project indicating that he had used Cadet L___'s work
as a template for his own.  He acknowledged that some text from Cadet
L___'s project appeared verbatim in his own, but he asserted that he had
not used the text to obtain unfair advantage over other cadets or deceive
or mislead another.  He had only failed to review the project carefully to
ensure that he had properly documented his use of Cadet L___'s work.  A
finding that he violated the Code turned on whether he was found to have so
acted in order to gain unfair advantage or to deceive or mislead.  The
applicant maintains that this was not the case and the available evidence
strongly supports his position.

6.  Counsel states that, after the HIH reviewed evidence and heard
testimony from witnesses, it concluded that, of the two allegations, only
one was supported by substantial evidence.  The substantiated allegation
was that the applicant violated the honor code by "cheating, by
electronically copying all of (sic) part of the Network Design project of
Cadet David L___...and doing so with the intent to gain an unfair
advantage, or deceive or mislead another person."  The second allegation,
that he cheated by copying "all or part of the Microsoft Access database
project of Cadet David L___,: occupied the bulk of the HIH hearing time and
was determined to be unfounded.

7.  Counsel states that, of the nine voting members of the Cadet Honor
Board, eight cadets stated that they did not believe the applicant's error
was a true reflection of his character and believed that he had resolved to
live honorably in the future.  A unanimous board stated that he had
potential to serve as an officer in the Army.  Eight cadets likewise stated
that the Superintendent should grant discretion and impose a sanction less
onerous than separation.  Two cadets recommended he be allowed to graduate
with his class; three recommended December graduation, and three
recommended that he be turned back one class year.  Only one cadet stated
that the Superintendent should separate him from the USMA.

8.  Counsel states that the applicant was found to have copied two
paragraphs from Cadet L___'s work.  The first paragraph was an introductory
statement of what he and his partner were required to do for the project.
It did not contain any ideas, concepts, findings, or data of any sort but
was a mere recitation of the scenario he was required to address.  The
second paragraph involved a listing of computer hardware and software that
the applicant and his partner chose to use for their project and was
identical to text that appeared in Cadet L___'s earlier project.  Both the
applicant and his partner testified that the applicant spent considerable
time researching hardware and software on the internet, a fact evidenced by
their choice of products and systems completely different from those used
by Cadet L__ in his project.

9.  Counsel states that the applicant's project totaled six pages in
length.  The remainder of the text, which included analyses, rationales,
justifications, and conclusions, bore no similarity to Cadet L___'s
project.  The two projects drew very different conclusions and did so by
very different analytical processes.  Thus, with the exception of the two
paragraphs, the projects were completely different from one another.

10.  Counsel states that the Cadet Honor Code establishes that a cadet must
provide documentation that "identifies the sources of borrowed ideas and
quotations, to include all assistance in the preparation of homework other
than drill problems…"  The applicant has maintained that his error was in
failing to go through his project to ensure that all sources were properly
documented.  Had he documented the two inconsequential paragraphs in
question as required, he would not have been brought before the Cadet Honor
Committee.  The dispositive issue was, therefore, his mental state:
whether he intended to gain unfair advantage or deceive or mislead another
person.  The answer to that question is a resounding "no."

11.  Counsel states that the applicant was excelling in his computer
science course, in fact completed the course with an "A," and did not need
to cheat in order to complete his assignment.  LTC W___ admitted during his
testimony before the HIH that the applicant had no objective reason to
cheat, since he was one of the top three students in his class.  Had the
applicant desired to gain unfair advantage and deceive or mislead, the
obviously preferable option would have been for him to copy more
substantial text and not document at all.  Instead, at the end of his
written submission, the applicant cited Cadet L___ for his assistance in
sending him the template of how the project should look.
12.  Counsel states that the record also shows the applicant expended
considerable time and energy on the project, arriving at unique conclusions
and recommendations through independent analytical processes.  LTC W___
admitted in his testimony that he found no grounds to conclude that there
had been any copying apart from the two inconsequential paragraphs forming
the basis of the Honor Board action.  It is very unclear why the
Superintendent chose not to exercise his discretion and retain the
applicant in the USMA.

13.  Counsel states that the Cadet Honor code provides that an Honor
Investigation will be processed within 60 working days from the time the
cadet has been informed that he is under investigation.  The 60-day period
ends once Headquarters Department of the Army (HQDA) receives the case file
for separation cases.  The applicant was notified on 14 April 2003 that he
was under investigation.  The HIH took place on 16 May 2003.  The
Commandant of Cadets issued his endorsement on 9 June 2003.  The
Superintendent did not sign the action document until 3 July 2003, more
than 60 days later.  A final determination on his claim was made only on 14
June 2004, more than a year after he was notified of the investigation.

14.  Counsel states that if the 60-day rule had been observed, the
applicant likely would have completed one year of his two-year active duty
service requirement by now, placing him far closer to the point of resuming
his academic studies at another university.  If the applicant is required
to complete his enlisted service, he will lose many, if not all, of the
academic credits he earned at the USMA and will be set back several years
in his university studies due to the failure of the Army to resolve this
matter in a timely fashion.

15.  Counsel provides no supporting evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered the USMA from a civilian status in 2000.

2.  On 4 April 2003, LTC W___ prepared a memorandum for the Cadet Honor
Committee.  He stated that while grading the applicant's project he noticed
that a database table was included in the submission that was required for
the project the previous semester but not this semester.  He then reviewed
Cadet L___'s project with the applicant's project and found reason to
believe the applicant had submitted a modified electronic copy of the
database submitted by Cadet L___'s group.  Three of the database table
structures were almost identical to that submitted by Cadet L___'s group
and some of the data in the database was identical.  He then compared Cadet
L___'s Network Design Project with the applicant's Network Design Project.
The review led him to believe the applicant had submitted a modified
electronic copy of the Network Design Project submitted by Cadet L___'s
group from the previous semester.  There were complete paragraphs that were
the same, even down to the same grammatical errors.

3.  The applicant's note at the end of his Network Design Project had
stated, "CDT David L___,…sent CDT S___ (the applicant) his network design
project from last semester via email in order to show him a template of how
the project should look as a final project.  Both CDT H___ and CDT S___
viewed CDT L___'s project, and used his example as a template for their own
project's layout. However, none of CDT L___'s project was copied by either
CDT H___ or CDT S___, although it would be unfair to CDT L___ to say that
the layout of his project did not have an effect of (sic) the outcome of
CDT H___ and CDT S___'s network design project."

4.  LTC W___ stated that he conducted an Approach for Clarification,
specifically asking the applicant and Cadet H__ what they meant by "none of
CDT L___'s project was copied by either CDT H___ or CDT S___ (the
applicant)."  The applicant stated he had copied the tables but deleted all
the data within them.  LTC W___ discovered that Cadet H___ did not work on
the project until the night before it was due.  When LTC W___ asked them
about the Network Design Project, the applicant stated that he asked for
and received Cadet L___'s project from a previous semester but that all he
did was make notes about what was in the project and did he not copy
anything from the project.

5.  An HIH was held on 15 and 16 May 2003.  The applicant testified, when
asked why the typographical errors were in his [Network Design] Project,
that he did not copy anything in those two projects.  He testified that he
was "typing and looking at things and you have a bunch of windows open and
you are doing things a lot at the same time.  I can't tell you exactly what
I was thinking at the time or exactly what happened at the time because
that was two months ago but what I can tell you is that I had windows open
and I was following what Dave (Cadet L___) had done."  When asked again to
explain the verbatim similarities, he stated that he had all the windows
open and he was typing.  Question:  "So you typed exactly what was on his
paper?"  Answer:  "Essentially."

6.  On 16 May 2003, the 9-member HIH found the applicant violated the Cadet
Honor Code by cheating by electronically copying all or part of the Network
Design Project of Cadet L___ and doing so with the intent to gain an unfair
advantage or to deceive or mislead another person.  The HIH did not find
that he cheated by electronically copying all or part of the Microsoft
Access database project of Cadet L___.  One member of the HIH recommended
separation; two recommended suspended separation with class; three
recommended suspended separation with a December graduation; and one
recommended suspended separation with turnback [one class year].  (This
information was taken from the Honor Fact Sheet in the applicant's case.
It is noted that the recommendations only add up to seven.)

7.  On 23 May 2003, the applicant's Tactical Officer recommended the
applicant be separated from the USMA.  He believed the applicant's actions
were egregious.  The applicant was not under any duress at the time of the
infraction and had lived under the honor code for over two and a half years
and had received numerous classes on proper documentation for assistance
received.  He believed the applicant had not internalized the values and
true spirit by which the ethics of the Army and the U. S. Corps of Cadets
Honor Code exist.

8.  On 28 May 2003, the applicant's Regimental Tactical Officer (RTO)
recommended the applicant be separated from the USMA and placed in the Army
Mentor Program.  If he succeeded in the Army Mentor Program, the RTO
recommended the applicant be allowed to reapply for admission to a future
class. The RTO stated that he believed the applicant committed the offense
because he had developed some poor scholarly habits in the execution of
those types of projects.  His failure stemmed out of lazy habits but he had
charisma and confidence and was a skilled athlete and gifted student.

9.  On or about 28 May 2003, the honor packet on the applicant was
forwarded to the USMA Superintendent.

10.  On 9 June 2003, the Acting Staff Judge Advocate forwarded the
applicant's case to the Superintendent.  The applicant had not submitted
comments for the Superintendent's review.  The Acting Staff Judge Advocate
recommended the Superintendent take the appropriate action, which included
but was not limited to suspended separation, turnback, separation with Army
Mentorship, and separation.

11.  On 3 July 2003, the Superintendent recommended separation with no
opportunity for discretion.  On or about 3 July 2003, the Superintendent's
recommendation and the record of proceedings of the HIH hearing and allied
documents were forwarded to HQDA.  The forwarding memorandum noted that the
Superintendent recommended the applicant be separated from the USMA,
transferred to the U. S. Army Reserve in the grade of E-3 for two years,
and ordered to active duty for two years.

12.  By orders dated 21 July 2004, the applicant was ordered to active duty
in the rank and grade of private first class, E-3 for a period of 2 years.

13.  On 10 May 2005, the Board analyst was informed that a USMA
reinstatement board met on 4 May 2005 and decided not to readmit the
applicant.

14.  In the processing of this case, an advisory opinion was obtained from
the office of the Staff Judge Advocate, USMA which addressed the
applicant's allegations of errors.

      a.  That office noted the HIH heard testimony about the nature and
extent of the work [on the project] and the impact on the applicant's
grade.  Based upon the facts, the HIH determined that the applicant
intended to gain an advantage or mislead another.  That office found there
were sufficient facts in the case to support the HIH's findings.  The
applicant had met with both the Commandant and the Superintendent after the
record of proceedings had been reviewed by a Judge Advocate.  Further, the
case received an additional legal review by the Office of The Judge
Advocate General and the Army General Counsel's Office before the Secretary
of the Army took action.  In each instance, the attorney conducting the
review found that the evidence was sufficient to support the HIH's
findings.

      b.  That office noted that the Approach for Clarification is a
recommended step, not a mandatory step, in conducting an Honor
investigation.  LTC W___ could have forwarded the case for review and
action by the Honor Committee without conducting an Approach for
Clarification.  Consequently, even a defective Approach for Clarification
is not fatal to processing an alleged Honor violation.  Additionally, the
nature of the approach and any alleged errors were fully addressed at the
HIH.

      c.  That office noted that, in 1977, the Secretary of the Army
authorized the Superintendent, at his discretion, to impose a sanction less
than separation when he deemed it appropriate to do so.  The applicant's
entire chain of command recommended that the Superintendent recommend
separation.  The Superintendent elected to follow the chain of command
recommendations and decided not to exercise discretion.

      d.  That office noted the USMA processed the applicant's case in a
timely fashion and did not cause unreasonable delay.  The Secretary of the
Army recommended to the Superintendent that all cadet honor investigations
be processed within 60 duty days.  This timeline commences with the
inception date and terminates with delivery to the Superintendent's office.
 Processing days do not include weekends, holidays, Term End Examination
periods, or Summer leave.  The Superintendent signed the action document
within the Secretary of the Army's guidelines.
      e.  That office also noted that the applicant's due process rights
were observed throughout the Honor investigative process.

15.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

16.  Army Regulation 210-26 (United States Military Academy), paragraph 6-
16 provides that the Cadet Honor code states:  A cadet will not lie, cheat,
or steal, or tolerate those who do."  The Superintendent will establish and
maintain a system to administer the Cadet Honor Code.  Honor Investigative
Hearings will be convened by the commandant under the provisions of the
Cadet Honor Committee Procedures.  Cadets who are found to have violated
the Cadet Honor Code will normally be separated from the USMA; however,
they may, at the discretion of the Superintendent, be retained or returned
to the next lower class.  The may also be awarded certain other
punishments, to include turnback to the next lower class or suspension.
After the Superintendent makes his recommendation, all documents pertaining
to separation from the USMA will be forwarded to HQDA.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions concerning LTC W___'s manner in conducting the
Approach for Clarification have been noted.  However, even if his manner
had been as highly partial and adversarial and his questions "aimed at
guilt from the get go" as contended, it is noted that he did not have to
conduct an Approach for Clarification.  If he had believed the applicant
guilty "from the get go," he could have prepared the 14 April 2003
memorandum for the Cadet Honor Committee "from the get go."  There is
insufficient evidence on which to verify that a change in LTC W___'s manner
in conducting the Approach to Clarification would have avoided the need for
referral to a Cadet Honor Board Hearing.

2.  Counsel's contentions that the Honor Board found the applicant guilty
only on the first allegation, which occupied the lesser part of the hearing
time and deliberations, and recommended by an 8 – 1 decision that he not be
separated have been noted.  However, the Superintendent was not bound by
the Honor Board's recommendation.

3.  Counsel's contention that the evidence convincingly demonstrates that
the decision to separate him was erroneous, unjustifiable, and contrary to
the best interest of the USMA, the Army, and the applicant has been noted.
His contention that there was absolutely no motive for him to have acted
with the
intent to gain unfair advantage or to deceive or mislead another has been
noted. The applicant had testified, when asked why the typographical errors
were in his project, that he did not copy anything in those two projects.
However, he also testified, when asked again to explain the verbatim
similarities, that he had all the windows open and he was typing.  He was
then asked, "So you typed exactly what was on his paper?"  He answered:
"Essentially."

4.  It is difficult for the ABCMR to see the difference between
electronically cutting data from someone else's document and pasting it to
one's own document and typing exactly what was on someone else's document
onto one's own document.  It is reasonable to conclude that the HIH found
it difficult to see the difference, also.  The ABCMR also can imagine where
copying (whether cutting and pasting or "typing exactly") would give an
unfair advantage to the applicant – somebody else had already prepared the
data – allowing the applicant a shortcut in the preparation of his project.
 That could have been for the reason suggested by his RTO (lazy habits) or
for any other reason.  The ABCMR presumes the HIH also saw where such
actions would give the applicant an unfair advantage.

5.  Whether or not the substantiated allegation occupied the bulk of the
HIH hearing time or not, it was an Honor Code violation.

6.  Counsel's contention that an Honor Investigation will be processed
within      60 working days from the time the cadet has been informed that
he is under investigation has been noted.  As counsel noted, the applicant
was notified on     14 April 2003 that he was under investigation and the
Superintendent signed the action document on 3 July 2003.  Counting only
weekdays and the Memorial Day holiday, that would have been 64 days later.
However, as the advisory opinion noted, processing days also do not include
Term End Examination periods or Summer leave.  While the ABCMR is not sure
when the Term End Examination period was in this case, Summer leave began
after graduation around 1 June 2003.  Therefore, the 60 working day period
guideline was not violated.

7.  The length of time between July 2003 when the Superintendent forwarded
the applicant's case to HQDA and the time, around June 2004, when HQDA
approved the action is regrettable and the reason for the delay is not
known.  The advisory opinion notes that his case received two legal reviews
while at HQDA, which most likely accounts for much of that time.  The two
legal reviews also indicates that HQDA wanted to be as fair as possible to
the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mvt___  __jtm___  __lgh___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            _Margaret V. Thompson_
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004164                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050524                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |104.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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