RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            17 February 2005
      DOCKET NUMBER:   AR2004107129


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard              |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Maribeth Love                 |     |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:

1.  The applicant requests, in effect, reinstatement in the United States
Military Academy (USMA) as a cadet to commence his second year as soon as
is practicable.

2.  The applicant’s arguments and evidence is submitted by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s request for reinstatement in the USMA
as a cadet be granted.

2.  Counsel states, in effect, that the applicant engaged in an honors code
violation for which he was disenrolled from the USMA.  Counsel argues that
this punishment was excessive, arbitrary and capricious.  He further opines
that the applicant’s disenrollment was an abuse of discretion by both the
Superintendent of the USMA and The Secretary of the Army, who is ultimately
responsible for the separation of the applicant.

3.  Counsel further states based on the facts of the case, contrary to his
own express statement, the Superintendent did not take into account the
only meaningful evidence presented to him, namely the cadet board hearing
proceedings.  Counsel further alleges that the Superintendent ignored clear
evidence of bias on the part of the TAC officer, who was the sole source of
the adverse report on the applicant, and finally the Superintendent relied
upon a factually incorrect recommendation from the Commandant in making his
final decision.

4.  Counsel concludes by stating that he is not arguing that the punishment
was excessive in the sense of it being beyond the permitted regulatory
scheme.  However, he does argue that it was excessive based upon the
circumstances of the case within the regulatory scheme.  He further states
that it seems clear from the record that the Superintendent paid virtually
no personal attention to this case and he provides evidence confirming the
Commandant did not.

5.  Counsel provides the following documents in support of the application:
 Supplemental Statement, Applicant Sworn Statement, Cadet Investigators`
Sworn Statements, Third-Party Cadet Sworn Statement, Honor Investigative
Board Charge Sheet, Honor Investigative Hearing Appointment Memorandum,
Honor Investigative Hearing Report of Proceedings and Cadet Advisory Board
(CAB) Worksheets, Special Assistant to the Commandant for Honor Matters
Recommendation Memorandum, Superintendent Hearing Member Worksheet
Instructions, Chain of Command Recommendation Worksheet, Company Tactical
(TAC) Officer Memorandum, Brigade TAC Officer E-Mail, Commandant’s
Disposition Recommendation Memorandum, Applicant’s Parents E-Mail, and
10 Supporting Cadet Statements.

CONSIDERATION OF EVIDENCE:

1. The applicant’s record shows that on 13 September 2002, while a member
of the USMA, he was issued a pass that was contingent on his attendance at
an Army football game in New Brunswick, New Jersey.

2.  On 15 September 2002, upon the applicant’s return to the USMA, he was
approached by his cadet platoon sergeant regarding his whereabouts during
the football game in question.  At this time, the applicant lied by
indicating that although he missed formation, he had attended the game.

3.  The applicant was later approached by his cadet platoon sergeant and
cadet company commander for clarification of his story regarding his
attendance at the football game.  At this time, he indicated that he sat
with a female cadet whom he identified by name.  Upon investigation, the
cadet platoon sergeant and cadet company commander obtained a statement
from the female cadet the applicant claimed to have sat with through a
third-party.  In this statement, the female cadet confirmed that she had
not attended the football game.

4.  The applicant was again approached by his cadet platoon sergeant for
clarification of his statement that he had sat with the female cadet.  At
this time, the applicant indicated that he was drinking and could not
remember who he sat with at the game.  His cadet platoon sergeant again
asked the applicant if he had in fact been at the football game and the
applicant admitted that he had not attended the game.  After consultation
with the company honor code representative, the cadet platoon sergeant
advised the applicant he had 24 hours to self-report the incident, which he
did on 15 September 2002.


5.  On 25 October 2002, a CAB conducted an honor investigative hearing on
the applicant’s case.  The allegation against the applicant was that he
violated the honor code by making a statement that he knew to be false with
the intent to deceive.  The applicant was found in violation of the honor
code by lying when he stated he had attended the Army football game on 14
September 2002.  All eight members of the CAB found the applicant’s ethical
failure was not a true reflection of his character and concluded that the
applicant had resolved to live honorably in the future.  All eight members
found no duress was present.  They all also concluded the applicant had the
potential to serve as an officer in the Army.  Finally, all eight members
did not support the normal sanction of separation and recommended the
Superintendent use discretion in the applicant’s case.  None of the eight
members recommended the applicant graduate with his class.  Six recommended
the applicant graduate in December and 2 recommended a one-class year turn-
back.

6.  The chain of command recommendations included a recommendation for
discretion by the cadet company commander and a recommendation for
separation by the company, regimental and brigade TAC officers.

7.  On 28 October 2002, the Special Assistant to the Commandant for Honors
Matters, a lieutenant colonel, recommended that the Superintendent separate
the applicant, suspend his separation, turn him back one year and enroll
him in the honor mentorship program.

8.  On 31 October 2002, the company TAC officer provided a memorandum with
his assessment of the applicant and to explain his recommendation regarding
the disposition of the applicant’s honor case.  He stated that he
recommended the applicant’s separation from the USMA.  He explained that
the applicant intended to deceive/mislead the two cadets who confronted him
on his attendance at the Army football game in question.  The applicant
admitted to lying and to continuing the lie until he felt the cadets
questioning him knew he was not at the game.  These actions showed his
intent to deceive and were not the actions of a person taking full
responsibility for his mistake.

9.  In his memorandum, the company TAC officer further indicated that he
could not look at the incident as a single event.  He also had to consider
the applicant’s past performance when evaluating the applicant’s resolve to
live honorably.  He stated that he believed the applicant understood his
violation as a legitimate problem and as a violation of the honor code.  He
further cited the applicant’s record of misconduct during his fourth class
year and in the first three months of that year.
10.  The company TAC officer further indicated that he considered the
applicant’s offense serious.  The applicant lied to cadets in positions of
command and with authority.  The applicant did not simply lie once and then
admit to breaking the honor code, he told a series of successive lies in an
effort to make his story more believable.  The TAC officer stated that the
applicant did not possess the personal courage to take responsibility for
his actions and displayed greater loyalty to self than to the
organizational values and morals of the Army and USMA.  He further stated
that if any trend in the applicant’s performance existed, it was one of
increasingly more unacceptable behavior.  He went from missing class to
viewing pornography on the Internet, missing movement and then lying about
his actions.  He concluded by indicating that he did not believe the
applicant had the potential to serve in the Army as a Soldier and leader,
and it was time to stop accepting substandard conduct from the applicant.

11.  On 1 November 2002, the brigade TAC officer submitted an e-mail note
regarding the applicant’s case.  In it, he commented that the applicant had
been afforded multiple opportunities to demonstrate a resolve to do what is
right and has consistently failed to do so.  He further stated the honor
violation took place in concert with a significant disciplinary infraction.
 He stated the applicant made a conscious decision to try and avoid the
disciplinary incident with the lie he told and it was only when confronted
with the inevitable nature of the truth coming out that he admitted
wrongdoing, which does not indicate he took much of the moral high road.

12.  On 4 November 2002, the Commandant of Cadets recommended the
applicant’s separation with no opportunity for discretion.  He stated that
after considering all the evidence in the record of proceedings, he felt
the applicant was guilty of violating the honor code by lying with the
intent to deceive.  The Commandant stated that he felt this was a serious
case given the applicant’s almost fifteen months under the honor code, and
that he had committed an honor violation in a knowing and deliberate
manner.

13.  The Commandant further indicated that of particular concern were the
several lies the applicant told were deliberately contrived over a period
of two days in an effort to mislead others in his company, to include his
company commander.  He further stated that at the root of the applicant’s
succession of lies was the applicant’s gross misconduct, which included
underage drinking.

14.  Finally, the Commandant indicated that it was not until the applicant
was approached several times on the incident that he finally admitted to
his initial lie.  It is these actions that caused him to believe the
applicant had not internalized the honor code and that anything short of
separation would compromise the code and the system.   If the applicant had
not internalized the code after almost
15 months, allowing any form of discretion would not achieve that result.

15.  On 3 December 2002, the USMA Superintendent forwarded the record of
proceedings of the honor investigative hearing and allied documents
pertaining the applicant to the Department of the Army (DA) G-1.  He stated
that he had carefully reviewed the record of proceedings and allied
documents in the applicant’s case and approved the finding of the honor
investigative hearing that the applicant violated the cadet honor code by
lying.  The Superintendent stated that based on his review of the entire
case file, he recommended the applicant be separated from the USMA and
discharged from the Army with an honorable discharge.

16.  On 9 October 2003, the Deputy Chief of Staff, G-1, Army approved the
recommendation that the applicant be separated from the USMA and discharged
from the Army with an honorable discharge.

17.  In connection with the processing of this case, an advisory opinion
was obtained from the USMA Staff Judge Advocate (SJA).  The SJA addresses
 the issues raised by the applicant’s counsel and states that counsel’s
assertions that the company TAC officer was biased, that the Commandant’s
recommendation to the Superintendent contained factual inaccuracies, and
that the Superintendent paid virtually no personal attention to the
applicant case are not supported by the facts.

18.  The SJA also indicates that while counsel relied heavily on the CAB
comments to support his conclusion that the company TAC officer was biased,
the applicant’s cadet records support the TAC officer’s presentation of the
facts.  He stated the applicant had accumulated over 100 hours on the area
during his freshman year and had already accumulated 90 hours during his
sophomore year (punishment tours are awarded in various increments based on
the level of infraction and adjudication).
19.  The SJA further indicated that the CAB, in its comments, did not
indicate the company TAC officer was biased, only that he focused too much
on the applicant’s disciplinary record.  In making its recommendation for
discretion in this case, the CAB members were able to consider testimony of
the applicant’s character witnesses.  The Regimental and Brigade TAC
officers, Commandant and Superintendent were likewise able to review the
entire record.  This included the recommendations of the CAB, the
recommendation of the Special Assistant for Honor and comments of lower
levels of the chain of command in order to give the company TAC officer’s
comments the appropriate weight.  There is no evidence to suggest the
company TAC officer’s comments were false or misleading, or that they
unduly influenced the Commandant or Superintendent.

20.  The SJA further states that counsel’s claims of factual inaccuracies
in the Commandant’s recommendation to the Superintendent indicate he did
not give appropriate attention to the case is inaccurate and there are no
such inaccuracies.  The SJA indicates that counsel indicates this was a
case of
self-reporting, which under the honor code is normally a mitigating factor
reflecting the cadet’s willingness to take responsibility for his/her
conduct.
Self-reporting, however, typically involves a cadet reporting his/her
infraction before others have confronted him/her with the violation and
before he has received outside pressure to self-report.  As is clear from
the CAB memorandum, the applicant repeated his lie numerous times before
reluctantly self-reporting when it became clear that his deception had been
caught by others.  The CAB members noted the applicant was asked about the
incident three times before he admitted the truth, hence the CAB felt he
was pressured from outside sources, specifically his company commander and
platoon sergeant to turn himself in for lying.

21.  The SJA also addresses counsel’s assertion that the Superintendent did
not pay adequate attention to the case is clearly based on dissatisfaction
with the outcome.  The SJA indicates that prior to taking action in an
honor case, the applicant was provided the opportunity to submit matters
for the Superintendent’s consideration.  The applicant submitted numerous
statements from friends and family, which can be found in the case file.
Additionally, the Superintendent conducted a personal interview with the
applicant prior to taking action.  At that time, the applicant was given
the opportunity to bring any facts forward that he felt would be relevant
to the Superintendent taking action.

22.  The SJA concludes his advisory opinion by indicating that the
applicant’s due process rights, as set out in Army Regulation 210-26 and
the honor committee standard operation procedure, were observed throughout
the honor process.  The original allegations were reviewed for legal
sufficiency prior to referral by the Commandant, the CAB proceedings were
conducted by a trained legal officer, the record of proceedings were
legally reviewed both before the Commandant met with the applicant and
before the Superintendent met with the applicant.  Furthermore, as counsel
for the applicant concedes, the Superintendent acted within his authority
as set out in regulations for the USMA.  Further, after the case was
forwarded to Department of the Army (DA), it received additional legal and
staff reviews before final action was taken on behalf of The Secretary of
the Army.

23.  On 19 July 2004, the applicant’s counsel responded to the USMA
advisory opinion.  Counsel claims that no one stated the company TAC
officer was biased, but rather that the facts and circumstances presented
demonstrate he was.  Counsel claims the unvarnished reality at the USMA is
that the CAB’s opinions as to the outcome in this case were ignored.
Counsel admits this is not a
text book matter of conscience self-reporting, but was in fact a case where
the applicant came forward to admit his wrong.  Counsel concludes by
indicating that what it comes down to in this case is the Board’s
willingness or unwillingness to do as the Superintendent does, namely to
ignore the facts and recommendation of the CAB and act arbitrarily.

24.  Army Regulation 210-26 (United States Army Military Academy) provides
policy and procedures for the general governance and operation of the USMA.
 Chapter 6, Section III provides guidance on honor and discipline.
Paragraph 6-16 contains guidance on violations of the cadet honor code.  It
states, in pertinent part, that the cadet honor code states a cadet will
not lie, cheat, or steal, or tolerate those who do.

25.  The USMA regulation further requires the Superintendent to establish
and maintain a system to administer the cadet honor code and for honor
investigative hearings to be convened by the Commandant.  Upon completion
of the record of the proceedings, including the findings and
recommendations, they will be reviewed by the SJA, forwarded for
recommendations by the Commandant, provided to the cadet respondent for
rebuttal and comment, and finally sent to the Superintendent for action
pursuant to paragraph 7-3 of this same regulation.  It finally states, in
pertinent part, that cadets who are found to have violated the cadet honor
code will normally be separated from the USMA.

26.  The same regulation further stipulates that if after a hearing a cadet
has been found deficient in conduct, the Commandant will review the report
of proceedings.  The Commandant may retain the cadet (with or without
probation), or recommend to the Superintendent that the cadet be separated
or suspended from the Military Academy.  In cases of conduct deficiency
where a report of proceedings and the recommendations of the Commandant are
forwarded for action, the Superintendent may take one or more of the
following actions:
(1) Direct retention (with or without probation); (2) Direct transfer to a
lower class; or (3) Direct suspension from the Military Academy and
recommend separation to The Secretary of the Army.

27.  Chapter 7 of the USMA regulation contains guidance on separations and
resignations.  Paragraph 7-3 states, in pertinent part, that the summarized
record of a proceeding before a misconduct hearing, honor investigation
hearing, or conduct investigation will be reviewed by the SJA. A copy of
the summarized record, along with the SJA’s review, will be forwarded to
the Commandant for consideration.  Thereafter, the record, the
recommendations and comments of the Commandant, if any, and the SJA's
review will be provided to the respondent for consideration and an
opportunity for rebuttal.  The Superintendent will review the entire
record, including the SJA's review, the recommendation of the Commandant
and any matters offered by the respondent prior to taking action on the
case.  Except in cases where the Superintendent is the separation
authority, all documents pertinent to the separation of a cadet from the
USMA will be forwarded to DA for final action.  The Superintendent will
make recommendations concerning separation from the USMA and discharge from
the Service.  If discharge is recommended, the type of discharge
recommended will be specified.

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant and counsel have been carefully
considered. However, there is insufficient evidence to support counsel’s
claim that the actions taken by USMA officials in the applicant’s case were
arbitrary and capricious.

2.  By regulation, cadets who are found to have violated the cadet honor
code will normally be separated from the USMA.  In this case, after
reviewing all the evidence to include the input of the CAB, TAC officers
and Commandant; and after conducting a personal interview with the
applicant, the Superintendent elected to recommend the applicant’s
separation from the USMA and discharge from the Army, as is not only his
prerogative, but also his responsibility under the existing law and
regulation.
3.  The evidence of record clearly shows the applicant only self-reported
his honor code violation after it became apparent he had been caught lying.
 A review of the facts and circumstances provides no reason to believe the
applicant would have self-reported his lie had his explanation been
accepted after his first interview on the subject.

4.  Further, although counsel indicates the facts and circumstances support
a conclusion that the company TAC officer was biased, the evidence does not
support this assertion.  There is no indication that this officer
misrepresented the applicant’s disciplinary history at the USMA in any way,
and his recommendation for separation was not unreasonable given the
applicant’s honor code violation and overall record at the USMA.

5.  In addition, notwithstanding counsel’s assertions to the contrary,
there is no evidence to suggest the Commandant and Superintendent ignored
the recommendations of the CAB.  Rather it appears that after reviewing all
the facts and circumstances surrounding the honor code violation, and
considering the applicant’s entire record at the USMA, these responsible
officials came to the conclusion that the applicant’s separation from the
USMA and discharge from the Army was a more appropriate outcome than the
retention recommendations of the CAB.

6.  The evidence of record in this case also confirms that although the
members of the CAB concluded the applicant’s mistake was not a true
reflection of his character and recommended against his separation, they
did find he violated the cadet honor code by lying.  The report of
proceedings was properly processed through the Commandant and
Superintendent, who both recommended the applicant’s separation; and
finally, the case was reviewed by the Deputy Chief of Staff, G-1, Army, who
approved the applicant’s separation from the USMA and honorable discharge
from the Army.

7.  In view of the facts of this case, it is concluded the applicant’s
separation was accomplished in accordance with applicable law and
regulation and that his rights were fully protected throughout the
separation process.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JI___  __TDH___  ___MBL _  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.




            ___Thomas D. Howard___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004107129                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/17                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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