RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 July 2007
	DOCKET NUMBER:  AR20060015223 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Ms. Jeanette McCants

Chairperson

Mr. Thomas Ray

Member

Mr. Jeffrey Redmann

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, that the findings of the U.S. Military Academy (USMA) Honor Investigative Hearing (HIH) be overturned; and that his military records and academic transcript be corrected to show that he graduated in 1998 and that only the portion of military, academic, and physical training occurring between June 1994 to May 1998 be reflected on his records.

2.  The applicant states, in effect, that he began his training as a cadet at the USMA at West Point on 25 June 1994, that on 17 December 1997 a professor recommended that he be investigated for cheating, that the HIH convened on 
19 and 29 February 1998, and that only five out of the required six honor committee members voted that he had the intent to commit the Cadet Honor Code (CHC) violation (cheating).  He contends that the findings of the HIH should be overturned on the grounds that there was a procedural error made during the course of the hearing; and therefore, the findings were unfair and unjust.  He states that the HIH made a procedural error because only five out of the required six honor committee members voted that he had the intent to commit the CHC violation; therefore, the evidence presented at the HIH was not sufficient to support a finding of a violation of the CHC by cheating. 

3.  The applicant states that the HIH had to find two elements: (1) that he did intentionally cheat (fail to cite in his endnotes or bibliography an article to conceal his near exclusive reliance on this article); and (2) that he did so with the intent to deceive or mislead another person, and to gain an unfair advantage.  

4.  The applicant provides the attachments outlined on his personal statement, dated 3 October 2006.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  The American Legion, as counsel for the applicant, requests that the Board correct the error (impropriety) of the HIH’s ruling, change the applicant’s transcript to a regular four year USMA transcript with an available additional attachment that credits his completion of his second major and all other credits, and change the applicant’s USMA record to show he graduated in 1998.  

2.  Counsel states, in effect, that the vote of the HIH members did not result in six affirmative votes as evidenced in the attachments.  The applicant was erroneously determined to be guilty of a deliberate honor violation, and as a consequence, was not allowed to graduate with the Class of 1998.  Instead, he was held back and required to spend a fifth year as a cadet and graduated with the USMA Class of 1999.  Counsel points out that the applicant continues to experience difficulty when applying for advance degree programs when his transcript reveals that he took five years to graduate from a very well known four year institution.  

3.  Counsel provides a statement, dated 26 June 2007.

CONSIDERATION OF EVIDENCE: 

1.  Apparently on 25 June 1994, the applicant began his training as a cadet at the USMA at West Point.

2.  On an unknown date the applicant was investigated by the HIH for cheating.   

3.  The applicant provided an undated HIH Findings Worksheet which shows the members found that there was substantial evidence to support the allegations of an honor violation.  The worksheet states in pertinent part, “Cadet [the applicant’s name], the findings of the Honor Board, at least six of the nine voting members concurring, are that the following allegations are supported by substantial evidence,” and that the applicant did “at West Point, New York, on or about 
24 November 1997 and 12 December 1997, violate the Cadet Honor Code by cheating, by intentionally failing to cite in his endnotes or bibliography an article written by Maury Klein, titled “In search of Jay Gould,” so as to conceal his near exclusive reliance on this Maury Klein article as the actual source of numerous primary and secondary sources he did cite, and doing so with the intent to gain an unfair advantage, and with the intent to deceive or mislead another person.”  

4.  On 16 April 1998, the finding of the HIH that the applicant violated the CHC by cheating on or about 24 November and 12 December 1997 was approved.  The Superintendent determined that the applicant would be turned back to the Class of 1999.  A recommendation that the applicant be separated from the USMA was suspended until June 1999.

5.  The applicant was commissioned a Reserve officer on 30 May 1999.

6.  In support of his claim, the applicant provided nine member worksheets.  These worksheets were completed after the HIH voted.  The members were asked to respond to six questions, including “Do you believe that the respondent should have reasonably understood at the time of his/her violation(s) that his/her actions were in violation of the Cadet Honor Code?” (question one); “Do you characterize the respondent’s violation as flagrant or petty?” (question four); and “Please explain any other factors involved in this investigation that you believe will help the Superintendent determine the proper disposition of this investigation.” (question six).  Five members responded “No” to question one and “petty” to question four.  Of the five members who characterized his violation as “petty,” one member stated, “Although the evidence of the case does raise some questions, and though his actions are less than expected of a college senior, I do not feel that CDT [the applicant’s name] flagrantly intended to deceive his instructor.”; the second member stated, “I believe the violation was unintentional.”; the third member stated, “Personally I would say petty.  To me ignorance or a misinterpretation is more petty than flagrant.”; the fourth member stated, “I believe that honor/integrity goes beyond the Cadet Honor System and as a [first class] cadet he should know this.”; and the fifth member stated, “Cadet [the applicant’s name] actions were wrong and there is little doubt in my mind that he did in fact try to mislead his professor into believing he looked up all the primary sources.”    

7.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1.  The opinion states that the applicant’s argument (that the USMA HIH made a procedural error by finding that he violated the CHC with only 5 out of the 9 (as opposed to the required 6 out of 9) honor committee members voted accordingly) is very misleading for two reasons.  First, the honor board members voted by secret ballot and the applicant cannot determine how each member voted.  He can only conclude that the required 6 out of 9 members voted that he committed an honor violation.  Second, the claim of a procedural error (only 5 out of the 9 members voted thusly) pertains to a questionnaire, which is commonly referred to as a member worksheet.  The worksheet is not a mechanism to determine guilt or innocence since the board members have already voted.  Rather, the worksheet serves as an advisory opinion and is filled out after the conclusion of the HIH.  Its sole purpose is to capture the board members’ interpretation of the cadet’s intent when he committed the alleged offense.  Basically, the results of the worksheet may provide mitigating circumstances for the Superintendent’s consideration prior to his final disposition of the case.    

8.  The advisory opinion was provided to the applicant on 9 May 2007 for comment or rebuttal.  The applicant did not respond within the given time frame.

9.  The Cadet Honor Committee Procedures states, in pertinent part, that the members vote by secret written ballot on each allegation, after adequate opportunity for full discussion.  The finding of a violation of the Honor Code requires an affirmative vote from 6 of the 9 members.      

10.  Paragraph 304i(10) of the Honor System and Standard Operating Procedures of the Cadet Honor Committee states, in pertinent part, that after receiving all evidence and testimony, the HIH must determine whether sufficient evidence exists to support a finding that the respondent violated the Honor Code. The respondent must have: committed the alleged act - having the required specific intent at the time the alleged act was committed or forming that intent during the existence of a continuing act; or tolerated a violation or attempted violation of the Honor Code by another cadet.  A finding that the respondent violated the Honor Code must be supported by such evidence that a reasonable person, considering the evidence as a whole, can accept as sufficient to support a conclusion that the allegation of a violation of the Honor Code is more likely to be true than not true.  The members vote by secret written ballot on each allegation, after adequate opportunity for full discussion.  The finding of a violation of the Honor Code requires an affirmative vote from 6 of the 9 members. Only one vote may be taken per allegation.  The board members will enter findings supported by the evidence and any advisory recommendations deemed appropriate.  The board members secretly mark the ballots.  The Cadet President will then count the ballots in the presence of the other board members.  The Cadet President will destroy the ballots after each member verifies the accuracy of the count and signs the allegation sheet.  In the case of a mistaken vote or other compelling circumstances, the Hearing Officer (HO) may direct a re-ballot.  Cadets should report any attempt to discover the vote of an individual HIH member to the HO, the Chairperson of the Honor Committee, the “SAH,” the Commandant, or the Superintendent, as appropriate.  The Cadet President may request that the HO assist in arranging the findings in proper form prior to announcement to the respondent.  The Cadet President will announce the findings to the respondent when the proceeding is reconvened.     

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the HIH made a procedural error by finding that he violated the Honor Code with only five out of the required six affirmative votes is without merit.  The governing regulation states that the members vote by secret ballot and that the finding of a violation of the Honor Code requires an affirmative vote from 6 of the 9 members.  Since the Superintendent approved the findings, it is presumed that 6 members voted affirmatively.  

2.  The worksheets provided by the applicant were noted and it appears he intended these worksheets to be proof that only five members voted affirmatively. However, the advisory opinion states that the worksheet is not a mechanism to determine guilt or innocence since the board members have already voted.   

3.  Finding that the applicant did not understand at the time that his action was a violation of the honor code is not the same as finding that he did not violate the honor code.  The two elements that must be found are that (1) the cadet violated the honor code and (2) intended to commit the act that constituted a violation.  
The cadet need not intend to violate the honor code to be guilty of a violation of the code.  Whether the cadet reasonably understood he was violating the code goes to mitigation, not the issue of guilt. 

4.  In addition, it is noted that one of the members who characterized the applicant’s violation as petty, also stated in pretty strong language that the applicant’s actions were wrong and believed the applicant did try to mislead his professor.  Another member also questioned the applicant’s honor and integrity.

5.  Based on the foregoing, there is no basis for granting the applicant’s requests. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JM_____  ___TR___  __JR____  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.


___Jeanette McCants___
          CHAIRPERSON




INDEX

CASE ID
AR20060015223
SUFFIX

RECON

DATE BOARDED
20070731
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
134.0000
2.
100.0000
3.

4.

5.

6.