IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20070006032 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

Applicant has deferred to his counsel for presentation of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Applicant has deferred to counsel for the presentation of his request for action by the Board.  Applicant's counsel has submitted a sixteen-plus page request to the Board in which he presents the alleged errors or injustices he requests the Board to correct, the details which he believes are connected to each of the errors or injustices, and on page 15 summarizes those actions that he believes will make the applicant whole.

2.  Counsel requests, in effect, that the decision to not offer the applicant enrollment in the Academy Mentorship Program (AMP) be reversed; that the DD Form 785, Record of Disenrollment from Officer Candidate-Type Training, be corrected to show he was recommended to be considered in the future for other officer training, and in this case, to be allowed to return to the United States Military Academy (USMA) through successful completion of the AMP, that he be awarded a diploma or a certificate of completion of academics from the USMA [this issue was later withdrawn by counsel]; that he be promoted to the rank and pay grade, Sergeant, E-5, effective the date he was disenrolled from the USMA; and that his expiration of term of service (ETS) should be adjusted to 27 February 2008 as opposed to the currently established 23 May 2009.

3.  Counsel states, in effect, that the applicant committed two honor offenses while a cadet of the USMA.  He admitted his violations of the Honor Code to a classmate then, self-reported.  He was investigated for these violations.  While at the Academy, he had an otherwise blemish-free tour through four years and possessed an outstanding reputation.  When he was dismissed, commissioned officers in his chain of command recommended he be enrolled in the AMP; however, the Superintendent did not offer him enrollment in the AMP.  He states, in effect, that his record lacks the justification or the course of action that prompted the Commandant and the Superintendent to disregard every officer in his chain of command and the Commandant's Special Assistant for Honors Matters (SAH) and not to offer him enrollment in the AMP and in effect, this decision should be reversed.

4.  Counsel states, in effect, that commissioned officers in the applicant's chain of command, up to and including the SAH, recommended he be offered the opportunity to come back to the USMA, through successful completion of the AMP; however the Brigade Tactical Officer (BTO), after having recommended enrollment in AMP for the applicant inconceivably marked, "Definitely Not Recommended," on the DD Form 785.  He states, this is an error and an injustice that should be corrected.

5.  Counsel further states, in effect, the applicant did not receive a diploma or a certificate of completion of academics when he was disenrolled from the USMA.  At this point, he had completed all academic requirements for a baccalaureate degree from the USMA.  While the Superintendent decided to disenroll him from the program, the fact remains he completed the academic requirements and should have received a diploma or certificate acknowledging that he received a Bachelor of Science degree from the USMA.

6.  Counsel additionally states, in effect, the applicant should have reentered his enlisted service as a Sergeant because he had prior service and he had been promoted to Private First Class before being enrolled in the SMP and then to Sergeant before his enrollment in the USMA.  He states that the Department of the Army, G-1, incorrectly read and applied DOD Directive 1332.23 and Army Regulation 612-205 regarding separation of upperclassmen with prior service from the USMA.  The applicant's classmates, he added, without prior enlisted service, who were discharged for the same reason, or worse, went into the Reserve with the rank of Specialist, E-4.  This is due either to an incorrect reading of Army Regulation 612-205 or an incorrect application of DOD Directive 1332.23 and the underlying US Code for the Directive.

7.  Counsel also states that if the Department of the Army, G-1 is interpreting Army regulations correctly then he should only have to serve the remainder of his initial obligation which he executed in February 2000.  He was transferred to the Reserve to fulfill a three year commitment; however, if he is to be transferred under the rule that demotes him to E-2, then he should serve to the end of his original ETS of 27 February 2008 and not 23 May 2009.

8.  In support of his request, the applicant provides those documents (Enclosures 1 through 28) listed on the addendum to the DD Form 149, Application for Correction of Military Record.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows the applicant enlisted in the Alabama Army National Guard, in the Simultaneous Membership Program (SMP), on 26 October 2001, in the rank and pay grade, Private, E-2.  He was promoted to the rank and pay grade, Cadet, E-5, on 26 October 2001.  He was discharged, with an uncharacterized character of service, on 24 May 2002, based on his disenrollment from the Reserve Officer Training Program (ROTC) and withdrawal from the SMP.  The applicant was reduced from the rank and pay grade, Sergeant, E-5, to Private, E-2, on 24 May 2002 based on his withdrawal from the SMP.

2.  The applicant entered the USMA as a cadet on 1 July 2002.  He continued in this status until he was separated on 25 May 2006.

3.  On 11 April 2006, the applicant violated the Cadet Honor Code by cheating, by failing to complete the entire two mile run course on the Army Physical Fitness Test (APFT) and doing so with the intent to gain an unfair advantage, or deceive or mislead another person.  On the same date, the applicant also lied by stating to another cadet that he had completed the entire two mile run course on the APFT knowing that said statement was false or misleading at the time it was made or not believing it to be true and making it with the intent to deceive or mislead another person.

4.  The Cadet Honor Code is defined as "A cadet will not lie, cheat, steal, or tolerate those who do."

5.  After the applicant confessed to violating the Cadet Honor Code, he collected ten character reference statements from other cadets.  In each of the statements, the applicant's conduct and performance was described to varying degrees.  Extracted from these ten character reference statement are what are considered the most relevant points:
      a.  One cadet, Cadet Captain JEH, acknowledged the applicant made a mistake.  He admitted to his mistake and would accept whatever punishment he receives.  As someone who knew him very well, she felt confident saying that he had dedicated his life to serving his country and would continued to do so in the future.  She had no doubt that the applicant would be an outstanding Army officer.  She stated that the applicant should, without a doubt, be retained and commissioned as an officer in the United States Army.

      b.  Another cadet, Cadet Captain KA, said of the applicant that he had chosen the wrong action when he took the APFT.  It was not right, but, she could understand the pressure he was under.  The last thing anyone at West Point wanted to do was to fail, especially a first class cadet.  The thing that made the applicant worthy of being a cadet was not that he was perfect, but after a moment of weakness, he lived the values of West Point and turned himself in.  That had to be the hardest thing to do because now he was facing the responsibility of dealing with the punishments of West Point, the ridicule of the Corps, and more importantly, the disappointment of his family.  Through all of the applicant’s weak points, he still had the personal courage to do the right thing.  She thought the applicant should be retained at the Academy. 

	c.  Cadet Captain SJJ-V stated she believed the applicant would make a great officer.  He cared about the people around him and tried to better his surroundings.  She recommended that the applicant "should absolutely be retained -the Army would be losing a priceless future officer if he was not."

	d.  Cadet Lieutenant RS stated he had seen the applicant sometime after the APFT and asked him how he was doing.  Rather than try and avoid being forthright he told him very directly that he had turned himself in for committing an honors violation.  Upon reflecting back on that moment he was struck by how difficult it must have been to admit such a thing – it was clearly the harder path to face his closest friends and tell them how he had failed rather than letting them find out when it came down on the blotter.

	e.  Cadet Lieutenant JRL submitted that the applicant should be punished for his actions on the APFT; however, he felt the applicant deserved to be commissioned.  He had put himself through more mental anguish as a result of his mistake than anyone could ever put him through.  The reason he felt the applicant deserved to be commissioned was because of this life style.  When he thought of the applicant he did not regard him as a shady individual with low morals and someone he generally would want to lead young men into battle.  He felt quite the opposite.  If there was one person he felt would be capable of leading Soldiers with the courage and integrity the job required it to be the applicant.  He felt his mistake was a single lapse of judgment based on some overwhelming pressures brought about by uncertainties of graduation and his fear of failure.  Cadet Lieutenant JRL did not think the applicant's mistake was indicative of the way he lived his life, made decisions and would act in the future. If anything, he thought this experience would only mold him into a much stronger person and leader.

	f.  Cadet Captain RPG stated that the applicant's violation was egregious; yet, he felt that everything happened for a reason and the applicant had the character and personal courage to effectively share his experience with those who would most benefit from it.  He would be a better asset to the Army teaching his experience within the Corps than outside of it.  If separated from the Corps of Cadets, he would become just another member of their class that did not finish their time at the Academy.  If retained and allowed to graduate in the future, he would be able to affect any number of cadets demonstrating to them the true meaning and true price of Duty, Honor, and Country. 

	g.  Cadet NJT submitted that the applicant spoke towards his sense of regret after the incident.  He talked with him at great length when he turned himself in.  He seemed to be deeply regretful and wholly affected.  Despite the tremendous prospect of potential consequences, the applicant had continued to be an active member of their project group.  He stated that until he was forced to leave the Academy, he still intended on continuing on as a cadet who is training to become an officer.  Cadet NJT stated he had faith the advisory board would decide according to what was most appropriate and fitting.

	h.  Cadet Lieutenant AS stated that when the event occurred, he was among the first people to confront him to admit to his actions showing deep remorse and a complete understanding and reverence for the value of honor.  The personal courage and the honor to face his friends and superiors with the truth of his actions is representative of the applicant.  While Cadet Lieutenant AS stated he would not pretend to pass judgment for the honors committee, if asked personally, he would strongly recommend the applicant for retention at the Academy.  While this instance should not be overlooked, he would highly recommend retaining the applicant.  He is a strong asset to the Army and a valuable member of the Corps of Cadets.

      i.  The applicant's Tactical Officer, an active duty Major, stated that upon making an error in judgment, the applicant had to look at himself in the mirror and determine whether he would continue to live with doing a wrong or be his genuine self and come forward about the error in his choice.  Rightfully, the applicant had self-admitted and in his book can look himself and others in the eye with a renewed conscience, dedicated to making the right choices from this point forward.  He added that the applicant had committed an integrity violation.  He does not condone his actions and believes he should be held accountable accordingly; but, what he asks for was for the Cadet Advisory Board to consider, in their judgment, aside from this one time lapse, all of the good he had done for others and because of the volume of his selflessness, consider affording him the chance to redeem/remediate his shortfall with a future opportunity to prove himself worthy of a commission from the Academy.

      j.  The Second Regiment Regimental Tactical Officer, an active duty Lieutenant Colonel, had a conference with the applicant approximately one week after the April APFT.  He personally told him what he had done with the APFT and how ashamed he was of his actions.  He informed him that he had already turned himself in for honor the Friday before.  During the conversation, he was emotionally distraught and repeated how he had failed him as his TAC and his classmates.  What struck him was that he never said anything about himself personally.  It was all about how he had let down others and the institution.  His interaction with him could best be described as selfless, remorseful, and humble. The applicant's actions should not go unpunished, he stated; however, the personal courage he demonstrated by turning himself in and by approaching him in person to inform him of the incident could not go unnoticed.  The Academy teaches the cadets to be leaders of character.  A critical part that is rarely tested is on personal courage and humility required to admit when they have done wrong.  The applicant, he admits made a poor decision, but his follow-trough with personal courage and humility demonstrated that he has the character we want in our future leaders.  The Regimental Tactical Officer recommended that the applicant be retained and commissioned at a point in the future as determined by the recommendations of the honor board and the chain of command.

6.  On 8 May 2006, the Cadet Advisory Board prepared a memorandum for the Superintendent of the USMA to outline its recommendations in the case of the applicant.  The Cadet Advisory Board believed the applicant had great potential to be an officer in the Army.  He had demonstrated this by his continual efforts in advancing his technical and tactical proficiency while a cadet.  Further testimony from the Regimental Tactical Officer, Company TAC, and the TAC Noncommissioned Officer all indicated that they would have him serve as a Lieutenant in their units and that they would go to combat with him. 

7.  The recommendation continued that, the applicant's potential aside, the Cadet Advisory Board believed that the applicant had failed to uphold the core value of West Point:  Honor.  By cheating and then lying about it so close to graduation, the board felt he had broken a bond connecting him to the "Long Grey Line."  Although the board felt that he would make a fine officer, they did not feel he should receive his commission from the USMA.  Six out of six members of the Cadet Advisory Board recommended the applicant be separated from the USMA. The BTO, in his duty position of BTO, recommended that the applicant be allowed enrollment in the AMP.

8.  On 9 May 2006, the Special Assistant to the Commandant for Honors Matters prepared a memorandum to the Director, Center for Professional Military Ethics, United States Corps of Cadets, and to the Commandant, United States Corps of Cadets, Subject:  Summary and Recommendation Regarding [the Applicant].  In this memorandum it was recommended the Superintendent separate the applicant but offer him enrollment in the AMP.  The applicant, the author stated, remained committed to his goals of graduating from West Point and becoming an infantry officer.  He appeared to have the potential to serve as an honorable Soldier and officer in the future and it was believed that he could be an asset to the Army.  An additional year in the Army with the possibility of returning to West Point would provide him an opportunity to remediate, redeem himself, and earn a chance to graduate from USMA while serving the nation.

9.  On 10 May 2006, a legal review of the preliminary session/providence inquiry and recommendations of the Cadet Advisory Board was conducted.  A memorandum was prepared for the Superintendent of the USMA.  The Superintendent was advised that in a legal opinion that the preliminary sessions/providence inquiry was conducted in accordance with law and regulation and complied with legal requirements; the hearing advisor accepted and found the respondent’s [the applicant's] admission provident; there were no errors that had a material effect on a substantial right of the applicant and the finding was supported by a greater weight of evidence than supports a contrary conclusion; and the Superintendent was not bound by the determination.  The Superintendent was advised that in addition to his other responsibilities, which were outlined in the memorandum, he had to reach his conclusions based upon his evaluation of the record.

10.  The Superintendent was advised that his responsibilities included approving a finding of the violation if it was supported by a greater weight of the evidence than supported a contrary conclusion; or disapproving a finding of a violation for any reason he may deem appropriate.

11.  The Superintendent was advised that Army Regulation 210-26, paragraph 
6-16, provided that a cadet who was found to have violated the Cadet Honor Code shall normally be separated from the USMA; however, he had granted authority to retain a cadet who had violated the Cadet Honor Code.  Accordingly, if he approved the findings in this case he had to decide whether to exercise his authority to retain the applicant in the Corps of Cadets.

12.  The Superintendent was also advised he could impose punishment upon the applicant under Army Regulation 210-26, paragraphs 6-4 and 6-16, whether he decided to retain the respondent or not.  Such punishment, he was advised, included, admonition, reprimand, restriction to limits, deprivation of privileges, reduction in or withdrawal of cadet officer or noncommissioned officer rank, demerits, punishment tours, fatigue punishments, loss of leave, turn back to the next class, suspended separation, and suspension from the USMA.

13.  The Superintendent was further advised that if he decided not to retain the applicant, the record and his recommendations concerning the applicant's separation from the USMA must be forwarded to Headquarters, Department of the Army for final action.  If he decided to recommend separation and discharge from the service, he could recommend discharge with either an Honorable Discharge or a General Discharge (under honorable conditions).

14.  A recommendation was made to the Superintendent that he should review the proceedings and withhold taking action on the case pending receipt of the applicant's reply, if any, and after a personal interview with the applicant, if one was requested.  Proposed implementing documents for his action would be provided at that time.  The memorandum was forwarded to the Superintendent for action on 19 May 2006, under recommendation and signature by the Commandant of Cadets that the applicant be separated.  No recommendation was made for his enrollment in the AMP.

15.  The applicant acknowledged receipt of the Commandant's, the Commandant of Cadet's and the SAH's recommendations and legal review on 19 May 2006.  In an undated/unsigned statement the applicant prepared for the Superintendent, Subject: AMP, the applicant stated, "I am aware that I turned myself in for a violation of the Cadet Honor Code and that the consequences of such a violation, as recommended by the Cadet Advisory Board, are typically separation from the Academy.  I have been ashamed of myself since the day I violated the code, and would give anything for that moment in my life back.  My chain of command still sees potential in me and I have no desire greater than to someday graduate from this institute.  This is why I would like to be considered for the Army Mentorship Program.  My chain of command will attest to my service these past four years, and my actions since my violation, and I would like the opportunity to proved myself, and be enrolled in the AMP."

16.  On 22 May 2006, the Superintendent of the USMA made his decision in the applicant's case.  The Superintendent:  approved the findings of the Honor Investigative Hearing - that the applicant had violated the Cadet Honor Code by cheating and by lying; ordered that the applicant be separated from the USMA, transferred to the Reserve in pay grade E-4 for three years, and ordered to active duty for three years, in accordance with Army Regulation 612-205, Table 3, Rule 7; that the applicant be immediately suspended from the USMA until final action in his case was taken by Headquarters, Department of the Army; and that his pay and allowances be stopped upon his departure from West Point. The applicant was authorized leave of absence without pay and allowances pending his separation.

17.  On 23 May 2006, the BTO, completed a DD Form 785, Board of Disenrollment from Officer Candidate – Type Training.  In Section IV – Evaluation to be Considered in the Future for Determining Acceptability for Other Officer Training, he checked block number five:  "Definitely Not Recommended."  The BTO completed this form in behalf of the Commandant of Cadets as indicated by the "FROM:" address shown on the form itself.

18.  On 21 June 2006, the Principal Deputy Assistant Secretary (Manpower and Reserve Affairs), approved the Superintendent's recommendation to separate the applicant from the USMA.  He directed that the applicant be transferred to the Reserve in pay grade E-1 for three years and ordered to active duty for three years in accordance with DoD Directive 1332.23, paragraphs 6.1.1.3 and 6.1.2.4 and Army Regulation 612-205.

19.  On 23 June 2006, Orders 174-01, were published by Headquarters, United States Military Academy, West Point, New York, relieving the applicant from active duty as a USMA Cadet, not by reason of physical disability and assigning him to the USAR Control Group (IRR (Individual Ready Reserve)), in the pay grade E-1, for a period of three years, and ordered to active duty for three years  The applicant's name was dropped from all USMA rolls on 20 June 2006.

20.  On 5 September 2006, AHRC-OPD-RD Orders A-09-690961 were published by the US Army Human Resources Command, St. Louis, Missouri.  The applicant was ordered to active duty for three years on 13 September 2006 in pay grade E-2 to fulfill his active duty requirement.  The applicant's three years active duty service requirement was projected to expire on 12 September 2009.  On 6 September 2006 these orders were amended to change his active duty pay grade to E-1.

21.  On 4 October 2006, the Acting Assistant Secretary of the Army (ASA) for Manpower and Reserve Affairs (M&RA) revoked the memorandum date 21 June 2006 in which he had directed the separation of the applicant and directed his transfer to the Reserve in pay grade E-1.  In this new memorandum, the Acting ASA (M&RA) approved the separation of the applicant; however, he directed that he would be transferred to the Reserve in pay grade E-2 for three years and ordered to active duty for three years.
22.  In the processing of this case, an advisory opinion was requested of the Office of the Deputy Chief of Staff for Personnel.  The Chief, Officer Division, Office of the Deputy Chief of Staff for Personnel, provided an opinion on about 15 June 2007.  In this advisory opinion, the Chief, Officer Division, stated the doctrine of administrative finality recognized that once a final administrative act had been ordered or approved by an official legally competent to do so, that official has exhausted his power to act in connection with that case.  When the ASA (M&RA) made a decision on the applicant's case, this decision became final.  The applicant was ordered to active duty in the pay grade E-1 on 5 September 2006 [actually 13 September 2006].  The doctrine of administrative finality precluded the ASA (M&RA) from reconsidering his prior decision.

23.  The Chief, Officer Division, however stated there were four narrow exceptions to the doctrine of administrative finality which included evidence of fraud, mistake of law, mathematical miscalculation, and substantial new evidence discovered contemporaneously with or within a short time following the action in question.  In this case, new evidence was presented in a timely manner so, the ASA (M&RA) decided to modify the applicant's enlisted pay grade to E-2.

24.  In-so-far as the applicant's contention the DD Form 785 should be corrected to show he was recommended to be considered in the future for other officer training, and in this case, to be allowed to return to the United States Military Academy (USMA) through successful completion of the AMP, the Chief, Officer Division, opined no action was required by this Board.  The Commandant and the Superintendent recommended separation and did not offer the applicant the opportunity to participate in the AMP.  Neither the Commandant nor the Superintendent is required to provide justification for their decisions.  It was noted the applicant met with both the Commandant and the Superintendent.  In these meetings they had the opportunity to provide him reasoning behind their decisions to separate him and not offer him an opportunity to participate in the AMP.

25.  The applicant contends that there is an error on the DD Form 785 and the BTO's decision to mark the response, "Definitely Not Recommended" is an injustice. The Chief, Officer Division, explained the process and has opined there is no further action required by this Board.  At the time the applicant's case was being processed, and before the Commandant's and Superintendent's action, the BTO had recommended the applicant should be afforded the opportunity to participate in the AMP; however, the Commandant and the Superintendent disagreed with the applicant's tactical chain of command.  The Superintendent ultimately decided not to offer the AMP to the applicant.  The BTO's recommendation had nothing to do with the subsequent DD Form 785 which is filled out after the Superintendent renders his final decision and that is why it reflects, "Definitely Not Recommended."

26.  To the applicant's contention he should be awarded a diploma or a certificate of completion of academics from the USMA, the Chief, Officer Division, has advised that the applicant has not exhausted his administrative remedies.  The applicant is not entitled to a diploma; however, he is eligible to receive a certificate of completion.  The applicant needs to request a certificate of completion from the Dean of the Academic Board, Attention:  Dr. D****n, Building 600, Room 107, West Point, New York 10996.

27.  To the applicant's contention he should have reentered the service in pay grade, E-5, the Chief, Officer Division, has opined that no further action is required of this Board.  When the applicant was separated, the ASA (M&RA) rendered the proper decision when he separated the applicant and ordered him to active duty as an E-2.  Before providing the advisory opinion, the Chief, Officer Division, coordinated with other offices (the Defense Finance Accounting Service, other offices within the Office of the Deputy Chief of Staff, G-1, and the Office of the Judge Advocate General) and discussed the interpretation of Army Regulation 210-26 and DoD Directive 1332.23.  The Chief, Officer Division, found no basis to support the applicant's request that he should have been reentered into service as an E-3, E-4, or as an E-5.

28.  At the time of the applicant's enrollment in the SMP, he was serving in the rank and pay grade, Private E-2.  With his enrollment in the SMP, he was advanced to pay grade E-5, in accordance with National Guard Regulation 600-100, paragraph 13-4.  This paragraph states that "Participants in the Reserve Officer Training Course (ROTC) may, if otherwise qualified, be enlisted in the ARNGUS as officer trainees and if serving in a pay grade lower than E-5 such participants shall be promoted to Sergeant E-5."

29.  Paragraph 13-6b (4), in the same regulation, states, "the Cadet understands that his or her promotion to Sergeant E-5, if awarded as a result of becoming a SMP participant, is effective only so long as he or she continues to be a SMP participant.  Should a cadet cease to be a SMP participant or to be disenrolled for any reason from SROTC, the cadet will revert to the grade held immediately prior to promotion to E-5 as a SMP participant."

30.  The applicant contends that his ETS should be adjusted to 27 February 2008 as opposed to the currently established 23 May 2009; however, it appears that based on enlistment contracts signed by the applicant, his correct ETS is 19 September 2001.

31.  On 15 June 2007, the advisory opinion was provided to the applicant and his counsel for their information and possible comment prior to the Board's consideration of his case.  On 14 August 2007, applicant's counsel provided a six and a half page rebuttal to the advisory opinion in which he provided additional evidence and argument for three of the issues and the removal of one.

32.  In the rebuttal, counsel noted that every single officer and cadet in the applicant's chain of command had written recommendations that not only requested that he receive AMP but in some the request was not to separate the applicant at all but rather extend his tenure at the USMA to observe him and give him a chance.  Three officers in his chain of command supported the applicant's request that he be afforded AMP.  The Commandant's SAH recommended AMP for the applicant as well.  The Commandant and the Superintendent did not record any reason, justifications or even give reflections as to why they went against their entire chain of subordinates in giving the applicant the most severe punishment they had available to award.

33.  Counsel acknowledges that the applicant did meet with the Commandant and with the Superintendent and these officers had the opportunity to provide the reasoning behind their decisions to separate the applicant and not offer him the AMP option; however, they did not take advantage of it.  The applicant was not told he was not going to be given AMP and mistakenly expected to be signed up for it in the following administrative process.  He adds that these meetings are fraught with emotion for at least one side and the senior officers may hold some anger, disdain, or what-have-you; memories may be tinged with these emotions – that is why the decisions and the reasons behind them should be recorded – with that omission, there is more support for the possibility of mistake and oversight in the matter, which would normally benefit the applicant in this situation.

34.  Applicant's counsel states that the advisory opinion states that the BTO recommended AMP to the Commandant, his next higher superior, and the Superintendent.  But then the advisory opinion states that the BTO's recommendation had nothing to do with the DD Form 758 and it was filled out after the Superintendent rendered his final decision and that is why it reflects, "Definitely Not Recommended."  He continues that the Superintendent appears to have affirmed the Commandant's recommendation of separation and no AMP, but where in that documentation does it lead one to believe that the petitioner should never be an officer?

35.  In-so-far as entries made on the DD Form 785, counsel states, in effect, it is obvious that from inconsistencies of the earlier recommendations mistake were made.  The BTO could not possibly mean that the staff of the USMA changed its collective minds about the applicant’s future potential to the Army because the Superintendent did not offer him AMP.  This, counsel states, is truly an injustice and in reality, the advisory opinion supports the removal of the DD Form 785 more than it supports "no action required."

36.  The applicant and counsel acknowledge that the applicant cannot receive a diploma from the USMA but can obtain a certificate of completion; thus, this issue is removed by the applicant from his application to the Board and will no longer be discussed further in this Record of Proceedings

37.  Counsel argues that the applicant should have been sent to active duty in a rank higher than an E-2 for two reasons:  he had prior service that demonstrated he had been promoted to Private First Class, E-3, before his service in the SMP and then Sergeant, E-5, before his enrollment in the USMA; and that the Department of the Army, G-1, had incorrectly read and applied DoD Directive 1332.23 and Army Regulation 612-205 regarding the separation from the USMA of upperclassmen with prior service.  The applicant, he stated, had provided proof he was a Private First Class in the Army Reserve and a Sergeant in the Army National Guard before his entry into the USMA.  This documentation, he stated, was ignored be the Department of the Army, G-1; and, the most egregious point in this issue is the fact that the Department of the Army, G-1, and the Office of the Judge Advocate General have continued to ignore the incorrect reading of DoD Directive 1332.23 and Table 3 of Army Regulation 612-205.  The applicant should never have been sent back to the enlisted ranks at lower than E-4 because only sensible reading of the directives and regulations is that young people with prior service who enter service academies and unfortunately get disenrolled for certain reasons should either be reinstated at their prior enlisted rank or at the minimum rank that others with no prior service are sent into the enlisted ranks with.  Any other interpretation, he concludes is truly obscene and cannot be countenanced.

38.  Counsel concludes his rebuttal to the advisory opinion by summarizing his desired end state.  He asks that the ABCMR redress the egregious wrongs and injustices and that the applicant be put in a position that he should have been in before his request to the Board.  He again requests that the applicant be given enrollment in the AMP; removal of the DD Form 758 from the applicant's service record; and that the record be corrected to show that the applicant was transferred to the Army Reserve in the rank and pay grade of Specialist, E-4, on 6 September 2006 and Sergeant on 1 March 2007, with applicable back pay for all periods in question.  If the applicant's requests cannot be made then, he respectfully asked that the entire Table 3, Army Regulation 612-205, be misread and that the Board correct the applicant's record with an expiration term of service date of 27 February 2008 as opposed to the current expiration term of service date of 23 May 2009.

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed two honor offenses – by cheating and failing to complete a two mile run during his APFT with the intent of gaining an unfair advantage, or deceive or mislead another person; and then by lying by stating to another cadet that he had completed the entire two mile course on the APFT knowing that the statement was false or misleading at the time it was made or not believing it to be true and making it with the intent to deceive or mislead another person.

2.  The applicant admitted his violations of the Honor Code to a classmate then, self-reported.  He was investigated for these violations and after his breeches of honor were reviewed and considered by the Cadet Advisory Committee, the Committee unanimously voted to recommend to the Superintendent that the applicant should be separated from the USMA.  The Cadet Advisory Committee made no recommendation for the applicant's enrollment in the AMP.

3.  Retention of the applicant at the USMA and that he be allowed to graduate, that he be commissioned, and that he be allowed to serve as an Army commissioned officer was recommended by a number of the applicant's classmates.  The classmates who recommended his retention also identified themselves as having a personal, friendly relationship with the applicant and in all probability did not have the same information available to them as that which was available to and which was considered by the Cadet Advisory Committee.  These individuals' perspective was different from that of the members of the Cadet Advisory Committee and their objectivity also may have been clouded by their friendly relationship with the applicant.  Members of the Cadet Advisory Committee felt that the applicant had failed to uphold the core value of West Point:  Honor, and had broken a bond connecting him to the "Long Grey Line."

4.  Before the recommendation of the Cadet Advisory Committee was submitted to the Superintendent for a decision, a legal review was conducted and a memorandum was prepared for the Superintendent.  He was advised of his responsibilities and that he had to reach his conclusion based upon his evaluation of the record.  He was further advised he had the authority to retain the applicant and about the punishments that he could impose upon the applicant for the honors violation.  These punishments included:  admonition, reprimand, restriction to limits, deprivation of privileges, reduction in or withdrawal of cadet officer or noncommissioned officer rank, demerits, punishment tours, fatigue punishments, loss of leave, turn back to the next class, suspended separation, and suspension from the USMA.

5.  Several active duty officers also recommended that the applicant not be separated from the USMA; however, it appears that the Commandant and the Superintendent decided to support the decision of the Cadet Advisory Committee instead and decided the applicant should be separated for his honors violations.

6.  The Superintendent was advised and was fully cognizant that a cadet who was found to have violated the Cadet Honor Code shall normally be separated from the USMA.  He was reminded that he had granted authority to retain a cadet who had violated the Cadet Honor Code in an earlier case; however, full details pertinent to that case are not available and it must be recognized that all cases, although they may have similarities, must be decided on their own merits and the decision reached in the end may be totally different.

7.  In this case, after considering all the available evidence, the applicant's statements, and the statements of support, the Superintendent exercised his discretion and approved the findings of the Honor Investigative Hearing - that the applicant had violated the Cadet Honor Code by cheating and by lying; he ordered that the applicant be separated from the USMA, transferred to the Reserve in pay grade E-4 for three years, and ordered to active duty for three years, that the applicant be immediately suspended from the USMA until final action in his case was taken by Headquarters, Department of the Army; and that his pay and allowances be stopped upon his departure from West Point.  The Superintendent, in exercising his discretion did not recommend the applicant be enrolled in the AMP.  In exercising his discretion the Superintendent of the USMA is not required to provide a justification for his decision.

8.  The Board acknowledges that the Brigade Tactical Officer recommended that the applicant be enrolled in the AMP on the Chain of Command Recommendation Worksheet for Honor, Conduct, and Regs, USMA Cases.  This recommendation was made by him as a member of the Cadet Advisory Board.  Although the same officer completed and signed the DD Form 785, he was acting in his capacity as a representative of the Commandant of Cadets [as determined from the FROM:  address on the form itself] and he completed the form to reflect the decision of the Superintendent after he had arrived at his decision to separate the applicant without a concurrent offer of his enrollment in the AMP.  The Brigade Tactical Officer's recommendation and the block checked on the DD Form 785 are not inconsistent and therefore, no correction to this form is required.

9.  Based on all the available evidence, the applicant is not entitled to a reversal of the decision to not offer him enrollment in the AMP.  Because the applicant is not entitled to a reversal of the decision not to enroll him in the AMP, he will not be considered in the future for other officer training and he is not eligible to return to the USMA to pursue an Army commission.

10.  The Principal Deputy ASA (M&RA) approved the Superintendent's recommendation to separate the applicant from the USMA.  He directed that the applicant be transferred to the Reserve in pay grade E-1 for three years and that he be ordered to active duty for three years.  Later, the Principal Deputy ASA (M&RA) in his position of the Acting ASA (M&RA) amended the order and directed that the applicant be transferred to the Reserve in pay grade E-2 for three years and that he be ordered to active duty for three years.  The applicant's name was dropped from all USMA rolls on 20 June 2006.

11.  On 5 September 2006, orders were published by the US Army Human Resources Command, St. Louis, Missouri.  The applicant was ordered to active duty for three years on 13 September 2006 in pay grade E-2 to fulfill his active duty requirement.  The applicant's three years active duty service requirement is projected to expire on 12 September 2009.

12.  Applicant's counsel and the applicant contend that his obligation should have expired on 7 February 2008.  They based this contention on the obligation the applicant incurred by his enlistment in the Army Reserve on 28 February 2000 for 8 years; however, they overlooked the 8 year enlistment contract the applicant entered into as an Army Reserve cadet on 19 September 2001.  The applicant's current service requirement as a result of contractual obligations will expire on 18 September 2009, six days after the applicant completes his three year active duty service requirement.

13.  The evidence also shows that the applicant enlisted in the Army National Guard on 26 October 2001 for a period of 6 years, 4 months, and 2 days.  The applicant was released from this obligation when he was discharged from the National Guard on 24 May 2002.

14.  The applicant and his counsel contend that the applicant should have reentered the service in pay grade, E-5.  When the applicant was separated from the USMA, the ASA (M&RA) rendered the proper decision when he separated the applicant and ordered him to active duty as an E-2.  With his enrollment in the SMP, the applicant was advanced to pay grade E-5, in accordance with applicable regulation.  The applicant knew or should have understood that his promotion to pay grade E-5 which resulted from becoming a SMP participant was effective only so long as he continues to be a SMP participant.  When he ceased to be a SMP participant or for any reason, he was required to be reverted to the grade held immediately prior to his promotion to pay grade E-5 as a SMP participant.  The applicant was correctly ordered to active duty in pay grade E-2 and he is not entitled to an adjustment of his active duty service entry pay grade.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  __X____  __X_____  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.




      _______ _   __X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070006032



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ABCMR Record of Proceedings (cont)                                         AR20070006032



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