IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100021648


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:

1.  The applicant requests a 26 May 2009 letter of reprimand (LOR) be removed from his Official Military Personnel File (OMPF) or, in the alternative, transferred from his OMPF performance fiche to his restricted fiche.

2.  The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states:

a.  The LOR is based on unsubstantiated information.

b.  A legal review found the criminal investigation incomplete.

c.  The applicant did not knowingly submit false documents.

2.  Counsel further states:

   a.  The Federal government, in 2004, began an investigation into Saint Regis University for selling fraudulent college degrees.  The applicant was among a number of service members who were determined to have purchased degrees from Saint Regis University.

   b.  The U.S. Army Criminal Investigation Command (USACIDC, also known as CID) conducted investigations into Soldiers who obtained degrees from Saint Regis University.  The applicant's personnel records were reviewed by the CID and an informal report was generated.  The report was forwarded to the applicant's chain of command.

   c.  The Staff Judge Advocate (SJA), 1st Mission Support Command, Fort Buchanan, PR, conducted a legal review of the CID investigation.  The legal review, dated 27 October 2008, concluded:

       (1)  CID evidence consisted of email between Saint Regis University and the applicant, payment of $1,300 by the applicant, receipt of a 1997 Bachelor of Science (B.S.) degree in Biology and a 2000 Master of Arts (M.A.) degree in Marketing, and submission of the B.S. and M.A. degrees for inclusion in his OMPF.
   
       (2)  CID stated the degrees were "false," the applicant knew they were "false," and he committed misconduct when he submitted them for inclusion in his OMPF.

       (3)  There is no evidence to prove the applicant knew the degrees were false, that he intended to perpetrate a fraud, make a false statement, or commit other unspecified misconduct when he submitted them for filing in his records.

       (4)  The legal review recommended no Uniform Code of Military Justice (UCMJ) action be taken against the applicant, only that the degrees be removed from his OMPF.

	d.  On 26 May 2009, a General Officer in the applicant's chain of command issued the applicant an LOR for knowingly:

       (1)  purchasing fraudulent degrees, and
   
       (2)  submitting false information to the U.S. Army Human Resources Command (HRC) for inclusion in his OMPF.

3.  Counsel concludes:

* although specific intent can be inferred, there is no evidence the applicant knew his degrees were false
* the CID investigation was based solely upon a review of the applicant's records and emails provided by Federal investigators; he was never interviewed
* The SJA review supports the applicant

4.  Counsel provides a DD Form 149 (Application for Correction of Military Record) with an 8-page supplemental statement and enclosures A through H.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a master sergeant (MSG)/E-8 with service in the:

* Army National Guard (ARNG) from 17 September 1986 to 14 September 1987
* Regular Army (RA) from 15 September 1987 to 3 December 1991
* U.S. Army Reserve (USAR) not in an active duty status from 4 December 1991 to 13 July 2002
* USAR Active Guard Reserve (AGR) program from 14 July 2002 to present

2.  During his military career, the applicant completed various in-service and correspondence courses.  He also completed coursework at various civilian institutions in such subjects such as:

* Writing Lab I – Grade R, minimum level of proficiency not met for developmental courses
* Elementary Algebra – Grade C+
* Beginning Piano – Grade B+
* Orientation – Grade B
* College Reading – Grade B
* Writing Lab I – Grade W, withdrew
* Keyboarding – Grade WU, withdrew unofficially; counts as failure
* Business Law – Grade W
* Intro Paralegalism – Grade W
* Fitness for Life – Grade WU
* Developmental Competence in Writing, Grade R
* Introductory Mathematics – Grade B
* General Psychology – Grade C
* Modern Biology – Grade D
* Modern Biology II – Grade F
* Modern Biology II – Grade W

3.  In 2003, the applicant corresponded by email with Saint Regis University, a non-accredited diploma mill, about obtaining a B.S. degree and an M.A. degree and having the degrees backdated to 1997 and 2000, respectively.  The applicant was told to remit $1,300.00 for both degrees.  In accordance with his instructions and his payment of $1,300.00, he was provided a B.S. degree in Biology, dated 5 June 1997, and an M.A. degree in Marketing, dated 5 June 2000.

4.  As part of a Federal criminal investigation, the CID began an investigation into the applicant's degrees on 8 April 2008.  The investigation revealed the applicant did not have a degree from the only accredited institution recorded on his military educational file – Universidad Interamericana de Puerto Rico (UIPR) – yet his OMPF contained a B.S. degree and an M.A. degree, both from the bogus Saint Regis University.  The applicant was charged with fraud, wire fraud, mail fraud, conspiracy, and making a false statement.  The investigation was concluded on 16 December 2008.

5.  On 26 May 2009, the Commanding General, 1st Mission Support Command, Fort Buchanan, PR, issued the applicant the following LOR:

SUBJECT:  Letter of Reprimand

(1)  I am in receipt of a final CID Investigation Report which finds, among other things, that on or around June 12, 2003 you purchased the following fraudulent degrees:  Bachelor of Science and a Master of Arts and that you later submitted this information, known to you to be false, to HRC in order to have it recorded in your personnel record.

(2)  As a senior noncommissioned officer in the United States Army, I expect you to set standards for subordinate NCOs and enlisted personnel.  Your actions, of purchasing and using fraudulent degrees, that may have been considered for personnel actions to include promotion consideration, lead me to question whether you can be a role model for other Soldiers.  Your behavior indicates that you cannot be trusted, have little regard for other Soldiers, and you are unconcerned about compliance with applicable laws and regulations.  Your conduct is inexcusable and a disgrace to the United States Army.

(3)  This reprimand is imposed pursuant to Army Regulation (AR)
600-37.  It is administrative in nature and is not a punishment under the Uniform Code of Military Justice.  I am considering whether or not to file this memorandum in your military personnel records jacket (MPRJ), or recommend it to be filed on your OMPF IAW [in accordance with] AR 600-37, Para 3-4.  You are hereby afforded the opportunity to respond to this reprimand.  Your response or rebuttal, if any, will be considered in my filing determination and will also be included with this memorandum, wherever filed.

(4)  You will acknowledge receipt of this memorandum thru the enclosed acknowledgment of receipt.  Any response, rebuttal, or any other matter you would like for me to consider, should be forwarded to me within ten (10) days of receipt.  No extension will be allowed.  The rebuttal will be filed with the Office of the Staff Judge Advocate.

6.  The applicant submitted two responses to the LOR.

	a.  In a 1 June 2009 memorandum, he requested that the LOR not be filed in his MPRJ or OMPF.  His rationale was:

* he had 22 years of unblemished service
* he was naïve, ignorant, and gullible, but did not commit fraud
* he only contacted Saint Regis University out of curiosity
* he was told all of his prior college transcripts, his military training, and his life experiences would qualify him for a degree
* he thought Saint Regis University's advice was too good to be true, but it must be true as they advertised on the internet
* once he contacted Saint Regis University, he was in their clutches and could not escape without paying for the two degrees
* he had the degrees entered in his OMPF because he truly believed they were valid, and he lacked the sophistication to recognize the scam
* he does not possess a fraud personality trait; he only wanted the degrees placed in his OMPF, not for promotion potential, but to show "that he had some college training"

   b.  In a memorandum, dated 15 June 2009, he sought reconsideration of the Commanding General's filing decision stating:

* the filing decision would end his career
* the CID report "coincided in its finding that [he] had not committed a crime and there was no evidence that skewed towards any intent…to defraud anyone, much less the US Army"
* he didn't need those degrees to get promoted; he had bona fide college credits in his records from credited [sic] universities
* he only placed the degrees in his OMPF in order to complete the record
* the LOR is too harsh because he is the victim
* everybody makes mistakes


7.  On 4 December 2009, the applicant requested the Department of the Army Suitability Evaluation Board (DASEB) remove the LOR or transfer it to the restricted portion of his OMPF.  On 11 March 2010, the DASEB denied his request.

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It further states:

	a.  Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

	b.  Letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted fiche.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through counsel, requests an LOR be removed from his OMPF or, in the alternative, transferred from his performance fiche to his restricted fiche.

2.  The applicant bought a bogus B.S. degree in Biology and a bogus M.A. degree in Marketing from an internet diploma mill for $1,300.00.  He then placed these bogus degrees in his OMPF where he could possibly benefit from them during future personnel actions.

3.  The applicant, a senior noncommissioned officer, argues he didn't know anything was wrong; that even though he thought it was "too good to be true," he was just too "naïve, ignorant, and gullible" to realize it wasn't true.  He states it wasn't his fault that he bought the bogus degrees; once he became a target of the Saint Regis University scam artists, he ended up buying what he thought were legitimate degrees awarded for past academic achievement, military education, and life experiences for $1,300.00.

4.  The applicant's arguments and contentions are unpersuasive.  He had prior experience taking community college and university-level courses.  He therefore knew what kind of effort was involved in obtaining a legitimate baccalaureate degree; he had to know that degrees are awarded upon successful completion of a 2-year (Associate of Arts/Science), 4-year (Bachelor of Arts/Science), and post-graduate (Master of Arts/Science) course of study.

5.  It is noted the applicant bought a B.S. degree in Biology.  This supports the notion he must have known he was not qualified for a degree in that discipline because he was not a successful student of biology.  His records show he received a grade of "D" in Modern Biology I, and an "F" in Modern Biology II, followed by a "W" when he attempted a re-take it.

6.  The applicant's LOR is appropriate and he has not shown otherwise.

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)                                         AR20100021648



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021648



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1