IN THE CASE OF:	  

		BOARD DATE:	    8 September 2011

		DOCKET NUMBER:  AR20110004556 


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 removal/expungement of a Service School Academic Evaluation Report (AER) (DA Form 1059), dated 18 April 2008 and authenticated in March 2009, and a general officer memorandum of reprimand (GOMOR), dated 24 November 2008, from her official military personnel file (OMPF).

2.  She states the leadership and staff officers in charge of evaluating her case have failed to recognize the health limitations she had while performing at the Intermediate Level Education (ILE).  These leaders and evaluators have gone to the regulations and used men's logic to discredit the arguments of failure that has caused her to wish she was no longer in this world.  It has been very hard to read their conclusions over her case when they have forgotten that every individual is a different self and medications can provide a variety of different reactions to whoever is taking them.

3.  She also states the GOMOR and AER have served their purpose to hinder her promotion capabilities.  She will leave the Army soon due to her twice non-selection to lieutenant colonel (LTC).  She believes it is very much unfair that these records follow her for the rest of her life because current leaders want to be harsh and provide medical arguments without having a clue of what she was going through as an individual, as a person.  She does not have additional evidence to support or justify altering her records.

4.  She further states that she was in a stupor-like state when writing this paper.  She served the Army for many years.  She was trusted and empowered with many responsibilities.
5.  She provides:

* Command and General Staff College (CGSC) Bulletins Number 12 and 20, dated 1 November 2005
* Parameters article, Autumn 1998, titled, "Military Theory and Information Warfare"
* "Computer Age and Technology is Not Enough" essay, dated 11 March 2008
* Army Regulation 15-6 Investigating Officer (IO) Appointment Letter
* Standard Form 513 (Medical Record - Consultation Sheet), dated 12 March 2008
* DA Form 1574 (Report of Proceedings by Investigating Officer), dated 26 March 2008
* Possible Academic Misconduct memorandum, dated 17 March 2008
* Four DA Forms 2823 (Sworn Statement)
* Two DA Forms 3881 (Rights Warning Procedure/Waiver Certificate)
* Memorandum for Record (MFR), dated 2 May 2008
* Email correspondence to and from the ILE and DCL (Department of Command and Leadership) instructors, May 2008
* Six Standard Forms 600 (Health Record - Chronological Record of Health Care), dated 12 March; 26 June; and 7, 10, 15, and 24 July 2008
*  Comprehensive Psychiatric and Neurological Examination Results, dated 4 September 2008
* GOMOR, dated 24 November 2008
* Her rebuttals, dated 12 December 2008
* Dismissal from the ILE Course memorandum, dated 29 January 2009
* Information and medication guide for Seroquel
* Her prescription instructions
* Information for the drugs Seroquel and  Zolpidem
* Sleep Apnea diagnosis, dated 21 April 2009.
* 2010 Memorandum to the Chief, Office of Promotions, requesting an educational waiver for promotion consideration to lieutenant colonel

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows she was appointed in the U.S. Army Reserve in the rank of captain on 14 September 1997, with prior enlisted and commissioned service.  She was promoted to major on 17 July 2003.

2.  On 17 March 2008, the Director, CGSC, was advised of a case of suspected academic dishonesty regarding the applicant.  The ILE instructor stated that upon grading the applicant's H100 argumentative essay, he noticed the second page contained words that did not appear to be hers.  An internet research revealed that 25 lines of the 81 lines in the essay, as direct quotes and almost direct quotes, or 30 percent of the paper, of an article in the August 1998 issue of Parameters.  The applicant did include seven citations from four other sources in her essay.  The Parameters article was not in her bibliography.  When questioned, the applicant refused to make a statement.  The instructor requested initiation of appropriate action to investigate the case of potential academic dishonesty.

3.  A DA Form 1574, dated 26 March 2008, shows it was found that she had committed academic misconduct by plagiarism.  The key points stated were:

* that her H100 argumentative essay contained six specific examples of quoted material obtained from the Parameters article
* throughout the investigation she failed to make a sworn statement or provide justification in her own behalf

It was concluded that she understood the definition of plagiarism and blatantly submitted that writing assignment as her own work without properly reflecting the source.  She had not conducted herself as a professional military field grade officer or an individual of high moral character.

The following was recommended:

* her dismissal from the ILE Course with no opportunity to complete it again
* her chain of command and Human Resources Command (HRC) career managers be informed of the investigation and that she not be allowed to attend any military or funded civilian schools in the future
* a GOMOR be placed in her permanent file

4.  In a DA Form 2823, dated 3 April 2008, the H100 instructor cited information pertaining to the history essay assignments with copies of the slides he used in a presentation entitled "How to Write an Argumentative Essay."

5.  In a DA Form 2823, dated 3 April 2008, the DCL instructor cited information pertaining to CGSC ethics policies (included citing sources and plagiarism).

6.  A DA Form 3881, dated 3 April 2008, advised the applicant of her rights during an investigation by the CGSS for the offense of plagiarism.  She elected not to be questioned or to say anything.

7.  An AER, dated 18 April 2008, shows she was dismissed from the ILE Course for academic misconduct, with no opportunity to complete the course by any means in the future.

8.  In an MFR, dated 2 May 2008, LTC K____, the Clark Health Clinic Officer in Charge, stated the applicant had consulted him regarding her insomnia and the problems it was causing with regard to the academic requirements.  He prescribed an anxiolytic to aid her in getting to sleep.  Two-to-4 weeks later, she described little to no relief of her symptoms when using the medication.  She was then directed to the health clinic for further evaluation.

9.  In an email, dated 2 May 2009, Dr. B____, a staff psychiatrist of the Kenner Army Health Clinic, informed the IO that it was his professional opinion that the applicant's act of omitting citations from her written report was caused by confusion, a widely recognized adverse side effect of Seroquel.

10.  In a DA Form 2823, dated 7 May 2008, the DCL instructor stated that the staff psychiatrist at Kenner Army Health Clinic provided a medical opinion concerning the mental health of the applicant.  He also stated that the applicant told him after the incident that she had been having problems sleeping.  He recommended the applicant get some assistance through health care providers and she stated that was already in process.

11.  In a DA Form 2823, dated 13 May 2008, the H100 instructor stated that the applicant included 7 citations in her paper, so she was not confused when she wrote those citations.  He also knew that 31 percent of the paper was a direct lift from a 1998 Parameters article.  He further stated that he was unaware of any confusion exhibited by the applicant in his presence.  As her instructor, there was no doubt in his mind that the applicant plagiarized 31 percent of her argumentative essay.

12.  In an email, dated 19 May 2008, Dr. B____ informed LTC K____ that Seroquel could not likely have caused confusion so severe to account for omitted citations.

13.  On 24 November 2008, she was issued a GOMOR for violating the CGSC Academic Ethics Policy by plagiarizing her H100 paper.  The GOMOR stated her failure to embody professional military standards called into question the special trust reposed in her as a commissioned officer.  The Commandant, CGSC, recommended the GOMOR be filed in the applicant's local military personnel file. The GOMOR was referred to the applicant for her comments before any final decision.

14.  In her reprimand rebuttal, dated 12 December 2008, she stated that if the GOMOR is placed in her OMPF her Army career would be ended because of an academic incident that happened while she was cognitively impaired by a combination of medically-profound insomnia and powerful mind- altering prescription drugs she was taking at the direction of an Army physician.  She requested consideration of the mitigating circumstances of her health and the effects of the prescription drugs at the time of the incident by reducing the severity of the commandant's action.  She also stated that the facts were:

* her well-documented history of several years of medically-profound insomnia required treatment by Army physicians
* she was suffering a recurrence of severe insomnia while at the ILE course
* she sought treatment by two Army physicians during the ILE course for her severe insomnia
* she was prescribed two drugs of increasing cognitive impact while at the ILE course
* she was taking the second more powerful drug (Seroquel) when she prepared her history paper with the improperly cited reference
* the drug she was taking when she prepared her history paper caused a powerful mental impairment which was well documented by the published manufacturer's warnings

Her treating physician initially stated that the mental and cognitive impairment she experienced from the Seroquel when she prepared her history paper was sufficient to absolve her of culpability in failing to properly cite all references in that paper, then changed his mind.  She knows she would not have made the citing error had she not been taking the prescribed drug as directed by an Army physician.   Warnings published by the manufacturer clearly state the drug should not be taken when mental alertness was required, yet an Army physician directed she use the drug while in an academic environment when mental alertness was required.  She further requested reduction of the severity of this initial career-ending reprimand decision by choosing administrative counseling, a verbal reprimand, or written reprimand without insertion in her permanent file.

15.  In a second rebuttal to the Army Regulation 15-6 investigation, dated 12 December 2008, she stated that it was impossible to be certain of the degree to which her use of the Army-physician prescribed mind-altering drug she was directed to take at the time she prepared her history paper impaired her cognitive and mental abilities.  However, what was certain was that she was severely impaired.  While at ILE, she suffered a recurrence of the severe insomnia she had experienced on numerous occasions since 2001.  While at the course, she was first prescribed Zolpidem to help, but it was not effective.  Her treating physician ultimately prescribed and directed the use of Seroquel to address her insomnia.  She was taking Seroquel when she prepared the paper.

16.  She further stated the essay was 89 lines, not 81 lines as stated.  Therefore, 23 percent of the paper was inappropriately cited, not 31 percent.  The IO failed to mention that she correctly cited six of the seven references she used.  The IO presented a false picture overstating the extent of the un-cited material in an effort to convince her physician that the un-cited material was so massive that no amount of drug-induced confusion could have caused it.  Therefore, it must have been intentional.  In summary, her failure to properly cite the information in her history paper was an unintentional oversight caused by her inability to think properly resulting from her documented sleep deprivation, insomnia, depression, and the effects of a very strong medicine.  She did not willfully fail to attribute the Parameter references and should not receive the adverse actions recommended by the IO.

17.  On 29 January 2009, the Commandant, CGSC, directed the permanent filing of the GOMOR in the applicant's OMPF.

18.  An MFR, dated 21 April 2009, shows she was diagnosed with obstructive sleep apnea with hypersomnolence.

19.  On 18 May 2009, the Army Special Review Board (ASRB) advised the applicant that her request for removal of an administrative GOMOR would be considered by the Department of the Army Suitability Evaluation Board (DASEB). The letter further advised that the ASRB was precluded from accepting AER appeals directly from the appellant.  Her AER appeal was being returned without action for submission to the Human Resources Command.

20.  On 5 August 2009, the ASRB advised her that a review of her OMPF maintained on the interactive Personnel Electronic Records Management System failed to show the GOMOR was filed on her OMPF.

21.  On 8 July 2010, the ASRB denied her appeal of altering or removing the contested AER.

22.  On 26 June 2011, a staff member of the Army Board for Correction of Military Records verified the GOMOR was filed on the performance portion of her OMPF.

23.  She is currently serving in the Active Guard Reserve in the rank of major.

24.  There is no evidence she again petitioned the DASEB for removal of the GOMOR from her OMPF.

25.  She provided an information sheet on the drug "Seroquel."  The data stated Seroquel was indicated for treatment of depressive episodes associated with bipolar disorder, acute manic episodes associated with bipolar I disorder, and maintenance treatment of bipolar I disorder.  Warning and Precautions 5.14 stated that since Seroquel has the potential to impair judgment, thinking, or motor skills, patients should be cautioned about performing activities requiring mental alertness, such as operating a motor vehicle (including automobiles) or operating hazardous machinery until they are reasonably certain the Seroquel therapy does not affect them adversely.

26.  Army Regulation 350-1 (Army Training and Leader Development), prescribes the policies and procedures for managing and conducting Army training and education programs.  Paragraph 3-14 (Student dismissal) of this regulation specifies that under certain conditions, students may be dismissed from a course before course completion.  To protect students from unfair, illegal, or prejudicial practices, school commandants and commanders will publish policies and establish procedures to determine if students should be dismissed from training.  Students would acknowledge by endorsement within 2 duty days receipt of written notification of dismissal action.  The endorsement must indicate whether or not the student intends to appeal the dismissal action.  Appeals would be forwarded to the school commandant or commander who will refer the proposed action and the appeal to the Judge Advocate (JA) to determine legal sufficiency of the dismissal decision.  Commandants and commanders will make their final decision on dismissals after considering the supporting staff JA's recommendation.  In cases where a JA is not available, the commandant or commander will forward appeals to the commander who has general court martial convening authority for review and final decision.  Paragraph 3-18, section 8m(5) further specifies that the Commandant, CGSC, will disenroll students from the non-resident CGSOC if the student fails to comply with the college's published ethical standards.  Normally disenrolled students may not apply for reenrollment or reinstatement.

27.  CGSC Circular 350-1, chapter 3, specifies that any student who is suspected of violating the CGSC Academic ethics policy is subject to an Army Regulation 15-6 investigation that may result in appropriate disciplinary action.  Officers may be technically guilty of plagiarism and subject to the full penalties for it, even though they have the best intentions, if they don't document the sources of their information properly.  Plagiarism, in any form, is strictly prohibited.

28.  CGSC Bulletin No. 12 establishes the policy for academic performance and academic misconduct investigations, graduation boards, and student dismissal and release procedures for the CGSC.  This bulletin specifies that academic misconduct investigations will be conducted in accordance with Army Regulation 15-6.  The Deputy Commandant or Commandant, as applicable, is not bound or limited by the findings or recommendation of the investigating officer or any action or recommendation of the appointing authority.  The Deputy Commandant or Commandant may direct any final disposition that is sufficiently supported by evidence, even if such final action was less favorable than that recommended with regard to a student by the investigating officer or appointing authority.

29.  Army Regulation 600-37 (Unfavorable Information) provides the policy for authorized placement of unfavorable information in individual official personnel files.  It provides that unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

30.  Army Regulation 600-37 also provides that a GOMOR, regardless of issuing authority, may be filed in the OMPF only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.  Once an official document has been properly filed on 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.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted fiche.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  The evidence of record shows an investigation was initiated in March 2008 after the grading of her 

H100 argumentative essay.  Her instructor noted the essay contained direct or almost direct quotes from an article that appeared in Parameters.  The IO recommended her dismissal from the ILE Course and permanent placement of a GOMOR in her file.  She was advised of her rights and submitted two rebuttals in her own behalf.

2.  On an unspecified date she was issued a Service School AER, dated 18 April 2008 and authenticated in March 2009, dismissing her from the ILE Course for academic misconduct.  On 24 November 2008, she was issued a GOMOR for plagiarism.  After review of the investigation and her rebuttal, the Commandant, CGSC, advised her that he agreed with the findings and recommendations of the IO.  He directed the permanent filing of the GOMOR in her file and her permanent dismissal from the ILE Course.  She appealed the AER and her was appeal was ultimately denied by the ASRB.

3.  Based on the evidence of record and documentation she submitted, she has not met the burden of proof in this case.  She has provided insufficient evidence to show that the medicine she had been prescribed affected her judgment and thinking when she was writing her essay.  The evidence shows her due process rights were fully protected throughout the investigation and she submitted two responses in rebuttal.  It appears the Commandant, CGSC, believed that there was sufficient evidence to support the act of plagiarism.

4.  It is concluded that she did not provide sufficient evidence or a convincing argument to support her requests.  There is insufficient evidence to show the GOMOR and AER were inaccurate, unjust, flawed, or improperly imposed.  Therefore, their removal/expungement from her OMPF is not appropriate.

5.  In view of the foregoing, there is no basis for granting her requests.

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 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.

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ABCMR Record of Proceedings (cont)                                         AR20110004556



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