IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120000413 


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 to expunge the U.S. Army Infantry School (USAIS) Faculty Board's 1995 findings that he violated the USAIS Honor Code from his records.

2.  The applicant states the Faculty Board's finding that he committed plagiarism in the writing of his battle analysis was unjust and in error.  He states he is innocent of the charges leveled against him and claims the Faculty Board's decision was made without regard:

	a.  to the evidence contained in his Officer Evaluation Reports (OERs), formal assessments of his written communication skills, and testimony concerning both of these sources of evidence.

	b.  for components of the "whole-person concept."

	c.  to the well-documented difficulty he had (and admittedly 
still has to this day) with written communication.

	d.  to the conflicting documentation as to whether or not his appeal was granted or denied.  Knowing there was both a decision to grant his appeal and a concurrent one denying it, in effect, denied him the opportunity to make a fully informed decision about his future and the question of his resignation.


3.  He further states he never received a direct response regarding his appeal.  At the time of the Faculty Board's decision, he did not fight the matter further in order to avoid further destruction of his career.  Military service has always been his professional goal, it is the only job he has ever had.  He joined the Navy straight out of high school, graduated from college, and joined the Army.  He served full-time until he felt the pressure to resign in 1995, yet immediately rejoined the Army as a Reservist.  He has climbed the ranks from captain at the time of the Faculty Board's crushing decision, to lieutenant colonel.  He served in Iraq during Desert Storm and volunteered for deployment to Afghanistan in 2004.  He submits this application now because he was unable to do so by himself due to the difficulties he has with written communication to this day.  He married his wife in 2006, and it has taken him years to open up to her and he has found, with his wife's assistance, it is possible for him to attempt to correct this injustice.

4.  The applicant provides:

* a self-authored statement
* OERs, dated June 1991 through December 1995
* Written Communications Skills Tests
* Summation of Testimony for USAIS Faculty Board
* Appeal of USAIS Faculty Board
* Documents Granting and Denying Appeal
* Letters of Recommendation and Commendation
* OERs from 1996 to present day

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists his wife as Counsel, she did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of 


justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is currently serving in the U.S. Army Reserve in the rank/grade of lieutenant colonel/O-5.

3.  Having prior enlisted service in the U.S. Navy, the applicant was appointed as a Reserve Commissioned Officer of the Army on 2 June 1989.  On 27 July 1990, he successfully completed the Field Artillery Officer Basic Course.

4.  On 13 February 1995, while attending the Infantry Officer Advanced Course (IOAC) 5-94, the applicant was advised that he was suspected of committing an honor code violation.  On 15 February 1995, the applicant was ordered to appear before the USAIS Faculty Board to determine whether he violated the USAIS Honor Code.  

5.  On 24 February 1995, the applicant appeared before the USAIS Faculty Board to consider whether he should be allowed to graduate or be relieved from the course and declared a nongraduate.  After carefully considering the applicant's record, all available evidence, testimony for and against him, and the circumstances surrounding his alleged plagiarism, the Faculty Board found that plagiarism did take place in the applicant's battle analysis.  In addition, the Faculty Board considered his academic performance, attitude, motivation, demonstrated potential, and his leadership qualities.  The Faculty Board further found that the applicant was not fit for active duty and retention of a commission.  In view of these findings, the board recommended the applicant be declared a nongraduate, his commissioned terminated, and that he be separated from service.

6.  On 8 March 1995, the Director, Combined Arms and Tactics Directorate, Course Convening Authority approved only so much of the recommendation of the Faculty Board's proceedings as it pertained to the applicant being declared a nongraduate.  The applicant was further advised of his right to appeal the decision to the USAIS, Chief of Staff.

7.  On 23 March 1995, the board proceedings were reviewed by the Staff Judge Advocate and were determined to be legally sufficient.


8.  The applicant provided an undated appeal of the Faculty Board's decision to the USAIS on 24 March 1995.

9.  The applicant's record contains and he also provides a copy of two memoranda for the USAIS, Chief of Staff's signature.  A memorandum to grant approval of his appeal is unsigned.  A memorandum denying his appeal is dated 6 April 1995, and authenticated with the USAIS, Chief of Staff's signature.

10.  On 5 May 1995, the applicant acknowledged receipt of his academic evaluation report, which contained adverse information which showed he was relieved from IOAC 5-94 for violation of the USAIS Honor Code.  He also acknowledged that he understood his appeal had been denied.

11.  On 13 July 1995, the applicant was required to show cause for retention on active duty under the provisions of Army Regulation 635-100 (Officer Personnel), paragraphs 5-11 and 5-12, due to his misconduct.  Subsequently, the applicant submitted an undated voluntary request to resign in lieu of further elimination proceedings.

12.  On 14 November 1995, his request to resign in lieu of elimination was approved.  The applicant was accordingly discharged on 13 December 1995.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 4, by reason of unacceptable conduct, with an under honorable conditions (general) discharge.

13.  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 Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

14.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.  This regulation states that only those documents listed in table B-1are authorized for filing in the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of three sections:  performance, service, or restricted.  Table B-1 (Authorized Documents) shows that the proceedings and allied documents are filed in the "Performance" and "Service" folder.  Once 


official documents have been properly filed in the AMHRR, they are presumed to be objective decisions by competent authorities.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document or documents are untrue or unjust.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the USAIS Faculty Board's findings which show he violated the USAIS Honor Code should be removed from his records has been carefully considered.  However, the evidence is not sufficient to support these claims.

2.  The applicant claims the Faculty Board's finding was unjust and in error because he feels the its decision was made without regard to information contained within his OERs, formal assessments of his written communication skills, testimony concerning both of these sources of evidence, and for components of the "whole-person concept."  

3.  Evidence clearly shows the Faculty Board carefully considered the applicant's record, all available evidence, testimony for and against him, and the circumstances surrounding his plagiarism.  In addition, the Faculty Board considered his academic performance, attitude, motivation, demonstrated potential, and his leadership qualities.

4.  The applicant's assertion that there was a decision to grant his appeal and a concurrent one denying it is not true.  His record contains a dated and authenticated memorandum which denied his appeal.  It is reasonable to presume the unsigned memorandum (resident in the applicant's AMHRR) which would have granted the applicant's appeal was prepared by a clerk to expedite the administrative process and was never intended to be included in the final disposition of the case.  Regardless, evidence clearly shows, after careful deliberation, on 6 April 1995, the appellate authority rendered a decision and the applicant's appeal was denied.  

5.  By regulation, once official documents have been properly filed in the AMHRR, they are presumed to be objective decisions by competent authorities.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document or documents are untrue or unjust.  

6.  The available evidence confirms the USAIS Faculty Board proceedings were accomplished in accordance with applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the process.

7.  By regulation, there must be clear and compelling evidence to support the removal of a properly-completed, facially-valid record from a Soldier's AMHRR.  Absent any evidence meeting this regulatory standard, there is an insufficient evidentiary basis to support removing the documents in question from the applicant's AMHRR.

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)                                         AR20120000413



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ABCMR Record of Proceedings (cont)                                         AR20120000413



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