MEMORANDUM OF CONSIDERATION

IN THE CASE OF:   

BOARD DATE:                              
DOCKET NUMBER:    AC96-06977A
			    AR1998013600

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Cumpler		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Mark D. Manning		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his previous application to correct his records by expunging all references to the findings of the 6 June 1995 Command and General Staff Course (CGSC) academic misconduct board; the memorandum of reprimand (MOR) resultant from this review; the adverse Academic Efficiency Report (AER); all additional actions and subsequent board reviews and all other derogatory information relating to this matter.

APPLICANT STATES:  In effect, that the reason for the original investigation was racially motivated and that the burden of proving that he had committed a wrong doing in the form of plagiarism was shifted from the school proving his guilt to his having to prove his innocence.  He contends that this violated his constitutional rights.  He continues to aver that he did no wrong and that subsequent reviews of the issue have resulted in a clearing of his name of any wrongdoing.  He further documents that the continuation of the reprimand in his records is detrimental to his military career.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of 25 June 1997.

The applicant’s request for reconsideration is virtually identical to his prior submission.  However, he notes additional reviews and actions that were not of record at the time of the prior Board review.  These include an appeal of the reprimand to the Army Suitability Evaluation Board (DASEB), a grievance to the DA Inspector General, and a grievance directly to the Secretary of the Army.

On 21 October 1996, the applicant appeared before a Board of Inquiry that was convened to consider whether or not he should be retained on active duty.  That board determined that the applicant should be retained.   Although that board exceeded its authority, it made additional findings and recommendations wherein it opined that the applicant “did not fail a course at a service school for academic reasons; he did not engage in conduct unbecoming an officer; and did not commit acts of personal misconduct.”  The members opined that he should not be involuntarily separated from the Army.  This recommendation was approved by PERSCOM.

That board’s members addressed their concerns in a Report of Additional Findings and Recommendations that was forwarded to Commander, PERSCOM on 22 February 1997.  These concerns addressed primarily the actions and handling of the incident by CGSC, however, they also found suspect an additional document that the applicant produced at the time of his retention board.

A 20 January 1998 review by the Army Suitability Evaluation Board again denied the removal of the MOR from the applicant’s performance portion of his OMPF.

When the applicant was not selected for promotion by the FY98 Lieutenant Colonel Selection Board, his records contained the referenced derogatory information relating to this matter.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Although the applicant was originally investigated for plagiarism he did not receive a reprimand for plagiarism.  The commanding general reprimanded him as a party to a case of cheating not for having committed plagiarism, therefore, all arguments relating to plagiarism are not relevant to this case.

2.  The issue of racial bias was addressed in the 1 October !996 DA Suitability Evaluation Board’s (DASEB) advisory opinion and was noted in this Board’s prior review.  This Board concurs that the rationale for questioning not just the two tests specific to this case but additional tests can not be identified as having been racially motivated.  It is noted that of the nine officers who were dismissed from that year’s CGSC due to similar concerns not all were ethnic minorities.  A racial bias for the investigation of potential wrong doings is not supported by the evidence of record.

3.  The members of the applicant’s 21 October 1996 show cause board admit to having exceeded their charter in their findings and discussions.  Their points of discussion dealt principally with errors that the CGSC staff appeared to have made in their handling of this case and that the CGSC staff failed to properly document its findings or retain evidence for additional reviews or further appellant actions.  Additionally they also raised the issue of the validity of the applicant’s evidence that was submitted in concert with that board.  They opined that this information was suspect although they allowed and used it as part of their decision.

4.  While the show cause board members may have  resolved their doubts and voted to retain the applicant, this Board does not concur with their determination that this officer was not an active participant in the cheating that occurred at CGSC.  Not only did that board not resolve the principal issue of how the second officer obtained the test information but it also raised additional points and evidence that further questioned the integrity of the applicant.

5.  Both the CGSC misconduct board and the show cause board have flaws in the manner in which they handled and resolved a serious situation, however, neither they nor the applicant have resolved the basic issue of how the second officer was able to answer the test questions verbatim without applicant having been an active participant.  Without a resolution of this basic issue the preponderance of evidence supports a finding of collusion on the applicant’s part and it was based upon this issue that the commanding general found sufficient evidence to reprimand the applicant for cheating.  

6.  The applicant has not presented convincing or compelling evidence that the reprimand was unfair or unjust.  Without such a finding of error the Academic Efficiency Report was and still is appropriate.

7.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___SAC_  ___FKM_  ___MDM _  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC96-06977A
AR1998013600	
SUFFIX		
RECON		
DATE BOARDED	1999/02/03	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	deny	
REVIEW AUTHORITY		
ISSUES         1.	111/193	
2.	134/1035	
3.		
4.		
5.		
6.