PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 October 1998                  
	DOCKET NUMBER:   AC98-09524

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

	Mr. Loren G. Harrell		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. George D. Paxson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the Memorandum of Reprimand ( MOR) he received dated 2 August 1996 be removed from his official military personnel file (OMPF).

3.  The applicant states that since he and his counsel were unable to get a copy of the Criminal Investigation Division (CID) report, he was denied due process.  Also, the incident was not mentioned in his NCOER, and although his commander stated that he was found guilty by a preponderance of the evidence, he contends that there was no evidence of his guilt.  He continues by stating that he had attended college after duty hours and on weekends during the previous
2 years and worked towards promotion by completing military correspondence courses, and in no way did he rely upon passing the College Level Examination Program (CLEP) tests for promotion.   

4.  In support of his request he submits copies of his NCO evaluations for 1994 through 1998, which are all outstanding reports, copies of documents showing he checked out publications and video cassette tapes from an Army learning center for use in preparing for the CLEP test, a copy of his Associate Degree from Fayetteville Technical Community College, earned in 1997, along with his transcripts, and evidence of correspondence courses taken at Central Texas College in 1996.  

5.  The applicant's military records show that at the time he submitted his application he was serving on active duty in pay grade E-6 with approximately 
13 years of active service.  

6.  The only evidence available to the Board which sheds light on the facts and circumstances leading to the MOR is a memorandum dated 30 September 1996 from the 3rd Battalion, 31st Field Artillery Brigade (Airborne), Fort Bragg, North Carolina, SUBJECT: CLEP Test Investigation and Findings.  The information contained in the memorandum appears to have been provided by a special agent from the 6th Military Police Group CID, Fort Hauchuca, Arizona.  The memorandum states that on 13 December 1995 the Fort Bragg CID received an agent’s investigative report which reported that “numerous soldiers may have cheated on several CLEP tests,” based upon “statistical analysis created by the educational testing service reflecting the names of soldiers who submitted CLEP/DANTES scores at Fort Bragg, NC that are suspect when compared to ‘cheat sheets’ received by Fort Hauchuca, AZ.”  The memorandum continued by informing the applicant’s battalion commander that the applicant and another soldier were identified in the Target Analysis File as being suspected of cheating on the General Biology CLEP test taken on 23 August 1995. 

7.  On 2 August 1996 the applicant and two other soldiers were interrogated by the CID concerning the CLEP tests.  The applicant and one other soldier refused to be interrogated without legal counsel.  The third soldier waived his right to legal counsel and confessed to having cheated on four CLEP tests in April 1995. The staff judge advocate then declared that there was probable cause to believe that all of the soldiers had cheated.  He recommended issuance of general officer letters of reprimand, as the evidence was not strong enough for nonjudicial punishment. 

8.  The applicant was an E-5 when he took the CLEP test in August 1995.  He was promoted to staff sergeant (E-6) on 1 April 1996 and was serving in that grade when he was administered the MOR.  The MOR was approved for filing in the applicant’s permanent OMPF.  In indorsing the filing of the MOR in the applicant’s permanent OMPF, the battalion commander stated that “even though his letter (rebuttal) seemed compelling, the preponderance of the evidence showed “guilty.”  

9.  The applicant acknowledged receipt of the MOR and submitted a rebuttal on 
9 September 1996 denying that he had cheated on the CLEP test.  He stated that each time he had taken a CLEP test, it was administered by a test proctor who closely monitored students taking the test.  He stated he had excelled in his career, as demonstrated by the recent award of the Army Achievement Medal and favorable comments by his superiors on his duty performance.  Further, he stated that he was a man of integrity and only did things the right way.  He requested that his efforts to better himself through education, his conduct throughout his career, and his value to the Army be considered, and the MOR be destroyed.

10.  During the processing of this case an advisory opinion was obtained from the Department of the Army Suitability Evaluation Board (DASEB).  The DASEB noted that unfavorable information directed for placement in the OMPF is presumed to reflect the objective judgment of a competent official who has considered all of the available information and alternative courses of action.  Once filed, the burden of proof is upon the applicant to provide a preponderance of evidence of a clear and compelling nature that the information is untrue or unjust, in whole or in part, to justify the removal of the unfavorable information.  The DASEB opined that the applicant had provided no such evidence -- only his unsupported assertions.  The DASEB recommended that the application be denied.  

11.  A review of the applicant’s OMPF by a staff member of this Board found the MOR and related documents, to include the applicant’s rebuttal, filed on both the restricted and performance fiche.   
CONCLUSIONS:

1.  The “preponderance” of the evidence in this case appears to be a statistical analysis created by the educational testing service which reflected that some soldiers taking the CLEP tests had cheated.  This conclusion was reached by a comparison of the soldiers’ scores with a “cheat sheet” which had been recovered and the confession of another soldier who stated that he had cheated on CLEP tests.  No other evidence directly linking the applicant to actually cheating is available to the Board.  

2.  The Board recognizes that it is difficult to prove a negative, and the evidence submitted by the applicant in support of his application does not conclusively prove that he did not cheat on the CLEP test.  Still, the Board is impressed with the applicant’s record of performance, as well as the effort he expended independently pursuing his education.  

3.  Therefore, considering all of the evidence available to the Board and giving due respect to the judgment of the commander who administered the MOR, the Board concludes that the administrative MOR was properly imposed.  However, the interest of justice would now be best served by correcting the applicant’s records to show the MOR was directed for filing in the applicant’s restricted fiche. 

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by showing that the MOR administered to the individual concerned on 2 August 1996 was directed for filing in his restricted fiche; and 

b.  by deleting the MOR and all related documents from the individual’s performance fiche.  

2.  That so much of the application as is in excess of the foregoing be denied. 

BOARD VOTE:  

__JEV___  ___INW_  ___GDP_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON