MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 March 2000
	DOCKET NUMBER:   AR1999029199

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Barbara J. Ellis		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Ernest W. Lutz, Jr.		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:  In effect, that a Memorandum of Reprimand (MOR), dated 7 June 1995, be set aside and removed from his file; that an Academic Evaluation Report (AER), dated 2 June 1995, covering the period 1 June 1994 through 2 June 1995, be amended to show completion of the Command and General Staff College (CGSC); that he be declared a graduate of the resident CGSC and be issued a diploma for inclusion in the Official Military Personnel File (OMPF) showing completion of military education level (MEL) IV; that his case be referred to the United States Army Personnel Command (PERSCOM), Infantry Branch for correction of his Career Management File (CMF) by showing completion of CGSC and removal of the MOR and CGSC dismissal action; that his non-selection for promotion be set aside; that he be reconsidered for promotion to lieutenant colonel/0-5 by a Special Selection Board (SSB); and that if selected for 0-5 promotion he be provided back pay and allowances.

APPLICANT AND COUNSEL STATE:  In effect, that he did not cheat or plagiarize material while taking the final exam in question at CGSC.  Further he had absolutely no reason to cheat given he had already completed all course requirements necessary for graduation from CGSC; that he passed the final exam which was listed on the CGSC transcript with an I (incomplete), and was later changed to reflect the adverse results of a CGSC Misconduct Board (CGSCMB); and even had he failed the final exam he had already achieved the necessary grade point average for graduation from CGSC.  The applicant also provided the proceedings from the CGSCMB; and the show cause Board of Inquiry (BOI) proceedings which found that the factual allegations embodied in the CGSCMB dismissal action, MOR, and AER were unsupported by substantial evidence.  In addition, the supporting documents provided by the applicant include letters of support and character references from numerous Army officers, and a letter of support from a retired senior Army leader.  Finally, the applicant provided the enclosed supporting legal brief from counsel with exhibits related to his case and the packet containing the evidence used against him at the CGSCMB.

EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned a 2nd Lieutenant in the United States Army Reserve (USAR) on 2 May 1983 and entered active duty on 1 April 1984.  There is no evidence of derogatory information anywhere in the applicant’s record prior to the incident being addressed in this review.  His Officer Evaluation Reports (OER) show ratings of center of mass or above for his entire career; and that he has earned a Meritorious Service Medal, an Army Commendation Medal, and two Army Achievement Medals.  He also served in combat, and by all accounts in an outstanding manner, as a company commander during Operation Desert Storm.  

The applicant was selected for resident CGSC and began his course on 
1 June 1994.  On 26 April 1995, he had completed all his course requirements.  A few days later the faculty denied the applicant’s attempt to change a “wrong answer” he had already turned in.  Shortly after this, as he out-processed, in May 1995, an instructor alleged cheating by the applicant and another student.  The instructor suspected cheating while grading the applicant’s examination paper on 1 May 1995.  He discovered that the answers on the applicant’s paper were very similar to the answers on another student’s paper that he had already reviewed.  The instructor’s side by side comparison of the two examinations revealed that the answers were almost identical in many respects.  He observed that the words were the same, the grammar was the same, the mistakes were the same, and there were no changes.  

The instructor notified his superior and was advised to begin procedures contained in CGSC bulletin #20 and the policy guidance to resolve the matter at the lowest possible level by confronting the individuals involved.  When confronted, both the applicant and the other officer involved denied cheating but could not explain how their answers were similar.  The other officer offered no explanation of the similarities, and the applicant offered that they had shared notes.  However, they were unable to produce the notes.  

The instructor then reviewed other examinations and discovered that there was a ten month old examination taken by a third officer who was a teammate, a fellow staff group member, and fellow fraternity member of the other officer involved.  After a two-day preliminary investigation, it was determined the third officer’s answers were not similar enough to base a conclusion of cheating.  At this point, however, the department head directed a faculty review of all 1200 examinations given over the academic year to determine any similarities with the applicant’s answers.  The results revealed the exams of the third officer mentioned above and a fourth officer were similar, and the exams of the applicant and the other officer were similar.  In fact, it was determined that the similarity of the third and fourth officers was greater than that between the applicant and the other officer involved in this case. 

On 2 May 1995, an investigative officer was appointed under the provisions of Army Regulation 15-6 to interview the applicant and the other officer involved and to evaluate any supporting evidence in the case.  The investigation was completed on 5 May 1995, and determined that there was a strong similarity between the two exams in the areas of content, grammar, punctuation, spelling errors, and style.  The investigating officer concluded that the only rational explanation for the similarities between the examinations of the applicant and the other officer was because they collaborated in some fashion on the exam.  

His findings, in view of the information he gathered during his investigation, was that there was sufficient cause to suspect collaboration and/or plagiarism between the applicant and the other officer involved; and that a misconduct board (CGSCMB) was warranted. 

On 24 May 1995, a CGSCMB convened, with the applicant and his counsel present, to examine facts and make recommendations concerning the alleged plagiarism of the applicant and another student.  The CGSCMB heard testimony of at least 12 witnesses, including the applicant; the other officer involved; the instructor who taught the applicant and graded the papers; and the investigating officer who also examined both answers.

Both the applicant and the other officer involved made statements to the CGSCMB which indicated that they had not copied work from each other, and that they did not work as a team during the take home examination in question.  The applicant also stated that his exam work was based on his own research and notes, some of which were from another student.  When approached about similarities between his and the other student’s exam answers, the applicant testified that it could have resulted from his giving copies of his class notes to the other student after he had missed some classes.  However, he affirmed that these notes were not highlighted or given in conjunction with the final exam.  The second student confirmed this version of events in his testimony to the CGSCMB and indicated that he relied heavily on the applicant’s notes, and copied them verbatim.  After deliberating, the CGSCMB advised the applicant and the other officer involved that they would recommend that an ethical violation had been committed by them under the provisions of CGSC Bulletin Number ( #) 20 and that they should be dismissed from the course with no opportunity to complete it by any means.  

On 2 June 1995, the applicant was issued an AER which indicated that he had failed to achieve course standards; failed to demonstrate academic potential for selection to higher level training; and was required to appear before a CGSCMB and dismissed with no opportunity to complete the course by any means.  

The applicant’s counsel asked the CGSCMB to reconvene in order to clarify what exactly they determined constituted an ethical violation.  In response to counsel, the CGSCMB President indicated that the evidence showed a similarity in exam answers so close that somewhere there had to be a giving or receiving of test material.  Counsel then questioned the CGSCMB President on how a standard, contained in CGSC Bulletin #20, could be enforced if the students were unaware of the contents, and further he requested that the specific findings in relation to this bulletin be more specific.  The CGSCMB President responded by recording the specific ethical violations as 1-failure to give and receive only authorized assistance (Paragraph 5a, CGSC Bulletin #20); and 2-possessing, using, and transferring solutions to practical exercises, examinations … (Paragraph 6b, CGSC Bulletin #20). 

The applicant filed a complaint to the Fort Leavenworth Inspector General (IG) alleging that were procedural irregularities regarding his dismissal from CGSC.  On 3 June 1995, the IG found no merit to the applicant’s allegations.  The IG concluded that the applicant had received adequate due process and was afforded all procedural safeguards during the dismissal process.  The IG further commented that that his response had been reviewed by the Department of the Army IG (DAIG) investigations and legal divisions.  

The IG compared the two examinations and did not believe the applicant’s contention that the identical answers on the exam was the result of shared study notes.  The IG further noted that the CGSCMB did not believe this explanation and that his investigation findings led him to the conclusion that the CGSCMB conclusions were supported by the preponderance of the evidence.  

In addition, the IG determined there was no significance to the applicant’s claim he was unaware of CGSC Bulletin # 20 which, in pertinent part, prohibited a student who took a graded requirement from sharing a study guide with others, or transferring it to others.  The IG explained why the applicant’s allegation that he was unaware of the provisions of the bulletin was not relevant to his case:  first, the bulletin had no bearing on the outcome of the case because the CGSCMB did not believe the applicant’s story that his exam answers were based on class notes; second, the bulletin prohibited a student from taking an exam and then passing study notes to another student, however, this was not what the applicant was accused of; third, the third party officer who provided the applicant notes stated that he did not provide the applicant exam answers in these notes; and finally, a comparison of the exams of the applicant and the third party officer who he claimed provided him the notes did not contain similar exam answers.  

On 7 June 1995, the CGSC acting Deputy Commandant (DC) issued the applicant a MOR for his dishonorable actions consisting of cheating on an examination.  Finding the applicant disgraced himself, the acting DC questioned whether the applicant possessed the moral attributes defining Army officers, such as ethics, values, and integrity. 

On 16 June 1995, the applicant appeared before the Commanding General of the Combined Arms Center and Fort Leavenworth, Kansas, and Commandant of CGSC (CG), to present his side of the argument and he also provided the CG with a written response to the MOR he received from the DC.

The CG concluded that the applicant in his appearance before him, and in his written rebuttal, provided no believable explanation as to how the duplication in the examinations occurred.  The CG further noted the evidence is not conclusive as to whether the applicant copied from the other officer or vice versa or whether they both copied from a third common source.  The CG found the duplication in the answers clearly and overwhelmingly supported the finding that the applicant cheated.  On 10 July 1995, the CG directed that the MOR be permanently filed in the applicant’s OMPF.

On 5 February 1996, the Commander of PERSCOM notified the applicant of elimination initiation.  The applicant was advised that he was required to 
show cause for retention on active duty, under the provisions of Paragraph 
4-2a(11), 4-2b (5) and (8) of Army Regulation 600-8-24 (Officer Transfers and Discharges), because of substandard performance of duty and misconduct, moral, or professional dereliction.  In this correspondence the applicant was advised that the action was based on his failure of a course at a service school as supported by an MOR and an AER; for his acts of personal misconduct; and for conduct unbecoming an officer.

Paragraph 4-6 of Army Regulation 600-8-24 prescribes the policy and procedures for conducting a show cause BOI.  It states, in pertinent part, that the purpose of the show-cause BOI is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army.  Further, the regulation indicates that it is the responsibility of the Government to establish, by a preponderance of the evidence, that the officer has committed the misconduct which resulted in his failure to maintain the standards desired for his grade.  

On 17 October 1996, a BOI convened to consider the applicant’s case based on his requirement to show cause for retention.  The show cause BOI considered all of the available evidence and heard testimony from at least 8 key witnesses, including the Deputy CG of III Corps and Fort Hood, Texas, and the CGSC instructor who originally brought the cheating charges against the applicant.  

The Deputy CG testified that he had previously been the applicant’s brigade commander in Germany and during the Gulf War.  He described the applicant as a magnificent performer and leader in combat and an officer with unquestionable integrity.  He also testified that he had been involved in the applicant’s CGSC case on the periphery, since the circumstances were first found in May 1995.  He revealed that he had intimate discussions with the CG and Deputy Commandant (DC) of CGSC who were in the chain of command at Fort Leavenworth at the time of the incident.  He also commented that he was familiar with the case from the perspective of the applicant and how he was involved.  He admitted to not reading the 15-6 investigation conducted at the time, but stated other than that, he was pretty familiar with the case.

The Deputy CG III Corps indicated that, based on the information known to him, there was enough clouding of the evidence and confusion that the applicant should be given the benefit of the doubt.  He concluded, knowing what he did about the case, that if he were the officer responsible for making the decision and knowing what he does about the applicant, his family, his performance of duty, and his potential to serve, he would give the applicant the benefit of the doubt.

The CGSC instructor who initiated the investigation of the applicant at CGSC testified before the show cause BOI.  The instructor testified that he asked the applicant, following a rights advisement, to explain how the exam answers were similar, the applicant stated that he and his colleague “shared notes”, which were then unavailable.  

In the questioning, the instructor was asked by the applicant’s attorney if he were aware that the answer to question 5 on the applicant’s exam was from notes; he responded that he was not aware of that.  He further testified that in answering exam questions the students were permitted to use other materials to research their answers, which directly contradicts the guidance contained in Bulletin Number 20, which was his basis for officials at CGSC to prosecute the action against the applicant.

The findings of the show cause BOI were that the Government had failed to prove, by a preponderance of evidence, that the applicant’s performance of duty was substandard based on his failure of a service school or that he engaged in misconduct, moral or professional dereliction by engaging in acts of personal misconduct or engaging in conduct unbecoming an officer.  Based on these findings the BOI recommended that the applicant be retained in service.  

In a sworn statement, a show cause BOI member explained the findings and recommendations of that board.  He explained that the BOI was never persuaded that the applicant ever cheated, but only that he passed his class notes to the second officer before the exam.  This conclusion was based on all the evidence and testimony which showed that sharing notes at CGSC was proper, and on the second officers admission that he relied verbatim on much of the applicant’s class notes.  He also indicates that the BOI was very disturbed with the CGSC’s presumption of a connection between the two officers based on erroneous assumptions of membership in the same black fraternity.  

Additionally, he gave three other reasons for the show-cause BOI’s decision.  First, there was a belief the CGSCMB focused only on process and not content.  Specifically, whether the right people had reviewed and processed the allegations, rather than looking hard at the underlying issues at hand.  Second, the applicant had a “B” average and even if he had scored “0” on the exam was on track to graduate.  Third, the fact the officers involved could not produce their notes was not unusual; it was the last class of the course and they would have had no reason to preserve the notes as they prepared to move from Fort Leavenworth.  He also stated that the faculty member who raised the charge testified that he really wanted to resolve this issue at the lowest level, and that he earnestly sought to find a cause for the actions of the two officers.  However, the evidence shows that the instructor presumed at the outset that the applicant and the second officer had cheated; he never asked them if they had shared notes or to produce the notes in question, and instead notified other CGSC officials of the incident.  

The show cause BOI found it very significant that the applicant had nothing to gain from cheating, even if he had gotten a zero (0) on the exam in question, he still would have passed the course with an overall grade of B, and still graduated. They found the particular test in question only counted for 30% of the overall course grade.  In sum, the BOI found, considering all the evidence and the circumstances surrounding the event, that notes being shared and the second officer’s admitted verbatim copying were more valid explanations for the similarities in the two exams, rather than concluding that the applicant had cheated.  

On 9 February 1998, the Department of the Army Suitability Evaluation Board (DASEB) advised the applicant his request for graduation credit for CGSC  was not within its purview.  The DASEB advised the applicant it could, however, assume jurisdiction over his challenge to the 7 June 1995 MOR in his OMPF.  The DASEB concluded the findings and recommendations of the show cause BOI only showed that the Government failed to convince that board of the applicant’s misconduct, but that these findings did not compel the DASEB to concur.  Further, the DASEP concluded that the applicant had failed to provide sufficient credible evidence to show that the MOR was unfair or unjust.

On 27 March 1997, the Fort Leavenworth CG denied the applicant’s 31 January 1997 request for reconsideration.  On 3 September 1997, the applicant resubmitted another reconsideration request, through the Commander of III Corps, Fort Hood, Texas, to the CG, Fort Leavenworth.  He cited the findings of the show cause BOI as the basis for his request.  The CG concluded, “after careful review” of the show cause BOI and other information submitted, that the applicant was properly separated from CGSC and appropriately denied readmission.  

A retired senior Army leader, and previous Corps Commander, who knew the applicant very well because he had worked for him in many different capacities, both before and after the incident under review, identified the applicant as an officer of unquestioned integrity and dedication to duty.  He also commented that subsequent to the incident in question the applicant served on his Corps G-3 staff and earned two successive top block OER ratings, and that he admired him then as he does now.  

He also stated that because the applicant was on his staff subsequent to the incident in question, he was very familiar with the current injustice which prevents his advancement despite a show cause BOI which absolved him of any wrongdoing.  This retired senior leader also stated firmly his belief that if a 
show cause process exonerates an officer, and the findings and retention recommendation are finally approved, the intent of the separation regulation is to give the officer a second chance and fresh start, by removing the unfavorable information that caused the elimination action, as being in the best interest of the Army.  He advances to do otherwise and leave the adverse information in the OMPF renders the show cause process meaningless, representing a mockery of military justice and the fairness inherent in the second-chance philosophy.  This he claims is a clear case of twice wronging a great soldier, which makes no sense. 

He concluded his statement of support by stating, in his professional opinion, that another Army agency should not be allowed to simply ignore the show cause process and keep misconduct information addressed by that board in the OMPF, after the approved findings of this process has exonerated him of this very misconduct.  Exceptions would be the findings of significant new evidence or fraud, which is not the case with the applicant.  He concludes by strongly urging that the MOR and the AER that prevent the applicant’s completion of CGSC be permanently removed from his record. 

Paragraph 4-15 of Army Regulation 600-8-24 prescribes that the Secretary of the Army authorizes a BOI to evaluate the case for and against the retention of an officer, and to make a recommendation to the officer’s commanding general.  It further states that the BOI will give the officer a fair and impartial hearing.  The evidentiary standard requires that the Government establish, by a preponderance of the evidence, that an officer failed to maintain the standards desired for his or her grade and branch.  This regulation requires the officer’s retention if the Government fails to meet this evidentiary standard.  This paragraph further states that the BOI may not recommend removal of documents such as OER’s, Article 15’s, and MOR from an officer’s OMPF and indicates that the BOI recommendations are limited to either retention or elimination.  

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.  At the outset, the Board notes that the exercise of its powers and discretion, on behalf of the Secretary, consistent with the principles of law, policy, principles, and equity authorized by Congress under Title 10 U.S.C. §1552, is not bound or limited by the decision of an installation board of inquiry.

	a.  The Secretary stipulated “elimination action may or will be initiated for substandard performance of duty” (including failure of a course at a service school for academic reasons);  misconduct, moral or professional dereliction, or in the interests of national security (including failure of a course at a service school because of misconduct, moral or professional dereliction and conduct unbecoming of an officer);  and derogatory information (including failure of a course at a service school).  Army Regulation 600-8-24 (Officer Transfers and Discharges (21 July 1995), para 4-2.  In authorizing installation boards of inquiry to recommend whether to retain or separate an officer, the Secretary prescribed such boards “may not recommend removal of documents such as” memoranda of reprimands, officer evaluation reports, and nonjudicial punishments under Article 15, Uniform Code of Military Justice.  Army Regulation 600-8-24, 
para. 4-15.  Further, the Secretary provided that “board recommendations are limited to either retention (with or without reassignment) or elimination.” Army Regulation 600-8-24, para. 4-15.

b.  Accordingly, any board of inquiry judgment regarding the substantive validity or invalidity of the evidence underlying the adverse action by the sanctioning command is one factor, among others, in the Board’s evaluation of the evidence.  It is not, however, a controlling factor because, in contrast, the Board is obligated to independently review the facts and reach its own conclusion.  The Board has done so, and, after carefully examining all evidence of record (including applicant’s independent evidence and arguments and the board of inquiry), determines relief is not warranted.

2.   The Board rules that the CGSC’s determination that the applicant cheated on the C530 examination is substantively valid and supported by the preponderance of the evidence.

	a.  Cheating is a sound conclusion because of the remarkable similarity of the examinations of applicant and his colleague, the other major found to have cheated, and the believable evidence contradicting applicant’s explanations.  On balance, applicant’s character witnesses that he was an officer of integrity, and his denial of wrongdoing, do not overcome the strength of the objective and circumstantial evidence establishing that he cheated. 

b.  None of applicant’s character witnesses were with him and his colleague at the time of the examination, and all lack first-hand knowledge of the events surrounding the examination.  The Deputy Commander of III Corps, a major general (testifying before the BOI consisting of three colonels assigned to 
III Corps), believed the applicant’s claims of innocence based, in part, on the strong bond of their service together during the Gulf War.  That Deputy Commander, who believed the evidence was “clouded” and confused, acknowledged he had not read the AR 15-6 investigation.  The Board disagrees the evidence is confusing.  There are two versions of the facts and the Board finds the CGSC’s version more persuasive. 

c.  The preponderance of the evidence supports the determination by the Commandant, CGSC, for the following six reasons:  

First, it is virtually indisputable that the papers of applicant and his colleague are remarkably similar.  In light of the virtual duplication in the arrangement of ideas and sentence structure, the reasonable common sense deduction under the circumstances is the parties cheated. 

	Second, the applicant’s submission of the incorrect answer to question 5, and his effort to change it after he turned it in, corroborates a pattern of cheating on the examination.  Common experience suggests no two people working independently respond to thought questions in identical sentences.  The CGSC Commandant and the AR 15-6 investigating officer believed a “common source” was one theory which explained the virtual duplication in the responses between the two officers.  That theory is corroborated by five additional factors.  

Factor one, questions 1-4 of the 1993-94 examination were essentially the same, in content and order, as questions 1-4 of the 1994-95 exam.  Question 5 of the two exams differed, however.

Factor two, the virtual identical concept and sentence structure of applicant’s and his colleague’s exam answers to questions 1-4, including the misspelled word “exposer,” suggests strongly they were derived from a computer disk or a test answer key of some sort which incorporated some version of the examination answers, including at least answers to question 5 of the 1993-94 exam.

Factor three, the officers made minimal changes in their answers to 
questions 1-4, mostly in the order of certain sentences, apparently to 
avoid detection.

	Factor four, the applicant’s answer to question 5 was remarkably similar to 
the model answer to question 5 of the 1993-94 exam – a question not asked on his exam.  This indicates applicant’s “common source” probably included a copy of at least part of the model answer to the 1993-94 C530 exam, or incorporated the text or substance of that model answer. 

	Factor five, in answering the wrong version of question 5, while in the 
process of using the  “common source” materials applicant overlooked the fact his question 5 was not the same. 
   
           Alternatively, as the CGSC Commandant determined, the only other serious explanation for the duplicate test answers was for applicant and his colleague to have collaborated on the exam with one or both copying directly from the paper of the other.
           
Third, applicant’s contention that his answers were based on notes he took from class and also received from a classmate, a third party major, is unpersuasive.  Applicant says he furnished a copy of those notes to his colleague, who must have used them verbatim in answering his examination.  The CGSC faculty disputes applicant’s position. The CGSC instructor testified his lectures and in-class handouts did not answer the question on the examination. 

           Moreover, the major who was the source of the notes stated the notes he handed applicant did not contain examination answers.  The Inspector General’s revelation that applicant’s test answers did not match the test answers of the major furnishing the notes indicates applicant’s responses were not derived from that third party major, and that major did not take notes similar to those applicant claims he took. 

           Further, the probability applicant would take class notes in an order that mirrored the answers to the exam is highly unlikely.  Instruction at CGSC focuses primarily on developing logical, practical, and original reasoning ability in military problem solving, not on the merits of any single solution.  Thus, it is highly unlikely the instructor would engage in steps incompatible with the institution’s teaching objectives by handing out virtual roadmaps and answers to a final examination. 

Fourth, the CGSC’s review of the 1200 C530 exams revealed 
only three other examinations that were similar to those of applicant, with one of those papers belonging to applicant’s colleague in the cheating scandal.  This is a strong indication that the CGSC faculty did not furnish the notes claimed by applicant, and the other 1,196 students did not record such notes and did not use them on the examination.  This conclusion further implicates the applicant in the cheating scenario.  

Fifth, the CGSC considered the full scope of pertinent information available contemporaneously with the discovery and investigation of the matter at the site, and reached an informed opinion based on valid evidence and the preponderance of the evidence standard.
 
           Excluding the Inspector General’s investigation which supported the Commandant’s decision, the CGSC conducted eight investigations or reviews of the facts.  First, the instructor conducted an initial investigation.  Second, the instructor’s supervisor conducted a preliminary inquiry.  Third, the department head directed a review of 1200 C530 exams.  Fourth, an Army Regulation 
15-6 investigation was completed.  Fifth, the CGSC convened a Misconduct Board, including documents, the testimony of at least twelve witnesses and legal representation for applicant.  Sixth, the Commandant, CGSC, personally interviewed the applicant, considered his arguments and submissions, and evaluated the evidence adduced during the investigations.  In reaching his decision, the Commandant, also considered the views in support of applicant and the Deputy Commander of III Corps and applicant.  Seventh, after the Board of Inquiry voted to retain applicant, a new CGSC Commandant denied applicant’s request for a reversal of the prior Commandant’s 1995 decision.  Eighth, a third Commandant considered applicant’s request for relief, including the record of the III Corps Board of Inquiry, and declined to disturb the sanction imposed in 1995.  
      
           As a result, the CGSC decision-makers saw and heard the pertinent witnesses, and were in a superior position to make a determination as to their credibility.  The CGSC Commandant personally interviewed the applicant and made a determination about his credibility.  The CGSC faculty and leadership were in the best position to know what in-class information it distributed and did not distribute regarding the examination.  

           Sixth, the Board observes that the CGSC is accredited by the North Central Association of Colleges and Schools, the CGSC resident program is accredited, and the college is  accredited as a master's degree granting institution.  Further, the Chairman of the Joint Chiefs of Staff, through the Process for Accreditation of Joint Education, visits CGSC for a reaccredidation review to ensure high standards of joint education are maintained. 

            In light of the CGSC’s accreditation standards, its military mission, and the testimony of the CGSC faculty, the Board finds persuasive the CGSC’s representation, in effect, it did not distribute notes tantamount to answers to a final examination, leaving the student with the only task of copying the notes and turning them back in for credit.

3.  In conducting its independent analysis, based on the forgoing, and after considering the entire record, the Board determines the preponderance of the  evidence clearly supports the CGSC’s determination that applicant cheated.  The Board finds the CGSC’s ruling to be valid.  It is significant that the cheating occurred in a professional military art college, because CGSC graduates are, by virtue of their CGSC education, entrusted with responsible assignments important to the execution of military missions assigned to the Army and other Services.  Therefore, in view of the CGSC’s mission and values, the Board finds the Army’s interests in maintaining the highest standards for officer integrity are served by affirming applicant’s dismissal and reprimand.
     
4.  The Board considered the affidavit by a senior member of the III Corps board of inquiry.  However, based on the foregoing, the Board’s exercise of its 
fact-finding power rejects any board of inquiry belief that the preponderance of the evidence does not establish wrongdoing by applicant.  The Board is more than satisfied there is no illegality or injustice in affirming the CGSC Commandant’s decision to dismiss applicant and issue a reprimand to him for cheating.     

5.  Finally, like the senior member of the board of inquiry, the Board is extremely concerned whether racial animus played any role in this case.  There is absolutely no role for racial animus or bias in the Army, and the Board will vigilantly exercise its powers to cure any such illegalities.  Upon careful review, however, the Board is satisfied that applicant’s dismissal from CGSC and reprimand were the result of his violation of the CGSC Academic Ethics policy, and not because he is a minority, or had, or did not have, a relationship with a fraternity.  He was accorded the procedural rights to which he was entitled, and the outcome fairly balances the interests of the Army, public, and applicant.
     
6.  In conclusion, to justify the correction of a military record the applicant must demonstrate the record is in error or unjust.  The applicant has not met that standard. 

7.  In view of the foregoing, the Board declines to grant the applicant’s request for relief.

DETERMINATION:  The applicant has not submitted sufficient evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___hof___  __ewl___  ___be___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029199	
SUFFIX		
RECON		
DATE BOARDED	2000/03/30	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHAGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  280	126.0300	
2.  206	111.0100	
3.		
4.		
5.		
6.