MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           6 February 2001                  
	DOCKET NUMBER:   AR2000042554

	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. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Walter T. Morrison		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:  That the Academic Evaluation Report (AER) for the period covering 1 May 1996 through May 1997 be corrected to change Item 15, Has the Student Demonstrated the Academic Potential for Selection to Higher Level Schooling/Training, from reading “No” to read “Yes.”  She also requests that the first paragraph in Item 16 of the AER be deleted.

APPLICANT STATES:  That she was unable to complete her professional paper on time because the computer issued to her by the school deleted a large portion of her paper.  Contrary to her instructor’s statement to her academic board, he refused to give her an extension to submit her paper and, when she was required to rewrite the paper, her instructor refused to give her an extension despite the fact that her final examinations were being conducted during the time she would be required to re-write the paper, and her mental abilities were impaired by flu-like symptoms.  While her professional paper finally received a passing grade on its third submission and she graduated from the school, her AER was referred to her as adverse since it “unfairly” contained comments about her having twice failed the research paper.  The applicant argues that her instructor’s rationale for denying her an extension to turn in her professional paper, that she had waited until the last minute to complete her paper, is without merit as evidenced by the fact that she turned in her initial and extended outlines of the paper in a timely fashion.  She charges that her instructor never checked with the information management division of the school to verify her contention that she was having problems with her two computers.  She argues that it is preposterous to believe that she would not have requested an extension to submit her paper, as stated by her instructor, since her final examinations were being held at the same time her paper was due.  Other students were given extensions and because they didn’t have tests competing for their time, their papers were graded as passing and they did not have negative comments placed on their AER’s.

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

She was commissioned as a second lieutenant, Army National Guard, on 30 June 1985 and was ordered to voluntary active duty as a captain on 17 June 1991.  On the date of application she is serving in the rank of major.

She served continuously on active duty in positions within the Judge Advocate General Corps.  She entered into training in the 45th Graduate Course (a course of instruction leading to a Masters of Military Law degree) on 1 May 1996.

While a student at the 45th Graduate Course, on 8 April 1997 the applicant was seen by a civilian physician for virus type symptoms.  On 15 April 1997 she was seen by a civilian physician for cold symptoms and nausea.

On 15 April 1997 the applicant’s instructor sent her a note confirming a conversation of “last Friday.”  In that note he informed her that she was required to submit her paper rewrite on 24 April 1997.

On 22 April 1997 an unsigned Optional Form (OF) 41, Routing and Transmittal Slip, stated “Encouraged her to request additional time.  She thinks she can do it in two days.  Told her that penalties apply after 1100 [unreadable].”  

On 2 May 1997 the applicant was notified that she was designated as a respondent at a board of officers appointed to determine whether she should be declared a non-graduate of the 45th Graduate Course.  On the same date a summary of the applicant’s academic standing was completed.  That summary showed that the applicant was either “failing performances or meet the definition of ‘Marginally achieved Course Standards’” for the Criminal Law 2 exam, the research paper in question in the applicant’s request to the Board, Fiscal Law, Contract Administration (Core), Law of Federal Employment/Federal Labor Relations (Core), Environmental Law (Core), Crimes and Defenses (Elective), and Claims (Elective).  She then had a total of 12.75/33 credit hours below school standards.

On 5 May 1997 a suspension of favorable actions was initiated against the applicant due to the fact that she was pending adverse action.

The applicant graduated from the class and was given an AER for the period covering 1 May 1996 through 27 May 1997.  In that AER it was stated that the applicant achieved course standards in item 13, Performance Summary.  In item 15, Has The Student Demonstrated The Academic Potential For Selection To Higher level Schooling/Training?, the “No” block was checked.  In item 16, Comments, the applicant’s rater stated “In a scholarly research and writing exercise [the applicant] was required to re-write her research paper twice because her first two submissions received failing grades.  Although the third submission achieved a passing score, her overall performance in the Professional Writing Program only marginally met standards expected of a post-graduate student.”

On 12 February 2000, approximately 2 years and 9 months after she completed her class, the applicant submitted an appeal of her AER to the Officer Special Review Board (OSRB).  The basis for her appeal is essentially the same she has used in her appeal to this Board.  On 20 March 2000 the OSRB returned the applicant’s appeal without action.  The OSRB stated that the appeal did not provide sufficient evidence of a clear and convincing manner for the OSRB to consider her appeal.

On 2 June 2000 the applicant’s civilian counsel submitted a request to have a formal decision rendered on the applicant’s appeal.  On 5 July 2000 the OSRB denied the applicant’s counsel’s request stating that counsel did not provide any new evidence in which to base an appeal to the OER.

In support of her application she submits:

- a sworn statement from a Chief Warrant Officer Two (CW2) who stated that the applicant had brought her computer to him on either March 19th or 20th asking for his assistance in retrieving a large document which she had accidentally deleted.  The warrant officer stated that he was unable to retrieve the document, but continued by saying “It seems strange to me that someone would go through the steps necessary to delete a document, if the document were valuable . . .”  

- a statement from a woman who states that she had issued the computer to the applicant at the school.  This woman stated that when the applicant had reported having problems with the computer, she tested the computer by writing a document, leaving the document, and then editing the document later.  This experiment resulted in the original document remaining intact but the later editing being lost.  The woman reported that she reloaded the Windows operating system on the computer and the problem was solved.  

- a statement from a fellow student who stated that the fact that the applicant was not given an extension to submit her paper while white students were given extensions is evidence of “racism” by the staff of the school.

- the professional Writing Program Manual that she was issued when she was given her writing assignment.  Paragraph 4-6 of that manual states that “Requests for extension of deadlines shall be granted only for good cause.  ‘Good cause’ must be based on a condition or event beyond the student’s control, which interfered with work to such a degree, or occurred in such close proximity to an approaching deadline, that an extension of time is necessary to give the student a fair opportunity to complete the requirement.  Examples of ‘good cause’ are a family emergency or the serious illness of the student.”

- copies of the graded versions of both the original and resubmission versions of her paper.  In one instructor’s grading (two instructors graded each paper) for her original submission it was stated that the paper didn’t really demonstrate originality of thought or evidence of imagination.  The instructor continued that analytical ability was not apparent, that there was no analysis, just conclusions.  The required citations and support for her paper lacked throughout.  Her paper was too confusing and too repetitive.  There was no logical flow and no progression, there were blank cites or no cites or cites in the wrong form, and many sentences were left incomplete or didn’t make sense.  The grader concluded that the paper was an unprofessional effort, the paper would be weak as a first draft, and the paper’s failure resulted from a combination of superficial research effort and complete lack of adherence to professional writing standards.  In the second instructor’s grading of her original submission it was stated that the paper didn’t seem to have any independent thought, and it didn’t have any flow or analysis  That instructor further stated that he didn’t know what the issue of the paper was, he didn’t know what the applicant was attempting to accomplish with the paper, and the content was choppy.  In the graded resubmission, the first instructor stated that there was no evidence of originality of thought or imagination, there was no analysis or synthesis evident, the analysis was “badly done”, and the clarity and precision of organization and language in the paper was unsatisfactory.  The second instructor stated that there was still no analysis or thought process evident, that there was no point to the paper, that the applicant cited a lot of irrelevant cases, and that the paper had very poor organization.  The instructor concluded that the resubmission was “sloppier than the original.”

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

1.  The applicant’s primary contentions appear to be that her professional paper was not completed on time because problems with the computer she was issued by the school caused the loss of that paper, or at least a large portion of that paper, and she was not given an extension to reconstruct or later complete a rewrite of the failed paper, even though white students were routinely given such extensions.

2.  The Board will consider each of these contentions separately.  The first contention, that her professional paper was not completed due to computer problems, is not supported by the evidence of record.  The statement by the CW2 from the school, apparently the information management officer, indicates that someone deleted a large document from the applicant’s computer.  That statement does not in any way indicate that a problem with the computer caused the loss of a document.  The statement from the individual who issued the computer to the applicant indicates that the computer would save the base document but would not save any editing to an already saved document.  This means that the applicant would only have lost one day’s work before she discovered the malfunction.  

3.  The applicant claims that her instructor denied her request for an extension, and the memorandum he had claimed to give her encouraging her to apply for an extension was never given to her.  However, the only argument or evidence the applicant gives to support this allegation is the contention that it would have been preposterous for her not to ask for an extension because of the proximity of her final examinations.  Without some form of evidence to show that her instructor submitted a fraudulent document to the academic board, this Board must presume that the applicant was, in fact, offered an extension and declined that extension.

4.  Notwithstanding the foregoing, even if the applicant could show that she was not offered an extension, it would not be sufficient evidence in and of itself to grant her request.  She would also have to show that other students were offered extensions to complete their professional paper, that those students’ academic standing was comparable to the applicant’s academic standing at the time they were given those offers, and the reason for their inability to complete their papers were the same or similar to the applicant’s reason.  Without a showing of all three of these occurring, a showing that there were differences in the treatment of students would be meaningless.

5.  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

__rvo  ___  ___tl____  ___wtm _  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042554	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010206	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.		

That a computer which had been issued to her by the school deleted a large amount of data from her research paper.  Despite that problem, her request for an extension to submit the paper was denied.  Her instructor stated that he was denying her request because she had waited too long to do her paper.  She was then forced to submit an incomplete paper, which resulted in her receiving a failing grade.  She was given the incomplete paper back and told she had to submit a new draft and final paper, both of which were due in the middle of final examinations.  She requested an extension for both her new draft and final paper, but was told that two weeks was the maximum time allowed to submit a replacement for a failed paper.  She then developed flu-like symptoms, for which she was prescribed rest for a “few days” and medication which caused her to feel fatigued.  Despite that illness, she was not granted an extension to submit her replacement paper.  Studying for her final tests and new computer problems prevented her from completing a thorough new draft or final paper in the time prescribed, resulting in her resubmission also being graded as incomplete.  This resulted in her referral to an academic board to determine whether she should be declared a non-graduate of the course.  The academic board provided her with packet containing a statement from her instructor.  In that statement her instructor stated that he encouraged her to request an extension to complete the paper, and enclosed a copy of the memorandum he had given her encouraging her to request an extension.  The applicant charges that her instructor’s statement was false and she was never given the memorandum.  However, the academic board was never convened with her as a respondent since she and her lawyer made an agreement with the school academic director that her then completed paper would be graded and, if it received a passing grade, she would be graduated from the school.