PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           21 FEBRUARY 2002                  
	DOCKET NUMBER:   AR2001059302

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Melvin H. Meyer		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 academic evaluation report (AER) for the period 3 August 1998 through 4 June 1999, and the 25 May 2000 memorandum of reprimand be expunged from his official military personnel file (OMPF). 

3.  The applicant provides a 12 page statement with numerous enclosures concerning the incident that led to the adverse AER and the memorandum of reprimand.  He states in his 6 page statement titled “Factual History:”

•	That a faulty handling of an allegation of plagiarism against him at the Command and General Staff Officers Course (CGSOC), compounded by subsequent mistakes resulted in an injustice to him.  
•	He was enrolled as a student in the CGSOC, had maintained a straight  “A” record as evidenced by his academic transcript, took additional requirements to earn an additional skill identifier, and completed his doctoral dissertation at Columbia University.
•	Members of his class were required to complete a project for an advanced tactics elective, A306.  Early in the course, in February 1999, the course instructor, LTC “W,” issued his guidance for the assignment.  The class was assigned into groups of three officers with each group required to develop a battalion-level training exercise composed of several areas in which “lane training” would be conducted.  The assignment was to be presented as an oral briefing to the instructor, LTC “W.”  The students were told they could use any source material they wished, but that he wanted them to focus on one training lane in great detail.  LTC “W” also informed them they he intended to distribute the briefings to all members of the class at the end of the course.  Based on the instructor’s guidance, he believed that the assignment was one in which the sharing of information was allowed and encouraged, and that the graded portion of the exercise was the oral briefing.  Other students believed likewise and so testified before the academic board.  
•	The final suspense for the briefing was 28 May 1999.  Because of various circumstances, just himself and one other member of his group, “Maj “C,”  were to do the briefing.  He discussed the briefing with “Maj C,” and subsequently with several members of his class who had presented their briefings.  They indicated that it was not clear what format the instructor wanted.  A “Maj P” offered his briefing, stating that the format was correct. He (the applicant) stated that he would use it and acknowledge his assistance.
•	He got together with “Maj C” and decided how to do their briefing, assuring “Maj C” that he would fully acknowledge the assistance of “Maj P,” and only brief those items that were his (the applicant) own work.  Later that evening, “Maj P” e-mailed his briefing.  He changed minor parts, but overall left the great majority of the slides as he received them.  On         28 May 1999 he met “Maj C” and rehearsed the briefing.  He pointed out the changes he had made, stated that he would lead the discussion, provide an overview of the training plan, and focus on his lane, after which “Maj C” would present his oral briefing over the map.  They reported to “LTC W,” and he explained exactly what was his own work and what he would present.  He introduced the briefing, gave credit for assistance to “Maj P,” and during the course of the briefing, again pointed out that he had received assistance from “Maj P.”  The briefing concluded without incident.
•	On 1 June 1999 he was summoned to the office of “Col S,” the Director of the Tactics Department, and read his rights.  Others in that office were “LTC W,” the Deputy of the Tactics Department, and his academic advisor (ACE) “CH (Maj) B.”  “Col S” read him several paragraphs from the academic handbook concerning plagiarism, and asked him to explain his briefing.  He did so, stating that he had not intended to deceive anyone, that it would not make any sense to use a briefing that had already been submitted to the same instructor if he were trying to deceive the instructor. Eventually, “Col S” informed him that he would be formally investigated for academic misconduct.     
•	After two days of waiting, he was informed that he would be put before an Academic Misconduct Board.  He asked for guidance and advice from the Professor and Head of the Department of History, USMA; and the George C. Marshal Professor of History, CGSC, who told him that the fact that he had a Ph.D. came up in many conversations and seemed to prejudice the case against him.
•	During the Academic Misconduct Board, he explained essentially what happened.  He had many officers, both students and faculty members, who testified on his behalf.  “LTC W” testified that he had acknowledged assistance from “Maj P,” and that he (“LTC W”) did not prohibit outside assistance.  The attorney representing “Maj P,” stated that he had been a legal officer at West Point and that according to the provisions of the cadet honor code, he had not committed an honor violation – the proven fact of his acknowledgement and the absence of an intent to deceive were sufficient evidence that he had not committed plagiarism.
•	The board focused on the amount of material that was identical in the two briefings.  He explained that he never intended to pass off the borrowed material as his own and that he thought that the graded portion of the exercise was the oral briefing.  He based his case on the fact that he did not commit plagiarism because he had acknowledged both the nature and extent of the assistance received in a group project for which the instructor explicitly authorized and encouraged the sharing of information.
•	In the course of the board, his former partner, “Maj C,” stated that he had no idea that any of the briefing came from “Maj P’s” briefing, and stated that after receiving “Maj “P’s” briefing, he threw it in the trash, never looking at it.  The applicant stated that he knew this to be incorrect, but his lawyer urged him to be quiet as it would serve no purpose to contradict “Maj C.”  He later learned that when “Col S” questioned “Maj C” and showed him two slide packets, “Maj C” reacted with a shocked expression, stating that he had no knowledge that they had used “Maj “P’s” briefing.  This was untrue.  Board members congratulated “Maj C” when he cheerfully answered, “No sir,” after they jokingly asked if he had a Masters Degree.
•	After deliberations, the board president informed him that they would recommend to Brigadier General (BG) “W,” Deputy Commandant, that he redo the problem in its entirety, and that he receive a letter of reprimand to be filed locally.  “Col S“ seemed displeased that he did not receive a harsher punishment.
•	On 14 June 1999, he presented his briefing to the Deputy of the Tactics Department, and was informed that he had passed the course.  Afterwards, he reported to “Col B,” Director of Student Affairs, who advised him to write a statement concerning the testimony of “Maj C.”  “Col B” stated that “Col S” was not happy with the outcome of the board and that he and “Col T,” Dean of Academics, were going to urge BG “W” to punish him more severely.  He wrote the statement.  On 15 June 1999 he left Fort Leavenworth, with the understanding that the incident was closed.  He moved to Germany to his gaining battalion and deployed to Kosovo two weeks later as the battalion S-3.        

4.  In 3 pages of his statement, titled “Procedural History,” the applicant states:

•	He received a memorandum of reprimand from BG “W,” who stated that he was considering altering the recommendation of the Academic Misconduct Board and filing the reprimand in his OMPF rather than locally. He replied, requesting that BG “W” reconsider.  In late December 1999 he received the general’s reply to him in the form of a memorandum through his chain of command presenting them with the option of acting upon it.  BG “W” stated that based upon the points he raised and the overall evidence he changed his decision and would not place the reprimand in his OMPF.  His battalion commander informed him that the brigade commander did not want to take any action regarding the entire matter.  He was subsequently selected to remain in the brigade for a second year as a battalion executive officer,  receiving an outstanding “above center of mass” officer evaluation report (OER). 
•	In January 2000 he received an adverse AER.  He rebutted the report and in a memorandum dated 25 May 2000, “Col “T” indicated that each of his requests for upgrade would be granted in every area requested; however, he received neither a copy of the AER nor a notice of referral with the memorandum.  Nor did he receive a copy of the AER, which is currently in his OMPF.  The narrative portion of the report in his OMPF (from the original proposed referred report) had been downgraded to include the phrase “substantiated plagiarism” in the performance section, and the potential remark was changed from “Will succeed at higher levels” to “Can succeed at higher levels.”
•	On 11 November 2000 he initiated an appeal to have the AER and the three accompanying memorandums removed from his OMPF.  That appeal was not acted upon.  On 14 December 2000 he initiated an appeal through the Officer Special Review Board (OSRB) to have the AER and the memorandums removed from his OMPF.  Subsequently, he provided the OSRB additional material they had requested.  In late January 2001 his appeal was returned without action; however, two of the three memorandums were removed from his OMPF.  Additionally, he was informed that he could submit an application to this Board.

5.  In the remaining 4 pages of his statement, titled “Argument,” the applicant states:  

•	That there were separate series of mistakes that caused the injustice to him – the initial handling of the plagiarism case against him, both the investigation and the conduct of the Academic Misconduct Board; the actions taken by selected individuals at the CGSC after the Academic Misconduct Board reached it verdict; and the violation of regulations governing the processing and filing of evaluation reports.  
•	The charge of plagiarism was clearly refuted by the fact that he acknowledged both the use and source of outside assistance, and permission to use outside materials was granted.  The board demonstrated this clearly, and “LTC W” testified that he remembered (the applicant) acknowledging assistance on at least two occasions, once specifically referencing “Maj P.”  The board summary also indicated that the sharing of work was not prohibited and that the instructor never articulated a clear standard of how much or what type of sharing was permitted – when asked about his definition of assistance, “LTC W” stated that he had a definition in his mind what assistance was, but never shared it with the students.  He only briefed the material that he had done himself and made this clear to the instructor during the briefing; therefore, the basic tenets of plagiarism – borrowing someone else’s work without permission and the use of someone else’s work without acknowledgement, did not occur.  His immediate supervisor stated that he acted honestly while the actions taken against him were highly suspect.
•	Despite the verdict of the board, key individuals continued to press the case against him and damage his career and reputation, as evidenced by the memorandum of reprimand being sent to his new chain of command, calling into question its legitimacy as a local document.  
•	Senior officials improperly pressured his rating officer to change his AER, as his rater stated in his 6 December 2000 letter, showing that the spirit and letter of the regulation were clearly violated.  
•	After receiving a proposed AER in January 2000, seven months after leaving Fort Leavenworth, rebutting the report, and receiving a memorandum indicating that his requests for upgrade would be granted, he only learned of the contents of the AER currently in his OMPF in August 2000.  That report includes the phrase “substantiated plagiarism” and “can succeed at higher level” (from “will succeed at higher levels”).
•	His rater, “Maj B,” did not agree with the contents of either of the reports.  By his own admission, he signed the initial proposed referred AER and the second AER despite the fact that he believed them to be inaccurate at the time, but felt pressured into signing them.
•	Senior officials improperly directed the lowering of his AER in response to his rebuttal statement, an action prohibited by regulation.  Although his rebuttal was successful, as evidenced by the changes in block                 13 (achieved course standards), block 14d (“SAT” or satisfactory performance), and deleting the comment in block 16 stating that he had been required to retake A306; the report was lowered in areas in which he did not contest.  The regulation specifically prohibits the lowering of a report after a rebuttal.  
•	The AER contained inaccurate statements of fact as evidenced by the memorandums from his supervisor and his rater.  The investigation, Academic Misconduct Board, and subsequent filing actions were handled imperfectly.  Furthermore, his official and final academic transcript reflected consistent superior performance.  The simple fact that he was awarded an “A” in every course he took, including the course in question, makes it inconceivable that he was guilty of plagiarism.
•	The rating officials failed to properly refer the report to him for comment, a violation of the regulation.  Even though two memorandums were removed by the OSRB because they were improperly placed there, the presence of the remaining memorandum is effectively a notice of referral to which he was never afforded the opportunity to respond.
•	The incident is contradictory to every other report and performance appraisal that he has received.  Documents, both before, during, and after his attendance at CGSOC show the nature of his performance.  He is currently serving as Aide-de-Camp to the Commanding General, V Corps.

6.  The applicant is a Year Group 1986 officer who was commissioned a second lieutenant from West Point on 28 May 1986.  He was promoted to major on          1 September 1997.  The applicant’s evaluation reports, copies of which are at enclosure 19 to his application, have been superb throughout his military career. He has consistently been rated as an above the center of mass officer, both before and after his assignment at Fort Leavenworth.  His academic transcript at the CGSC show that he received a grade of “A” on all courses, to include the A306 course (enclosure 1 to his application).     

7.  Enclosure 2 is a summary of the CGSC Academic Misconduct Board.  The summary shows that three officers appeared before the board for alleged academic ethics violations, the applicant, “Maj C,” his partner in the project, and “Maj P,” the officer who provided assistance to the applicant.  The facts as shown in the summary are consistent with the applicant’s statements -

•	“Maj P” stated that he did give portions of his group briefing to the applicant, but had no knowledge of what the applicant had briefed, and had no idea how similar the applicant’s briefing was to his own until sometime after the briefing, stating that the applicant’s briefing was similar for the first half, but the second half did not look anything like his.
•	The applicant provided much of the same information as shown in his application to this Board, stating that the events described by “Maj P” were accurate, that he wanted to use “Maj P’s” project as a shell to develop his own, and that he thought that it was a group project to result in an oral presentation to the class, not an individual writing assignment, and that he thought the intent of the project was to build one lane with the rest of the package being insignificant.
•	A West Point Colonel, the Department Head of the Department of History, testified as to the applicant’s integrity, and when questioned by the board, stated that if a student presented the work of another, but gave credit to the first student, it would not be considered an honor or ethical violation, and that another student’s assistance had become an accepted practice at West Point.
•	“Maj C,” the applicant’s partner in the project, stated that there was never a requirement for an individual writing requirement.  He stated that he and the applicant discussed the requirement and divided up the work and that he did see a hard copy of “Maj P’s” briefing, and based on that he did not see a problem using that as a format or shell for the project.  He did discuss the issue of honor with the applicant, who assured him there would be no problem, as he would use “Maj P’s” work as format only.  The next day, prior to the briefing, they met, and the applicant again assured him there would be no problem with ethics or plagiarism.  They finished consolidating their briefing, and briefed the instructor.  There was never any attempt to hide anything.  When questioned by the board, “Maj C” stated that the applicant did not step over the line at that time in using “Maj P’s” briefing only as a format.  He stated it would appear now, however, that it was more than a format used in the briefing, and restated that he did not know about an e-mail electronic transfer of the data, just the hard copy.  He said that he did see the briefing package prior to giving the briefing to the instructor.  He was under the impression that the slides were developed by the applicant.  He did say that the applicant gave “Maj P” credit during the briefing.  He stated that when he was called into “Col S’s” office during the investigation, he was surprised to see the strong similarity between the two briefings, and did not feel that it would have been within the guidance put out the instructor, but also stated that there was not much guidance put out by the instructor prior to the briefing.  He stated that he threw away the hard copy of “Maj P’s” work provided by the applicant, because it did not apply to the work that he had to do.  He stated that had he known where the contents of the applicant’s slides came from, he would not have been comfortable having those slides being represented as part of his team, and that the assurance given to him by the applicant would not have satisfied him. 
•	“Col S” testified that he saw no similarities between “Maj P’s” work and the work “Maj C” had done, but did see similarities in the work that the applicant had done.
•	The instructor, “LTC W,” stated that at the start of the brief the applicant told him that he had received assistance on the project, but his idea of this was that he had talked to other officers about their plan, how they briefed it, and general topics about the subject.  “LTC W” stated that he had no problems with that.  During the briefing, the applicant admitted that he was not really familiar with the attack lanes of the project, and that he had received assistance.  It wasn’t until after the briefing was over and he was grading the plan from “Maj P’s” briefing that he noticed the similarities.  He stated that no one told him they had copied another group’s project.  He stated that he could not remember the exact instructions he gave concerning the nature of the work, but did tell students to work in groups and not to collaborate with other groups, and that if a small group was having a problem to come to him.  He stated that in the past he had given out sample briefings, with the understanding that they were to be used only as formats.  He stated that he thought that the nature of the assistance the applicant had received was only generalized and not a copy of the work done by “Maj P’s” group.  He said that he had no problem with “Maj P” showing the applicant his briefing, because he thought it was an acceptable sharing of ideas.  Had he known it was an electronic transfer of the briefing by “Maj P’s” group, he would have asked the applicant to redo his briefing.  He stated that he thought that students understood that they would do their own work, not taking information from others and presenting it.  When asked about his definition of assistance, “LTC W” stated that he had a definition in his mind, but never shared it with the students.  
•	A team chief and instructor testified on behalf of the applicant, stating that the applicant conducted himself professionally and that he did not struggle academically.  The academic counselors/evaluators (ACEs) for the three officers testified on their behalf, with the applicant’s ACE, “CH (Maj) B” stating that he believed the applicant to be honest with no integrity problems, and that he felt that “Col S” had drawn his conclusion about the applicant too early in the investigation.
•	Four witnesses testified on behalf of the applicant, attesting to his honesty and integrity.  One, a member of the faculty, stated that in a case where a student indicated that he had received assistance, a warning flag would go up, but he would not consider it plagiarism.  He would have to determine if the briefing would be acceptable or not acceptable.  Another faculty member stated that if a student stated that he received assistance, it would depend on the guidance he had given, but he would probably stop the class to determine what assistance had been given.  He stated that the benefit of the doubt had to go to the student if the instructor had not been clear in his guidance.  The remaining two witnesses stated that having known the applicant, they felt that the applicant was honorable and would not violate his integrity.
•	Counsels for “Maj C” and “Maj P” made closing statements.  The applicant made a closing statement, reiterating that he did not intend to deceive his instructor, but had a fundamental misunderstanding of what the instructor intended for him to do.  His counsel stated that there was no question that the presentation that the applicant was going to hand in would be given to the instructor who he knew had already been briefed by “Maj P,” and that the instructor had stated that he would put on a disk all the briefings and hand them out to class members.  Counsel stated that there was no way that someone could reasonably believe they could get over or get away with what the applicant did, and there was no intent to do so or to deceive. The applicant was not trying to cover up anything.  He was telling the truth.  
•	The board found that “Maj C” did not violate the provisions of a CGSC bulletin and recommended that he be fully exonerated.  The board found that “Maj P” did violate the provisions of the bulletin by assisting the applicant, however, the finding was mitigated by the testimony of his instructor that he would likely have allowed the assistance as long as it was used appropriately by the recipient.  The board recommended that “Maj C” receive a memorandum of counseling from the Dean of Academics.  The board found that the applicant violated the provisions of the bulletin by copying the works of another student and receiving assistance not expressly authorized by his instructor.  The board recommended that the applicant receive a letter of reprimand from the commandant to be filed in his local file and that his completion of CGSOC be contingent upon successful completion of A306.  The president of the board advised the applicant that the deputy commandant/commandant was not bound by the recommendation of the board and could direct any disposition. 
 
8.  At enclosure 3 is a statement of events that preceded the recommendation of “Col S” to refer him to an academic board for plagiarism.  The applicant stated that he understood that the project was an exercise in which information could be shared freely, and that he was under the honest, but mistaken, belief that the focus of the exercise was the oral briefing – that was to be the graded event.  He stated that he understood that he and “Maj C” recognized the majority of the written briefing was a shell that would facilitate the oral briefing.  He described his meeting with “Col S,” where he was accused of plagiarism.  He told “Col S” that if he wanted to commit plagiarism, he would not openly borrow a briefing from a member of his own class, tell him what he wanted to do, tell his partner what he was doing, discuss the subject in front of classmates and neighbors, and then tell his instructor that he had received a lot of help and name the individual from whom he had received the help.  “Col S” noted his statement and released him.  The next day he received formal notification to appear before an academic board. 

9.  At enclosure 4 are three letters submitted on behalf of the applicant, one from a retired General, who attested to the applicant’s absolute integrity; another, from a contemporary, who stated that the applicant would never compromise his integrity; and another, from a classmate who stated that the applicant had fully acknowledged before him and others that he had accepted help from “Maj P.”  
   
10.  At enclosure 5 is a post-Academic Misconduct Board statement by the applicant in which he refutes much of the testimony of his partner, “Maj C.”

11.  At enclosure 6 is a 31 August 1999 memorandum of reprimand from the Deputy Commandant of the CGSC, in which that official stated that he intended to direct filing of the reprimand in his OMPF.  At enclosure 7 is the applicant’s request that the Deputy Commandant reconsider his decision to place a memorandum of reprimand in his OMPF. 
  
12.  At enclosure 8 is an undated memorandum of reprimand submitted through the applicant’s chain of command, from the Deputy Commandant of the CGSC, recommending that they file the reprimand locally.  

13.  At enclosure 9 is a copy of the applicant’s officer evaluation report (OER) for the period 5 June 1999 through 4 June 2000 while serving as the S-3 for a tank battalion, showing that his rater and senior rater indicated that he should be promoted early to lieutenant colonel and selected for battalion command.  He was considered an above center of mass officer on that report.

14.  At enclosure 10 is a 15 December 1999 memorandum from the Dean of Academics, “Col T,” forwarding an adverse AER (also at enclosure 14) to the applicant, and informing him that he could make comments in writing within       10 days of receipt of the memorandum.  The AER shows that the applicant marginally achieved course standards and that his contribution to group work was unsatisfactory.  That report contained the remark on his performance, “Required to appear before an academic misconduct board.  Recommendation was that he be required to retake A306, which he did.  Diploma awarded.  Earned ASI 6Z.  Completed PhD at Columbia University.”  It contained the remark concerning his potential, “Will succeed at higher levels.”  The report was signed by his ACE, “CH (Maj) B,” and by the reviewer, the Dean of Academics, “Col T.”

15.  At enclosure 11 is the applicant’s 12 January 2000 comment on the adverse AER in which he stated that he did not marginally achieve course standards, but excelled academically, maintaining a consistent “A” average, with his final grade point average well above 90 percent.  He earned ASI 6Z.  He was never counseled negatively for academic ability or for being a marginal performer.  He stated that his contribution to group work was consistently rated as excellent – by his ACE and by his instructors.  He stated that the Academic Misconduct Board recommended that he redo a specific project, not the entire course of A306; and as required, he redid the project to the satisfaction of the Department of Tactics. He also stated that the AER differed considerably from that by which he was counseled by “CH (Maj) B” prior to his departure from Fort Leavenworth in June 1999.  He stated that the Academic Misconduct Board and the Deputy Commandant concurred that nothing damaging would be placed in his official file. He stated that it was curious why this AER would be filed some six months after the original positive AER had been written. 
 
16.  At Enclosure 12 is a 25 May 2000 memorandum from the Dean of Academics stating that he had reviewed the applicant’s rebuttal to the referred AER, and had changed block 13 to reflect that he achieved course standards, and block 14d to reflect a “SAT” rating.  He stated that the final report was prepared to reflect that he appeared before an Academic Misconduct Board and had a substantiated finding of plagiarism.  He also stated that the draft AER that his ACE showed him was prepared prior to the convening date of the Academic Misconduct Board.

17.  At enclosure 13 is a 11 November 2000 request from the applicant to the Total Army Personnel Command (PERSCOM) to remove documents which he states were improperly filed in his OMPF.  Those documents were the               15 December 1999 memorandum from the Dean of Academics forwarding the adverse AER; the applicant’s 12 January 2000 memorandum rebutting that AER; and the 25 May 2000 memorandum from the Dean of Academics replying to his rebuttal.  With reference to the latter mentioned memorandum, the applicant stated that the proposed referred AER would be changed to reflect his rebuttals; however the revised and no longer referred AER was not included with the memorandum, and he did not receive a copy of that AER until after he requested and received a copy of his microfiche on 25 August 2000.
18.  At enclosure 1 (Green tab) is a 14 December 2000 memorandum to PERSCOM in which the applicant appealed the adverse AER.  The applicant stated that senior officials improperly pressured the rating officer to change the report, and he provided a sequence of events concerning the filing of the reports. He stated that his rater, who signed both versions of his AER, did not agree with the contents of either one, believing them to be inaccurate at the time, but felt pressured into signing them.  He provided a copy of the memorandum from his rater.  
•	In that memorandum, dated 6 December 2000 (enclosure 18), the applicant’s rater stated that negative comments in the applicant’s AER reflect the position of the Academic Dean, and that he could neither affirm nor deny those comments since he was not given access to the report or advised of its findings.  His rater stated that he expressed reservations about the report, specifically pointing out the added wording concerning a finding of plagiarism would actually serve to make the report more negative than the previous changes that the applicant successfully rebutted.  His rater stated that the applicant was an excellent officer – he never had occasion to question his sense of honor or integrity.  He stated that when he was informed that the applicant was to be questioned about a potential case of academic misconduct, it was clear that it had been pre-determined what had taken place and it was determined to proceed to a board.  He stated that the AER rebuttal should be substantiated. 

19.  He stated in his appeal that senior officials improperly directed the lowering of the report in response to a properly submitted rebuttal statement.  He stated that despite being successful in having the negative and inaccurate comments upgrade or removed, the report was lowered in areas which he did not contest, and that the regulation specifically prohibits the lowering of a report after a rebuttal. 

20.  He stated that the AER contained inaccurate statements of fact in that the Academic Misconduct Board never stated that there was a “substantiated finding of plagiarism.”  That board did not specifically charge him with plagiarism and recommended nothing of a damaging nature be placed in his OMPF.  The inclusion of the phrase, “substantiated finding of plagiarism” is inaccurate and improperly placed on his AER.  He stated that it would be inconceivable that had he been found guilty of plagiarism the instructor would have awarded him a grade of “A” indicating superior performance.  

21.  The applicant stated that the rating officials failed to properly refer the report for his comment, in that the phrase, “substantiated finding of plagiarism,” is a derogatory comment which might have an adverse impact on his career.  The regulation mandates that a report which might have an adverse impact on an officer’s career be referred to the officer for acknowledgment and comment.
22.  The applicant stated that because of the inaccuracies and improper procedures as he described, the report should be removed from his OMPF, or, if the appeal board determined otherwise, he requested that the phrase, “substantiated finding of plagiarism,” be deleted from the report.  He also requested that three memorandums be removed from his OMPF, if not already done so, as he had requested in his 11 November 2000 memorandum to PERSCOM.  Included with his appeal are copies of many of  those documents described above, e.g. Academic transcript, Summary of Academic Misconduct Board, AERs, etc. 

23.  On 17 January 2001 the applicant submitted an addendum to his appeal, forwarding documents requested by PERSCOM (Enclosure 15).

24.  At enclosure 16 is a 23 January 2001 PERSCOM memorandum responding to the applicant’s 14 December 2000 appeal and his 11 November 2000 request that three memorandums be removed from his OMPF.  That command returned his appeal without action, informing him that it did not meet the criteria contained in the regulation.  PERSCOM informed him that the OSRB president reaffirmed the fact that the entry concerning plagiarism was a valid entry, as evidenced by the Academic Misconduct Board and the memorandum of reprimand.  PERSCOM did state that the initial referral memorandum of 15 December 1999 and his comments of 12 January 2000 should be removed from his OMPF and that action had been taken to do so.  PERSCOM stated, however, that the second referral memorandum dated 25 May 2000 would remain in his OMPF.  He was advised that the ending date of 4 June 1999 on the contested AER was in error since it appeared he remained at the school beyond that date to resolve the plagiarism issue.  He was requested to advise PERSCOM as to the accuracy of the date and any corrections required.      

25.  At enclosure 17 is a 19 March 2001 memorandum to this Board supporting the applicant’s request from a lieutenant colonel who was a staff group leader at the CGSOC and the applicant’s direct supervisor.  That officer stated that he was made privy to the charge of plagiarism and aware of the applicant’s work that he was doing for his portion of the requirement.  He stated that the applicant was true to his ethics and to the honor code at all times during the academic year; and it was his opinion, having participated in the hearing, that it was conducted in a less than circumspect manner.
  
26.  In a 22 June 2001 letter to this Board supporting the applicant’s request, an assistant professor at the CGSC stated that he testified at the Academic Misconduct Board, and that it was his opinion, as an instructor at Fort Leavenworth for more than 10 years, that the case was a misunderstanding between an instructor and a student and did not merit board action, and under no circumstances, an adverse ruling and potentially career ending report in the 

applicant’s OMPF.  He stated that the applicant was an outstanding officer and a superior student – and he presented a briefing to an instructor with the up front acknowledgment that major portions were taken from another student’s briefing.  He stated that since there were no written instructions or guidance the onus was on the instructor to stop the briefing and make further inquiries if it was not an acceptable action by the student, or to issue a failing grade.  Instead, the instructor said nothing to the applicant, but reported it up to the academic chain of command.  He stated that the applicant’s actions did not justify an academic board.  He stated that he testified at that time, and still firmly believed, the primary fault was with the instructor, that it was not a matter of wrongdoing, but a matter of misunderstanding of basic academic principle and procedures.  The institution supported its instructor, when the benefit of the doubt should have gone to the applicant.  The applicant was unfairly punished when the procedures were not clearly spelled out and when an instructor used very questionable judgment concerning plagiarism.  The fallacy of “we have to do something because we held a board” placed an undeserved “black mark” on an outstanding soldier’s record.    

27.  In a 24 July 2001 letter to this Board supporting the applicant’s request, a professor of strategy at the CGSC stated that he had been an instructor at the CGSC for more than 14 years.  He also stated that the case arose as a result of poor instructions given by his instructor and the institution felt obligated to support the instructor.  He stated that there should have been no board, and certainly no adverse ruling.  He stated that the instructor had given no guidance, which was contrary to CGSC policy, as to the amount of help a student could receive on a graded product.  Once the applicant made the statement that he did, the instructor should have immediately stopped the briefing and taken necessary action to address the situation.  He did nothing, allowed the briefing to go on, gave no feedback to the applicant, and did not discuss it with him, instead reporting the briefing as an incident of plagiarism.  
 
CONCLUSIONS:

1.  The applicant was pressed for time.  He borrowed a fellow student’s work, not just a hard copy for use as a format, but an electronically transferred copy from which he could make any changes and use during his briefing.  The applicant does not dispute this, and testimony before the Academic Misconduct Board revealed it to be so.    

2.  Nonetheless, during his briefing he acknowledged receiving assistance from that student, both the nature and extent of the assistance.  His instructor, while stating that the applicant did acknowledge assistance, stated that he understood that the nature of the assistance was only generalized and not a copy of the work done by a fellow student.  The fellow student stated that he was not aware that the applicant was going to use his work as he did.  The applicant’s partner in the project stated, in effect, that he was not aware that the slides presented during the briefing were not the applicant’s own creation.  He did say, however, that the applicant did give credit to “Maj P” for “Maj P’s” work.  This information is also contained in the summary of testimony before the Academic Misconduct Board.

3.  The applicant’s statement that he understood that the graded portion of the exercise was the oral briefing, implying that the written matter was somewhat inconsequential, is borne out by the testimony of his partner in the project who stated that there was never an individual writing requirement.  Nonetheless, this same person stated that had he known where the contents of the applicant’s slides came from, he would not have been comfortable using them.  His partner stated that he felt that it [using someone else’s slides] would not have been within the guidance put out by the instructor, but did state that there was not much guidance put out by the instructor. The instructor himself stated that assistance was not prohibited; however, when asked about his definition of assistance, stated that he had a definition in his mind, but never shared it with the students.       

4.  It would appear to this Board, that regardless of what portion of a work was to be graded, the whole of the work would be graded, and that work would be that of the person responsible for doing the work – not something from another.  It would also seem that a student at the CGSC would know that “assistance” in a project would not mean using someone else’s work.  The Board notes that there is no evidence or mention that anyone else in the applicant’s class received the assistance that he did.  

5.  The Board notes the support that he has received from his former rater, supervisor, faculty members of the CGSC, contemporaries, and others, concerning the applicant’s honesty and integrity.  The applicant’s evaluation reports, both before and after his attendance at CGSC reflect his commendable performance of duty, moral courage, and ethical conduct.  The applicant is an officer of unquestionable ability as reflected by his evaluation reports and by the grades that he achieved at CGSC.  There was no need for him to obtain assistance from another - He had to redo the project, without receiving any assistance, three days after the decision of the Academic Misconduct Board. 

6.  The Board also notes the opinions concerning the lack of guidance given by the instructor, the views that the briefing should have been stopped once the applicant had acknowledged assistance, the beliefs that the applicant’s actions did not warrant an academic board, nor did the applicant merit the punishment given.  The applicant’s instructor stated that had he known of the electronic transfer of documents he would have required the applicant to redo the briefing. 
Perhaps the instructor should have inquired into the nature of the applicant’s assistance.  He did not.  Perhaps he should have confronted the applicant once he discovered the similarities of his briefing with that of a fellow student.  He did not.  The instructor did what he felt was right.  Responsible persons were notified.  An investigation was conducted, a board met, and a decision rendered. There is no wrong here, despite the opinions of others.    

7.  Although the Academic Misconduct Board found him guilty of plagiarism, it recommended that he redo the project, which he did, receiving a grade of “A” in the course, and all courses at the CGSC.  There is no evidence, nor has the applicant provided any, to show that members of the Academic Misconduct Board acted improperly in coming to their decision.  Nonetheless, the finding and recommendations of the board, his grade in the course, and the information contained in his AER, are not consistent.  It would seem that a student found guilty of plagiarism would be graded a failure in that course.  His initial AER was successfully rebutted, but changed to his detriment after that rebuttal as the applicant has stated.  Furthermore, the applicant’s rater stated that he did not agree with the contents of either versions of the AER, but was pressured into signing them.        

8.  Plagiarism is defined as the act of taking ideas, writings, etc., from another and passing them off as one’s own.  There is no doubt that the applicant used another’s work during the project; however, there appeared to be no overt intent to pass that work as his own, or to deceive his instructor.  The applicant’s argument that had he tried to deceive his instructor, he would not have openly borrowed and used another student’s work and discussed doing so, makes sense.  He also knew, as did members of his class, that his presentation would be  reviewed along with the student’s work that he borrowed.    
  
9.  The applicant might have acted imprudently and hastily in his attempt to complete the project; and, while the actions taken by  persons to investigate his actions, to convene and conduct an Academic Misconduct Board, and to render a decision, were administratively correct, this Board believes that the matter could have been justly decided without referral to an academic board.  The incident could have been prevented by thoughtful actions on the part of responsible individuals.  The applicant has been unfairly and unjustly harmed as evidenced by a memorandum of reprimand and an improperly prepared AER.  

10.  Consequently, the AER for the period 3 August 1998 through 4 June 1999 and related documents should be expunged from his OMPF.  The memorandum of reprimand from the Deputy Commandant, U.S. Army Command and General Staff College should be removed from his local file.  

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by removing the 3 August 1998 through 4 June 1999 AER and related documents from the applicant’s OMPF, and by removing the 15 May 2000 memorandum of reprimand from his local file. 

BOARD VOTE:  

__GDP__  __TAP __  __MHM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___George D. Paxson___
		        CHAIRPERSON

INDEX

CASE ID	AR2001059302	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020221	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.	193	
3.		
4.		
5.		
6.