BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150013855 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ____x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150013855 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________x_______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150013855 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests: a. The following documents be removed from his official military personnel file (OMPF): * DA Form 1059 (Service School Academic Evaluation Report) (AER), dated 6 December 2012 (hereafter referred to as the contested AER) * DA Form 67-9 (Officer Evaluation Report) (OER) for the period 1 August 2012 - 31 July 2013 (hereafter referred as the contested OER) b. The decision to permanently disenroll him from the Intermediate Level Education (ILE) - Advanced Operations Course (AOC) be reversed and he be allowed to reenter the AOC course again without prejudice. 2. The applicant states the basis for his appeal is both administrative and substantive error, but really amounts to the instructor and him having words about the AOC program. The applicant was a full-time National Guardsman State Inspector General at the time and disparaging remarks towards the National Guard and Reserves fueled this directive towards him. The final dismissal memorandum states the Army Regulation (AR) 15-6 (Investigation Guide for Informal Investigations) investigation found that he plagiarized his H209 Argumentative Essay by copying material from seven online sources and he failed to cite "any" of the sources in his paper or the bibliography. Because of this egregious substantive error, the school house dismissal letter and permanent disenrollment are currently administratively in effect, the Louisiana National Guard (LAARNG) opted to not promote him, and subsequently, after a 26-year career, he was not retained and was given a referred OER. 3. The substantive error on appeal is on the dismissal memorandum dated 29 October 2012. The accusations of plagiarizing are supported by, "You failed to cite ANY of the sources in your paper or the bibliography." The aforementioned statement is what he is disputing and is clearly substantively inaccurate. He was very surprised and even more so concerned that the memorandum made it up the chain to the general officer (GO) level with that grossly deviated written observation. a. The Argumentative Essay without doubt was assembled from internet data. The applicant unequivocally admits that. He however, cited the major internet sites, which is the genesis of this appeal. He had no malicious intentions of hiding, camouflaging or disengaging the data from its source. He may not have properly synchronized the bibliography in the correct format, but him not citing is clearly disputable and evident on the first copy the essay. But for him citing some of those sites, the instructor was able to go straight to the source and pull up the data. b. On the second copy of the Argumentative Essay from the school house, the instructor identified all the data that was from the internet. The instructor corrected bibliography errors, further proving and supporting that he did indeed cite his work. c. The final copy of the Argumentative Essay is from the school house where the instructor has spaced the document and has further identified the same data from the internet, which again is not in dispute, because it again supports his findings. Of special note however, the earlier aforementioned bibliography is no longer present. Citations were in fact present and a part of his original submission as well as the copies that the instructor originally corrected, but this final edition with his specific notes doesn't show any of the citations. This again is the genesis of his dispute. He did in fact have citations included in the original and his annotated copy, but they were taken off the final copy for record at the School House. The evidence is clear and at the end of the day, he believes this to have been unfortunately personal. 4. The presumption of regularity should clearly not be applied to this report. In addition to the petition and reasons above, there is much inconsistency and many mitigating circumstances that should be given consideration. He was given an incomplete copy of the AR 15-6 which didn't address the findings and recommendations and the findings and recommendations approved by the appointing authority was not shown on DA Form 1574. One of the more disappointing actions was allowing him to continue the course and within 3 weeks or so from graduation, initiate the fallout he has been dealing with for 3 years. 5. The erroneous substantive errors led to the dismissal letter and then permanent disenrollment resulted in the LAARNG opting not to promote him. Subsequently, after a stellar 26-year, three-tour career, he was given the aforementioned referred OER and not retained. He was a full-time dual status federal employee (WS 14/5), but because of non-retention, he could not maintain his federal position. He and his family have suffered great financial loss of wages, loss of medical as well as mental and emotional anguish, damages and anxiety because of this setback. Because of his willingness to continue to serve, he opted not to join the Retired Reserve and transitioned to the Selected Reserve. Since this incident however, he was picked up by the U.S. Army Human Resources Command (HRC) in the Individual Ready Reserve (IRR), promoted, and just recently, through persistence, determination and will because of a very ill spouse, he was placed in an individual mobilization asset (IMA) position and is doing somewhat better. However, the school house scars and the subsequent actions remain. He is only seeking fair and just relief in the presence of the irregularities. 6. The applicant provides: * three memorandums, dated 19 and 29 October 2012 and 7 January 2013 from the U.S. Army Command and General Staff College (USACGSC), Fort Leavenworth, KS * the contested AER * three copies of the H209 Argumentative Essay * original appeal to the School House * appointment order and DA form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) * Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) telephone interview * Officer Special Review Board (OSRB) Record of Proceedings CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant previously served 6 years in the LAARNG in an enlisted status. On 25 August 1996, he was appointed a second lieutenant in the LAARNG. 3. On 13 September 2006, the applicant was promoted to major. 4. On 25 August 2009, the applicant was notified he had completed the required years of service for eligibility for retired pay upon application at the age of 60. 5. The applicant served in Iraq from 12 March 2010 - 3 December 2010. 6. The applicant provided three copies of his H209 Argumentative Essay. a. The first copy contained a one-page bibliography that listed three sources, one of which provided an internet address. b. The second copy contains hand written notes indicating exhibits E, F, G, H, I, J, and K. This copy contained a one page bibliography that listed the same sources as the first copy. c. The third copy, which the applicant states is the final copy from the School House, is double spaced and contains handwritten notes showing eight internet websites. There is no page listing a bibliography for the essay. 7. On 20 July 2012, an investigating officer (IO) was appointed pursuant to AR 15-6 to conduct an informal investigation into allegations of an ethics violation by the applicant. 8. The applicant provided a DA Form 1574 that indicated the IO completed the investigation on 27 July 2012. The IO's findings and recommendations were not entered on the form. The form is signed by the appointing authority, approving the findings and recommendations of the IO. 9. On 2 September 2012, the applicant submitted an appeal and reconsideration on the intent to dismiss him from ILE AOC. a. The applicant stated his actions were without any malice or malicious intent in submitting the H209 Argumentative Essay. He placed the cited reference on his paper, further illustrating that he had nothing to hide. His citation proper was not correct and he had some work to do on that phase. He could have done a better job and humbly regretted that this incident had placed a cloudy persona of his personal standards and special trust reposed upon him as a commissioned officer. b. Since enrolling in the ILE AOC, he had been an active participant while dealing with his full-time duties as a dual status federal employee of the National Guard, which included the State Inspector General. He also dealt with the loss of two family members who were a mother and a 37-yer old daughter respectively, a mis-carriage that put duress on a shakey marriage, the hospitalization of his wife due to Lupus, and recently the miracle birth of a 6-week pre-mature little girl who was waging a battle just to come home. c. The applicant asked that some of the extenuating circumstances be taken into account and allow him to see this phase of his military through. 10. In a memorandum, dated 19 October 2012, Brigadier General (BG) D, Deputy Commandant, USACGSC, stated that he reviewed and considered the documents supporting a General Officer Memorandum of Reprimand (GOMOR). BG D determined the GOMOR would be permanently filed in the applicant's official military personnel file (OMPF). There is no GOMOR currently filed in the applicant's OMPF. 11. On 29 October 2012, Lieutenant General (LTG) P, Commandant, USACGSC, informed the applicant that it was his decision that the applicant be dismissed from ILE AOC with no opportunity to complete the course by any means in the future. a. An AR 15-6 investigation found that the applicant plagiarized his H209 Argumentative Essay by copying material from seven online sources. He failed to cite any of the sources in his paper or the bibliography. b. LTG P reviewed the AR 15-6 packet and the applicant's Appeal and Reconsideration, dated 2 September 2012. 12. The contested AER, dated 6 December 2012, shows the applicant was enrolled in the ILE AOC at the USACGSC from 14 February 2012 - 9 October 2012. The contested AER indicated the applicant failed to achieve course standards. a. Item 13 (Has the student demonstrated the academic potential for selection to higher level schooling/training) is checked "NO." b. Item 14 (Comments) states "student is permanently disenrolled due to academic misconduct." 13. On 7 January 2013, the contested AER was referred to the applicant for his acknowledgement and comment. 14. On 30 May 2013, the applicant submitted an appeal to the contested AER. He disputed the statement, "you failed to cite any of the sources in your paper or the bibliography." The applicant provided three copies of the H209 Argumentative Essay. a. The Argumentative Essay, without doubt was assembled from internet data. The applicant unequivocally admits that. However, he cited three major internet sites which is the genesis of this appeal. He had no malicious intentions of hiding, camouflaging or disengaging the data from its source. He may not have properly synchronized the bibliography in the correct format, but him not citing (ANY) is clearly disputable and evident on the first copy the essay. But for him citing some of those sites, the instructor was able to go straight to the source and pull up the data. b. The second copy of the Argumentative Essay from the School House on which the instructor used to identify all the data that was from the internet. The instructor corrected bibliography errors, further proving and supporting that he did indeed cite his work. c. The final copy of the Argumentative Essay from the School House where the instructor has spaced the document and has further identified the same data from the internet, which again is not in dispute, because it again supports his findings. Of special note however, the earlier aforementioned bibliography is no longer present. Citations were in fact present and a part of his original submission as well as the copies that the instructor originally corrected, but this final edition with his specific notes doesn't show any of the citations. This again is the genesis of his dispute. He did in fact have citations included in the original and his annotated copy, but they were taken off the final copy for record at the school house. The evidence is clear and at the end of the day, he believes this to have been unfortunately personal. 15. On 27 February 2014, the Officer Special Review Board (OSRB) denied the applicant's request to remove the contested AER from his OMPF. The applicant failed to provide evidence that established clearly and convincingly that the presumption of regularity should not have been applied to the report. There was no evidence that the ratings and comments reflected on the contested AER were anything other than the considered opinions of the rating officials at the time the report was submitted. 16. The contested OER was a referred report. It was an annual report that covered 12 months of rated time. The applicant was assigned as the Plans and Policy Officer, Joint Force Headquarters-Louisiana, Camp Beauregard, Pineville, LA. The applicant's rater was Colonel JSC and his senior rater (SR) was BG BDK. His rater signed the contested OER on 19 December 2013 and his SR signed it on 21 February 2014. The applicant signed the contested OER on 15 March 2014. a. In Part IVa (Army Values) the rater place an "X" in the "NO" blocks for Honor, Integrity, and Duty. He placed an "X" in the "YES" blocks for Courage, Loyalty, Respect, and Selfless-Service. b. In Part IVb (Leader Attributes/Skills/Action) the rater placed an "X" in all of the "YES" blocks. c. In Part Va (Performance and Potential Evaluation) the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block. In Part Vb (Comment on Specific Aspects of the Performance) rater's comments included: [The applicant] has showcased an outstanding performance as the Financial Liability Investigation of Property Loss (FLIPL) Administrator for the Louisiana Army and Air National Guard. During this period, [the applicant] has decreased the total number of open FLIPLs from 210 to 163, and greater than 240 days old by 17. His ability to manage multiple missions allowed him to maintain continuous coverage and oversight of 210 cases and multiple investigations across the Direct Reporting Units. As a focused and experienced leader, [the applicant] uses both his legal and Inspector General background to adjudicate cases and issues at the lowest level. [The applicant] developed and routinely briefed the Assistant Adjutant General for final liability dispositions with a 98% first go rate. While maintaining a superior performance rating in the J4 Directorate, [the applicant] manages to reflect great credit on himself as the consummate citizen Soldier, as he serves as a Board Director with the Central Louisiana Chamber of Commerce, Chairman of the 8 Parish Central Louisiana Red Cross Board of Directors, and a Court Appointed Special Advocate (CSA) just to name a few. Unfortunately, [the applicant] was permanently disenrolled from ILE/AOC for Academic Misconduct during this rating period. d. In Part Vc (Comment on Potential for Promotion) the rater stated: Limited potential. Promote to LTC if appeal processes are successful in his favor after a 12 month review period. e. In Part VII the SR placed an "X" in the "Do Not Promote" block in his evaluation of the applicant's promotion potential to the next higher grade. The SR marked him "Below Center of Mass Do Not Retain." The SR's comments in Part VIIc (Comment on Performance/Potential) included: [The applicant] has met expectations during his current duty as the Plans and Policy Officer regarding assigned tasks within the Directorate of Logistics. He is a highly intelligent and articulate officer with the capability for success; however, [the applicant] was issued a "Failed to Achieve Course Standards" Academic Evaluation Report from the command and General Staff College for his performance in the Intermediate Level Education - Advance Operations Course (DL) and has been permanently disenrolled due to academic misconduct. Concur with the Rater's comments regarding [the applicant's] limited potential for promotion to positions of increased responsibility. 17. On 13 March 2014, the applicant submitted comments to his SR in response to the contested OER. His comments are filed with the contested OER in his OMPF as provided for in the regulation. 18. On 29 April 2014, applicant was notified he had been considered for retention and he was non-selected. An officer who is considered for retention and fails to be selected for retention was to be separated from the Army National Guard. The applicant was to be separated from the Army National Guard no later than 1 February 2015. Upon discharge from the Army National Guard he became a member of the Army Reserves by authority of law. If he desired to be transferred to the Retired Reserve he must apply in writing or his orders would indicate transfer to the jurisdiction of Commander, U.S. Army Human Resources Command (HRC) with assignment to the USAR Control Group (Individual Ready Reserve (IRR). 19. Effective 31 January 2015, the applicant was separated from the Army National Guard and transferred to the USAR Control Group (IRR). 20. HRC Orders B-04-501100, dated 15 April 2015, promoted the applicant to lieutenant colonel in the USAR with an effective date of 1 February 2015 and a date of rank of 1 February 2015. 21. On 1 June 2015, the applicant was transferred from the USAR Control Group to Army & Air Force Exchange Support Iraq, Dallas TX. On 25 September 2015, he was transferred to the Deputy Chief of Staff, G-4, Washington, DC. REFERENCES: 1. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) prescribes the procedures for completing evaluation reports that support the Evaluation Reporting System (ERS). Paragraph 6-1 (Deciding to appeal) states an appellant who perceives that an evaluation report is inaccurate in some way has the right to appeal for redress to the appropriate agency. However, before actually preparing an appeal, an objective analysis of the report in question should be made. 2. Army Regulation 623-3 (Evaluation Reporting System) (ERS) prescribes the policies for completing evaluation reports that support the ERS. a. Paragraph 3-14 states the AER is used to document the performance, accomplishments, potential, and limitations of Soldiers while attending military schools and courses of instruction or training. The reporting official will be responsible for the qualitative and quantitative assessment of students’ abilities and the accuracy of the information in the completed AER. The time period covered by an AER is counted as nonrated time on the OER covering the same period. b. Paragraph 4-7 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. c. Paragraph 4-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report. The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. d. A referred OER must be referred to the rated officer by the SR for acknowledgment and comment before it is sent to Headquarters, Department of the Army (HQDA). The rated Soldier may comment if they believe that the rating or remarks are incorrect. The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER/AER; rating officials may not rebut rated Soldier’s referral comments. Extraneous or voluminous material, material already contained in the Soldier’s file and enclosures or attachments are not normally in the rated Soldier’s best interest; and they, therefore, will be avoided. Any enclosures or attachments to rebuttal comments will be withdrawn and returned to the rated Soldier when the OER/AER is forwarded to HQDA. e. The rated Soldier’s comments do not constitute an appeal. Appeals are processed separately as outlined in chapter 6. Likewise, the rated Soldier’s comments do not constitute a request for a Commander’s Inquiry. Such a request will be submitted separately. DISCUSSION: 1. The GOMOR referred to in the memorandum, dated 19 October 2012, from BG D is not on file in the applicant's OMPF. 2. The applicant provided three copies of his H209 Argumentative Essay. As stated by the applicant, the first copy contains only the major internet citations. The second copy is from the school house, which the instructor used to identify all the data that was from the internet. However, the final copy of the Argumentative Essay from the school house is where the instructor spaced the document and further identified the same data from the internet. There is no bibliography attached to the final copy of the essay. 3. Based on the final copy of the Argumentative Essay from the school house it does not appear the applicant identified the internet data in that it was annotated by the instructor. There is no bibliography attached to the final copy of the essay from the school house. 4. The applicant provided an incomplete copy of a DA Form 1574 for an AR 15-6 investigation initiated on 20 July 2012. The findings and recommendations of the IO were approved by the appointing authority; however, the findings and recommendations were not recorded on the DA Form 1574. 5. The letter of dismissal, dated 29 October 2012, stated the applicant failed to cite any of the sources in his paper or the bibliography. Based on the final copy of the Argumentative Essay at the school house, internet citations were added by the instructor and there was no bibliography. The Commandant reviewed the AR 15-6 investigation packet (incomplete packet available for Board review) and the applicant's appeal and reconsideration, dated 2 September 2012. It was the Commandant's decision that the applicant be dismissed with no opportunity to complete the course by any means in the future. 6. The contested AER was completed on 6 December 2012 and indicates the applicant failed to achieve course standards. The contested AER stated the applicant was permanently disenrolled due to academic misconduct. The contested AER does not provide any further details concerning his disenrollment. The applicant did not provide any substantive evidence showing the statements on the contested AER were inaccurate. 7. The applicant's rater on the contested OER stated the applicant was permanently disenrolled from ILE/AOC for academic misconduct during the rating period. This undoubtedly reflects negatively on the applicant's Army values of honor, integrity, and duty. The applicant's SR stated the applicant was issued a Failed to Achieve Course Standards AER from the USACGSC for his performance in the ILE/AOC and was permanently disenrolled due to academic misconduct. These statements are supported by the letter of dismissal from USACGSC and the contested AER. 8. OERs accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. 9. To support removal or amendment of a report, there must be evidence that clearly and convincingly establishes that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature. The burden of proof rests with the appellant. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013855 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013855 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2