RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 September 2007 DOCKET NUMBER: AR20070000257 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. Ms. Catherine C. Mitrano Director Mr. Mohammed R. Elhaj Analyst The following members, a quorum, were present: Ms. Linda D. Simmons Chairperson Mr. Frank C. Jones, II Member Ms. Carmen Duncan Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his involuntary separation from the U.S. Military Academy (USMA) on 16 August 2006 be reversed and, in effect, USMA re-admit him so he may graduate. 2. The applicant states, in effect, that he was involuntarily separated for plagiarism and that a 6-person USMA Cadet Advisory Board (CAB) held an honor hearing and decided in a 5 to 1 vote to retain him in the military academy. 3. The applicant provided a copy of the Complaint for Preliminary Restraining Order and for Temporary and Permanent Injunction to Stay Orders to Active Duty pending outcome of the Army Board of Corrections of Military Records and all allied exhibits submitted by counsel, in support of his application. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests the applicant’s reinstatement to the USMA. 2. Counsel states, in effect, that the applicant’s involuntary separation resulted from a complex set of circumstances related to a plagiarism incident. Counsel further states the incident happened in April 2006, but the investigation of his case passed through 3 separate cadet chains of command, which contributes to the complexity of the case. Counsel adds that 5 out of 6 CAB members recommended the applicant’s retention, yet the USMA Superintendent ordered his separation, thus causing the applicant’s hopes and aspirations of serving his country to evaporate. Counsel concludes by stating that the applicant should be given the opportunity to appear in person to address the Army Board for Correction of Military Records (ABCMR). 3. Counsel provided the following documentations in support of his request. a. Memorandum dated 6 July 2006, USMA Staff Judge Advocate Recommendation. b. Memorandum dated 10 July 2006, USMA Superintendent Decision. c. Memorandum dated 10 July 2006, USMA Superintendent to HQ, Department of the Army. d. Extract of Army Regulation 612-205. e. USMA Oath of Allegiance. f. USMA Statement of Policies. g. Headquarters, USMA Orders 240-3, dated 11 September 2006. h. Headquarters, USMA Amendment Orders, dated 14 September 2006. i. Army Human Resources Command, St. Louis, Missouri, Orders A-09-690962, dated 15 September 2006. j. Memorandum dated 9 June 2006, cadet Advisory Board (CAB) Recommendation to the USMA Superintendent. k. 7 Character Statements for Applicant. l. Counsel’s Petition to Department of the Army on behalf of the Applicant. m. Summarized Record of Preliminary Session/Providence Inquiry. n. Applicant’s Personal Statement of Events to the Superintendent, dated 31 July 2006. o. Applicant Statement to the USMA Inspector General (IG) dated 17 July 2006. p. USMA SJA Memorandum Response to Applicant dated 18 October 2006. q. USMA SJA Legal Memorandum (undated) Legal Review of the Summarized Record of Preliminary Session/Providence Inquiry. r. Computer Printout of Applicant’s personal data, major disciplinary records, athletic and extracurricular activities, and TAC comment. s. USMA Commandant’s Memorandum to the USMA Superintendent dated 21 June 2006. t. USMA Executive officer (XO) to the Commandant’s Memorandum to the Applicant dated 21 June 2006. u. Chain of Command Recommendation Worksheet for Honor, Conduct, and Regs, USMA Cases to cadet Honor Committee procedures. v. Applicant’s Personal Statement dated 21 June 2006. w. Memorandum dated 12 June 2006 from Special Assistant to the Commandant for Honor Matters to Superintendent. x. An electronic mail (e-mail) from USMA Liaison Officer to Counsel dated 30 October 2006 regarding application to the ABCMR. CONSIDERATION OF EVIDENCE: 1. The applicant’s records show that he joined the U.S. Military Academy (USMA) on 30 June 2003 from the U.S. Military Academy Preparatory School (USMAPS) and majored in the Electronic Engineering field of study. He was assigned to Company C-3, Class of 2007. 2. The applicant's records show that he was an active participant in extracurricular activities throughout his tenure at the USMA. He participated in Corps Sport (CS) (Football and Weight Training), Cadet Club Level (CL) [Chess Club, Staff and Ushers, Gospel Choir, Band (Spiritual Support Group), American Chemical Society, Local Radio Station, Amateur Radio Seminar, Spanish Language Club, Contemporary Affairs Seminar, Officers’ Christian Fellowship] and Intermural Sports (IM) (Team Handball, Boxing, Rugby, and Swimming). 3. On 13 April 2006, the applicant turned in an essay to captain ****, his Tactical Officer (TAC) at the Department of English. While grading it, captain **** noticed the narrative and language used in the applicant’s paper was similar to one she has graded in the previous semester. Upon closer inspection, captain **** noticed that the applicant’s paper had a different section number than his own. The paper did not answer the prompt and instructions from the current semester, but rather those of the previous semester. Additionally, the applicant’s paper did not include the required punctuation marks that captain **** had instructed her students to include on their papers. The applicant’s paper also had two creation dates in the electronic properties of the document: 2 November 2005 and 22 March 2006. This increased her suspicion since she had not assigned the prompt until 30 March 2006. Additionally, the applicant’s paper was improperly documented and included incorrect dates in his words cited (the dates were from the previous semester). 4. On 25 April 2006, the TAC conducted an Approach for Clarification with the applicant. During the approach, the TAC pointed out the irregularities with the essay and the applicant acknowledged that he received help from another cadet. The applicant further stated that he was frustrated with his low grades and wanted to “try a different approach” by using another cadet’s essay to generate his own ideas and thoughts about the subject. The applicant asserted that he was only in violation of proper documentation. 5. On 1 May 2006, the TAC contacted and met with cadet ****, a senior cadet whose paper was used by the applicant. The senior cadet identified the opening statements of the applicant’s essay as familiar. Additionally, the senior cadet was unable to produce his original essay and stated that it was deleted when his computer was repaired. 6. On 9 May 2006, the applicant was read his rights by the Cadet Investigative Team and was formally placed on notice that he was being investigated for a possible violation of the Honor Code. 7. On 25 May 2006, the applicant was served with the Commandant’s Referral to an Investigative Hearing and the Notification of his Rights and Responsibilities concerning the hearing. Additionally, on the same day, the applicant’s TAC entered the following comments on his electronic USMA file: “Recommendation: Immediately separate if he is found on honor. If his academic F stands, his poor performance does not warrant any special consideration.” “Performance: Below average. Cadet ***** is ranked last in his class in a company CPS sort with a 1.95. Overall, Cadet ***** has difficulty accepting responsibility for his actions, tending to blame others for situations he gets himself into and always has an excuse for his poor performance. He often appears to be completely overwhelmed as a cadet.” “Conduct: Two summarized Article 10s for failing to perform his duty this semester. He has received 9 summarized Article 10s and 1 Field Grade Article 10 during his time at USMA. He is currently under an honor investigation for plagiarism.” “Leadership: Cadet ***** ranks last in his class (within the company) in military leadership development with a 2.11 MPSC. He did, however, receive a C as a squad leader during this semester.” “Teamwork and Selflessness: Applicant has a reputation for thinking only about himself.” “Interpersonal Skills: Cadet ***** ranks below average. He appears to have great difficulty to clearly communicate his thoughts and ideas.” “Sense of Duty: Again, he tends to be more worried about himself rather than others or the mission. He has devoted a majority of his time to his extracurricular activities (last year as a football manager and this year as a strength team manager and a Cavalry Scout Club) at the expense of his primary missions-academic and leadership development.” “Appearance: Average.” “Potential: It is very questionable whether Cadet ***** has the potential to be an Army Officer at this point in his cadet career. Putting the pending honor issue aside, Cadet ***** consistently struggles in two of the three pillars. I would not want him (at this point) as a Platoon Leader in my unit. He would have to demonstrate significant improvement over his first year for him to be considered an average West Point Graduate. Even if he is found not guilty on the pending honor issue, his failure to document demonstrates (once again) that he does not possess the critical thinking ability or attention to detail that is expected of an Academy Graduate or Commissioned Officer. If he is found on honor, I do not believe that he should be permitted to continue here as a cadet.” 8. On 30 May 2006, a preliminary session of an Honor Investigative Hearing (HIH) was called to order at the USMA SJA Office. During this HIH, the applicant stated that he was not certain that he received sufficient legal advice to prepare, review the evidence, and figure out how to address the evidence. The applicant and the Hearing Advisor discussed exactly what would happen during the Preliminary Hearing, including procedural matters, evidence, and types of evidence submitted. 9. On 9 June 2006, a second preliminary session of an HIH was called to order. The Hearing Advisor confirmed that the applicant had consulted with an attorney in preparation for the case. During this session, the applicant admitted to his honor violation and the Hearing Advisor confirmed that the applicant’s admission to the honor violation was made voluntarily and with full knowledge of its meaning and effect. The Hearing advisor further found that the applicant knowingly, intelligently, and consciously waived his rights to remain silent, to a full hearing of the facts by an Honor Investigative Board, and to confront the witnesses against him. Accordingly, the Hearing Advisor found the admission provident and it was accepted. 10. On 9 June 2006, a 6-member Cadet Advisory Board convened and considered the allegation of the applicant’s violation of the Cadet Honor Code by cheating, by plagiarizing an old essay for his English essay, and that he provided insufficient documentation for the sources, knowing that the work was not his at the time he wrote it, and doing so with the intent to gain an unfair advantage or deceive or mislead another person. Four CAB members recommended the applicant’s retention in the USMA as a turn-back for one full year, one member recommended the applicant’s retention as a turn-back until December 2006, and one member recommended the applicant’s separation. The CAB presented its recommendations to the Superintendent on the same day. 11. On 12 June 2006, the Special Assistant to the Commandant for Honor Matters forwarded a memorandum to the Superintendent describing the allegations, summarizing the facts of the case, describing the CAB findings, and summarizing the full range of option available to the Superintendent. He also recommended in this memorandum that the Superintendent separate the applicant, suspend the separation, turn him back to the Class of 2008, and enroll him in the Honor Mentorship Program. 12. On 20 June 2006, the USMA Deputy SJA forwarded his Legal Review of the Summarized Record of Preliminary Session/Providence Inquiry to the Superintendent. The Deputy SJA stated that, in his legal opinion, the preliminary hearings/providence were conducted in accordance with law and regulation and complied with legal requirements and that there was no error that had a material adverse effect on the applicant’s rights. 13. On 21 June 2006, the Commandant of Cadets submitted a memorandum to the Superintendent recommending the applicant’s separation and the Executive Officer, Office of the Commandant forwarded the Commandant’s recommendation and legal review to the applicant giving him the opportunity to provide his own comments on the review and established a suspense date of 26 June 2006. 14. On 21 June 2006, the applicant submitted a personal statement to the Superintendent admitting violation of the honor code. The applicant described a prior situation in 2006 when he dislocated his knee and told the truth about it. He also described how his selfless service led others to look up to him. The applicant further described how he overcame the difficulties of growing up in his neighborhood because he has always been a survivor. The applicant concluded his statement by appealing to the Superintendent for a chance to live up to his potential and be allowed to remain at USMA. 15. The Chain of Command Recommendation Worksheet for Honor, Conduct, and Regs, USMA Cases to Cadet Honor Committee procedures, shows that the applicant was recommended for separation by the Cadet Chain of Command (COC), the Tactical Officer (TAC), the Regimental Tactical Officer (RTO), and the Brigade Tactical Officer (BTO). 16. On 10 July 2006, the USMA Superintendent approved the findings of the HIH that the applicant violated the Cadet Honor Code by cheating on or about 13 April 2006 and forwarded the records of proceedings to the Department of the Army recommending the applicant separation from the USMA, transfer to the U.S. Army Reserve in the grade of private/pay grade E-1 for two years, and ordered him to active duty for two years in accordance with Table 3, Rule 6, of Army Regulation 612-205 and paragraph 6.1.2.4 of the Department of Defense Directive 1332. 17. On 17 July 2006, the applicant submitted a personal statement to the USMA IG describing his difficulties during his early months at the USMA, his disappointment with what he called different ethical standards and the impact on his academic, military, and physical performance. The applicant further described his CAB experience, his prior positive USMA extracurricular activities, and concluded by showing how other cases were treated differently by the Superintendent. 18. On 31 July 2006, the applicant submitted another personal statement to the Superintendent describing his personal account of events during the honor process. In this statement, he focused on the dynamics of writing the English assignment, the fact that he addressed the formatting issues with his TAC at the time he turned in his paper, and details of the CAB. 19. Headquarters, United States Military Academy, West Point, New York, Orders 240-3, dated 11 September 2006 show that the applicant was relieved from active duty as a USMA cadet effective 16 August 2006 and assigned to the USAR Control Group (IRR), Army Human Resources Command, St. Louis, Missouri, ordered to active duty for 2 years, and placed in an enlisted status in the grade of private/pay grade E-1. 20. Headquarters, United States Military Academy, West Point, New York, Orders 257-4, dated 14 September 2006 show that the Orders 240-3 dated 11 September 2006, were amended to add additional instructions that the total number of months the applicant was enrolled in the USMA prior to termination of appointment was 3 years, 1 months, and 17 days. 21. Headquarters, U.S. Army Human resources Command, St Louis, Missouri, Orders A-09-630982, dated 15 September 2006, show that the applicant was ordered to active duty in the grade of private/pay grade E-1 and assigned to the U.S. Army Infantry Center, Fort Benning, Georgia for a 2 year active duty commitment to fulfill active Army requirements. The Orders further show that the applicant was ordered to report to the 30th Adjutant General Reception Battalion, Fort Benning, Georgia, effective 2 January 2007, to attend advanced individual training (AIT). 22. On 30 October 2006, counsel forwarded a copy of the applicant’s petition to the Department of the Army USMA Liaison Officer and Officers Accessions Policy Integrator who advised counsel to submit an application to the ABCMR. 23. On 21 June 2007, an advisory opinion was received pertaining to this case. The Chief, Officers Division, Office of the Deputy Chief of Staff, G-1, Pentagon, advised that the decision of the Assistant Secretary of the Army (Manpower and Reserve Affairs) became final on 16 August 2006 to separate the applicant from USMA, transfer him to the U.S Army Reserve (USAR) in the grade of private/pay grade E-1 for 2 years, and order him to active duty for 2 years. Only in cases of fraud, mistake of law, mathematical miscalculation, or the discovery of substantial new evidence, can an exception be made. The Chief concluded that none of the four narrow exceptions applied and therefore concurred with the administrative finality of the decision. 24. Army Regulation 612-205 (Appointment and Separation of Service Academy Attendees) states, in pertinent parts, that the Superintendent, and the commander of each holding facility will report Army personnel relieved from cadet status for reassignment per Army Regulation 614-200 (Enlisted Assignment and Utilization Management), Table 1-1. The Superintendent of the servicing military personnel office of each holding facility will issue orders upon receipt of assignments instructions. 25. Table 3 (USMA Cadet Separation Policies) of Army Regulation 612-205 states, in pertinent part, that if separation action is started after commencement of the third academic year (junior year) but before commencement of the fourth academic year (senior year) and the cadet is separated or resigns, then he or she will be transferred to the Reserve as an E-3 (or appropriate grade) for 2 years and may be ordered to active duty for not less than 2 years, or discharged from the Army if transfer to the Reserve is inappropriate. Footnote 4 of this rule states that each case will be reviewed individually. The Superintendent will recommend to the Secretary of the Army that a cadet be either transferred to the Reserve with further recommendation regarding order to active duty or that the cadet be discharged from the Army if such action is appropriate. 26. The Department of Defense (DoD) Directive 1332.23 (Service Academy Disenrollment) dated May 9, 1988 issued to update uniform policies and reporting procedures for disenrolling U.S. military, naval, and Air Force Academy cadets and midshipmen before completing the course of instruction or after graduation if they do not accept or are not offered appointments as commissioned officers and to establish reimbursement policies for cadets and midshipmen failing to complete their required active duty period when called to active duty, and for those not called to active duty. 27. Paragraph 6.1.2.4 of the DoD Directive 1332.23 states that whether transferred to the Reserve component or reverted back to active duty status, the disenrolled cadets or midshipmen shall retain their prior enlisted grade. DISCUSSION AND CONCLUSIONS: 1. The applicant and counsel contend that the applicant should be reinstated to the U.S. Military Academy. 2. The records show that the applicant violated the Honor Code by cheating. The applicant’s admission to the honor violation was made voluntarily and with full knowledge of its meaning and effect. 3. The applicant had an obligation to fulfill the terms and conditions of his service agreement and not voluntarily breach any terms or conditions. This agreement extended to such areas as the Honor Code. Cadets have a responsibility to adhere to the integrity standards. 4. The applicant's records do not show evidence and the applicant and his counsel did not provide evidence to show that the decision taken by the Superintendent and the Assistant Secretary of the Army (Manpower and Reserve Affairs) was in error or unjust. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __lds___ __fcj___ __cd____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. Linda D. Simmons ______________________ CHAIRPERSON INDEX CASE ID AR20070000257 SUFFIX RECON DATE BOARDED 20070906 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1. 110.0300 2. 3. 4. 5. 6.