IN THE CASE OF: BOARD DATE: 10 November 2016 DOCKET NUMBER: AR20160011921 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 IN THE CASE OF: BOARD DATE: 10 November 2016 DOCKET NUMBER: AR20160011921 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. IN THE CASE OF: BOARD DATE: 10 November 2016 DOCKET NUMBER: AR20160011921 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, in effect, removal of a DA Form 1059 (Service School Academic Evaluation Report (AER)) for the period 4 January 2012 to 18 April 2012 (hereafter referred to as the contested AER) from her Official Military Personnel File (OMPF) and correction of her records to show she successfully graduated from the Intermediate Level Education (ILE) Course. 2. The applicant states she completed all her assignments and graded events. She was accused of plagiarism and was presumed guilty because she invoked her right to remain silent. The applicant also refers to a letter, written on 29 June 2012 by her attorney, which explains the deficiencies in the investigation, which substantiated allegations of plagiarism against her. 3. The applicant provides: * Letter from counsel, dated 29 June 2012 * Contested AER * Four letters of support * Numerous Officer Evaluation Reports * A letter of recommendation * Three Army Achievement Medal Certificates * Three Certificates of Achievement * Congratulatory certificate * Army Medical Department (AMEDD) Officer Advance Course * Most Improved Certificate, dated 24 April 1998 * Ranger Challenge Team Member Award, dated 24 April 1998 * Four Certificates of Completion, dated 10 May 1997, 7 July 1997, 26 August 1997 and 19 April 2002 * Recruitment letter, dated 28 January 2003 * Airborne Course Diploma, dated 5 September 2003 * Certificate of Appreciation, dated 17 February 2004 * Honor Society Certificate, dated 1 November 2005 * Receipt of payment, dated 21 November 2007 * Congratulatory letters, dated 11 June 2003 and 30 November 2007 * Letter of admittance, date 28 January 2008 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 is currently serving on active duty in the rank of major (MAJ). 3. Her record is void of an Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation and/or any response or comments to the AR 15-6 investigation. Her records are also void of a letter of reprimand. 4. The contested AER dated 22 August 2012 shows the applicant attended the ILE Course at Fort Leavenworth, KS and contains the following information: * Item 9 (This is a Referred Report, Do you wish to Make Comments?) - the "No" block is checked * Item 11 (Performance Summary) - Block d (Failed to Achieve Course Standards) is checked * Item 12 (Demonstrated Abilities) - Block a (Written Communication) - "Unsat"(unsatisfactory) is checked * Item 13 (Has the Student Demonstrated the Academic Potential for Selection to Higher Level Schooling/Training?) - the "No" block is checked * Item 14 (Comments) - the statement "[Applicant] was dismissed from Fort Lee Satellite Campus ILE Couse on 22 August 2012, with no opportunity to re-enroll at any point in the future" * Item 15 (Authentication) - the rater electronically signed the report on 28 August 2012 and the reviewing officer and applicant signatures are dated 30 August 2012 and 2 October 2012, respectively 5. The applicant provided a letter from counsel, dated 29 June 2012, wherein counsel requested, in effect, that the applicant not receive a letter of reprimand or be removed from the ILE course. a. Counsel states the applicant did not commit academic misconduct by providing unauthorized assistance or plagiarizing the work of other students. Instead, she was the victim of having her ideas and writings taken by others without her knowledge. He continues by stating: b. The applicant went to great lengths to improve her writing and it showed by the end of ILE. Within the first week of ILE, she recognized her poor writing skills and sought outside help. She enrolled in reading and writing classes that by the end of the course enable her to write clearly and succinctly. She slowly began writing in a professional manner by the final exam. However, the investigating officer (IO) was unaware of the applicant's extracurricular instructions. c. The applicant was not close friends with the officers involved in the conspiracy and spent most of her time in the course alone. Knowing this, the idea of her relying upon unfamiliar peers in order to circumvent the Commanding General Staff Course (CGSC) rules makes no sense. The IO showed preference to the officers who chose not to exercise their 5th Amendment rights. Counsel cites excerpts from statements rendered by the officers and maintain in some cases, the statements were vague, abrupt, incoherent, and/or carefully formulated and answered. d. The applicant completed all assignments independently even though some of her assignments were similar to others based on her answers, which required short responses using doctrinally correct answers. It is unfair to presume the applicant lacked ethics in completing her assignments. Considering the purpose of ILE is to standardize the doctrinal thinking of new field-grade officers and prepare them for strategic-level assignments, the use of similar (and often identical) language and analysis is not surprising. e. The applicant had little operational experience and attending ILE presented a unique and difficult challenge. However, she listened to the instructors and compiled detailed notes as to the language and format of operational orders and instructions. In creating her final assignment, she relied heavily on her notes and the terms/phrases heard in class. For this reason, her writing changed over time to accommodate course requirements. Though she did improve, others did not, and this likely explains why they might choose her exam to copy. f. The applicant utilized the same printers used by other students and her writings were also subjected to copying and plagiarism by unscrupulous students. While she does not know specifically how others obtained her work, she presumes as others have, that it happened at or near the shared network printer. 6. The applicant provides four supporting statements: a. Her former troop commander states she has known the applicant for the past year and she is the most honest and conscientious officer she has worked with or known. After working closely with her, she can say without doubt that it is not within the applicant's moral code to be dishonest. She states she believes the applicant deserves to have the derogatory information removed from her file. b. The former executive officer expounds on the applicant's outstanding characteristics. She states that the applicant is the kind of leader they need in the AMEDD, especially today as they face tremendous threats to their existence as an enabling force. Therefore, she asks that the Board consider the applicant's request and allow her the opportunity to wear the rank of lieutenant colonel. c. The applicant's commander says he requests a review of the applicant's termination from ILE. He adds the applicant is currently serving as the Chief, Military Personnel Actions for Landstuhl Regional Medal Center. She is an excellent Soldier and officer and an asset to the Army. He states he reviewed the investigation and all of her supporting documentation at her request. In his review, he found she was denied due process by denying her the right to submit her own statement concerning the circumstances surrounding the examination. He concludes there seem to be enough contradictions to warrant a review of the process and an opportunity for her to provided information in her own defense. d. The former Assistant Surgeon General requested a review of the circumstances leading to the applicant's termination from ILE. He states the applicant is an officer of great character, competence, and courage. He adds while not having all the facts and details surrounding her case, there is one thing he can attest to and that is she comports herself in an exemplary manner and serves as a role model for the officers, noncommissioned officers, and civilians she leads. REFERENCES: 1. AR 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive. Paragraph 1-9c states, except as provided in paragraph 1-9d, when adverse administrative action is contemplated against an individual including an individual designated as a respondent, based upon information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual: a. Notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation or board and the supporting evidence on which the proposed adverse action is based. b Give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material. c. Review and evaluate the person's response. 2. AR 623-3 (Evaluation Reporting System), in effect at the time, establishes the policies and procedures for preparing, processing, and using the evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 3-35 Referred reports (DA Form 1059 and DA Form 1059-1) states that the following types of reports, in pertinent part, will be referred to the student by the reviewing official for acknowledgment and comment: * Any report with a "NO" response * Any report with an "UNSAT" rating * Any report with a "marginally achieved course standards" response * Any report with a "Failed to achieve course standards" response. If this block in item 13 is checked, the preparing official will address (in item 16) whether the deficiency reflects on the character/behavior of the student or b. Paragraph 6-7 states that evaluation reports accepted for inclusion in the official record of an officer 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 6-11 states to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the applicant. 3. DA Pam 623-3 (Evaluation Reporting System), in effect at the time, paragraph 4-7 states that after signing a referred report or completing an addendum, the reviewing official will forward the report/addendum to the student via memorandum, for acknowledgement and comment. The student will acknowledge receipt of the referred report and will mark the "Yes" comments attached or "No" box in item 9. The student may enclose a comment or statement if they feel that the rating or remarks are incorrect. The student's statement must be factual. The referral memorandum and acknowledgement are forwarded with the report. DISCUSSION: 1. The applicant requests removal of the contested AER for the period 4 January 2012 to 18 April 2012 from her OMPF and correction of her records to show she graduated from the ILE course. 2. The evidence of record shows the applicant was dismissed from the ILE course on 22 August 2012. It appears her dismissal was based on the results of an AR 15-6 investigation. However, there is no evidence and the applicant has not provided any evidence, such as a copy of the AR 15-6 investigation, to show that she was denied due process during the investigation and subsequent to the rendering of the contested AER. 3. The evidence of record shows the contested AER was referred to the applicant for her comments, but she checked the block "No" indicating that she did not wish to provide comments and signed the report on 2 October 2012. 4. The applicant provides third party statements from senior officers who speak highly of her character and performance. These statements provided by the applicant recognize her as an outstanding officer. However, the information provided by these individuals does not substantiate any evidence sufficiently compelling to overcome the presumption of regularity. 5. There is no evidence available and the applicant did not provided evidence to show that her dismissal from the ILE Course and the contested AER were inaccurate or unjustified. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011921 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011921 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2