IN THE CASE OF:  

		BOARD DATE:  31 March 2020

		DOCKET NUMBER:  AR20180000371


APPLICANT REQUESTS:  through counsel, his involuntary separation from the United 
States Military Academy (USMA) with a General, Under Honorable Conditions 
discharge (GD) be found unjust, findings of the Investigation Officer be set aside, his 
degree and commission conferred with constructive credit for time in rank, remission of 
debt, and appropriate compensation for back pay and benefits as though he was 
commissioned in May 2015.

COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Power of Attorney
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Transcript of Proceedings
*	Affidavit dated 12 April 2015
*	Affidavit dated 3 November 2016
*	3 Memorandums for Record (MFR)
*	Email correspondence regarding flagging action
*	Polygraph report
*	Memorandum with Amazon.com records dated 14 June 15
*	Written statement of dated 25 March 15
*	Forensic Video Imaging Report
*	Character statements submitted during hearing
*	Finding and Recommendations dated 24 Aug 15
*	Appeal dated 21 August 2015
*	Appeal dated 29 January 2016
*	FOIA Requests with corresponding responses
*	Documents regarding debt
*	Articles on misconduct by USMA athletes
*	Audio recording of hearing

FACTS:

1.  In a 16-page brief counsel contends and states, in part:  

     a.   The applicant's involuntary separation from USMA was erroneous and unjust 
for the following reasons: the burden of proof was not satisfied as concrete 
exculpatory evidence was ignored, rendering the findings factually insufficient and the 
involuntary separation contrary to federal case law; the applicant was denied his 
due process rights when exculpatory evidence was withheld from him; the command 
assumed he was guilty without conducting investigations into other students who were 
also suspected of the same wrongdoing, and who also happened to be student athletes; 
the investigation was initially conducted by his TAC, who was a biased party, and a 
subsequent, unbiased investigation by the military police or another criminal 
investigative body was never conducted; this lack of a thorough, impartial criminal 
investigation caused the applicant to be subjected to an administrative investigation as 
opposed to a Court-Martial, which significantly reduced the government's burden in 
proving its case and effectuating the applicant's involuntary separation; and the 
investigating officer (IO) was partial and biased, both of which were not reflected in the 
written summary of his report recommending separation.

     b.  The IO refused to accept into evidence the polygraph exam results which found 
no deception and conclusively ruled out the applicant as a suspect of the alleged 
offense.  Not only did the IO refuse to receive this exculpatory evidence, he also failed 
to recognize the following: the only cadet who saw the applicant in the barracks, did not 
see him with any books; the applicant returned to his room immediately afterwards, and 
his roommate did not see him with any text books; the Amazon records submitted by 
the applicant did not reveal the sale of any of the text books alleged to have been 
stolen; the applicant had a substantially corroborated account as to why he was in the 
various rooms on the day in question, as he had been asking myriad cadets for several 
weeks prior about his missing gear; the applicant has a record of good military 
character, to include recommendations for commissioning by eight officers, many who 
were senior ranking, and a very seasoned staff non­commissioned officer; and the fact 
the forensic Audio-Imaging expert debunked, through a fine-toothed comb, the claim 
the applicant's bag appeared to enlarge upon exiting from the rooms, and in fact 
showed how it had not expanded at all. The only evidence the IO relied upon, in spite of 
the overwhelming evidence revealing the applicant's innocence, was the closed-circuit 
video showing the applicant in some of the rooms, coincidentally, the same day some of 
the individuals noticed their text books had been missing.

     c.  The Court of Federal Claims has overturned similar separations based on scant 
evidence.  Not only does the lack of evidence violate federal precedent, but it renders 
the evidence insufficient under the requisite burden of proof.  The burden of proof 
before a misconduct hearing is preponderance of the evidence, which means the 
greater weight of the evidence, or 51 percent likely the offense was committed.  The 
amount of exculpatory evidence significantly outweighed any potential exculpatory 
evidence. At best, the evidence produced at the hearing placed the scales at equipoise. 
Thus, the evidence, both aggravating and mitigating, when considered in the totality, do 
not meet the requisite burden, and therefore, the findings of guilt were factually 
insufficient.  

     d.  The 5th Amendment to the United States Constitution requires due process of the 
law. This traditionally means that a respondent is afforded all evidence which might 
reasonably assist him in the preparation of his case.  In this case, three of the four 
books in which the IO found the applicant had taken were last seen as early as the 
evening of 22 March 2015, two days before the alleged offenses. The fourth book was 
last seen at 0630 on 24 March.  However, the only video evidence provided was 
between approximately 1155 and 1202 on 24 March 2015.  The applicant was not 
permitted to view any footage prior to then; indeed, when he requested the footage via a 
FOIA request, he was informed while the footage was responsive to his request, release 
would violate other's right to privacy, presumably because it showed several individuals 
other than the applicant entering and exiting the rooms.  Such evidence showing the 
number of individuals who could have also been potential suspects and  the identity of 
those individuals would have been crucial to the applicant's defense.  However, this 
exculpatory evidence was, and still is being, purposefully withheld from the applicant. 
Not only was the applicant deprived of exculpatory evidence, but he was forced to 
cease and desist in his own collection of evidence by the very individual who had 
collected evidence and conducted an investigation against him.

     e.  One of the most egregious violations throughout this "investigative" process is the 
fact it is clear the applicant's command assumed his guilt without following up on leads 
of other potential suspects, or without conducting other investigations.  Second 
lieutenant was interviewed by captain during his "preliminary inquiry," 
and when shown certain video of Bradley Barracks, informed the individual in 
the video shown to him was.  As an individual who roomed with the applicant 
for two years, of all people, would be best suited to recognize the applicant. In 
his affidavit, he maintains the only similarity between the two is they are African-
American.  What makes this so egregious is was never investigated.  One 
possibility for this is was a student athlete and USMA has a sordid, and recent, 
history of misconduct by athletes. Considering the negative publicity received by USMA 
for its failure to hold these athletes accountable, it is understandable USMA would want 
to control any further possibility of bad publicity.  As corroborated by the FOIA response, 
no investigation was ever conducted into, and the individual was subsequently 
allowed to graduate and commission.

     f.  Another issue with this process is the fact the preliminary inquiry was conducted 
by, an individual who was neither an appointing authority, nor had been 
appointed as an IO to conduct the preliminary inquiry.  Furthermore, was highly 
biased, which shows in his MRF dated 10 April 2015.  Nearly half of the MRF is 
comprised of unsubstantiated allegations of random, unknown complaints of theft, which 
weakly attempts to link to the applicant.  Not only were these unsubstantiated, 
but there was direct evidence refuting one of the allegations - a theft allegedly occurring 
on 4 December 2014 - during which informed it was impossible for the 
applicant to have conducted that theft because he was with during the alleged 
time. summarily ignored this exculpatory evidence, excluding it from his MFR, 
and proceeded to use the unsubstantiated - and refuted - allegations, to support his 
conclusion the applicant was in fact guilty of the alleged larceny occurring on 24 March. 
This MFR, which is not supported in fact, was then submitted as an exhibit during the 
misconduct hearing, upon which the IO relied in rendering his findings of guilt.

     g.  Even more concerning is the fact states the investigation was turned over 
to the military police (MP) to be investigated.  However, no MP investigation was ever 
conducted.  This means the command purposefully chose not to allow an external, 
impartial body to investigate and find potential exculpatory evidence.  Rather, the 
command elected to submit the same evidence it had at the timeconducted his 
"preliminary inquiry." No further evidence had been investigated. Indeed, USMA had 
subpoenaed the applicant's Amazon.com account, but clearly opted not to provide the 
exculpatory evidence to the IO when it realized that it would not aid in a finding of guilt.
Not only was the investigation not turned over to the MP's to conduct a thorough and 
adequate investigation, but it is clear USMA lacked sufficient evidence because they 
opted to send the applicant to a misconduct hearing as opposed to a Court-Martial. 
Larceny in excess of $500 carries a maximum penalty of a dishonorable discharge and 
five years of confinement under Article 121, UCMJ, which places the offense triable as a 
felony-level crime. If the command truly believed the applicant committed this offense, it 
would have sent him to a Court-Martial. However, the more evidence the command 
acquired, the more the command realized the applicant did not commit the offense 
beyond all reasonable doubt. If he was then acquitted at the Court-Martial, USMA would 
have had to graduate him and confer his commission. They did not want to run that risk, 
so they sent him to a forum with a significantly reduced standard of proof, and hung 
their case on the video footage, which does nothing more than corroborate the 
applicant's version of events.

     h.  Based on the foregoing, it is clear the misconduct hearing and the subsequent 
recommendation for involuntary separation were both erroneous and unjust. USMA 
invested four years in the applicant, molding him to be a leader of fellow Soldiers. To 
summarily disregard all exculpatory evidence he provided, and to shoulder him with 
crushing debt, is contrary to the essence of due process.  For these reasons, the 
applicant respectfully requests that a special board be convened to review the errors 
and injustices surrounding his discharge, and that upon review, the findings of the IO be 
set aside, his degree and commission conferred with constructive credit for time in rank, 
his debt absolved, and that he receive appropriate compensation for back pay and 
benefits as though he were commissioned in May 2015.  Counsel's complete brief is 
available for the Board's review and consideration.
2.  Documents pertaining to the applicant's misconduct hearing are is not filed in his 
official military personnel record; however, his Oath of Allegiance is filed and it shows, 
on 27 June 2011, the applicant signed his Oath of Allegiance.  In section II (Agreement 
to Serve) he agreed to the following:  

a.	Complete the course of instruction at USMA;

     b.  If tendered an appointment as a commissioned officer in one of the armed 
services upon graduation from the United States Military Academy, to accept such 
appointment and to serve under such appointment on active duty for at least five 
consecutive years immediately after such appointment; if my initial appointment 
hereunder is in a Reserve Component, to accept a commission in a Regular
Component if subsequently tendered during the five consecutive years immediately 
after my initial appointment, and to serve on active duty for the remainder of such period 
under such appointment.

     c.  If I am permitted to resign my commission in a Regular Component of one of the 
Armed Services prior to the eighth anniversary of his graduation, to accept an 
appointment as a commissioned officer in a Reserve Component of one of the Armed 
Services and remain therein until such eighth anniversary.

     d.  To serve a total of eight (8) years from graduation from the United States Military 
Academy.  Any part of that service not completed on active duty must be served in a 
Reserve Component (not on active duty), unless I am discharged from the Reserve 
Component by proper military authority.

     e.  That if l fail to complete the course of instruction of the United States Military 
Academy, breach my service agreement as defined in paragraph l .g.(4), Statement of 
Policies on the next page, or decline to accept an appointment as a commissioned 
officer, I will serve on active duty as specified in paragraphs l .b. through l .f., which are 
contained in the Statement of Policies on the next page;

     f.  That if l voluntarily fail, or because of misconduct fail, to complete the period of 
active duty specified in paragraphs II.b., c., d. or e. above, I will reimburse the United 
States in an amount that bears the same ratio to the total cost of advanced education 
provided me as the unserved portion of active duty bears to the total period of active 
duty I have agreed to serve;

     g.  If I am obligated to reimburse the United States for the cost of my advanced 
education, any subsequent enlistment in an Armed Service will not relieve me of this 
debt.

     h.  Further, that if I am separated from the United States Military Academy for breach 
of this service agreement, as defined in paragraph l .g. ( 4), Statement of Policies on the 
next page, and the Army decides that I should not be ordered to active duty because 
such service would not be in the best interests of the Army, I shall be considered to 
have either voluntarily or because of misconduct failed to complete the period of active 
duty and may be required to reimburse the United States as described above;

     i.  For the purpose of this paragraph:

          (1) The term "voluntarily fail" includes, but is not limited to, failure to complete the 
period of active duty because of conscientious objection, because of resignation from 
the United States Military Academy or United States Army, and marriage while a cadet.

          (2) The term "because of misconduct" includes, but is not limited to, termination 
by the United States Army of my service because of homosexual conduct, criminal 
conduct, conduct violating the Cadet Honor Code, conduct deficiency under the Cadet 
Disciplinary System, and conduct violating regulations for the discipline of the Corps of 
Cadets.

          (3) The term "course of instruction" is synonymous with the term "educational 
requirements" as the term is used in 10.

3.  Counsel provides:

     a.  A MFR, dated 10 April 2015, which shows a preliminary investigation found   
the applicant stole approximately $1750.00 in textbooks and cash from his fellow cadets 
on 24 March 2015.  Additionally, there is evidence to suggest he may be responsible for 
an additional theft of $1170.00 in textbooks on 9 March 2015.  There was also evidence 
to suggest the applicant was involved in more theft of textbooks and cash.  It was 
recommended this case be turned over to military police investigation because it was 
believed the amount to be above $1500.00 and that the applicant pay retribution to the 
cadets he victimized.

     b.  A MFR, dated 19 August 2015, shows a Summarized Record of Proceedings into 
the allegations of misconduct against the applicant found the applicant committed 
larceny by stealing four textbooks belonging to fellow cadets.

     c.  A personal statement from the applicant dated, 21 August 2015, in which the 
applicant requested the Commandant disapprove the findings and recommendations of 
the Hearing Officer for the Conduct Investigation in his case based on substantial 
errors.

     d.  A Memorandum, dated 24 August 2015, from an Investigation Officer, USMA 
recommended the applicant be separated from USMA and the U.S. Army immediately. 

4.  Counsel also provides documentation showing on 30 October 2015, the 
Superintendent, USMA took the following actions:

     a.  The Investigation Officer's finding the applicant violated Army Regulation 210-26 
(United States Military Academy), were approved.

     b.  The record of proceedings will be forwarded to the separation authority with a 
recommendation the applicant be separated from USMA and discharged from the U.S. 
Army with a GD Certificate.

     c.  Based on the nature of the applicant's misconduct, a call to active duty would not 
be appropriate; therefore, he recommended the applicant be required to reimburse his 
educational cost in the amount of $223,567.00.

     d.  The applicant was immediately suspended from USMA until final action was 
taken on his case.

     e.  The applicant's pay and allowances would be stopped upon his departure from 
West Point.  His status would be authorized leave of absence without pay and 
allowances, pending separation.

5.  On 31 March 2016, the applicant was discharged due to misconduct.

6.  In the processing of this case, an advisory opinion, dated 12 February 2020, was 
provided by the Chief, Officer Accessions Policy Branch, Office of the Deputy Chief of 
Staff, G1.  This opinion states:

     a.  The applicant served as a USMA cadet from 27 June 2011 until he was 
separated from USMA on 31 March 2016 for misconduct by the Deputy Assistant 
Secretary of the Army for Military Personnel and Quality of Life (DASA (MPQ)).  The 
doctrine of administrative finality recognizes that once a final administrative act has 
been ordered or approved by an official legally competent to do so, that official has 
exhausted his power to act in connection with that case.  The decision of the DASA 
(MPQ) became final when he separated the applicant from USMA and ordered 
recoupment for the cost of his education.  Therefore, the doctrine of administrative 
finality precludes the DASA-MPQ from reconsidering his prior decision.

     b.  There are four narrow exceptions to the doctrine of administrative finality to 
include:  evidence of fraud, mistake of law, mathematical miscalculation, and substantial 
new evidence discovered contemporaneously with or within a short time following the 
action in question.  Based on the facts provided by the applicant, applicable regulations, 
and reviewing the original separation action submitted to the DASA (MPQ), the request 
does not meet any of these exceptions.

     c.  The applicant’s claim his separation was erroneous and unjust is unfitting.
Relevant facts supporting this opinion include the following: 

(1)	 The applicant committed four violations pursuant to Army Regulation 210-26 
(United States Military Academy), paragraph 6-14, Other major misconduct offenses on 
or about 24 March 2015.  The misconduct forming the basis for his separation occurred 
during the second academic term of his first-class (senior) year, which allowed 
separation, discharge, and recoupment action.

(2)	 The Acting Commandant of Cadets appointed an IO) to conduct a hearing;
the IO determined four allegations as founded and recommended the applicant be 
separated from USMA and the Army. USMA Staff Judge Advocate stated no legal 
objection to the IO’s recommendations.  The Superintendent approved the IO's findings 
and recommended the applicant be separated from USMA, discharged from the United 
States Army with a GD and be required to reimburse his educational costs.

(3)	 The Department of the Army (HQDA), Office of the Judge Advocate General 
(OTJAG), stated no legal objection to Superintendent’s request.  OTJAG coordinated 
their opinion with the Office of the General Counsel and neither office legally objected to 
the separation action, USMA’s Misconduct Hearing, or the IO findings.  The DASA 
(MPQ) was the appropriate final approval authority, per delegations by the Secretary of 
the Army (SA) and the Assistant Secretary of the Army's (ASA) Manpower and Reserve 
Affairs (M&RA).

(4)	 As an exception to the general rule, cadets separated from the service 
academies will be ordered to active duty, disenrolled cadets who are found to be not 
suited for enlisted service, for reasons of demonstrated unsuitability, unfitness, or 
physical disqualification, shall be discharged from the Army.  Accordingly, the DASA 
(MPQ) found the applicant to be unsuited or unfit for enlisted service.   The applicant 
was ordered to reimburse the United States.

(5)	 The applicant's service agreement further provides that cadets separated for 
breach of the service agreement and who are not ordered to active duty because such 
service would not be in the Army's best interests-are subject to recoupment of their 
educational costs.  The applicant acknowledged receipt of the notification of the 
potential debt he owed to the United States Government and indicated he did not 
dispute the validity of the debt.

(6)	The Directorate of Military Personnel Management (DMPM) office correctly 
staffed the applicant’s separation action to the approval authority. The DASA (MPQ) 
was provided the applicant's complete separation file for consideration, including 
multiple letters from Cadet Sheppard’s parents, letters of character and 
recommendation, and polygraph results, dated 11 April 2015, from Global Polygraph 
Network.

(7)	The applicant's characterization of discharge was appropriately aligned with 
governing regulation and consistent with previous similar USMA misconduct separation 
actions.  Based upon the facts as outlined above, the Army G-1 recommends 
administrative relief is not appropriate.  The applicant should not be reinstated, not be 
granted an Honorable Discharge, not be given constructive credit for time in rank, not 
have his debt absolved, and not be compensated back pay and benefits (The complete 
advisory is available for the Board's review and consideration).

7.  On 18 February 2020, the applicant was provided a copy of the advisory opinion for 
comment or rebuttal.  He did not respond.

8.  Army Regulation 210-26, provides a cadet who voluntarily, or because of misconduct 
fails to complete the period of active duty service specified the Secretary of the Army in 
the cadet's agreement to serve may be separated from the USMA. Table 7-1 of this 
regulation provides, in pertinent part, that a cadet who voluntarily, or because of 
misconduct fails to complete the period of active duty service specified the Secretary of 
the Army in the cadet's agreement to serve may be required to reimburse the 
Government for educational costs pursuant to Section 2005, Title 10 USC.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies is procedures for correction of military records by the Secretary of the Army, 
acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 
2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the 
ABCMR begins its consideration of each case with the presumption of administrative 
regularity, that is that what the Army did was correct.  The ABCMR is not an 
investigative body and decides cases based on the evidence that is presented in the 
military records provided and the independent evidence submitted with the application. 
The applicant has the burden of proving an error or injustice by a preponderance of the 
evidence.  


BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents and 
evidence in the records.  The Board considered the applicant’s statement and his 
counsel’s brief, his service as a USMA Cadet, the nature of his misconduct, the 
investigation results and his disenrollment and separation.  The Board considered the 
investigation and associated reviews, the applicant’s statement at the time, the HQDA 
legal review and the decision of the Deputy Assistant Secretary.  The Board considered 
the review, conclusions and recommendations of the HQDA advising official.  The 
Board insufficient evidence to overcome the applicant’s misconduct, to overturn the 
resultant separation or to support his requested reinstatement.  Based on a 
preponderance of evidence, the Board determined that the applicant’s separation and 
the character of service he received were not in error or unjust. 
  
2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION


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.
 


		  
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.

REFERENCES:

1.	 Department of Defense Directive 1332.23, states any second or first classman 
who is disenrolled and who, for reasons of demonstrated unsuitability, unfitness, or 
physical disqualification, is not suited for enlisted Military Service, shall be discharged in 
accordance with the current Military Service regulations that implement this Directive.

2.	Army Regulation 210-26, provides a cadet who voluntarily, or because of 
misconduct fails to complete the period of active duty service specified the Secretary of 
the Army in the cadet's agreement to serve may be separated from the USMA. Table 7-
1 of this regulation provides, in pertinent part, that a cadet who voluntarily, or because 
of misconduct fails to complete the period of active duty service specified the Secretary 
of the Army in the cadet's agreement to serve may be required to reimburse the 
Government for educational costs pursuant to Section 2005, Title 10 USC.

3.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies is procedures for correction of military records by the Secretary of the Army, 
acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 
2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the 
ABCMR begins its consideration of each case with the presumption of administrative 
regularity, that is that what the Army did was correct.  The ABCMR is not an 
investigative body and decides cases based on the evidence that is presented in the 
military records provided and the independent evidence submitted with the application. 
The applicant has the burden of proving an error or injustice by a preponderance of the 
evidence.  
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20180000371


11

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1