Saturday, May 2, 1998 'DRUMMED OUT,' EX-CADET SUES VMI EX-STUDENT CLAIMS ENTRAPMENT By MATT CHITTUM ROANOKE TIMES An Arlington man was expelled after he had completed his final exams in April 1996, just days before he was to graduate. A former Virginia Military Institute cadet who was kicked out of school for cheating is suing the school for his diploma because he says the school used a "self-confessed cheater" to entrap him. In return, the other cadet avoided a trial himself and received favorable class grades he didn't earn, the suit filed in U.S. District Court in Roanoke alleges. Brian Benken of Arlington was "drummed out" after he had completed his final exams in April 1996, just days before he was to graduate. Besides his diploma, he is asking that the cheating conviction be expunged from his record and that he be reimbursed $40,000 for the Air Force ROTC scholarship he lost as a result. The suit, filed just three days before the two-year statute of limitations on it ran out, is the second challenge to the VMI Honor Court in the last month. Six cadets allegedly involved in a series of beatings have claimed their constitutional rights were violated by an Honor Court investigation. Friday night, an Honor Court jury was deliberating in that case. A verdict was expected late Friday or today. Two of the attorneys representing three of those cadets also are representing Benken. Katherine Londos and John Cooley could not be reached for comment. Benken was a senior when two Honor Court prosecutors, Joshua Keesal and Christopher Gorman, decided to sniff out alleged "good guys" - cadets who tolerate violations of the honor code, the suit alleges. The code reads: "A cadet does not lie, cheat or steal, or tolerate those who do." The only penalty is expulsion. Benken claims that a cadet named Jeffrey Mozgala of Vienna confessed to cheating but to avoid prosecution, agreed to entrap Benken in a cheating scam. Mozgala testified to the Honor Court that he had helped Benken complete a physics lab project, and that Benken had turned in the project as his own work, according to the suit. In reality, the suit says, Mozgala or someone else stole the computer disk Benken's work was on and altered it to look as if Benken had borrowed some of his work from Mozgala. Benken was approximately the 31st cadet expelled from VMI that year for honor violations, the suit claims. Honor violations typically number fewer than 10 in a year. Two Air Force officers, who reviewed the case because Benken was in line to receive an Air Force commission, concluded the proceeding was "a tragic miscarriage of justice." The central charge that the work Benken turned in was not his own was never substantiated, one of the officers found. The whole affair was an "unprofessional trial scene" that included improper rulings by the Honor Court judge, a cadet, the other officer wrote. The judge refused to allow Benken's attorney to question prosecution witnesses and submit certain evidence about the lab project, the suit claims. The judge also did not allow Benken's attorney to cross-examine Mozgala about his own admitted violation of the honor system, thereby depriving Benken of the opportunity to discredit the primary witness against him, the suit says. Before the trial took place, the Honor Court adviser ordered Mozgala's physics professor to change his grade on the laboratory assignments in question from "zero" to a higher grade in return for his cooperation, according to the suit. Other allegations include that Mozgala admitted he destroyed his own work for the lab assignment after Benken's attorney's requested a copy of it; that the jury in the case was hand-picked by the Honor Court and its faculty advisers; that the prosecutors destroyed a witness' statement and obtained a new one; and that the prosecutors wrote witness statements and made witnesses copy them over in their own hand and sign them. A VMI spokesman declined comment because VMI has not been served with the suit.