APPLICANT REQUESTS:  In effect, that his records be corrected to show that he graduated from the Anesthesia Nurse Program, that the adverse Academic Evaluation Report (AER) covering the period 25 July 1992 through 10 December 1993 be removed from his records, and that he receive promotion reconsideration for promotion to the rank of major.  

APPLICANT STATES:  In effect, that he appeared before a faculty board for nonacademic relief from the Anesthesia Nurse Program to determine if he should be dismissed from the program based on allegations that he had falsified his Self Evaluation Examination (SEE) test scores, falsified a Standard Form (SF) 517, and for conduct unbecoming an officer.  He goes on to state that although he admitted to falsifying the test scores under mitigating circumstances, the faculty board found him guilty of conduct unbecoming an officer for that offense but not guilty of the remaining allegations.  The board recommended that he be continued in the program and given a formal letter of reprimand to be placed in his records.  However, before the appointing authority could act on the findings and recommendation of the faculty board, additional information was submitted to the appointing authority that was not reviewed by the faculty board.  As a result of this information, the appointing authority elected not to accept the findings and recommendations of the faculty board.  He also states that he is a good anesthetist, that he had nothing to gain by falsifying his test scores, which had no real impact on his finishing the course, and that he should be allowed to best serve the Army in the capacity of a nurse anesthetist.  In support of his application he submits several letters of support from fellow health care professionals as well as a copy of his rebuttal to his AER.

COUNSEL CONTENDS:  That substantial prejudicial error occurred during the conduct of the proceedings which required, at the least, referring the entire case to a new board.  He further states that the appointing authority could easily and should have, in the interest of justice, reconvened the faculty board to consider for resolution other allegations of impropriety which had been improperly provided to him after the board convened.  This would have allowed the government to present additional information which it felt relevant as well as affording the defense the opportunity to cross-examine government witnesses and present witnesses to rebut the new evidence.  Inasmuch as this did not occur, the applicant was denied his due process rights and the military justice system was corrupted.  He goes on to state that the applicable regulations were circumvented and the applicant was denied justice when outside sources were allowed to provide additional information/allegations that were irrelevant to the issue at hand.

EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned as a USAR second lieutenant in the Army Nurse Corps on 2 May 1986 and entered active duty on 7 September 1986.  He was promoted to the rank of captain on 1 February 1990.

On 20 September 1993 the applicant was formally notified that he was being considered for nonacademic relief from the Nurse Anesthesia Program based on allegations that he had deliberately falsified an SF 517, that he had deliberately falsified his test results on the SEE, and that his conduct was unbecoming a commissioned officer.  Furthermore, per his request, a faculty board would be convened to review the circumstances surrounding the proposed relief action.  The applicant acknowledged receipt of the notification letter on 21 September 1993.

The faculty board convened on 6 October 1993 and the applicant appeared before the board represented by military counsel.  Both the government and the defense called six witnesses each.  The one element of testimony that all witnesses had in common is that the applicant’s falsification of his SEE score (if guilty) was wrong and essentially constituted conduct unbecoming an officer.  It was also further established that the applicant was provided the standards of the course outlined in the student handbook which included a section on the honor code that indicates that any breech in integrity is grounds for immediate dismissal from the course. 

The applicant testified last and in doing so contended that his falsification of the SF 517 was a simple and unintentional error involving a situation in which he forgot to turn on the pulse oximeter (monitors oxygen saturation) for a patient during the first 30 minutes of anesthesia.  When he realized his mistake, he turned it on, but did not record it on the SF 517 until later when he backfilled all of the charts.  In doing so, he mistakenly filled out the SF 517 as though it had been turned on all along.  

In regards to the falsification of his SEE scores, the applicant indicated that it was not an appropriate thing to do and was conduct unbecoming an officer.  He also indicated that although it was a crazy thing to do, he was under a lot of stress at the time and thought that he would be placed on probation if his score was low because he had just received extensive counseling from the program director before taking the test.  Although he knew he did wrong and did not like the reputation he would gain from such an action, it was not a true reflection of his character.  He further indicated that he did not have a good relationship with the program director, that he did not like him, and that he had told him so.  

The closing argument by the government asserted, in effect, that although the applicant contended that he was under a lot of stress during the course, every student was under a lot of pressure and stress.  Furthermore, everyone, to include the applicant, knew the standards and yet only the applicant, who has admitted to falsifying his SEE score, chose to falsify documents under that stress.   

The applicant’s counsel in his closing argument, contended in effect, that although the applicant admitted to falsifying his SEE score, and that the student handbook was very clear as to the actions to take when officers engage in unbecoming conduct, the applicant reached a point where he felt cornered and trapped and made a stupid decision.  However, everyone at some time makes a stupid decision and should not always have their careers or lives ended for one stupid mistake.  Consequently, both the applicant and the government would benefit by allowing the applicant to learn from his mistake and graduate from the course. 

The faculty board adjourned at 1917 hours and reconvened the following day (7 October 1993) at 0755 hours.  The faculty board president indicated that the board found the case perplexing in that the applicant’s witnesses all agreed that his conduct was unbecoming an officer and that his greatest critics thought he was a good anestitist who cared for his patients.  Therefore, the board was put into the position of being judges whose defendant had pled guilty, but they were asked to find mitigating circumstances to find him not guilty.  The board concluded that the applicant did not deliberately falsify the SF 517 but did deliberately falsify his SEE score and was guilty of conduct unbecoming an officer as evidenced by the two incidents.  The board recommended that based on the circumstances in the case, that the applicant be allowed to continue in the Nurse Anesthetist Program and that he be given a formal letter of reprimand to be filed in his official records.  The board adjourned at 0800 hours on 7 October 1993.

Meanwhile, three officers of the Army Nurse Corps (two colonels and a captain) submitted letters to the appointing authority nonconcurring with the outcome of the faculty board and submitted additional information/allegations against the applicant to support their position that they felt should be considered by the appointing authority.

A legal review conducted on 8 November 1993 opined in effect, that the board’s findings required modification to show that the applicant was found guilty of conduct unbecoming an officer based on the one incident of his falsifying his SEE score vice both incidents.  It further opined that there were no errors that materially prejudiced a substantial right of the applicant, and that given the aforementioned modification, the proceedings were sufficient for further action by the appointing authority.  Furthermore, it advised the appointing authority that he was not bound or limited by the findings and recommendations of the board.

On 8 November 1993 the appointing authority notified the applicant that he intended to approve his release from the Anesthesia Nursing Program for nonacademic reasons.  However, before doing so, the applicant would be afforded the opportunity to respond to the additional information/allegations submitted by the three aforementioned officers and to submit matters in extenuation, mitigation, or rebuttal that he would like to have considered prior to a final decision in the matter.

The applicant submitted a rebuttal to the additional information on 12 November 1993 contending that the allegations were either untrue or had been distorted in such a manner as to show him in negative light. 

The applicant’s counsel submitted a rebuttal on 15 November 1993 contending in effect, that the allegations should not be considered or addressed because they were known prior to the convening of the board but were not submitted until well after the board adjourned, thus denying the applicant his due process rights.

A second legal review was conducted on 23 November 1993 which again opined that the proceedings were legally sufficient for further action by the appointing authority.  It further opined that the appointing authority could consider any relevant information in making a decision to take adverse action against an individual, even information that was not considered at the faculty board hearing.  Inasmuch as the appointing authority gave the applicant the opportunity to respond to the information in question before reaching his decision in the matter, the appointing authority had complied with all due process requirements.  Accordingly, the appointing authority elected to relieve the applicant from the course for nonacademic reasons.

On 4 December 1993 the applicant submitted an appeal of the appointing authority’s decision to dismiss him from the course through the chain of command to the next higher authority.  He contended that the appointing authority based his decision on flawed information, one of which was the summary of proceeding of the faculty board hearing which was flawed and did not contain all of the testimony given at the hearing.  He further contended that the faulty board based their findings and recommendations on 12 hours of testimony and that the appointing authority’s decision to disregard the findings and recommendations of the board were in contravention of the applicable regulation.  He also contended that although he committed a serious breech of integrity that he will regret for the rest of his life, he had nothing to gain from changing his SEE score because the SEE carried no academic weight. 

The appointing authority recommended that the applicant’s appeal be denied because the applicant deliberately falsified his SEE score which constituted deceit and a serious breech of trust which warranted relief from the course.  He also contended that the faculty board’s recommendation for retention was irreconcilable with its findings.

On 10 December 1993, the applicant was nonacademically relieved from the course for falsifying a national standardized test score report.  An AER (DA Form 1059) was issued to the applicant which indicated that he failed to achieve course standards.  The report was considered adverse and was referred to him as such with instructions to submit comments in his own behalf no later than 4 February 1994.  The applicant’s records indicate that a response was not received from the applicant.

The rebuttal to the AER provided by the applicant is dated 4 February 1994 and indicates, in effect, that the applicant contended that there were mitigating personal reasons for his developing poor study habits as indicated in the AER, that he did alter his SEE score, however, he had nothing to gain by doing so because the test had no academic bearing on the course, and that because the faculty board hearing determined that he should be retained in the course, he should have graduated with his class.

The nine supporting statements submitted by the applicant with his application from fellow health care professionals all indicate that the applicant is a competent health care professional.

Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  It states, in pertinent part, that unless provided by another directive, the appointing authority is neither bound nor limited by the findings or recommendations of an investigation or board.  Therefore, the appointing authority may take action less favorable than that recommended with regard to a respondent unless the specific directive under which the investigation or board is appointed provides otherwise.  The appointing authority may consider any relevant information in making a decision to take adverse action against an individual, even if the information that was not considered at the investigation or board.  When adverse action is contemplated against an individual based upon information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate authority must notify the person in writing of the proposed adverse action, and provide them copies of the findings and recommendations of the board as well as the supporting evidence on which the proposed adverse action is based.  The individual will be given a reasonable opportunity to reply in writing and to submit relevant rebuttal material.  The appropriate authority will review and evaluate the person’s response before taking final action.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The nonacademic dismissal of the applicant from the Anesthesia Nursing Program was accomplished in compliance with applicable laws, regulations and policies.  The dismissal was neither unjust nor disproportionate to the offense, and there is no evidence of any violation of any of the applicant’s rights.

2.  The applicant’s contention that he was denied his due process rights is without merit.  The appointing authority was within his rights to disregard the faculty board’s findings and recommendations and to consider any other evidence he thought relevant to the case, provided the applicant was afforded the opportunity to review and respond to such evidence.  The applicant was afforded the opportunity to do so and apparently was unable to convince the appointing authority that he should be retained.

3.  The applicant’s contention that although he did alter his SEE score, he had nothing to gain by doing so because the SEE had no academic bearing on the course, is without merit.  The applicant testified under oath before the faculty board that at the time he received his SEE scores he did not know that a low score could not be used as grounds to dismiss him from the course.  Therefore, it is apparent to the Board that it was the applicant’s intent to deceive his chain of command into believing that he had a higher score in order to avoid being placed on probation or possibly being dismissed from the course.

4.  The applicant’s contention that he should be credited with completion of the course and be allowed to perform as a Nurse Anesthetist because he is technically qualified to do so is without merit.  The issue at hand is not one of technical qualifications but of ethical conduct and integrity.  By his own admission he violated the trust placed in him as a commissioned officer as well as a health care provider and he has failed to show through the evidence submitted with his application or the evidence of record any good reason for granting his requests.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy those requirements.

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director