RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2008
	DOCKET NUMBER:  AR20070007362 


	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. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms Laverne M. Douglas  

Member

Mr. Jeffrey C. Redmann

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 that she be reinstated in the Army National Guard (ARNG). 

2.  The applicant states, in effect, that she was a member of the Puerto Rico Army National Guard (PRARNG) and was ordered to active duty.  She states prior to and after arriving in Kosovo on January 2007, her commander initiated chapter 14 separation action against her for disobeying an order to take a Pap smear.  

3.  The applicant states that her commander's decision to separate her from the military was arbitrary, capricious and an abuse of discretion.  She continues that the allegation was that she repeatedly refused to permit a physician to conduct a Pap smear during the Soldier's Readiness Program (SRP) at Camp Atterbury, Indiana, prior to deployment to Kosovo.  The applicant states "I did not refuse to get a Pap smear.  I tried to take the Pap smear, but could not take the pain of the examination, so I requested to get a pap smear completed by a private physician. I was given permission by the local military doctor to get a civilian pap smear, but my commander refused to allow me to do that."

4.  On 15 August 2006, she was ordered to go to the Troop Medical Clinic (TMC). She was very nervous because she was a virgin and had never had a Pap smear before.  She states that upon examination she found that speculum that was used was too large and painful.  She requested another size instrument be used but was told that was the only size they had.  The applicant stated that the pain was so unbearable she told the nurse that she could not go through with the proceeding.  

5.  On 16 August 2006, she was ordered to return to the TMC.  Due to the pain, she asked the nurse if she could pay for a private doctor to perform the proceeding.  She was told that it would be acceptable.  She states that she did not refuse to take the Pap smear, but because of the pain caused by the large speculum she wanted the procedure done by a private doctor.  

6.  On 18 August 2006, she was ordered to return to the TMC.  Again the applicant informed the nurse that she was not refusing to have the procedure done, but because the speculum was so large it would make her bleed.  The nurse told her it would be the same type of bleeding as when the applicant was married.  The applicant did not want the procedure done at the TMC.  


7.  On 23 August 2006, she was ordered to return to the TMC accompanied by her Command Sergeant Major (CSM).  The applicant states that she told her CSM that she could not take the test at the TMC because of the pain the large speculum would cause.  The applicant states that on 30 August 2006 her commander signed off on a leave form, and she explained to him that she had made an appointment with a gynecologist to get the Pap smear completed.  On 31 August 2006, the commander initiated a chapter 14 on her and charged her with disobeying his order to have the Pap smear done.  On 1 September 2006, the applicant went to the Staff Judge Advocate (SJA) at Camp Atterbury, and they coordinated with her unit for her to go to her medical appointment.  

8.  Immediately after her medical appointment the applicant gave the medical documents from her private gynecologist to the TMC.  A military medical doctor approved the civilian Pap smear and changed her medical readiness status to a "go."  Her commander did not accept her medical readiness and determined that he would continue with her chapter separation.

9.  She went before an administrative separation board in March 2007 at Camp Bondsteel, Kosovo.  The applicant states that the board made several recommendations but the most important recommendation was that she be given the opportunity to take another Pap smear and that would cancel any separation action her command recommended.  

10.  The applicant provides a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 22 March 2007; a memorandum from the Trial Defense Service, Camp Bondsteel, Kosovo, dated 20 April 2007; a memorandum from Headquarters, Task Force Falcon, Multinational Task Force (East) KFOR 8, dated 5 April 2007; a memorandum from U.S. Army Human Resources Command (USAHRC), dated 26 April 2007; a Standard Form 
600 (Medical Record - Chronological Record of Medical Care) dated December 2006; a DA Form 7426 (Readiness and Deployment Checklist) dated 12 October 2006; a University of Puerto Rico Bachelor of Science Chemistry Degree certificate, dated 19 February 2006; a DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 6 November 2003; a DD 
215 Form (Correction to DD Form 214), dated 13 March 2004; a 2006 Training Cost Sheet; a letter of support from Camp Atterbury Joint Maneuver Training Center, dated 27 February 2007; and a Letter of Commendation from the Provost Marshal, Camp Atterbury, dated 23 January 2007. 





CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the PRARNG on 11 April 2000 for an 8-year term of service.  She successfully completed basic training and advanced individual training and was awarded military occupational specialty 95B (Military Police).  

2.  The applicant was ordered to active duty on 13 February 2003 in Support of Operation Desert Storm.  Her DD Form 214 with the period ending 6 November 2003 show that she served in Southwest Asia from 21 April 2003 to 
30 September 2003.  The applicant was honorably released from active duty on 
6 November 2003.  Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows award of the Army Commendation Medal, the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Armed Forces Reserve Medal with "M" Device, and the Army Service Ribbon.

3.  Item 22 (Overall Status of Each Section) of an undated DA Form 7425 shows the applicant was a "NO GO" in the medical area.  In item 18 (Female – Valid Pap Smear results (within 12 months of deployment)) of Section IX (Medical) shows she did not have a valid Pap smear as of 12 April 2006. 

4.  PRARNG Joint Forces Headquarters Orders 131-004, dated 12 July 2006, show that the applicant was ordered to active duty on 29 July 2006 in support of Operation Enduring Freedom in Kosovo.  Her mobilization station was Camp Atterbury, Indiana.

5.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 
15 August 2006, shows the applicant reported to the TMC at Camp Atterbury, Indiana.  A military medical physician stated "Unable to perform PAP smear due to extreme anxiety…."  The military medical physician suggested that the applicant be given Valium one hour prior before next examination.

6.  A SF 600, dated 16 August 2006, shows the applicant returned to the TMC and did not take the medication as instructed by the military medical physician because her doctor in Puerto Rico told that he would give her a Pap smear with a cotton swab and the medicine she was given was not good for her and would hurt her.  The military medical physician explained to the applicant that the medication was to help her relax and would make her sleepy.  

7.  The military medical physician also told the applicant that a Pap smear cannot be done with a cotton swab and that the procedure had been done on other female Soldiers who were not sexually active.  The military medical physician stated "She continued to argue & I asked her to have her command see me.  She again said her doctor in Puerto Rico would do the procedure, & she would go home on a 7 day pass.  I spoke to Col F________ (TMC Med. Director) & he said tell her if she did not bring back a proper PAP cytology report, she would not be going.  I did as he directed."

8.  A SF 600, dated 18 August 2006, shows the applicant returned to the TMC with her Command Sergeant Major (CSM).  The military medical physician discussed the procedure at length with the applicant and showed her the speculum and visually explained the procedure.  The applicant stated that it would hurt her and did not take the Valium prescribed for her.  The military medical physician states that "She asks for her Sergeant Major to come to room, when he comes to room, I explain everything & SM continues to say "it will hurt me."  She & the CSM speak in to each other in Spanish.  The CSM asks if my Col. can come in, Col F________ comes to room & explains that she may feel pain, but the procedure will not physically harm her.  When he leaves she continues to say – she is not refusing but will not allow us to do the procedure."

9.  A SF 600, dated 23 August 2006, shows the applicant returned to the TMC with her CSM.  The military medical physician and the CSM discussed the applicant's continued refusal to take the Pap smear and the CSM addressed dealing with the matter at the unit.

10.  A DA Form 4856 (Developmental Counseling Form), dated 23 August 
2006, shows that the applicant was counseled for failing to comply with Army Regulation 40-501 (Standards of Medical Fitness).  Her CSM stated, "You deliberately refused to have your PAP smear test done IAW current MOB station in (sic) five consecutive occasions."  The CSM also stated "Due to the nature of the circumstances and IAW JAG advice given to TMC personnel, you (sic) denial becomes a refusal to obey a direct and lawful order; therefore, you can be declared non deployable for mobilization and you may be processed under UCMJ."  The applicant disagreed with the counseling and stated that she told the medical personnel that she could not hold the pain when medical personnel tried to administer the test. 

11.  On 31 August 2006, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, commission of a serious offense.  The reasons cited by the commander were the applicant’s refusal to permit a physician to conduct a Pap smear test during her unit's SRP and disobeying his lawful order for her to take the test.  The applicant was advised of her rights and the commander recommended the applicant receive a general discharge.

12.  On 1 September 2006, the applicant was seen by a private medical physician at the Edinburgh Family Health Center for a Pap smear test.

13.  A DA Form 4856, dated 3 September 2006, shows that the applicant was counseled for failing to obey a lawful order to remain on post during the Labor Day weekend pass.  The applicant disagreed with the counseling and stated, "I know that don't have the requirements to have the privilege of a four day pass, because I don't fulfill the requirements on medical section.  But on Friday 1, 2006 at 1300 HRS, I had a local medical appointment to complete the requirements of medical section but my chain of command don't let me go to the appointment to resolve the medical section.  That's why I was in the JAG Office looking for a (sic) permission to go there on time, so I can complete all requirements.  The permission was granted by the contacts of MAJ W___." 

14.  On 11 September 2006, the Edinburgh Family Health Center forwarded the applicant's Pap smear laboratory results to Medical Operations, Camp Atterbury, Indiana.  The applicant's Pap smear test results were negative.

15.  A DA Form 7425, validated on 12 October 2006, shows that the applicant's Pap smear was a "Go" as of 27 September 2006.

16.  A memorandum from the Chief, Mobilization Support Branch, USAHRC, dated 16 November 2006, shows that the request for Release from Active Duty (REFRAD) on the applicant was not favorably considered due to insufficient documentation for misconduct chapter action.

17.  A SF 600, dated 5 December 2006, from the Mobilization Medical Director (MMD), Colonel Milton L___, Medical Corps indicated that a record review of documentation was adequate for cytological examination and submission of cytological specimen for evaluation.  The specimen was adequate and there was no need to repeat the applicant's Pap smear.  The MMD also stated that the applicant did not need to be subjected to another examination.

18.  On or about 5 January 2007, the applicant deployed to Camp Bondsteel, Kosovo.

19.  On 6 January 2007, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, commission of a serious offense.  The reasons cited by the commander was the applicant repeatedly refusing to permit a physician to conduct a Pap smear during Task Force Semper Lex's SRP, disobeying a lawful order for her to take the Pap smear test, and disobeying a lawful order to remain at Camp Atterbury during the 31 August 2007 (sic) to 
3 September 2007 (sic) pass period.  The applicant was advised of her rights and the commander recommended the applicant receive a general discharge.

20.  On 6 January 2007, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that she was advised that she was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant requested counsel, requested to be heard by a board of officers, and elected not submit a statement on her own behalf.

21.  On 22 March 2007, the board convened.  It finished on 26 March 2007.  Section IV (Findings) of the DA Form 1574 shows that the board found that the allegations of commission of a serious offenses by applicant for repeatedly refusing to permit a physician to conduct a Pap smear, for willfully refusing to obey the Provost Marshal's order that she take a (cervical cancer) test, and for willfully refusing to obey the order to remain at Camp Atterbury during the 
31 August 2006 to 3 September 2006 Labor Day pass weekend were supported by a preponderance of evidence.

22.  Section V (Recommendations), item I erroneously repeated the board's findings in the recommendation portion of the form and then recommended that the applicant be issued an honorable discharge for the first two offenses and that she be retained in the service for the third offense.  In item II, the board recommended that the applicant be given a 12 month suspension of separation with a probation period of 60 days to conform to the following: a. Receive a valid examination in accordance with Army Regulation 40-501, paragraph 8-20 (a breast examination, pelvic examination and a cervical cytological screening test); b. The test must be conducted at a military medical facility; and c. The source of the Pap smear must be annotated for the cytological examination specimen.  The board further recommended upon satisfactory completion of the probation period, or earlier if rehabilitation conditions have been achieved, to cancel execution of the approved separation. 

23.  A handwritten memorandum (Minority Report), dated 23 March 2007, from a board member addressed to the separation authority stated, in effect, that based on the facts and evidence in the case that the applicant should not be separated. 

24.  On 5 April 2007, the appropriate authority disapproved the board's recommendation (to suspend separation) and directed the applicant receive an honorable discharge under the provisions of Army Regulation 635-200, chapter 14.  

25.  On 26 April 2007, USAHRC approved the request to discharge the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c and directed her discharge from the ARNG and as Reserve of the Army.

26.  On 24 May 2007, the applicant was discharged from active duty, in pay grade E-5.  The applicant's DD Form 214 with the period ending 24 May 2007 shows she was discharged under the provisions of paragraph 14-12c, Army Regulation 635-200; item 24 (Character of Service) shows the entry "HONORABLE"; and item 28 (Narrative Reason for Separation) shows the entry "MISCONDUCT, (SERIOUS OFFENSE)."

27.  PRARNG Joint Forces Headquarters Orders 212-504, dated 31 July 
2007, show the applicant was honorably discharged on 24 May 2007 and assigned to the U.S. Army Reserve Control Group (Reinforcement).

28.  The applicant's NGB Form 22 (Report of Separation and Record of Service) with the ending period 24 May 2007 shows she was discharged from the ARNG and transferred to the USAR Control Group (Reinforcement) under the provisions of Army Regulation 635-200, for misconduct, after completing 7 years, 1 month, and 14 days of total service for pay.  Item 23 (Authority and Reason) shows the entry "Para 1-35b and 1-36a, AR 635-200. Misconduct," item 24 (Character of Service) show the entry "Honorable," and item 26 (Reenlistment Eligibility) shows the entry "RE-3."  

29.  The applicant provides a Letter of Commendation from the Provost Marshal, Camp Atterbury, dated 23 January 2007.  In this commendation, the Provost Marshal stated that the applicant displayed exceptional leadership, professionalism, and an unusual devotion to duty.  He had received and continued to receive comments about the applicant's attention to detail while working and investigating.  He also stated she would be an asset to any unit that she was associated with.

30.  The applicant provided a statement of support from the First Sergeant, Camp Atterbury Joint Maneuver Training Center, dated 27 February 2007.  In this statement, the First Sergeant states that he would take the applicant over 
80 percent of all the troops he has led in combat.  Her demeanor, credibility, and integrity are impeccable.  He also states, in effect, for her career to be tossed aside would be a complete total disaster for her and this great military of ours.




31.  An advisory opinion was obtained from the Chief of the Personnel Division of the National Guard Bureau.  The Chief of the Personnel Division recommended approval of the applicant's request to be reinstated in the ARNG.

32.  The Chief of the Personnel Division stated that the recommendation was based on the members of the separation board recommending the applicant be given a 12 month suspension of her separation with a probation period of 60 days to satisfactorily complete a medical examination at a military medical facility to cancel the execution of the approved separation.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She agreed with the opinion.

33.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel on active duty.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.   

34.  Army Regulation 635-200, paragraph 2-6 states when an administrative separation board is completed, the board proceedings will be reviewed by a qualified officer fully cognizant of applicable regulations and policies to determine whether the action meets the requirements of the regulation.  When a member of the Reserve Component is to be separated per chapters 13, 14, or 15, the separation authority will decide, based on board findings, whether the Soldier concerned is being separated because of moral or professional dereliction.  No separation authority will direct discharge if a board recommends retention. However, as provided above, a separation authority may direct retention when discharge is recommended, or he/she may issue a discharge certificate of a more favorable character than that recommended.  

35.  Army Regulation 635-200, paragraph 2-12 states the board will determine whether each allegation in the notice of proposed separation is supported by a preponderance of the evidence.  The board will then determine whether the findings warrant separation.  If more than one basis for separation was contained in the notice, there will be a separate determination for each basis.  The board convened to determine whether a Soldier should be separated for misconduct will recommend that the Soldier be separated because of misconduct (and recommend a characterization of service of honorable, general (under honorable conditions), or under other than honorable conditions) or retain in service; when the board recommends separation, it may also recommend that the separation 


be suspended; but the recommendation as to suspension is not binding on the separation authority.  If separation or suspension of separation is recommended, the board will also recommend a characterization of service or description of separation.

36.  Paragraph 5-3 of Army Regulation 635-200 provides guidance on separation by reason of Secretarial Authority.  It states, in pertinent part, that this authority may be used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army.  

37.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JFF is the code for Soldiers separating under the provisions of paragraph 5-3, Army Regulation 635-200 (Enlisted Personnel), by reason of Secretarial Authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should be reinstated in the ARNG based on the fact that her discharge was based on an isolated incident that occurred in an otherwise outstanding record of seven years of service in the PRARNG. 

2.  It is acknowledged that the applicant had no other record of misconduct in her records.  She provided letters of support that indicated she was a good Soldier.

3.  However, the evidence of record confirms that the applicant was charged with refusing to take a Pap smear test and disobeying lawful orders.  While the reason for her refusal to take the test might be understandable under ordinary (i.e., under strictly civilian or even non-mobilization) conditions, it appears that this misconduct did, or could have, held up her deployment with her unit.  Unfortunately, Soldiers are often required to be placed in situations that may cause them pain.  Soldiers are not ordinarily allowed to refuse to experience those situations that might cause them pain, and to do so results in consequences.  In this case, the consequence was that her commander elected to discharge her due to misconduct.

4.  The applicant requested consideration of her discharge by an administrative separation board.  The majority of the administrative separation board members recommended that she be given a 12 month suspension of separation, and a minority member recommended she be retained in the service.  However, since the majority recommendation of the board was that she be separated but given a 


suspension of her separation, the recommendation of suspension was not binding on the separation authority.  The separation authority was therefore within his rights to disapprove the administrative separation board recommendations and direct that the applicant be issued an honorable discharge with reason for separation as misconduct.

5.  Based upon the reasons for the applicant’s discharge, her reinstatement in the Army would not be a reasonable course of action.  The situation that caused her separation would almost certainly arise again at some point in her career, and there would be no guarantee that she would at that time be in a place where she could have the test performed by a civilian doctor.

6.  The above being said, and although it was properly applied, it appears that the narrative reason for the applicant’s separation is harsh.  It appears it would be equitable to change the reason for her separation from misconduct to Secretarial Authority and to change her SPD code from "JKQ" to "JFF" on her DD Form 214.  

7.  It is noted the applicant's ARNG discharge orders and NGB Form 
22 erroneously show she was transferred to USAR Control Group (Reinforcement). 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__CD ___  __LMD__  ___JCR__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the State Army National Guard records and all Department of the Army records of the individual concerned be corrected by changing the narrative reason for her separation to Secretarial Authority, the authority for her separation to Army Regulation 635-200, paragraph 5-3, and her SPD code to JFF on her DD Form 214 with the period ending 24 May 2007. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reinstating her in the ARNG.




____Carmen Duncan__
          CHAIRPERSON