IN THE CASE OF:	  

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090005619 


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 reconsideration of the Army Board for Correction of Military Records (ABCMR) partial grant to be reinstated in the Puerto Rico Army National Guard (PRARNG).

2.  The applicant states that when she departed the mobilization station at Camp Atterbury, IN in 2006, she was determined to be deployable because she had been given a Pap smear by her private physician on 1 September 2006.  She states Colonel L--n testified at her administrative separation board that the examination she received from her private physician was adequate and she was declared deployable.  She states she was more than willing to take another Pap smear after the administrative board was completed because she had been medically and educationally counseled as to what a Pap smear was and what it entailed.  She states she was never given the chance to comply with the recommendations of the board.

3.  The applicant states she has since taken a Pap smear on 17 February 2009, at the Department of Veterans Affairs (VA) hospital in Puerto Rico where she was treated with respect and consideration during the examination.  She states she voluntarily joined the PRARNG because she wanted to wear the uniform and be a part of the military.  She states she was deployed to Iraq and she did very well.  She states that she has demonstrated her willingness to do her part as a Soldier by educating herself on the Pap smear and taking a Pap smear at the VA hospital.  She states that she has complied with the administrative board’s recommendation and the situation that caused her separation will never arise again.
4.  The applicant provides a letter, dated 9 February 2009, from Major W--b, the Command Judge Advocate for Camp Atterbury Joint Maneuver Training Center; a letter, dated 15 March 2009, from Lieutenant Colonel J----N, her trial defense counsel; a letter, dated 26 March 2009, from her civilian attorney; and a gender specific physical examination, dated 17 February 2009, from the VA.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070007362 on 3 April 2008.

2.  The letters submitted by the applicant are new evidence which require that her case be reconsidered by the ABCMR.

3.  The applicant's military personnel records show she enlisted in the PRARNG on 11 April 2000 for a period of 8 years.  She completed basic combat training and advanced individual training and was awarded military occupational specialty 95B (Military Police).

4.  On 13 February 2003, the applicant was ordered to active duty in support of Operation Desert Spring.  She served in Southwest Asia from 21 April to 
30 September 2003 and was awarded the Army Commendation Medal and the Armed Forces Expeditionary Medal.  On 6 November 2003 she was released from active duty after having completed her term of required service.  She had completed 8 months and 24 days of active service that was characterized as honorable.

5.  The applicant was promoted to sergeant/pay grade E-5 effective 30 May 2006.

6.  PRARNG Joint Forces Headquarters Orders 131-004, dated 12 July 2005, ordered the applicant to active duty effective 29 July 2006 in support of Operation Enduring Freedom in Kosovo.  Her mobilization station was Camp Atterbury.

7.  On 15, 16, 18, and 23 August 2006, the applicant was ordered to the Troop Medical Clinic (TMC) at Camp Atterbury to obtain a valid Pap smear.  She did not have a valid Pap smear within 12 months of deployment.  The medical technician was unable to perform the test on the first visit due to the extreme anxiety displayed by the applicant over the test.   The applicant indicated she was not refusing to take the Pap smear but did not want the technicians at the TCM to do the procedure because she could not hold the pain when medical personnel tried to administer the test.  The applicant indicated that her doctor in Puerto Rico would perform the procedure if she were allowed to go home on a 7 day pass.

8.  On 23 August 2006, the applicant was formally counseled for failing to comply with Army Regulation 40-501 (Standards of Medical Fitness).  The applicant disagreed with the counseling and stated that she told medical personnel that she could not hold the pain when medical personnel tried to administer the test.

9.  On 31 August 2006, the applicant's commander notified her that he was initiating action to discharge her under the provisions of Chapter 14 of Army Regulation 635-200 with a general discharge.  The commander indicated he was processing the applicant because she refused to permit a physician to conduct a Pap smear cervical cancer test, a test which is required by Army Regulation 
40-501.  The Pap smear is required for all women on active duty, regardless of age, and the applicant willfully refused to obey the Provost Marshal's order to take the test.  

10.  The applicant's commander stated she was not entitled to an administrative board hearing as she had less than 6 years of total service.  (The applicant in fact had 6 years, 4 months, and 20 days of total service.)

11.  On 31 August 2006, the applicant's commander recommended she be separated from the United States Army prior to the expiration of her enlistment.

12.  The applicant was apparently restricted to post on 1 September 2006, however, on that date she was seen by a private medical physician at the Edinburgh Family Health Center for a Pap smear.

13.  On 3 September 2006, the applicant was formally counseled for failing to obey a lawful order to remain on post during the Labor Day weekend.  The applicant disagreed with the counseling and stated she had a local medical appointment on 1 September 2006 to complete the requirement of the medical section but her chain of command would not let her go.  She stated she was in the Judge Advocate General office to get permission to attend her appointment.

14.  On 11 September 2006, the Edinburgh Family Health Center forwarded the applicant's Pap smear laboratory results to Medical Operations, Camp Atterbury.  The results were negative.   The applicant's Readiness and Deployment Check List shows her as "GO" for deployment effective 12 October 2006.



15.  On 16 November 2006, the Chief, Mobilization Branch at Human Resources Command, Alexandria, VA (AHRC-PL-M-MS) determined that the commander's request for the applicant's early release from active duty was not favorably considered due to insufficient documentation to support a discharge for misconduct.  

16.  On 5 December 2006, the Mobilization Medical Director (MMD), Colonel L___, MD determined that upon review of the applicant's records, there was documentation of an adequate cytological examination and submission of a cytological specimen for evaluation, and there was no need to repeat the applicant's Pap smear.  Colonel L__ stated "Soldier does not need to be subjected to another gynecology examination."

17.  On or about 6 January 2007, the applicant deployed to Camp Bondsteel, Kosovo.

18.  On 6 January 2007, the applicant's commander notified her that he was initiating action to discharge her under the provisions of Chapter 14 of Army Regulation 635-200 with a general discharge.  The commander indicated he was processing her for the following offenses:

   a.  she refused to permit a physician to conduct a Pap smear cervical cancer test, a test which is required by Army Regulation 40-501, for all women in the Army, regardless of age, on active duty; 
   
   b.  she willfully refused to obey the Provost Marshal's order that she take the test; and 
   
   c.  she willfully refused to obey Lieutenant Colonel N_____n's order that she remain at Camp Atterbury during the 31 August to 3 September 2006 pass period.

19.  The applicant was advised of her rights and, after consulting with counsel, she requested that her case be considered by an administrative separation board, to appear before an administrative separation board, and counsel and representation by military counsel and/or civilian counsel at no expense to the Government.



20.  On 22 March 2007, an administrative board was convened and on 26 March 2007 the board reported the following findings and recommendations:

	a.  the first two offenses were supported by the preponderance of evidence and a majority of the board recommended separation for commission of a serious offense with a honorable discharge due to these offenses; and

	b.  the third offense was supported by the preponderance of evidence.  A majority of the board recommended the applicant be retained in the service based on this offense.

21.  The board further recommended a 12-month suspension of the separation, with a probation period of 60 days to conform with the following: 

	a.  that she receive a valid examination in accordance with Army Regulation 40-501, paragraph 8-20 (a breast examination, pelvic examination, and a cervical cytological screen 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.

22.  The board recommended the medical facility at Camp Bondsteel determine whether the applicant should receive the test in Kosovo or at Landstuhl, Germany.

23.  The board recommended that upon satisfactory completion of the 60-day probation period or earlier if the above rehabilitation conditions were achieved execution of the approved separation be cancelled.

24.  A Minority Report from a member of the board, dated 23 March 2007, addressed to the separation authority stated that based on the facts and evidence in the case the applicant should not be separated.  The member stated the applicant should have been referred to a professional female gynecologist at Ireland Community Hospital Women's Clinic.  The member also stated the applicant was specifically denied the opportunity to obtain a Pap smear from a civilian physician by her command.  

25.  On 5 April 2007, the discharge authority, after careful consideration of administrative boards findings and recommendations directed that the applicant be separated with an honorable discharge.  The discharge authority stated that he determined the applicant did not possess the potential to perform useful service to meet mobilization requirements if ordered to active duty, and that she should be discharged from the Army.

26.  On 26 April 2007, the Human Resources Command, Alexandria, VA approved the applicant’s discharge and directed the PRARNG to issue the applicant an honorable discharge and to further discharge the applicant from the Reserve Component status with an effective date the same as the discharge from active duty.

27.  On 24 May 2007, the applicant was discharged by reason of misconduct (later changed to Secretarial Authority).  Item 23 (Type of Separation) of her 
DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 24 May 2007 contains the entry "Discharge."  She had completed 9 months and 26 days of active service that was characterized as honorable.  She was also discharged from the PRARNG on 24 May 2007 and transferred to the U.S. Army Control Group (Reinforcement).

28.  Puerto Rico National Guard Element, Joint Forces Headquarters Orders 212-504, dated 31 July 2007, discharged the applicant from the PRARNG effective 24 May 2007 and transferred her to the USAR Control Group (Reinforcement).

29.  The applicant submitted a letter, dated 15 March 2009, from Lieutenant Colonel J----N, her trial defense counsel.  Lieutenant Colonel J____n stated the applicant has since taken the step to educate herself on the Pap smear procedure and she has completed the procedure at a VA hospital.  She stated these actions show the applicant is willing to get the examination completed within a government facility.  Throughout the administrative board proceedings the applicant maintained that she was willing to retake the Pap smear.  She stated that after the conclusion of the board the applicant had prepared to go to Landstuhl Hospital in Germany to have the procedure performed again; however, she was never given the chance, she was discharged instead.  Colonel J----N stated that she believes the applicant has taken it upon herself to educate herself and take the Pap smear to prove her commitment to being a Soldier so this circumstance will never happen again.  Colonel J----N also described a less than stellar command climate wherein the Army's Inspector General was concerned with applicant’s stories of nepotism, favoritism, command influence, and the constant barrage and unfair treatment National Guard Soldiers encountered during their tenure in Kosovo.



30.  Lieutenant Colonel J___n stated the applicant had a stellar military record and she had previously deployed and served in the combat zone of Iraq.  She stated the applicant worked hard and performed her duties and more without any problems.

31.  The applicant submitted a letter, dated 9 February 2009, from Major W--b,  who was the Command Judge Advocate for Camp Atterbury Joint Maneuver Training Center in 2006.  Major W__b stated the applicant is prepared to perform the Pap smear as required if the situation arises again.  He states that he understands the applicant had prepared to go to Landstuhl, Germany and submit to another Pap smear procedure immediately after the separation board proceedings in Kosovo, but her command denied her the opportunity.  He states that when the applicant, a combat veteran, walked into his office, she constantly explained her desire to remain in the National Guard and deploy with her unit.  She never once stated she would not deploy but simply requested a medical option.  He states he honestly and sincerely believes the applicant, both in September 2006 and now, wants to be a Soldier.

32.  The applicant submitted a letter from Mr. G____, an attorney from the firm that represented the applicant in connection with an Article 15, Uniform Code of Military Justice issue.  He states she objected to a gynecology examination for cultural reasons and essentially, she wished to obtain a similar examination from a physician of her own choosing who would use less invasive procedures.  He states this became a hotly contested issue and ultimately she was ordered to submit to the examination from the Army.  She was also restricted to the base specifically to preclude her from getting this examination from her chosen physician.  Mr. G____ stated, in his letter of 20 November 2006, that due to the applicant's religious and personal objections, she respectfully requested to obtain her test from her civilian obstetrician/gynecologist ((OB/GYN).  He stated her command adamantly opposed this request and sought to force her to submit to a Pap smear by a military OB/GYN.  He stated this was extremely unusual, as at least one female member of her unit had brought her own Pap smear results from her personal, non-military OB/GYN.

33.  The applicant submitted the results of her gender specific examination, to include a Pap smear, that was conducted on 17 February 2009.

34.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  
Chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  Throughout the applicant's processing at Camp Atterbury, she requested that  she be allowed to be given a Pap smear with her own doctor.  This in itself does not appear to be an unusual or unique request based on her civilian attorney's statement in that here was at least one other female member of the unit who was allowed to bring in her Pap smear results from her personal physician.

2.  The applicant did receive a Pap smear from a private physician, on 
1 September 2006, and the results were forwarded to Camp Atterbury at which time she was considered a "GO" for deployment.  The MMD specifically stated, 
on 5 December 2006, that the applicant did not need to be subjected to another gynecology examination and, as a result, she was deployed on or about 
6 January 2007.

3.  A majority of the applicant's administrative discharge board found the offenses of refusal to permit a physician to conduct a Pap smear and refusal to obey the Provost Marshall's order that she take the test were supported by the preponderance of evidence and recommended separation.  However, the board recommended a 12-month suspension with a 60-day probation period provided the applicant received the test at a military medical facility, even though the MMD stated on 5 December 2006 that she did not need to be subjected to another gynecology test.  Therefore, the board clearly provided a means to retain the applicant and the intent of the board was not to separate her.

4.  A Minority Report from a member of the board stated the applicant should have been referred to a professional female gynecologist at a local clinic; however, the applicant's command specifically denied her the opportunity to obtain a Pap smear from a civilian physician.  

5.  It appears road blocks were continually placed before the applicant in her attempt to meet the physical requirements for deployment.  She was restricted to base when she had an appointment with a civilian physician to obtain the Pap smear and upon completion of her administrative discharge board she was not allowed an opportunity to comply with the provisions set forth by the board to receive a test at a military facility so that she could be retained on active duty. 



6.  The discharge authority stated the applicant did not possess the potential to perform useful service to meet mobilization requirement if ordered to active duty.  However, the applicant's military records show no acts of indiscipline other than the refusal to take the Pap smear.  She previously deployed to Southwest Asia for 5 months without any problems, she was promoted to sergeant, and she was deployed to Kosovo at the time of her discharge. 

7.  In view of all of the above, it would be equitable to amend the discharge that she was issued on 24 May 2007 to show she was released from active duty and returned to the control of the PRARNG.  It would also be equitable to void her discharge from the PRARNG and reinstate her in the PRARNG, and provide her all back pay and allowances that may be due as a result of this action.  Further, due to reinstatement it would be fair and equitable to credit the applicant with 
50 retirement points for each year she was without military status.

8.  It is noted that based on the applicant's enlistment contract her normal expiration of term of service (ETS) date would have been 10 April 2008.  Therefore, if the applicant is otherwise qualified, an antedated reenlistment agreement is authorized in order to avoid an unintended break in service.

BOARD VOTE:

____x____  ____x____  ___x_____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20070007362, dated 3 April 2008.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

   a.  amending item 23 of the applicant’s DD Form 214 issued, on 24 May 2007, to show "Released From Active Duty" instead of Discharge.

   b.  revoking Puerto Rico National Guard Element, Joint Forces Headquarters Orders 212-504, dated 31 July 2007, and show the applicant continued to serve in the PRARNG and earned 50 retirement points each year since 24 May 2007.
   
   c.  if the applicant desires and she is otherwise qualified an antedated reenlistment agreement is authorized in order to avoid an unintended break in service.

2.  Additionally, the Defense Finance and Accounting Service (DFAS) should audit the applicant's pay records and provide the applicant all pay and allowances due as a result of the above corrections.






      _______ _   _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.
ABCMR Record of Proceedings (cont)                                         AR20090005619



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ABCMR Record of Proceedings (cont)                                         AR20090005619



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