IN THE CASE OF:	   

		BOARD DATE:	     17 January 2012

		DOCKET NUMBER:  AR20110004909 


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 correction of the Moral Screening Questionnaire portion of her application packet for a direct commission in the Army Nurse Corps (ANC) to remove information implying she had been arrested.

2.  She states, in effect, her U.S. Army Recruiting Command (USAREC) Direct Commissioning and Accessioning (DCA) application contains false information.  Without consulting her, her recruiter answered "yes" to question 2 of the Moral Screening Questionnaire prepared as part of her ANC direct-commissioning packet which asks, "Have you ever been arrested by any police officer, sheriff, marshal, or any other type of law enforcement officer?"  She has never been arrested and she does not have a criminal record of any sort.  She did receive a company-grade Article 15 in April 2009, but this is not classified as an arrest.  The recruiter stated that an Article 15 is considered to fit into that category by USAREC standards, but he was unable to provide an Army regulation that states such.  As a result, she was not selected for direct commission in the ANC in 2009 and she was denied a necessary conviction waiver.  In 2010, the ANC disapproved a conviction waiver and her packet was not reviewed for the ANC direct-commissioning board.

3.  She provides documents identified in a list of appendices.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 10 April 2008.  She enlisted in the Regular Army (RA) on 29 April 2008 for a period of 4 years and for training in military occupational specialty (MOS) 68W (Health Care Specialist).  She is currently serving on active duty in the RA in MOS 68W.

2.  Section VI (Remarks) of the DD Form 1966 (Record of Military Processing – Armed Forces of the United States) completed when she entered the DEP shows she completed a Bachelor of Science degree in nursing at Florida Agricultural and Mechanical University on 14 December 2007 and she took her National Council Licensure Examination on 18 March 2008, but failed the examination.  Section VI also shows she was not eligible for a commission as a registered nurse (RN) and wished to enlist in MOS 68W.

3.  Her official military personnel file in the interactive Personnel Electronic Records Management System (iPERMS) does not include documentation pertaining to her application for a direct commission in the ANC.

4.  She provides a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) showing her company commander imposed nonjudicial punishment (NJP) against her on 26 May 2009 under the provisions of Article 15, UCMJ, for the following misconduct that occurred on 21 April 2009:

* failure to go at the time prescribed to her appointed place of duty
* six instances of failure to obey a lawful order from a noncommissioned officer (NCO)
* being disrespectful in deportment toward an NCO

5.  Her NJP included reduction to private first class/E-3 and extra duty for 14 days.  She appealed the punishment and her appeal was denied.  The DA Form 2627 was not filed in her record in iPERMS.

6.  She provides e-mail correspondence showing she applied for commissioning in the ANC in 2009.  The correspondence shows Captain R____ D. C____ [her recruiter] informed her on 7 December 2009 that a conviction waiver for her Article 15 had been denied, resulting in her being a non-select by the board considering applications.  On 8 November 2010, her recruiter informed her that her packet would not be reviewed by the 16 November 2010 board following a determination that her waiver would remain disapproved.  The correspondence shows her recruiter was informed she was required to wait a year from the date of her waiver disapproval to reapply.

7.  She provides a printout of the Moral Screening Questionnaire portion of the electronic National Security Questionnaire (eNSQ) that appears to have been completed by her recruiter in connection with her application for a direct commission.

	a.  The document shows the box for "yes" is marked next to the question "Have you ever been subject to court martial or other disciplinary proceedings under the Uniform Code of Military Justice?  (Include nonjudicial, captain's mast, etc.)"

	b.  The form shows "yes" is marked next to the question "Have you been arrested by any police officer, sheriff, marshal, or any other type of law enforcement officer?"  The form required additional information based on the response to this question.

	c.  The "Record Summary:  Court Actions" section of the form shows additional information was provided based on the response to the question, "Have you been arrested by any police officer, sheriff, marshal, or any other type of law enforcement officer?"  The form shows the offense date as 21 April 2009, the offense type as "civil," and the offense action as "failure to obey the lawful order of an NCO."

8.  She provides pages from a DCA Applicant Profile showing a conviction waiver was initiated on 13 November 2009 and disapproved on 3 December 2009.

9.  She provides additional e-mail correspondence showing she asked her recruiter on 24 November 2010 why he placed a "yes" next to the question regarding arrest.  She stated she had never been arrested and noted she had only received a company-grade Article 15.  He responded, stating the Article 15 was considered by USAREC standards to fit into that category.  He stated he argued the point and was told the issue was not that of having been physically arrested, "but the UCMJ."  He further explained that in the DCA system, answering "yes" to a question in the Moral Screening Questionnaire created a new screen requiring additional information.

10.  The Total Officer Personnel Information Management System (TOPMIS) shows she has been selected for appointment as a second lieutenant/O-1 in the Army Medical Department Army Nurse Branch and she is scheduled to report to a unit on 10 April 2012.

11.  She provides copies of USAREC Regulation 601-56 (Waiver, Future Soldier Program Separation, and Void Enlistment Processing Procedures) and Army Regulation 601-210 (Active and Reserve Components Enlistment Program).  These regulations provide policy and procedures pertaining to enlistment.  They do not provide policy and procedures pertaining to appointment of commissioned officers.

12.  She provides a copy of Army Regulation 601-100 (Appointment of Commissioned and Warrant Officers in the Regular Army) in which she has highlighted paragraph 1-13 (Military or Civilian Court Convictions).  This paragraph states:

	a.  Applicants must not have any civil convictions, adverse juvenile adjudication, pre-trial diversion for a felony, or any type of court-martial conviction.  A request for a waiver of a conviction, offense, or unfavorable juvenile court decision will be submitted in affidavit form or supported by documentary evidence citing the offense, the court action, and the judgment and sentence rendered.  No waiver is required for minor traffic or minor non-traffic offenses resulting in a fine of $250.00 or less, except when the applicant has accumulated six or more such offenses during any 12-month period.

	b.  Commanders of Army commands, Army service component commands, and direct reporting units may grant a waiver for an offense under military or civil codes if the offense was not a felony and the offense did not involve moral turpitude.

13.  USAREC Regulation 601-37 (Army Medical Recruiting Program) prescribes eligibility criteria governing the appointment of persons into the Army Medical Department, with or without prior service; into the Regular Army; or Army Reserve.  It provides the policies and procedures to process applicants for direct appointments and student programs.

	a.  Chapter 23 provides guidelines on the contents of appointment application checklists.  This chapter states applications will include a DA Form 61 (Application for Appointment).  It states that if "yes" is checked for item 26 (Have you ever under either military or civilian law been indicted or summoned in to court as a defendant in a criminal proceeding (including any proceedings involving juvenile offenses; Article 15, UCMJ; and any court-martial)?), an affidavit requesting a waiver of the offense must be included by the applicant.  The affidavit must include the date, city, state, and nature of each alleged offense or violation, the names and locations of the court or place of hearing, and the penalty imposed or other disposition of each case in detail.

	b.  Table 24-1 (Waiver Codes) provides that a waiver may be approved by the USAREC Health Services Directorate or the Deputy Chief of Staff, G-1, for offenses under military or civil codes described in Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), paragraph 
1-8, except for those specified for approval by the Assistant Secretary of the Army for Manpower and Reserve Affairs.

	c.  The regulation also states that applicants who were not selected [by a selection board] will receive a letter of nonselection from the appropriate division of USAREC Health Services Directorate.  The reasons for nonselection are not released by board members.  Nonselected applicants may reapply 1 year from the date of the board (not the date of board results).

14.  Army Regulation 135-100 states persons adjudged as youthful offenders or who have a record of convictions by any type of military or civil court are not eligible for appointment unless a waiver is authorized under paragraph 1-8.  This excludes minor traffic violations involving a fine or forfeiture of $100.00 or less.  Paragraph 1-8 states the appointing authority may grant a waiver for offenses under military or civil codes, except for felonies under local, Federal, or military law; offenses which resulted in sentence to confinement in prison, stockade, or detention area; or in sentence to hard labor; and offenses involving moral turpitude.  However, the applicant's conduct and character at this time must be above reproach.  Also, the potential value of the applicant's services must be considered very high.

15.  eNSQ is the electronic version of Standard Form 86 (Questionnaire for National Security Positions) which is promulgated and maintained by the U.S. Office of Personnel Management.  The form is used to obtain information for the purpose of conducting background investigations and reinvestigations of persons under consideration for or retention in national security positions and for positions requiring access to classified information.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show and the applicant has not provided evidence showing errors in the preparation of the Moral Screening Questionnaire completed in connection with her application for a direct commission in the ANC.

2.  The applicant states errors in her Moral Screening Questionnaire led to her nonselection for direct commission in the ANC.  The questionnaire, however, was not the document upon which the waiver authority would have made his or her decision on a waiver for the NJP she received under Article 15, UCMJ.

3.  As part of the application packet she submitted, she was required to submit an affidavit requesting a waiver of the offense and describing the details of the offense.  This document would have been the basis for approval or disapproval of a waiver.

4.  Her NJP was imposed in April 2009 and a waiver was disapproved in December 2009.  It appears the waiver authority made a reasonable decision to disapprove the waiver considering the short amount of time that had passed.  The record does not show and she has not provided evidence showing the approval authority erred in the decision not to grant a waiver in 2009.

5.  Her recruiter informed her she was required to wait 1 year from the date of her waiver disapproval to reapply.  It appears the requirement that nonselects wait for 1 year to reapply was the actual reason she could not be considered by a board in 2010.  The available evidence indicates the 2009 board convened in December and the 2010 board convened in November, meaning she would have had to wait for the 2011 board to be considered under USAREC policy.

6.  TOPMIS shows she was selected for appointment in 2011 and will be commissioned in the near future.

7.  In view of the foregoing, there is no basis for granting the requested relief.

BOARD VOTE:

________  ________  ________  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.



      _____________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)                                         AR20110004909



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ABCMR Record of Proceedings (cont)                                         AR20110004909



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