RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050016050


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. William Crain                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. David Tucker                  |     |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:

The applicant defers to counsel to present his request and argument.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s records be corrected to reflect
that the highest grade in which he served satisfactorily was that of
Colonel vice Lieutenant Colonel.  Counsel also requested the Board exercise
its authority to conduct an evidentiary (formal) hearing.

2.  Counsel states the applicant served with distinction for nearly 12
years as a Colonel, and given that his peers still consider him to be one
of the finest anesthesiologists and officers with whom they served despite
his brief dependence on a narcotic that resulted in action under the
Uniform Code of Military Justice, it was unjust to determine that
Lieutenant Colonel was the highest grade in which he served satisfactorily.

3.  Counsel outlines the applicant’s accomplishments during his illustrious
military career.  He notes he served voluntarily in four combat assignments
beginning with Korea.  He later served in Vietnam before briefly leaving
the Army to purse a career in medicine.  Counsel noted that even though the
applicant enjoyed a profitable and successful medical practice he
recommitted himself to the Army and returned to active duty as a Major in
the Anesthesiology Residency Program in 1983.

4.  Counsel states that prior to being promoted to Colonel in July 1993 the
applicant was awarded a Combat Infantryman Badge, a Bronze Star Medal, and
the Purple Heart.  He states that during his nearly 12 years of service as
a Colonel the applicant deployed to Somalia and to Iraq and took
notoriously difficult assignments at Walter Reed Army Medical Center.

5.  While deployed to Somalia in 1993, counsel states, the applicant took
it upon himself to organize, inventory, and correct deficiencies in the
equipment that he and the other deploying members of his team would be
taking with them.  He recognized problem areas, fixed them before
deployment, and brought to the team a wealth of knowledge and experience
that few of the others had.  Upon arriving in Somalia the applicant
demanded a great deal from his medical staff and placed a strong emphasis
on training, ultimately ensuring that his combat


support hospital became so efficient that members of other nations could
also receive needed medical treatment.  He notes the applicant and his team
were involved in the medical treatment of military personnel following the
battle of Mogadishu in October 1993, which form the basis for the movie
known as “Blackhawk Down.”  Counsel notes that due in large part to the
applicant’s leadership and rigorous training demands, not a single
individual brought in from the battle lost his life, limb, or eyesight due
to error in triage, time awaiting the overwhelmed surgical suites,
misdiagnosis or mistreatment.  He states the applicant volunteered to stay
behind when his unit rotated home in January 1994 and U.S. forces began to
withdraw from Somalia.

6.  Upon returning to Walter Reed Army Medical Center the applicant assumed
duties as the Assistant Chief of the Army’s largest anesthesia and
operating service and instituted numerous successful programs and
significantly improved the medical service available to service members.
His achievements included the development of a new Army field anesthesia
machine and implemented a training regimen for medical personnel that
emulated the prime directive in Army training doctrine of “train like you
fight.”

7.  He then served a 2 year tour as Command Surgeon for the United States
Army Reserve Command prior to returning to Walter Reed as Chief of
Anesthesia and Operative Service and Program Director of Anesthesiology
Residency.  In this capacity he was cited for his outstanding clinical
care, excellence in education, and sustained clinical leadership in the
Army’s most complex and challenging referral Medical Center at a pivotal
time in its history.

8.  Counsel states that the applicant, at age 62, beyond mandatory
retirement age, with more than 20 years of military service and his
assignment at Walter Reed precluded his deployment to Iraq in support of
Operation Iraqi Freedom.  However, he notes the applicant applied for and
received not only an extension of his service contract, but a transfer to
an organization where he could volunteer to deploy to Iraq.

9.  Expecting to establish a hospital upon arrival in Kuwait, counsel
states the applicant discovered that the actual mission was to move north
with the ground attack on Iraq to support the battle for Baghdad.
Recognizing the limitations of transportation available to him the
applicant made the decision to send as much equipment as possible forward
and then find alternate transportation for the staff. As a result all the
equipment and personnel were transferred as smoothly as


possible and he proceeded to establish a 44 bed hospital.  Faced with
critical battlefield situations the applicant was able to make decisions
based on his prior planning which ensured that ultimately no equipment
failed, no treatment of support was interrupted, and no one was hurt.  His
handling of an intense combat situation served as the basis for decisions
made during subsequent combat situations.  As a result of his exceptional
work in Iraq, the applicant received a Bronze Star Medal and his unit was
awarded a Superior Unit Award.

10.  Counsel states that on 25 August 2003, three days after successfully
relocating his hospital, the applicant admitted that he had been abusing
Fentanyl, a schedule II narcotic, for the previous 3 months.  Counsel
stated that three members of the hospital, who were junior to the
applicant, came to the applicant’s room and asked him if he had personally
used the Fentanyl he had signed out.  Counsel notes the applicant without
hesitation answered in the affirmative and agreed to talk to the commander
about his problem.

11.  Counsel notes the applicant went immediately to the commander, and
without introduction revealed that he had been abusing the narcotic, an
hour later he again admitted his Fentanyl abuse to a meeting of the medical
staff.  Counsel states the applicant cooperated with the investigator and
willingly completed a 30-day in-patient rehabilitation program.

12.  Nine months after his confession the applicant was punished under
Article 15 of the Uniform Code of Military Justice (UCMJ).  The applicant
admitted that he had taken and used the Fentanyl and made no excuse for his
actions.  Counsel states the applicant was assured he would be able to
retire as a Colonel by the general officer imposing the NJP (nonjudicial
punishment) and issued a severe letter of reprimand and the maximum fine of
$7,698.00.  Counsel notes that at every step of the process the applicant
was cooperative, remorseful, and made no attempt to excuse his behavior.

13.  The day following imposition of his UCMJ action the applicant
requested retirement and in December 2004 was notified that he would be
retired in the rank of Lieutenant Colonel by the Army Grade Determination
Board.

14.  Counsel argues that regulatory guidance for determining the highest
grade a Soldier satisfactorily held includes consideration of the
punishment an individual has already received, that one specific act of
misconduct may or may not form the basis for a determination, and that
service retirement in lieu of or as the result of elimination action will
not, by itself, preclude retirement in the highest grade.

15.  Counsel states that the applicant served 11 and ½ of his 23 and ½
years of active duty in the grade of Colonel.  He states that throughout
these years the applicant consistently received glowing officer evaluation
reports where every evaluator, until the unfortunate events at the
conclusion of his service in Iraq, evaluated him as best qualified for
promotion.  Counsel goes on to cite specific comments in the applicant’s
performance evaluation reports between 1994 and 2003 as evidence that the
applicant was an exceptional officer and physician throughout his long
tenure as a Colonel, save for three short months.

16.  Despite the applicant’s brief addiction to Fentanyl and despite the
UCMJ action, he remains well respected by his peers and that the
Anesthesiology Consultant to the Surgeon General describes the applicant as
the finest all-around anesthesiologist that he has known in his 21 years in
the Medical Corps.  Noting the applicant saved countless lives of wounded
Soldiers in their hour of greatest need.

17.  Counsel also states the applicant’s rater in his final evaluation
report recommended the applicant be retained despite his action related to
his Fentanyl abuse.  She noted in a statement of support that even during
the 3 months the applicant was abusing Fentanyl she witnessed no
degradation in his ability to conduct his responsibilities, his decision-
making ability, or his dedication to the mission.  She indicated that she
never noticed any impairment on the applicant’s part and neither did any of
the other members of the staff.  She stated there were never any patient
care issues.

18.  Counsel states that substance abuse, unfortunately, is an occupational
hazard for anesthesiologist and notes that one study concluded that
anesthesiologist abuse or dependence upon substances like Fentanyl may
actually be caused by working in the breathing zone of patients in the
operation room who exhale measurable amounts of the substance.  Counsel
notes, however, the applicant does not offer this as an excuse for his
brief use of Fentanyl, but the Board may wish to be aware of this
background as a medical factor that may have contributed to his misconduct.

19.  Counsel concludes by stating the applicant has already been severely
punished for his misconduct, has successfully completed a rehabilitation
program and has taken full responsibility for his action.  He notes the
applicant has voluntarily surrendered his medical licenses to prevent any
risk of relapse.  He states the applicant has served his country with
distinction and that the Board should find that the grade determination
resulted in an injustice and that he should be retired as a Colonel.

20.  In support of the applicant’s petition, counsel submits copies of two
previous grade determination actions in which the Board granted relief, a
copy of the applicant’s Curriculum Vitae, five letters of support, copies
of performance evaluation reports, a copy of the applicant UCMJ action,
documents associated with his separation, a copy of his retirement orders,
and copies of his various military decorations.  Counsel also submits a
copy of the study which indicated that addiction is an occupational hazard
for anesthesiologists.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant was initially
appointed as a United States Army Reserve officer in 1963.  He entered
active duty as an armor officer in February 1964 and served a tour of duty
in Vietnam prior to being released from active duty in May 1967.  While in
Vietnam he was awarded, among other things, a Bronze Star Medal, a Combat
Infantryman Badge, and a Purple Heart for wounds received in August 1966.

2.  In 1984 the applicant was appointed as a Medical Corps officer and
subsequently ordered to active duty.  By June 1993 he had attained the rank

of Colonel.

3.  With the exception of the performance evaluation report rendered in
November 2003 after the applicant admitted abusing Fentanyl, all of his
evaluation reports were glowing and detailed his accomplishments as an Army
officer, a physician, and as an individual.  He was consistently rated in
the top block by his senior raters.  In addition to the awards received
during his initial tour of active duty, the applicant was also awarded two
awards of the Meritorious Service, an Army Commendation Medal, and several
service decorations, including the Global War on Terrorism Service Medal,
Armed Forces Expeditionary Medal, Global War on Terrorism Expeditionary
Medal, and the Korea Defense Service Medal.

4.  Information contained in a CID (Criminal Investigation Command) Report
of Investigation, contained in the restricted portion of the applicant’s
Official Military Personnel File, notes that a discrepancy was discovered
by a Captain B during a monthly drug audit and that Captain B reported the
discrepancy to Colonel A.  The report notes that Colonel A and Captain M
confronted the applicant on
24 August 2003 and the applicant admitted to using Fentanyl for the past
four months.


5.  In a statement rendered by Colonel A, as part of the investigation, he
noted the applicant had told him he began using Fentanyl shortly before
deploying to Iraq and had hoped that his transfer from Walter Reed Army
Medical Center would remove him from the operating room and his access to
Fentanyl.  Colonel A stated the applicant had been using 3 or 4 vials of
Fentanyl a day and that he developed withdrawal symptoms after about 4
hours.

6.  In his own statement, the applicant related to the investigator on 25
August 2003 that in the middle of May 2003 he began to use Fentanyl,
obtaining it initially from syringes that had not been emptied and later by
signing out ampoules for patients who did not need it.  Initially he used
one ampoule a day but towards the end began using four a day.  He stated
the narcotic did not make him feel euphoric after the first one, but made
him feel normal, allowing him to work with the interpersonal stress of his
job with equanimity and fairness.  He related there was bitterness in his
organization because members of the unit were not being permitted to rotate
after 90 days as originally scheduled and with the Fentanyl he could remain
calm, and listen to the doctors, and yet stay emotionally removed from the
anger and other negative emotions.  He stated he let his commander down,
lost the respect of his colleagues and did not do his job to the utmost of
his ability.  He stated that 20 years of good work was erased by a single
act which he did of his own volition, with no excuse.

7.  In June 2004 the applicant was punished under Article 15 of the Uniform
Code of Military Justice for wrongful use of Fentanyl, a controlled
substance, between 15 May 2003 and 24 August 2003.  His punishment included
a written reprimand and forfeiture of nearly $4,000.00 per month for 2
months.

8.  On 31 December 2004 the applicant was honorably discharged with
sufficient service for retirement and his name was placed on the retired
rolls the following day.  At the time of his retirement he had nearly 24
years of active Federal service.

9.  On 6 December 2004 his retirement orders were amended to show his
retirement grade as Lieutenant Colonel/05 vice Colonel/06 following the
decision by the Army Grade Determination Board.

10.  The two previous Board actions, utilized by the applicant’s counsel to
support granting relief in the applicant’s case, dated from February 2001
and involved enlisted Soldiers.  In one case the enlisted Soldier was
seeking restoration of his rank of E-6 after being reduced due to unknown
misconduct following two earlier UCMJ actions; one for a 2 day period of
AWOL and one for failing to perform his duties as sergeant of the guard in
a military manner.  In rendering their decision to grant relief, the Board
noted the applicant twice served in combat, was wounded, and recognized for
his heroic action by being awarded a Bronze Star Medal for valor.  In the
second case the applicant had retired in pay grade E-5 and was seeking
restoration of pay grade E-7.  The Board, however, only granted restoration
of pay grade E-6 noting that he had not served satisfactorily in pay grade
E-7 as shown by receipt of two DUI (driving under the influence) arrests
and conviction by a general court-martial for nonsupport of his family and
larceny.  The Board noted the applicant had been arrested for one DUI while
serving in pay grade E-6 but held that grade for more than 4 years and was
subsequently promoted to pay grade E-7 which indicated he had overcome the
initial offense.

11.  The statements submitted in support of the applicant’s petition detail
the myriad of accomplishments and achievements made by the applicant during
his military career and since being promoted to Colonel.  They supported
his petition to have his rank restored for retirement purposes and noting
his forthrightness in admitting his use of the drug and willing
participation in a treatment program.  Each supporter touted the
applicant’s exceptional performance in the rank of Colonel.

12.  Fentanyl is an opioid analgesic, first synthesized in Belgium in the
late 1950s with an analgesic potency of about 80 times that of morphine.
It was introduced into medical practice in the 1960s as an intravenous
anesthetic under the trade name of Sublimaze.  It is a schedule II drug.  A
schedule II drug is only available by prescription, and distribution is
carefully controlled and monitored by the DEA. Schedule II drugs are
subject to production quotas set by the DEA.  The biological effects of the
Fentanyl are similar to those of heroin, with the exception that there is
less of a euphoric 'high' associated with the drug and a stronger analgesic
effect.

13.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-
11 of this regulation states that applicants do not have a right to a
hearing before the ABCMR.  The regulation provides that the Director of the
ABCMR may grant a formal hearing before which the applicant, counsel, and
witnesses may appear whenever justice requires.







DISCUSSION AND CONCLUSIONS:

1.  The arguments of the applicant’s counsel and supporters have been
noted, including the argument relating to Fentanyl abuse as an occupational
hazard for anesthesiologist.  However, the evidence shows that the
applicant only admitted his abuse of Fentanyl after being confronted
following discovery of the missing drugs.  While his full admission and
subsequent cooperation with investigators and rehabilitation treatment may
have been seen as admirable the fact remains that the applicant himself was
not forthcoming with the information and did not seek assistance on his own
accord but only after being confronted.

2.  The applicant was a highly decorated officer, well trained and trusted
not only by members of his chain of command but by the Soldiers who looked
to him for medical care that was not clouded by the use of a control
substance.  The applicant abused that trust and whether he had served
admirably for 1 day or 12 years as a Colonel his satisfactory performance
at that level was usurped when he used a schedule II drug and then walked
into an operating room under the influence of that drug.  The fact that his
abilities never appeared to have been impaired or that he was able to
continue to function does not excuse his actions. The determining factor in
whether or not relief is warranted should not be whether something happened
or did not happen while the applicant was performing his duties while
abusing the drug Fentanyl.

3.  The applicant was a physician, in a combat zone, who went to that
combat zone knowing he had been using a controlled narcotic.  Such behavior
should not be excused simply because no one got hurt and the applicant had
served so admirably for so long in the rank of Colonel.  The applicant was
correct when he stated to investigators in August 2003 that his years of
good work were erased by a single act which he did of his own volition,
with no excuse.  The Board finds no error or injustice in the actions of
the Army Grade Determination Board nor any compelling evidence which
warrants the relief requested as a matter of equity.

4.  Although counsel requested a personal appearance before the Board,
there is no statutory or regulatory right to a formal hearing.  The case
was carefully analyzed and considered by the Board, and it was determined
that no formal hearing was required.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__WC___  ___JR___  ___DT __  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  ______William Crain________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016050                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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