IN THE CASE OF:	  

		BOARD DATE:	        07 AUGUST 2008

		DOCKET NUMBER:  AR20080010236 


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 the removal of a Record of Proceedings under Article 15, UCMJ (DA Form 2627) and the related Army Regulation (AR) 15-6 investigation from his Official Military Personnel File (OMPF).  

2.  The applicant states that he believes the information in the AR 15-6 investigation and the pursuant findings and punishments of the Article 15 were in violation and direct conflict with the intent of the Limited Use Policy as described in AR 600-85, Army Substance Abuse Program (ASAP), Chapter 6.  He goes on to state that his perceived discretion (sic) of this was made known through his defense counsel to the Staff Judge Advocate (SJA) and the SJA indicated that the document would be reviewed and the CG (Commanding General) would be advised prior to filing; however, these actions did not occur. 

3.  The applicant provides a three-page letter from his defense counsel to the Board, a copy of the DA Form 2627, a copy of the AR 15-6 investigation, a three-page letter from his defense counsel to the applicant’s commander objecting to the nonjudicial punishment based on the Limited Use Policy, and copies of electronic mail (email) traffic between the defense counsel and the SJA. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in Seattle, Washington on 22 February 1989 for a period of 4 years and training as a medical specialist.  He completed his basic combat training at Fort Bliss, Texas, his advanced individual 
training at Fort Sam Houston, Texas and his airborne training at Fort Benning, Georgia before being transferred to Fort Lewis, Washington.  He completed Ranger training during his assignment to Fort Lewis and served a tour in Korea.     
2.  He remained on active duty though a series of continuous reenlistments and was promoted to the pay grade of E-7 on 1 May 1999. 

3.  On 16 September 1999, he was honorably discharged for the purpose of accepting a commission.  He had served 10 years, 6 months, and 25 days of total active service. 

4.  On 17 September 1999, he accepted a commission as a United States Army Reserve (USAR) second lieutenant in the specialty branch 65D00 (physician assistant), with a concurrent call to active duty.  He was promoted to the rank of first lieutenant on 17 March 2001 and to the rank of captain (CPT) on 1 February 2003.

5.  In September 2007, while serving as the senior medical officer for the Ranger Training Brigade (RTB), the commandant of the RTB (an E-8), notified the deputy commander that the applicant smelled of alcohol while on duty.  The deputy commander directed the applicant and the commandant to report to his office and the deputy commander ordered the applicant to go to his office and take a 30-45 minute nap before going home.  He also directed the commandant to monitor the applicant to ensure compliance with his order.

6.  On 17 September 2007, the applicant went to his brigade commander and informed him that he was going to self-refer himself to the ASAP because of his continual and uncontrollable alcoholism and narcotics abuse.  

7.  On 10 October 2007, the brigade commander appointed a captain to conduct an investigation under AR 15-6 to determine if the applicant had forged a signature to gain access to prescription medication.  The investigation was completed; however, it was determined to be legally insufficient because the investigating officer was junior in date of rank to the applicant.  Accordingly, a new investigating officer in the rank of major was appointed to conduct the investigation; however, the new investigating officer was informed that he could not question the applicant until he had completed the ASAP and was returned to his unit.

8.  The applicant was subsequently released from the ASAP in November 2007 and the investigating officer continued to conduct the investigation.  On
29 November 2007, the applicant was advised of his rights by the investigating 

officer prior to questioning the applicant in regards to the allegation of forgery.  He was advised that he did not have to say anything or answer any questions; that he did not have to say anything that could be used against him; that he had a right to have an attorney present before, during, and after questioning; and that if he elected to discuss the issues under investigation, he could stop answering questions at any time in order to consult with counsel.  The applicant elected to discuss the offenses under investigation without the presence of an attorney.  The applicant also signed a sworn statement in which he admitted that he used another physician assistant’s codes to prescribe medications for himself and admitted that he knew his actions were wrong and expressed regret for what he had done. 

9.  On 3 December 2007, the investigating officer determined that the applicant had used another officer’s information to log onto the Composite Health Care System (CHCS) network and prescribe himself medications.  A legal review of the investigation was conducted and it was found to be legally sufficient.  The investigation ultimately substantiated two offenses as charged in the Article 15.  In addition to the applicant’s statement, the investigating officer developed ample independent evidence of the applicant’s forgery and wrongful prescribing of drugs, and wrongful possession of drugs.

10.  On 22 February 2008, the applicant’s defense counsel dispatched a memorandum to the CG objecting to the imposition of nonjudicial punishment (NJP) against the applicant contending that in doing so violated the Limited Use Policy.  He went on to state that had the applicant never referred himself to the ASAP and alerted the chain of command to his alcohol and drug addiction, the chain of command would never have probed into how the applicant was obtaining narcotics.  He also contended that all of the violations cited in the NJP flowed from his entry into the ASAP and therefore could not be used against him.

11.  On 25 February 2008, the CG imposed NJP against the applicant for wrongfully possessing schedule III and IV controlled substances, for falsely making in its entirety the signature of another officer as an endorsement to prescribe medication for himself, and for wrongfully and dishonorably violating health care standards and abusing the trust of his patients by prescribing excessive quantities of narcotics for patients and keeping a portion of the narcotics for his personal use and simultaneously prescribing himself narcotics, which conduct demonstrated disorder and neglect in his duties as a health care provider and was prejudicial to the good order and discipline of the Armed Forces.  The applicant requested a closed hearing and elected to submit matters in his own behalf.

12.  His punishment consisted of a forfeiture of $2,944.00 pay per month for 2 months.  The applicant elected not to appeal the punishment and the imposing officer directed that the DA Form 2627 be filed on the applicant’s performance fiche.

13.  A review of the applicant’s OMPF shows that the DA Form 2627 is filed in the performance portion of his OMPF.  Additionally, the result of the AR 15-6, which was part of the Article 15 proceedings, is properly filed in the restricted portion of his OMPF.

14.  The memorandum provided by the applicant from his legal counsel to the Board reveals that counsel believes that the applicant was protected by the “Limited Use Policy” and contends that the applicant’s appeal rights were effectively violated because the command threatened further action on other charges if he chose to appeal the NJP.  He also contends that because the CG did not consider the “Limited Use Policy” before finding the applicant guilty of all charges, the CG unjustly exercised his authority.  

15.  Army Regulation 600-85, Army Substance Abuse Program, provides in Chapter 6, that the objective of the “Limited Use Policy” is to facilitate the identification of alcohol and other drug abusers by encouraging identification through self-referral.  In addition, the policy is designed to facilitate the treatment and rehabilitation of those abusers who demonstrate the potential for rehabilitation and retention.  When applied properly, the “Limited Use Policy” does not conflict with the Army’s mission or standards of discipline.  It is not intended to protect a member who is attempting to avoid disciplinary or adverse administrative action.   The “Limited Use Policy” does not preclude the initiation of disciplinary or other action based on independently derived evidence, including evidence of continued drug abuse after initial entry into the ASAP that is unrelated to testing or counseling conducted as part of the program.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was punished for offenses that were covered under the “Limited Use Policy” has been noted and found to lack merit.    
2.  The evidence of record suggest that the commander initiated an AR 15-6 investigation in an attempt to discover if the applicant was obtaining narcotics illegally or if there was a problem with a system that would allow someone to do so.  In any event, there is no evidence to suggest that the information was obtained as a result the applicant’s entry into the ASAP.

3.  It is also noted that the applicant had come to work under the influence of alcohol and was reported to the deputy commander at the time.  Therefore, the applicant’s contention that the chain of command would not have known that he had a substance abuse issue had he not referred himself to ASAP is questionable at best.  It appears that he referred himself in order to avoid being held accountable for the incident in question and as a result, the rest of the story was uncovered during the course of the investigation and not as a result of his ASAP treatment.

4.  It is further noted that the applicant was not punished for the illegal use of drugs and alcohol but for the fraudulent means in which he illegally obtained controlled substances, conduct which he openly admitted to the investigating officer after he had completed the ASAP and had been advised of his rights.  Accordingly, the “Limited Use Policy” did not apply in this instance and the CG was within his authority to impose the punishment against the applicant.

5.  While the applicant may now believe that the punishment he received for violating the trust and confidence placed in him as a commissioned officer and health care provider is too harsh, the applicant had the option at the time to demand trial by court-martial where he could have asserted his innocence or asserted his protection under the “Limited Use Policy”; however, he instead chose to accept NJP.

6.  Accordingly, the proper authority imposed NJP against the applicant in accordance with the applicable laws and regulations in effect at the time with no indication of any violations of any of the applicant’s rights.  Additionally, the DA Form 2627 is properly filed in the applicant’s OMPF in accordance with the filing decision of the imposing authority and there appears to be no basis to remove it from his records.

7.  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 the aforementioned requirement.
   








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080010236



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ABCMR Record of Proceedings (cont)                                         AR20080010236



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