IN THE CASE OF:	  

		BOARD DATE:	  20 August 2009

		DOCKET NUMBER:  AR20090004096 


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, through his counsel, reinstatement of his commission or, given the passage of time, retirement from the Army in the grade of captain.

2.  The applicant states he began having trouble not long after he checked in to the newly built Nisqually Family Clinic at Fort Lewis, WA after transferring from Korea in the late summer of 2006.  He states he was not assigned his own office and was required to rotate treatment rooms every day.  He states he was told it was only temporary because his unit would be deploying to Iraq.  He states he was then accused of being habitually late to the clinic.  He states this was caused by no one knowing which office he was in on any particular day.  He states he seemed to have drawn the ire of his supervisor (a lieutenant colonel) and was moved to an office right across from the supervisor's office.  He also stated he never received the one-hour training for the new medical records/documentation system (titled AHLTA) recently implemented in the clinic and that his supervisor told him he would just get some on-the-job-training.  

3.  The applicant states he complained about a counseling and other matters to his superiors and filled an EEO (equal employment opportunity) (sic) complaint.  He states the ensuing investigation by his superiors (above his supervisor) found that rather than any racial animus, it was simply his supervisor's leadership style.  He states he was told to persevere because he would be pulled from the clinic for upcoming pre-deployment training in February of 2007.



4.  The applicant states he was not pulled from the clinic for much of the deployment training and he became concerned about both his own safety in preparing for the deployment and the continued "pencil-whipping" by his supervisor, which was increasing, and that he felt as threatening his career.  He states at that point he submitted his resignation even though he was only months away from attaining 18 years of service.

5.  The applicant provides his counsel's memorandum with six enclosures in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be either reinstated in the Regular Army (RA) or, given the passage of time, retirement as a captain in the United States Army.

2.  Counsel states the applicant was constructively discharged as a result of the actions of his supervisor (at Fort Lewis).  Counsel defines constructive discharge as a term that refers generally to an employer intentionally making conditions so intolerable that a reasonable person in the employee's shoes would have felt no other option but to leave the employment.  Counsel cites a DC [District of Columbia] Circuit Court case wherein the Court noted that a constructive discharge case "requires a finding of discrimination and the existence of certain aggravating factors."  Counsel also cites a Federal Circuit Court case wherein the Court noted "In order to show that his discharge was the result of duress or coercion, [plaintiff] must demonstrate that: (1) he involuntarily accepted the terms of the government; (2) circumstances permitted no other alternative; and (3) said circumstances were the result of the government's coercive acts."  Counsel also cites two decisions from the Air Force Board for Correction of Military Records (AFBCMR).

3.  Counsel states the applicant was being targeted for harassment by his supervisor as evidenced by the applicant's affidavit and the contemporary statements of others in the clinic.  Counsel states the applicant's counseling also targeted him for inadequate documentation using the new AHLTA.

4.  Counsel goes on to cite the provisions and procedures for adverse action/material being placed in the applicant's Provider's Credentials File (PCF).  (The applicant's PCF is not available for review.)

5.  Counsel provides a memorandum with six enclosures.



CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he previously served 4 years, 9 months, and 21 days of active enlisted service in the RA and 4 years, 2 months, and
14 days of enlisted service in the Army National Guard (ARNG).  He was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 15 July 1994 and entered extended active duty.  He was commissioned a second lieutenant in the RA Medical Service Corps on 13 August 1994.

2.  On 10 August 2004, the applicant was assigned to the 168th Medical Battalion in the Republic of Korea.

3.  On 6 March 2006, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for three specifications of failure to obey a lawful general regulation to wit: wrongfully having an inappropriate relationship with a female sergeant; committing an indecent assault upon a female sergeant, which conduct is unbecoming an officer and a gentleman; and committing an indecent assault upon a female sergeant, not his wife, with the intent to gratify his lust.  The punishment imposed consisted of forfeiture of $500 pay per month for 2 months.

4.  On 6 March 2006, the applicant appealed the punishment and submitted additional matters (not available for review).  On 8 March 2006, the applicant's appeal was reviewed by a colonel of the Judge Advocate General's Corps who stated the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disproportionate to the offenses committed.  On 8 March 2006, the applicant's appeal was denied by a lieutenant general, the Commander, Eighth U.S. Army.

5.  The applicant received an Officer Evaluation Report (OER) for the period from 31 August 2005 to 20 June 2006.  His rater rated his performance and potential for promotion as "Satisfactory Performance, Promote."  However, his senior rater rated his promotion potential as "Do Not Promote."  The senior rater stated he did not recommend the applicant for promotion, follow-on schooling, or positions of increased responsibility.  On 26 January 2007, the OER was referred to the applicant for acknowledgement.  As of 4 March 2007, no response from the applicant had been received.

6.  On 2 August 2006, the applicant was assigned to the 547th Medical Company, 62nd Medical Brigade at Fort Lewis.  



7.  DA Form 4856 (Developmental Counseling Form), dated 29 September 2006, submitted by the applicant's counsel, documents formal counseling of the applicant by his supervisor.  According to the DA Form 4856, the applicant was counseled for tardiness for clinic duty, formal patient complaints, and two patient encounters that were inadequately documented in AHLTA.

8.  According to the DA Form 4856, the applicant's supervisor instituted a plan of action.

	a.  The supervisor directed the head nurse to ensure the applicant was seeing his own Soldiers.

	b.  The applicant's concerns about frequently being moved between exam rooms was due to the fact that the computers in the applicant's initially assigned examination rooms were not functioning properly and had to be repaired.  The supervisor indicated the head nurse would, barring computer malfunctions, ensure the applicant would have the same examination room daily.

	c.  The applicant's timeliness of arrival at the clinic would be tracked and written documentation would be provided if the applicant is late for his clinical duties.

	d.  One-on-one training would be arranged with the AHLTA trainer to further familiarize the applicant with medical documentation and proper coding in AHLTA.

	e.  The supervisor instituted a 100 percent chart audit for 1 month.  The supervisor stated this procedure would have been instituted initially for any new provider, but was missed due to his being on emergency leave.  The supervisor stated if the applicant's medical decision making and documentation was adequate, he would place him on the standard 10 percent chart audit for all clinic staff after the initial 30 days.  The supervisor informed the applicant that if his care and documentation was deemed inadequate, a plan for remediation would be instituted which can include a formal supervision plan which would place an adverse action in his credentials file.

9.  On 13 October 2006, the applicant filed a complaint of harassment with the Inspector General (IG), I Corps, Fort Lewis, based on the counseling statement from his supervisor.  The applicant stated the treatment he was receiving at the Nisqually Family Medicine Clinic was unfair and racially motivated.  The results of this IG complaint or any investigations were not available for review.

10.  On 19 March 2007, the applicant submitted his unqualified resignation.  He stated he was tendering his resignation because "I have reached the end of my service obligation and do not have opportunity for advancement."  He also stated that he did not desire an appointment in the USAR.

11.  On 30 March 2007, the applicant submitted a request for waiver for late submission of his unqualified resignation.  He stated his decision to submit his unqualified resignation was due to the outcome of an OER from his last assignment (the 168th Medical Battalion).  He stated the OER was scheduled to be completed prior to his transfer from Korea; however, it had just been completed in February 2007.

12.  The applicant received an OER for the period 21 June 2006 to 23 May 2007.  The applicant's rater (his supervisor) rated his performance and potential for promotion as "Outstanding Performance, Must Promote."  His senior rater rated his promotion potential as "Best Qualified."

13.  On 24 May 2007, the applicant was discharged.  He had completed 
12 years, 10 months, and 10 days of active service this period that was characterized as honorable.  He also had 4 years, 9 months, and 21 days of prior active service and 4 years, 2 months, and 14 days of prior inactive service.

14.  Army Regulation 600-8-24 (Officer Transfers and Discharges) provides, in pertinent part, that under normal circumstances, any Regular Army officer or USAR officer who has completed their 8-year military service obligation may submit a request for unqualified resignation, provided all service remaining requirements have been met.  Such application will be submitted not earlier than 12 months or less than 6 months prior to the requested separation date.  The 
6-month requirement may be waived by the separation approval authority. Appropriate documentation must accompany the request.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he complained about a counseling and other matters to his superiors and filed an EEO complaint.  There is no evidence and the applicant has submitted no evidence showing the results of his EEO complaint.

2.   The results of the applicant's IG complaint are not available for review.  

3.  Decisions made by the boards for corrections of military records, including the AFBCMR, as cited by counsel, are administrative in nature and do not establish precedence.
4.  There is no evidence of any adverse action/materials being placed in the applicant's PCF.  The PCF is not available for the Board's review.  The only mention of the applicant's PCF was his supervisor's counseling and advising the applicant of possible actions that could be taken if he did not meet established standards after 30 days.

5.  The applicant's supervisor informed him that a 100 percent chart audit was a standard procedure for new providers in the clinic.  The supervisor merely advised the applicant of the procedures that could occur if his care and documentation was deemed inadequate.  Advising an individual of possible repercussions for his/her actions or inactions is appropriate when counseling an individual for any reason.  Therefore, the chart audit was not a result of his counseling but a standard procedure in the clinic nor was he being targeted for inadequate documentation.

6.  In view of the above the applicant did not meet the criteria for constructive discharge stated by counsel in the citing of two court cases.  There is no evidence or official documentation of a finding of discrimination or the existence of aggravating factors.  There were no terms for his resignation nor were there circumstances that did not permit any other alternative.  There was no evidence of government coercive acts.  In fact, the applicant's final OER recommends him for promotion as "Outstanding performance, must promote" and "Best Qualified."

7.  The applicant stated in his resignation letter that he was resigning because he had reached the end of his service obligation and did not have any opportunity for advancement.  In his request for waiver for late submission of unqualified resignation he stated his decision to submit his unqualified resignation was due to the outcome of the OER he received from his last assignment in Korea.  

8.  The applicant's statement that he did not have any opportunity for advancement is likely to be the result of the NJP imposed on him in Korea and the OER from Korea not recommending him for promotion.  

9.  The applicant delayed requesting his resignation until he received the adverse OER in February 2007.  Therefore, the evidence in this case indicates he submitted his unqualified resignation based on the adverse actions taken against him during his tour in Korea and had nothing to do with his assignment at Fort Lewis.

10.  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 that requirement.
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 that 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)                                         AR20090004096



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ABCMR Record of Proceedings (cont)                                         AR20090004096



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