IN THE CASE OF:	  

		BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110016141 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

	a.  reconsideration of the applicant's earlier request for removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 18 April 2007 from the applicant's official military personnel file (OMPF) and

	b.  reimbursement of all forfeitures of pay the applicant suffered as a consequence.

2.  Counsel states:

	a.  The allegations, which primarily stemmed from claims made by "disgruntled" subordinate medical care providers, were of a relatively minor nature and related to purely military issues ultimately brought under Article 133 (conduct unbecoming an officer and a gentleman) that have no counterpart in civilian medicine.

	b.  New evidence consisting of a detailed declaration provided by the Deputy Chief for Clinical Services, 62nd Medical Brigade, corroborates points made by the applicant's defense counsel.  His declaration also substantiates why relief is required.  He was able to read the investigative reports with an intimate knowledge of key players, appreciating who was credible and who was not, and understanding the context in which these events played out.  He agrees the applicant was placed in an untenable position as Chief of Surgery in a unit with which he had no history and where a dysfunctional chain of command failed to address the organizational problems in which this unit operated.

	c.  The Article 15 action did not arise as a result of any formal plea bargain.  The Article 32 investigating officer (IO) recommended resolution of some of the allegations through this process, rather than by court-martial.  The Article 32 IO recommended withdrawal of the remaining specifications, including the specification relating to a photograph taken of an amputated arm, because probable cause was lacking.  Only three specifications were listed when the applicant accepted Article 15 proceedings, although they inexplicably included the specification regarding the photograph.  The applicant accepted these proceedings with the understanding that he could maintain his innocence and present a defense.

	d.  The applicant's defense counsel rendered the opinion that the applicant did not receive a fair hearing by the officer who presided over the Article 15 proceedings (a brigadier general (BG)) because the presiding officer could not fathom or acknowledge that the applicant could and, in fact, was maintaining his innocence.  The presiding officer did not effectively grant the applicant the right to present a defense.

	e.  With respect to the photograph taken of an amputated arm, they have provided comparable pictures that exist in the public domain, which clearly were released for public view and which were not considered illegal.  The existence of these photographs in the public domain is consistent with the determination by the Article 32 IO that the applicant did not violate the UCMJ by having the photograph taken.

	f.  Regarding the second specification, the evidence that is compelling and establishes the injustice of Article 15 punishment is the evidence (and lack of evidence) referenced in Major G____'s memorandum to BG A____.  The officer in charge (OIC) authorized the use of the Gerber (hunting/survival) knife.  The applicant recognized this use of this knife was exceptional and did what any professional in a similar situation should do.  He briefed the OIC on the options and provided a solution and the OIC gave a "green light" after personally determining there were no sharp surgical knives available.  There is no evidence to show the applicant deceived the OIC about the knives.  The Deputy Chief for Clinical Services still maintains that this is not misconduct warranting Article 15 action as there was no risk to the patient and no harm was suffered.

	g.  The Deputy Chief's declaration is also helpful with respect to the third specification.  He provides context where context has been lacking.  His personal knowledge of the command climate and organizational challenges faced at the 325th Combat Support Hospital cannot be discounted.  His candor cannot be disputed.  He does not say the applicant is blameless in the events that unfolded.  He gives the opinion, however, that responsibility was not fairly distributed and the applicant was unjustly singled out for excessive punishment.  He adds that the far reaching consequences of imposing Article 15 punishment on the applicant are a "travesty" and the applicant has suffered "a miscarriage of justice."

	h.  The applicant was not given a fair hearing and should not have been punished under Article 15, UCMJ.

3.  Counsel provides:

* seven attachments outlined in his brief
* letter from a Member of Congress, dated 18 August 2001

4.  The new evidence includes a declaration from the Chief for Clinical Services (a colonel), 62nd Medical Brigade, dated 3 August 2011.

	a.  He served as the Deputy Commander for Clinical Services, 62nd Medical Brigade, Iraq, from July 2007 to October 2008.  He was the senior clinical physician in the brigade.  He did not personally observe or participate in any of the events that led to the Article 15 action initiated against the applicant.  He is familiar with the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) and Article 32 investigations, allegations, and he reviewed the evidence in its entirety.  He spent 1 month at Tikrit Air Force Base after the investigation was initiated "to provide leadership stability" at the direction of the Brigade Commander.  During this time he had the opportunity to observe the applicant who had been removed from clinical duties and to observe the behavior and interactions of the hospital staff.  He also had the opportunity to interact with the applicant on several occasions after he had been moved to Balad Air Base where he researched several topics for him of command interest.  He testified by telephone on the applicant's behalf at his Article 15 hearing at his request.

	b.  The applicant as well as other surgeons began getting "push back," first from the nurse practitioner who had worked in a civilian emergency room but had essentially no trauma training or experience, and then from other emergency room staff.  This whole matter was complicated by the fact that senior leadership at the 325th Combat Support Hospital came from the Deputy Commander for Clinical Services for the hospital who was an experienced clinician with very little leadership experience and seemed to prefer avoiding confrontation.  A schism formed between the nursing and enlisted hospital staff who were deployed for 10 months and the physician/surgical staff who deployed in 4-month rotations.  In his opinion, the applicant's treatment by the staff was a consequence of this schism, as he and other physicians became the subject of intense jealousy and professional disregard.

	c.  The individuals who investigated the applicant and adjudicated his case were not licensed or credentialed physicians.  The investigator accumulated a tremendous number of statements and other evidence, most of which seemed to be either hearsay or "he said, she said" evidence which tended to be people's reactions to the applicant's strongly opinionated personality, considered by many as abrasive or intimidating.  Without the requisite expertise or knowledge of combat hospital practices, neither the officer who conducted this investigation nor the first-in-line adjudicator, the Medical Brigade Commander, who was in a position to be the even-broker in the entire affair, fully comprehended the role the hospital staff played in creating an unhealthy climate or chose for their own reasons to ignore it.  Unfortunately, the Brigade Commander was a medical evacuation aviator with no hospital or clinical experience, and could not fairly place the allegations made against the applicant in context or understand the gravity of disobedience or even hesitation on the part of the staff in an emergency care setting.  He offered an account of his observations or opinion as the senior Medical Corps officer on several occasions but was ignored.

	d.  There were several examples of bad judgment on the part of the applicant brought to light by the investigation, particularly his antics with a hunting knife in the operating room, which, while they caused no harm, were a departure from standard and accepted practice.  Valid criticisms are made in the investigator's report about the way the applicant handled certain problems, as well as his use of an abrasive/intimidating leadership style.  These findings, given the command climate, the lack of solid, on-the-ground leadership at this location, and the mutinous posture of some of the hospital staff, warranted a letter of reprimand which would have been more proportionate and more just punishment in his view.  Elevating the charges under Article 15, however, was clearly excessive given the subsequent consequences.  Notably, none of the non-physician hospital staff were ever made accountable for their behavior.

	e.  Even though the Army took no action to limit the applicant's credentials in any way, the Army reported the Article 15 to civilian licensing authorities resulting in loss of his medical privileges, his job, and potentially his medical license.  In his opinion, such a turn of events is a miscarriage of justice for a surgeon of his skill and dedication.

	f.  His testimony was limited to the questions posed to him over the telephone by the presiding officer regarding the applicant's expression of remorse to him during his interactions.  He testified he thought the applicant expressed remorse on several occasions.  The presiding officer's comment to him was something like, "Well I need to make sure he does not do this again," which suggested to him at the time that the presiding officer did not appreciate that the applicant, even prior to the proceeding, had been forced into acceptance of retirement from his military career.  The applicant had been placed in the midst of a dysfunctional command climate and most of the complaints against him were either petty or of no significance.

	g.  The punishment administered to the applicant would likely have little long-term consequence for an enlisted Soldier, and certainly much less consequence for an officer who was not a licensed professional, than it has been for an accomplished surgeon who had dedicated his life to his profession.  His final concern is that most states and credentialing institutions require that medical practice censure actions against a physician be adjudicated by his peers, i.e., other physicians, or in his example, other surgeons.  In his case, he was denied this fundamental privilege.

	h.  As the senior Medical Corps officer in the brigade, he cannot overstate what a travesty of justice the turn of events has been for the applicant.  While the discomfort of this memory pales in comparison with some of the vivid images and memories from the trauma rooms throughout the theater of operations, recollection of this judgment and its consequences will likely haunt him for the rest of his life.  He has no personal relationship or interest in the applicant but sincerely pleads those in capacity to make such a decision in the interest of justice overturn the Article 15 judgment and expunge his records to allow him the opportunity to end his career with dignity.

5.  Counsel also provides a Stars and Stripes article,  "War is the only proper school for surgeons," which is new evidence.  This article contains photographs of military doctors performing surgery, a doctor stabilizing an Afghan Soldier's arm while an x-ray was taken, and an open wound on a patient's leg.

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 AR20090020818 on 29 July 2010.

2.  The declaration from the Chief for Clinical Services, 62nd Medical Brigade, and the Stars and Stripes article with photographs are new evidence that will be considered by the Board.

3.  The applicant was appointed in the U.S. Army Reserve Medical Corps as a lieutenant colonel on 20 March 1989.  He was ordered to active duty on 11 August 2007 in support of Operation Iraqi Freedom.  He served as Chief of Surgery in Iraq from 17 August 2007 to 8 May 2008.

4.  A DA Form 2627, dated 18 April 2008, shows nonjudicial punishment was imposed against the applicant for three specifications of conduct unbecoming an officer while serving in Iraq:

	a.  on 9 October 2007, for falsely reporting to his supervisor that there were no very sharp amputation knives available and then, despite being encouraged to use standard surgical equipment by other medical professionals, he wrongfully advised a subordinate surgeon to use the applicant's personally-owned Gerber II survival knife to perform an amputation on an Iraqi patient;

	b.  on 13 October 2007, for wrongfully ordering a major, after she had already taken a normal surgical picture of an amputated arm laid out on a surgical table, to gratuitously take his picture with the amputated arm; and

	c.  between 1 September 2007 and 1 December 2007, for wrongfully belittling, bullying, and intimidating his subordinate staff, particularly when they expressed dissent with his medical decisions, by publicly questioning his subordinates' competence and calling them names; by publicly criticizing the operating room head nurse for being a terrible leader because she was unable to control her people in the wake of their questioning him about the use of a Gerber knife for an amputation; and by falsely asserting to his subordinates that he had been given the authority to conduct an Army Regulation 15-6 investigation and/or initiate an Article 15 proceeding against them when he possessed no such authority.

5.  The applicant was afforded the opportunity to consult with counsel and demand trial by court-martial.  He did not elect trial by court-martial.  He requested a closed hearing and elected a person to speak in his behalf.  His punishment consisted of a forfeiture of pay.  In item 5 of the form, the issuing commander directed filing the original DA Form 2627 in the performance section of the applicant's OMPF.  The applicant elected not to appeal the DA Form 2627.

6.  The applicant was honorably released from active duty as a colonel on 27 August 2008 and transferred to the Retired Reserve.

7.  A review of the performance section of his OMPF on the interactive Personnel Electronic Records Management System revealed a copy of the DA Form 2627, dated 18 April 2008.

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial.  It states the decision whether to file a record of NJP in the performance portion of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed.

10.  Paragraph 3-43 of Army Regulation 27-10 contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 provides that a DA Form 2627 will be filed in the performance or restricted section of the OMPF as directed by the issuing commander in item 5 of the DA Form 2627.  Allied documents accompanying the Article 15 will be filed in the restricted section.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support counsel's contention that the allegations made against the applicant were of a relatively minor nature, related to purely military issues ultimately brought under Article 133, and have no counterpart in civilian medicine.  The applicant, an experienced surgeon, advised a subordinate surgeon to use a survival knife to perform an amputation on a patient and he made a false statement.  These offenses are not military-specific or minor in nature.

2.  Counsel's contentions that the applicant was not given a fair hearing and the presiding officer of the Article 15 did not effectively grant him the right to present a defense were carefully considered and found to be without merit.  All matters in defense, mitigation, and extenuation were considered and included a substantial packet prepared by his defense counsel addressing each offense.  The defense counsel spoke on his behalf.  The Staff Judge Advocate was also present and advised the imposing commander that he could find the applicant not guilty.  Pen and ink modifications were made to two of the specifications based on the evidence presented.  The applicant did not appeal either the findings or the punishments.

 3.  Counsel contends the applicant should not have been punished under Article 15, UCMJ.  However, based on recommendations of an Army Regulation 15-6 investigation and at the direction of his Brigade Commander, he was administered an Article 15 for three specifications of conduct unbecoming an officer.  He was afforded the opportunity to demand trial by court-martial and he elected not to do so.

4.  Counsel contends the applicant did not violate the UCMJ by having his photograph taken while holding an amputated arm and he provided comparable pictures that exist in the public domain which clearly were released for public view and were not considered illegal.  The Stars and Stripes article provided by counsel does, in fact, contain photographs of military doctors performing surgery, a doctor stabilizing an Afghan Soldier's arm while an x-ray was taken, and an open wound on a patient's leg.  However, the applicant was charged with misconduct for needlessly ordering a photograph to be taken of him holding an amputated limb.

5.  The declaration by the Deputy Commander for Clinical Services, 62nd Medical Brigade, provided on behalf of the applicant was carefully considered.  Although he contends there were several examples of bad judgment on the part of the applicant that were a departure from standard and accepted practice, the applicant was a colonel in a special position of trust who knew better.  By regulation, there must be compelling evidence to support the removal of a properly completed, facially-valid DA Form 2627 from a Soldier's record.  The Deputy did not provide convincing evidence that the applicant's Article 15 was unjust, in whole or in part, to support removal from his OMPF.  Further, the Deputy Commander's opinion is just that – an opinion.  That the officer with authority to act under Article 15 viewed the matter differently does not make the Article 15 unjust or unfair.

6.  There is no evidence the DA Form 2627 was improperly imposed.  The DA Form 2627 imposed on 18 April 2008 was properly filed in the applicant's OMPF.  Based on 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 to amend the decision of the ABCMR set forth in Docket Number AR20090020818, dated 29 July 2010.



      ___________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)                                         AR20110016141



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ABCMR Record of Proceedings (cont)                                         AR20110016141



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