IN THE CASE OF:	  

		BOARD DATE:  7 February 2012

		DOCKET NUMBER:  AR20110022127 


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, in effect, that the nonjudicial punishment (NJP) set forth in the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 10 May 2011, should be set aside and the record of NJP and all allied documents should be removed from his Official Military Personnel File (OMPF).  He also requests removal of the letter of reprimand (LOR), dated 10 May 2011, from his OMPF.

2.  The applicant states his command pursued a weak, circumstantial case against him for unapproved off-duty employment.  He adds he has previously reported this to the command at Tripler Army Medical Center (TAMC), Honolulu, Hawaii, U.S. Senator Daniel K. Inouye, and the Director, Army Review Boards Agency.

	a.  He states TAMC created off-duty employment and associated charges as a reprisal against him for reporting and participating in the correction of substandard clinical care in TAMC's Neurology Clinic.

	b.  In 2008, the clinic systematically failed to perform necessary standard practices and rendered medical services that were well below acceptable Joint Commission standards.  When he asked the command to correct the situation, he was first ignored and then suspended from the medical staff.



	c.  He expressed his concerns regarding the matter to his Senator, and based on the applicant's request, the senator's chief of staff made an unannounced visit to TAMC.  One week later, the command took action to improve the staffing and medical practices in the clinic.

	d.  He remained suspended from medical duties.  However, a review of his clinical practice over the next 10 months by five senior neurologists consistently found that he was at or above "fully competent."

	e.  He hired an attorney who filed suit against TAMC on his behalf in Honolulu Federal District Court.  Shortly thereafter he was terminated from the medical staff.  The Court preliminarily ruled that TAMC did not adhere to the constitutional requirement for due process and he was reinstated.

	f.  He had an approved retirement date of 1 October 2010.  However, several weeks prior, the Commanding General (CG), TAMC, revoked his retirement.  He was retained on active duty for investigation of vague criminal activities.

	g.  An exhaustive investigation was conducted by the Federal Bureau of Investigation (FBI) over the course of several months.  A grand jury found no evidence of any wrong-doing and exonerated him.  However, the investigation damaged his standing in the medical community.

	h.  At the same time, the U.S. Army Criminal Investigation Command (USA CID) pursued a parallel investigation that lasted 8 months longer than the FBI's investigation.  When his patience was finally exhausted, he notified TAMC that he was filing a habeas corpus lawsuit for being involuntarily retained on active duty without any allegations or charges.

	i.  He was then charged with being employed in the private sector without permission, not requesting permission to be employed, and referring military patients to civilians with whom he was allegedly employed.

	j.  An Article 32 hearing was convened and concluded that there was no evidence of him being employed in the community, but recommended a court-martial for volunteering his medical services.  The court-martial convening authority declined to court-martial him, but TAMC proceeded with NJP.

	k.  He thought he was receiving NJP for volunteering, but the NJP actually indicated that he was employed without permission.  He reluctantly signed the NJP at the insistence of the attorneys.

	l.  He states the majority of the information presented in the DA Form 2627 and associated LOR, dated 10 May 2011, is inaccurate and inconsistent with the facts.

3.  In support of his application the applicant provides the following documents:

* a letter of support from his Senators office
* DA Form 2627, applicant's letter, and LOR
* FBI subpoena of financial records
* Article 32, UCMJ, investigation memorandum
* statement from the General Manager, Sleep Center Hawaii
* Hawaii Neurological Society Board of Directors list
* Annual OGE 450 Report (2009)
* Individual Training Report
* Chairman's Award for Excellence in Military Medicine
* five DA Forms 67-9 (Officer Evaluation Reports [OER])
* Officer Record Brief (ORB) and Curriculum Vitae
* memorandum, dated 16 September 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant, an Army National Guard commissioned officer serving as a psychiatrist in the Medical Corps with approximately 3 years of prior active service was ordered to active duty, on 21 July 1993, in the rank of major.

	a.  He was promoted to lieutenant colonel (O-5) on 1 October 1999.

	b.  He was promoted to colonel (O-6) on 1 October 2005 and appointed in the Regular Army effective 22 January 2008.

2.  Headquarters, TAMC, HI, Orders 265-0012, dated 22 September 2010, revoked Orders 096-0010, dated 6 April 2010 (as amended by Orders 194-009, dated 13 July 2010), pertaining to the retirement of the applicant on 1 October 2010.

3.  A DA Form 2627, dated 9 May 2011, shows the CG, TAMC, notified the applicant of his intent to impose NJP against him:

* between 1 June 2009 and 1 May 2010 for failing to obey a lawful general regulation by wrongfully engaging in off-duty employment with the Sleep Center Hawaii
* between 1 June 2009 and 1 May 2010 for failing to obey a lawful general regulation by wrongfully failing to notify his supervisors about his employment at the Sleep Center Hawaii while referring patients to the Sleep Center Hawaii
* on divers occasions between 1 June 2009 and 1 May 2010 for referring patients to the Sleep Center Hawaii, an organization in which he was serving as an employee, board member, and prospective future employee, the organization having a financial interest in such referrals and which the applicant knew had a financial interest

4.  The DA Form 2627 also shows:

	a.  The applicant was fully advised of his rights by his attorney, waived the requirement of a first reading of the proposed Article 15 proceedings, and agreed that the matter be handled in its entirety on one single occasion before the CG, TAMC.  The document was signed by the applicant and his attorney on 10 May 2011.

	b.  The applicant did not demand trial by court-martial.  He requested a closed hearing, did not request a person to speak in his behalf, and indicated matters in defense, mitigation, and/or extenuation would be presented in person.

	c.  The applicant submitted a 2-page letter to the CG, TAMC.  He denied being an employee at the Sleep Center Hawaii, but acknowledged that he volunteered because he was contemplating employment there upon his retirement from the Army.  He also denied that he served on the Board of Directors.  He stated he recommended patients for referral to the Sleep Center Hawaii, but the referrals were made before he was volunteering there.  He added that he never intended to flaunt any rules or regulations and did not profit or gain anything from his association with the Sleep Center Hawaii.

	d.  On 10 May 2011, in a closed hearing, having considered all matters presented, the CG, TAMC, found the applicant was guilty of all specifications.

	e.  His imposed punishment was a forfeiture of $4,855.00 pay and a written LOR.  The commander directed the DA Form 2627 (and attached LOR) be filed in the performance section of the applicant's OMPF.

	f.  The applicant did not appeal.

	g.  In item 10 (Allied Documents and/or Comments) the entry "Paragraph 
3-18(f)(1), Army Regulation 27-10 [Military Justice] complied with."  It also lists:

* Charge Sheet
* Article 32 Investigation
* CID Report of Investigation (ROI)-12-2010-CID266-10271
* FLAG
* ERB [sic] (Enlisted Record Brief)
* Matters submitted [by applicant]
* Written LOR signed by Brigadier General G----

	h.  Headquarters, TAMC, HI, memorandum, dated 10 May 2011, subject: Reprimand, shows the CG, TAMC, indicated that evidence shows that while the applicant was serving as a staff Neurologist at TAMC, he engaged in misconduct.  The CG elaborated on the three specific instances of misconduct that are summarized in the Record of Proceedings Under Article 15, UCMJ:

	 	(1)  He reprimanded the applicant for his misconduct contrary to his statements and claims because the evidence of his misconduct is overwhelming.

	 	(2)  The LOR was imposed as a punitive measure under the UCMJ and Army Regulation 27-10, and not as an administrative measure.

	 	(3)  He advised the applicant that the LOR would be attached to the Article 15 proceedings and filed in his OMPF.

	i.  The DA Form 2627, LOR, applicant's letter, and his waiver of the first reading are filed in the performance section of the applicant's OMPF.

5.  On 8 July 2011, the applicant received NJP for wrongfully using marijuana between 26 April and 26 May 2011.

6.  Office of the Assistant Secretary Manpower and Reserve Affairs, Arlington, VA, memorandum, dated 3 October 2011, subject:  Retirement in Lieu of Elimination/Officer Grade Determination Case [Applicant], Army Review Boards Agency (ARBA) Case Number AR20110018080, shows the applicant's request for retirement in lieu of elimination was approved and that he would be placed on the retired list in the grade of lieutenant colonel (LTC)/pay grade O-5.

7.  Headquarters, TAMC, HI, Orders 306-0014, dated 2 November 2011, as amended by Orders 311-0008, dated 7 November 2011, retired the applicant from active duty effective 30 November 2011 and placed him on the retired list in the rank/grade of LTC/O-5 on 1 December 2011.

8.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably retired from active duty in the rank of LTC (O-5), on 30 November 2011, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-2b and 6-17d, based on unacceptable conduct.

9.  In support of his application, the applicant provides the following documents:

	a.  A self-authored memorandum to the Board, dated 20 October 2011, in which he states the information in the NJP and LOR are inconsistent with the facts.  He adds the NJP and LOR show that:

	 	(1)  he was employed; however, the preponderance of evidence that he submits shows he was not employed by the Sleep Center Hawaii;

	 		(a)  The FBI investigation determined there was no evidence to support employment with any civilian entity.  The FBI findings were presented to a grand jury and no indictments were issued.

	 		(b)  The USA CID investigation could find no evidence of employment and the Article 32 hearing recommended that TAMC charge him with providing "voluntary services" to the Sleep Center Hawaii.

	 		(c)  The General Manager of the Sleep Center Hawaii repeatedly and consistently denied the applicant was employed and there were no records of any payment to him.

	 	(2)  he saw patients at the Sleep Center Hawaii while in his Army uniform;

	 		(a)  The TAMC provided no objective evidence, such as a photograph.

	 		(b)  It relied upon the testimony of a single patient who saw him in uniform at the facility following a Board of Directors meeting.  However, he was there as the military representative and Secretary of the Hawaii Neurological Society; a non-profit professional advocacy organization.

	 	(3)  he accepted travel unlawfully when Sleep Center Hawaii paid for his trip to Hilo;

	 		(a)  He acknowledges that acceptance of the travel was against regulations.

	 		(b)  Joint Ethics Guidelines authorizes the acceptance of travel for the purpose of interviewing in preparation for retirement, which was his situation.

	 	(4)  he did not request a waiver prior to referring patients while discussing future employment with the Sleep Center Hawaii;

	 		(a)  Joint Ethics Guidelines require that a Government employee excuse himself from participating in activities and/or employment if the Government employee has a direct and predictable influence over the financial health of the company.

	 		(b)  He was one of many hundreds of doctors who referred patients each month and his referrals were based on the geographical locations of the sleep clinics and the patients' homes.

	 	(5)  he continued to refer patients to the Sleep Center Hawaii even after he had arranged post-government employment with the Center;

	 		(a)  The evidence relied upon was that his name was placed onto Sleep Center Hawaii stationery, office doors, and advertising materials.  He states this was done without his knowledge or permission and it was reversed at his request upon learning of the actions.

	 		(b)  He asserts that no post-government employment with Sleep Center Hawaii materialized.

	 	(6)  TAMC's mandatory ethics training included instructions to request permission before engaging in off-duty employment;

	 		(a)  He disputes the annual ethics training course/information he received that is referred to in the LOR (i.e., Army Ethics versus Medical and Patient Ethics) and states that annual ethics training does not discuss off-duty employment, retirement ethics, referrals, or waivers.

	 		(a)  He states he did not request approval because he did not engage in off-duty employment.  He adds that information about applying for a blanket waiver should be incorporated into TAMC orientation briefings.

	 	(7)  there is no evidence or examples of a "pattern of recent misconduct" or a "tendency to abuse … authority."

	 		(a)  The phrases in the LOR place an unjustifiable label on him as a chronic offender.

	 		(b)  In rebuttal he offers his graduation as the Distinguished Military Graduate as a Princeton University Cadet; Chairman of the Joint Chiefs of Staff Award for Excellence in Military Medicine in 2002; command of a hospital deployed in a foreign nation; successful direction of research at both Walter Reed Army Institute of Research and the U.S. Army Aeromedical Research Laboratory; and his consistently high Officer Evaluation Reports.

	b.  First Hawaii Bank letter, dated 8 September 2010, and United States District Court for the District of Hawaii, dated 29 September 2010, that show the bank was directed to appear and testify before the court's grand jury, and to bring electronically stored information pertaining to the applicant.

	c.  U.S. Army Pacific, Fort Shafter, HI, memorandum, dated 2 February 2011, subject:  Article 32, UCMJ, Investigation, that notified the applicant of the investigation being conducted involving him, including the charges and three specifications, and the rights available to him.

	d.  Memorandum written to the Army Grade Determination Review Board (AGDRB), dated 24 July 2011, from Adam G---, General Manager, the Sleep Center Hawaii, who states the applicant was not an employee and he was not given any kind of monetary compensation in consideration for volunteering at the Sleep Center Hawaii.

	e.  Webpage from http://hns.aan.com (Hawaii Neurological Society:  Board of Directors), printed 1 August 2011, that shows the applicant is listed as Secretary.

	f.  Hawaii Neurological Society, 2009 Annual OGE 450 Report, that shows the applicant is listed as Director.

	g.  TAMC Mandatory Training Report, dated 20 May 2011, that shows [in part] the applicant attended the following mandatory training courses, which were required to be completed every 36 months:

* MC-00018 (Ethics) on 18 May 2011
* MC-00146 (Medical Ethics/Patient Rights) on 5 November 2007

	h.  Chairman of the Joint Chiefs of Staff Award for Excellence in Military Medicine pertaining to the applicant.

	i.  Five OERs spanning the period from 22 February 2000 to 25 September 2009 that show the raters evaluated the applicant's performance and potential as "Outstanding Performance, Must Promote" and the senior raters evaluated his promotion potential as "Best Qualified."

	j.  His ORB and Curriculum Vitae that summarize and highlight the applicant's military and civilian professional achievements and credentials.

	k.  Memorandum to the AGDRB, dated 16 September 2011, in which the applicant explained why he signed the 9 May 2011 Article 15.  It shows:

	 	(1)  he was instructed by his attorneys that it was the best of all possible outcomes and fastest path to retirement;

	 	(2)  he agreed to his counsel's recommendation to accept NJP for "volunteering without permission"; and

	 	(3)  when the CG, TAMC, read the Article 15, he spoke "volunteered" when the word "employed" was actually written.

	 	(4)  He states, "I signed automatically, acknowledging the verdict, not agreeing to the verdict."

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.

	a.  Only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file.

	b.  Depending on the purpose, documents will be filed in the OMPF in one of the three sections:  performance, service, or restricted.  It shows:

* DA Form 2627 is filed in either the performance or restricted section, as directed in item 4b of the DA Form 2627
* if the form shows punishment of a written LOR, then file the written LOR with the DA Form 2627
* allied documents to the NJP are filed in the restricted section

11.  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, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and 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.

	a.  Chapter 7 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.

	b.  Paragraph 7-2 states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the punishment set forth the in the DA Form 2627, dated 10 May 2011, should be set aside and the DA Form 2627 and the LOR that he was issued should be removed from his OMPF because they are inconsistent with the facts; they are based on unproven charges and allegations.

2.  The applicant's contentions were carefully considered.

	a.  The evidence of record shows that NJP was imposed against the applicant for offenses that occurred between 1 June 2009 and 1 May 2010.  He consulted with a defense counsel prior to his hearing and elected not to exercise his right to demand trial by court-martial.  His commander considered the evidence and found the applicant guilty.

	 	(1)  Records show the applicant attended Medical Ethics/Patient Rights training on 5 November 2007 and Army Ethics training on 18 May 2011.  Records also show the training was required every 36 months.  Thus, it is reasonable to conclude that he previously attended Army Ethics training at some time in 2008.  In any event, the applicant was a senior commissioned officer and he certainly should have been aware of the requirement to request permission before engaging in off-duty employment.

	 	(2)  There is no evidence of record, and the applicant acknowledges, that he did not request or receive permission for off-duty employment.

	 	(3)  There is no evidence of record, and the applicant acknowledges, that he did not request a waiver to discuss his future employment with Sleep Center Hawaii.

	b.  There is conflicting testimony by two individuals regarding the applicant's status (i.e., employee versus volunteer) at the Sleep Center Hawaii.  However, the fact that the applicant's name was placed onto Sleep Center Hawaii stationery, office doors, and advertising materials strongly suggests his relationship with the Center was more than that of a volunteer.

3.  The applicant's professional achievements, credentials, and favorable evaluation reports were considered and are acknowledged.

4.  The evidence of record shows the applicant elected not to appeal the NJP imposed by the CG, TAMC on 10 May 2011 and that the DA Form 2627 and LOR are filed in the performance section of his OMPF.

5.  By regulation, in order to remove a DA Form 2627 from the OMPF, there must be compelling evidence to support its removal.  

6.  After a careful review of the evidence of record, it is concluded that the applicant has not submitted compelling evidence to disprove the facially valid DA Form 2627 and LOR that are filed in the performance section of his OMPF.  Therefore, the DA Form 2627 and LOR, dated 10 May 2011, are deemed to be properly filed and should not be removed from the applicant's OMPF.

7.  As a result of the aforementioned conclusions, there is no basis to grant 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 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)                                         AR20110022127



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ABCMR Record of Proceedings (cont)                                         AR20110022127



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