BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20120020431


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 expedited consideration of his relief sought and defers to counsel.

2.  The applicant states his record is in error and unjust as stated in his counsel's brief and exhibits.

3.  The applicant provides his counsel's brief.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's record to show:

	a.  he earned the appropriate certification to enable him to take Part I of the Orthopedic Surgery Boards;

	b.  he earned a diploma from the Orthopedic Surgery Residency Program at Tripler Army Medical Center (TAMC), HI;

	c.  he earned a certificate and graduated from the 5-year residency program;

	d.  the applicant's program director (PD) and designated institutional official (DIO), also known as the Accreditation Council for Graduate Medical Education (ACGME), found he met the requirements for graduation from the Orthopedic Surgery Residency Program; and

	e.  the American Board of Surgery Form 3 (Record of Residency Assignments) be signed by the PD.

2.  Counsel states:

	a.  The applicant's PD, Director of Medical Education (DME), and Graduate of Medical Council (GMEC) all found he met the requirements for graduation from the Orthopedic Surgery Program; however, the hospital commander, a general officer, ordered the PD not to certify the applicant to take Part I of the Orthopedic Surgery Boards.

	b.  The ABCMR should grant the applicant's request because:

* his record overwhelming shows he met the necessary requirement to certify to take Boards in question as previously stated and to graduate from the Orthopedic Surgery Residency Program
* the applicant met the training requirement of having attended sufficient training days during the fifth and final year of residency from 1 July 2010 through 30 June 2011
* the CG's order –

* violated due process of law under the fifth amendment and Army Regulation 351-3 (Professional Education and Training Programs of the Army Medical Department) and other legal authority
* constitutes unlawful command influence and control over the statement of the witnesses
* breached the training agreement between the applicant and the Army

* it is unjust that the applicant has not been certified to take the Orthopedic Surgery Boards and not recognized as a graduate of the
5-year Orthopedic Surgery Residency Program

	c.  The applicant is entitled to pay and allowances as a result of the Army's failure to designate him as certified and a graduate of the residency program in question.

3.  Counsel provides the indexed list of exhibits included with the application totaling 374 pages.


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was appointed as a Reserve commissioned officer in the rank/grade of second lieutenant (2LT)/O-2 and completed his oath of office on 15 May 1993.

2.  On 13 June 1997, he was ordered to active duty as an obligated volunteer officer to fulfill his 9-year active Army requirement.  He was promoted to captain (CPT)/O-3 on 13 June 1997 and to major (MAJ)/O-4 on 13 June 2003.

3.  The Chief, Health Service Division, U.S. Army Human Resources Command (HRC), notified the applicant of his acceptance for the Army GME residency training in orthopedics at TAMC.  His training was scheduled to begin on 1 July 2006 and end on 30 June 2011.

4.  On 11 May 2011, the PD, Orthopedic Surgery Service, met with the applicant regarding his inappropriate use of medication.  On 12 May 2011, the applicant acknowledged he was placed on restriction from clinical activities and that he would not be involved in patient care.

5.  On 14 June 2011, the PD prepared a memorandum addressed to the applicant, subject:  Leave of Absence.  It shows that as a result of the applicant's medical situation, he was undergoing an investigation into activities related to his illness that could possibly take up to 90 days or longer.

6.  On 2 August 2011, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating the following two articles of the Uniform Code of Military Justice (UCMJ):

	a.  Article 134, for on divers occasions between on or about 10 December 2010 to on or about10 May 2011, knowingly or intentionally acquire or obtain possession of oxycodone by misrepresentation, fraud, forgery, deception, or subterfuge, by entering medical prescriptions for himself to the TAMC computerized prescription system while using the login names and passwords of other providers and

	b.  Article 112, for on divers occasions between on or about 10 December 2010 to on or about 10 May 2011, wrongfully possess a certain amount of oxycodone, a schedule II controlled substance, totaling 920 tablets in all.

7.  On 22 August 2011, the Commander, Troop Command, TAMC, appointed an Article 32(b) investigation in the case against the applicant, to impartially inquire into the truth and the form of the charges and such other matters that may be necessary to make a recommendation as to the disposition of the charges. 

8.  On 7 September 2011, having reviewed all matters relevant to the applicant's case, the Article 32(b) investigating officer determined there were sufficient grounds to charge the applicant with violating Articles 134 and 112.  He further recommended the applicant's trial by general court martial.  On 21 October 2011, the CG, Headquarters, 8th Theater Sustainment Command, approved the recommendation.

9.  On 14 November 2011, the applicant tendered his resignation from the Army under the provisions of Army Regulation 600-8-24, paragraph 3-13, for the good of the service – in lieu of trial by court-martial.  On 23 January 2012, the Acting Deputy Assistant Secretary of the Army (Review Boards) accepted the applicant's resignation with an under other than honorable conditions discharge characterization of service.

10.  On 7 February 2012, the DME forwarded a memorandum to the Chief, GME Division, Headquarters, Department of the Army, Office of the Surgeon General (OTSG), to ascertain if the applicant would be allowed to graduate to independent practice.  The DME also indicated:

* the applicant was returned to full duty on 1 February 2012
* the applicant's total time away from training was 232 days
* the applicant remained in active treatment for his medical condition and continues to fully participate in his maintenance of care
* the applicant's program believes he completed the necessary requirement for graduation and that he should receive official recognition of his achievement
* the American Board of Orthopedic Surgery (ABOS) verified the applicant was eligible to sit for full Board Certification

11.  On 13 February 2012, the GME, OTSG, determined:

	a.  the applicant's return to duty could not be categorized as a return to training and that he could not return to training without a formal request to extend his contract;

	b.  the applicant's leave of absence resulted in 17 days of time away from his training program during academic year 2010-2011;

	c.  the sum of all other absences from his training program as outlined in the OTSG Due Process Policy, dated 23 June 2008, for the period 1 July 2010 to 30 June 2011, exceeds 13 days; therefore, his academic year will be considered incomplete; and

	d.  any recommendation to graduate the applicant from training will need to be forwarded to this office accompanied by the appropriate documentation for review and approval by this office.

12.  On 23 February 2012, the applicant was discharged from active duty by reason of "in lieu of trial by court martial."  He completed 14 years, 10 months, and 21 days of creditable active duty service.

13.  During the processing of this case, an advisory opinion was obtained from the GME, OTSG, dated 8 February 2013.  The advisory official indicated the office previously rendered an opinion from the GME, dated 5 April 2012.  She indicated it was determined the applicant did not meet the OTSG eligibility requirement to graduate from training.  The basis for the opinion was that a commander's inquiry confirmed the applicant's absence from training exceeded the required 30 days permitted by the OTSG policy.  Although he clearly met the ABOS requirement for 46 weeks of training, he failed to meet the Army requirements for completion of residency due to absences during his fifth and final year of training.  Therefore, issuance of a graduation certificate was not warranted.

14.  On 21 February 2013, the applicant was forwarded a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  On 8 March 2013, counsel provided a copy of the applicant's declaration in response to the advisory opinion wherein he stated:

	a.  The advisory opinion was based on factual allegations that are erroneous and were obtained in an unfair 15-6 investigation, thereby leading to unreliability and error.

	b.  The PD, DIO, and the GMEC all confirm the applicant's attendance met the OTSG requirements for graduation.

	c.  The 15-6 investigating officer (IO) made numerous mistakes in calculating the total number of days the applicant missed from training when counting weekend days that were training days, holidays, and days he attended a medical conference.

	d.  the 15-6 IO never contacted the PD or the applicant and he was never provided a copy of the investigation's findings, other than the information he received from the DIO.  Had the IO contacted him, he would have explained the actual days he took leave.

	e.  The CG, when confronted with the discrepancy between the 15-6 IO's findings and the PD and DIO's findings, abandoned the "absence from training" rationale to deny his graduation indicating his unprofessional conduct was the determinative factor.  However, the CG, with full knowledge of the applicant's offenses, stated to his superior, a major general, that he (the applicant):

* was an excellent physician who received appropriate treatment to remedy his addiction to the narcotic
* possesses the qualities to not only learn from his mistakes, but to also complete his residency and contribute as a provider in our Army
* still has the potential to safely deploy with a combat support hospital in the combat zone and help save lives
* had mitigating circumstances in his use of narcotics that included a debilitating and uncontrollable pain level that warranted medication

	f.  Finally, his training agreement that he signed with the Army states, "Completion of the program is usually determined by the minimum training requirements as prescribed by the American medical specialty board in your selected specialty."  Therefore, given he clearly met the BOS requirements of 46 weeks of training, as indicated in the OTSG advisory opinion, his training agreement should be enforced.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that the applicant's record should be corrected to show:

	a.  he earned the appropriate certification to enable him to take Part I of the Orthopedic Surgery Boards;

	b.  he earned a diploma from the Orthopedic Surgery Residency Program at TAMC, HI;

	c.  he earned a certificate and graduated from the 5-year residency program;

	d.  the applicant's PD and DIO, also known as the ACGME, found he met the requirements for graduation from the Orthopedic Surgery Residency Program; and

	e.  the American Board of Surgery Form 3 (Record of Residency Assignments) be signed by the PD.

2.  The available evidence clearly shows the applicant failed to complete the TAMC Orthopedic Surgery Residency Program.  Even though he met the American Board of Orthopedic Surgery requirement of 46 weeks of training, he did not meet the Army requirements for completion of residency due to absences during his 5th and final year of training.  He was not issued a graduation certificate.

3.  The applicant rebutted the advisory opinion by contending that his training agreement states, "Completion of the program is usually determined by the minimum training requirements as prescribed by the American medical specialty board in your selected specialty."  He contends that therefore, given he clearly met the BOS requirements of 46 weeks of training, his training agreement should be enforced.

4.  However, as the applicant noted, the training agreement states "Completion of the program is usually determined by the minimum training requirements…"  Given the unusual circumstances under which he ended his training and separated from the Army it appears the hospital commander made an appropriate decision.

5.  The evidence further shows he was subsequently charged with knowingly and intentionally acquiring or obtaining oxycodone by illegally entering prescriptions for himself, and possessing 920 tablets in all.  As a result he elected to resign under the provisions of Army Regulation 600-8-24, paragraph 3-13, for the good of the service - in lieu of court-martial.  This ultimately prevented him from being able to reschedule the training he missed in order to complete the entire residency program.

6.  Accordingly, the hospital commander ordered the PD to not certify the applicant.  Counsel has argued that the commander's action violated the applicant's rights to due process and constituted unlawful command influence.  However, the available evidence fails to sufficiently support such allegations.

7.  There is no evidence of error or injustice in this case.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's required 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 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)                                         AR20120020431



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ABCMR Record of Proceedings (cont)                                         AR20120020431



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