IN THE CASE OF:	   

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140012835 


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 his request and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's referred DA Form 67-9 (Officer Evaluation Report (OER)), which was given for the period 1 June 2010 through 31 May 2011, by removing the negative comments so that the applicant's otherwise satisfactory and fully qualified performance is reflected.  

2.  Counsel states, in effect, the negative comments in the OER are based upon allegations stemming from a single incident.  The investigation of that incident was unfair and heavily flawed in that:

* the applicant was never informed of his rights
* the investigating officer failed to follow proper procedures
* the investigation was riddled with errors

3.  Counsel provides:

* memorandum, dated 12 July 2014, subject:  Appeal of OER Given to [applicant], signed by Counsel
* memorandum, dated 15 July 2011, subject:  OER Referral 20100601-20110531, [applicant], signed by the senior rater for the OER in question
* DA Form 67-9 for the period 1 June 2010 through 31 May 2011
* Army Achievement Medal Certificate
* ten emails
* letter from the applicant's doctor, dated 7 April 2011
* four statements concerning the incident in question
* DA Form 4856 (Developmental Counseling Form)
* memorandum for record, dated 21 March 2011, subject:  Report of Inquiry - Incident on 4 March 2011 Involving [applicant], signed by a lieutenant colonel (LTC) shown as the Center Judge Advocate
* memorandum, dated 28 March 2011, subject:  Final Report of Officer Misconduct - [applicant], signed by the Commanding General (CG), Tripler Army Medical Center (TAMC), HI
* memorandum, dated 13 April 2011, subject:  Disposition Authority, signed by the CG, 8th Theater Sustainment Command
* GOMOR, dated 14 April 2011, addressed to the applicant from the CG, TAMC, with associated documents
* applicant's rebuttal to GOMOR, with associated documents
* nine letters of support (two in the form of an email)
* mobilization orders with amendments

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed as a Reserve commissioned officer in the Judge Advocate General’s Corps and executed an oath of office on 6 August 2003.  He served as a Troop Program Unit (TPU) Judge Advocate and was assigned to the 91st Legal Support Organization, Fort Sheridan, IL.  

3.  In August 2007, he underwent surgery to remove a noncancerous tumor.  He was referred into the Physical Disability Evaluation System and, on 12 February 2010, a physical evaluation board (PEB) found him fit for duty.  

4.  On 11 May 2010, he was ordered to active duty in support of Operation Enduring Freedom.  Starting on or about 1 June 2010, he performed duties as a Soldiers' PEB Counsel, TAMC, HI.  His record does not show the exact date he discontinued these duties.  There are orders, however, which show he was retained on active duty at TAMC for a period of 179 days with a reporting date of 17 July 2011 for the purpose of participating in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical care and treatment.  

5.  In a memorandum for record, dated 21 March 2011, subject:  Report of Inquiry - Incident on 4 March 2011 involving [applicant], signed by LTC Bxxxxxxxx, Center Judge Advocate (also shown as Command Judge Advocate (CJA) and as the applicant's intermediate rater (emphasis added)), the following was reported:

	a.  On 8 March 2011, LTC Bxxxxxxxx, the writer, received a written complaint from Doctor (Dr.) Dxxxxxx, Chief of Medicine, TAMC, concerning the applicant.  The complaint alleged the applicant engaged in inappropriate patient behavior at the TAMC Endocrine Clinic on 4 March 2011.  The writer conducted an inquiry and, based upon that inquiry, he found:

* On 23 February 2011, the applicant had gone to the Endocrine Clinic demanding the refilling of numerous medications, stating some of the medications were needed as a matter of "life or death" and he had been without these medications for 90 days
* a doctor at the endocrinology clinic agreed to supply a 30-day refill, but stipulated the applicant schedule an appointment to obtain additional medications as he had not been seen in the clinic since June 2010; he was given an appointment date of 15 March 2011
* the civilian medical assistant in the Endocrine Clinic said she recalled the applicant's June 2010 visit and stated he had had an attitude and was rude; she also said the applicant showed her his TAMC badge and made the point he was a lawyer
* sometime after 1200 hours on 4 March 2011, the applicant went to the TAMC Pharmacy to pick up the refilled prescriptions
* his medications were not available and, according to the medical assistant, it was due to TAMC error, though the source of the error was not known
* the applicant went to the Endocrine Clinic and was told he would have to wait to have another order placed for his medications; there was only one doctor on duty at that time (Dr. Kxxxxxxx, a contracted civilian physician) and she needed to finish with a patient
* the applicant was visibly impatient but, after letting out a "big sigh," he returned to the Pharmacy
* upon finishing with her patient, the doctor placed the order for the applicant's medications, but the applicant found not all were there when he checked with the pharmacy
* the applicant went back to the Endocrine Clinic with a shorter list of medications and another order was placed for those medications

	b.  The writer continued:

* when the applicant went back to the Pharmacy, two of the medications were still not available, apparently having been mistakenly cancelled by Dr. Kxxxxxxx
* the applicant went back to the Endocrine Clinic and followed the medical assistant to the doctor's office
* Dr. Kxxxxxxx was very busy and was also dealing with a patient in the Intensive Care Unit (ICU), but indicated to the medical assistant she had already placed the order for the applicant's medication and did not know what else she could do
* Dr. Kxxxxxxx went on to say the applicant should address his remaining medication issues when he returned in 10 days for his appointment
* at that point, the applicant loudly demanded the doctor fill his prescriptions as they were life-sustaining and he had not had them for 3 months (he later contradicted himself saying he'd been getting them from other sources)
* Dr. Kxxxxxxx responded by saying, [in her view], the medications were not life-sustaining and, if he had waited 3 months, he could wait 10 more days
* the applicant became angrier, threatened he would file a complaint, and began using vulgar language in a loud voice
* Dr. Kxxxxxxx heard the applicant call her a "fxxxxxx bxxxx" and she told the writer she had never seen a patient that angry; the applicant's belligerent behavior was such that no effective patient-provider interaction could occur
* Dr. Kxxxxxxx explained to the writer that the medications the applicant sought were non-standard, she did not know his medical history, and she was not sure he really needed those medications; there were also discrepancies in dosage amounts

	c.  The writer further stated:

* an Allergy Technician, Specialist (SPC) Bxxxxxx, who was in the area at the time, recounted she saw the applicant in uniform leaning forward, pointing his finger and yelling; she did not know what he was saying but his body language, voice, and posture were hostile
* the Allergy Technician saw the applicant deliberately punch the comment card box outside the medical assistant's office in the Endocrine Clinic
* the applicant came into the medical assistant's office, used vulgar language to describe the doctor's unwillingness to help him, and demanded a comment card; the Allergy Technician tried to calm him
* the Allergy Technician left the office and called for Security; she then saw her noncommissioned officer in charge (NCOIC) and motioned to him for assistance
* when the NCOIC arrived at the medical assistant's office he observed the applicant shaking with anger and shouting as he completed the comment card; the applicant slammed the completed comment card into the comment card box, making a loud noise
* the NCOIC tried to calm the applicant and escorted him out of the office; at the applicant's insistence, the NCOIC brought him to see the Chief of the Allergy and Immunology Service (a doctor who was a colonel)
* Security arrived and the applicant complained about this, saying "you bxxxxxxx called security on me?  That just made me even more mad"
* ultimately, the applicant spoke with the Chief of the Allergy and Immunology Service, the applicant's medications were successfully entered, Security left after the applicant calmed down, and, after spending a great deal of time arguing at the Pharmacy counter, the applicant left with his medications

	d.  The writer noted Dr. Dxxxxxx, the Chief of the Department of Medicine and a Navy captain, conducted her own informal inquiry and collected several statements.  She determined her staff had acted appropriately, engaged in no wrongdoing, and that the applicant had acted inappropriately.  Additionally, as an Endocrinologist, she concurred with Dr. Kxxxxxxx's assessment the medications requested by the applicant were not urgently needed.  She determined the applicant should seek care through the Tricare network and she cancelled his appointment with her.

7.  In an email, dated 8 March 2011, the applicant gave LTC Bxxxxxxxx his recollection of what occurred.  

	a.  He stated, in effect:

* on 15 August 2007, he went blind and had massive, uncontrollable headaches that caused him to collapse
* he was found to have a noncancerous tumor on his pituitary gland and that he had bleeding in his brain; he underwent surgery to remove the tumor
* because of the tumor and the surgery, he has had endocrine disruption and hormonal deficiencies which require him to take certain medications
* in September 2009, he was diagnosed with viral myocarditis (viral inflammation of the heart muscle)
* this diagnosis required him to take even more medications
* one of the preconditions given by his doctors when he was mobilized to active duty was he needed to have access to his medications
* coming from a civilian environment, he was not used to the delays in receiving care and appointments that he began to experience on his arrival at TAMC
* the delay in getting his medicine caused him to experience great fatigue and weakness
* a doctor (friend of a friend) helped to "jump-start" this process

	b.  He then wrote:

* he obtained an appointment at the Endocrine Clinic for late June/early July; the doctor ordered blood work, ordered his medications, contacted his doctors back home, and met with him
* shortly after his appointment, that doctor deployed to Afghanistan
* he used his doctors back home to get prescriptions from both local civilian and TAMC pharmacies
* an endocrinology doctor, as well as his primary care provider, helped him get refills of his prescriptions
* the endocrinology doctor ordered his blood work when his medicine needed to be refilled, ordered a refill for his prescriptions, and then called the applicant notifying him he could pick up his medicines
* his endocrinology doctor called to tell him he had gotten the applicant a month's supply of medications; he would then have to come in for an appointment
* the applicant made the appointment as instructed; his endocrinology doctor then deployed

	c.  Regarding the events that occurred 4 March 2011:

* the applicant went to the TAMC Pharmacy to pick up his medicines and was told his medications had not been ordered
* he went to the Endocrinology Clinic and spoke with the medical assistant; she apologized and acknowledged his endocrinology doctor had ordered his medicines; she said she would have a doctor place the order
* after his fourth trip to the pharmacy and three hours of waiting, he found they had all of his medications together, but then learned the civilian contract doctor (Dr. Kxxxxxxx) had cancelled two of the medications
* he returned to the Endocrinology Clinic and, after telling the medical assistant what occurred, followed the medical assistant to the Dr. Kxxxxxxx's office
* Dr. Kxxxxxxx, not seeing he was there, rudely said she did not have time for this, it would take her an hour to do what was asked, the applicant could wait the two weeks until his scheduled appointment, and the medications requested were not life-sustaining
* as an aside, the applicant contended some of his medications were, in fact, life-sustaining; he recounted an incident when he failed to take his medication as prescribed and was unable to move, almost going into a coma
* after waiting 3 hours, walking back and forth between the clinic and the pharmacy, having two of his medications cancelled by a doctor who had never seen him, and hearing the civilian contract doctor make an incorrect and potentially dangerous medical judgment, he became upset
* when he confronted the doctor about her remarks, she closed her door and the medical assistant went back to her office
* he was walking to the medical assistant's office when he felt dizzy, falling into the wall and making a "thumping sound"
* using the wall for balance, he composed himself and asked the medical assistant to file a complaint against the contract doctor
* he completed the complaint form but did not submit it, as the medical assistant told him he could submit his complaints online
* he admits he was loud and animated, but he did not swear at anyone, nor did he get violent and he threatened no one 
* he spoke to a colonel/doctor, who he thought was in the allergy-immunology clinic; this doctor acknowledged there had been other complaints about Dr. Kxxxxxxx and that she would be gone soon

	d.  He continued:

* if getting upset and asking to formally complain about a doctor got anyone concerned, he apologized
* he did swear about (emphasis added) Dr. Kxxxxxxx and also said she should be fired, but it was out of her earshot; he never swore at her; threatened her, or did anything illegal or unethical (emphasis added)
* after he indicated he wanted to file a complaint and asked to see a supervisor, some enlisted Soldiers came out to talk to him; he told them his story and one sergeant asked him to talk to the colonel/doctor in the allergy-immunization clinic
* the colonel/doctor assured him he would receive his medications, and the applicant did subsequently get all of his medications
* at one point a civilian security guard came up to speak with him for a short time and, after he spoke to one other person, the security guard left
* no one else, to include military police, came
* he wanted to note he had been ill lately and, when his blood sugar was low, he had a tendency to become agitated
* he also felt the civilian doctor (Dr. Kxxxxxxx) committed medical malpractice by making incorrect statements about his medication without knowing his condition or medical history; she was rude, disrespectful and could have hurt his health 

8.  His records contain four statements by witnesses of the 4 March 2011 incident.

	a.  A signed but undated memorandum by the medical assistant for the Endocrinology Clinic, which essentially says:

* the applicant came on 4 March 2011 and told her his medications, put in by Dr. Gxxxxxxx, on 23 February 2011, were not at the pharmacy
* I told him I would ask Dr. Kxxxxxxx but he (the applicant) would have to wait until Dr. Kxxxxxxx was finished with a patient
* the applicant gave a big sigh and walked away
* when Dr. Kxxxxxxx was done, she asked her to order the applicant's medications and Dr. Kxxxxxxx agreed
* the applicant came back to say the medications were still not there; she went to Dr. Kxxxxxxx's office, followed by the applicant
* when asked, Dr. Kxxxxxxx said she had placed the order; the applicant started yelling and the medical assistant walked away
* a few minutes later the applicant came by her office, punched the comment box and said Dr. Kxxxxxxx was a "fxxxxxx bxxxx"
* SPC Bxxxxxx, an Allergy Technician, told the applicant to calm down
* the applicant said he wanted to complete a complaint form and he sat at her desk to fill it out; at that point the NCOIC of the allergy clinic came and took the applicant to see the Chief of the Allergy and Immunology Service

	b.  A signed but undated memorandum by Dr. Kxxxxxxx which states, in effect:

* on 4 March 2011, the medical assistant told her a patient needed his medications refilled; there was a full page of different medications
* she did not know the patient's medical history and she saw he had an appointment with Dr. Dxxxxxx, the Chief of the Department of Medicine
* she entered the prescriptions after finishing with her patient
* the applicant came back with a shorter list of medications which she entered as requested
* the applicant came back again saying the medications were not at the pharmacy; she had other patients to see and there was a meeting which she had to attend concerning a patient in the ICU
* there were medications on the applicant's list which were "nonformulary" and she was not sure he needed the particular brands; additionally there were dosage discrepancies
* she told the medical assistant the applicant needed to address his issues with Dr. Dxxxxxx when he (the applicant) came back in 10 days for his appointment
* the applicant insisted he wanted his medications filled that same day and said he had not had any of his medications for 3 months
* she told the applicant if he really had not taken his medications for 3 months, he could wait the additional 10 days
* at that point, the applicant became very upset, used obscene language, and threatened to file a complaint
* security was called, she explained the situation to security, she reentered the medications, and the applicant was escorted to the pharmacy

	c.  A signed memorandum for record, dated 9 March 2011, by SPC Bxxxxxx, an Allergy Technician, which states, essentially:

* on 4 March 2011, she was in the medication room when she heard loud noises; she went to investigate
* she saw the medical assistant sitting at her desk and asked what was going on
* the medical assistant shook her head and made a motion, putting her hands in the air
* SPC Bxxxxxx walked around the corner and then saw the applicant; while she could not make out what was being said, the applicant's body language, voice, and posture were very hostile
* SPC Bxxxxxx went back to the medical assistant's office to ask what was going on, and the medical assistant said she could not do anything else with the applicant and could not talk to him anymore
* SPC Bxxxxxx asked if she should call security, and the medical assistant said yes; SPC Bxxxxxx called security
* on her return from calling, she saw the applicant punch the comment box; she told him to calm down
* still pacing, she heard him say "that fxxxxxx bxxxx" a few times
* SPC Bxxxxxx then saw her NCOIC and motioned for him to come over
* her NCOIC approached, she briefed him, he then took over and escorted the applicant down the hall; she later saw security going down the hallway

	d.  A signed memorandum for record, dated 8 March 2011, by Staff Sergeant Mxxxxx, SPC Bxxxxxx's NCOIC, in which he writes:

* on 4 March 2011, he was called over by SPC Bxxxxxx; he saw the applicant sitting across from the medical assistant in the Endocrinology Clinic shouting and shaking with anger
* he removed the applicant from the office, telling him he would do everything he could to help, but the applicant had to calm down
* the applicant wanted to speak with the head of the clinic; he brought the applicant to the office of Chief of the Allergy and Immunology Service
* a security officer arrived and the applicant looked at him, saying "you bxxxxxxx called security on me and that made me even more mad"
* the NCOIC explained security was called when personnel felt threatened
* the security officer approached, asked what was going on, spoke to the applicant, then went on to speak to others involved in this incident
* the Chief of the Allergy and Immunology Service came out and was briefed
* the NCOIC later escorted the applicant to the pharmacy so he could retrieve his medications
* after arguing with the pharmacy technician, the applicant left with his medications

9.  On 17 March 2011, the applicant received a DA Form 4856 (Developmental Counseling Form) from his supervisor (who was also his rater).  He was admonished for his behavior on 4 March 2011.  
	a.  His supervisor wrote, in effect:

* while he understood the applicant was frustrated and had serious health concerns, these did not excuse his behavior
* he was not aware of any credible evidence the applicant was medically incapable of exercising basic military bearing, displaying judgment, and did not understand right from wrong
* he was troubled by the fact he had not heard any sincere acknowledgement or remorse from the applicant
* he was also concerned the applicant had not made the effort to apologize or otherwise address the fact he insulted and caused anxiety on the part of TAMC personnel
* he felt the applicant showed a troubling lack of understanding of culture and customs (emphasis added), concern for others, self-reflection, and did not display the type of judgment that recognized appropriate conduct for a judge advocate general officer

	b.  He advised the applicant he was recommending the applicant's current tour not be extended.  He stated he otherwise admired the applicant's passion, dedication, and positive can-do attitude.

10.  On 14 April 2011, the applicant was given a GOMOR by the CG, TAMC.  In the GOMOR the CG reprimanded the applicant and detailed the reason for the memorandum:

* he had received a report the applicant had engaged in conduct unbecoming an officer and a gentleman
* specifically, and while in uniform, the applicant used insulting and vulgar language by referring to a TAMC physician as a "fxxxxxx bxxxx" in the presence or hearing of the physician, a TAMC enlisted Soldier, and a TAMC civilian employee
* the applicant used an insulting curse word in the presence of, and directed towards, a TAMC enlisted Soldier by referring to the TAMC staff as "you bxxxxxxx"
* displayed violence by punching the comment card box
* generally behaving in a rude, disrespectful, and aggressive manner in terms of body language, voice, and posture causing them to feel threatened enough to call security for assistance

11.  In his rebuttal to the GOMOR, the applicant made the following points:

	a.  He acknowledged he had made a serious mistake by allowing himself to get angry and swear.  While he maintained he did not refer to the TAMC staff as "bxxxxxx," punch the wall, or display other physical violence, he did not handle the situation appropriately.

	b.  He felt, however, there were mitigating circumstances:

* he was not at his physical or mental best that day; he was feeling very ill and in pain
* he felt dizzy and nauseated, which would explain why he fell at the endocrinology clinic
* he was taking new medications to treat his illness, but was also out of medications taken to affect his mood, energy, and hormonal levels
* his baby daughter was born in January (about 3 months earlier), and he was a bit sleep deprived
* he experienced numerous problems and delays while trying to get his medications the day of the incident
* his negative reaction, which he regretted, only occurred after he had gone back and forth several times between the pharmacy and endocrinology clinic

	c.  He asked that his service before and after the incident be considered, pointing out he had been awarded an Army Commendation Medal and an Army Achievement Medal.  He had never had any disciplinary issues prior to this and, because this incident was so disquieting for him, he had made an appointment with a counselor to get help with preventing such behavior from recurring in the future.

12.  On 9 May 2011, the CG, TAMC directed the GOMOR be permanently placed in the applicant's OMPF.

13.  In a memorandum, dated 15 July 2011, the applicant's senior rater notified him he was being given a referred OER covering the period 1 June 2010 through 31 May 2011.  He was provided a copy and instructed to acknowledge receipt and provide comments.

14.  The applicant's referred OER, covering the period 1 June 2010 through 31 May 2011, shows him performing duties as Soldiers' Physical Evaluation Board (PEB) Counsel while assigned to Medical Company A, TAMC, HI.  

15.  The OER shows he was rated for 12 months.  His rater was the Regional Counsel, his intermediate rater was the CJA, TAMC, and his senior rater was the Director, Office of Soldiers' Counsel.  The OER shows the following entries:

	a.  Part II (Authentication), block d (This is a referred report) is checked.
	b.  Part IV (Performance Evaluation - Professionalism), item a (Army Values), block 1 (Honor), block 2 (Integrity), block 3 (Courage), block 5 (Respect), and block 7 (Duty) are checked "NO."

	c.  Part V (Performance and Potential Evaluation), block a shows a check for "Unsatisfactory Performance, Do Not Promote."  Comments in block b essentially state:

* the applicant was mobilized as a Soldiers' PEB Counsel and represented about 62 Soldiers
* over 70 percent of his clients had favorable outcomes
* he skillfully negotiated resolutions for and fought tenaciously on behalf of his clients
* near the end of this rating period, he engaged in acts that were unbecoming an officer by using offensive language and refusing to accept responsibility for his behavior
* his conduct breached the Army values of honor, integrity, moral courage, respect, and duty
* his lack of military bearing, emotional control, and judgment caused the rater to doubt the applicant's ability to perform as a Judge Advocate General’s Corps officer

	d.  Part Vc states the applicant should not be promoted.

	e.  Part VI (Intermediate Rater) contains comments which state, in effect:

* the applicant provided a great service to Soldiers going through the PEB process
* he was zealous and effective as an advocate, obtaining favorable results for his clients
* unfortunately, those efforts were overshadowed by significant professional issues that cause great concern about his potential for promotion and continued service in the Army

	f.  Part VIIa shows a check in the block for "Do Not Promote," Part VIIb shows no block checked, and Part VIIc contains comments which essentially state:

* the applicant was a zealous advocate for his clients going through the PEB process and helped them obtain favorable results
* notwithstanding his legal skills, the applicant engaged in acts that were unbecoming of an officer by using offensive language and conduct toward enlisted and civilian personnel
* his demonstrated lack of military bearing, emotional control, and judgment caused the senior rater to doubt his ability to serve as an officer in the Army

16.  On August 2011, the applicant responded to the referred OER in a memorandum addressed to the senior rater.  He began by stating the OER was incorrect, unfair, and unjust.

	a.  He continued, writing:

* he asked for more time; holding finalization of his OER until completion of the pending commander's inquiry
* there was also a completed equal opportunity (EO) investigation as well as a "stayed" inspector general (IG) investigation; he was in the process of restarting the IG investigation based upon new information
* he believed there was a "severe issue of bias" concerning two of his three raters because they were subjects of investigations (some of which he, the applicant, had initiated)
* he asserted his rater should recuse himself because of bias and for making verifiably false statements; the rater had also asked that this be done
* the applicant believed the referred OER was retaliation for his filing of protected complaints

	b.  He contended the entire year should be considered in his OER, not just one incident that only lasted a couple of minutes.

* he had an overall favorable rate close of 80 percent
* he never had a Soldier who lost money (as computed in disability percentage allowed by the PEB)
* a good portion of his cases were Soldiers from Guam and Samoa; he had a 100 percent favorable rate with Samoan Soldiers; he gained the trust of the chiefs and thus demonstrated his ability to show respect for other cultures and embodying Army values (making reference to  comments made by his rater in the counseling statement received on 17 March 2011)
* he assisted clients facing medical evaluation boards (MEB) when the MEB counsel was absent
* he did legal assistance work, which was outside those duties defined by his job description
* he was able to help Soldiers facing nervous breakdowns and possible suicides
* he advocated on behalf of Soldiers, at times going against the wishes of the command, the doctors at TAMC, and the PEB; despite the adversarial nature of his advocacy, the PEB President told him he felt the applicant did an excellent job and should remain in his position as PEB counsel 

	c.  He wrote further:

* he came to work early and left late; he worked on weekends and holidays and did not take days off even when authorized
* he kept up his Soldier skills, lost ten pounds between 1 June 2010 and 1 October 2011, and passed his Army Physical Fitness Test in spite of having problems with his legs
* he qualified with his weapon, and encouraged his subordinate to physically train and maintain weapon's proficiency
* unlike his rater and the MEB counsel, he was well-regarded by Nurse Case Managers, PEB liaison officers (PEBLO)
* he helped the Boy Scout Troop, giving merit badge seminars on the law and on citizenship in the world 
* he had a good relationship with the Warrior Transition Battalion (WTB) commander and was offered a position in the Hawaii Army National Guard; he was equally well-regarded by LTC Jxxx Mxxxx and Major (MAJ) Sxxx Cxxxxxxx who said they would allow him to transfer to their unit in Illinois on his return
* he facilitated annual training for members of his unit, with one group coming to Hawaii for their training
* he went through "Boot Camp for New Dads" and became a coach there
* he was asked by three U.S. Soldiers from Guam who were Chamorro (indigenous people of the Mariana Islands including Guam) to be their representative
* he participated in two churches on Oahu
* he obtained positive media opportunities wherein he could highlight issues facing wounded Soldiers and publicize the good work being done by the Office of Soldiers' Counsel

	d.  He went on to write:

* he sent care packages to deployed Soldiers
* he enabled deployed Soldiers to store personal belongings at no cost
* he had high client satisfaction, as proven by their written evaluations
* he began taking the Judge Advocate Officer Advanced Course to prepare himself for promotion to MAJ
* his subordinate was awarded an Army Commendation Medal for his excellent duty performance
* his intermediate rater presented him with a plaque and award, publically stating the applicant had done a good job; he never gave the applicant a negative counseling or any negative feedback except for his investigation into the incident in question

	e.  Regarding his character, he noted the OER questioned his character and the rater had put "NO" when rating the Army values of honor, integrity, courage, respect, and duty.  While he saw there was vague discussion of the incident in question, he saw no explanation as to why he was lacking in these values.  He reiterated this had to be assessed in the context of the entire year.  He had had seven OERs since becoming an Army officer, and all were positive.  Now, because of one incident which lasted only minutes, and during which he was ill, his character is brought into question and the OER states he should not be promoted.

* in terms of integrity, he was not charged with lying, and, at age 41, had never been charged with lying
* yet, because he became upset and swore after being treated rudely and having to wait 3 hours for medications, his integrity is in question
* he asks, rhetorically, why this alleged lack of integrity had not presented itself earlier
* he had stated he would take a lie detector test to affirm his version of events; a version also confirmed by the Pharmacy OIC
* as to a lack of courage, it was not clearly stated but he assumes this referred to a contention he did not take moral responsibility for his alleged behavior
* he did apologize; he was upset but felt he had a legitimate reason
* the allegations that he swore at the two enlisted Soldiers are false
* he did not swear at (emphasis added) the doctor in endocrinology but was swearing about (emphasis added) her and the rude manner in which she treated him
* he did tell the medical assistant he wanted to file a complaint and that he thought the doctor (who had been rude and improperly cancelled his prescriptions) was a "bxxxx"
* he typically speaks in a loud voice and is sure he was louder during this incident, given the circumstances
* he also apologized at the time to the medical assistant, the two noncommissioned officers (NCO) that were there, and the colonel/doctor in the allergy-immunization clinic

	f.  The applicant maintained he was the victim in this incident.  He based this on:

* having to wait 3 hours to obtain his medicines
* having to walk back and forth between the pharmacy and Endocrinology Clinic, all while feeling dizzy, nauseous, and feeling pain in his leg (with what he now knows to be systemic nerve damage)
* being treated rudely by the doctor in endocrinology

	g.  At the time he wrote his response to the OER he was in the WTB being tested for cancer.

	h.  The applicant felt this incident should never have been handled as a disciplinary matter, but rather through a medical lens.  

	i.  The investigation conducted by his intermediate rater was problematic in that:

* none of the statements taken were sworn
* one was undated and another was unsigned
* hearsay was used
* the statements internally contradict themselves in terms of what occurred when
* the statements made by the Chief of the Department of Medicine (Navy captain) and the doctor in endocrinology (who treated him rudely) made statements about his prescriptions that contradict what is in his medical and pharmaceutical records

17.  The applicant's OER was finalized and added to his official military personnel file (OMPF) on 28 September 2011.

18.  On 1 January 2012, he was honorably released from active duty.  His 
DD Form 214 shows the separation authority is Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-7 (Rules for processing voluntary release from active duty due to expiration of active duty commitment).  The narrative reason shown is completion of required active duty.  His total net creditable active service was 1 year, 7 months, and 1 day.

19.  On 1 December 2013, he was honorably discharged from the USAR.



20.  Counsel provides:

	a.  An email from the applicant's civilian doctor at Northwestern University in which the doctor essentially states it is medically necessary for him to take his thyroid medications and that there is no sound medical reason for any interruption to occur.

	b.  A letter from the applicant's civilian doctor in Hawaii which, in effect, says she is concerned about the applicant's condition because of discontinuations with respect to his medications.  This concern is based upon lab results and, because of these results, the doctor says she will need to see the applicant at least monthly.

	c.  A memorandum from the OIC of the Pharmacy in which he essentially states he has been familiar with the applicant since his (the applicant's) arrival at TAMC.  

* he recalled there were initially some problems with the applicant's medications; he was able to help and offered his continued help for the future
* he met with the applicant on several occasions afterward and always asked whether he was experiencing any more problems, to which the applicant replied he was not
* On 4 March 2011, he recalled speaking with the applicant briefly; the applicant was always professional and polite to his staff
* on the day in question the applicant seemed disoriented and unwell
* he observed the applicant being told no medications had been submitted to the pharmacy and he would need to resolve this with the Endocrinology Clinic; he then observed this happened multiple times
* when he investigated the matter, it was clear the mistake stemmed from the Endocrinology Clinic and nowhere else
* he read the statement of the various parties involved in the incident and saw inconsistencies
* although it was stated the endocrinology doctor did not enter any medications, she did, in fact put in two medications, after which both were cancelled
* it was also suggested the applicant was rude to his staff; he was present and at no time saw the applicant being rude

	d.  Eleven letters and emails of support from a client, his subordinate, colleagues, coworkers and his leaders, all extolling the positive qualities of the applicant.

21.  Counsel provides arguments in two memoranda.  The first is a memorandum, dated 22 August 2013, addressed to the Department of the Army Suitability Evaluation Board (DASEB), subject:  Appeal of Reprimand Given to [applicant]:

	a.  LTC Bxxxxxxxx's investigation was unauthorized, improperly conducted, covered up evidence favorable to the applicant, and deprived the applicant of his constitutional and regulatory rights.

* the investigation was never appointed by a commander; it was undertaken at the behest of the Chief of Medicine at TAMC
* LTC Bxxxxxxxx was part of the Judge Advocate General technical chain, not his command chain; as such it was completely inappropriate for him to conduct an investigation when there were no allegations of professional misconduct
* LTC Bxxxxxxxx's motivations are suspect as he appears to have usurped the mantle of command by appointing himself investigating officer and doing so as a favor to the Chief of Medicine

	b.  The investigation fails to meet minimum standards.

* statements were not sworn and the investigation was undocumented in that LTC Bxxxxxxxx failed to obtain witness statements, keep notes of his witness interviews, or keep a log of his activities
* incomplete information was given to the CG, TAMC for making decisions about what happened and to the applicant to rebut what was alleged
* the original complaint was never made available, the email conversation between LTC Bxxxxxxxx and the Chief of Medicine is inexplicably truncated, and LTC Bxxxxxxxx makes no recommendations to the deciding official (CG, TAMC)

	c.  Factual inconsistencies are not explained and the findings of the investigation are not sufficiently supported by reliable evidence.

* it is alleged the endocrinology doctor heard the applicant call her a "fxxxxxxx bxxxx" but she does not affirm this in her statement
* the investigation supposedly establishes an interaction occurred between the medical assistant and the applicant in June 2010, but no appointment records were retrieved to substantiate this and the medical assistant does not mention it in her statement
* it is further stated the applicant came to the Endocrinology Clinic in February demanding medications, but no medical records or appointment logs are pulled to validate this; the medical assistant also makes no mention of this alleged interaction in her statement
* LTC Bxxxxxxxx asserts the applicant claimed he had had no medications for 3 months, but no records of what medications were prescribed, and when they were prescribed, were pulled for inclusion in the investigation

	d.  LTC Bxxxxxxxx claims to reach his findings based upon the preponderance of evidence.  This can only be valid, however, when evidence from all sides has been gathered; exculpatory and mitigating evidence were not included.

	e.  There were due process and constitutional violations.  At no time was the applicant afforded his rights under Article 31 of the Uniform Code of Military Justice or the Fifth Amendment of the U.S. Constitution.  This is a right that would have been protected had LTC Bxxxxxxxx followed the investigative standards within Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).  In spite of the fact he was not warned of his rights, the statements made by the applicant are used against him by the Chief of Medicine, his rater, and others.

	f.  The Chief of Medicine appears to have exerted unlawful command influence.  She initiated the investigation (conducted by LTC Bxxxxxxxx) via written complaint, then tainted it by conducting her own investigation which included both identifying witnesses and interviewing them.  She took on a completely improper advocacy role when she attempted to rebut what the applicant said, then procured witness statements to bolster her contentions.  She had a motive to attack the applicant's character because he had filed an Interactive Customer Evaluation (ICE) complaint against her department.

	g.  Unfair targeting occurred.  

* LTC Bxxxxxxxx's investigation discusses evidence of malpractice, poor customer service, and at least one violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
* the applicant filed complaints but they were never investigated
* the evidence of the above three issues would provide a motive for the Chief of Medicine and her staff to make a counter complaint against the applicant, would potentially disqualify LTC Bxxxxxxxx as an investigating officer because he was the TAMC CJA, and would offer mitigating evidence for the applicant



	h.  Improper legal review.

* there is no evidence a review for legal sufficiency was included with the documents concerning this incident
* the person conducting the investigation was also the CG's legal advisor (and the applicant's intermediate rater); were a review done, it would have been performed by a rated subordinate to LTC Bxxxxxxxx; an impartial review was therefore impossible

	i.  There were mitigating circumstances.

* the applicant was sick, both chronically and acutely
* despite this fact, no evaluation of his medical records was done to determine the effects of his illness, as well as the medications he was taking, on his temper and emotions
* Dr. Kxxxxxxx was incompetent and unprofessional
* the Pharmacy OIC confirmed Dr. Kxxxxxxx cancelled the applicant's medications
* for her (Dr. Kxxxxxxx) to then claim she had done all she could and then say the patient (the applicant) should come back another time was unprofessional and improper
* her behavior, coupled with his health problems, should mitigate the applicant's angry reaction to being treated rudely and in a manner that jeopardized his health
* the applicant's good qualities are apparently not considered 
* as a civilian lawyer, he had successfully litigated important civil and criminal cases; as a military officer he had always received good OERs and received a number of awards

22.  In his second letter, counsel argues, in effect:

	a.  The referred OER, given to the applicant for the period 1 June 2010 through 31 May 2011, was based on a single incident and was supported solely by an unofficial, biased, and incomplete investigation by the TAMC CJA (his intermediate rater).

	b.  While the applicant has since separated from the Army, this OER remains a blemish on his record.

	c.  Even at its worst, his behavior was nothing more than that of a stressed-out Soldier.  If every Soldier who had a similar outburst received a referred OER, many of us would have received one at some point during our careers.  Basic fairness suggests the OER should be corrected or removed.
23.  Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, establishes the policies and procedures and serves as the authority for preparation of the OER.  

	a.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

	b.  Paragraphs 2-12 (Role of the Rater), 2-14 (Role of the Intermediate Rater), and 2-15 (Role of the Senior Rater) outline requirements for the respective raters.  Each states the respective rater will assess the performance of the rated Soldier using all reasonable means, to include personal contact, records, and reports as well as information provided by the rated officer. 

	c.  The regulation also provides that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER, the applicant must produce evidence that clearly and convincingly overcomes the aforementioned presumptions and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

	d.  Paragraph 3-23 (Unproven Derogatory Information) states no reference will be made to an incomplete investigation (formal or informal) (emphasis added) concerning a Soldier.  Any verified (emphasis added) derogatory information may be entered on an evaluation.  

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the referred OER given to the applicant for the period 1 June 2010 through 31 May 2011:

* resulted from a single incident, occurring on 4 March 2011 in the Endocrinology Clinic, TAMC
* was solely based on unofficial, biased, and incomplete investigation conducted by the TAMC CJA (who was also the applicant's intermediate rater)
2.  Counsel therefore requests all negative language be removed from the OER, so that it will reflect the applicant's otherwise satisfactory performance

3.  In support of his contentions, counsel argues:

* the applicant was never informed of his rights
* the investigating officer failed to follow proper procedures 
* the investigation was riddled with errors

4.  In evaluating the arguments and evidence, the following is noted:

	a.  The three arguments are not supported by the evidence.

* rights notification is required when legal actions are a potential result; although the applicant may not have been informed of his rights, this action was administrative in nature thus was not held to that legal standard
* in preparing their written comments, raters are empowered to draw from records and reports; they are not restricted only to sources of information done under the provisions of Army Regulation 15-6
* the informal inquiry conducted by the CJA was not conducted under the provisions of Army Regulation 15-6, thus was not held to the standards outlined in that regulation
* the inconsistencies pointed out in Counsel's memorandum, dated 22 August 2013, do not affect or invalidate the description of the applicant's behavior which served as the basis for the referred OER, much of which, in substance, he confirms

	b.  Counsel provides no evidence that the investigation he cites, summarized in the CJA's memorandum, dated 21 March 2011, is the sole source for the negative comments in the referred OER.  In fact, the available evidence shows at least one additional informal inquiry, that done by Dr. Dxxxxxx, the Chief of Medicine, TAMC.  Dr. Dxxxxxx collected statements/memorandums for record from those who were present and participated in the incident as it occurred in the endocrinology clinic.  These statements/memorandums for record were included in the documentation for both the OER and the GOMOR.

	c.  The regulation states any verified (emphasis added) derogatory information may be entered on an evaluation.  The negative statements on the OER are verified based on those four signed statements.  


	d.  Neither Counsel nor the applicant provides statements from other witnesses that counter the four statements identified above.  The only evidence in the form of a statement from a witness offered by Counsel is that of the Pharmacy OIC.  The Pharmacy OIC states the applicant was professional in his dealings with the Pharmacy, but does not address his behavior in the Endocrinology Clinic.

	e.  Though he claims mitigating circumstances, the applicant affirms he used obscene language and acted inappropriately, based upon his retelling of what occurred.

	f.  In his rebuttal to the OER, the applicant made reference to a commander's inquiry, EO, and IG investigation, but offers no evidence of the outcomes of those inquiries/investigations.

4.  Despite the frustrating patient support the applicant received and the ineffective handling of his prescriptions, the applicant's behavior was unbecoming of an officer and the potential mitigating factors pointed out by both Counsel and the applicant do not serve to outweigh his bad behavior.  Neither Counsel nor the applicant have provided the clear and convincing evidence of a strong and compelling nature that would support a finding that an administrative error or factual inaccuracy took place.

6.  Based upon the foregoing, there is insufficient evidence upon which to base the granting of the relief requested.

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)                                         AR20140012835



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ABCMR Record of Proceedings (cont)                                         AR20140012835



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