IN THE CASE OF:
BOARD DATE: 20 October 2015
DOCKET NUMBER: AR20150011627
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. He does, however, request to personally appear before the Board.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests
a. Removal of the following documents from the applicant's official military personnel file (OMPF):
* Memorandum of Reprimand (MOR), dated 22 August 2011
* two referred officer evaluation reports (OER), covering the periods 24 August 2010 through 9 June 2011 and 10 June 2011 through 17 October 2011, respectively
* documents related to the initiation of elimination action, dated 8 December 2011 (listed in his OMPF as "Authenticated Extract Compltd Investigation Rpt Result Elim/Discip")
* written findings of the Department of the Army Suitability Evaluation Board (DASEB)
* all documents related to the applicant's temporary suspension of security clearance
* all documents related to the late completion of patient encounter notes in the Electronic Medical Record (EMR) system (later referred to as the Army Health Longitudinal Technology Application (AHLTA))
b. In the event the Board grants the requested relief after the convening of the colonel promotion board, counsel requests the applicant's file be submitted for consideration by a Special Selection Board (SSB).
2. Counsel states, in effect:
a. Statement of Relevant Facts:
* the applicant has served his country honorably in an active duty status for over 12 years
* his first period of active service was in 1990 after transitioning from the U.S. Air Force (USAF) Reserve Officers' Training Corps
* In 1991 he entered the inactive Ready Reserve and remained there as he pursued his medical degree
* after receiving financial assistance from the USAF, he entered active duty with the USAF as a psychiatrist in 2001; he was released from active duty in May 2007 in the rank/grade of lieutenant colonel (LTC)
* later that same year he joined the Minnesota Air National Guard; he went into private practice as a psychiatrist
* owning his own practice was difficult and caused him to have severe financial problems; this led to a poor credit rating and later to bankruptcy
* in February 2010, he entered the Army with a direct commission as an LTC
* he enrolled in and completed the Basic Officer Leaders Course (BOLC) and the Captain's Career Course
* his first duty assignment was Vilseck, Germany where he managed 34 employees who served a population of more than 8,500 Soldiers and family members
* his OER (covering the period 23 April 2010 thru 23 August 2010) noted his professionalism, expertise, and excellent ability to step in and manage his staff; his rater further stated he had unlimited potential and should be promoted to colonel (COL)
* the applicant's senior rater joined in the opinion of the rater indicating the applicant was "Best Qualified" and was a "key clinician-leader" who should receive challenging assignments which demanded strong leadership, complex problem-solving skills, and innovation; 9 months later, the applicant's command became frustrated with his inability to obtain a secret security clearance
* while still at BOLC, an agent from the Criminal Investigation Command (CID) interviewed him regarding his finances; he was honest about his financial situation, but at that point he had not yet filed for chapter 11 bankruptcy
* the investigation fully reviewed the derogatory credit report information and the applicant discussed his plans to mitigate his financial problems
* while at his first assignment in Germany, the applicant's security clearance came up for its 10-year review; when his credit report was pulled, the derogatory financial information resulted in the suspension of his security clearance, and it remained in that status until March 2012
* the applicant's inability to obtain an unsuspended security clearance caused him to be removed from his position as Chief of Behavioral Health and to be given a relief for cause OER (covering the period 24 August 2010 through 9 June 2011)
* the lack of a security clearance also meant his access to EMR files was temporarily suspended; given his role as a psychiatrist, access to the EMR system was necessary for him to do his job
* he nonetheless continued seeing patients; his support staff printed EMR patient notes so he would have visibility of recent updates, any progress reflected, and what medications had been prescribed
* the applicant provided updates to EMR patient files by preparing his notes in Word; he was told his notes would be scanned into the respective patient's EMR file by Patient Administration Division (PAD) employees; the PAD employees, however, did not scan the notes
* as a result of the notes not being scanned, the applicant accumulated about sixty or seventy delinquent updates to the EMR (typically, a note is considered delinquent if it is not posted in the record within 3 business days of the patient encounter; these updates became months late (emphasis added)
* the applicant requested and was granted a 6-month exception to policy which enabled him to regain access to the EMR system; he immediately worked double-time to complete both new notes and those that were delinquent
* on 10 June 2011, the applicant was instructed by his commander to transfer and close out 35 delinquent notes over the weekend; despite his best efforts, he was only able to close out 25 delinquent notes
* those open notes served as the basis for his MOR, which he received on 22 August 2011 (from Commander, U.S. Army Medical Activity (MEDDAC), Bavaria, COL RLG)
* the MOR alleged the applicant had received "repeated counseling from [his] Commander regarding the importance of closing out these open encounters" and that the applicant "continued to show a lack of regard for the policies and procedures enacted by the medical community"
* the MOR further stated the applicant's "gross indifference to the policies [had] exposed his patients to severe risk"
* actually, the applicant was not showing a disregard for policies and procedures; he was prevented from entering the notes due to his lack of access
* when he had access, he worked extra hours to enter the backlogged notes while still seeing patients
* a second and final exception allowing him access to the EMR system was granted on March 2011; this access expired on 18 October 2011
* after his second exception expired, the applicant was removed from all clinical care and reassigned to an administrative job under a different supervisor
* on 8 December 2011, a show-cause elimination action was initiated based on the applicant's alleged:
* repeated failure to obey his commander's lawful orders to close all open patient encounters
* complete disregard for the policies and procedures enacted by the medical community in order to protect the health and safety of patients
* inability to obtain a Secret security clearance
* a few months after his relief for cause OER and the initiation of the show-cause action, the applicant successfully filed bankruptcy and his security clearance was restored
* this action resulted in his commander (COL RLG, Commander, MEDDAC, Bavaria) indicating the applicant had resolved his issues and was once again a valuable member of the medical community [this was the same commander who had administered the MOR, and he wrote these comments in a request to withdraw the show-cause elimination action]
* the applicant's OER, for the period 18 October 2011 through 14 September 2012, noted the applicant had "performed superbly while serving as Chief of Behavioral Health"
* this same OER covered the period during which the show-cause board action had been initiated and the relief for cause OER was given [sic, relief for cause OER covering the period 24 August 2010 through 9 June 2011; the applicant signed the relief for cause report on 24 August 2011]
* the applicant remained in this leadership role [Chief, Behavioral Health] until June 2014; while there he deployed with his unit to Afghanistan from September 2012 to March 2013 and was awarded the Bronze Star Medal for his service
* besides the Bronze Star Medal, the applicant has received numerous awards and accolades, to include recognition for creating a best practice and managing his department so as to achieve and exceed standards
b. Basis of Appeal.
(1) The MOR was contrary to law.
* while the DASEB found insufficient evidence to justify removal or transfer to the restricted file of the applicant's OMPF, a review of the timeline of events clearly reveals the contents of the MOR were unsupported by the evidence
* the applicant's actions do not amount to an offense under the Uniform Code of Military Justice (UCMJ)
* the MOR stated he had violated a lawful order, was derelict in his duties, and his conduct was unbecoming an officer
* as to the violation of a lawful order, one cannot "willfully" have failed to obey an order to perform a duty unless there is first an awareness of the requirement to perform that duty, an understanding of what is to be done, and, then, with this knowledge, a deliberate omission or failure to perform that duty
* counsel cites the case of United States v. Ferguson, 40 Military Justice 823, (Navy-Marine Corps Court of Military Review, 1994) [counsel does not clarify the particular point of law being referenced and does not provide a copy of the case, but apparently is inferring a contention that an omission must be deliberate]; "willfully" means intentionally and refers to the doing of an act knowingly and purposely, specifically intending the natural and probable consequences of the act (citing the Manual for Courts-Martial (MCM), 2012, Part IV (Punitive Articles), paragraph 16c (Explanation) subparagraph (3)c (Dereliction of Duty - Derelict [term defined])
* the applicant did not willfully or deliberately fail to follow a lawful order; when he lost access to the EMR, he wrote his notes in Word and PAD employees were to scan them into the individual EMR records
* the employees failed to perform this task, which brings the basis of punishment into question because the command [by virtue of the PAD employee's negligence] was actually responsible for causing the notes to be delinquent
* the applicant acknowledges several notes were past the required 3-day time limit but they were late because he did not have access to EMR and, thus, he was not capable of complying with that requirement
* he was informed PAD employees would scan his notes into the EMR system and, when that did not happen, the applicant took immediate action to close those notes as soon as he regained access
* when ordered to close out his remaining 35 notes, he closed all but 7; he was not able to close out these remaining notes in the time he was given
* his actions demonstrated he tried, to the best of his ability, to comply with his commander's order and what occurred resulted from an inability to comply rather than an intentional disregard
* similarly, the applicant's actions do not amount to a violation of Article 133 (Conduct Unbecoming an Officer and Gentleman), UCMJ
* Article 133 requires a commissioned officer to intentionally fail to fulfill his duty [sic, element of proof for this Article, as stated in the MCM, does not specify a requirement to show intent]
(2) The MOR, referred OERs, and initiation of show-cause were unsupported by evidence and inappropriate for his conduct.
* there is no evidence the applicant intentionally ignored Army policy when he did not close out the notes
* to support the MOR and referred OERs, the preponderance of evidence would need to show he intentionally omitted the performance of his duty to close the notes
* the evidence instead shows he accomplished his notes on a Word document in a timely manner, as required by policy; but they were not entered into the EMR because he did not have access
* the failure of the notes to be entered resulted not from the applicant ignoring Army policy, but from the failure of the staff to accomplish this task
* when he was ordered to enter those notes the staff had failed to add, he tried his best within the time provided
* further, as supported by his OERs, there was no evidence suggesting the applicant had an issue entering notes either before or after this time period
* it was the backlog and his inability to access the EMR that led to his alleged misconduct
* the applicant acknowledges his command was placed in a difficult position as he could not perform his job, but to allow the MOR and the initiation of elimination packet to scar his otherwise commendable service would be unjust
(3) The MOR, OERs, and Show-Cause initiation were pretextual for his security clearance issues.
* the DASEB determined the applicant failed to provide evidence showing the MOR was motivated by the temporary suspension of his security clearance
* the suspension of his security clearance was an unfortunate circumstance which placed the applicant's command in a difficult position
* the applicant's commendable service prior to and after the MOR as well as the initiation of elimination action, followed by the withdrawal of elimination action calls into question the basis of the MOR
* his service shows the alleged misconduct was, at most, a misunderstanding; had his conduct been egregious, the elimination action would not have been withdrawn
* in his request to withdraw the elimination action, the commander who imposed the MOR wrote "[the applicant] has resolved his security clearance issues and is a vital provider in our healthcare operations; he has become a valued asset to the medical community and lifting this burden will benefit him and our medical unit"
* this language suggests, contrary to the findings by the DASEB, the suspension of his security clearance gave rise to the MOR and the initiation of elimination action
* this stands as further evidence that the MOR was essentially pretextual in nature stemming from the lack of a security clearance
(4) The applicant's two referred OERs were erroneous.
* Army Regulation (AR) 600-37 (Unfavorable Information) prescribes policies and procedures regarding the placement of unfavorable information in individual personnel files; information that is unsubstantiated, irrelevant, untimely, or inaccurate are not to be filed
* the two referred OERs contained comments which were unsubstantiated, inaccurate, and not relevant to the applicant's duty performance
* both OERs made comments regarding the suspension of the applicant's security clearance
* chapter 4 of AR 600-37 states commanders shall not include security clearance information in a Soldier's professional file without the preapproval of the DASEB; neither the rater nor the senior rater obtained such permission
* the statements made as to the time required by the applicant to resolve his suspended security clearance are irrelevant to the OER and are prejudicial considering he was successful in reinstating his security clearance
* a Soldier experiencing difficulties renewing his security clearance is typical and should not serve as a basis for determining promotion or retention in the Army
* the OERs contained inaccurate statements with regard to the applicant's inability to close all notes in the EMR system in that they reflect the applicant intentionally disregarded Army policy; no mention was made of the circumstances (i.e. inability to access the EMR system)
* continuing to include these comments on the two referred OERs is prejudicial
* in his response to the relief-for-cause OER, the applicant pointed out he was removed from a position for which he had never been officially appointed; the OER also omitted numerous significant accomplishments
* the foregoing and reasons noted by the applicant provide sufficient basis for removing OERs from his file
(5) The intended purpose of these documents has been served.
* the applicant acknowledges and sincerely regrets his command found itself in an untenable situation when his security clearance was suspended and his two periods of exception (and with them, his access to EMR) expired
* once his clearance was reinstated, however, he continued to serve with an unblemished and outstanding record
* although the financial issues which gave rise to the unfavorable information in his file were within his control, he could not have foreseen the security clearance issues that would follow him in his assignment and new role in Germany
* the applicant's request to remove the MOR and OERs, as well as the other related documents, is supported by every commander since his security clearance was reinstated (counsel provides quotes from former and current commanders as well as officers and a civilian with whom he served)
* these testimonials serve as corroboration that the purpose of the unfavorable information in his OMPF has been served
(6) Removing the OERs, MOR, and all items related to the initiation of his separation packet serves the best interests of the Army.
* AR 600-37 provides for the removal of unfavorable information from official personnel files when it is in the best interests of the Army
* retaining the applicant and promoting him to COL is in the best interests of the Army; the continued presence of the disputed documents in his OMPF is unjust
* since receiving the MOR and the two referred OERs, the applicant has worked extremely hard to overcome their effects
* the adverse impacts of these documents include:
* removal from consideration for promotion to COL below the zone
* he was considered but not selected by his primary board
* he was denied the opportunity to compete for the position of Deputy Commander for Clinical Services at Fort Sill
* COL TC, Medical Corps Branch Chief, indicated she would not/could not recommend the applicant to Major General (MG) SJ, Medical Corps Chief, given the current derogatory record
* she stated further the applicant had strong potential for continued service in the Army if the MOR and OERs were removed
* if the derogatory records were not removed, he would again not be considered for selection for promotion by the Fiscal Year (FY) 2015 COL selection board to be held 2 September 2015 to 3 September 2015
* being passed over for promotion twice may trigger another show-cause board and elimination from the Army
* the applicant has already suffered inordinately from receiving the MOR and the referred OERs because he was removed from his leadership position, was noncompetitive during two previous promotion boards, flagged, and professionally embarrassed
* despite these difficulties, he has continued to perform exceptionally well as the Chief of Behavioral Health at two facilities
* he is clearly among the best officers and leaders in today's Army, as supported by multiple OERs which rate him:
* "the best Behavioral Health Provider I have served with in my 25 years in the Army"
* "#1 Psychiatrist I have worked with in my Army career"
* "Best Psychiatrist I have worked with in my 27 years of active military service"
* "Among the Best"
* "must promote to colonel"
* denying the Army one of its top-ranked psychiatrists, who has sought to save lives on the battlefield and significantly improved the lives of Soldiers returning with post-traumatic stress disorder (PTSD), depression, and suicidal thoughts, would be a disservice to the Army
* moving the disputed documents to the applicant's restricted file would not address the applicant's request because AR 600-8-104 (Military Personnel Information Management/Records) requires boards, to include promotion boards, to review the restricted file; the continued presence of these documents is unjust
(7) Disparate Treatment.
* the equal protection component of the Due Process Clause of the Fifth Amendment protects Federal employees from unconstitutionally disparate treatment
* the applicant's case is similar to two Army Board for Correction of Military Records (ABCMR) cases (ABCMR Docket Numbers AR20050007123 and AR20110007885, respectively) where the removal of documents was granted
* to treat the applicant differently would cause disparate treatment
(8) Should the Board not reach a decision on his case in time for the FY 2015 COL selection board in September, he requests promotion reconsideration by a special board.
3. Counsel provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 May 2007 showing release from the USAF
* DA Form 4037 (Officer Record Brief)
* seven OERs covering the period 23 April 2010 through 11 April 2015
* seven diplomas and certificates of residency
* three letters regarding the applicant's bankruptcy
* MOR
* memorandum, dated 8 December 2011, from Seventh U.S. Army Joint Multinational Training Command, addressed to the applicant, subject: Initiation of Elimination
* memorandum, dated 23 August 2012, from Seventh U.S. Army Joint Multinational Training Command, addressed to the applicant, subject: Discontinuation of Board of Inquiry (BOI) for [applicant]
* Bronze Star Medal award certificate
* six letters of support
* two ABCMR Records of Proceedings (ROP) for AR20050007123 and AR20110007885, respectively
CONSIDERATION OF EVIDENCE:
1. As to the request to remove all documents related to the applicant's temporary suspension of security clearance and all documents related to the late completion of patient encounter notes in the EMR, the only documents in the applicant's OMPF which include this information are those for which the applicant has already requested removal (i.e. the MOR, referred OERs, and the elimination action). This portion of the applicant's request will be considered subsumed and incorporated into the request to remove the other cited documents, and will not be further addressed.
2. After having had prior service in the USAF as an LTC and psychiatrist and in the Minnesota Air National Guard, the applicant was appointed as a Regular Army Medical Corps commissioned officer in the rank/grade of LTC. He executed his oath of office on 1 February 2010. He is currently serving on active duty in the rank of LTC.
3. During November 2010, the applicant received his initial OER which covered 4 months of rated time during the period 23 April 2010 through 23 August 2010. He was serving as a psychiatrist. His rater was COL GJL, Commander, U.S. Army Health Clinic (USAHC), Vilseck, and his senior rater was COL SJB, Commander, MEDDAC, Bavaria.
a. In Part IVa (Army Values), the rater selected "Yes" for all categories.
b. Part IVb (Leader Attributes/Skills/Actions) had no negative boxes checked.
c. Part Va (Performance and Potential Evaluation (Rater) - Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) showed the block for "Outstanding Performance, Must Promote" had been checked. The rater's comments were positive and included:
* [the applicant's] transition into the Army as Chief, Behavioral Health (BH) was marked by professionalism and expertise
* he aggressively assumed his responsibilities by attending all mandatory classes to supervise and manage a staff of 34 Civilian staff members
* he collaborated with tenant units to ensure continuity of BH support
* he has begun to build his own patient population while monitoring care provided throughout the department
d. In Part Vc (Comment on Potential for Promotion), the rater commented the applicant had unlimited potential and should be promoted to COL.
e. In Part VIIa (Senior Rater - Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Best Qualified" block.
f. In Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the senior rater rated the applicant "Center of Mass (COM)."
g. In Part VIIc (Comments on Performance/Potential), the senior rater included the following comments:
* outstanding performance by one of Bavaria MEDDAC's key clinician-leaders
* his drive, clinical expertise, and leadership enabled his clinic to provide superb BH support
* he has unlimited potential
* manage his career with challenging assignments that demand strong leadership, complex problem-solving skills, and innovation
* he should be sent to Intermediate Level Education in residence and should be promoted to COL
4. A DA Form 4856 (Developmental Counseling Form), dated 18 April 2011 and prepared by his commander, COL GJL (his rater on his initial OER), showed the following:
a. The key points of discussion were:
* item 1 - lack of supporting documents to obtain secret security clearance since his arrival at the unit on 9 April 2010 (emphasis added); the applicant was required to keep his commander informed as to his progress in resolving his financial difficulties
* item 2 - withdrawn IM/IT access (apparently referring to information management/information technology access); without IM/IT access the applicant could not see patients and perform assigned duties; a recent waiver allowed him access to medical and Army networks, and he was admonished that it was incumbent upon him to maintain his network access
* item 3 - inability to perform duties as Chief, Behavioral Health (BH) and practicing psychiatrist due to the lack of a security clearance; he was therefore removed from duties as Chief, BH (emphasis added)
* item 4 - low work-load productivity, the applicant had not produced the same level of work as other psychiatrists; he was expected to handle the appropriate level of work and document all encounters within 72 hours
b. The plan of action stated the applicant:
* should continue efforts to obtain a security clearance
* was removed as Chief, BH
* could be considered for separation as a result of the absence of a security clearance
* could be subject to the recovery of past specialty pay and the stopping of future specialty pay
c. The applicant agreed with items 1 through 3, but in regard to item 4, stated he was responsible for supervising a staff of over 30 personnel, which significantly curtailed any availability to see patients (emphasis added).
5. A DA Form 4856, dated 20 May 2011 and prepared by his commander, COL GJL, showed the following:
a. The key points of discussion were stated as:
* item 1 - as an update on the status of obtaining a secret security clearance, the applicant had advised his commander he would not be filing bankruptcy based upon his attorney's advice; he was reminded that as long as he lacked a security clearance, he did not meet the requirements to be an officer in the Army and was directed to continue to make monthly payments to all of his creditors
* item 2 - regarding the storage of personal health information (PHI) on a personal computer, the applicant had told his commander he did not have any PHI on his personal computer
* item 3 - he was directed to maintain the 72-hour timeframe to close all patient encounters; he had been informed he had outstanding patient encounters by both the commander and by Mr. O (whose role was not identified) and was advised this was a mandatory requirement
* item 4 - he was removed from his position as Chief, BH by COL SJB, Commander, MEDDAC, Bavaria on 18 April 2011; following this the applicant had been given a template for patient scheduling and it was mandatory to adhere to that template
* item 5 - his request to be considered for the Non-Centralized Selection List Command was not going to be supported at that time
b. The plan of action stated the applicant would:
* make progress to obtain a security clearance
* maintain daily templated patients
* document all encounters by the end of the day and close all encounters within 72 hours
* not place any PHI on his personal computer
c. The applicant agreed without comment.
6. A DA Form 4856, dated 10 June 2011 and prepared by his commander, COL GJL, stated, in effect:
a. The key points of discussion were stated as:
* the applicant had been directed to maintain the 72-hour timeframe to close all patient encounters in counseling dated 18 April 2011 and 20 May 2011
* he had also been informed he had outstanding open encounters by the Commander, MEDDAC, by his commander (COL GJL), and by
Mr. O; despite this he had maintained a balance of open encounters beyond the 72-hour standard
* continued conduct of this nature could result in administrative action, to include separation from the service and/or punitive action under the UCMJ
b. The plan of action stated the applicant was required to:
* document all encounters by the end of the day, and close out all encounters within 72 hours
* request any assistance required from Mr. O or COL GJL in order to maintain this standard (emphasis added)
* close out all open encounters not later than (NLT) close of business (COB) Monday, 13 June 2011 (emphasis added)
c. The applicant provided the following comment:
"The difficulties in closing older notes occurred because of reintegration (apparently referring to the reintegration of over 4,000 Soldiers, as noted in the rater comments of his OER for the period 4 August 2010 through 9 June 2011) and heavily utilized BH services during this time. Projected time of closure of notes is before 13 June 2011." (emphasis added)
7. The applicant received a relief-for-cause/referred OER for the period 24 August 2010 through 9 June 2011. This report covered 9 months of rated time. He was serving as a psychiatrist. His rater was COL GJL, Commander, USAHC, Vilseck, and his senior rater was COL SJB, Commander, MEDDAC, Bavaria (same as for his initial OER).
a. In Part IVa, the rater selected "Yes" for all categories with the exception of Selfless Service where the "No" block was checked.
b. Part IVb, has no negative boxes checked.
c. Part Va shows the block for "Unsatisfactory Performance, Do Not Promote" has been checked. The rater's comments essentially stated:
* the applicant provided psychiatric care with compassion and professionalism; he is one of the few child psychiatrists in the organization
* he served as the clinic's BH Re-Engineering Systems of Primary Care Treatment in the Military (RESPECT.MIL) champion and implemented RESPECT.MIL during reintegration processing of over 4,000 Soldiers (emphasis added)
* though qualified to provide quality clinical care, he did not maintain compliance with documentation of care provided by closure of medical encounters within the 72-hour standard, nor did he maintain a template of patients to achieve productivity targets (emphasis added)
* despite working nearly a year to resolve his personal matters, he was unsuccessful in obtaining an unsuspended secret security clearance (emphasis added)
d. In Part Vc, the rater commented the applicant had potential.
e. In Part VIIa, the senior rater placed an "X" in the "Do Not Promote" block.
f. In Part VIIb, the senior rater rated the applicant "Below Center of Mass (BCOM)."
g. In Part VIIc, the senior rater's comments stated, in effect:
* the applicant was a compassionate and caring psychiatrist who provided valuable BH to his community
* he was competent and fully qualified with a clinical expertise which was beyond reproach
* in spite of his clinical strengths, the applicant fell short in maintaining established documentation and productivity standards
* having been provided nearly a year, to include significant duty time, to address personal issues, he failed to meet Army requirements for a security clearance (emphasis added)
* as a result, the senior rater relieved him from his position as Chief, BH
* he is a newly accessed officer who requires further mentoring
8. On 29 August 2011, the applicant provided his response to the relief for cause OER. His rebuttal, in essence, made the following points:
* his productivity targets were intentionally decreased to allow him to function as the BH Chief and as a result of his inability to access the EMR system (emphasis added)
* he was allowed to continue seeing patients at a reduced pace (emphasis added)
* his first rating stated his performance was outstanding, that he was best qualified, and that he should be promoted; he received these ratings despite the limitations described above
* the Army Central Clearance Facility (CCF) agreed to temporarily halt the applicant's security clearance investigation so as to allow him to take the necessary steps to reacquire his secret security clearance; because MEDDAC had no uniform policy on how to handle cases like his, he experienced delays in regaining system access
* he was relieved from a position to which he had never been officially appointed
* the applicant also enumerated numerous accomplishments that were not included in the OER, but, in his view, should have been
9. In a memorandum, dated 28 June 2011, addressed through the Commander, MEDDAC, Bavaria, to the Commander, 7th U.S. Army Joint Multinational Training Command (7th Army JMTC), the applicant's commander, COL GJL, recommended he receive a general officer memorandum of reprimand as well as nonjudicial punishment, under the provisions of Article 15, UCMJ, to be administered by a general officer.
a. She stated the basis of her request was that she had repeatedly counseled the applicant on the importance of closing out patient encounters in AHLTA. As of the date of her memorandum, the applicant had open encounters dating back to mid-June 2011 (emphasis added).
b. Additionally, on 10 June 2011, she had ordered him to close all open encounters NLT COB 13 June 2011 and was informed that, as of 15 June 2011, he had not complied (emphasis added).
10. A memorandum, dated 8 July 2011, shows COL BLR assumed command of the 7th Army JMTC. On 3 August 2011, COL BLR, as the general court-martial convening authority (GCMCA), released jurisdiction of the applicant's case to the Commander MEDDAC, Bavaria (emphasis added).
11. On 22 August 2011, the Commander, MEDDAC, Bavaria, COL RLG, gave a memorandum of reprimand to the applicant. He was reprimanded for violating a lawful order, dereliction of duty, and conduct unbecoming of an officer. It stated, in pertinent part:
It has been reported to me that you failed to obey a lawful order from the Commander of the U.S. Army Rose Barracks Health Clinic (identified earlier as USAHC, Vilseck). On 10 June 2011, the Commander, U.S. Army Rose Barracks Health Clinic, specifically directed you to close out all of your open encounters NLT COB 13 June 2011. On 15 June 2011, she was notified that you still had at least eight open encounters dating back from 7 June 2011. Despite repeated counseling from your Commander regarding the importance of closing out these open encounters, you continue to show a lack of regard for the policies and procedures enacted by the medical community; policies and procedures which protect the health and safety of your patients. Your gross indifference to these policies has exposed your patients to severe risk (emphasis added). Your failure to abide by mandatory reporting procedures displays a callous attitude towards your patients and exposes them to unnecessary risk. Your misconduct is a significant breach of personal and professional discipline for a senior commissioned officer in the U.S. Army. (emphasis added) This reprimand is imposed as an administrative measure under the provisions of AR 600-37 and not as punishment under Article 15, UCMJ. I am considering requesting that the Commander, 7th Army JMTC, file this memorandum in your OMPF. (emphasis added)
12. On 1 September 2011, the applicant acknowledged receipt of the memorandum of reprimand and elected not to submit statements or documents in rebuttal.
13. On 12 October 2011, the Commander, MEDDAC, Bavaria, COL RLG, recommended the Commander, 7th U.S. Army JMTC, COL BLR, file the MOR in the applicant's OMPF. On 2 November 2011, the Commander, 7th U.S. Army JMTC, COL BLR, directed the MOR be permanently filed in the applicant's OMPF.
14. The applicant received a change of duty, referred OER for the period 10 June 2011 through 17 October 2011 covering 4 months of rated time. He was serving as a psychiatrist. His rater was LTC JCR, Commander, USAHC, Vilseck, and his senior rater was COL RLG, Commander, MEDDAC, Bavaria.
a. In Part IVa, the rater selected "Yes" for all categories with the exception of "Duty" where the "No" block was checked.
b. Part IVb had no negative boxes checked.
c. Part Va showed the block for "Unsatisfactory Performance, Do Not Promote" had been checked. The rater's comments essentially stated:
* the applicant served as a psychiatrist for his assigned community, and also travelled to the Ansbach area to provide adult, adolescent, and child BH services
* he created and implemented a Bavaria-wide high risk/high interest list of Soldiers who were receiving BH treatment so as to allow greater visibility of these Soldiers and ensure better access to care
* his actions improved shared clinical patient knowledge amongst providers as well as access to BH services
* despite his clinical contributions, he was unable to reinstate his secret security clearance and his exception to policy to remain on DoD information system expired (emphasis added)
* he was unable to use Department of the Army medical systems to provide clinical care or carry out functions required as an Army psychiatrist
d. In Part Vc, the rater commented the applicant did not appear to have potential at that time.
e. In Part VIIa, the senior rater placed an "X" in the "Do Not Promote" block.
f. In Part VIIb, the senior rater rated the applicant "BCOM."
g. In Part VIIc, the senior rater included the following comments:
* the applicant was a highly competent and caring physician who provided excellent clinical services to 19,000 Soldiers and family members
* he served admirably as the RESPECT.MIL BH provider
* his secret security clearance was suspended in July 2010 (emphasis added) and he was previously granted two 6-month temporary extensions to enable him to be on Army information systems
* at the time of the report, he had failed to regain his secret security clearance and, on 18 October 2011, he was removed from all U.S. Army and other governmental information systems
* as a result, he was no longer able to perform his clinical duties
* based on his security clearance situation, he did not possess the potential for future service; do not promote, do not send to any military schools, do not place in supervisory positions, and do not retain
15. In a memorandum for record, dated 27 December 2011, the applicant provided his response to the referred OER. He essentially stated:
* the report failed to mention he served as the RESPECT.MIL BH champion
* the report did not state the applicant was consistently the top relative value unit (RVU)-producing psychiatrist of all MEDDAC, Bavaria clinics (RVU is a nationally standardized scale used by Medicare to reflect the time to perform a service, the technical skill required, and the mental effort of the provider)
* the report omitted the positive feedback received by the applicant from patients
* in the referenced timeframe, the applicant fulfilled all professional, legal, and moral obligations in relation to the Army value of "Duty"
* he volunteered his services when the provider who was supporting a remote satellite clinic deployed; this required him to provide his own transportation and fuel to commute about 300 kilometers (about 186 miles) once a week
* based upon the foregoing, it was illogical to evaluate the applicant's performance as unsatisfactory
* the assertion is false that he failed to complete the necessary steps to reinstate his secret security clearance; his security clearance was suspended, not revoked
* he had been diligently working with his attorney, Army CCF, and his local security office to resolve the matter; resolution was expected shortly
* the comments "do not promote, BCOM - do not retain" are either incorrect and/or based on incomplete information
* the 4-month OER appears to be motivated purely by the applicant's current temporarily suspended security clearance, and is unjust
16. On 30 November 2011, in a memorandum addressed to the Commander, 7th Army JMTC, the Commander, MEDDAC, Bavaria, COL RLG, recommended the applicant be subject to elimination in accordance with AR 600-8-24 (Officer Transfers and Discharges). He cited his basis as being the applicant's misconduct, his failure to maintain a security clearance, and the lack of potential for further service as an Army Officer.
17. In a memorandum dated 8 December 2011, the Commander, 7th Army JMTC, COL BLR, informed the applicant he (the applicant) was required to show cause for retention on active duty under the provisions of AR 600-8-24, paragraphs 4-2a (Reasons for Elimination - Substandard Performance of Duty) subparagraphs (2-5), paragraphs 4-2b (Misconduct, Moral or Professional Dereliction, or in the Interests of National Security), subparagraphs (1), (8), and (10), and paragraph 4-2c (Derogatory Information) subparagraph (5). He indicated his action was based on:
a. The applicant had been directed to close out all open encounters and, in spite of repeated counseling, had failed to do so.
b. He was given a MOR on 22 August 2011. On 18 October 2011, he was counseled regarding the loss of his security clearance, restriction from network access, and removal from clinical duties.
c. The applicant's lack of commitment to Army values cast doubt upon the applicant's future potential to adhere to those values and standards.
18. On 8 March 2012, the applicant elected to personally appear before a board of inquiry (BOI). He additionally requested representation by counsel.
19. On 6 August 2012, COL RLG, Commander, MEDDAC, Bavaria, requested the discontinuance of the BOI for the applicant. As his basis, he stated:
"[the applicant] has resolved his security clearance issues and is a vital provider in our healthcare operations. He has become a valued asset to the medical community and lifting this burden will benefit him and our medical unit."
20. On 23 August 2012, COL BLR, Commander, 7th Army JMTC, approved COL RLG's request to discontinue the BOI and elimination action initiated against the applicant.
21. The applicant received a change of rater OER for the period 18 October 2011 through 14 September 2012, covering 11 months of rated time. He was serving as Chief, BH. His rater was LTC MCC, Commander, USAHC, Grafenwoehr, and his senior rater was COL RLG, Commander, MEDDAC, Bavaria.
a. In Part IVa, the rater selected "Yes" for all categories.
b. Part IVb had no negative boxes checked.
c. Part Va showed the block for "Outstanding Performance, Must Promote" was checked. The rater's comments included:
* the applicant performed superbly; unparalleled management and leadership skill resulted in enhanced access to BH for over 10,000 beneficiaries
* during his tenure "the clinic achieved a phenomenal 52.3% increase in RVUs over the last 12 months"
* he was instrumental in the successful redeployment [and in addressing the] medical needs of over 2,000 Soldiers
* he enhanced access to care for an additional 15,000 beneficiaries in the Vilseck and Katterbach communities by using video teleconferencing for BH support
d. In Part Vc, the rater commented the applicant had unlimited potential, promote to COL.
e. In Part VIIa, the senior rater placed an "X" in the "Best Qualified" block.
f. In Part VIIb, the senior rater rated the applicant as "COM."
g. In Part VIIc, the senior rater included the following comments:
* the applicant demonstrated spectacular improvement and delivered an outstanding leadership and clinical performance
* his clinical expertise and positive leadership produced huge gains in BH access to care
* his keen use of solid management practices ensured the improvements made were sustainable
* his efforts led to vastly improved comprehensive BH for 41,000 Soldiers and families
* he had demonstrated unlimited potential; promote to COL, provide complex leadership roles, and consider for clinic command
22. On 1 July 2013, the applicant requested the DASEB remove the MOR, the two referred OERs, and the elimination action. On 10 October 2013, the DASEB determined evidence presented by the applicant did not provide substantial proof that the documents had served their intended purpose or were either untrue or unjust. As such the board voted not to remove the documents and not to transfer them to the applicant's restricted portion of his OMPF. The letter which informed the applicant his petition had been denied was filed in the performance portion of his OMPF. The DASEB's ROP and associated documents (listed as "DA Suitability Eval Board - DASEB Doc Deny/Appr Req for Removal of Advs Info DASEB") were filed in the restricted file of the applicant's OMPF.
23. The applicant provides:
a. OERs.
(1) Change of Rater for the period 15 September 2012 through 20 February 2013. His rater was COL MB, Chief, Clinical Operations, and his senior rater was COL WSD, Commander, Task Force 14 Medical.
* principal duty is Task Force 14 Medical BH Consultant
* shows he was in a deployed status during the rated period
* positive report in which rater indicates "Outstanding Performance, Must Promote" and unlimited potential, promote immediately
* senior rater shows applicant was "Best Qualified" and rated Above Center of Mass (ACOM)
* "[applicant's] performance while deployed ... was tremendous in all respects"
* he "displayed incredible vision by establishing the first ever 24/7 intra-theater Peer to Peer Crisis Hotline"
* the senior rater stated the applicant was "a clinician of the highest acumen and possesses unlimited potential"
(2) Extended Annual for the period 21 February 2013 through 11 April 2014. His rater was LTC TLH, Commander, Grafenwoehr USAHC, and his senior rater was COL EDC, Commander, MEDDAC, Bavaria.
* principal duty was Chief of BH, Grafenwoehr USAHC
* positive report wherein the rater stated the applicant was candid, forthright whose compassion and humility made him highly qualified to lead his team
* the applicants strategic vision; created and implemented a process for identifying and following "high-risk" patients which became used throughout Bavaria
* identified as proficient; excellent clinical performance with expert management of a complex team of multidisciplinary BH professionals in one of the busiest clinics in Europe
* he modified provider templates which increased provider availability by 111 percent and decreased un-booked appointments and no-shows by 4 percent and 6 percent, respectively
* the senior rater rated the applicant as "Highly Qualified" [senior rater's potential assessment shows rated officer is consistent with the majority of the officers in that grade]
* the senior rater noted the applicant achieved remarkable success and showed tremendous potential as a clinical leader
* select for COL
(3) Annual report for the period 12 April 2014 through 11 April 2015. His rater was LTC TLS, Deputy Commander of Clinical Services (DCCS) and his senior rater was COL NJC, Commander, MEDDAC, Fort Sill.
* principal duty was Chief, BH Department, Fort Sill MEDDAC
* positive report wherein the rater states the applicant's "unbridled leadership has led his department to unparalleled success
* his department exceeded standards, increased revenue generation by 5 percent, and more than doubled BH Data Portal rates to over 78 percent
* outstanding performance by the "#1 psychiatrist I have worked with in my Army career"
* the senior rater rated the applicant as "Most Qualified" [senior rater's potential assessment shows rated officer exceeds the majority of the officers in that grade]
* senior rater comments included ?stellar performance by the best psychiatrist I have worked with in my 27 years of active military service?
* the applicant was recommended for promotion to COL, showed unlimited potential, and was ready to be DCCS now
b. Two letters from the applicant's bankruptcy attorney addressed to the Army CCF. The first letter essentially states the attorney's intent to file chapter 11 (Reorganization) bankruptcy and requests a temporary security clearance. The second letter provides details and explains actions taken with creditors.
c. Letters of support.
(1) Letter from COL NJC (the applicant's senior rater for the period 12 April 2014 through 11 April 2015) wherein he wrote, in effect:
* the applicant is a phenomenal physician and clinical leader
* he was instrumental in improving multiple clinical and business metrics which have resulted in the delivery of high quality and efficient healthcare
* the applicant shared some of the adverse information in his file
* his temporary security clearance suspension and lack of access to the EMR system resulted in the negative documents now in his OMPF, but the applicant never gave up efforts to clear up his financial situation and ultimately regained his clearance
* the applicant wants to remain in the Army and the writer supports removal of the documents; he is the type of leader the Army needs
(2) Letter from COL EDC, the applicant's former commander during the period April 2013 to June 2014 while serving within MEDDAC, Bavaria. The writer was the applicant's senior rater for the OER covering the period 21 February 2013 through 11 April 2014. He essentially states:
* he found the applicant to be an outstanding clinician, officer, and leader
* he fully recovered from the personal and professional difficulties which led to the temporary suspension of his security clearance
* he stands by the comments he wrote in the applicant's OER, believes he deserves the opportunity for continued service, and should be promoted to COL as well as the chance to command
(3) Letter from Ms. JG, a former Army captain, licensed certified social worker - clinical, and currently a political appointee assigned to the Under Secretary of Defense for Personnel and Readiness. She writes:
* she first encountered the applicant in October 2012 when he reached out to the Military Crisis Line seeking support for Soldiers stationed in Afghanistan
* the applicant wrote a white paper which contained a plan to provide telephonic peer support via the Combat Operational Stress Control team in Kandahar, Afghanistan; the plan was well received by the Commanding General (CG), International Security Assistance Forces and the CG authorized a hotline to be established
* the writer went to Kandahar to operationalize this plan; the hotline changed the way suicide prevention was approached in Afghanistan
* the writer is sure lives were saved as a result of this hotline; the applicant's actions showed ingenuity, leadership, and proficiency
* he is an asset to the U.S. Armed Forces and should be permitted to remain in military service
(4) Letter from LTC (retired) GLK, former medical director at the Vilseck USAHC and peer of the applicant when both served at the Vilseck clinic. He states, in effect:
* he can attest to the applicant's character, integrity, and leadership abilities
* even during his difficulties, he put duty first and volunteered to deploy into combat; he earned the Bronze Star Medal
* while in private practice, like so many Americans, he fell victim to the real estate collapse and financial crisis that resulted in significant monetary loss and a declaration of personal bankruptcy
* the applicant expressed his remorse to the writer as well as his embarrassment associated with having to regain his security clearance
* he is an outstanding Soldier, psychiatrist, and physician; his past service, experience and contributions should be considered by the Board, and he should be allowed to continue to serve in the Army
d. Two ABCMR cases, wherein the Board found in favor of the respective applicants, and which counsel asserts have similar circumstances to those of the applicant.
(1) ABCMR Docket Number AR20050007123, decided by the Board on 6 December 2005, wherein the applicant requested removal of 117 pages of derogatory information from the restricted portion of his OMPF.
(a) Consideration of the Evidence:
* while deployed to Kosovo as a company commander of a peacekeeping unit of the 82nd Airborne Division, a Soldier in the applicant's unit raped and murdered a member of the civilian population
* an AR 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation recommended the applicant receive a General Officer Memorandum of Reprimand (GOMOR) for dereliction of duty, perpetuating a command climate that allowed Soldiers to violate the rules of engagement, and for conduct unbecoming an officer and a gentleman
* he was given a GOMOR by CG, 82nd Airborne Division for his failure to properly supervise his subordinates and directed it be filed in his local file
* he received an OER for this period which was very favorable
* his performance was shown as outstanding and his senior rater indicated the applicant was best qualified, noting he was an exceptionally gifted leader whose performance of duty could only be described as brilliant
* the senior rater rated him ACOM
* the Chief of Staff of the Army (CSA) asked the CG, U.S. Army Forces Command (FORSCOM) review the AR 15-6 investigation and take appropriate corrective actions
* based on this, the FORSCOM CG directed a team to conduct a review; the team recommended a review by the DASEB
* the CG, XVIII Airborne Corps (who had been the CG, 82nd Airborne Division at the time of the incident (and later would become the FORSCOM CG), and who also was the officer issuing the GOMOR to the applicant) provided a memorandum to the DASEB in support of the applicant
* in the memorandum he described the extensive process he followed in reaching a decision in the applicant's case
* he indicated he had twice spent time in the unit and witnessed how extremely difficult and challenging the circumstances were for the applicant and his unit
* he further stated a news journalist who had shadowed the unit rightly reported that, had it not been for the professional, judicious, and even-handed manner in which the applicant's unit had conducted its peacekeeping duties, the entire area would have immediately reverted to an absolute cesspool
* he said he had received reports from the applicant's chain of command, to include the Task Force Commander, a brigadier general (BG); all praised his performance despite the demanding and risky environment
* based upon the foregoing, he determined a permanent and lasting action would serve no useful purpose for either the applicant or the Army, and directed the GOMOR to be placed in his local file
* the DASEB issued a memorandum to the CG, U.S. Army Personnel Command (PERSCOM) stating the Director, Military Personnel Management (DMPM) directed the documents be placed in the applicant's OMPF
* with the applicant's request to the Board, he included a memorandum from Superintendent of the U.S. Military Academy (USMA), for whom he was the aide-de-camp
* this memorandum described "botched" staff work and media pressure as the cause for the applicant not receiving what the Superintendent felt was his due process
* he strongly recommended removing the documents
* he noted the cases of two other officers, both of whom had had derogatory information in their restricted folders from this incident, were considered by him to merit retention, but who had retired early
* one officer had been on the brigade command and colonel's list but could not get confirmed
(b) In its discussion and conclusions, the ROP stated:
* the DASEB had apparently acted properly and the DMPM was within its authority to direct filing in the applicant's OMPF; the applicant had been given due process
* however, a review of the arguments made by the officer who imposed the GOMOR (who was then CG, 82nd Airborne Division, later XVIII Airborne Corps CG, and FORSCOM CG at the time of the Board) along with those of the Superintendent, USMA, were considered compelling
* additionally, the strong OER, given for the period which covered the AR 15-6 investigation, coupled with the fact, in the four OERs received after the investigation, the applicant had been rated ACOM, all served as evidence the applicant was a top-level performer whose loss would be a disservice to the Army
* "considering the applicant's outstanding performance prior to and since this short period of time, it would be unfair for him to have the stigma of these events dictate his future in the Army"
* "further, allowing the continued filing of these documents...could very well result in the Army being deprived of the benefit of his service over the long term"
* "given the strong support from two senior Army leaders (Superintendent of the USMA and current FORSCOM Commander), and based on the applicant's outstanding record of service" the document should be removed
(c) the Board voted to remove the documents from the applicant's OMPF.
(2) ABCMR Docket Number AR20110007885, decided by the Board on 6 September 2011, wherein the applicant requested transfer of a GOMOR and all associated documents to the restricted folder within his OMPF.
(a) Consideration of the Evidence:
* in January 2008, the applicant received a GOMOR from the CG, U.S. Army John F. Kennedy Special Warfare Center and School for fraudulently submitting a claim for the reimbursement of expenses he did not actually incur during a do-it-yourself move; the GOMOR was directed to be placed in the performance section of the applicant's OMPF
* he received four OERs after the GOMOR and all were highly favorable, with his rating chain recommending him for promotion
* the applicant twice petitioned the DASEB to transfer the GOMOR to his restricted file; his requests were denied
* he provided a memorandum from the then-retired officer who had imposed the GOMOR and directed filing; this officer essentially recommended removing the GOMOR from the applicant's file
* he also provided letters of support from the Deputy CG, 1st Sustainment Command (a brigadier general); the Assistant Chiefs of Staff, for G-3 and G-4 (both COLs), Eighth U.S. Army; Chief, Munitions Branch, U.S. Pacific Command (an LTC); and the Commander, 6th Ordnance Battalion (an LTC)
* all noted the applicant had suffered inordinately as a result of the GOMOR, was a strong performer, and that the purpose of the GOMOR had been served
(b) Discussion and Conclusions.
* the evidence clearly showed the GOMOR was issued and filed in accordance with the governing regulation and no evidence was provided showing the document was either untrue or unjust
* transfer of the GOMOR to the restricted folder, however, was authorized
* additionally, the evidence showed the applicant had now accepted responsibility for his actions and had suffered consequences as a result of the GOMOR being in his file
* in spite of this, the applicant responded positively, as attested by the favorable support of his chain of command
* given the strong leadership support by the applicant's subsequent and current chain of command, and based on the passage of time as well as the applicant's continued value to the Army, the GOMOR should be considered to have served its purpose and transferred to the restricted folder
(c) The Board granted relief by directing the GOMOR, with all related documents, be placed in the restricted portion of his OMPF.
24. AR 27-10 (Military Justice) addresses administrative actions which can be taken by commanders, to include administrative reprimands. It distinguishes administrative actions from nonjudicial punishment in that the latter is imposed to correct misconduct in violation of the UCMJ. By contrast, administrative measures are primarily tools for teaching proper standards of conduct and performance.
a. The two are separate and distinct kinds of authority and should not be confused (emphasis added).
b. Administrative reprimands must contain a statement that it was imposed as an administrative measure.
25. AR 600-37 prescribes policies and procedures regarding unfavorable information considered for placement in and, when appropriate, removal from official personnel files.
a. Paragraph 1-1 states, in relevant part, that the intent of AR 600-37 is to ensure unsubstantiated, irrelevant, untimely, or incomplete unfavorable information is not placed in personnel files or used for personnel decisions. Additional objectives are to protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility (emphasis added) and to provide a means to remedy injustices if they occur.
a. Paragraph 2-3 (DASEB) outlines the responsibilities of the DASEB. It states, in pertinent part:
* the DASEB determines whether unfavorable information should be filed in the performance portion of the OMPF
* upon making a determination, the DASEB recommends how unfavorable information should be filed to the DMPM
* reviews and evaluates evidence presented in support of appeals for removing unfavorable information from an OMPF
* makes revisions, alterations, or removes unfavorable information when determined to be unjust or untrue
* transfers unfavorable information from the performance file to the restricted file of an OMPF
b. Paragraph 3-4 provides that an administrative MOR may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising GCMCA jurisdiction over the Soldier. It is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum and will be referred to the recipient for comment. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with AR 600-37, chapter 7.
c. Paragraph 4-6 (Use of Intelligence and personnel security files in personnel actions), states intelligence and personnel security files are not a part of the military personnel records system, as prescribed by AR 640-10 (Individual Military Personnel Records, superseded by AR 600-8-104.
(1) Current intelligence and personnel security files may have unevaluated or dormant information of a nature upon which the person concerned may not have had the chance to comment. The files also may contain sensitive information and, as such, promotion selection boards and other personnel decision makers will not have access.
(2) As an exception, the DASEB will be given access. While not making personnel decisions, it makes determinations as to what information will be considered for possible filing in official personnel files.
(3) In cases involving a Soldier in a position of leadership, trust, or responsibility whose security clearance has been denied or revoked, the matter will be referred to the DASEB to decide what unfavorable information, if any, will be made a part of the recipient's OMPF. For the purpose of the paragraph, all commissioned officers are deemed to be in positions of leadership, trust, or responsibility.
(4) If the unfavorable information involves suitability issues (e.g. financial difficulties) a request will be submitted to the Defense Investigative Service to resolve the issue.
d. Paragraph 7-2a provides 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. This does not include documents that have their own regulatory appeal authority such as evaluation reports. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.
e. Paragraph 7-2b outlines procedures for the transfer of OMPF entries to the restricted file. Only memoranda of reprimand may be the subject of an appeal for transfer to the restricted file. The basis of the appeal can be proof the reprimand's intended purpose has been served and the transfer would be in the best interest of the Army. If an appeal is denied under this provision a copy of the letter of notification regarding the outcome will be placed in the commendatory and disciplinary portion of the performance record. The appeal will be placed in the restricted portion of the OMPF.
26. AR 600-8-104 (Army Military Human Resource Records Management (AMHRR)), dated 22 June 2004 and in effect at the time, prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. The AMHRR is an umbrella term encompassing human resource (HR) records for Soldiers, retirees, veterans, and deceased personnel. The AMHRR includes, but is not limited to, OMPF, finance related documents, and non-service related documents deemed necessary to store by the Army. The AMHRR is archived in the Interactive Personnel Electronic Records Management System (iPERMS).
27. The OMPF is defined as permanent documentation containing facts related to a Soldier during the course of his or her entire Army career, from time of accession into the Army until final separation, retirement, or discharge.
a. The purpose of the OMPF is to preserve documents pertaining to enlistment, appointment, assignments, performance, awards, disciplinary actions, separation, retirement, and any other personnel actions.
b. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.
c. Paragraph 2-3 (composition of the OMPF) stipulates, in pertinent part, the performance folder is used for filing performance, commendatory, and disciplinary data. It is routinely used by career managers and selection boards. Documents placed in the performance portion are limited to those that provide evidence of a Soldier's demonstrated performance. The restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers. Documents are permanently maintained here to keep an unbroken historical record of the Soldier's service, conduct, duty performance, and evaluation period; record investigation reports; record appellate action; protect the interest of the Soldier and the Army.
d. In the current version of AR 600-8-104, dated 7 April 2014, paragraph
2-11 (Access Guide) states, in pertinent part, the review of the restricted folder and all evaluations is authorized for selection boards considering officers for promotion to COL.
e. Appendix B, also of the current version of AR 600-8-104, lists those documents required for filing in iPERMS include:
(1) Elimination Actions - when the action has been directed by Department of the Army, file the associated letter in the performance folder and allied documents in the restricted folder. There are no entries that require filing elimination actions directed by a Soldier's command
(2) Regarding MOR, the appendix cites paragraph 3-4 of AR 600-37 and restates the policy outlined in the regulation regarding the filing of an MOR. It notes an MOR can be filed in the performance section of the OMPF, regardless of issuing authority, when so authorized by a general officer or the GCMCA for the individual Soldier concerned.
28. AR 623-3 (Evaluation Reporting System), in effect at the time, established the policies and procedures and served as the authority for preparation of the OER.
a. The paragraph which describes performance and potential evaluations stated Army evaluation reports were assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer corps. Performance would be evaluated by observing action, demonstrated behavior, and results from the point of view of Army values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and other pertinent regulations. Potential evaluations would be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.
b. Guidance to raters stated Part IV contains a listing of the Army values and the dimensions of the Army's leadership doctrine that define professionalism for the Army officer. These apply across all grades, positions, branches, and specialties. They are needed to maintain public trust, confidence, and the qualities of leadership and management needed to sustain an effective officer corps.
c. The paragraph regarding the modification to previously submitted reports stated:
* an evaluation report submitted to HQDA and included in a rated Soldier's OMPF is presumed to be administratively correct and to represent the considered opinions and objective judgments of the rating officials (emphasis added)
* requests to alter, withdraw, or replace a report will not be honored
* as an exception, information that was unknown or unverified when the report was prepared but is later verified, and is so significant that it would have resulted in a higher or lower evaluation, had it been known
d. Evaluation reports accepted for inclusion in the Soldiers official record were presumed to be administratively correct, have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation (emphasis added).
e. To justify deletion or amendment of a report, the appellant must produce evidence establishing clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant (emphasis added).
29. AR 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officers on active duty for 30 days or more.
a. Paragraph 4-1 outlines an overview in regard to officer eliminations.
* an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer
* an officer who does not maintain standards will be separated; every officer deserves a fair chance to demonstrate their capabilities
* when an officer shows ineffective tendencies (especially if the officer is inexperienced), they will be given another chance under another commander
* an active Army officer must hold a security clearance of at least Secret; this requirement may not be waived
* final denial or revocation of an officer's Secret security clearance by appropriate authorities requires the discharge of that officer
b. Paragraph 4-2a (Substandard Performance of Duty) (subparagraphs 2 through 5) address elimination action initiated as a result of substandard performance as shown by the following:
* a downward trend in overall performance resulting in an unacceptable record of efficiency when compared with other officers of the same grade and competitive category
* failure to keep pace or to progress with contemporaries, as demonstrated by a low record of efficiency when compared with other officers
* failure to exercise necessary leadership or command expected of an officer of their grade
* failure of an officer to absorb technical proficiency required for grade and competitive category
* failure to properly perform assignments commensurate with an officer's grade and experience
c. Paragraph 4-2b (Misconduct, Moral, or Professional Dereliction, or in the Interests of National Security) lists conduct which falls under this provision for elimination:
* subparagraph 1 - discreditable or intentional failure to meet personal financial obligations
* subparagraph 8 - conduct unbecoming an officer
* subparagraph 10 - the final denial or revocation of an officer's Secret security clearance by appropriate authorities acting pursuant to Department of Defense (DoD) Regulation 5200.2-R (DoD Personnel Security Program (PSP)) and AR 380-67 (Personnel Security Program)
d. Paragraph 4-2c (Derogatory Information), subparagraph 5 covers adverse information filed in the OMPF in accordance with AR 600-37.
e. In paragraph 4-6 (Board of Inquiry (BOI)) it states the purpose of a BOI is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army.
* through a formal administrative investigation conducted under AR 15-6 and this regulation, the BOI establishes and records the facts of the respondent's alleged misconduct, substandard performance of duty, or conduct incompatible with military service
* based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer's disposition consistent with this regulation
30. The MCM, 2012 Edition, defines the process for bringing a case to a court-martial, the elements of proof required to be proven for each of the punitive articles of the UCMJ, and rules for courts-martial.
a. Article 90 (Willfully disobeying a superior commissioned officer), UCMJ; to prove this offense it must be shown:
* a lawful command was received by an accused
* the officer giving the command was the superior to the accused and the accused knew this
* the accused willfully disobeyed the lawful command
* willful disobedience is an intentional defiance of authority; failure to comply with an order through heedlessness, remissness, or forgetfulness is not a violation of this article but may violate
Article 92 (Failure to obey an order or regulation)
b. Article 92 (Failure to obey an order), UCMJ, requires the following to be proven:
* an accused was issued a lawful order
* the accused had knowledge of the order and had a duty to obey
* the accused failed to obey the order
c. Article 92 (Dereliction in the performance of duty), UCMJ, requires the following to be shown:
* that an accused had certain duties
* the accused knew, or reasonably should have known of the duties
* the accused, either willfully or through neglect or culpable inefficiency was derelict in the performance of those duties
* paragraph 16c(3)(c) provides the following clarifications:
* "willfully" means intentionally and refers to the doing of an act knowingly and purposefully, specifically intending the natural and probable consequences of the act
* "negligently" means an act or omission of a person who was under a duty to use due care which exhibits a lack of that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances
* "culpable inefficiency" is inefficiency for which there is no reasonable or just excuse
d. Article 133 (Conduct unbecoming an officer and gentleman), UCMJ, requires it to be proved that:
* an accused did or omitted to do certain acts
* under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman
* conduct which violates this article is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer's character as a gentleman
* this article includes acts made punishable by any other articles, provided these acts amount to conduct unbecoming an officer and a gentleman
31. RESPECT.MIL is a primary care system designed to enhance the recognition and high-quality management of PTSD and depression. It was designed by DoD's Deployment Health Clinical Center to screen, assess, and treat active duty Soldiers with depression and/or PTSD. This program is modeled directly after a program that has proven effective in treating civilian patients with depression. It uses the three component model of care, featuring coordination of primary care providers, care facilitators, and BH specialists, and has been directed to be implemented in Army primary care facilities.
32. AR 15-185 (ABCMR) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.
33. AR 600-8-29 (Officer Promotions), currently in effect, prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. Chapter 7 provides for SSBs. SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion.
a. Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers one or more of the following:
(1) An officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required).
(2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary)
(3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).
b. A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board.
DISCUSSION AND CONCLUSIONS:
1. Through counsel, the applicant requests the removal of unfavorable information from his OMPF. Additionally, the applicant requests to personally appear before the Board. The evidence along with counsel's arguments have been carefully considered.
2. The applicant's request for a personal appearance hearing was carefully considered; however, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.
3. As to the removal of the MOR:
a. Counsel contends the MOR is contrary to law essentially because the allegations do not fulfill the elements of proof for failing to obey a lawful order, dereliction of duty, and conduct unbecoming an officer.
(1) The MOR is an administrative action, however, and is not bound by a requirement to meet the elements of proof under the UMCJ. It is primarily designed to be a tool for teaching proper standards of conduct and performance and as such must simply address that conduct and/or performance which the commander believes requires correction.
(2) The MOR met the criteria as defined by regulation.
b. Counsel argues the applicant's omission of failing to enter patient notes into the EMR system was not intentional. In so asserting, counsel adds the applicant did not "willfully" fail to obey the order of his commander to enter the patient notes within the required timeframe. A review of the MOR, however, shows no mention of an allegation of "willful" failure, but rather that his omissions were the result of his "lack of regard" for medical policies and procedures as well as his "gross indifference."
c. Counsel also essentially contends the applicant was not responsible for the delinquency of patient notes because he properly wrote his notes in Word and PAD employees, who were then supposed to scan them into each patient's file, failed to do so. Counsel also affirms, however, these notes, which are considered delinquent when not entered within 3 business days, became months late.
(1) It would be reasonable to conclude that, if in fact the applicant's command had set up the process counsel describes, there would be mention of this process in the counseling received by the applicant at the time. Additionally, if the command had taken responsibility for such a process, it would also be reasonable for the applicant to have brought up this fact when given the opportunity to rebut the counseling, the MOR, and the referred OERs. Both the counseling statements and rebuttals made by the applicant at the time are silent on this issue.
(2) Even accepting counsel's argument as to responsibility, the applicant, as the Chief of Behavioral Health and a physician charged with a duty for ensuring patients were properly safeguarded, would have had an obligation to make sure the notes were in fact added.
(3) A stated purpose of the notes was to provide updated treatment information, which could include such things as prescribed medications. Implicit with this would be an obligation to help prevent other physicians from prescribing other medications which might harmfully interact with those already prescribed. For the notes to have become months late clearly suggests the applicant did not follow up and thus failed to take reasonable and appropriate steps to ensure the notes were properly added in a timely manner.
4. Counsel contends the MOR, referred OERs, and elimination action were unsupported by evidence and inappropriate for his conduct.
a. Counsel indicates, while the applicant may have failed to enter patient notes within the required timeframe, he did not do so intentionally. Counsel further asserts the preponderance must show the applicant intended to omit "the performance of his duty to close out all of his notes."
b. As noted above, administrative actions do not require adherence to the elements of proof as stated in the MCM and therefore do no hinge on a requirement to prove intent. Rather the contested documents simply needed to cite those acts or omissions which the applicant was alleged to have done. For these allegations there appears to be sufficient evidence.
(1) Despite numerous warnings from his clinic commander and MEDDAC commander, and apparent accommodations in the form of reductions in workload, the applicant continued to accumulate aged patient notes and failed to obey an order from his commander to complete them within the required timeframe.
(2) Counsel and the applicant acknowledged the patient notes were allowed to age to the point they were months late, which potentially put his patients at risk and were indicative of a dereliction of duty and culpable negligence.
(3) An officer not only has a duty to obey the orders of their superiors and adhere to policies and regulations, but as a physician, there is also a duty to ensure the proper care of those patients in their care. The applicant's conduct did not conform to these requirements and thus was unbecoming an officer.
(4) Although he was given two extensions to permit access to the EMR system, and allowed a period of about 20 months as well as the use of duty time to facilitate the resolution of his personal issue, he did not regain his secret security clearance until March 2012. His lack of a security clearance had a significant impact on his organization, clearly affected his duty performance and, by extension, his patients.
c. Counsel claims the applicant's failure to fulfill the order to complete patient notes was not from an intentional omission, but rather the late notes resulted from an inability to do so within the time allotted. This argument ignores the fact the order was only given after the applicant received counseling over the two prior months regarding the requirement to complete the notes in a timely manner.
5. Counsel also suggests the MOR, referred OERs and the elimination action all were predicated on the fact that his command was unhappy with his inability to secure his secret security clearance.
a. As noted above, there appears to have been sufficient basis for the applicant's chain of command to issue the MOR, the referred OERs, and the elimination action. Additionally, as stated in AR 600-8-24, all officers are required to maintain at least a secret security clearance. A final denial or revocation of an officer's secret security clearance by appropriate authorities requires the discharge of that officer. By regulation, had his secret security clearance not been restored, the applicant would have been discharged.
b. In the applicant's case, his security clearance was suspended pending the final outcome of his efforts to resolve his financial difficulties. Once he declared bankruptcy, his secret security clearance was restored.
c. The fact that the stated reasons for initiating the show-cause elimination action went beyond the suspension of the applicant's security clearance, but the subsequent request for withdrawal only mentions the reinstatement of his security clearance gives the appearance this action was primarily based on the suspension of the applicant's security clearance. Additionally, the language in the request for withdrawal, along with what was stated in the applicant's OER for the period following the MOR, all clearly indicate the applicant's command found his subsequent duty performance merited his retention.
d. AR 600-8-104 only requires the filing of a show-cause elimination action when it was initiated by Department of the Army. While there is general guidance which permits placement of documents that provide evidence of a Soldier's demonstrated performance, the memorandum and associated documents for the show-cause elimination action should be removed from the applicant's OMPF.
(1) The relatively sharp turnaround in the command's view of the applicant once his security clearance was restored strongly suggests the primary factor in the initiation of the elimination action was the suspension of his security clearance. Once restored the command apparently no longer saw a need to pursue this action and it was withdrawn.
(2) Because this was a command-initiated action, the regulation does not require its inclusion in the applicants OMPF. Additionally, as it is not an MOR, there is no option to transfer it to the restricted file.
(3) The concerns identified in the elimination action were already sufficiently addressed in the MOR and the two referred OERs. The addition of the withdrawn elimination action only serves to pile on more derogatory information and provides no added value. Thus its presence is prejudicial and retaining these documents in the OMPF would be unjust. As a matter of equity the documents should be removed.
6. Counsel asserts the two referred OERs should be removed because they were erroneous. Counsel states both reports were unsubstantiated, inaccurate, and not relevant to the applicant's duty performance. An assessment of Counsel's arguments, however, fail to reveal substantive evidence to support this assertion. Counsel contends:
a. Chapter 4 of AR 600-37 states commanders shall not include security clearance information in a Soldier's professional file without the preapproval of the DASEB; neither the rater nor the senior rater obtained such permission.
* a review of the regulation shows it contains guidance concerning those cases involving Soldiers in a leadership position (all commissioned officers are considered to be in leadership positions)
* it states these cases will be referred to the DASEB when their security clearance has been denied or revoked ;
* the DASEB is then required to determine what unfavorable information, if any, will be made part of the recipient's personnel file
* the evidence indicates the applicant's security clearance was suspended, but was not either denied or revoked
* regulatory guidance does not preclude a rater or senior rater from mentioning the fact a security clearance has been suspended, rather, it requires commanders not to use any derogatory information obtained from current intelligence and personnel security files
* the stated reasons for this are because the information may not have been evaluated, or might be dormant information of a nature upon which the person concerned may not have had the chance to comment an additional reason given is the files also may contain sensitive information
* while there is no indication the applicant's chain of command referred his case to the DASEB, it is also true neither of the two referred OERs provided any detail as to the substance of the derogatory information which caused the applicant's security clearance to be suspended
* the two referred OERs simply noted the applicant's security clearance was suspended due to personal matters, then provided details as to the impact of this suspension on his ability to perform his duties
* he also was given ample opportunity to comment on both the MOR and referred OERs
b. The statements made as to the time required by the applicant to resolve his suspended security clearance are irrelevant to the OER and are prejudicial considering he was successful in reinstating his security clearance.
* in asserting his argument, counsel frames the security clearance suspension as "temporary"
* while the action is reflected as a suspension rather than a denial or revocation, it is significant to note it took the applicant about 20 months to resolve the matter
* AR 623-3 states performance is evaluated by observing action, demonstrated behavior, and results from the point of view of Army values, leadership framework and responsibilities; clearly the
resultant impacts on duty performance of his security clearance suspension (20 months total, albeit with two 6-month exceptions to policy to allow temporary access to the EMR) fall within this guidance, are relevant, and warrant being addressed in both OERs
c. A Soldier experiencing difficulties renewing his security clearance is typical and should not serve as a basis for determining promotion or retention in the Army.
* counsel only presents argument to support this claim; no evidence is offered which would give an indication how typical it is for commissioned officers to experience difficulties renewing a security clearance
* even assuming it may occur, a suspension of 20 months appears excessive
d. The OERs contained inaccurate statements with regard to the applicant's inability to close all notes in the EMR system in that they reflect the applicant intentionally disregarded Army policy; no mention was made of the circumstances (i.e. inability to access the EMR system); continuing to include these comments on the two referred OERs is prejudicial.
* neither OER alleges the applicant intentionally disregarded Army policy
* rater comments in the relief-for-cause OER (for the period 24 August 2010 through 9 June 2011) state he "did not maintain compliance with documentation of care provided by closure of medical encounters within the 72-hour standard"
* senior rater comments in the same report state the applicant "fell short in maintaining established documentation"
* rater comments in the referred OER (for the period 10 June 2011 through 17 October 2011) make no mention of an inability to enter patient notes, but do show the applicant could not "carry out basic communication" functions while the senior rater simply notes the applicant was removed from all governmental information systems and was unable to perform his clinical duties
7. Counsel argues the MOR, referred OERs, and elimination action should be removed because they have served their intended purpose. He further argues that removing the MOR, the referred OER, and the elimination documents are in the best interests of the Army.
a. In support of this statement, counsel writes the applicant sincerely regrets that his command found itself in an untenable situation as a result of the suspension of his security clearance. However, once his clearance was restored, he continued to serve with an unblemished and outstanding record. Additionally, all of the applicant's commanders under whom he served after the restoration of his security clearance support the removal of the disputed documents.
b. The applicant has also suffered consequences as a result of the unfavorable information in his OMPF.
* removal from consideration for promotion to COL below the zone
* he was considered but not selected by his primary board
* he was denied the opportunity to compete for the position of Deputy Commander for Clinical Services at Fort Sill
* COL TC, Medical Corps Branch Chief, indicated, given the applicant's current derogatory record, she would not/could not recommend the applicant to Major General (MG) SJ, Medical Corps Chief
c. Regulatory guidance regarding the determination that unfavorable information has served its purpose applies to only memoranda of reprimand, and then only to permit the transfer of the document to the restricted file of the OMPF. In order for a MOR to be transferred, the applicant must have provided substantial evidence that the intended purpose has been served and the transfer is in the best interest of the Army.
d. Regarding whether the MOR has served its purpose:
* there are no indications of a recurrence of the delayed entry of patient notes
* through counsel, he has expressed regret his command was placed in a untenable position by virtue of his suspended security clearance
* a stated purpose of a reprimand is to teach proper standards of conduct and performance, and inherent in this purpose is that the recipient of the reprimand take responsibility for the acts or omissions cited in the reprimand
* a review of the applicant's rebuttals at the time and counsel's current arguments gives the indication the applicant has not done so
* counsel's arguments, to include the shifting of blame from the applicant to PAD employees, as well as the absence of any acknowledgement by the applicant of the role he played in allowing the patient notes to accumulate and become months late, all suggest he has not accepted responsibility for his acts and omissions cited in the MOR; it thus appears the intended purpose has not been served
e. As to the transfer being in the best interest of the Army, it is evident from his OERs and from the letters of support the applicant is a highly capable, innovative, and talented physician and psychiatrist. In today's environment, with high suicide rates and the burgeoning volume of Soldiers with behavioral health needs, the Army does need behavioral health professionals who are able to effectively and creatively extend access to treatment. Once in treatment, these Soldiers also need skilled professionals to help guide them to recovery.
f. Part of the reason unfavorable information is included in a Soldier's OMPF is to enable the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility. In weighing his obvious capabilities against the risk, albeit a potential one, in which he placed his patients by delaying the entry his notes to the EMR, and the fact the applicant has apparently not taken responsibility for his acts and omissions, it would appear he has not met his burden of providing sufficient compelling evidence to support transferring the MOR to the restricted file of the OMPF.
8. Counsel alleges that, by not removing the contested documents, the Board will be displaying disparate treatment in that, in similar past cases decided by the Board, the findings have favored the respective applicant. Counsel cites two earlier ABCMR cases.
a. In the first case, the respective applicant (referred to hereafter as A1) requested the removal of 117 pages of derogatory information from the restricted file of his OMPF.
(1) A1 had commanded a deployed unit in Kosovo and received a GOMOR for failing to properly supervise his subordinates (specifically, one Soldier who was charged with the rape and murder of a local civilian).
(2) Key distinctions between this case and that of the current applicant include:
* A1 was a relatively young officer who was placed in an extremely volatile situation, attempting to maintain order in an area of intense conflict; by contrast the applicant, while somewhat new to the Army, was a person who had served previously as an LTC and psychiatrist in the USAF, and was assigned in a noncombat location to a duty position with which he, ostensibly, already had some familiarity
* A1 received a GOMOR for failing to properly supervise his subordinates under incredibly difficult circumstances; the applicant received an MOR for failing to obey an order to complete patient notes within the required 72-hours after losing his access to EMR systems because of a security clearance suspension
* despite the actions of his subordinate, A1's duty performance during the Kosovo deployment was praised by his chain of command (to include the BG Task Force Commander), and, he received an ACOM OER for that period (which included the incident resulting in a GOMOR); the applicant received two BCOM OERs for the contested period and elimination action was initiated
* following this incident, A1's next four OERs were ACOM; by way of comparison, the applicant received two ACOM (or ACOM equivalent ratings), two COM (or COM equivalent ratings) after restoring his security clearance
* the officer who issued the GOMOR wrote a letter of support; this officer was the CG, 82nd Airborne Division at the time of the incident and issuance of the GOMOR; he later became the CG, XVIII Airborne Corps, and then CG, FORSCOM
* A1 also received strong support from the Superintendent of the USMA, for whom he served as aide-de-camp
* the current applicant has letters of support from his former and current commanders as well as from other key personnel; there are, however, no letters of support from the chain of command involved in the issuance of the MOR, referred OERs, and the elimination action
b. The second case involved an applicant (hereafter referred to as A2) who requested transfer of a GOMOR and all associated documents to the restricted folder within his OMPF.
(1) The applicant received a GOMOR and, after the GOMOR was issued, the applicant received four highly favorable OERs. He petitioned twice to the DASEB to transfer the GOMOR to his restricted file; his requests were denied.
(2) Key distinctions between this case and that of the current applicant include:
* A2 requested transfer to the restricted file of a GOMOR; the applicant requests removal of an MOR, two referred OER, and an elimination packet, as well as associated documents
* the officer who imposed the GOMOR essentially supported the removal of A2's GOMOR from his OMPF; the applicant has no such letter of support from the imposing officer
* A2 provided letters of support from senior leaders, all of whom noted the applicant had suffered inordinately as a result of the GOMOR, was a strong performer, and that the purpose of the GOMOR had been served; the current applicant has letters of support from his former and current commanders as well as from other key personnel; again, there are no letters of support from the chain of command involved in the issuance of the MOR
* counsel for the current applicant make arguments, wherein blame is shifted to PAD employees, and there is additionally an absence of any acknowledgement by the applicant of the role he played in allowing the patient notes to accumulate and become months late suggests he has not accepted responsibility for his acts and omissions
c. Other than the fact these cases involves either the transfer or removal of derogatory information from an OMPF, counsel does not provide either evidence or argument which would help clarify how exactly these cases are so similar that to decide differently would result in unconstitutionally disparate treatment. Based upon a comparison of the cited cases and that of the applicant there appears, however, to be sufficient disparity so as to not result in an injustice should the Board not grant the requested relief.
9. Through counsel, the applicant requests removal of the results of DASEB. AR 600-37 requires DASEB results to be filed in a Soldier's OMPF, with the letter showing the board's decision filed in the performance section, and the ROP with associated documents in the restricted file.
a. A review of the applicant's OMPF reveals the documents have been filed in accordance with regulatory guidance. While the letter only states the applicant's appeal was denied, the ROP and associated documents include references to the elimination action, which have been recommended for removal.
b. Because current regulatory guidance permits selection boards for promotion to COL to review documents in the restricted folder of the OMPF, and because the references to the elimination action are so intertwined with the DASEB's discussion of the MOR, it would be prejudicial to simply redact all references to the elimination action, should the Board approve its removal. As such, and as a matter of equity, the DASEB ROP and associated documents should also be removed. The letter showing the applicant's appeal was denied should, however, remain in the performance portion of his OMPF.
10. Based upon the foregoing, there appears to be sufficient basis to remove the elimination packet and the DASEB ROP with associated documents. The applicant, however, has not provided clear and convincing evidence which is compelling enough to warrant the correction of a material error, inaccuracy, or injustice. As such, with regard to the removal of the MOR and the referred OERs, there is insufficient basis upon which to grant these portions of the requested relief.
11. With regard to the COL promotion board, should the applicant not be selected by the FY 2015 COL selection board, his file should be submitted to an SSB for consideration as a result of the removal of the elimination packet and DASEB ROP with associated documents.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
____x___ ____x___ ___x____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. Removing from the performance folder of the applicant's OMPF all documents specifically associated with the memorandum, dated 8 December 2011, from Seventh U.S. Army Joint Multinational Training Command, addressed to the applicant, subject: Initiation of Elimination (listed in his OMPF as "Authenticated Extract Compltd Investigation Rpt Result Elim/Discip").
b. Removing from the restricted file of the applicant's OMPF the DASEB's ROP with associated documents (shown in the restricted portion of his OMPF as "DA Suitability Eval Board - DASEB Doc Deny/Appr Req for Removal of Advs Info DASEB").
c. In the event the applicant is not selected to COL by the FY 2015 COL selection Board, submitting his records to an SSB for consideration for promotion to COL under the applicable criteria.
2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the removal from the performance portion of the applicant's OMPF of the following:
* Memorandum, dated 22 August 2011, issued by the Commander, MEDDAC, Bavaria, addressed to the applicant, subject: Memorandum of Reprimand
* OER for the period 24 August 2010 through 9 June 2011
* OER for the period 10 June 2011 through 17 October 2011
____________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) AR20150011627
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20150011627
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