Friday, September 2, 2016

Army Major Eric Smith forced to Fight for his Job – De Facto Prosecution Continues After Official Exoneration

Save our Heroes reports, MAJ Eric Smith has been exonerated and vindicated. However, to date, Madigan Army Medical Center (MAMC) and the Army Medical Command (MEDCOM) have demonstrated contempt for the Army Court, the Board of Inquiry, due process, the Army Values, as well as their own binding clinical quality management regulations.

MAJ Smith’s case is a perfect example of the gauntlet service members’ are forced to endure once they are accused of wrongdoing. It exemplifies why the system requires reform.

To recap, MAJ Smith unexpectedly tested positive for cocaine on a routine urine drug screen in July 2011. Maintaining his innocence, MAJ Smith immediately consented to a hair follicle test that was collected at the optimum time of detection for the suspected use. The results were negative down to the level of detection and indistinguishable from the “zero” blank. Studies indicate that the chance of discordant results between a positive urine test and a negative hair follicle test are less than 0.03%.

Regardless, the government choose to prosecute. To MAJ Smith’s surprise, his military counsel informed him on the day of trial that the hair follicle test would not be admitted as evidence. As such, MAJ Smith was found guilty and sentenced to 24 months of confinement at the Northwest Joint Regional Correctional Facility on JBLM, WA on 28 Sep 2012. This sentence was the longest sentence ever imposed upon a person for this charge in over 25 years.

On 15 May 2013, after seven months of confinement, MAJ Smith was granted clemency. Upon release, he requested a forensic polygraph – it was negative. However, this evidence did not sway the General Court Martial Convening Authority (GCMCA) and the GCMCA upheld the conviction.

MAJ Smith then requested that the GCMCA, LTG Robert Brown, allow him to re-test the allegedly positive urine sample. The GCMCA declined MAJ Smith the opportunity to examine the evidence brought against him.

In August 2013, MAJ Smith’s case officially entered the appeal process. It was then that the Army Court of Criminal Appeals (ACCA) granted MAJ Smith permission to re-test the allegedly positive urine sample.

From the outset, abnormalities arose in the retesting of MAJ Smith’s urine. The first test revealed an increase in the quantitative value of the cocaine metabolite BZE from 620 ng/dL to 710 ng/dl. This was odd, as after being frozen and stored the result should have gone down. So then MAJ Smith’s forensic team had the urine tested to see if it was actually his and the results were astonishing – the sample contained two contributors of MAJOR DNA; MAJ Smith and an unknown donor. It was a contaminated sample, and hence should be legally categorized as “invalid,” with no probative value.

This evidence became available in Jan 2015, and MAJ Smith immediately informed his command. Nevertheless, no action was taken to adjust course; he was merely told he could be the guilty donor. No attention was paid to the negative hair follicle test, the negative polygraph, nor to the fact that the sample no longer had any probative value.

On July 17, 2015, ACCA set-aside MAJ Smith’s conviction solely on the basis of “ineffective assistance of counsel,” and returned the case to the GCMCA, LTG Stephen Lanza, to re-try the case at his discretion. The exculpatory scientific DNA evidence was not addressed by ACCA.

Upon receipt of this news, MAJ Smith approached his command and Tripler Army Medical Center – Forensic Toxicology Drug Testing Laboratory (TAMC-FTDTL) and unambiguously asked them to investigate the contaminated urine sample to see whether the contamination was an error or deliberate. To his knowledge, neither his command nor TAMC-FTDTL has launched an investigation. Interestingly, his urine sample in storage at TAMC-FTDTL was destroyed on July 17, 2015 – the same day as the ACCA decision to set aside his conviction.

Furthermore, MAJ Smith also approached his command asking to have his hospital privileges reinstated and to be returned to work as a physician. On 10 August 2015, this nearly happened. The sitting Army Surgeon General, LTG Patricia Horoho passed word down to MAJ Smith to submit a new application for hospital privileges at MAMC. However, later that day LTG Horoho sent word down that she spoke to soon, and instructed MAJ Smith to stand-by.

On 2 Sep 2015, MAJ Smith was counseled by the MAMC Deputy Commander for Clinical Services and Acting Commander, COL Stephen Yoest. Astonishingly, he was presented with a General Officer Memorandum of Reprimand alleging wrongful use of cocaine again and citing one instance of unprofessional conduct in July 2011 when MAJ Smith used profanity in the presence of a junior NCO when frustrated with an ever changing leave request submission policy.

The counseling states, “the adverse privileging action was based on your misconduct, and not on your conviction alone.” Interestingly, a review of the Army Regulation 40-68 reveals a list of Reportable Acts of Misconduct/Unprofessional Conduct for DOD Health Care Personnel. Using profanity in front of an NCO does not meet any of the criteria in that list.

Moreover, the counseling goes on to say that the “GCMCA has decided not to re-try the case, but rather to issue a GOMOR.” Clearly, the GCMCA understood that MAJ Smith had evidence that exculpated him and that in a new trial he would be found “not guilty,” and that he had already been punished with 7 months of unwarranted confinement.

Predictably, this GOMOR triggered a Board of Inquiry (BOI), where MAJ Smith risked an Other-Than-Honorable discharge, loss of a military pension, and loss of Veteran’s Administration benefits. Notably, MAJ Smith is a combat veteran with both mental and physical issues related to his multiple combat deployments.

MAJ Smith zealously defended himself, and on 3 March 2016 the BOI voted unanimously to retain him on active duty. The findings from the BOI state, “The allegation that the Respondent has had substantiated derogatory activity resulting in a GOMOR dated 27 August 2015, under the provisions of AR 600-8-24, paragraph 4-2c(5), in the notification of proposed elimination is not supported by a preponderance of the evidence. This finding does not warrant the elimination of MAJ Smith.

Additional comments state: “GOMOR was based on unprofessional behavior in the presence of a Jr. NCO and positive test for cocaine. The results of the urinalysis were inconclusive because of 2 donors’ DNA. The respondent would most likely have not received a GOMOR for the unprofessional behavior for the incident with the NCO if not for the drug charge. This most likely would have been formal counseling.” Which it actually was on 20 July 2011. Interestingly, the Jr. NCO that MAJ Smith used profanity in front of that day, was the NCO administering the urine testing site the day his urine tested positive.

During the BOI, the narrative about MAJ Smith began to shift. The government began to shift focus from the faulty urine drug screen and to alleged poor performance. MAJ Smith handily parried this narrative shift with 30 letters of support from fellow service members, friends and family. Several of the letters mentioned how admirably he has performed, particularly in the combat environment.

MAJ Smith’s Officer Evaluation Reports also showed a clear demarcation prior to and after being falsely accused. Prior to being falsely accused, the majority of his OER’s cited “outstanding performance, must promote.” Only four months later, after being falsely accused, an OER by the same rater cited “unsatisfactory performance, do not promote.” This trend continued until 2015, when the evaluations began to indicate that he is “proficient, and highly qualified.”

Returning to the issue of the urinalysis, COL Steven R. Smith, MAJ Smith’s former supervisor wrote an email on his behalf to the senior leadership at MAMC imploring them to stop the “foot dragging,” to make amends with MAJ Smith and to reinstate him. COL Smith served as the MRO for the Army testing at Joint Base Lewis-McChord after MAJ Smith’s case went to trial. In the email he states,

“As MROs for the Army testing at JBLM, several of us were made aware on multiple occasions of significant issues and concerns for the integrity of our testing program, not at the laboratory level, but at the unit level. It was clear to me that on more than one occasion, test specimens’ chain of custody was compromised at local levels. When no adverse event results, these compromises are simply ignored. When an adverse event occurs, there are clearly cover-ups instituted that usually only involve one or two people.”

COL Smith, also testified on MAJ Smith’s behalf at the BOI and reiterated the same points.

With the results of the BOI in hand and this damning testimony from COL Smith, MAJ Smith went back to his command and requested an investigation again. To his knowledge, no investigation is being conducted either by his command or TAMC-FTDL.

In response to this inaction, MAJ Smith, sought the assistance of Congressman Denny Heck to force a reply. A reply to Congressman Heck from COL Michael Place, Commander, MAMC on 10 Mar 2016 abrogates responsibility to TAMC-FTDTL where the urine was tested. COL Place does not mention nor acknowledge COL Smith’s email or testimony that the chain of custody may have been broken at MAMC or JBLM.

TAMC-FTDTL also replied to Congressmen Heck on 7 April 2016. In the reply, COL David K. Dunning states that “once the aliquot left Tripler FTDTL, we could no longer account for the chain of custody or disposition of the aliquot.” TAMC-FTDTL completely ignores that this information is available and on file at NMS Laboratories in Willow Grove, PA. NMS Laboratories is where the follow-up testing was conducted; it is well known in the forensic community and carries a high reputation. NMS is accredited by the American Society of Crime Lab Directors, whereas TAMC-FTDTL is not accredited by any outside agency.

Moreover, TAMC-FTDTL claims to have a zero false positive rate, and processes 115,000 samples per month or 1.2 million samples per year with 25 employees in its specimen processing section. Calculations indicate that this would mean they process a sample every one to two minutes. This is clearly unrealistic and unbelievable.

After the BOI, MAJ Smith again asked to be reinstated. Again, he was informed that the US Army Surgeon General has final decision authority. So, he indicated to his immediate supervisors that he would approach the new Army Surgeon General, LTG Nadja Y. West. Those supervisors convinced him to stand down and to let them ascertain whether senior leaders at MAMC would support his return to work. MAJ Smith also asked his supervisors to communicate with MEDCOM to see what their response would be.

MAJ Smith then requested they check into voiding the now false report currently maintained with the National Provider Databank (NPDB). The NPDB is a reporting agency originally designed to prevent physicians with action taken on their license and who could present a risk to the public from moving from state to state.

So for 4 months after the BOI, MAJ Smith waited to see if his return to work could be managed “at the lowest level.” In July of 2016, MAJ Smith met with his supervisors. He was informed, “Sorry, no one is going to lift a finger to help you.” When MAJ Smith, asked what MEDCOM’s response was, he was told, “Their response would only confuse you.” MAJ Smith, asked about the reports filed with the NPDB. He was informed, “You’re gonna have to pursue that on your own.”

MAJ Smith, pointed out that they are now false, and the unprofessional conducted cited was in fact, not even reportable in the first place. MAJ Smith was simply directed to, “Take that up with MEDCOM.” His supervisors ended with, “Look, people here just don’t want to work with you, after all that has gone on.” MAJ Smith pointed out that all that has “gone on” was either false and/or of a much lesser consequence/not reportable. The response was, “Well, if you want to go black and white on this issue, go ahead.”

Also in July of 2016 MAJ Smith, received notification that prior to his retirement in November of 2016, an Army Grade Determination Review Board will be convened to make a final determination to recommend the highest grade in which he has served for retirement purposes. Essentially, he could be demoted in rank.

Mystified by this action after being vindicated by the BOI, MAJ Smith learned that the results of the BOI had never been entered into his Official Military Personnel File (OMPF). In contrast, the GOMOR made it to his OMPF within several days of being delivered to him.

So now, MAJ Smith interprets the refusal to reinstate him as a physician, and the de facto prosecution of him administratively, as act of reprisal against him both for blowing the whistle on a faulty urine drug screen and for his previous complaints lodged with members of Congress and the Inspector General. MAMC and MEDCOMS enduring refusal to reinstate him has serious consequences upon his career that will transcend his tenor at MAMC.

In a Whistle Blower reprisal complaint filed with the Department of Defense Inspector General MAJ Smith states,

“Continued revocation of my medical credentials also significantly disadvantages me when applying for jobs in clinical medicine, further training in clinical specialties, when applying for credentials at other medical institutions, and when applying for medical board re-certification. It is mandatory to report this and acts essentially as a bar to future training and/or employment.”

MAJ Smith has attempted to meet and confer with MEDCOM regarding his NPDB report and they have not responded to date. In a letter from his attorney for physician’s issues, Ms. Jane Luciano states:

No amount of “lawyering” can change four fundamental, incontrovertible and fully adjudicated facts: (1) Major Smith has never tested positive for cocaine use at any time during his 29 years of dedicated service; (2) Major Smith has fully complied with all alcohol rehabilitation efforts; (3) Absent the positive urine test for cocaine, the citing of one minor incidence of unprofessional behavior would have resulted in formal counseling and (4) On March 2-3, 2016, a Board of Inquiry fully adjudicated the above facts, found them supported by the preponderance of the evidence, issued said findings which were adopted and approved by the Major General William K. Fuller, USA, Commanding.   Therefore, the references to the above facts in the NPDB reports dated January 20, 2015 and November 23, 2015 are false and the reports must be voided.

Finally, MAJ Smith has been forced to request the intervention and assistance in voiding the NPDB reports and with voiding the revocation of his hospital privileges. In the letter, his attorney for military issues, Mr. William Cassara, states,

“In addition to being subjected to the invalid NPDB reports and the unjustified continued revocation of MAJ Smith’s credentials, his chain of command has completely failed to support this Soldier; instead, members of MAJ Smith’s chain of command have “voted [him] off the island.” Such a disrespectful, disloyal attitude demonstrates contempt for the Army Court, the BOI, due process, and the Army Values.”

MAJ Smith’s harrowing legal journey and de facto prosecution is a travesty of justice that no military service member who has volunteered to “support and defend the Constitution of the United States” should ever have to endure. MAJ Smith has upheld his oath several fold, with 3 official combat deployments and a handful of Special Forces deployments during his career.

Save Our Heroes supports MAJ Smith’s pleas to be returned to clinical medicine and to be made as whole as he would have been if his legal ordeal had not happened. Thirty letters of support demonstrate that he has value to patients and a potential to heal others for another 25-30 years. To block him from doing so, out of what appears to be spite, is incredibly shortsighted. No one can give him the time he spent in unwarranted confinement back, but the Army Values can be adhered to and amends can be made.

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