EXCLUSIVE: Army flight surgeon claims he might have been setup after testing positive for cocaine

When Maj. Eric B. Smith went in for a routine urine drug screen on July 28, 2011, he never imagined it would change his life forever. His world was turned upside down when the urinalysis results came back.  It was positive for cocaine.

“I’m not perfect,” Smith tells me over the phone the first time we speak, “but I’ve never tried cocaine in my life.”

Dr. Eric Smith has about 20 years of active duty service. He’s received numerous military awards and served three combat tours in support of Operation Iraqi Freedom and Operation Enduring Freedom.

“I am an honorable person who has served my country with honor since the age of 17…I have made several personal sacrifices during my years of service and I would not jeopardize this by using cocaine,” Smith says.

He completed the health professions scholarship program in 1998. In June of that year, he began his first day of active duty at Tripler Army Medical Center in Hawaii. He went on to serve as a flight surgeon and aero-medical consultant in the U.S., Egypt, and Iraq. He even served as the battalion surgeon for a Special Forces Group at Ft. Campbell, Kentucky. His extensive resume includes being board certified in preventive medicine as well as being licensed to practice medicine in Arizona and Washington.

In 2008, Smith started work as a preventive medicine resident at Madigan Army Medical Center (MAMC).

But the path of his career was forever altered when he went in for the routine drug screen while participating in a residency program at MAMC in the summer of 2011. Smith, who had just received his Masters in Public Health from the University of Washington, was now facing a drug-use conviction, prison time and possibly the end of his career in medicine.

In September of 2012, a US Army general court-martial at Joint Base Lewis-McChord (JBLM) found Smith guilty. He’d been charged with violating article 112(a) UCMJ– “wrongful use of cocaine” — and was sentenced to 24 months. Smith reported to the Regional Confinement Center at JBLM in October 2012. However, in May 2013, clemency was granted and the remaining time on his sentence was suspended. Smith was released after spending seven months behind bars.

 (Note: Though Smith’s urine sample was positive for cocaine, a subsequent test of a (chest) hair follicle came up negative, but it was never introduced as evidence at his court-martial).

A board of doctors at Madigan met in the summer of 2013 to decide on Smith’s clinical privileges. Smith was terminated from the Occupational and Environmental Residency program at MAMC in Sept. 2013, following the peer review hearing. Two months later, his clinical preventive medicine privileges at Madigan were revoked.

The hearing panel apparently felt that the chest hair sample wasn’t conclusive, Smith said.

Smith alleges that this panel was not qualified to rule on hair follicle testing and that “they were wrong.” The lab director at Quest Labs, which tested Smith’s chest hair sample, confirmed that Smith’s chest hair tested “negative for the presence of cocaine and cocaine metabolites.” The lab director also indicated that Smith’s sample was collected at the “optimum time” for the detection of suspected cocaine use.

Col. Steven Smith, his former dept chief, also stated that the hair test that Maj. Smith submitted was “legit.”  He added that it was “negligence” that it was not made part of the first trial (court-martial).

In a rebuttal note to his Officer Evaluation Report in 2011, Smith wrote: “I am a medical review officer myself and I know that cocaine can last in one’s system for 1-5 days. If I had willfully used cocaine, why would I attend a urine drug screen that I am not required to attend? That does not make sense!”

Smith was due for a urinalysis on July 22, 2011 but didn’t attend because he was on rotation and commuting an hour away to Puget Sound Naval Shipyard (PSNS). His dept. chief had excused him that day. But when Smith appeared on the list a second time –one week later — and was still commuting to PSNS, he decided to go take the test anyway.

“I just got counseled for inappropriate language in front of a female junior NCO. They probably want to make sure I’m sober…. I should go in and get the test done.” Smith says that was his thought process at the time. He later found out that Col. Steven Smith had excused him from the test the second time also. He wasn’t required to go on July 28 either.

Smith’s positive test for cocaine came during a difficult period in his life when he had just completed an alcohol-abuse program he’d requested after recognizing his drinking was out of control. Col. Steven Smith also attributed Maj. Smith’s anger issues to his medical problems and also possibly to PTSD.

According to Smith, the Army tried to deny he had Post Traumatic Stress Disorder. He says his drinking escalated to dangerous levels.  Despite his self-reporting and pleas for help, Smith says he was “routinely berated and shamed by his boss.”  His PTSD was still essentially untreated. So after his outburst in front of the Jr. NCO, his leadership didn’t see it as symptomatic of his PTSD.

Smith suffered from “late onset” PTSD and the most severe symptoms manifested in 2010. He was diagnosed with chronic PTSD that year and his most recent evaluation by the VA in Sept 2016 supported that diagnosis.

“I was trying to perform as a medical resident, but my brain kept going back to my unresolved issues from my combat experiences,” he says.

The date of the unprofessional conduct is significant, because Smith believes that the NCO he ‘used inappropriate language’ in front of may have had something to do with the possible deliberate contamination of his specimen about a week later.

“I was a jerk to her… I lost my cool and used profanity,” Smith admitted. “But I also was genuinely sorry and authentic in my apology to her.”

She was the same person who was supervising the urine drug screen site and selection process when Smith went in for the routine drug screening on July 28.

That same junior NCO was coaching another officer Sergeant that day on how to perform his duties. “I think I recall Sgt. “F” handing me a bottle as opposed to me selecting a random bottle from the box. Sgt. “F” was running the collection site for the first time that day,” Smith says.

Sgt.T “F” said, “They were prepared by the person who trained me, and that was who was the primary UPL (Substance Abuse/Unit Prevention Leader) at that time, Sergeant ‘K,’” during a testimony at Smith’s trial.

There is no proof that these two individuals, whom Smith had minor squabbles with before, deliberately contaminated his specimen. It could have been just an innocent mistake made at collection, or at the lab. Either way, Smith believes there should have been some kind of investigation to look into it further.

Smith says: “I view their refusal to investigate as a reprisal, a leadership failure, a de facto acceptance of a faulty urine drug screen program, and behavior not consistent with the Army values, which in this case would mean simply to – punish the guilty, exonerate the innocent, investigate accidents and/or wrongdoing”

Smith’s sample was initially tested at Tripler Army Medical Center in Hawaii. A hospital spokesman told local media that Tripler had never reported a false positive test or a contaminated sample. However, subsequent forensic DNA test by an independent lab indicated there were two major contributors of DNA to Smith’s urine sample. In other words there was a substantial amount of someone else’s DNA in the urine sample.

Retired Col. Steven Smith testified that the “DNA test result did not suggest contamination (by flakes of skin as alleged by the Army spokesperson) but frank replacement of (or addition to) his urine.”

Col. Smith said there were other occasions in which significant issues and concerns arose regarding the integrity of the testing program at JBLM—not at the lab level but at the unit level.

“It was clear to me that on more than once occasion, test specimens’ chain of custody was compromised at local levels,” Col. Smith said during the Board of Inquiry.  Despite his testimony –which identified problems with the urine drug screen chain of custody at MAMC – Col. Place and the others continued to refuse to initiate an investigation to determine if contamination was accidental or deliberate, Smith alleges.

The peer review committee -that convened in 2013 to decide on Smith’s hospital privileges- met before a DNA test in January 2015, and found that his urine drug screen had been contaminated. According to two forensic genetic experts, this rendered the sample “invalid.”

About six months later new DNA evidence was uncovered, the Army Court of Criminal Appeals (ACCA) set aside Smith’s conviction and returned the case to the General Court Martial Convening Authority (GCMCA). After the ACCA’s decision on July 17, 2015, all Smith’s rights and privileges were ordered restored. The Army declined to retry the case and decided not to send it to another GCMCA. The criminal charges against Smith were dismissed.

However, the Army refused to reinstate Smith’s privileges and in early September of the same year, he was presented with a GOMOR (General Officer Memo of Reprimand) signed by LTG Stephen Lanza, alleging wrongful use of cocaine and unprofessional conduct before an NCO.  Col. Stephen Yoest, MAMC’s Deputy Commander for Clinical Services, formally counseled Smith and presented him with the GOMOR. Smith claims that Col. Yoest’s counseling also instructed him not to approach the Army Surgeon General about credentialing again.

Smith’s conviction was set aside for “ineffective assistance of counsel.” The ACCA opinion explained that the decision was based on two specific factors:  1) the failure to submit a litigation packet for the hair test Smith had conducted and 2) the failure to have Col. Steven Smith, his former Dept Chief, offer character evidence on Smith’s behalf.  In a Summary of Counseling note written by Col. Yoest, it stated that despite the ACCA ruling, the Hearing Panel determined that submission of a chest hair sample and the results of that sample were not conclusive evidence that cocaine use did not occur. “Further, the rules of evidence were relaxed and [Smith was] allowed to present any statement of character evidence [he] wished to produce,” Yoest explained.

The Army was saying that the findings of the ACCA decision did not change the validity of the hearing panel’s determination or the due process previously provided to him as part of the administrative privileging process. Different standards of proof exist for criminal and administrative hearings.

Smith’s former commanders stated that his conviction was set-aside because he didn’t get a fair trial, but that doesn’t prove his innocence.

As a result, the Army declined to void an unfavorable National Practitioner Data Bank (NPDB) Report in Sept 2015, based on “different standards of proof between criminal and administrative proceedings.”

The NPDB is an electronic information repository created by Congress. It contains information on medical malpractice payments and certain adverse actions related to health care practitioners. Groups that are authorized to access these reports use them to make licensing, credentialing, privileging, or employment decisions. Smith’s NPDB report currently shows that “On November 25, 2013, the clinical preventive medicine privileges of MAJ Eric B. Smith, D.O. at Madigan Army Medical Center, Tacoma, WA were revoked following appropriate due process proceedings, after he tested positive for cocaine…”

“They charge me with something, put me through a legal procedure…a legal body determines that the evidence doesn’t support that charge, yet they refuse to correct any actions they may have taken related to that false charge. If they don’t respect the court, or they don’t respect the boards they refer me to, than what laws or rules do they respect,” Smith says.

By not voiding the NPDB report, Smith’s s commanders were making it clear that his adverse privileging action was based on his misconduct, and not on his conviction alone.

There are two personnel actions Smith is currently trying to reverse: voiding the NPDB Report and rescinding the revocation of his hospital privileges, by the Army Medical Command (MEDCOM).

When I reached out to the Public Affairs office at MEDCOM regarding Smith’s re-credentialing, I was given the following statement:

“…details regarding any providers’ adverse privileging action(s) are protected from release by 10 USC 1102; therefore, more specific information cannot be provided. The Office of the Surgeon General will be responding to Mr. Smith directly regarding his request for removal of the adverse report in the National Practitioners Data Base.”

That email was sent to me by MEDCOM’s Chief of Public Affairs in January.

Smith was just notified in February that Army Surgeon General Nadja West signed a memorandum on the NPDB issue in Sept 2016—the same month that Congressional Inquiries were submitted.  The memo from LTG West stated that the current NPDB report would be left “as is” because it was not overturned by the BOI’s findings and was “properly based on the reviews, findings and adverse privileging action taken by Madigan Army Medical Center.”

In the summer of 2014–after Smith started to question the urinalysis results and to zealously defend himself on appeal–Behavioral Health personnel at MAMC diagnosed him with paranoid personality disorder. Smith points out that this was a diagnosis that four previous ‘detailed’ neuropsychiatric evaluations “never before detected or even entertained.”

A New York Times article published on Feb 24, 2012, titled “Branding a Soldier with ‘Personality Disorder’” – looks into the case of Capt. Susan Carlson who speaks out about her experience as a behavioral health professional in the military. The Army labeled her as having personality disorder– a diagnosis she disputes. The article discusses how the military uses this diagnosis to “discharge thousands of troops.” Carlson reportedly uncovered evidence that “military commanders pressure clinicians to issue unwarranted psychiatric diagnoses to get rid of troops.”

While Smith had a DNA test proving contamination, a negative hair follicle test and a negative polygraph, the response from the folks at Madigan was: “let the board figure it out,” according to Smith.  So, the Board of Inquiry did figure it out, but now it seems they are ignoring the board’s findings, Smith says.

On March 2, 2016, a Board of Inquiry (BOI) convened at JBLM to determine whether Smith should be eliminated from the Army. The three-member panel recommended no further punishment. The Board of Inquiry panel could have decided to discharge Smith from the Army without pension or VA benefits.

“My leadership knew exactly what they were doing…attempting to impoverish and deprive me of medical care, which with someone who requires medical care like I do, is paramount to attempted murder,” Smith said.

The BOI found that the urine sample was contaminated, making it “invalid.” Smith was retained on active duty until his mandatory retirement date. When Col. Steven Smith testified during the BOI, he stated that “with all the evidence I reviewed, I did not believe that Smith had knowingly used cocaine.”

Despite this new DNA evidence, it still appeared that the leadership at Madigan was continuing with efforts to take adverse action against Smith. He says this constituted mistreatment and was potentially in violation of Article 93, UCMJ.

Army officials had asserted that the BOI was “entirely unrelated” to the quality assurance action taken against Smith. Despite the new DNA evidence that was revealed in Jan 2015, the Chief of Preventive Medicine at MAMC, Col. Andrew Wiesen, indicated to Smith there was no point in him returning to clinical practice because he hadn’t worked in four years. Col. Wiesen’s opinion, not to re-credential Smith, was reportedly based on his history of alcoholism and his unprofessional outburst in 2011.  Army officials were apparently aware that Smith was suffering from Organic Brain Syndrome at the time of the outburst.  Smith’s attorney says his client’s condition caused him to act “out of character” because it negatively impacted his impulse control. Smith also underwent three emergent appendectomies at around that time. “In short, he had a combat-related illness in the form of chronic parasitic infection which affected his impulse control,” attorney William Cassara said.

Among the findings of the Board was the following: “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 2donors [sic] DNA. The Respondent would most likely have not received a GOMOR for unprofessional behavior for the incident with the NCO if not for the drug charge. This most likely would have been formal counseling.”

(Smith is hoping to hear back soon from the Dept. of the Army Suitability Evaluation Board about pulling the GOMOR).

Maj. Smith had been sending requests for an investigation to MAMC Commander, Col. Michael Place. Initially he did not get any reply, but after submitting an Article 138 Complaint and a Congressional Inquiry, he did receive a response. Under Article 138 of the UCMJ, “Any member of the Armed Forces who believes himself or herself wronged by his or her commanding officer may request redress.”

Col. Place responded to an inquiry by Sen. Patty Murray’s (D-WA) office on Sep 29, 2016. He said: “…further MAJ Smith had the opportunity to litigate any concerns about the urinalysis process during this court-marital which incidentally was not returned by the Army appeals court for any lack of evidence establishing his urinalysis results.”

“Col. Place is fully aware of the new DNA evidence proving that the sample was contaminated and is of no probative value at this juncture. He is also aware of the testimony of Col. Steven Smith that there are problems with the chain of custody at JBLM,” said Smith.

Smith argues that he didn’t have an opportunity at court-martial, in 2012, to litigate this because the DNA evidence was new, in January 2015.

“I am beginning to suspect that the urine drug screen program has been used as a tool to oust those deemed to be undesirable for a while now,” says Smith. “…that unresponsiveness I am experiencing is in the hope maybe that my case just goes away without a spotlight being shed on the issue. This is why I think national exposure and a deeper probe is warranted.”

After his time in jail, Maj. Eric Smith served for a few years as a Special Projects officer at MAMC in Tacoma. He wants to restore his right to practice military medicine. Although he’s now retired from the military, Smith wants to be able to practice as a civilian doctor. In order to do that, however, he must first right the wrongs that occurred while he was still in the service.

“I’m not guilty of any crime, an egregious error has been made, but instead of investigating the error and moving forward, I continue to be pursued and I continue to be punished after having already been punished – for something I didn’t do,” he said.

All of this has had a deleterious effect on Dr Smith’s career. He’s alleged all along that his previous MAMC Commanders—Col. Place, Col, Yoest, Col. Wiesen and Col. Kiesling– were aware that the continued de facto prosecution of his case and further delay in the revocation of the NPDB Report and in the retraction of his medical credentials was producing “undue hardship and negative outcomes” upon his career.

Smith says that the continued denial of his clinical privileges has resulted in the loss of over $100,000 in financial entitlements that he would have received had he not been wrongfully convicted.

“This is an abuse of authority and none of them are being held accountable.  Who is the criminal here?  Who is more worthy of the uniform?”

There’s no doubt Smith has been working very hard to return to his profession. “Personally I think the Army owes Eric Smith an apology; reinstatement of privileges and completion of a residency program,” said retired Colonel Steven Smith.

An Officer Evaluation Report– filled out for the period between July and October 2011 — indicates that Maj. Eric Smith’s duties as an Occupational and Environmental Medicine Fellow in the Preventive Medicine Dept included “providing oversight and assistance for the Western Regional Medical Command, and occupational medicine services to over 45,000 Soldiers, Airmen, and Civilian workers.”

Smith was evaluated for things like leadership skills, character, professionalism, decision-making and development. In all of these areas he received fine marks. However, the final performance rating on the report was listed as “unsatisfactory” and a promotion was denied. The note attached to the report read in part: “MAJ Smith was placed on Program Level Remediation (PLR) in the OEM Residency for deficiencies in the core competency of Professionalism as a result of unprofessional behavior in the presence of a junior noncommissioned officer for which he received counseling 20 July 2011.”

The comments section on performance/potential of the report states: “MAJ Smith made excellent efforts to complete the terms of his PLR and did so prior to the drug test result. He has performed acceptably in his residency rotations thus far. I have every reason to believe MAJ Smith will one day serve as a good Preventive Medicine physician.”

The Deputy Program Director and Asst. Chief of Preventive Medicine at MAMC signed the report.

Smith has always asserted that in the absence of his wrongful conviction, he most likely would have completed OEM Residency training and been promoted.

He retired from the military just before the start of 2017.  In many ways, this is a fresh start for him.  He’s looking forward to his future now, as he transitions to civilian life.  As he says farewell to his two decades of service, the Army vet eagerly awaits word from one of the programs around the country that could potentially offer him a “dream opportunity.”

“I want to be made whole.… I just want a chance to restore my good name,” he says.

In a letter dated Jan 30, 2017, one of Smith’s attorneys writes: “NPDB reporting requirements have a noble mission. That is to protect the public. Here, the Report that the Army refuses to void serves only to cast an undeserving black cloud on the career of a doctor based on a blatant lie.”

The statement by Jane Luciano, Esq., goes on to say that Smith believes independent grounds exist to void the Report, based on the underlying dispute submission and the Army’s failure to cooperate with the NPDB process.

Maj. (Ret.) Eric Smith’s fight is not over yet.

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