RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-01482
                 INDEX CODE:  128

                 COUNSEL:  JOSEPH W. KASTL

                 HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Officer Performance Report  (OPR),  rendered  for  the  period
22 June 1995 through 21 June 1996, be declared void and  removed  from
his records.

2.  He receive retroactive payment of $31,000.00 Single Year Incentive
Special Pay (SYISP) based on his performance as an anesthesiologist.

3.  Appropriate disciplinary action be taken against three individuals
who served as Air Force leaders at Hill Air  Force  Base  (AFB),  Utah
hospital.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The members of his rating chain reprised against him in rendering  the
21 June 1996 OPR.   They  devised  a  plot  to  withhold  Single  Year
Incentive  Special  Pay.   Applicant   believes   that   these   three
individuals deserve some sort of punishment for their part in  ruining
his career and contributing to his financial demise.

In support of his request the applicant submits numerous documentation
to  include  copies  of  the   Hill   AFB   Inspector   General   (IG)
correspondence, a Letter of Admonishment (LOA), a copy of the referral
OPR, a copy of recommendation for  withholding  special  pay  and  his
reply, a request for approval of Single Year  Incentive  Pay  Contract
and extraneous documents.

Applicant’s submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant in the Reserve of the  Air
Force on 14 February 1985.  He completed his medical school
degree through the Health Professions Scholarship Program  (HPSP)  and
was reappointed in the Medical Corps (MC) in the grade of  Captain  on
27 May 1989.  He was ordered to extended active duty on 11  June  1989
for a period of 60 months.

While serving in the grade of  major,  applicant  was  administered  a
Letter of Counseling (LOC) on 9 February 1996 by the  Chief,  Surgical
Service  Flight.   The  LOC  stated  that  the  counseling  was  being
accomplished  to  make  crystal  clear  who  the  applicant’s   direct
supervisor was, what the steps are in his chain of  command  and  what
his responsibility was.

On 4 March 1996, the applicant filed a complaint  with  the  Hill  AFB
Inspector General (IG) requesting  the  circumstances  surrounding  an
order  to  falsify  official  government  documents,  specifically   a
Certified Registered Nurse Anesthetist (CRNA) form,  be  investigated.
He also requested to be relieved of any responsibility to follow  this
order and help in removing himself from his present morale  destroying
and stressful situation.

The IG responded to applicant on 26 March 1996  and  stated  that  the
investigation had been  completed  and  it  was  determined  that  the
requirements imposed  upon  the  applicant  were  in  accordance  with
applicable rules and directives.  In fact, little  has  changed  since
the applicant’s  arrival  at  Hill  AFB  hospital  in  regard  to  his
(applicant’s) responsibilities as a physician  and  officer.   The  IG
considered  the  case  closed  based  upon  existing  directives   and
forthcoming changes.

On 27 March 1996, applicant was administered  a  Letter  of  Reprimand
(LOR) for  his  lack  of  commitment  and  unwillingness  to  take  on
managerial and leadership responsibilities.

On 1 April 1996, applicant filed an IG complaint concerning the LOR he
received.  The IG responded on 25 April 1996 and  concluded  that  the
regulatory guidance relating to required  anesthetist  signatures  did
not clearly delineate the CRNA and Anesthesiologist  responsibilities.
Management concluded a change needed to be made locally.  The  IG  was
confident the policy being implemented would meet  the  needs  of  all
care givers.  The IG planned no further action.

Applicant’s response to the LOR was considered and on 28 May 1996, the
LOR was withdrawn.  However, because the  commander  felt  applicant’s
attitude had been defiant and confrontational, the applicant was given
a Letter of Admonishment.

Applicant was given a referral OPR for  the  period  closing  21  June
1996.

On 10 July 1996, applicant was given a “Notification of Recommendation
for Withholding Special Pay.”  The Medical Group
Commander stated that he was recommending withholding the special  pay
for unprofessional conduct.

Applicant’s available OPR profile is as follows:

          PERIOD ENDING          OVERALL EVALLUATION

            30 Jun 93            Education/Training Report
            21 Jun 94            Meets Standards
            21 Jun 95            Meets Standards
          * 21 Jun 96            Does Not Meet Standards
                                  (Referral Report)

* Contested Report

On 8 April 1997, applicant  tendered  his  resignation  and  requested
separation under AFI 36-3207 to be effective on  10  June  1997.   The
reason for the action requested was  completion  of  his  Active  Duty
Service Commitment (ADSC).  The request was approved on 17 April 1997.


Applicant was honorably discharged from active duty  on  30 June  1997
under the provisions of AFI 36-3207 (Resign - Completion  of  Required
Active Service) in the grade of major.  He served 8 years and 20  days
of active military service.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Superintendent,  Medical  Special  Pay  Branch,  Medical  Service
Officer Management Division, HQ AFPC/DPAMF1, states that the applicant
submitted a request to  receive  Single  Year  Incentive  Special  Pay
effective 1 October 1996.  At  that  time,  the  applicant’s  date  of
separation (DOS) was 10 June 1997.  To receive this special pay he was
willing to extend his DOS to meet the mandatory  active  duty  service
commitment (ADSC).  Offers to remain on active duty to accept  special
pays are approved on the recommendation of  the  local  medical  group
commander and the special pay agreement is used as authority to adjust
the  physician’s  DOS.   In  applicant’s  case,  his  request  for  an
extension was denied by his  medical  group  commander.   Without  the
statutorily required retainability, applicant was not entitled to ISP.
 The Air Force is not required to extend physicians, when it is not in
the best interest of the Air Force to do so,  in  order  to  make  him
eligible for ISP.  Recommend denial of applicant’s request.

A copy of the Air Force evaluation is attached at Exhibit C.

The Chief, Appeals and SSB Branch,  HQ  AFPC/DPPPA,  states  that  Air
Force policy is that an evaluation report is accurate as written
when it becomes a matter of record.  Applicant fails to provide rating
chain    support,    not     only     for     support,     but     for
clarification/explanation.  He also does not submit clear evidence  to
prove his rating chain reprised against him.  Applicant claims he made
every possible attempt to avoid a personality conflict with his  rater
- going so far as to request stepping down from his position as  Chief
of Anesthesia Services and department head.   To  convince  the  Board
that raters were unfavorably biased, one must cite  specific  examples
of the conflict or bias and provide firsthand  evidence  that  clearly
shows how the conflict prevented the raters from preparing a fair  and
accurate report.

Although applicant contends he  had  no  problems  submitting  to  the
authority of his superior officers, AFPC/DPPPA finds  many  situations
where the applicant believed there to be apparent conflict of interest
if his rater was allowed to evaluate his medical  performance  on  the
OPR.  It is not uncommon for raters holding one  Air  Force  Specialty
Code (AFSC) to evaluate subordinates holding a different AFSC and rate
them objectively.

Applicant also contends his rater improperly wrote  his  referral  OPR
and amended his chain of command in March 1996,  as  reprisal  against
him for filing a complaint with the IG.  Applicant submitted a  “Ratee
Performance Feedback Notice” dated 19 March 1996.  However, the “Ratee
Performance Feedback Notice” is not an  official  source  document  to
indicate a change of rater.  Rather, it  alerts  the  ratee  that  his
rater was notified “30 days ago” that a performance feedback was  due.


Applicant resigned as “Chief, Anesthesia Services” on 16 February 1996
to preclude a poor performance report from his rater.  Even if another
individual had been assigned as his  rating  official,  the  rater  he
wanted to avoid could have  become  his  additional  rater  and  still
rendered a referral report.  Based on the lack of  evidence  provided,
denial of the application is recommended.

A copy of the Air Force evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded  to  the  applicant
and counsel on 14 September 1998 for review and response.  In summary,
applicant states that this was a case where  two  matters  were  on  a
collision course.  The Air Force had  implemented  a  program  whereby
nurses were “in command” over doctors -  including  doctors  who  were
these same nurses’  direct  superiors  in  the  operating  room;  and,
applicant  was  asked  to   violate   his   professional   ethics   by
countersigning records on patients he had never  seen,  thereby  lying
about the care they received.  When he tried to correct the situation,
he was punished.

A complete copy of the applicant’s and counsel’s response are attached
at Exhibits F and G.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice with regard to the  contested
Officer Performance Report (OPR) for the period closing 21 June  1996.
After a careful review of all  the  circumstances  of  this  case,  we
believe there is sufficient doubt as to the accuracy of the  contested
OPR.  We note that applicant  does  not  submit  statements  from  the
rating chain or evidence to prove that reprisal was a  factor  in  the
referral OPR; however,  applicant  did  file  Inspector  General  (IG)
complaints  and  this  may  have  reflected  bias  against  him.   The
applicant filed a complaint with the IG because his  rater  instructed
him to continue signing the  Certified  Registered  Nurse  Anesthetist
(CRNA)  forms  and  review  the   medical   records   of   the   nurse
anesthesiologists for cases he  was  not  directly  involved  in.   It
appears that applicant felt to do  as  his  rater  directed  would  be
falsifying government documents.  The IG subsequently stated that  the
regulatory guidance relating to required  anesthetist  signatures  did
not clearly delineate the CRNA and  anesthesiologist  responsibilities
and that the signature  policy  of  that  time  was  questionable  and
ultimately changed.  Therefore, in view of  these  facts,  and  in  an
effort to offset any possibility of an injustice, we recommend the OPR
in question be removed from his records.

4.  We note that the applicant requested Single Year Incentive Special
Pay effective 1 October 1996 and was willing to  extend  his  date  of
separation to meet  the  mandatory  active  duty  service  commitment.
However, the medical group commander denied  his  request.   Applicant
alleges that the withholding and subsequent denial of the special  pay
incentive was a direct result of the referral OPR and further reprisal
against him.  We believe that the with all the events that  transpired
leading up to the referral OPR, and our  recommendation  to  void  the
report, the applicant should be  entitled  to  receive  the  incentive
special pay.  Therefore, we recommend his records be corrected to  the
extent indicated below.

5.  Applicant  also  believes  that  appropriate  disciplinary  action
should be taken against three individuals  who  served  as  Air  Force
leaders at the Hill Air  Force  Base,  Utah  hospital.   However,  the
applicant should be  aware  that  disciplinary  action  against  other
individuals is not within the purview of this Board except  for  cases
filed pursuant to 10 U.S.C., Section 1034.  If he felt  strongly  that
these individuals played a part in ruining his career and contributing
to his financial demise, he should have filed  a  complaint  regarding
these individuals, with either Social Actions or the  IG.   Therefore,
this portion of applicant’s request is not favorably considered.

_______________________________________________________________________
_____________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

    a.  The Field Grade Officer  Performance  Report,  AF  Form  707A,
rendered for the period 22 June 1995 through 21 June 1996, be declared
void and removed from his records.

    b.  He was not honorably discharged from the Air Force on  30 June
1997 but continued to serve on active duty.

    c.  His request to receive Single Year Incentive Special Pay (ISP)
in his  Air  Force  Specialty  Code  (AFSC)  045A3,  was  approved  by
competent authority effective 1 October 1996.

    d.  On 30 September 1997, he  tendered  his  resignation  and  was
honorably discharged from the Air Force effective 1 October 1997 under
the provisions of AFI 36-3207 (Resign - Completion of Required  Active
Service) in the grade of major.

_______________________________________________________________________
_____________________

The following members of the  Board  considered  this  application  in
Executive Session on 24 June 1999, under the  provisions  of  AFI  36-
2603:

                  Mr. Henry Romo Jr., Panel Chair
                  Ms. Sophie A. Clark, Member
              Ms. Ann L. Heidig, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 12 Jun 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPAMF1, dated 1 Jul 98.
   Exhibit D.  Letter, HQ AFPC/DPPPA, dated 28 Aug 98.
   Exhibit E.  Letter, AFBCMR, dated 14 Sep 98.
   Exhibit F.  Applicant’s Letter, dated 13 Jan 99.
   Exhibit G.  Counsel’s Letter, dated 14 Jan 99.




                                   HENRY ROMO JR.
                                   Panel Chair



INDEX CODE:  128
AFBCMR 98-01482




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to  , be corrected to show that:

            a.  The Field Grade Officer Performance Report, AF Form
707A, rendered for the period 22 June 1995 through 21 June 1996, be,
and hereby is, declared void and removed from his records.

            b.  He was not honorably discharged from the Air Force on
30 June 1997 under the provisions of AFI 36-3207, but continued to
serve on active duty.

            c.  His request to receive Single Year Incentive Special
Pay (ISP) in his Air Force Specialty Code (AFSC) 045A3, was approved
by competent authority effective 1 October 1996.

            d.  On 30 September 1997, he tendered his resignation and
was honorably discharged from the Air Force 1 October 1997 under the
provisions of AFI 36-3207 (Resign - Completion of Required Active
Service) in the grade of major.






   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency