RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-01919
            INDEX CODE:  134.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS:

1.  Reversal of a finding of “unsubstantiated” in an Inspector General
(IG) Equal Opportunity complaint.

2.  Removal of “Substandard Performance” as the narrative  reason  for
discharge.

3.  Reversal of the conclusion of the Medical  Practice  Review  Board
(MPRB) that findings indicated “the clinical aspects of the  case  are
clear and show substandard practice.”

4.  Removal  of  the  Adverse  Action   Report   from   the   National
Practitioner Data Bank (NPDB), and expunge any Air Force,  Federal  or
State records which contain allegations of  incompetence,  malpractice
or negligence

5.  Removal of such and similar records from any and all  Privacy  Act
system of record(s) maintained, generated or caused by the Air Force.

6.  Such other or further relief the AFBCMR may deem proper.

By amendment (Exhibit E), applicant requests the following  additional
relief:

7.  The AFBCMR issue Temporary Restraining Orders enjoining AFMOA/SGOC
from disseminating the Adverse  Action  Report  through  the  National
Practitioner Data Bank (NPDB) system.

8.  A  correction  letter  be  sent  to  the   Federation   of   State
Medical/Dental Boards and to the Dental Board of CA.

9.  That the adverse action documents be removed from Section  III  of
the Provider Credentials Folder and that the Professional Staff Folder
at AFMOA/SGOC be surrendered in its entirety to the  applicant  and/or
to applicant’s appointee.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was denied legal representation and access to  pertinent  patients’
records.   AFMOA/SGOC  prematurely,   unlawfully   and   prejudicially
instructed the assigned clinical reviewer.  The professional  reviewer
was “prejudiced” in the evidence given for  review.   The  evidentiary
hearing was not in accordance with AFI 44-119.  The  Medical  Practice
Review Board (MPRB) ignored the opinion of  the  legal  reviewer,  who
indicated there was a violation of due  process.   The  rehabilitative
training provided consisted of various memoranda, notes and affidavits
conjoined with non-disclosure of  pertinent  patients’  records.   The
MPRB’s conduct of the appeal review was substandard and  violated  AFI
44-119.  Hence, the report to  the  National  Practitioner  Data  Bank
(NPDB) was unlawful and in violation of AFI 44-119.

In support of his request, the applicant submits a personal statement,
with additional documents associated with  the  issues  cited  in  his
contentions.  These documents are appended at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

On 5 Sep 97, the applicant was appointed a first  lieutenant,  Reserve
of the Air Force  (Dental  Corps).   He  was  voluntarily  ordered  to
extended active duty on 22 Sep  97  in  the  grade  of  captain.   The
applicant received one Officer Performance Report (OPR) in  the  grade
of captain, in  which  the  overall  evaluation  was  “Does  Not  Meet
Standards.”

On 6 Aug 98, the applicant was notified by his wing commander that  he
had initiated discharge action against him [applicant] for substandard
duty performance.  On 25 Jan  99,  the  Secretary  of  the  Air  Force
ordered the appointment of the applicant, as a Reserve officer, to  be
terminated and directed  that  he  be  discharged  with  an  honorable
discharge.  On 10 Feb 99, the applicant was  honorably  discharged  in
the grade of captain under the provisions of AFI 36-3207  (Substandard
Performance).  He had completed 1 year, 4 months and 19 days of active
duty service at the time of discharge.

The relevant facts pertaining to this application, extracted from  the
applicant’s military records, are contained in the letters prepared by
the appropriate offices of the Air Force.  Accordingly,  there  is  no
need to recite these facts in this Record of Proceedings.
_________________________________________________________________

AIR FORCE EVALUATION:

The Air Force Medical Operations Agency, AFMOA/SGOC, stated  that  the
applicant is a general clinical dentist who graduated from the  Hebrew
University  Dental  School,  Jerusalem,  in  1987.   He  completed  an
Advanced Education in General Dentistry Program in Cleveland, OH,  and
was awarded a license to practice from the State of CA.  He worked  in
private practice prior to entering the Air Force in 1997.  Because the
applicant  did  not  attend  an  American  Dental  Association   (ADA)
accredited dental school, he was awarded a  waiver  from  the  Surgeon
General prior to commissioning.  Applicant’s first assignment  was  to
the 8th Medical Group, Kunsan AB, Korea.

AFMOA/SGOC indicated that  concerns  about  the  applicant’s  clinical
abilities arose shortly after his arrival at Kunsan AB.  An 18 Dec  97
Memorandum for Record (MFR) from the Deputy  Flight  Commander  stated
the applicant repeatedly failed to indicate a diagnosis in most of the
records he witnessed.  An MFR from the Flight Commander, dated 15  Mar
98,  discussed  two  cases  of  inadequate   cavity   reparation.    A
rehabilitative plan was devised for the applicant which included:  (a)
continued surveillance of [his] work through  direct  supervision  and
clinical  demonstrations,  (b)  continuing  education   offerings   on
preparing  and  placing  complex  amalgams,  and  (c)  monitoring   of
indicators which are associated with defective cavity preparation.

On 24 Apr 98, the Credentials Committee notified the applicant of  the
decision to suspend his  privileges;  i.e.,  he  was  restricted  from
performing several dental procedures.  On 18 May 98, the applicant was
found by the Deputy Dental Flight CC making copies of patient  records
and when asked why, he gave  no  answer.   He  received  a  Letter  of
Reprimand (LOR) for failure to obey a lawful order (he was told  on  8
and 14 May that he was not to copy patient records).  On  26  May  98,
the applicant was presented a notice of  suspension  of  all  clinical
privileges, which was in response to  substandard  clinical  care  and
inappropriate  release  of  confidential  patient   information.    An
investigation was initiated and, on  27  May  98,  the  ADC  requested
evidence supporting the allegations.  A  19  Jun  98  letter  for  the
Credentials Function summarized numerous cases indicating a  trend  of
substandard care.  It also stated that the applicant’s  integrity  was
in question in that he disobeyed orders on several  occasions,  failed
to report to work one day and made unauthorized copies of a  patient’s
record.  A proposed revocation of his privileges was submitted by  the
8th MDG/CC.  The applicant requested  a  hearing  and  copies  of  all
documents supporting the  adverse  action.   On  11  Aug  98,  he  was
notified that the Hearing date was scheduled for 16 Sep 98 and of  the
26  alleged  incidences  of  substandard  care  and  failure  to  make
satisfactory progress in the proctoring program.   Three  days  later,
the Area Defense Counsel (ADC) advised JA that the applicant  released
him as his  military  defense  counsel.   The  applicant  submitted  a
letter, dated 31 Aug 98, acknowledging “receipt of copies  of  certain
dental records for a limited  number  of  patients  mentioned  in  the
allegations to be heard  at  the  Hearing.   He  requested  additional
documents “in their entirety.”  On 9 Sep 98, the applicant requested a
delay of the Hearing and his request was granted, with a  new  Hearing
date of 16 Nov 98, and he was also informed that legal  counsel  would
be made available to him if so requested or he could retain a civilian
attorney at his own expense.

After numerous requests for delays of the Hearing, his latest requests
of 12 Nov 98 were denied.  The Hearing was held  15-19  Nov  98.   The
applicant  submitted  a  written  note  stating  that  he  could   not
participate in the Hearing anymore  and  walked  out.   The  committee
continued to deliberate the allegations to complete the  process.   On
22  Jan  99,  the  applicant  was  provided  copies  of  the   hearing
transcripts and the committee  recommendation  of  revocation  of  all
clinical privileges.  The issue of legal representation was  dismissed
because he had adequate time to hire  a  civilian  attorney  after  he
dismissed  military  counsel.   On  5 Feb  99,  the  MFC  revoked  the
applicant’s clinical privileges and he filed an appeal on 20 Feb 99.

AFMOA/SGOC recommended denial of applicant’s  request  to  remove  the
NPDB report submitted by AF/SG based on review of  the  facts  in  the
case.  The credentials committee of the hospital initiated a  clinical
privilege action when it learned of questionable performance  and  the
applicant’s lack of willingness to seek professional assistance.   The
applicant’s professional colleagues took part in all  aspects  of  the
process and determined that the decision to revoke his privileges  was
done correctly and fairly.  The  applicant  appealed  this  action  to
AFMOA; it was reviewed and processed appropriately and  in  accordance
with  due  process.   The  revocation  of  the  applicant’s   clinical
privileges was appropriately reported  to  the  National  Practitioner
Data Bank (NPDB) following  all  applicable  due  process  and  appeal
procedures.

A complete copy of this evaluation is appended at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion  and  indicated  that  the
advisory writer’s opinion is limited, partial and illusive.  It  fails
to disclose and/or analyze all AFMOA/SGOC’s documents  in  conjunction
with this adverse action that is the  subject  of  this  NPDB  report.
Furthermore, the MPRB did not address all the  issues  raised  by  the
Clinical Review.  Inconsistent application  of  AFI  44-119  standards
throughout this adverse action only serves to confuse both the  AFBCMR
and the NPDB.  This fosters the perception that the 8th Medical Group,
AFMOA/SGOC, MPRB, et al, are not required to meet  the  same  critical
standards   or   scrutiny   applied   to   he   surrounding   civilian
medical/dental community.   The  above-mentioned  NPDB  report  is  in
violation of the conditions for participation in the NPDB system.  The
AFMOA/SGOC report to the NPDB is not correct and must be expunged from
the NPDB.

A complete copy of this response is appended at Exhibit E.
_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATIONS:

The Separations Branch, HQ  AFPC/DPPRS,  stated  that  on  6  Aug  98,
applicant’s wing  commander  gave  proper  notification  that  he  had
initiated discharge action against him [applicant] for  26  documented
instances of substandard duty performance during a 6-month period.  On
8 May 98, the applicant received a Letter of  Admonishment  (LOA)  for
failing to follow orders to report for a doctor’s appointment and  for
failing  to  report  back  to  duty  following  a  separate  afternoon
appointment that day, as instructed.  On 26  May  98,  he  received  a
Letter of Reprimand (LOR) for making unauthorized  copies  of  patient
records.   On  26 Aug  98,  the  applicant  faxed  a  brief  statement
essentially asking the Show Cause Authority to assess the  seriousness
of the allegations against him, to put them in perspective and  to  be
lenient in  making  a  decision  about  discharge  and  the  character
thereof.  The case was processed through command channels  and  on  25
Jan 99, the Secretary of the Air Force ordered the appointment of  the
applicant, as a Reserve officer, to be terminated and directed that he
be discharged with an honorable discharge.

DPPRS reviewed this case for separation processing and  there  are  no
errors or irregularities causing an injustice to the  applicant.   The
applicant did not  identify  any  specific  errors  in  the  discharge
processing nor provide facts warranting  a  change  in  his  narrative
reason for discharge.  Accordingly, DPPRS recommended the  applicant’s
request be denied.  A complete copy of this evaluation is appended  at
Exhibit F.


The Air Force Medical  Operations  Agency,  AFMOA/SGZC,  stated  that,
based on a review of the applicant’s additional submissions as well as
the original submission, they find no basis to change  their  original
recommendation to deny the relief sought.  The applicant alleges  that
his former supervisor and initiator of  the  original  adverse  action
influenced the results of the Medical Practice  Review  Board.   While
his former supervisor was assigned to Bolling AFB  during  the  review
process, his duties were at the Bolling AFB Clinic and had  no  direct
relationship with the Surgeon General’s office.  The implication  that
this proximity created  an  unfair  review  is  unsubstantiated.   The
applicant submitted a request to the Secretary of  the  Department  of
Health and Human Services to review his dispute and expunge the report
from the NPDB.  A 16 Oct 00 memorandum to  the  applicant  states  the
Secretary found “there was no basis to conclude that the report should
not have been filed.”  A complete copy of this evaluation is  appended
at Exhibit G.


The Senior Attorney-Advisor, HQ AFPC/JA, stated that  the  applicant’s
request that the AFBCMR change the finding of  the  Equal  Opportunity
complaint clarification should  be  denied.   These  allegations  were
found to be unsubstantiated on 13 May 98 after a thorough review.

JA stated that it is clear that the  applicant’s  due  process  rights
were extremely well  protected.   The  applicant  walked  out  of  the
hearing, but the Credentials Hearing Committee chose to  continue  the
hearing and not treat the applicant’s behavior as  a  waiver.   Though
AFI 44-119 allows evidence to be  presented  within  30  days  of  the
hearing, the Surgeon General decided not to  consider  such  evidence.
While the Hearing Committee members who were closest to  the  evidence
and saw no relevance in the demands for certain documents and  patient
x-rays, the Surgeon General disregarded  cases  where  such  documents
were not provided.  When the applicant dismissed his military counsel,
it was the Air Force that repeatedly reminded  him  of  his  right  to
request new counsel.  These reminders went unheeded.  But most telling
is the fact that the very allegations for which the applicant seeks to
claim procedural errors were the allegations that served as the  basis
for his discharge--a  discharge  that  he  consciously  chose  not  to
challenge.  In light of  this,  neither  the  applicant’s  credentials
records nor any other Air Force, DOD, State or professional  reporting
records should be expunged of the evidence of the  applicant’s  record
of substandard performance and dental practice.

Based on repeated and thorough reviews of the applicant’s records  and
his current application, JA concludes that the applicant’s due process
rights and substantive legal rights were fully protected and that  all
of his requests for relief should be denied.

A complete copy of this evaluation is appended at Exhibit H.
_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

AFMOA/SGOC is not  an  investigative  body  and  relies  on  documents
collected during the evidentiary  hearing.   Therefore,  he  asks  the
AFBCMR to question and challenge the premises and the  procedure  used
by the Air Force to determine the accuracy  and  completeness  of  the
“facts” and “evidence” after it has been clearly proven,  acknowledged
and documented that violation of due process and other  violations  of
AFI  44-119  indeed  occurred  at  the  Evidentiary   Hearing   phase.
AFMOA/SGZC’s  comments  about  the  Department  of  Health  and  Human
Services (DHHS) are irrelevant to the issues set forth for  review  by
the AFBCMR.  AFMOA/SGZC’s rebuttal does not  provide  any  valid  non-
discriminatory reasons for the MPRB dismissal of the timely Memorandum
(8-18-99) by the senior civilian attorney and  Legal  Advisor  to  the
Office of the Air Force Surgeon General to AFMOA/SGOC Medical Practice
Review Board (MPRB).

The AFBCMR must challenge the procedure  used  by  the  Air  Force  to
prematurely determine the accuracy and the  completeness  of  the  “26
documented instances” that would necessitate administrative  discharge
from  the  Air  Force,  while  still  the  very  same  “26  documented
instances”  were  pending  evidentiary  hearing.   The  discharge  was
pretextual.  The  allegations  unfounded,  as  they  were  promulgated
through violation of due process and violations of AFI 44-119.

It is  a  fact  that  pertinent  patients’  records  were  not  timely
disclosed or made available for the bogus evidentiary hearing in Korea
(16-19 Nov 98).  This was a violation  of  due  process  as  correctly
noted and admitted both by the Legal Advisor to the Air Force  Surgeon
General (18 Aug 98) and by the MPRB (MPRB deliberations  26  Aug  98).
AFI 44-119 does not  require  a  ‘deadline’  for  submitting  a  Delay
Request.  He submitted a timely Delay Request (10  Nov  98)  for  good
reasons.  The Memoranda and Affidavits written by  the  gentlemen  who
concocted the suspension can hardly satisfy the necessity for  inquiry
into the “cases” which were used as a pretext to cause the suspension.
 No bona fide “inquiry” with factual findings was ever  made  for  the
attention of neither the credentials function nor the  MFC.   The  8th
MDOS/CC already admitted  (12  Nov  98):  “There  are  no  reports  of
investigation or inquiry, or associated notes.”  This is in  violation
of  the  health  care  entity’s  by-laws.   AFMOA/SGOC’s  post  factum
‘suggestion’ to remove from review any  “cases”  with  documented  due
process violations is an unlawful solution.   In  the  course  of  the
substandard appeal review by AFMOA/SGOC, the Air Force  ignorantly  or
maliciously minimized and/or under estimate the extent  of  this  non-
disclosure of pertinent patient records and admitted  such  cases  for
appeal review.  The AFMOA/SGOC’s lopsided disclosure of documents  and
skewed reports to NPDB insinuating  ‘malpractice’  on  his  behalf  is
illegal.  It is construed upon pseudo ‘facts’ and half-truth  evidence
reminiscent of the infamous “Salem Witch Trials” - this  is  unlawful.
HQ AFPC/JA is mistaken in their erroneous analysis upon yet  unfounded
“facts” and ‘jumping’ to unwarranted conclusions.   Violation  of  due
process has been established and  documented  in  official  Air  Force
documents and in this rebuttal.  Under AFI 44-119 and DOD  Instruction
6025.15, the Air Force reports adverse privileging actions to the NPDB
for practitioners who have had the benefit of due  process  procedures
for professional review activities.

The AFBCMR has the authority and the responsibility to nip in the  bud
and provide the necessary Quality Assurance to the Air  Force  against
his  former  superior,  her  pseudo  “quality  assurance”  agency   as
reflected in the bogus and substandard report to the NPDB.  It is  the
duty and the moral responsibility of the  AFBCMR  to  block  this  Air
Force fiasco now at this level of administrative review.

A complete copy of this response is appended at Exhibit J.
_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice.  After a thorough review
of  the  evidence  of  record  and  applicant’s  submission,  we   are
unpersuaded that he has been the victim of an error or  an  injustice.
His contentions are duly noted; however, in our opinion, the  detailed
comments provided by the  appropriate  Air  Force  offices  adequately
address those allegations.  Therefore, we agree with the opinions  and
recommendations of the Air Force and adopt the rationale expressed  as
the basis for our decision that the applicant has  failed  to  sustain
his burden that he has suffered either an error or an  injustice.   In
view of the above and absent evidence to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable  material  error  or  injustice;
that the application was denied without  a  personal  appearance;  and
that the application will only be reconsidered upon the submission  of
newly  discovered  relevant  evidence   not   considered   with   this
application.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 24 April 2001, under the provisions  of  AFI  36-
2603:

                  Mr. Thomas S. Markiewicz, Vice Chair
                  Mr. Mike Novel, Member
                  Mr. Billy C. Baxter, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 10 Jul 00, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFMOA/SGOC, dated 28 Aug 00, w/atchs.
   Exhibit D.  Letter, SAF/MIBR, dated 16 Sep 00.
   Exhibit E.  Letter from applicant, dated 9 Oct 00, w/atchs.
   Exhibit F.  Letter, HQ AFPC/DPPRS, dated 13 Nov 00.
   Exhibit G.  Letter, AFMOA/SGZC, dated 20 Nov 00, w/atch.
   Exhibit H.  Letter, HQ AFPC/JA, dated 29 Dec 00.
   Exhibit I.  Letter, SAF/MIBR, dated 12 Jan 01.
   Exhibit J.  Letter from applicant, dated 6 Feb 01.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair