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
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