RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 01-01668
INDEX NUMBER: 108.00; 134.02
XXXXXXXXXXX COUNSEL: Eugene R. Fidell
XXX-XX-XXXX HEARING DESIRED: Yes
_______________________________________________________________
APPLICANT REQUESTS THAT:
All references to limitations imposed on her medical practice,
including but not limited to any reference to any requirement for
monitoring, evaluation or supervision by others be removed in its
entirety from her records.
She be deemed to have remained on active duty for an additional year
from the date of her discharge and paid all applicable backpay and
allowances.
She be provided a proper, impartial medical evaluation board (MEB)
followed by a physical evaluation board (PEB) to determine whether she
was fit for duty at the time of her discharge or, in the alternative,
entitled to disability retirement or severance pay.
_______________________________________________________________
APPLICANT CONTENDS THAT:
Counsel for the applicant submits an 18 page “Brief” with attachments
that details the applicant’s case. Between 25 and 28 Apr 00, the
applicant was the subject of a credentials hearing. The Air Force’s
conduct leading up to, in, and following that hearing is outrageous and
unfair, and all references to the hearing should be expunged from the
applicant’s military records.
The following seven allegations were addressed by the hearing
committee:
1. Deficient data gathering.
2. Deficient clinical formulation.
3. Deficient treatment plan formulation/execution.
4. Ineffective collaboration with colleagues.
5. Lack of focus in her role as a child psychiatrist.
6. Difficulties in maintaining appropriate boundaries with
patient’s parents.
7. Deficiencies in responding constructively to supervision.
The hearing committee found that allegations 5 and 6 were
unsubstantiated but sustained the remainder. It concluded that the
applicant “is incapable of practicing independent as a child and
adolescent psychiatrist at this time” and recommended that her clinical
privileges remain restricted but not revoked and that before she is
considered for reinstatement, she “successfully complete a repeat of a
two-year program in child and adolescent psychiatry. If the applicant
is unable to complete the above requirements then this should be
grounds for consideration for full revocation of privileges.”
On 26 Jun 00, the commander approved the recommendations of the
committee, but changed the bottom line. He directed that the applicant
be granted restricted clinical privileges and that to practice, the
applicant had to undergo 100% direct clinical supervision from a board
certified child and adolescent psychiatrist. This meant that the
applicant’s supervisor must be physically present for part or all of
every clinical visit to precept her, review the case, and co-sign chart
entries before the patient/family leave the clinic. Her privileges
would remain restricted until she demonstrated the ability to practice
independently in a clinically competent fashion and within the standard
of care for a period of at least one-year. Monthly updates would be
presented in writing to the Credential Review Function by her direct
supervisor outlining her progress towards obtaining these goals.
Shortly afterwards, the applicant was released from active duty,
although she had requested an extension. She was never afforded an
opportunity to receive the supervision that had been ordered by the
commander.
On 8 Sep 00, the applicant submitted a Provider Appeal from the
commander’s final decision to the Air Force Medical Operations Agency
(AFMOA) (attached). In the appeal, the applicant raised procedural
objection to the hearing. During the period that the applicant waited
for a decision, she was compelled to disclose the adverse action both
to her state licensing agency and potential employers. Air Force
medical authorities at her previous base of assignment duly
communicated ex parte detailed information about the matter to those
authorities, noting pending appeal to the Surgeon General. As a
result, the applicant lost valuable employment opportunities and was
required to participate in a 7 Feb 01 hearing before the Investigation
Committee of the Oregon State Board of Medical Examiners. That Board
soon after approved her application for an unrestricted license.
By letter dated 9 Apr 01, the AFMOA commander advised the applicant
that after consideration of recommendations of the Medical Practice
Review Board, the restriction imposed by the applicant’s Medical Group
commander had been overturned and that her privileges were being
reinstated, with a required period of monitoring and evaluation (not
otherwise explained either as to duration or other specifics). Upon
receipt of the letter, applicant and counsel sent an e-mail requesting
clarification of the “required period of monitoring and evaluation” and
what it would consist of. After much back and forth communication, the
applicant and counsel were provided with a copy of AFMOA’s 28 Mar 01
letter to Ramstein reporting the outcome of the Review Board’s
deliberations, as well as a summary of the board’s rationale. The
summary was redacted by the Air Force, so they have no inkling of what
the Review Board’s rationale was for rejecting the applicant’s
procedural objections to the proceedings in Germany. Other than the
fact that the Clinical Reviewer felt that the one-year restriction was
appropriate and thought that she should have been able to set her own
limits, the applicant does not know and cannot learn what advice the
Surgeon General received concerning her case, either from the anonymous
Clinical Reviewer or Legal Advisor. They do know that the applicant
prevailed on important aspects of her appeal and on others she did not.
Specifically, the unperformable monitoring and evaluation requirement
remains a part of her record, and she prejudicially remains under an
obligation to disclose the original 1999 suspension.
The Review Board’s decision is defective for several fundamental
reasons:
1. Important procedural objections lodged by the applicant
with respect to the hearing committee process and the seeming
application of a regulation that was not in effect have apparently
disregarded or, if they have been ruled upon and rejected subsilentio,
The Review Board’s reasoning has not been disclosed. It is irrational
for the Review Board to have concluded that a period of monitoring and
evaluation was appropriate without addressing such issues as whether
the sequence of events were affected by severe and rampant documented
personality conflicts, which the command failed to manage proactively.
2. The Review Board’s decision to require a period of
monitoring and evaluation rests on an evidentiary basis that the Board
itself found inadequate. The Review Board was not at liberty simply to
ignore, or fail to explain its rulings on the applicant’s procedural
objections and equitable arguments. Because it failed to explain how,
if at all, it dealt with those objections and arguments, the Review
Board’s decision to require a period of monitoring and evaluation is
arbitrary and capricious and an abuse of discretion and must be set
aside. The applicant is also entitled to relief because the very
reasons relied on by the Review Board in support of its reversal of the
action it was reviewing apply equally to the Board’s own decision.
Specifically, it determined that the hearing committee’s action could
not be sustained because the committee did not itself review actual
patient records, and the few records that were reviewed were not
randomly selected. The same flaw infects the Review Board’s
proceedings. It did not review patient records and the only sample
described in the record was the same one it found defective when relied
upon by the hearing committee. The Review Board’s discussion contains
three observations that cumulatively raise a grave issue of fairness.
Specifically, the board noted that (1) implementation of the original
monitoring and evaluation may have obviated the need for a privilege
action, (2) the lack of documentation to support that an opportunity
for remediation through monitoring and evaluation by a peer was given
full consideration, and (3) there was insufficient time to provide such
supervision because the applicant was separating from the Air Force.
On 14 Jun 00, before her separation, the applicant requested that she
be permitted to remain on active duty. She reiterated this a week
later, and was told that such a request would not be recommended for
approval. Given the Air Force’s desire to retain physicians, it is
clear that had the adverse credentialing recommendation not been made,
she would have been retained on active duty. This is reinforced by the
fact that AFMOA approved a period of monitoring and evaluation that of
course cannot be effected because she was not on active duty.
Counsel’s complete submission, with attachments, is at Exhibit A.
_______________________________________________________________
STATEMENT OF FACTS:
The applicant served on active duty for a period of eight years, five
in training programs and three as a practicing child psychiatrist. In
April 2000, she was the subject of a credentialing hearing in which
five of seven allegations against her were substantiated. The hearing
panel concluded the applicant was incapable of independent practice as
a child and adolescent psychiatrist, but recommended restricted
privileges be granted. The panel also suggested applicant complete a
two-year program in child and adolescent psychiatry and if unable, that
the credentials be revoked.
Applicant submitted a statement of exceptions to the hearing decision
on 16 June 2000. The final decision on 26 Jun 00 was to reinstate
privileges restricted to 100% direct clinical supervision, by a board
certified child and adolescent psychiatrist until applicant
demonstrated the ability to practice independently. This would be
followed by at least an additional one-year restriction. Upon
demonstration of competence, it was implied that applicant’s
credentials could be restored. The applicant separated from the Air
Force on 30 June 2000 after the expiration of her Active Duty Service
Commitment.
On 8 September 2000, applicant appealed the restrictions placed on her
clinical privileges for professional incompetence to the Air Force
Medical Practice Review Board (AFMPRB), alleging numerous errors with
the conduct of the hearing and its conclusions. The AFMPRB agreed in
part and on 28 March 2001, overturned the restriction as an adverse
privileging action and reinstated applicant’s privileges, but required
a period of monitoring and evaluation.
_______________________________________________________________
AIR FORCE EVALUATION:
The BCMR Medical Consultant recommends that the applicant’s request for
MEB/PEB consideration be denied, but her request for expungement of all
references to the credentialing action be further reviewed by proper
legal authority, and that a decision regarding this issue be determined
based on their decision and advisory.
The applicant’s recognized medical and psychological disorders were not
unfitting for performance of her military duties once she was already
commissioned. Appropriate evaluations and treatments were initiated
for the established diagnoses. The Ehler-Danlos Syndrome (EDS) (a
congenital abnormality of her connective tissue) is not cause for a
finding of unfitness and clearly was a part of the applicant’s genetic
makeup she brought with her to the military. As she had no unfitting
conditions upon which to base disability processing, she was
appropriately not evaluated in that system and approval of her present
request for such disability consideration is not warranted or
recommended.
The complete evaluation is at Exhibit C.
AFPC/DPPD recommends denial of the applicant’s request for an MEB/PEB.
Individual’s military records reflect the applicant was identified for
a medical examination on 9 May 00 due to her pending voluntary
separation. Although some previous mention was made in her medical
records that she was going to undergo an MEB, a review of the medical
data from her 14 Jun 00 appointment does not point to any severe or
grave medical conditions, which would have required that she be
presented before an MEB. Comments in her medical records (one day
prior to her discharge) by her provider states: “It is agreed that her
current diagnoses do not warrant a medical board and that she would be
able to continue her duties in her current medical condition, although
with limited profile. Although her condition could progress to
requiring an MEB, there is no current indication and no way to predict
a future need. Therefore, I will not initiate a medical board.”
The fact that a person may have had a medical condition while on active
duty does not automatically mean that the condition is unfitting for
continued military service. Although some of the applicant’s medical
conditions may have been onset prior to her discharge, they were not
severe enough to prematurely curtail her military career. In cases
where medical principles and the preponderance of evidence appear to
indicate certain medical conditions existed while in service, the
Department of Veteran Affairs (DVA) can rule in favor of the veteran
and classify their condition as service-connected, thereby qualifying
the member for DVA compensation and treatment under Title 38, United
States Code.
The complete evaluation is at Exhibit D.
AFMOA/SGZC recommends denial of the applicant’s request to expunge the
record of her suspension. Suspension of the applicant’s privileges was
authorized by AFI 44-119 and was done so appropriately at the
discretion of the commander who had a valid reason for invoking the
suspension.
Questions about the applicant’s clinical abilities arose shortly after
her arrival at the Pediatric Behavioral Management Clinic in the summer
of 97. These were formalized during a peer review in April 1998, but
not found severe enough to warrant a privileging action at that time.
A formal supervisory plan was, however, put into effect to monitor her
clinical practice. She was moved to another clinic to allow peer
support and consultation. On 11 Oct 99, while she was on call she did
not respond to an ER request to come in. This prompted a second
complete review of her clinical practice. As a result, her privileges
were placed in abeyance, and eventually suspended while an
investigation ensued.
A credentialing hearing was eventually convened, as requested by the
applicant, and recommended restriction of all privileges and required
100% supervision of all patient encounters and chart review.
Privileges were to be restricted for a period of one year, at which
time a second review would be performed to see if the privileges could
be restored to full independent practice. The applicant appealed this
decision to AFMOA/CC. After reviewing the deliberations and
recommendations of the Air Force Medical Practice Review Board,
AFMOA/CC overturned the MTF Commander’s restriction of the applicant’s
privileges. He recommended full reinstatement of privileges, but
required a period of monitoring and evaluation. The MTF Commander and
the applicant were notified of this decision. No reports were made to
the National Practitioner Data Bank.
The following addresses the specific allegations that form the basis
for the applicant’s appeal:
1. The Air Force’s conduct leading up to, in and following
that hearing is outrageous and unfair. Specifically, the applicant
alleges that some committee members had conflicts of interests, and
that the commander based his decision on a version of an AFI that had
not yet taken effect.
The MTF Commander determined, with the advice of the base legal office,
that it was not necessary to recuse certain members of the
credentialing committee that the applicant believed had conflicts of
interest. In regards to the commander basing his decision on a version
of an AFI that had not taken effect, his letter announcing his final
decision clearly refers to AFI 44-119, Chapter 4, which was the version
in effect at that time. However, even if an error in terminology were
made, it would not have had an impact on the final outcome.
2. There was a prejudicial delay by the MPRB.
The MTF Commander’s final decision was rendered on 26 Jun 00, and the
AFMOA/CC decision was signed on 28 Mar 01. The adverse action process
allows a provider 10 days to submit an appeal of an adverse privileging
action. This office honored a request on 14 Jul 00 for a one-month
extension. An additional extension request was granted on 10 Aug 00
and her appeal, dated 8 Sep 00 was received in the latter part of Sep
00. There was no attempt to unduly delay this action.
3. The applicant struggled to obtain a copy of the Military
Practice Review Board minutes.
These minutes are protected from disclosure IAW 10 USC 1102 and
historically have not been released to a provider undergoing a
privileging action. However, the applicant’s attorney obtained a copy
after extensive discussions with the SG legal advisor. The identity of
the MPRB membership is protected form disclosure per 10 USC 1102.
4. The applicant’s privileges were improperly suspended.
AFI 44-119, Chapter 4, Paragraph 4.7 states that an individual’s
privileges become suspended if the clinical concerns are not resolved
prior to the end of the abeyance period. This action was appropriately
taken after reasonable deliberation. It remains a part of her record
because it was indeed a factual event leading to the ultimate
disposition of her case.
5. The Review Board’s decision is arbitrary and capricious and
unsupported by substantial evidence.
The MPRB is comprised of a group of medical and legal professionals who
review each case thoroughly for appropriate due process and clinical
deficiencies, and make recommendations to the Air Force Surgeon
General. There was evidence that the applicant had some deficiencies
in her clinical practice, but they did not rise to the level warranting
a restriction of her privileges and making a report to the National
Practitioner Data Bank. Given the concerns noted, however, the MPRB
could not, in good faith, recommend she be returned to duty completely
unrestricted.
6. The Review Board’s own rationale refutes the board’s
decision.
The final recommendation was to return to the original monitoring and
evaluation plan that was never carried out. This information would be
provided to any facility or agency requesting information about her
privileging status.
The complete evaluation is at Exhibit E.
_______________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant responded to the Air Force evaluations through a 12 page
Brief of Counsel. Counsel addresses the applicant’s request for a MEB
and the credentialing issue.
Counsel states that AFPC/DPPD’s assertion that the applicant did not
submit any material or documentation to show that she was unfit due to
a physical disability at the time of her “voluntary discharge” is
plainly wrong and suggests that the author did not read the
documentation they submitted. Their advisory opinion fails to take
into account in any way the fact that the applicant was improperly
denied a professionally conducted discharge physical. The physical she
received was a sham. The physician to whom she was required to report
never examined her that day. The physician’s commander had already
determined the outcome of this physical. The day before, the
applicant’s commander had announced to her that she did not “qualify”
for an MEB.
Counsel refers the Board to the applicant’s 8 Sep 00 Provider Appeal
Brief (p.10, and enclosures 19-20) included with her BCMR application
for details of how the “putative” physical was conducted. Counsel
disagrees with the assertion that the applicant can always go to the VA
(which she has done). If the applicant had unfitting conditions, as
the record indicates, she had a right to an MEB. She also had a
further right, if called by an MEB and normal review, to a statutory
full and fair hearing before a physical evaluation board. The VA
cannot grant military retirement. VA benefits are not identical with
military retirement benefits.
Counsel questions the allegation that the applicant’s military records
clearly reflect that she was able to perform her military duties up
until her discharge. He asserts that the applicant was assigned menial
tasks from the time her privileges were suspended in Oct 99 until her
discharge on 30 Jun 00.
AFPC/DPPD’s evaluation relied on the 26 Sep 01 evaluation prepared by
the BCMR Medical Consultant concerning the medical aspects of the case.
Counsel indicates that while they agree with the BCMR Medical
Consultant’s view regarding the expungement of the records of the
credentialing action, they believe the evaluation is otherwise flawed
due to his conclusory comments regarding her Ehler-Danlos Syndrome and
his failure to address with particularity a variety of the symptoms and
conditions that the applicant identified. Counsel discusses the
applicant’s medical conditions and why she was entitled to an MEB.
In regards to the evaluation prepared by AFMOA, Counsel asserts that
they have failed to provide substantive responses to the errors he and
the applicant have pointed out. Counsel also indicates that AFMOA’s
summary of the factual background of the case is incorrect and he
provides what he asserts is the correct summary of events.
The complete submission by Counsel is at Exhibit G.
_______________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
Pursuant to the Board’s request, HQ USAF/JAG evaluated this
application. They concur with the opinion of the BCMR medical
Consultant to grant the applicant’s request for expungement of her
records pertaining to the credentialing action. However, they
recommend that applicant’s request that her records be corrected to
show she remained on active duty until 30 June 2001 be denied. They
also recommend that applicant’s request for MEB/PEB be denied.
The complete evaluation is at Exhibit H.
_______________________________________________________________
APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
Applicant responded through counsel to the Additional Air Force
evaluation. They agree with the recommendation on the credentialing
action.
Regarding whether the applicant should be deemed to have remained on
active duty, they disagree with their recommendation to deny this
request. The evaluation incorrectly suggests that the applicant
requested separation. Instead, it was a function of the expiration of
her HPSP Active Duty Service Commitment, rather than a request on her
part. Counsel states that applicant indicated a desire to remain on
active duty, but given the reaction of her command understood that it
would have been futile to submit a formal request. In light of the
monitoring and evaluation condition placed on the applicant, it was
fundamentally unfair not to allow her a chance to satisfy it within the
Air Force.
As for whether the command’s efforts to exclude the applicant from the
MEB/PEB process was fair or proper, the evaluation adds nothing, but
simply expresses agreement with views previously submitted by AFPC/DPPD
and the BCMR Medical Consultant.
Counsel’s complete response is 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. Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice regarding the applicant’s request that
her record be cleared of all reference to the suspension and
credentialing action against her, including the Review Board’s decision
and the Review Board approved requirement for monitoring and
evaluation. We accept the determination and recommendation of the BCMR
Medical Consultant, supported by HQ USAF/JAG, that in view of the
follow-up action taken by the Air Force Medical Operations Agency,
there was, in essence, no valid credentialing action in the first
place, and removal of all references to such action would be
appropriate. Therefore, in the interest of equity and justice, we
recommend that the applicant’s record be corrected as indicated below.
4. Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice regarding the applicant’s request
for a Medical Evaluation Board and her request that her record reflect
that she was retained on active duty for a year beyond her present
separation date. We accept the findings of the BCMR Medical Consultant
that the applicant did not have an unfitting medical condition
warranting processing under the Air Force disability system. While
taking note of the relief we have recommended above, we do not find any
grounds to support extending the applicant’s separation date. We do
not agree with the apparent argument by counsel that the requirement
for a one-year period of monitoring was reason for the applicant to
have been retained on active duty. This requirement and the
applicant’s impending separation appear to be a coincidence of timing.
There is no evidence that the amount of time the applicant had left in
service was a determinant in the monitoring requirement. At any rate,
we note, as pointed out by HQ USAF/JAG, that the applicant did not
submit a formal withdrawal of her separation request. Therefore, we
find no compelling basis to recommend granting this portion of the
relief sought in this application.
5. 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 issues involved. Therefore,
the request for a hearing 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 all references to the
suspension and credentialing action against her, including, but not
limited to, the decision of the Air Force Medical Practice Review
Board, the requirement to undergo a period of monitoring and
evaluation, and all other adverse information related to this action be
removed from her records and sequestered.
_______________________________________________________________
The following members of the Board considered Docket Number 01-01668 in
Executive Session on 19 June 2002, under the provisions of AFI 36-2603:
Mr. Roscoe Hinton, Jr., Panel Chair
Mr. Thomas J. Topolski, Member
Mr. Mike Novel, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 10 May, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, BCMR Medical Consultant,
Dated 26 Sep 01.
Exhibit D. Memorandum, AFPC/DPPD, dated 31 Oct 01.
Exhibit E. Memorandum, AFMOA/SGZC, dated 12 Feb 02.
Exhibit F. Letter, SAF/MIBR, dated 8 Mar 02.
Exhibit G. Letter, Applicant’s Counsel, dated 8 Apr 02,
W/atch.
Exhibit H. Memorandum, HQ USAF/JAG, dated 13 May 02.
Exhibit I. Letter, AFBCMR, dated 16 May 02.
Exhibit J. Letter, Applicant’s Counsel, dated 3 Jun 02.
ROSCOE HINTON, JR.
Panel Chair
AFBCMR 01-01668
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 XXXXXXXXXX, XXX-XX-XXXX, be corrected to show
that all references to the suspension and credentialing action
against her, including, but not limited to, the decision of the Air
Force Medical Practice Review Board, the requirement to undergo a
period of monitoring and evaluation, and all other adverse
information related to this action be, and hereby is, removed from
her records and sequestered.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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