| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy L. Amos | Analyst |
| Mr. Samuel A. Crumpler | Chairperson | |
| Mr. Mark D. Manning | Member | |
| Mr. Robert L. Duecaster | Member |
APPLICANT REQUESTS: That all reference to her withdrawal from the Clinical Psychology Residency Program (CPRP) and termination from the Health Professions Scholarship Program (HPSP) be expunged; that her records be corrected to show she successfully completed the residency program as of 15 September 2000, and that she be granted such other and further relief as may be just and proper. She respectfully requests a personal hearing.
APPLICANT STATES: The applicant defers to counsel.
COUNSEL CONTENDS: That the applicant entered the Ph.D. program in counseling psychology at Auburn University in late 1994 and completed her course work in 1998. In 1996, she had been selected for the Army's HPSP with a view to completing a residency at Walter Reed Army Medical Center (WRAMC) in 2000.
Counsel states that at WRAMC, the applicant participated in the CPRP from June 1999 until August 2000, when she was pressured to withdraw following a departmental vote to recommend her termination. On 18 June 2002, she was involuntarily terminated from the HPSP on the basis of her withdrawal from the CPRP.
Counsel states that despite some rough spots, the applicant performed satisfactorily in the course of the CPRP. She received a number of favorable reviews and, in areas in which she needed additional training, she sought such training (although it is disputed whether she received the additional training she wanted). Her area of interest is counseling psychology (in which her doctoral work concentrates) rather than clinical psychology, which is the core program at the WRAMC Psychology Department.
Counsel states that in spring of 2000, the applicant was placed on probation and required to complete an additional 6 weeks' rotation in in-patient psychology. She completed the rotation and was scheduled to graduate on 15 September 2000, a few weeks after her 3 male classmates. She was given every reason to believe that she had satisfactorily completed her additional rotation and that her performance met CPRP standards. The department even included her in the 2000 commencement brochure. In addition, she was told that her next assignment would be as a staff psychologist at Fort Knox, KY.
Counsel states that the applicant's graduation was derailed in August 2000 when the department faculty voted to recommend her termination. This derailment proceeded from an incident in July 2000, when she was called upon to do a routine intake evaluation on a Navy civilian employee. She did the evaluation on 3 July 2000. She discussed the matter on two separate occasions with her superior, Lieutenant Colonel (LTC) J___ (a licensed psychologist who holds a Ph.D. in counseling psychology), who "signed off" on her evaluation, which determined the employee as having no diagnosis. The evaluation was furnished to the employee's Navy management, which was extremely displeased by it. The employee had displayed symptoms – such as hearing voices—that suggested serious mental problems. The Navy called the applicant to express their surprise. LTC J___ scheduled the employee for a second visit. On the second visit, LTC J___ conducted the interview, with the applicant as an observer, and diagnosed the employee as psychotic.
Counsel states that only after the applicant's initial, solo session with the Navy employee did she learn the evaluation was command-directed for security clearance purposes. Before long, efforts were made to gather as many critical comments about the applicant as possible. On 9 August 2000, she was advised her termination from the CPRP was recommended. She did not graduate although she remained in good standing in her doctoral program at Auburn University.
Counsel states that the Army then took steps to terminate the applicant's participation in the HPSP. Contrary to the Army's apparent construction, the HPSP statute does not require that the applicant's residency be conducted at WRAMC or, for that matter, any other military medical care or training facility.
Counsel states that, in congressional and other correspondence, the Army Medical Department (AMEDD) has taken the position that LTC J___'s remote-control evaluation of the Navy employee is acceptable under Department of Defense (DOD) and service regulations. Thus far, the DOD Inspector General (DODIG) appears to have reached the same conclusion. This is the core of the applicant's first issue. Under DOD, Army, and Navy regulations, only a licensed mental health provider can conduct a psychological evaluation performed for security clearance purposes. This was specifically pointed out in the Navy's correspondence sending the civilian employee to WRAMC for evaluation. WRAMC ignored this requirement. The Army position is that these regulations have been satisfied because a licensed provided signed off on the initial consultation. This is patently contrary to the regulations.
Counsel states that, while the applicant's residency had its ups and downs, at the time of the unpleasantness arising out of the Navy employee's evaluation she was in good standing and scheduled to graduate from the CPRP. Had the Army followed applicable rules, the applicant would not have been placed in the position of having to evaluate the Navy employee in the first place. To force an officer out of a professional residency program because of a controversy promoted by the program's own violation of regulations is intolerable and a serious error and injustice which the Board must rectify.
Counsel states that the applicant's termination from the HPSP was an additional error and injustice for two reasons. First, the proposal to terminate her rested expressly on her withdrawal from the CPRP. Hence, because that withdrawal was itself an error and injustice, the HPSP termination that flowed from it was equally improper and unfair. Second, the HPSP administrators proceeded on the mistaken assumption that the applicant no longer qualified for participation in the HPSP once she was no longer in the CPRP. This is incorrect because she remained a graduate student in good standing in the doctoral program at Auburn University.
EVIDENCE OF RECORD: The applicant's military records show:
She was commissioned a second lieutenant in the U. S. Army Reserve on 13 March 1996. On that date, she signed a Department of the Army Service Agreement, F. Edward Hebert Armed Forces Health Professions Scholarship Program. In paragraph 9 of this agreement, she acknowledged that if she were qualifying for a degree (Ph. D) in clinical or counseling psychology, she would apply in accordance with applicable Army directives for the first Army Clinical Psychology Internship Program (CPIP) (this term is hereafter used interchangeably with CPRP) commencing after completion of the academic classroom instruction and participate, if selected by the Army, in an active duty status.
In paragraph 9, the applicant also acknowledged that she understood that she would automatically be terminated [from the HPSP] on the last day of her 13th month on active duty. She understood that if she failed to meet all requirements and did not obtain her degree when scheduled, she would be terminated from the HPSP.
The applicant entered active duty as a captain on 8 June 1999 and entered the CPRP at WRAMC.
The following information was obtained from the applicant's application for correction of military records.
At Auburn University, the applicant focused her training on therapeutic counseling. At WRAMC, the CPRP focused on the interpretation of psychological assessment tools.
A 30 September 1999 memorandum for record (MFR) from Major S___, Director of Training, CPRP, noted that the applicant had in early August mentioned her difficulty in the supervisory relationship with Major D___. The applicant felt Major D___ spent most of the time in creating unnecessarily lengthy intake reports with too much detail for format and relatively little time in helping the applicant with conceptual issues in treating some very difficult cases. Major S___ advised her to talk with Major D___ regarding the supervision issues.
In the 30 September 1999 MFR, Major S___ continued with noting that at the beginning of September, he learned that the applicant continued to have personal difficulty with Major D___ and had been discussing her issues with the other residents. In speaking with the applicant around the week of 13 through 17 September, Major S___ was told that the applicant had spoken with Major D___ and that little change had taken place. The applicant was still spending a great deal of time after duty hours trying to complete the requirements regarding intake notes/evaluations. The applicant stated that she would refuse to change items on reports about which there was disagreement, such as diagnosis or treatment. Major S___ advised the applicant that her supervisor (Major D___), as the licensed provider in the supervisor-supervisee relationship, held ultimate responsibility for the patient's welfare and that a requirement by the supervisor to make changes in diagnosis and/or treatment would need to be honored. The applicant stated she would consider leaving the internship if she could not change supervisors.
The 30 September 1999 MFR continued with Major S___ noting that he spoke with Major D___ that same week and learned that the applicant had not spoken with her (Major D___) of the issues surrounding supervision and the applicant's personal problems with her. On 20 September 1999, Major S___ spoke again with the applicant who agreed that she had not actually confronted Major D___. Major S___ perceived the applicant as not wishing to be contentious with Major D___ but continued to see Major D___ as "pathological" in her requirements and to be at fault for the problems the applicant was having. On 30 September 1999, Major S___ and Colonel C___ (Chief, Department of Psychology) agreed that the applicant should change supervisors.
Apparently shortly after 30 September 1999, the applicant was provided a new supervisor, LTC J___.
In a memorandum to the applicant, dated 13 October 1999, Major S___ informed the applicant that the Training Faculty met to discuss the overall progress of CPRP residents. The faculty wished to be supportive and helpful toward her success in the program. The Training Faculty determined she needed improvement as follows: (a) complete her chart work in a timely manner to include intake notes, case notes, and evaluations; (b) follow through with guidance and instructions from her supervisor; (c) and maintain respect for faculty, other providers, and superior officers.
A Periodic Comprehensive Exam, dated 1 November 1999, shows the applicant passed the exam with a score of 3.8 (out of possible 5). Comments included "Did well on the questions. Her presentation lacked detail at times. Adequate conceptualization. Better integration of test data is indicated."
In a 16 November 1999 MFR, Major S___ noted that he was pleased to see the applicant progress in several areas. He noted that, with some minor and temporary problems, she had positively responded to the three areas of concern.
On or about 18 November 1999, the applicant passed her Child Psychology rotation.
In his November 1999 to 30 January 2000 Supervisory Review and Intern Skills Inventory, LTC J___ rated the applicant as generally a "2" (meets standards -- adequate to above average for level of training) in most rated areas. In Conceptualization Skills, he rated her as all "2s." He commented that she made a great deal of progress but needed further development with conceptualization. In Communication Skills, he commented that she had done a fine job. In Consultation Skills, he rated her as a "1.5" in the area of demonstrating confidence in psychological skills. He commented that she needed more confidence in herself as a psychologist and officer.
In Treatment Skills, LTC J___ rated the applicant as "-2" in the areas of maintaining focus and control of sessions and appropriate assignments and behavioral prescriptions. He commented that she needed more exposure to a variety of treatment strategies. In Professional and Ethical Conduct, he rated her as "-2" in the area of professional manner and conduct. He rated her as a "1" in the area of following established procedures for meeting administrative requirements, charting, and notes. He rated her as a "–2" in the area of punctuality for patient contacts and meetings. He commented that she needed to be more attentive to timeliness regarding patients and the social mores of being a doctor and must pay more attention to charts and administrative matters.
In Motivation to Learn, LTC J___ rated the applicant as all "2s" with a number of "2+s."
In a memorandum for the Professional Education and Training Committee (PETC) dated 14 March 2000, Major S___ and Colonel C___ recommended the applicant be placed on probation until the successful completion of the inpatient rotation. The inpatient rotation was projected to end for her on 12 May 2000, 6 weeks beyond the normal ending date. The request noted that of greatest concern was the applicant's consistent failure to accurately gather information, synthesize the information, conceptualize the problem, and render an appropriate diagnosis. On her first 2 attempts, she missed rather obvious diagnoses of psychosis. On the subsequent attempt, she correctly identified psychosis but was unable to differentiate the nature of the illness. The Clinical Psychology Training Committee had serious concerns regarding her ability to function independently, particularly as regards conceptualization and diagnosis.
By memorandum dated 4 April 2000, Colonel P___ (Director, Medical Education) informed the applicant that the Program Director for the Psychology Residency Program, WRAMC, recommended that she be placed on probation due to her failure to progress satisfactorily in her residency training. A copy of the Program Director's letter to the PETC was attached for her information. She was notified she had a right to be present at a 21 April 2000 meeting to present any matters in her own behalf, to rebut any evidence that was presented against her, and to submit any written evidence concerning relevant issues that she desired to be considered by the committee.
By MFR dated 7 April 2000, Major S___ noted that he met with Colonel C___ and the applicant regarding the probation. The applicant signed the 4 April 2000 memorandum on 7 April 2000. The applicant was advised that she could attend the board and represent herself as part of due course but she was also advised that it would probably be best only to attend if she were to dispute the probation. She apparently declined to be present at the 21 April 2000 probation hearing. Major S___ also noted that he had discussed her assignment post residency with the applicant (that she would remain at WRAMC as psychology staff).
The hospital commander's approval of the recommendation to place the applicant on probation is not available. In later correspondence, counsel for the applicant acknowledged that the hospital commander's approval action was available; however, apparently the applicant was not furnished a copy of the signed action until after she was terminated from the CPRP.
The applicant apparently failed a Transition to Practice Exercise dated 10 April 2000, receiving a score of 2.55 out of a possible 5. (Counsel argued that there was some ambiguity about her failing the exercise, as Major S___ advised her that she "did fine" at the time and it was not until after she left the program that she was provided the exam results.)
A Rotation Evaluation for Inpatient Psychiatry, rotation dates 14 January to 26 May 2000, rated the applicant as a "1" in the area of conceptualizing "clinical issues, diagnosis, etc., with appropriate sophistication" and "2" for "meeting rotation goals/requirements." ("1" – strongly disagree; "2" – disagree; "3" – neutral; "4" – agree; and "5" – strongly agree.) She received four "4s" and two "5s" in the other six rating areas. It was noted that the applicant demonstrated some progress during the extended inpatient rotation but she continued to demonstrate significant weaknesses in her diagnostic skills and significant deficiencies in adequately completing a complete and integrated psychological evaluation. Additional remediation would be needed.
In an evaluation (it cannot be determined if it was the Inpatient Psychiatry Rotation Evaluation or a different evaluation), two out of three of the applicant's evaluators rated the areas of "Were the relevant system factors that could influence the validity of the evaluation (e.g., strong desire to be discharged from the military)" and "Other traits/characteristics of importance" as "1" (not met). The third evaluator rated the "Other traits/characteristics of importance" area as "2" (met) but did not rate the other area (i.e., "were the relevant…"), merely annotating the area with the comment, "no detail." One of the evaluators sent the applicant an email on 31 May 2000 telling her, "Congratulations! I thought you did a very good job."
By memorandum dated 26 May 2000, the Department of the Navy requested a security mental evaluation be conducted on one of its civilian employees, who agreed to undergo the evaluation. The memorandum noted that a "board certified" health professional should conduct the evaluation. It requested that two enclosures be provided to the designated examining doctor (the first enclosure not to be released to the employee). The doctor's medical diagnosis and prognosis were sought with an emphasis on judgment and reliability. Enclosure 1 notified the employee that her access to classified information was suspended.
Enclosure 2 was a paper entitled "Medical Considerations for Security Eligibility." It noted that the enclosed Personnel Security Investigative (PSI) file indicated potentially disqualifying information regarding behavior, mental, or emotional disorders, or substance abuse. (It cannot be determined if this PSI file was available to the applicant or Army medical authorities.) It listed applicable but not all-inclusive medical considerations that could be helpful in conducting the evaluation. It noted that if the issue involved mental/emotional conditions, the following information should be provided: (a) did the individual currently have, or by history have, any illness or mental condition that could cause a material defect in his/her ability to perform sensitive duties; (b) did the individual exhibit any illness, or mental condition even though there was no confirming medical history; or (c) if there was a prior diagnosed mental condition, was it of a nature which had a high risk of recurrence.
The applicant received an annual Officer Evaluation Report for the period 9 June 1999 through 8 June 2000. In Part IVb2, she was rated as "no" in the Skills (Competence) area of "Technical (possess the necessary expertise to accomplish all tasks and activities." Her rater commented in Part Vb that she was given the "no" checkmark "…because she was placed on probation for insufficient progress in the Inpatient Rotation during her psychology residency at WRAMC. She has recently completed an examination which passed her from the rotation, with required further remediation in assessment and diagnostics."
The applicant apparently evaluated the Navy civilian employee on 3 July 2000.
The patient had apparently been prescribed two anti-psychotic medications -- Risperdal and Seroquel. The National Institutes of Health Internet site, medlineplus.gov, notes that Risperdal is one of the most widely used anti-psychotic drugs. It is also useful in treating serious behavioral problems among children with autism. It notes Seroquel as a new treatment for schizophrenics.
The applicant apparently determined that, while the Navy civilian employee exhibited signs of being borderline mentally retarded (which apparently LTC J___ advised her not to mention), the employee had no mental disorder. LTC J___ apparently concurred with the applicant's evaluation and the Navy was so informed.
On 29 September 2000, the PETC met to consider a request to terminate the applicant's training as an intern in the psychology program. It was noted that completion of the one-year internship was a requirement for award of her Ph.D. degree. LTC J___ expressed his concerns about the applicant's inability to recognize psychopathology. He felt strongly that she clearly did not meet the expectations of a graduate of the program and could not be relied upon to make an appropriate diagnosis.
The applicant addressed the committee and read a prepared statement. She noted that she passed 3 1/2 out of 4 required clinical rotations and that she passed her probationary period in late May 2000. She noted that she received two Officer Evaluation Reports (OERs) after passing her latest exam. In her June 2000 OER, LTC J___ commented that she "has done a satisfactory job as a Clinical Psychology resident." In her July 2000 OER, Major S___ commented that she was "a bright and capable officer… She has made satisfactory progress in many areas. This officer has the potential to be a fine officer, promote with her peers." (The July 2002 OER is not available.) On 23 June 2000, she walked in the commencement ceremony along with her peers; the public was told that she was a graduate of the program.
The applicant presented into evidence a letter of support from the attending psychiatrist for whom she worked throughout her time on the assessment rotation. He wrote that "Her psychological evaluations supervised by Dr. A___ J___ were prompt, thorough, and helpful with the diagnostic challenges we faced on the ward…" The applicant presented several other letters of support. She presented a 9 February 2000 letter from Major S___ to Auburn University indicating she was progressing satisfactorily in the residency program.
The applicant stated that the Navy patient was referred to her as a routine intake evaluation but instead turned out to be a command-directed evaluation. She noticed that the Navy patient she interviewed was taking two anti-psychotic medications. The patient also showed signs of mental retardation. The patient's exam scores pointed to mental retardation, and the anti-psychotic drugs that the patient was taking were routinely prescribed for patients with mental retardation. The applicant personally discussed the diagnosis of mental retardation with LTC J___, who told her that she need not put that in the evaluation. The applicant followed his recommendation. He concurred with her diagnosis of the patient.
The applicant stated that after the Navy complained about that diagnosis, there was a flurry by her supervisors to prepare documentation regarding their belief that she was not performing to standard. That documentation consisted of private meetings and discussions which were never shared with her and were contrary to the evidence which indicated that she performed her assignments satisfactorily.
The PETC discussed the applicant's case after her departure. There were questions about the formal documentation of her performance during her neuro-psychology rotation, but the committee thought that any prudent house staff, especially in her situation, would have sought input and evaluation of performance. The PETC determined that the applicant had significant shortcomings in diagnosis, assessment, and evaluation of patients. She had been repeatedly counseled and efforts had been made to give her extra attention, guidance, and supervision. It was the judgment of the faculty of the program that she would not be able to safely function in the role required in any assignment as a military psychologist. The PETC voted unanimously to accept the proposal to terminate the applicant from her training program. The recommendation would be made to the commander to terminate her from the CPRP.
Around the end of October 2000, the Commander, Walter Reed Health Care System appointed an investigating officer (IO), Colonel C___ (not the same Colonel C___ as mentioned above), to investigate the applicant's case.
In a 4 January 2001 memorandum for the Commander, Walter Reed Health Care System, as a response to the Honorable K___, Member of Congress, the IO noted that he had investigated the applicant's complaints pertaining to her termination from the CPIP. He stated that he found no evidence to support the applicant's claim that she was not provided the "additional training, work and counseling" that she sought from supervisors on several occasions. He determined that faculty members indicated concern about her status within her first couple of months in the residency program. His investigation found evidence that she was given extended and repeated training opportunities in problem areas and was provided additional cases that she requested. He found substantial records that she received regular (weekly, monthly) counseling regarding her status from supervisors throughout her entire internship.
The IO stated that the applicant signed a memorandum from PETC on 7 April 2000 informing her that the Psychology Residency Program Director recommended she be "placed on probation due to failure to progress satisfactorily in (her) residency training." He stated that memorandum likely accounted for her claim that "she was not informed that her training status was in jeopardy until April 2000." He stated that evidence indicated that she did not receive a formal notification from the PETC until some undetermined date after their decision. He stated, however, that there was sufficient evidence (memoranda and email) to show she knew and understood that she was on probation immediately after the PETC voted on 21 April 2000 to impose probation.
The IO stated that the Psychology Residency Program faculty told him they did not recommend the applicant for probation earlier in her training because she continued to show some (albeit minimal) improvement and the faculty wanted to giver her every opportunity to succeed. She passed her Inpatient Assessment Rotation, "with remediation," and began her final rotation in Clinical Neuropsychology. Her training and probation was extended until 15 September 2000. The faculty permitted her to participate in the graduation ceremony on 26 June 2000 "as a gesture and courtesy to her" and in anticipation that she would successfully complete her training. The faculty explained to her, and she evidently understood, that she would not "graduate" until she successfully completed her final rotation.
The IO stated that during the applicant's extended training period, incidents occurred that prompted the faculty to conclude that continued remediation for her was not working and that further extension of her training (beyond 15 September 2000) would likely not correct her deficiencies. He found insufficient evidence to support her position that her termination from training was unjust or did not afford her due process in accordance with professional guidelines of the American Psychology Association and WRAMC.
On 19 January 2001, the applicant submitted her resignation from the CPRP at WRAMC. She gave as her reason the fact that her strengths as a doctoral candidate in Counseling Psychology did not correlate well with the needs of the Army. On 12 March 2001, the PETC voted to accept the applicant's resignation.
On 23 July 2001, the Commander, WRAMC denied the applicant's request for redress of wrongs under Article 138, Uniform Code of Military Justice. He noted that the applicant did not file her request within the required 90 days of discovery of the harm. In addition, he noted that the applicant was offered opportunities to be heard both before being placed on probation and before termination from the program. Whereas she declined to be heard before placement on probation, she did attend and state her case during the termination proceeding. He was confident that his action in placing her on probation substantially complied with the applicable regulatory guidance and that she was afforded full due process throughout the proceedings. Finally, he noted that she was not terminated from the program. She voluntarily resigned from the program 6 months previously, cutting off the procedures in place which would have determined whether she should have been terminated.
On 31 July 2001, counsel for the applicant submitted a request to Lieutenant General (LTG) P___, Commander, U. S. Army Medical Command to enlist his support in connection with the applicant's status in the CPRP at WRAMC. He requested that the matter be afforded the highest priority because completion of the residency was required in order for her to qualify for her Ph.D. at Auburn University. Counsel stated the applicant was never properly put on probation by the command. She was furnished no document signed by the command placing her on probation. Therefore, the recommendation for probation was never lawfully brought into force. The applicant was lulled into a false sense of security. No one ever told her in connection with the probation recommendation that she was in jeopardy of being terminated from the program. The probation was conditioned, so far as they knew, on her passage of the assessment examination scheduled for the end of May 2000. She passed that examination and at that point she had satisfied the requirements of any probation.
Counsel contended that the applicant's graduation was derailed by the 3 July 2000 evaluation of the Navy civilian employee. The applicant was never informed that the employee was referred for a command-directed assessment after that employee had stated that she had been hearing "voices." The basis for the command direction was never conveyed to the applicant. She saw the employee twice without the participation of any licensed psychologist and evaluated her as probably mentally retarded but the assessment instruments did not indicate psychosis. That assessment was approved and signed by her clinical supervisor, who did not question her clinical judgment. The fact he did not was strong evidence that the program had substantial confidence in her clinical and diagnostic skills.
Counsel contended that permitting the applicant to see this Navy employee alone was contrary to professional standards and service regulation. After the employee's supervisor expressed surprise at the assessment, the applicant's clinical supervisor then had the employee in for a joint interview with the applicant on 31 July 2000, resulting in a different diagnosis.
Counsel contended that the applicant's termination was proposed on 2 August 2000 and she was informed on 8 August 2000 that she would be terminated. She was then left in limbo until January 2001, when she was urged to resign from the program. She finally succumbed to varying pressures and executed a resignation that was placed in front of her by the WRAMC executive officer. She asked about withdrawing her resignation but her inquiries were ignored.
On 10 August 2001, counsel for the applicant sent a supplemental letter to LTG P___. He acknowledged that his assertion that the hospital commander did not approve the applicant's probation was in error. The commander's approval action was available; however, the applicant was not furnished a copy of the signed action until after she was terminated in August 2000. He stated that the fact remained that she was not properly notified of the terms of her probation. Her understanding was that it entailed only passage of the examination for her next rotation, which she accomplished. Moreover, the applicant was told that she was doing well on 13 July [2000], given a satisfactory OER, permitted to take leave, permitted to attend graduation exercises, and given to understand that she would be assigned to WRAMC's psychology staff for her next permanent assignment, and later told she would be reassigned to Fort Knox, KY.
Counsel contended that, prior to the Navy civilian's case, those were the facts. Therefore, it could not be clearer that the Navy civilian's case was the galvanizing event [in the applicant's termination from the CPRP].
On 17 September 2001, LTG P___ responded to the applicant's counsel. He noted that the actions leading to the applicant's termination from her clinical psychology residence were not based on isolated incidents. She actively participated in the process. He was satisfied that the applicant received significant and appropriate due process.
By letter dated 31 October 2001, the Office of The Surgeon General (OTSG), HPSP/First Year Graduate Medical Education (FYGME) Program Manager informed the applicant that they were considering whether her participation in the HPSP should be terminated because of her failure to graduate from the CPIP. She was given 14 days to submit a written statement on her own behalf, statements from witness, and other information to show why she should be retained in the HPSP or that there were extenuating circumstances.
It cannot be determined if the applicant provided such statements and information. A later, undated, letter indicates that she provided something.
By letter dated 4 December 2001, OTSG, Deputy Director, Medical Education informed the applicant that she lost her eligibility to participate in the HPSP effective 30 November 2001 because of her disenrollment from the CPRP. She had 14 days in which to appeal that decision.
In an undated letter, the applicant appealed. She emphasized the violation of the governing DOD Regulation, Secretary of the Navy Instruction, and Army Regulation in allowing her to evaluate the Navy civilian employee without the personal attendance and participation of a licensed psychologist. She asserted that she made a number of arguments in support of her appeal, none of which were addressed in the 4 December 2001 letter to her.
By letter dated 21 December 2001, OTSG, Director of Medical Education, informed the applicant that her appeal was not favorably considered. She was informed that Title 10, U. S. Code, section 2122(a)(1) states that, in order to be eligible for participation in the scholarship program, a person must be enrolled in an institution in a course of study. As she was no longer in the residency program, she no longer met the criterion for the scholarship program.
An extract of Title 10, U. S. Code, section 2122 was provided as an enclosure to the 21 December 2001 letter. Section 2122(a)(2) also required that the person sign an agreement that unless sooner separated he/she (C) participate in the intern program of his service if selected for such participation or (D) participate in the residency program of his service, if selected, or be released from active duty for the period required to undergo civilian residency if selected for such training.
By letter dated 9 January 2002, Auburn University stated that the applicant was currently a doctoral candidate enrolled in the Ph.D. program in counseling psychology at their university.
By letter dated 17 January 2002, LTG P___ informed counsel for the applicant that he did not agree with counsel's conclusion that the applicant should not have been allowed to evaluate a civilian employee under the PSP. He noted once more that the recommendation to terminate the applicant's participant in the CPRP was not based on isolated incidents.
By letter dated 3 April 2002, LTG P___ responded to an inquiry from the applicant's Congressional Representative. He noted that Army Regulation 380-67 stated that a disqualification for a security clearance or assignment to a sensitive position on the basis of mental or emotional disorder must be based upon the opinion of a "competent medical authority" (i.e., a board-eligible or board-certified psychiatrist or clinical psychologist employed by or under contract to the U. S. military or U. S. Government). The applicant did not meet that criteria, so a person could not have been disqualified on the basis of the applicant's diagnosis alone. However, that did not mean that she should not have examined the person whose condition she misdiagnosed. It was the nature of the CPRP for participants to actively conduct procedures to hone their clinical skills, demonstrate their competencies, and to have their performances
evaluated. Therefore, they could perform such evaluations but their diagnoses were subject to review, concurrence, and adoption by competent medical authorities before such diagnoses could be used in the context of the PSP. When their evaluations and diagnoses are concurred in by competent medical authorities, the requirement of the regulation is met.
On 19 April 2002, counsel for the applicant submitted a DAIG complaint. He stated that one of the issues in the case was the applicant being required to evaluate a civilian Navy employee in connection with a security clearance determination although she was not a licensed psychologist. That violated DOD, Army, and Navy regulations. It was both contrary to the regulation and unfair to the applicant to put her in that position in the first place. LTG P___ claimed the regulation permits the use of trainees for that kind of evaluation, provided a licensed individual signs off. Counsel contended, however, that rules are rules and the Army violated an important one in the applicant's case. Worse yet, it appeared that LTG P__ was committed to continuing to do so in the future.
On 13 May 2002, the Director, Defense Hotline responded to counsel's 19 April 2002 letter. The Director noted that Appendix 8 of DODR 5200.2-R states in part, "…a credentialed mental health professional…should be consulted so that potentially disqualifying and mitigating information may be fully and properly evaluated." He found no discrepancy between this information and that previously provided by LTG P___ on 3 April 2002. He concluded that an inquiry into the matter was not warranted.
By letter dated 20 May 2002, counsel for the applicant wrote to the Honorable Joseph E. S___, DODIG. He cited his concern that the Director, Defense Hotline failed to acknowledge all the regulations applicable to the applicant's case and recommended the DODIG personally take the time to examine the actual text of these regulations.
On 18 June 2002, the Chief, Medical Corps informed the applicant that her appeal to rescind the decision regarding her ineligibility for continued participation in the HPSP was disapproved.
On 28 August 2002, counsel for the applicant wrote to the Secretary of the Navy expressing his concerns regarding the applicant's evaluation of the Navy civilian employee. On 30 December 2002, Captain C___, Judge Advocate General's Corps, U. S. Navy responded to counsel's letter. Captain C___ noted that DOD 5200.2R is the controlling source document for all DOD components in regards to the qualifications of providers who conduct PSP mental evaluations. He noted that the 26 May 2000 letter from the Department of the Navy requested a more restrictive requirement than that outlined in either DOD 5200.2R or Secretary of the Navy Instruction 5510.30A (Department of the Navy Personnel Security Program). It was his opinion that the individual sent for evaluation could have been seen by a licensed professional meeting the requirements of DOD 5220-.2R even if the provider did not meet the board certified requirements of the letter request.
Captain C___ noted that, in the Navy's training program, their providers who are still in training do conduct these types of examinations. However, they do them under the supervision and guidance of a staff provider who meets the requirements of the instruction. The Navy's staff provider would be expected to participate in the evaluation process as well and be the person to issue the final opinion as to the diagnosis. Because the evaluation took place in an Army facility, he was not aware of all of the conditions and levels of participation of the providers involved in that evaluation process. It would be inappropriate of him to comment on whether the Army's policy was incorrect or whether they complied with their own regulations.
DOD 5200.2R (DOD Personnel Security Program) contains directions and procedures for implementing those references cited in chapter 1 and appendix A of this regulation pertaining to acceptance and retention of DOD military, civilian, consultant, and contractor personnel and of granting such persons access to classified information or assignment to a sensitive position.
DOD 5200.2R, paragraph 5.106d states that when any information indicates a history of mental or nervous disorder or reported behavior appears to be abnormal, the Central Clearance Facility will request a mental health evaluation to determine whether or not any defect in judgment or reliability or any serious behavior disorder exists. A board-certified or board-eligible psychiatrist or licensed or certified clinical psychologist who is employed by or under contract to the U. S. military or U. S. Government will conduct mental health evaluations for security clearance purposes.
DOD 5200.2R, Appendix 8 (Adjudicative Guidelines for Determining Eligibility for Access to Classified Information) discusses some conditions, such as alcohol consumption or emotion, mental, and personality disorders, that could be of security concern. It notes that, when appropriate, a credentialed mental health professional, acceptable or approved by the Government, should be consulted so that potentially disqualifying and mitigating information could be fully and properly evaluated. It defined credentialed mental health professional as a licensed clinical psychologist, licensed social worker, or board-certified psychiatrist.
Army Regulation 380-67 implements the DOD and DA PSP. Paragraph 2-200j states that a disqualification for a security clearance or assignment to a sensitive position on the basis of mental or emotional disorder must be based upon the opinion of a competent medical authority (defined as a board-eligible or board-certified psychiatrist or clinical psychologist employed by or under contract to the U. S. military or U. S. Government).
Secretary of the Navy Instruction 5510.30A (Department of the Navy Personnel Security Program) provides regulations and guidance governing the Department of the Navy PSP. In pertinent part, it states that a credentialed mental health professional (e.g., clinical psychologist or psychiatrist) employed by, acceptable to, or approved by the government, should be utilized in evaluating potentially disqualifying and mitigating information fully and properly and particularly for consultation with the individual's mental health care provider.
Army Regulation 15-185 governs operations of the Army Board for Correction of Military Records (ABCMR). Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR. The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The Board has considered the applicant's contention that she was pressured to withdraw from the CPRP. The Board concludes that there is no evidence to support that contention and no evidence to show that she was "left in limbo" between early August 2000, when she was notified that her termination from the CPRP would be recommended, and January 2001, when she resigned from the CPRP.
2. On 29 September 2000, the PETC met to consider a request to terminate the applicant's enrollment in the CPRP. She appeared before the PETC and personally addressed the committee. On 19 January 2001, she submitted her resignation from the CPRP at WRAMC, giving as her reason the fact that her strengths as a doctoral candidate in Counseling Psychology did not correlate well with the needs of the Army.
3. The Board concludes that the time spread between the applicant's notification of recommended termination in early August 2000 and the PETC's meeting on 29 September 2000 to recommend her termination was not inappropriately excessive.
4. The Board notes there is a 4-month time lag between the PETC recommendation in September 2000 and the applicant's resignation from the CPRP on 29 January 2001 (after the IO's 4 January 2001 memorandum for the Commander, Walter Reed Health Care System). However, the Board concludes that the time lag is justifiably accounted for (a legal review prior to forwarding the recommendation to the Commander, time to appoint an investigating officer, time to complete the investigation, and time for the Commander to make a decision) and not inappropriately excessive.
5. Counsel, and the applicant, acknowledged that the applicant's area of interest was counseling psychology rather than clinical psychology, the core of the CPRP training. The applicant provides no evidence to show she was pressured into resigning from the CPRP. She provides no evidence to show that her reason for resigning was other than her given reason that her strengths in counseling psychology did not correlate well with the Army's needs in clinical psychology.
6. Contrary to counsel's contention that the applicant performed satisfactorily in the CPRP despite some rough spots, the Board notes that the evidence shows the applicant had continual difficulty in one important area.
7. On 30 January 2000, a Supervisory Review noted the applicant needed further development with conceptualization.
8. On 14 March 2000, the Director of Training and the Chief of the Psychology Department recommended the applicant be placed on probation for failure to met standards for conceptualization and diagnostic formulation of more severe psychopsychology. They informed the PETC that their greatest concern was the applicant's failure to accurately gather information, conceptualize the problem and render an appropriate diagnosis.
9. On 26 May 2000, the applicant's Inpatient Psychiatry Rotation Evaluation noted she had significant weaknesses in diagnostic skills and rated her as not meeting standards in "conceptualizing, clinical issues, and diagnosis." It was noted at that time that remediation would be needed.
10. The applicant's 8 June 2000 OER noted that she had recently completed an examination which passed her from the Inpatient rotation with required further remediation in assessment and diagnostics.
11. The July 2000 OER the applicant mentioned having received was not available.
12. The Board concludes from the above noted evidence that the applicant was aware that satisfactorily completing her additional rotation was not the only condition required for her to meet CPRP standards. The evidence shows that she knew that further remediation was required, also.
13. The Board also concludes that the applicant's termination from the CPRP was not based on the isolated incident involving the Navy civilian employee but on her overall performance in the CPRP.
14. Regarding that incident, the Board notes that the applicant's argument is that she was fully qualified for graduation by 23 June 2000, when she "walked in the commencement ceremony along with her peers." The Board notes the IO's statement that the faculty permitted her to participate in the graduation ceremony on 23 June 2000 "as a gesture and courtesy to her" and in anticipation that she would successfully complete her training.
15. Therefore, it appears to the Board not to have been an extraordinary event to have had the applicant perform a solo evaluation of the Navy civilian employee. Unfortunately for the applicant, the Army, and the Navy, one of the applicant's earlier weaknesses reasserted itself (i.e., "failure to accurately gather information").
16. It does not appear to the Board that the failure to inform the applicant the employee was there for a security determination evaluation was a mitigating factor in explaining the misdiagnosis. The fact the employee was referred for a mental health evaluation (whether self-referred or otherwise) should have led the applicant to contact at the least the employee's supervisor to determine if factors noted at work were involved in the reason for referral. That alone would have brought the employee's "hearing voices" to her attention.
17. It does not appear to the Board that the fact the two anti-psychotic drugs prescribed for the employee were also routinely prescribed for patients with mental retardation was a mitigating factor in explaining the misdiagnosis. (The Board notes that a review of one of the Government's own Internet site indicated that one of the prescribed drugs was one of the most widely used anti-psychotic drugs albeit also useful in treating serious behavioral problems among children with autism. The site indicated the other prescribed drug was a new treatment for schizophrenics.) The fact both drugs were primarily anti-psychotic drugs should have clued the applicant into that area of evaluation. There is no evidence to show that she made a routine "doctor to doctor" phone call to rule out psychosis as the reason for their prescription.
18. The Board notes that during the applicant's termination hearing on 29 September 2000 she informed the PETC that the Navy employee was taking anti-psychotic drugs. She did not inform the PETC that she had checked with the prescribing doctor and discovered the drugs were prescribed for some other condition (such as borderline mental retardation). She informed the PETC that she was later told the employee had been hearing voices. She did not inform the PETC that she had checked with the employee's supervisor to discover if any behavior aberrations had occurred at work. The Board presumes she did not mention these acts of information gathering to the PETC because she did not perform them.
19. The Board notes that it appears DODD 5200.2R contains conflicting guidance concerning mental health evaluations to determine PSP reliability. Paragraph 5.106d states a board-certified or board-eligible psychiatrist or licensed or certified clinical psychologist who is employed by or under contract to the U. S. military or U. S. Government will conduct mental health evaluations for security clearance purposes. Appendix 8 states that a credentialed mental health professional, acceptable or approved by the Government, should be consulted so that potentially disqualifying and mitigating information could be fully and properly evaluated.
20. The Board notes that even the Navy allows their mental health providers who are still in training to conduct security examinations albeit under the supervision and guidance of a staff provider who meets the requirements of the instruction. Although the Navy, in their 30 December 2002 letter to applicant's counsel, noted that the staff provider would be expected to participate in the evaluation process as well, they did not define "participate in the evaluation process." The Board notes the applicant consulted with LTC J___ during her evaluation. The Board does not dispute the determination that the consultation met the requirements of the regulation.
21. The Board notes that the applicant's supervisor concurred in the applicant's misdiagnosis. The Board determines this fact to be immaterial to the question of the applicant's own clinical psychology deficiencies. His medical or administrative competence is not a matter that will be considered by the Board.
22. Title 10, U. S. Code, section 2122(a)(2) (C) requires that the person [enrolling in an Armed Forces health professions financial assistance program] sign an agreement that unless sooner separated he or she participate in the intern program of his or her service if selected for such participation.
23. The applicant was selected for the Army's CPRP and, when the applicant signed her HPSP Service Agreement, she acknowledged that she understood she would automatically be terminated from the HPSP on the last day of her 13th month on active duty.
24. The applicant entered active duty in June 1999 with a contemplated graduation date from the CPRP in May or June 2000. She did not graduate in June 2000. Her 13th month was up by August 2000.
25. The applicant's termination from the CPRP was initiated in August 2000. She voluntarily resigned from the program in January 2001. She was later notified that her participation in the HPSP was terminated.
26. The Board concludes that no statutory guidelines were violated in terminating the applicant from the HPSP.
27. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__sac___ __mdm___ __rld___ DENY APPLICATION
| CASE ID | AR2002076553 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030508 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | Mr. Chun |
| ISSUES 1. | 100.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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