RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            7 June 2005
      DOCKET NUMBER:   AR20040007299


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Karen Y. Fletcher             |     |Member               |
|     |Mr. Kenneth L. Wright             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be paid Multi-Year Incentive
Special Pay (MISP) and Multi-Year Special Pay (MSP) for the years beginning
January 2001, January 2002, and January 2003.  He also requests that the
applicant be reinstated in the MISP and MSP entitlement program for the
periods January 2004, January 2005, and January 2006 and be paid for such
entitlements as of January 2004 for the period January 2004 through 9
January 2005.

2.  Counsel states that, on or about July 1997, the applicant began
suffering from Chronic Inflammatory Demyelinating Polyneuropathy (CIDP).
That affected his cognitive functioning.  The applicant received MISP and
MSP during the period January 1998 through January 2001.

3.  Counsel states that, beginning with January 2001, the applicant was
arbitrarily and capriciously denied MISP and MSP by the Walter Reed Army
Medical Center (WRAMC) (where the applicant is assigned) by refusing to
forward his request for MISP and MSP to the Army Medical Department (AMEDD)
Special Pay Branch of the Office of The Surgeon General (OTSG).  This
refusal was an abuse of discretion by the WRAMC command.  Objectively, the
applicant no longer suffered from CIDP.  He passed his Board Certification
examination in Nuclear Medicine on 22 October 2000.  On 31 January 2001,
his license to practice medicine in Missouri was renewed.  On 8 February
2002, a formal physical evaluation board (PEB) found him "fit for duty."
As Doctor F___ (in an independent forensic psychological evaluation of the
applicant) stated, "(The applicant's) board certification stands as
unequivocal, undisputed, and irreconcilable evidence of his ability to
perform the necessary tasks of his profession."

4.  Counsel states that, in a continuing attempt to vindictively harm the
applicant, the WRAMC command initiated a show cause board alleging
substandard duty performance.  That failed as, on 16 December 2002, a board
of officers unanimously voted to retain him and to reassign him out of
WRAMC.  On 16 May 2003, WRAMC granted him clinical privileges.  The
applicant's illness resolved, yet his command did everything possible to
harm him.  He was ready, able, and willing to practice.  He was wrongfully
denied that opportunity and with it his rightfully allotted MISP and MSP.

5.  Counsel provides the applicant's resume; 20 October 2002 letter of
certification; State of Missouri medical license valid through 31 January
2006; the PEB proceedings; the 7 October 2002 board of inquiry notification
letter; a DA Form 1574 (Report of Proceedings by Investigating
Officer/Board of Officers); a WRAMC letter dated 16 May 2003 granting the
applicant supervised privileges; the applicant's request for MISP for the
year beginning 10 January 2001; the applicant's request for MSP for the
year beginning 10 January 2001; and the applicant's 20-page vita.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the Medical Corps and entered active
duty as a major in July 1988.  He was promoted to lieutenant colonel on 18
July 1994.  He was assigned to WRAMC around August 1995 with a principal
duty of Nuclear Medicine Physician.

2.  The applicant's OER for the period ending 20 July 1996 (under the DA
Form 67-8 version) shows his rater rated his performance as usually
"exceeded requirements" and his promotion potential as "promote with
contemporaries."  His senior rater (SR) rated him as center of mass
1/*1/0/0/0/0/0/0/0 (with the asterisk indicating the applicant's rating).

3.  The applicant's OER for the period ending 30 June 1997 shows his rater
rated his performance as "usually exceeded requirements" and his promotion
potential as "promote with contemporaries."  His rater also included the
comment, "He has shown noteworthy intestinal fortitude and moral courage
following an unsuccessful bid at passing the recent certifying
examination."  His SR rated him as center of mass 1/*2/0/0/0/0/0/0/0.

4.  The applicant's OER for the period ending 30 September 1998 (under the
DA Form 67-9 version) shows his rater rated his performance and potential
for promotion as "satisfactory performance, promote."  The rater also
commented, "(the applicant's) performance during this rating period has
been encumbered by significant medical illness, including prolonged
hospitalization, convalescence, and ongoing slow recovery and
rehabilitation…Although he has returned to duty,…remains in a limited
capacity.  Before, during, and after hospitalization, he received remedial
training and performed under clinical supervision."  The SR rated his
promotion potential as "fully qualified" and his overall potential as below
center of mass, retain.  The SR's comments included, "As a result of his
significant medical condition, (the applicant's) performance…have not been
demonstrated."

5.  The OER for the period ending 30 September 1998 was referred to the
applicant for comment.  He commented, "I am of the view that my alleged
medical condition alluded to in the referred OER is nonexistent and that my
lack of competency is equally nonexistent."  He believed the entire matter
had more to do with a conflicted staff circumstance than ability or
execution.  He stated he was about to undergo more medical testing in an
effort to obtain definitive clinical results regarding any cognitive loss.

6.  The applicant's OER for the period ending 11 November 1999 was a relief-
for-cause report.  It shows his rater rated his performance and potential
for promotion as "unsatisfactory performance, do not promote."  The rater
also commented, "…a peer review committee found his cases to be
unacceptable and an oral examination given by The Surgeon General's
Consultant for Nuclear Medicine found that,…'…(the applicant) does not
exhibit the fund of knowledge and image interpretation skills expected of a
board-eligible nuclear medicine physician…'  A blinded evaluation by senior
nuclear medical physicians confirmed this finding…His clinical privileges
were suspended on 5 February 1999 by the Credentials Committee…Following a
series of hearings the Commander of the Walter Reed Health Care System
formally revoked (the applicant's) privileges on 11 November 1999…"  The SR
rated his promotion potential as "do not promote" and his overall potential
as below center of mass, do not retain.

7.  The 11 November 1999 OER was referred to the applicant.  A Memorandum
for Record dated 24 May 2000 noted that, while the OER indicated comments
would be attached, changes to the OER had been made to the OER based on the
applicant's [unofficial] comments and he did not then desire to submit
official comments.

8.  On 9 September 2000, the applicant passed the American Board of Nuclear
Medicine certifying examination.  His percent correct score in the ten
content areas compared to the percent correct score for all candidates is
was follows:

Area             His Correct Percentage All Takers' Correct Percentage

Musculo-Skeletal       83                          70
Cardiovascular         61                          61
Endocrine              61                          67
Gastrointestinal       72                          71
Hematopoietic          60                          72
Oncology               72                          64
Neurology              44                          56
Pulmonary              59                          68
Genitourinary          53                          62
Basic Science          56                          63

9.  The applicant's OER for the period ending 11 November 2000 shows his
principal duties as Physician/Tumor Registry Clerk.  His rater rated his
performance and potential for promotion as "other."  The rater also
commented in part, "He maintains a valid license with the state of
Missouri.  He passed the American Board of Nuclear Medicine examination on
9 September 2000, just slightly over 12 years after he successfully
completed his nuclear medicine residency…"  The SR rated his promotion
potential as "other" and his overall potential as below center of mass, do
not retain.

10.  The applicant's OER for the period ending 11 November 2001 shows his
principal duties as Medical Abstraction Physician.  His rater rated his
performance and potential for promotion as "unsatisfactory performance [do
not promote]"; however, he also commented in part, "(The applicant)
participates in the abstraction of medical records from the Tumor Registry
at Walter Reed in a satisfactory manner."  The rater also noted that the
applicant continued his education in nuclear medicine on his own
initiative.  The SR rated his promotion potential as "do not promote" and
his overall potential as below center of mass, do not retain.

11.  On 8 February 2002, a formal PEB concluded the applicant did not
presently have any functional impairment which would prevent satisfactory
performance of his duties.  The PEB noted that he had successfully
completed the specialty board certification in nuclear medicine in
September 2000 and that his Missouri state medical license was renewed in
January 2002.  The most recent evaluation by a psychiatrist/neurologist
indicated he had fully recovered from his neurological condition that was
present in 1998/1999 when he was diagnosed with a cognitive disorder
secondary to CIDP and steroid treatment.  A mental status examination and
focused neurological examination on 8 October 2002 were normal with the
possible exception of subtle weakness in the interosseous muscle of the non-
dominant hand.  He was found fit for duty in his current grade and
specialty.

12.  A board of inquiry convened, and adjourned, on 17 December 2002 to
determine if the applicant should be separated for a downward trend in
overall performance resulting in a consistent record of mediocre service
and failure to perform assignments commensurate with his grade and
experience.  The applicant was given an opportunity to be present with his
counsel at all open sessions of the board and to testify.  It cannot be
determined if he actually was present.

13.  The board of inquiry found that the applicant had some of the
substandard performance of duty stated in the Memorandum of Initiation of
Elimination (not available).  It was the opinion of the board that the
cited downward trend in OERs from July 1997 through November 1999 was
potentially attributable to the applicant's diagnosed CIDP.  The two OERs
covering the period November 1999 through November 2001 did not address a
downward trend but addressed the fact that he was not performing as a
nuclear Medicine Physician.  Furthermore, the board found that there was
disagreement among Nuclear Medicine experts concerning his qualifications.


14.  The board of inquiry recommended the applicant be retained in the
service with reassignment with a period of supervision to assess his
suitability to be credentialed and to practice as a Nuclear Medicine
Physician.  The findings and recommendation of the board of inquiry were
approved by Major General K___, Commander, WRAMC.

15.  The applicant's OER for the period ending 11 November 2002 shows his
principal duties as Medical Abstraction Physician.  His rater rated his
performance and potential for promotion as "unsatisfactory performance do
not promote"; however, once again he also commented that the applicant
participated in the abstraction of medical records from the Tumor Registry
in a satisfactory manner and that he continued his education in nuclear
medicine on his own initiative.  The SR rated his promotion potential as
"do not promote" and his overall potential as below center of mass, do not
retain.

16.  By memorandum dated 16 May 2003, WRAMC granted the applicant
supervised privileges for the period 6 May 2003 through 5 May 2004.

17.  By memorandum dated 25 September 2003, Madigan Army Medical Center,
Tacoma, WA granted the applicant regular privileges under supervision with
an affiliate appointment to the medical staff for the period 25 September
2003 through 5 May 2005.

18.  On 1 June 2005, WRAMC informed the Board analyst that the applicant's
OERs for 2003 and 2004 "slipped through" and have not yet been completed.
On 1 June 2005, the Officer Special Review Board informed the Board analyst
that they had no record of the applicant submitting any OER appeals.

19.  In the processing of this case, an advisory opinion was obtained from
the AMEDD Special Pay Branch, OTSG.  That office stated that a review of
the Master Military Pay Account at the Defense Finance and Accounting
Service –Indianapolis Center (DFAS- IN) indicated the applicant was paid an
MSP at $8,000 per year effective 1 October 1998 through 30 September 2002
and a corresponding MISP at $30,000 per year effective 1 October 1998
through        30 September 2002.  That office noted that they had no
record of new MSP or MISP agreements being received by that office after
the expiration of those above.  That office also noted that the basic
eligibility criteria for executing the MSP and MISP agreements include:

      (1)  Board certified or otherwise fulfilling the training leading to
certification;

      (2)  Full, unrestricted license as a physician in a State or
jurisdiction or licensure waiver;

      (3)  Perform patient care and remain privileged, in accordance with
Army Regulation 40-68 without prejudicial restriction to the standards of
the specialty for which the agreement is executed; and

      (4)  During each year of the total agreement period, engage in the
practice of the specialty for which the award is made for a sufficient time
to fully maintain professional skills in that specialty.  Eligibility may
be terminated at any time during the total agreement period if the officer
does not perform patient care during the 12-month period for which payment
was received.

20.  The AMEDD Special Pay Branch opined that, based on the privileging
information provided by WRAMC, the applicant's command should have
requested stop payment and termination of the MSP and MISP agreements as of
privileges initially suspended in February 1999.  Without command
notification, action cannot be taken.  Based on the same privileging
information, the applicant is currently not privileged to practice and
therefore is not eligible to execute an MSP or MISP agreement for payment.

21.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  Counsel responded by providing five documents to
include three new documents (the 25 September 2003 memorandum noted in
paragraph 17, above; a letter dated 19 March 2003 from the applicant's
previous counsel; and an unsigned letter dated 16 April 2004 wherein the
applicant was to voluntarily relinquish his clinical privileges at WRAMC).
Counsel noted that:

      (1)  The applicant was board certified on 20 October 2000 and
therefore met this criterion on 1 October 2002 to the present;

      (2)  The applicant has been continuously licensed in Missouri during
his entire military career without restriction and he therefore met this
criterion of the period 1 October 2002 to the present;

      (3)  The applicant received supervised privileges from WRAMC from
    6 May 2003 through 5 May 2004 and supervised privileges from Madigan
Army Medical Center from 25 September 2003 through 5 May 2005.  Therefore,
except for the period 1 October 2002 through 5 May 2003, he was functioning
with privileges in his specialty; and


      (4)  The reason privileges and patient care have not been continuous
is because the applicant's command has steadfastly refused to allow the
applicant to practice to the point of seeking to have him voluntarily
relinquish his clinical privileges at WRAMC.

22.  Counsel stated the advisory opinion was absolutely wrong in two
particulars. Firstly, the applicant does have privileges from Madigan Army
Medical Center.  He is not without privileges.  Secondly, he tried to
request MSP and MISP both through counsel and individually but was denied
that opportunity by his command.  The applicant's command has engaged in an
ongoing abuse of discretion, inequity, and injustice and relief should be
granted.

23.  The Department of Defense Financial Management Regulation (DODFMR),
Volume 7A, paragraph 050801 states that medical officers who are fully
qualified in a designated specialty and who meet the provisions of this
section are eligible to enter into a written agreement for MSP.

24.  Army Regulation 40-68 (Clinical Quality Management), paragraph 8-1
states that credentials are those documents presented by the health care
professional, regardless of the nature of his/her practice or duty
position, that constitute evidence of current licensure, certification,
registration, or other authorizing document, as appropriate.  In addition,
professional credentials substantiate
relevant education, training, and experience; current competence and
judgment; and the ability to carry out the duties and responsibilities of
the assigned position or, for the privileged provider, to perform the
privileges requested.

25.  Army Regulation 40-68, paragraph 9-3 states that clinical privileges
define the scope and limits of independent patient care services that a
provider may render within the granting health care system.  The three
categories of clinical privileges that may be awarded are:

      (1)  Regular privileges grant the provider permission to
independently provide medical, dental, and other patient care services in
the facility within defined limits.  Regular privileges are granted to
providers only after full verification and review of credentials;

      (2)  Temporary privileges authorize a provider to independently
provide medical, dental, and other patient care services on a time-limited
basis to meet pressing patient care needs when time constraints will not
allow full credentials review; and

      (3)  Supervised privileges are granted to providers who do not meet
the requirements for independent practice because they lack the necessary
license, certification, or other authorizing document.  These providers are
not eligible for a medical staff appointment and are unable to practice
independently.  Providers working under supervised privileges can practice
only under a written plan of supervision with a licensed person of the same
or a similar discipline.

26.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.

DISCUSSION AND CONCLUSIONS:

1.  Counsel initially requested that the applicant be paid MISP and MSP for
the years beginning January 2001, January 2002, and January 2003.  However,
records at DFAS- IN indicated the applicant was paid MSP and MISP effective
    1 October 1998 through 30 September 2002.  In his rebuttal to the
advisory opinion, counsel in effect acknowledged that the period in
question is from          1 October 2002 to the present.

2.  Counsel acknowledged that, on or about July 1997, the applicant began
suffering from CIDP which affected his cognitive functioning.  The
applicant received MISP and MSP during the period January 1998 through
January 2001 even though his clinical privileges were suspended on 5
February 1999.  His MISP and MSP should have stopped at that time.

3.  Counsel contended that, after 30 September 2002, WRAMC arbitrarily and
capriciously denied MISP and MSP to the applicant by refusing to forward
his requests for those pays.  He contended that, because the applicant no
longer suffered from CIDP and he passed his Board Certification examination
on         22 October 2000 and his license to practice medicine in Missouri
was renewed and a PEB found him fit for duty on 8 February 2002, he was
competent to perform duties in his Nuclear Medicine specialty and therefore
eligible for MISP and MSP.

4.  A PEB only evaluates the physical fitness of Soldiers to determine if
they might be unfit to perform their military duties because of physical
disability.  While the applicant's PEB concluded he did not have any
functional impairment which would prevent satisfactory performance of his
duties, the PEB did not determine that he could satisfactorily perform his
duties.

5.  While the applicant passed his Board Certification examination in
October 2000, his OER for the period ending 30 June 1997 (and his CIDP
appears to have manifested itself after or at the end of that rating
period) indicates that he had previously had difficulty passing the
examination.  In addition, his scores (of the ten content areas, he
exceeded the mean percentage correct for all takers in only three areas,
equaled the mean percentage in one area, and had a lower percentage correct
in six areas) on the examination do not convince the Board as much as
Doctor F___ was that the applicant's board certification "stands as
unequivocal, undisputed, and irreconcilable evidence of his ability to
perform the necessary tasks of his profession."

6.  The Board notes that, as counsel contended, the board of inquiry voted
to retain the applicant.  However, it recommended a qualified retention.
The board of inquiry recommended he be given a period of supervision to
assess his suitability to be credentialed and to practice as a Nuclear
Medicine Physician.  WRAMC thereupon granted him supervised clinical
privileges.  Even the privileges granted him by Madigan Army Medical Center
were "regular privileges under supervision," not full regular privileges.

7.  The applicant has not provided evidence that either WRAMC or Madigan
Army Medical Center has granted him regular privileges.  Until evidence is
provided to show the applicant has been granted regular privileges to
practice, unsupervised, as a Nuclear Medicine Physician he does not meet
one of the requirements (to be fully qualified in a designated specialty)
needed to be eligible to enter into a written agreement for MISP or MSP.
8.  The Board also notes that counsel misreads the advisory opinion when he
contended the advisory opinion was "absolutely wrong" concerning the
applicant's requests for MISP and MSP.  The advisory opinion did not state
that the applicant never requested MISP or MSP.  It merely made the neutral
statement that no record of new MISP or MSP agreements had been received by
that office after the expiration of his earlier agreements.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __kyf___  __klw___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            __William D. Powers___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040007299                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050607                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.16                                  |
|2.                      |128.21                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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