RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20050018104


      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             |
|     |Mr. G. E. Vandenberg              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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, in effect, that the applicant’s discharge be voided
and he be reinstated with retroactive entitlement of all benefits to the
date of his discharge.  In the alternative, counsel requests that all
"allegations" of misconduct be removed, his characterization of service be
upgraded and he be shown to be eligible for separation pay with nearly
18 years of service.

2.  Counsel states, in effect, that although he had been found qualified
for retention, the applicant was suffering from an organic disease which
interfered with his cognitive functions.

3.  Counsel states that the March 2005 board of inquiry improperly
considered information and records that were presented to the December 2002
board of inquiry that had voted to retain the applicant, thereby making the
applicant's discharge illegal and contrary to Army Regulation 600-8-24
(Officer Transfers and Discharges).

4.  Counsel further states, in effect, that the lack of Officer Evaluation
Reports (OERs) for the years 2002 through 2005 further violated his due
process and prevented the applicant from getting a fair hearing by the
March 2005 board of inquiry.

5.  Counsel provides a 15 page brief with 33 supporting documents from the
applicant’s personnel and medical service records.

CONSIDERATION OF EVIDENCE:

1.  The records show 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 Walter Reed Army Medical
Center (WRAMC) in August 1995 with a principal duty of Nuclear Medicine
Physician.

2.  In 1997 the applicant was diagnosed with chronic inflammatory
demyelinating polyneuropathy (CIDP), a neurological disorder characterized
by progressive weakness and impaired sensory function in the legs and arms.
 It often presents with symptoms that include tingling or numbness
(beginning in the toes and
fingers), weakness of the arms and legs, loss of deep tendon reflexes,
fatigue, and abnormal sensations.  CIDP is closely related to Guillain-
Barre syndrome and it is considered the chronic counterpart of that acute
disease.

3.  The applicant's 30 September 1998 OER shows he was serving in the
principal duty of a staff medical officer, Nuclear Medicine Service.  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 senior rater (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 capabilities have not been
demonstrated."

4.  The Walter Reed Army Medical Center Credentials Committee suspended his
credentials to practice medicine on 5 February 1999.

5.  The applicant's 11 November 1999 OER 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…"  The SR rated his promotion potential as "do not
promote" and his overall potential as below center of mass, do not retain.

6.  Following a series of hearings, the Commander of the Walter Reed Health
Care System formally revoked the applicant's privileges on 11 November
1999.

7.  On 9 September 2000, the applicant passed the American Board of Nuclear
Medicine certifying examination.  Of the ten content areas, he exceeded the
mean percentage correct for all takers in three areas, equaled the mean
percentage in only one area, and had a lower percentage correct in six
areas.


8.  The applicant's 11 November 2000 OER 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.

9.  The applicant was afforded a medical evaluation that was conducted from
2 through 6 April 2001.  The Medical Evaluation Board (MEB) Narrative
Summary indicates this was the third MEB afforded the applicant.

10.  A physical profile, issued 24 May 2001, indicates the applicant is
suffering from a moderate cognitive disorder, decreased visual acuity in
the left eye, and cervical spondylosis.

11.  The applicant's 11 November 2001 OER 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.

12.  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.



13.  The applicant's 11 November 2002 OER 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.

14.  A board of inquiry convened 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.

15.  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 performance.

16.  The board of inquiry recommended the applicant be retained in the
service and reassigned for 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.

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

18.  On 25 September 2003, Madigan Army Medical Center, Tacoma, WA
determined that the applicant was not qualified to practice independently
but granted him regular privileges under supervision.  He was granted an
affiliate appointment to the medical staff for the period 25 September 2003
through 5 May 2005.  The applicant was serving as the Medical Abstraction
Physician during this period.

19.  On 24 September 2004 the applicant was notified that elimination
action had been initiated for conduct or actions that result in the loss of
professional status.  This includes, for medical officers, the partial or
complete suspension, limitations,
withdrawal, or denial of clinical practice privileges.  This was based on
the determination that after completing six weeks of refresher training and
familiarization he was found not to be able to practice independently.

20.  On 28 March 2005 a board of officers hearing was convened to determine
if the applicant should be retained.  Testimony provided at that board
indicates the applicant had not practiced as an independent physician since
1997.  It was noted that the position of Physician/Tumor Registry Clerk was
normally held by a GS-6 with a specific certificate of training, not by a
lieutenant colonel physician and that the applicant did not have the
normally required certificate for the position he was holding.

21.  The board found that he had lost his credentials to practice Nuclear
Medicine.  Without these credentials he was unable to perform the duties
for which he was employed.  Based on the preponderance of the evidence the
board recommended the applicant be separated under the provisions of Army
Regulation 600-8-24, paragraph 4-2b(9) with an honorable discharge.

22.  On 8 April 2005 the applicant acknowledged receipt of a copy of the
Report of Proceedings from the Board of Inquiry and the Notice of Rights.

23.  On 29 April 2005 Major General K___, Commander, WRAMC forwarded the
Report of Proceedings to the Commander, United States Army Medical Command
(MEDCOM) Fort Sam Houston, Texas for review.

24.  The Proceedings were further forwarded to the Officer Elimination
Board, Army Review Boards Agency, Alexandria, Virginia.

25.  On 8 July 2005, the Officer Elimination Board reviewed the applicant’s
case and recommended he be eliminated.

26.  On 11 July 2005, the Deputy Assistant Secretary (Army Review Boards)
approved the elimination action.

27.  A 12 July 2005 Army Human Resources Command memorandum to WRAMC
directed that the applicant be discharged not later than 14 calendar days
after the applicant received notification of the action but not to exceed
30 days from the date of this message.

28.  On 28 October 2005 the applicant was discharged under the provisions
of Army Regulation 600-8-24, chapter 4 for misconduct, moral or
professional dereliction.  He had 17 years, 3 months, and 10 days of
creditable service.

29.  As noted in an earlier unrelated ABCMR decision, WRAMC informed the
Board’s analyst that the applicant's OERs for 2003 and 2004 "slipped
through" and have not been completed.  Additionally, the Officer Special
Review Board informed the Board analyst that they had no record of the
applicant submitting any OER appeals.  A review of the PERMS (Personnel
Electronic Record  Management System) failed to locate the OERs in question
or any clarifying information when or if they were completed.

30.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph

4-2b(9) provides that elimination action may be or will be initiated for
substandard performance of duty, a downward trend in overall performance
resulting in an unacceptable record of efficiency, or a consistent record
of mediocre service, failure to keep pace or to progress with
contemporaries, as demonstrated by a low record of efficiency when compared
with other officers of the same grade and competitive category or failure
of an officer to absorb technical proficiency required for grade and
competitive category.  For Medical Corps officers, this includes the
partial or complete suspension, limitations, withdrawal, or denial of
clinical practice privileges.

31.  Department of Defense Instruction Number 1332.29 provides for the
eligibility to receive separation pay upon involuntary discharge or release
from active duty of Regular and Reserve components service members who have

completed at least 6 years, but fewer than 20 years, of active service.
The service member's separation must be characterized as honorable and he
or she must be fully qualified for retention, but is denied reenlistment or
continuation.

DISCUSSION AND CONCLUSIONS:

1.  In determining whether or not to retain an officer, a board of officers
has to determine if, based on the totality of his or her record, it is in
the best interest of the Army to retain that officer.  The use of the same
information as was used by the earlier board was appropriate since it was
germane to whether or not the applicant was qualified to practice in his
medical specialty.

2.  While the earlier board of officers voted to retain the applicant, that
board did not give an unqualified retention decision.  It recommended a
qualified retention and that he be given a period of supervision to assess
his suitability to be credentialed and to practice as a Nuclear Medicine
Physician.
3.  The records show that the privileges granted him by Madigan Army
Medical Center were "regular privileges under supervision," not full
regular privileges and WRAMC granted him only supervised clinical
privileges.

4.  Without a granting of full unsupervised privileges to practice as a
Nuclear Medicine Physician he does not meet the requirement of being fully
qualified in his designated specialty, a requirement for retention
eligibility.

5.  The applicant was not fully qualified for continuation and as such he
does not meet the requirements for separation pay.

6.  The applicant’s OERs for 2003 through 2005 were not available to the
board of inquiry.  Additionally the available evidence does not indicate
that they have been processed or if they have, that they were incorporated
in the applicant's official record.

7.  While the OERs should have been completed and been available to the
board of inquiry, the fact that they were not does not invalidate the
findings of the board that the applicant was not qualified for retention in
his medical specialty based on the preponderance of evidence.

BOARD VOTE:

___JCR__  __WDP__  _KSJ___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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                 |AR20050018104                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |134                                     |
|2.                      |128                                     |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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