IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100021298 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of her earlier petition to the Board requesting removal of a 25 February 2008 altered DA Form 5374 (Performance Assessment) from her personnel file; and removal of item 14 (Remarks) from the DA Form 5374, dated 2 November 2007.  

2.  The applicant states she is submitting 13 documents in support of her reconsideration request and outlines the relevance of the documents in a
self-authored letter to the Board, dated 22 November 2010.  

3.  The applicant provides self-authored letters, dated 22 November 2010, 
7 December 2010, and 28 March 2011, and the supporting documents identified therein in support of her reconsideration request.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090005346, on 30 July 2009.  

2.  During its original review of the case, the Board determined the DA Forms 5374 were not filed in the applicant's Official Military Personnel File (OMPF).  It further concluded there was no evidence showing the applicant's supervisors 


failed to comply with the regulatory requirements to assess her in a fair and unbiased manner.  It further found the applicant failed to provide clear and convincing evidence of a material error in the preparation of the forms in question.

3.  In connection with the processing of this reconsideration request, the Board obtained an advisory opinion from the U.S. Army Medical Command (USAMEDCOM).  The advisory official states that after a thorough review of all the material submitted by the applicant, the records in question comply with all legal and regulatory criteria.  He further states that the colonel providing the      31 October 2007 assessment complied with all Department of Defense (DoD) and Army regulatory guidance and outlines the process the colonel followed in completing the DA Form 5374 for this period.  He further indicates that had there been privilege-restricting comments on the form, as asserted by the applicant, formal peer review procedures would have been initiated pursuant to the governing regulation.  He states there is no evidence of any such subsequent proceeding in the record.

4.  The advisory official further states the second DA Form 5374 in question has two versions.  Both versions were prepared by the same lieutenant colonel (LTC) on the same date.  The LTC provided an explanation of why two reports were prepared in a 2 April 2009 sworn declaration that is provided with the advisory opinion.  The reviewing official states it is clear from the LTC's declaration that there was some confusion between the DA Form 5374 and the Dartmouth-Hitchcock Medical Center Professional Evaluation prepared by the deputy commander for clinical service at Landstuhl Regional Medical Center (LRMC), a colonel, which is when the word "forgery" was initially used.  The text in the comments section of the Dartmouth evaluation is similar to that of the DA Form 5374; however, it is clear from the LTC's declaration that the DA Form 5374 was officially modified to rate her cooperation as "unacceptable" and that a comment was added in block 16.  As a result, the modified DA Form 5374 is an accurate assessment of the applicant's performance.  He confirms that he is advised by the MEDCOM Quality Management Division that the applicant's official record currently only has the DA Form 5374 without comment on file.  If the second one is forwarded by LRMC it may appropriately replace the current one as a corrected copy.

5.  The advisory official further states the health care providers acted in good faith and in compliance with current directives to assess the applicant's performance and there is no error or injustice related to the forms that would support removal or correction.


6.  On 5 April 2011, the applicant was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comment or a rebuttal.  She did not respond.

7.  Army Regulation 40-68 (Clinical Quality Management (CQM)) prescribes policies, procedures, and responsibilities for the administration of the Clinical Quality Management Program (CQMP)) which includes preparation and filing of the DA Form 5374.  

8.  Army Regulation 40-68, chapter 5 (Competency Assessment, Delegation, and Supervision of Practice) provides guidance on competency assessment.  It states competency assessment is required of all members of the staff and is demonstrated by one's performance in a designated setting.  Performance must meet established standards that are determined, in part, by the work setting and the employee's designated role in that setting.  Thus, the leaders of an organization must have clearly defined the qualifications and competencies that staff must possess to accomplish the organization's mission. 

9.   Chapter 5 of the same regulation further provides that supervisors of privileged providers will complete periodic clinical performance evaluations based on the individual's experience and competency utilizing DA Form 5441 (Evaluation of Clinical Privileges - Anesthesia) and DA Form 5374 (Performance Assessment).  These are filed initially in the Provider Activity File (PAF) and transferred to the Provider Credentials File (PCF) at the time of clinical privileges renewal, PCS, or release from service/employment.  A variety of parameters allow for review of the appropriateness of care and the privileged provider's current competence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's reconsideration request for removal of a 25 February 2008 altered DA Form 5374 from her personnel file; and removal of item 14 from the DA Form 5374, dated 2 November 2007, has been carefully considered.  However, there remains insufficient evidence to conclude the medical authorities responsible for the forms in question failed to comply with the governing regulatory requirements in completing and filing these documents.

2.  The documents in question are not part of the applicant's OMPF.  Instead they were prepared by the responsible medical authorities in compliance with regulatory competency assessment requirements and are filed in the appropriate medical facility files.


3.  Based on the information provided in the advisory opinion by USAMEDCOM, it appears the documents in question were properly prepared and filed by responsible medical authority in accordance with the applicable regulation and DoD guidance.  The new documents provided by the applicant fail to provide new evidence that support the applicant's assertion that the assessment was unjust or improper or that would support removal from the designated medical facility files.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement or that would support amendment of the original decision in this case. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  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 to amend the decision of the ABCMR set forth in Docket Number AR20090005346, dated 30 July 2009.



      _________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20100021298



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ABCMR Record of Proceedings (cont)                                         AR20100021298



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