BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110016393 


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 the Board's denial of her request to remove a 25 February 2008 DA Form 5374 (Performance Assessment) from her records and to remove item 14 (Remarks) from the DA Form 5374, dated 2 November 2007.

2.  The applicant states in response to an advisory opinion obtained when the Board initially reconsidered this case, the advisory official provided a shoddily researched and biased advisory opinion and chose to ignore unequivocal evidence.

3.  The applicant quotes regulations pertaining to the authority to change clinical privileges and opines that the officer who completed the contested forms improperly substituted himself for her commander who has sole authority to change a provider's clinical privileges.

4.  She cites the fact that the comments made on the forms resulted in her not being hired for subsequent jobs and was cited by a credentials manager to be privilege-restricting as evidence that the officer who completed those forms improperly altered her clinical privileging.

5.  The applicant then cites regulations which provide the procedures for adverse privileging actions and charges that she was not afforded any of the protections provided by these procedures.


6.  She then points out:

	a.  The through date on the DA Form 5374 in question is 31 August 2007, but is signed 31 October 2007, a 2-month discrepancy.

	b.  The statement by the advisory official that there is no requirement to provide substantiating evidence for a negative statement on the DA Form 5374 is not true.  Regulations require qualitative and quantitative data dealing with the individual provider.

	c.  Her officer evaluation report (OER) for the period 25 February 2008 shows her expertise in neuroradiology.

	d.  The reason why there are two versions of the DA Form 5374 in question is that the officer who completed the form wrote a second version which was intended solely for internal (hospital) use.  The applicant contends this is using the form for a purpose other than what it was intended for and is a violation of the Privacy Act.  She also contends that since the officer who wrote the DA Forms 5374 admitted writing the second version after the rating period, he was in violation of regulations which state that a rating will not refer to prior or subsequent incidents occurring before or after the rating period.  The applicant continues that the version of the DA Form 5374 with the negative comments was not in her provider activity file and was only given to her after she filed a Freedom of Information Act request.

	e.  How the comments on the contested form were improperly used for a "Dartmouth rating."

	f.  The contested form was released to a civilian institution, an OER was directed to be changed and how changing the OER violated Army regulations, and the release of the form was in violation of Army regulations which require adverse privileging information to only be released by the U.S. Army Medical Command (MEDCOM).

7.  The applicant concludes that the two contested forms were processed outside the designated purpose of the forms, neither form had any substantiating documentation, there is strong evidence that the second version of the DA Form 5374 is fraudulent, and she was not afforded due process.

8.  The applicant does not provide any additional evidence.


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.  This case was reconsidered and again denied by the ABCMR in Docket Number AR20100021298 on 7 June 2011.

2.  The Board is considering this case because the applicant claims she could not respond to the advisory opinion prior to the ABCMR reconsidering her request since she was in Germany at the time.

3.  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 found 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 concluded the applicant failed to provide clear and convincing evidence of a material error in the preparation of the forms in question.

4.  The applicant's records show she transferred from the U.S. Army Reserve (USAR) Control Group (Individual Mobilization Augmentee) to a troop program unit on 3 April 1996 and was assigned to the Medical Support Unit, Germany.  She was promoted to colonel (COL) on 29 September 2000 and was reassigned to the Uniformed Services University of Health Sciences, Bethesda, MD, and the 2290th U.S. Army Hospital, Walter Reed Army Medical Center (WRAMC).

5.  On 6 April 2007, the applicant was ordered to active duty as a member of her USAR unit in support of Operation Enduring Freedom and was assigned to WRAMC from 11 May 2007 to 2 November 2007 and to Landstuhl Regional Medical Center (LRMC) from 5 November 2007 to 4 March 2008.  She was honorably released from active duty and returned to her USAR unit on 29 March 2008.

6.  On 31 October 2007, COL B____, the Chief, Department of Radiology, WRAMC, submitted a DA Form 5374 for the applicant's performance during the period 11 May 2007 to 31 August 2007 for the purpose of renewal of privileges.  Item 14 of this form shows the following comments:

A peer review audit was performed encompassing 1 week of neuroradiology cases performed by the provider.  Significant discrepancies were identified in 4 of the 53 cases reviewed (7.5 percent).  The provider's expertise is in pediatric neuroradiology.  The cases evaluated reflect the usual workload performed at the WRAMC, which is predominantly adults and trauma neuroradiology.  If the provider practices outside of her area of expertise, supervision should be provided until such time as performance is deemed acceptable for the case mix at the institution.

7.  On 25 February 2008, Lieutenant Colonel (LTC) A____, Chief, Department of Radiology, LRMC, submitted a DA Form 5374 for the applicant's performance during the period from 14 November 2007 to 25 February 2008 for the purpose of reassignment/separation.  He rated the applicant based on her demonstrated clinical performance compared to that which can be reasonably expected of a provider with her educational background, level of training, and expertise and placed an "X" under the "Acceptable" column in all areas with the exception of item 15(h) (Cooperation with Hospital/Clinic Personnel) in which he placed an "X" under the "Unacceptable" column and handwrote the following comments:

Applicant had some problems with staff interaction which resulted in several complaints and clinicians going to other radiologists instead of her.

8.  The applicant provided a second DA Form 5374, dated 25 February 2008, from LTC A____, Chief, Department of Radiology, LRMC, which contains an "X" in the "Acceptable" column of item 15(h) and contains no comments.

9.  The two DA Forms 5374 are not filed in the applicant's OMPF.

10.  Army Regulation 40-68 (Clinical Quality Management) prescribes policies, procedures, and responsibilities for the administration of the Clinical Quality Management Program.  It includes Department of Defense (DOD) and statutory policies addressing medical services quality management requirements.  This regulation provides that when the provider permanently changes station, separates, or retires from the service, an updated copy of a DA Form 5374 and DA Form 5441 (Evaluation of Clinical Privileges – Anesthesia) will be included in the provider activity file prior to the file being forwarded, as indicated above.

11.  Army Regulation 40-68, chapter 5, provides for competency assessment.  It states that a 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.  Immediate supervisors (officer, enlisted, and civilian) are responsible for assessing, maintaining, and improving staff competency through an ongoing series of activities.  Criteria used for this review relate to quality of care, quality of documentation, and the staff member's authorized scope of practice.

12.  The intent of providing appropriate oversight of practice in the context of Army Regulation 40-68 is to evaluate and enhance performance of health care personnel in delivering patient care services.

13.  In connection with the processing of the first reconsideration request, the Board obtained an advisory opinion from MEDCOM.  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 the COL providing the 31 October 2007 assessment complied with all DOD and Army regulatory guidance and outlines the process the COL 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.

14.  The advisory official further states the second DA Form 5374 in question has two versions.  Both versions were prepared by the same LTC on the same date.  The LTC provided an explanation for why two reports were prepared in a sworn declaration, dated 2 April 2009, 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 LRMC, a COL, 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.

15.  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.


DISCUSSION AND CONCLUSIONS:

1.  Initially, the scope of the Board's consideration must be restated since the applicant raised a host of issues which she believes to be germane to her request which could confuse the issue.  The Board is considering whether the 25 February 2008 DA Form 5374 (Performance Assessment) should be removed from her records, and whether the removal of item 14 (Remarks) from the DA Form 5374, dated 2 November 2007, would be appropriate.

2.  This means the Board must determine whether the two forms were properly completed.  How they were used subsequent to their completion has no relevance in whether they are properly completed and filed.  Likewise, the applicant's contention that the forms were actually adverse privileging actions and, therefore, completed by an inappropriate official is untrue.  There is no evidence the applicant's clinical privileging was ever modified, suspended, or revoked.

3.  The evidence of record shows the applicant was ordered to active duty in April 2007 and was initially assigned to WRAMC from May 2007 to November 2007.  As required by the governing regulation, her supervisor conducted a periodic clinical performance evaluation based on his experience and competency utilizing the DA Form 5374.  There is no evidence and the applicant has provided none to show her supervisor did not comply with the regulatory requirements of assessing her in a fair and unbiased manner.

4.  The applicant was then reassigned to LRMC from November 2007 to February 2008.  Again, as required by the governing regulation, her supervisor conducted a periodic clinical performance evaluation due to the applicant's reassignment and/or separation utilizing the DA Form 5374.  Her supervisor submitted a second form for the same evaluation period because of a change in his assessment of her clinical performance.  While the applicant certainly doesn't like the revised DA Form 5374, there is no prohibition against submitting a revised evaluation.  As such, there is no evidence and the applicant has provided none to show her supervisor did not comply with the regulatory requirements of assessing her in a fair and unbiased manner.

5.  While the applicant cites what she believes to be numerous violations of regulations, the Privacy Act, and her due process, these appear to be based on her broad interpretation of the governing directives.  When reviewed by the Office of the Surgeon General and the ABCMR on two occasions, no error or injustice was found.

6.  In order to support removal of the contested DA Forms 5374, there must be evidence that establishes clearly and convincingly that the presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.  The applicant's arguments provided in this case address her dissatisfaction with the assessment, the impact the contested forms may have had on her potential employment, and her belief that she was not provided due process, but fail to show any material error, inaccuracy, or injustice related to the assessments at the time they were rendered.

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 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)                                         AR20110016393



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ABCMR Record of Proceedings (cont)                                         AR20110016393



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