IN THE CASE OF:	

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120014476 


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 removal of an adverse action report from the Healthcare Integrity and Protection Data Bank (HIPDB) and an officer evaluation report (OER) for the period 12 June 2009 through 1 April 2010 from his Army Military Human Resource Record (AMHRR).

2.  The applicant states:

	a.  He was accused of making fraudulent entries in medical records while he was an intern in the Family Practice Residency Program (FPRP).

	b.  The basis of his appeal is substantive inaccuracy, unfairness about medical record falsification, and the low level of his medical knowledge.

	c.  In the FPRP at DeWitt Army Hospital he had two clinical rotations in internal medicine and obstetrics and a 3-day rotation in ambulatory medicine.

	d.  He considers internship to be an educational process and as an intern he did not work as a licensed physician.

	e.  He did not have rights for independent actions and worked only under the supervision of an attending physician.

	f.  As a first-year intern he could only make recommendations and thus he could not make an official entry in a medical record.

	g.  He made medical records for training purposes only and he was not allowed to make entries in electronic medical records without them being reviewed and cosigned by the attending physician.

	h.  All of the patients he examined were also seen by attending physicians; therefore, they had to concur with any medical diagnoses or recommendations he placed in the medical record.

	i.  The entries he made in medical records were neither meant to deceive nor could he benefit from making false entries.

	j.  He did not intend to deceive or misrepresent any medical record entry and the attending physician could have corrected him if he had done something wrong.

	k.  All of his hospital notes were checked and signed by senior residents and licensed attending physicians.

	l.  As an intern he was not in a situation where he could commit fraud.

	m.  He did not have access to a computer system with identification and password as a licensed physician.

	n.  The words fraud or falsification could not be applicable to him in his situation.

	o.  Termination from the FPRP is not reportable to the National Practitioners Data Base because his residency is considered an educational situation.

	p.  From the beginning of his residency, he had difficulties with the ambulatory electronic medical record system because of lack of training.

	q.  He never used an electronic medical record in his previous practice.

	r.  He asked his associate program director to complete at least one patient's record with him, but he only received advice to follow electronic medical record templates.

	s.  The chief resident scheduled additional training for him and another intern, but it was insufficient.

	t.  Follow-up training was not possible because he was suspended from the program and received a negative OER.

	u.  His clinical judgment and medical knowledge was exhibited by the results of the November 2009 American Board of Family Medicine In-Training Examination Score Report.

	v.  His OER, dated 8 June 2010, was inappropriate, inaccurate, and unjust with multiple procedural violations of Army Regulation 623-105 (Officer Evaluation Reporting System) (superseded by Army Regulation 623-3 (Evaluation Report System) effective 17 December 2004).

	w.  He was in the medical evaluation board (MEB) process when the OER was completed.

	x.  Major T____ arrived on 15 August 2010 and was his supervisor for less than 90 days.

	y.  He did not have any counseling and his performance difficulties in the residency program were connected to severe sleep deprivation, physical exhaustion, lack of training with the electronic medical record system, and his medical conditions.

	z.  Constant stress and negative feedback from his difficulty using the electronic medical record system and the pressure of prolonged night shifts with sleep deprivation exacerbated his medical conditions.

	aa.  He was diagnosed with major depression, severe obstructive sleep apnea, diabetes mellitus, and hypothyroidism.

	bb.  He recently underwent a physical evaluation board (PEB) and was found unfit for duty based on his medical conditions.

3.  The applicant provides:

* self-authored memorandum for the Army Board for Correction of Military Records (ABCMR), dated 26 July 2012
* OER for the period 12 June 2009-1 April 2010
* memorandum for record, dated 3 June 2010
* adverse action report, dated 13 July 2011
* three letters from Fort Belvoir Community Hospital, dated 17 February 2012, 3 May 2012, and 9 May 2012
* Walter Reed Sleep Disorders Center Split-Night Polysomnogram Report, dated 3 November 2010
* MEB Proceedings, dated 17 February 2012
* PEB letter, dated 3 April 2012
* PEB Proceedings, dated 28 June 2012, with concurrence, dated 25 July 2012
* Geneva Conventions Identification Card
* Information from the HIPDB website
* American Board of Family Medicine, Incorporated, 2009 In-Training Examination Score Report
* Headquarters, Northern Regional Medical Command letter, dated 20 June 2012
* Army Review Boards Agency letter, dated 5 August 2011
* Department of Health and Human Services Guidelines for Teaching Physicians, Interns, and Residents (four pages)
* Clinical Documentation and Compliance Manual (nine pages)

CONSIDERATION OF EVIDENCE:

1.  The applicant requests removal of an adverse action report from the HIPDB.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-5, states the Board will not consider any application if it determines that the applicant has not exhausted all administrative remedies available.  The adverse action report the applicant submitted shows his request is currently being reviewed by the Secretary of the U.S. Department of Health and Human Services to determine the accuracy and/or whether it complies with reporting requirements.  Therefore, the Board will not consider this portion of his request and no further reference regarding removal of the adverse action report from the HIPDB will be made at this time.

2.  On 2 March 2009, the applicant acknowledged receipt of a letter from the Office of the Surgeon General notifying him of his selection for graduate medical education (GME) training in family medicine at the National Capitol Consortium-Walter Reed Army Medical Center, Washington, DC, beginning on or about 1 July 2009 through 30 June 2011.  He accepted the GME training and indicated he understood the requirements stated in the training agreement.

3.  The applicant executed his oath of office as a Reserve commissioned officer on 8 April 2009 in the rank of captain.

4.  On 13 May 2009, Orders A-05-913824 were published ordering him to active duty and assigning him to Dewitt Army Community Hospital, Fort Belvoir, VA, with a reporting date of 12 June 2009.

5.  On 9 June 2009, the applicant executed his oath of office as a commissioned officer in the Regular Army Medical Corps in the rank of captain.

6.  On 15 October 2009, the applicant submitted a request for resignation in lieu of his proposed termination.  In his request, he stated he understood that termination of his training was being proposed and he would like to resign from the Dewitt Army Community Hospital Family Medicine Residency.  The National Capitol Consortium Hearing Subcommittee of the GME Committee voted to approve his resignation effective 4 November 2009.

7.  On or about 8 June 2010, the applicant received a referred OER for the period 16 June 2009 through 1 April 2010.  In Part IV (Performance Evaluation – Professionalism) his rater stated the applicant:

* had no honor
* had no integrity
* did not fulfill professional, legal, and moral obligations
* did not demonstrate sound judgment, critical/creative thinking, moral reasoning
* did not show skills with people, coaching, teaching, counseling, motivating, and empowering
* did not display good oral, written, and listening skills for individuals/groups
* did not employ sound judgment, logic reasoning, and use resources wisely
* did not inspire, motivate, and guide others towards mission accomplishments
* did not show tactical proficiency, meet mission standards, and take care of people/resources
* did not use after action and evaluation tools to facilitate constant improvement
* did not seek self-improvement and organizational growth, envisioning, adapting, and leading change

8.  In Part V (Performance and Potential Evaluation) of his OER, the applicant's rater marked the block "UNSATISFACTORY PERFORMANCE, DO NOT PROMOTE."  His rater stated, "[Applicant] did not meet the standards of Army Military Medicine.  He resigned in lieu of termination from his residency training.  He was terminated from training for the following:  repetitive false documentation of patient encounters, poor clinical judgment, lack of essential basic medical knowledge and poor written and verbal communication skills.  He completed three of his clinical rotations and received failing grades on all three.  Despite having a significant amount of time to self reflect and consider his mistakes, [Applicant] failed to recognize the seriousness of his deficiencies and document falsifications.  After termination of his training, [Applicant] worked in an administrative position with the department of Preventive Medicine.  He worked outside his [military occupational specialty] in an administrative position inputting data regarding vaccination completions.  Audits of his workload did show some errors, but he performed these duties at an acceptable level.  His frustrations with the Army are reflected regularly in his performance.  He displays the ability to perform his administrative duties but currently lacks the desire to do more than the duties assigned."  His rater stated he had extremely limited potential for promotion.

9.  In Part VII (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the applicant's senior rater marked the block "DO NOT PROMOTE."  The senior rater stated, "[Applicant] failed to adhere to the standards of a professional, military medical officer.  During his brief tenure with our training program, he did not satisfactorily complete the first three clinical rotations of his internship receiving failing grades.  He was suspended from training for false documentation in the electronic medical record for a least 22 outpatient visits.  Attempts to return him to training failed leading to his resignation in lieu of termination effective 4 November 2010.  I do not foresee any situation which would allow [Applicant] to practice medicine in the military. Though he can complete marginal administrative duties, I do not foresee him being able to function at the level of a company grade officer."  In potential career field for future service, the applicant's senior rater stated "none."

10.  On 3 June 2010, the applicant submitted a rebuttal to his referred OER stating the contentions cited in his application to this Board.

11.  The applicant electronically signed his referred OER on 8 June 2010.

12.  The applicant's AMHRR contains PEB Proceedings, dated 18 October 2010, which show he was found fit for duty in his grade and specialty.  The PEB Proceedings state that based on the evidence of record:

* his diabetes mellitus, type II, did not have any functional impairment which prevented satisfactory performance of duty
* he was fit for duty as a family physician within the limits of his profile
* Medical Corps officers will not be found to be unfit by reason of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and experience
* the Community Health Nurse Chief stated in a 22 February 2010 memorandum that he was unaware of any medical conditions that would have prevented the applicant from service in his medical provider role
* his diabetes mellitus, type II, allowed him to carry and fire his assigned weapon, wear the protective mask and chemical defense equipment, and perform sit-ups, pushups, and walk for an alternate Army Physical Fitness Test
* his glycated hemoglobin was 7.1 percent on 16 June 2010 which was within the "good control" range

13.  The PEB determined the applicant should be returned to duty as fit.  He agreed with the PEB findings and recommendation on 16 December 2010.

14.  The applicant submitted an appeal to the Officer Special Review Board (OSRB) contending that the referred OER contained substantive inaccuracies and demonstrated unfairness.  The OSRB denied his appeal on 28 July 2011, stating:

* it is unlikely that his medical problems started during the 4-5 months of his residency training
* only one diagnosis (diabetes) fell below retention standards
* he was found medically fit for duty
* most of his psychiatric encounters for depression addressed his dissatisfaction with and appeal of his fitness finding
* he resigned from the FPRP in lieu of being terminated from the program
* it appears his training was ultimately terminated because he falsified 22 medical documents
* attempts to rehabilitate him and return him to training were unfruitful
* although cultural differences and language barriers could have played some part in his difficulties, they cannot account for his deficiencies in judgment, ethical standards, and medical knowledge
* he did not provide any evidence to support his contention that his OER was unfair or contained a substantive inaccuracy
* he did not provide sufficient evidence to show the OER was not processed in accordance with applicable laws and regulations

15.  An MEB convened on 17 February 2012 to determine if the applicant should be referred to a PEB for consideration.  The MEB diagnosed the applicant with the following conditions and recommended his referral to a PEB:

* major depression – medically unacceptable
* diabetes mellitus, type II – medically unacceptable
* obstructive sleep apnea – meets medical retention standards
* right toe osteoarthritis – meets medical retention standards
* hypothyroidism – meets medical retention standards
* chest pain – meets medical retention standards
* obesity – meets medical retention standards
* hyperlipidemia – meets medical retention standards
* bilateral knee osteoarthritis – meets medical retention standards
* bilateral subjective tinnitus – meets medical retention standards
* bilateral otitis externa – meets medical retention standards
* myopia presbyopia – meets medical retention standards
* tinea pedis – meets medical retention standards
* acid reflex – meets medical retention standards
* external hemorrhoids – meets medical retention standards

16.  A PEB convened on 28 June 2012 to determine the applicant's fitness for continued service.  The PEB found him physically unfit due to the following conditions and recommended his placement on the Temporary Disability Retired List (TDRL):

* major depression – rated at 70 percent
* diabetes mellitus, type II – not unfitting
* obstructive sleep apnea – meets medical retention standards
* right osteoarthritis – meets medical retention standards
* hypothyroidism – meets medical retention standards
* chest pain – meets medical retention standards
* obesity – meets medical retention standards
* hyperlipidemia – meets medical retention standards
* bilateral knee osteoarthritis – meets medical retention standards
* bilateral subjective tinnitus – meets medical retention standards
* bilateral otitis externa – not rated
* myopia presbyopia – meets medical retention standards
* tinea pedis – meets medical retention standards
* acid reflux – meets medical retention standards
* external hemorrhoids – meets medical retention standards

17.  The applicant submits letters from a doctor and a social worker, dated 3 May and 9 May 2012, stating he has been diagnosed with major depressive disorder which has been the main diagnosis in a PEB finding of not fit for duty.  The letters both state his treatment provider thought his depression was a major contributing factor leading to his dismissal from the FPRP and his poor performance during the rating period from 12 June 2009 to June 2012.

18.  The applicant concurred with the PEB findings on 25 July 2012.

19.  A review of the available records shows that as of the date that these ABCMR Record of Proceedings were prepared, the applicant was in an active duty status.  There are no orders in his AMHRR and he has not submitted any orders showing he has been released from active duty and placed on the TDRL.

20.  Army Regulation 623-3 establishes the policies and procedures for preparing, processing, and using the evaluation reports.  The regulation states that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

21.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states that once an official document has been properly filed in the Official Military Personnel File (now known as the AMHRR), it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  The available evidence suggests that he falsified at least 22 medical documents during 4 to 5 months of residency.  It does not matter whether he intended to deceive or misrepresent.  After the documents were discovered, he submitted a request for resignation in lieu of proposed termination.

3.  The question in this case is whether or not the comments made by the applicant's rater and senior rater properly reflect his performance during the rating period.  While they are considered derogatory, he has not shown that the comments contained therein are inaccurate, unfair, or untrue.

4.  The comments made in the referred OER by his rater and senior rater clearly provide their observations of the applicant's performance, discipline, and judgment during the rating period.  Contrary to what the applicant contends, the comments made are not prohibited and the OER appears to have been processed in accordance with applicable laws and regulations.

5.  In the documents he submitted, he makes reference to the medical conditions with which he was diagnosed by the MEB that convened on 17 February 2012 and the PEB that convened on 28 June 2012.  He states these conditions were the cause of his referred OER.  The referred OER was for the period 12 June 2009 through 1 April 2010, which was over 2 years prior to his unfitting diagnosis. 
The PEB, dated 18 October 2010, did not diagnose him with any unfitting conditions.  He was found fit and he was returned to duty.

6.  It is clear that the applicant disagrees with the comments made by his rater and senior rater on his referred OER.  However, his disagreement is not a basis for granting his request to remove the referred OER from his AMHRR.

7.   In view of the foregoing, his request should be denied.

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 for correction of the records of the individual concerned.



      ___________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)                                         AR20120014476



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ABCMR Record of Proceedings (cont)                                         AR20120014476



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