IN THE CASE OF:	  

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130002784 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

   a.  senior rater narrative comments about communication "issues" and recommending the applicant's discharge from military service be removed from Part V11c (Comment on Performance/Potential) of the applicant's DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 November 2009 through 
7 February 2010.

	b.  the applicant's records be corrected to show his discharge in February 2010 was an unlawfully forced separation.

	c.  the notice to the National Practitioner Data Bank (NPDB) pertaining to the applicant's restriction of privileges should be rescinded.  

2.  Counsel states:

	a.  the senior rater comments in the OER were motivated by bias and it contradicted all of the findings in the OER.  Her unfair comment about communication "issues" and recommending the applicant's discharge from military service should be deleted from the record.

	b.  the applicant's discharge was an unlawfully forced separation proximately caused by the senior rater's biased comment.

	c.  the applicant's restriction of privileges was unwarranted and motivated by unfair bias.  The notice to the NPDB about the (unwarranted) restriction of privileges (dated 29 April 2009), discovered in April 2012, should be rescinded. 

	d.  the applicant served honorably as an Army Medical Service officer from 
15 June 2002 until 28 February 2010, earning many awards and decorations.  He was promoted to major while serving in Iraq.  He completed two separate internships including a wide scope of specialties.  He was originally selected by the Medical Department in the area of dermatology, indicating that he was disfavored from the start.  He was forced to end his military career as a physician because he could not endure the abuse and discrimination to which he was subjected for years.  

	e.  his OER covering the period 1 November 2009 through 7 February 2010 rated him favorably on all Army values and leadership attributes/skills/actions with an overall rating of "Satisfactory Performance, Promote."  And yet the same OER, in an internal contradiction, contained this comment "Due to his issues in communicating successfully with his peers, subordinates and leadership, I would not recommend further military duty.  Return to a civilian career as he plans is appropriate."  That incongruous comment sealed the imminent doom of his military career.  The adverse recommendation by the senior rater contradicted her own entry in the same OER regarding his promotion potential to the next higher grade on which she rated him "Fully Qualified" and did not check the "Do Not Promote" box. 
 
	f.  the asserted basis for not recommending further military duty was also directly contradicted in the same OER by the rater's consistently positive findings on his leader attributes/skills/action.

	g.  the identity of the senior rater was not revealed to the applicant until he was called to sign the OER.

	h.  the senior rater, whose adverse comment had no objective basis in fact, is white.  The applicant is African American.

	i.  on 26 February 2010, the applicant filed an Equal Opportunity complaint that alleged "unfair treatment while assigned to the Adult Medicine Clinic" where the "work environment was extremely hostile" on account of him being African American, and requested an investigation and "a more professional and accurate Officer Evaluation Report."  On 28 May 2010, the commander found that the Equal Opportunity complaint was unsubstantiated.

	j.  allegations prompting adverse action proved unsupportable.

	k.  slander by biased individuals led to the senior rater's comment in the OER and witnesses lacked credibility.

	l.  the applicant's first sergeant observed that he was never given a chance by a "racially motivated" clique.  He provides a character reference letter from the first sergeant who states "In my opinion a lot is racially motivated …."  Despite being mistreated, the applicant excelled in his duties.  He was known as an outstanding officer and physician.

	m.  on 2 April 2012, the NPDB issued an Adverse Action Report that says the applicant was subject to adverse action effective 29 April 2009 pertaining to restriction/limitation of clinical privileges.  This notice relates to a memorandum which was based on a secret investigation of racially motivated claims that have been thoroughly refuted.  The applicant was not notified of the investigation.  He was not informed that the notice would be given to the NPDB.   

3.  Counsel provides 18 exhibits outlined on the last page of his brief, dated 
1 February 2013.

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service and commissioned service in the U.S. Army Reserve, the applicant was appointed as a Reserve commissioned officer in the rank of captain in the Medical Corps on 2 June 2002.  He was ordered to active duty on 15 June 2002.  He served in Iraq from 26 August 2006 to 15 October 2007.  He was promoted to major on 15 June 2008.

2.  The applicant provided an NPDB Adverse Action Report that states the type of adverse action was:  Title IV Clinical Privileges; the basis for the action was: other – not classified, specify (99); the other, as specified was: Chart Review/Behavioral Assessments; the adverse action classification code(s) was: other restriction/limitation of clinical privileges, specify (1645); the other, as specified was: Temporary Restriction; and the date action was taken and became effective was: 29 April 2009.

3.  In Part Vc (Comment on Potential for Promotion) of the contested OER, the rater stated "MAJ [Applicant's name] is candidate for standard progression."

4.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) of the contested OER, the senior rater placed an "X" in the "Fully Qualified" box.  She also placed the following comments in Part VIIc:

Maj [Applicant's name] completed his assigned duties while at TAMC (Tripler Army Medical Center) in the Adult Medicine Clinic and the Department of Obstetrics and Gynecology.  He provided medical care at the level of a General Medical Officer in the Adult Medicine Clinic.  He accepted feedback about his plan of supervision and was granted unsupervised privileges during this timeframe.  He completed MEDPROS data entry for the Department of ObGyn during this timeframe as well.  He successfully fulfilled a 2 week tasker to Alaska to backfill a GMO billet.

Due to his issues in communicating successfully with his peers, subordinates and leadership, I would not recommend further military duty.  Return to a civilian career as he plans is appropriate. 

5.  On 28 February 2010, he was honorably discharged under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-5, for miscellaneous/general reasons.  His resignation is not contained in the available records.  

6.  Paragraph 3-5 of Army Regulation 600-8-24 states any officer on active duty may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the service; officer is under  suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending.

7.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier's AMHRR be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity will not be applied to the report under consideration; and


	b.  action is warranted to correct a material error, inaccuracy, or injustice.

8.  Chapter 14 (Reporting and Releasing Adverse Privileging/Practice or Malpractice Information) of Army Regulation 40-68 (Clinical Quality Management) provides mandatory requirements on the reporting of adverse clinical privileging actions.  It states, in pertinent part, The Surgeon General (TSG) is the sole reporting authority to the NPDB, State regulatory authorities, the Federation of State Medical Boards, and/or other appropriate central clearinghouses.  TSG is responsible for reporting malpractice history information and adverse privileging actions, unprofessional conduct or behavior, and any legal charges for which the provider/professional is found guilty, pleads guilty, pleads nolo contendere (which is a Latin term for "I do not wish to contend."  It is also referred to as a plea of no contest), or requests discharge from the military in lieu of court-martial.

9.  Title IV of Public Law 99-660 led to the establishment of the NPDB, an information clearinghouse, to collect and release certain information related to the professional competence and conduct of physicians, dentists, and, in some cases, other health care practitioners.  The establishment of the NPDB represents an important step by the U.S. Government to enhance professional review efforts by making certain information concerning medical malpractice payments and adverse actions available to eligible entities and individuals.

10.  When the NPDB receives a report, the information is processed exactly as it is submitted by the reporting entity.  Reporting entities are responsible for the accuracy of the information they report.  If any information in a report is inaccurate, the subject must request that the reporting entity file a correction to the report.  If the reporting entity declines to change the report, the subject may initiate a dispute of the report through the dispute process; add a statement to the report, or both.  If a subject believes that information in a report is factually inaccurate or should not have been reported, the subject must attempt to resolve the disagreement directly with the reporting entity.  Changes to a report may be submitted only by the reporting entity.

11.  If the reporting entity declines to change the disputed Adverse Action Report or takes no action, the subject may request that the Secretary of Health and Human Services review the disputed report.  The Secretary reviews disputed reports only for accuracy of factual information and to ensure that the information was required to be reported.



DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the senior rater's comments were motivated by bias and should be deleted from the record.

2.  In order to justify amendment of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

3.  The applicant has failed to show by clear and convincing evidence that the contested OER contained an inaccurate assessment by his senior rater.

4.  An OER accepted for filing in the AMHRR is presumed to represent the considered opinion and objective judgment of the rating officials when it was prepared.  Therefore, there is insufficient evidence on which to base amending the contested OER.  

5.  Counsel alleges the applicant was a victim of discrimination.  However, despite the character reference letter provided by the first sergeant who states "In my opinion a lot is racially motivated," there is no evidence of record which shows the applicant was a victim of discrimination. 

6.  Although counsel contends the applicant's discharge in February 2010 was an unlawfully forced separation, it appears he tendered a voluntary resignation which resulted in his discharge.  

7.  Counsel's request to rescind the notice to the NPDB was noted.  However, TSG is the senior medical officer in Headquarters, Department of the Army, and his office serves as the governing body for health care facilities worldwide.  The Army Board for Correction of Military Records could order removal of the adverse privileging action from the applicant’s credential privilege files, or inform the data bank that the original notification was in error.  However, the Board respects the authority given to TSG, the senior medical authority in the Army.  In the absence of compelling evidence that a gross miscarriage of justice occurred, there is a reluctance to overturn the judgment of that authority.

8.  It is acknowledged that it appears the applicant did not become aware of the Adverse Action Report until 2012; however, it appears he has not appealed the action through the appropriate authorities yet.



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 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)                                         AR20130002784





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ABCMR Record of Proceedings (cont)                                         AR20130002784



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