IN THE CASE OF: 

		BOARD DATE:	      17 July 2014

		DOCKET NUMBER:  AR20130019849


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 his DA Form 67-9 (Officer Evaluation Report (OER)), for the rating period 16 September 2005 through 15 September 2006, from his Official Military Personnel File (OMPF).  Hereafter, the OER in question is referred to as the "contested OER."

2.  As a secondary issue, the applicant requests immediate promotion to the rank/grade of lieutenant colonel (LTC)/O-5.

3.  The applicant states:

* he seeks to correct the injustice caused by the contested OER, which resulted from a lack of objectivity and fairness on the part of his rater and senior rater
* the rater's comments before, during, and after the period of the contested OER support the aforementioned assertions of injustice, lack of objectivity, and lack of fairness
* moreover, the rater and senior rater only observed his performance during 3 of the 12 rated months
* the rater and senior rater comments violate Quality Assurance/National Practitioner Data Bank (QA/NPDB) disclosure laws

4.  The applicant provides numerous attachments and enclosures, identified as:

* a 6-page memorandum to the Army Board for Correction of Military Records (ABCMR, the "Board"), dated 17 September 2013
* the contested OER
* a memorandum he sent his senior rater, dated 21 November 2006, subject: Response for OER Referral (20050916–20060915)
* memoranda/letters of recommendation/support from a Major General (MG), and numerous Colonels (COL) and Lieutenant Colonels (LTC), who are commanders, superiors, peers, and co-workers of the applicant
* 3 screenshots of medical data, constituting intraoperative records contained within the Operating Room Management Application (ORMA) 
* 2 additional screenshots of medical data, labeled as vascular surgery service staff notes
* a memorandum from the applicant to MG Txxxxx, Commanding General, Western Regional Medical Command, Joint Base Lewis-McChord, Tacoma, WA, dated 22 June 2013
* a letter from Ms. Jxxxxx Bxxxxx, the daughter of Mrs. Lxx Fxxxxx, a past surgical patient of the applicant who died approximately 3 days after she underwent surgery performed by the applicant
* a Notice of Research Fellowship Award he received on 25 June 1999
* a certificate he received from the International Society for Heart and Lung Transplantation, dated 18 April 1998, along with other corresponding documents related to his fellowship award
* various Internal Revenue Service (IRS) forms that document annual income he received for services performed as a physician
* a copy of his Vascular Surgery Fellowship certificate
* his Resident Operative Experience Report, dated 27 June 2002
* his Resident Statistical Analysis Report, dated 14 November 2001
* his résumé, as well as selected copies of his published works
* DA Form 67-9-1 (OER Support Form)
* a letter of recommendation from a staff member at The White House, Washington, DC, dated 18 February 1992
* various positive letters from staff members at Vanderbilt University Medical Center
* deployment orders, annexes, and memoranda referencing his past deployment history
* DA Form 4037 (Officer Record Brief (ORB))
* copies of his past OERs, before and after the contested OER
* copies of various awards he has received, including the Bronze Star Medal (2nd Award), Army Commendation Medal (2nd Award), Army Achievement Medal (2nd Award), and Meritorious Unit Commendation
* a copy of his Army Medical Department (AMEDD) Captains Career Course (Medical Corps) Pilot Course diploma, issued by the Academy of Health Sciences on or about 13 December 2011
* the North Atlantic Treaty Organization (NATO) Medal certificate
* various certificates of appreciation
* lastly, a letter of support signed by 10 Medical Doctors (MD) and a Physician Assistant (PA-C)    

CONSIDERATION OF EVIDENCE:

1.  On 31 December 2003, after numerous years of specialized medical training and practice in civilian hospitals, the applicant was appointed as a Reserve commissioned officer of the Army, as a captain (CPT) in the Medical Corps. Upon entry on active duty, he was assigned as a vascular/endovascular surgeon at Madigan Army Medical Center, Fort Lewis, WA.  He is currently deployed in support of NATO operations in Afghanistan and elsewhere. 

2.  Order Number 341-001, issued by the U.S. Army Human Resources Command on 6 December 2004, announced his promotion to major (MAJ), effective 20 November 2003.

3.  On 8 December 2008, he received the contested OER, based on his duty performance as a staff vascular surgeon at Madigan Army Medical Center.

   a. Part I (Administrative Data), sub-section i. (Period Covered), shows the report covered 12 months of rated time, commencing on 16 September 2005 and terminating on 15 September 2006.

   b. His rater was Mr. Cxxxxxx Axxxxxxx, the chief of the Department of Vascular Surgery at Madigan Army Medical Center.

   c. His senior rater was COL Kxxxxxx Axxxxx, the chief of the Department of Surgery at Madigan Army Medical Center.

   d. In Part II (Authentication), sub-section d. (This is a referred report, do you wish to make comments?), a checkmark was placed in the appropriate block, thereby acknowledging the applicant's understanding that he was receiving a referred report.  In that same block, a checkmark was placed in the "Yes" block, indicating the applicant made comments and the comments were attached as an enclosure.

   e. Part II, sub-section e. (Signature of Rated Officer), shows the applicant signed the contested OER on 8 December 2006.

   f. In Part IVa. (Performance Evaluation – Professionalism (Rater) – Army Values), the rater placed checkmarks in the "No" block of items a.1 (Honor),        a.2 (Integrity), and a.5 (Respect), indicating the rated officer was deficient in each of those rated areas.

   g. In Part IVb. (Performance Evaluation – Professionalism (Rater) – Leader Attributes/Skills/Actions), the rater placed checkmarks in the "No" block of items: 

* Item b.1.1 (Attributes – Mental)
* Item b.1.3 (Attributes – Emotional)
* Item b.2.1 (Skills – Conceptual)
* Item b.2.4 (Skills – Tactical)
* Item b.3.2 (Actions – Decision-Making)
* Item b.3.5 (Actions – Executing)
* Item b.3.8 (Actions – Building) 

   h. In Part V (Performance and Potential Evaluation (Rater), sub-section a. (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed a checkmark in the "Unsatisfactory Performance, Do Not Promote" block.

   i. In Part V, sub-section b. (Comment on Specific Aspects of the Performance…), the rater included the following narrative:

During the first part of the rating period, MAJ [Applicant] was being monitored for an identified pattern of falsifying information.  In January 2006, monitoring was terminated based on issue free, good performance.  He performed a full range of traditional vascular procedures, and assisted in endovascular procedures with acceptable outcomes.  This surgeon's depth of knowledge concerning vascular surgery was acceptable.  MAJ [Applicant] passed his vascular surgery board examination during this rating period.  His ability to perform surgery was also acceptable.  On    21 February 2006, his privileges were placed in abeyance after a poor outcome on a patient in which MAJ [Applicant] misrepresented the facts of the operative procedure during the postoperative course.  Following a full investigation, his clinical privileges were summarily suspended.  MAJ [Applicant] was detailed to the Deputy Commander for Clinical Services for administrative duties.  During the final third of the rating period, MAJ [Applicant] was placed in a non-clinical position working with the Exceptional Family Member Program (EFMP).  He performed these duties satisfactorily.  


   j. In Part V, sub-section c. (Comment on Potential for Promotion), the rater included the following comment: 

It is my opinion that this officer should not be promoted, and should be considered for administrative discharge from the Army based on inconsistent ethical conduct as a physician and as a military officer.

   k. In Part VII (Senior Rater), sub-section a. (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed a checkmark in the "Do Not Promote" block.

   l. Part VII, sub-section b. (Potential Compared with Officers Senior Rated in Same Grade) shows his senior rater considered him to be "Below Center of Mass."

   m. Part VII, sub-section c. (Comment on Performance/ Potential), contains the following comment: 

MAJ [Applicant] is professionally and academically a model officer and vascular surgeon, until he is maximally stressed.  During the first third of this rating period, MAJ [Applicant] performed well.  At the halfway point he demonstrated a lack of integrity when he was placed in a clinically stressful situation.  When placed in a non stressful situation, MAJ [Applicant] reverted back to being an exemplary officer.  I would not recommend MAJ [Applicant] for promotion or to be placed in any position with individual clinical responsibility.

4.  On 21 November 2006, he acknowledged receipt of the contested OER and submitted comments for enclosure, in which he counters the negative comments made in the contested OER and states his intent to submit a separate appeal.  
   a. In response to the narrative comments contained in Part IV, sub-sections a-c, the applicant states the following:

		(1)  Army Values.

   		(a)  Honor.  He has always attempted to adhere to the Army's publicly-declared code of values.  If he ever deviated from those values, he admitted his errors and corrected his behavior.  He accepted public speaking engagements on behalf of the Army.  He helped arrange and attended the advancement of medical informatics for the Army by representing the Army at Vanderbilt University on behalf of General Gxxxxxx and the Army leadership.

   		(b)  Integrity.  He has been told by his peers that he possesses high moral standards.  When he made two misstatements during an argument [following the surgery of 16 February 2006], he privately and publicly took responsibility for those misstatements.  He admits to imperfections and continues to transform to higher standards.

   		(c)  Respect.  He has always promoted dignity, consideration, fairness, and equal opportunity.  His co-workers have sought him out for personal counsel, or to address issues they may have had with him before going to their rater.  Despite a personal conflict with his supervisor in Vascular Surgery, he has always tried to take the moral high ground by accepting his part and extending support and respect to his personal ambitions.

(2)  Leader Attributes/Skills/Actions.

      	 Mental, Conceptual, and Emotional.  He admits he had personal issues he had to deal with; however, the Health Care Professional Programs exist to help all healthcare providers during such time.  According to his partner who was present during the operation of 16 February 2006, he was, during that procedure, calm, self-controlled, and he exercised excellent judgment.  He regrets the post-operative argument he had with an individual who was not present for the 16 February surgery, whom he believes did not have the patient's best interest in mind.  Rather, he sought to criticize at an inappropriate juncture.

		(3)  Actions.

   		 Decision Making, Executing, and Building.  He used all the resources available to him on 16 February 2006, including consulting the only other vascular surgeon in town who scrubbed into the operation.  This surgeon, as well as the outside reviewer, supports his judgment for a patient whose survival was unprecedented.  Furthermore, he "met mission standards" and "took care of people and resources" as noted by a low complication rate, conduct of education and research, and patient letters of compliments and support.  He was asked by General Gxxxxxx to help arrange and attend a command visit to Vanderbilt University for informatics development for Army-wide improvements.  He helped build relationships with researchers at the University of Washington as well as Soldiers and their families through the Office of The Surgeon General (OTSG) via the Home Box Office (HBO) documentary entitled "Baghdad ER [emergency room]" and the EFMP.

   b. In response to the narrative comments contained in Part V, sub-sections a-c, the applicant states the following:

      (1)  He was told consistently during the months of October to February 2006 that he was doing an excellent job.  From 16 February 2006 to 1 March 2006, he underwent an investigation for the 16 February 2006 operation he performed, and was told his performance was unsatisfactory until all the evidence was in and the investigation was completed.  After 1 March 2006, his work with the EFMP was deemed excellent.

      (2)  He does not claim perfection.  On 16 February 2006, he operated on a complex patient with a poor outcome – his first death at Madigan Army Medical Center.  In a subsequent discussion on 17 February 2006, he made two misstatements during an argument, while also trying to attend to the patient, who at this time was still alive in the Intensive Care Unit (ICU).  He later apologized for his misstatements.  He is disappointed that conclusions regarding the operation, his performance, and his comments were made prior to any discussion with himself or the other surgeon who was present at the operation.  The original charges of "changing a preoperative note" and the "presence of the commanding general in the operating room and scrubbed in during surgery in which she touched the aorta" were completely incorrect and dropped after verification 5 weeks later.  An outside academic reviewer was supportive of his care.  His partner, who was present during the original operation, completely supported his care as excellent and without deviation from the standard.  A complete investigation followed and as of the date of his letter [21 November 2006], the appeal results were pending publication by OTSG.

   	(3)  He was not aware of any "monitoring for an identified pattern of falsifying information… during the first part of the rating period."  His supervisors who served directly with him in the 250th Forward Surgical Team, the Army Trauma Training Center, and Iraq have consistently stood by him during this process and considered him to have exemplary ethics and surgical abilities. During the rating period, he received the Bronze Star Medal, the Army Commendation Medal, and the Army Achievement Medal, as well as other letters of thanks and commendation for his work with patients and Soldiers over the prior 14 months.
   
   	(4)  He disagrees with the note that "during the final third of this rating period, MAJ [Applicant] was placed in a non-clinical position working with the EFMP."  In fact, he worked in the EFMP for 7 out of 12 months; therefore, not "the final third."
   
   	(5)  He disagrees with the comments from the rater in which he noted that he "performed these [EFMP] duties satisfactorily."  This is an uninformed conclusion.  His EFMP immediate supervisor noted no conversation regarding his performance with anyone in Vascular Surgery or General Surgery during the rating period.  Further, he was told that his work had been "outstanding" and "exemplar" in EFMP by his immediate supervisor and the 1st Brigade leadership. 
   
   	(6)  He is disappointed in the rater's comment that he "should be considered for administrative discharge from the Army," since that is clearly not what he told him in conversations during the initial investigation.  His rater told him there "would be a process" and "investigation" into the issues.  He assured him there was a place for him in the Army as a doctor.  It is clear to him now that his rater had pushed for an administrative discharge behind the scenes while telling him something different.  On the contrary, numerous surgeons and physicians with whom he worked with in the Army, day and night in the theater of war or other similar conditions, have stood by him and supported him during this process and have supported his career development and promotion.

   c. In response to the narrative comments contained in Part VII, sub-sections a-c, the applicant states the following:

		(1)  He went from being "Best Qualified" while serving as a trauma, general, and vascular surgeon in Baghdad, Iraq to "Do Not Promote."  He asks that one rating period not destroy his entire military career.

		(2)  He went from "Above Center of Mass," "Top 2% (percent)" in Baghdad, Iraq to "Below Center of Mass, Retain."  He asks that one rating period not reflect a man's entire life and potential.

		(3)  He disagrees with the statement "MAJ [Applicant] is professionally and academically a model officer and vascular surgeon until he is maximally stressed."  He was maximally stressed at the 86th Combat Support Hospital in Baghdad, Iraq and the Ryder and Army Trauma Training Center in Miami, FL, where he served as a general/trauma surgeon and vascular surgeon.  He received "excellent" evaluations as well as the Bronze Star Medal, the Army Commendation Medal, and the Army Achievement Medal for his work.  His misstatements during an argument during the post-operative course of a dying patient could have been made by any surgeon in the same position.  He accepted responsibility and went through a peer review process and hearing, which he also deemed extremely stressful for any clinician and came out a better Soldier and physician.  He has learned from his errors and character flaws and stands firmly on an evolving life in Christ.  

5.  As stated by his rater in Part Vb., the incident of 21 February 2006 was the subject of a "full investigation"; however, the results of that investigation are not contained in the applicant's OMPF and were not provided by the applicant as part of his request to this Board.  Therefore, at this time, they are unavailable for review.

6.  It is unclear whether or not his clinical privileges were suspended following the incident of 21 February 2006, and if so, when and for what period of time.  His subsequent OERs show he performed duties as both a surgeon and as the commander of a Forward Surgical Team.  As a surgeon, he performed the full range of trauma, general and vascular surgery procedures.   

7.  His OMPF is void of documentation that shows he:

* requested a Commander's Inquiry to address the allegedly inaccurate or false statements contained within the contested OER, or the lack of objectivity or fairness on the part of the rating officials 
* petitioned the Officer Special Review Board (OSRB), through the U.S. Army Human Resources Command (HRC), for removal of the contested OER

8.  In support of his request, the applicant provides a 6-page memorandum to the Board (subject: Request Deletion of OER for MAJ [Applicant] from Permanent File).  In this memorandum, he provides that the contested OER is unfair and unjust based on the following points:

   a. The rater and senior rater violated the Healthcare Integrity & Protection Data Bank Law (HIPDB) and Social Security Act.

		(1)  The rater and senior rater violated the HIPDB and Social Security Act when they made reference in Part V, sub-section b., of the contested OER to an investigation, his privileges being placed in abeyance, and his clinical privileges being summarily suspended.  The rater and senior rater knowingly, in writing, disclosed Quality Assurance and HIPDB data, which is illegal.  Furthermore, the data can never be used in an OER or any other area, with the exception of a credentialing document, because it misrepresents the proceedings and findings.  

		(2)  The law specifically states that information about "abeyance and summary suspension" for investigations is "restricted/limited use as prescribed by Section 1128E of the Social Security Act…Information from the HIPDB is confidential and must be solely for the purpose it was disclosed" for clinical credentialing and licensing matters.

		(3)  Furthermore, the laws specify that "information contained in the report is maintained by the NPDB for restricted use under the provisions of Title IV of Public Law 99-660, as amended; and 45 CFR (Code of Federal Regulations) Part 60.  All information is confidential and may be used only for the purpose for which it was disclosed.  Disclosure or use of confidential information for other purposes is a violation of Federal Law," for clinical credentialing and licensing matters only.

		(4)  For these violations of Federal laws alone, the OER must be deleted.

   b. The rater and senior rater should not have been appointed to the respective positions in his rating chain, since neither supervised him, rarely worked with him, and failed to consider all submitted information prior to formulating their narrative evaluations.  Each failed to provide developmental counseling.

   c. The rater's comments were inaccurate, prejudicial, and erroneous, as refuted in his letter to the Board and its attachments.  He did not falsify information and his privileges were not suspended.

   d. The rater and senior rater perpetuated the misinformation against him during the initial peer review by questioning his honesty vis-à-vis the accuracy and validity of his qualifications, publications, and past experiences.

9.  Additionally, he provides:

   a. Copies of documents that support his professional experience and qualifications as a vascular/endovascular surgeon.

   b. Each of the OERs he received both before and after the contested OER.  These OERs show he consistently received "Center of Mass" and "Above Center of Mass" ratings from his senior rater.

   c. Letters of recommendation/support from MG Txxxxx, the Commanding General, Western Regional Medical Command, Joint Base Lewis-McChord, WA and numerous COLs and LTCs, who serve as commanders, superiors, peers, fellow surgeons, and co-workers of the applicant.  Each of these officers is universal in their praise of the applicant as a surgeon, officer, and person. 

10.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System – which includes the OER.  It also provides guidance regarding redress programs, including commander's inquiries and appeals.

   a. Paragraph 1-9 provides that Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance is evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in other directives.  Potential evaluations are performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

   b. Paragraph 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards, and career managers can make intelligent decisions.

   c. Paragraph 6-7 provides guidance on OER appeals.  It provides that an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to:

* be administratively correct
* have been prepared by the proper rating officials
* represent the considered opinion and objective judgment of the rating officials at the time of preparation

It further provides that the rated Soldier’s authentication in Part II of a               DA Form 67–9 verifies the information in Part I and confirms that the rating officials named in Part II are those established as the rating chain.  

   d. Paragraph 6-11 provides guidance for the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration 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, not merely proof of the possibility of administrative error or factual inaccuracy.

11.  Army Regulation 600-8-104 (AMHRR Management) governs the composition of the OMPF and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  

12.  Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

13.  Title 42, U.S. Code, sections 11101-11152, otherwise known as Title IV of Public Law 99-660 (The Health Care Quality Improvement Act of 1986), as amended, authorized the establishment of an NPDB to collect and release certain information relating to the professional competence and conduct of physicians, dentists, and other health care practitioners.  

14.  The NPDB, or "the Data Bank," is a confidential information clearinghouse created by Congress with the primary goals of improving health care quality, protecting the public, and reducing health care fraud and abuse in the U.S.

   a. The NPDB is primarily an alert or flagging system intended to facilitate a comprehensive review of the professional credentials of healthcare practitioners, healthcare entities, providers, and suppliers; the information from the Data Bank should be used in conjunction with, not in replacement of, information from other sources.  

   b. Prior to 6 May 2013, "the Data Bank" referred to two separately operated Data Banks: the NPDB and the HIPDB.  While the NPDB and the HIPDB were established for different purposes, overlap existed in some reporting and querying requirements.  To eliminate this duplication, Congress passed Section 6403 of the Affordable Care Act of 2010 (ACA), Public Law 111-148.  As a result of this legislation, NPDB operations were consolidated with those of the former HIPDB.  Information previously collected and disclosed by the HIPDB is now collected and disclosed by the NPDB. 

   c. There are three significant laws that govern NPDB operations.  NPDB regulations implementing those laws are codified at 45 CFR Part 60.

		(1)  Title IV of Public Law 99-660, the Health Care Quality Improvement Act of 1986, as amended.  The NPDB was originally established by Title IV of the Health Care Quality Improvement Act of 1986, Public Law 99-660.  The intent of Title IV was to improve the quality of health care by encouraging State Licensing Boards, professional societies, hospitals, and other health care entities to restrict the ability of incompetent physicians, dentists, and other health care practitioners to move from state to state without disclosure or discovery of previous medical malpractice payment and adverse action history.  These adverse actions include certain licensure, clinical privileges, and professional society membership actions, as well as Drug Enforcement Agency controlled substance registration actions and exclusions from participation in Medicare, Medicaid, and other Federal health care programs. 

		(2)  Section 1921 of the Social Security Act.  Congress passed Section     5 of the Medicare and Medicaid Patient and Program Protection Act of 1987, Public Law 100-93 (Section 1921 of the Social Security Act) to provide protection from unfit health care practitioners to beneficiaries participating in the Social Security Act's health care programs and to improve the anti-fraud provisions of these programs. Congress later amended Section 1921 with the Omnibus Budget Reconciliation Act of 1990, Public Law 101-508, and with Section 6403 of the Affordable Care Act of 2010.  Information currently collected and disclosed by the NPDB under Section 1921 includes state licensure and certification actions against health care practitioners, entities, providers and suppliers; negative actions or findings by peer review organizations and private accreditation organizations; as well as certain final adverse actions taken by state law enforcement agencies, State Medicaid Fraud Control Units, and state agencies administering or supervising the administration of state health care programs. These final adverse actions include exclusions from a state health care program, health care-related criminal convictions and civil judgments in state court, and other adjudicated actions or decisions specified in regulations.

		(3)  Section 1128E of the Social Security Act.  The original purpose of Section 221(a) of the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (Section 1128E of the Social Security Act) was to establish a national data collection program, formerly known as the HIPDB, to combat health care fraud and abuse.  Congress later amended Section 1128E with Section 6403 of the Affordable Care Act of 2010, which consolidated NPDB and HIPDB operations.  Section 1128E information is now collected and disclosed by the NPDB and includes certain final adverse actions taken by Federal Government agencies and health plans against health care practitioners, providers, and suppliers.  This information consists of Federal licensing and certification actions, exclusions from participation in a Federal health care program, health care-related criminal convictions and civil judgments, and other adjudicated actions or decisions specified in regulations. 

   d. Information reported to the Data Bank is considered confidential and shall not be disclosed except as specified in Data Bank regulations.  The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) has the authority to impose civil monetary penalties on those who violate the confidentiality provisions of NPDB information.  Persons or organizations that receive information either directly or indirectly are subject to the confidentiality provisions specified in NPDB regulations and the imposition of civil monetary penalties if they violate those provisions.  When an authorized agent is designated to handle NPDB queries, both the initiating entity and the agent are required to maintain confidentiality. 

   e. Pursuant to the requirements of the Privacy Act of 1974 (5 U.S.C. 552a), the U.S. Department of Health and Human Services has published a Privacy Act Systems of Record Notice that describes the NPDB system of records.  As is indicated by 45 CFR Section 5b.11, the NPDB system of records has been exempted from certain Privacy Act access and amendment requirements and access and correction rights are governed by the NPDB regulations.  The confidentiality provisions prohibit the release of the report submitted to the Data Bank.  These provisions, though, do not apply to the original documents or records from which the reported information is obtained.  (emphasis added).  The NPDB's confidentiality provisions do not impose any new confidentiality requirements or restrictions on those documents or records.  Thus, the confidentiality provisions do not bar or restrict the release of the underlying documents, or the information itself, by the entity taking the adverse action or making the payment in settlement of a written medical malpractice complaint or claim.  So, for instance, if a state FOIA law requires the release of records, while it may require the release of the records underlying the report, it would not permit the release of the NPDB report itself.  The enabling statutes for the Data Bank do not allow disclosure to the general public.  The general public may not request information from the Data Bank that identifies a particular health care practitioner, provider, or supplier from the NPDB.

15.  45 CFR 60 (NPDB for Adverse Information on Physicians and Other Health Care Practitioners) provides the legal provisions for the submission, confidentiality, and disclosure of reportable incidents and information to the NPDB.  Part 60.15 (Confidentiality of National Practitioner Data Bank Information) provides limitations on disclosure.  It provides that information reported to the NPDB is considered confidential and shall not be disclosed outside the Department of Health and Human Services.  Persons who, and entities which, receive information from the NPDB either directly or from another party, must use it solely with respect to the purpose for which it was provided.  

16.  Army Regulation 40-68 (Clinical Quality Management) prescribes policies, procedures, and responsibilities for the administration of the Clinical Quality Management Program. Chapter 14 governs the reporting and release of adverse privileging/practice or malpractice information.  Paragraph 14-3 provides that OTSG is the sole reporting authority to the NPDB (emphasis added).  OTSG 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 no contest, or requests discharge from the military in lieu of courts-martial.  Privileged providers and/or professionals will be reported to the NPDB (or to a State regulatory agency) within 30 calendar days of approval when clinical privileges have been denied due to lack of qualifications, or a restriction, reduction, suspension or revocation for substandard performance, impairment with refusal to seek treatment, or unprofessional conduct has occurred.  Any adverse privileging action longer than 30 days in duration will be reported; however, a report to the NPDB will not occur until the individual’s appeal, if requested, is completed (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record and the applicant's submitted evidence sufficiently portray him as a highly-qualified and gifted physician, surgeon, and commander. He has continued, even after the incidents alluded to in the contested OER, to grow as an officer and thoroughly care for our Soldiers and Family members.

2.  His request for removal of the contested OER from his OMPF has been carefully considered.

3.  He contends the contested OER should be removed from his OMPF because:

* it resulted from a lack of objectivity and fairness on the part of his rater and senior rater
* the rater's comments before, during, and after the period of the contested OER support the aforementioned assertions of injustice, lack of objectivity, and lack of fairness
* the rater and senior rater only observed his performance during 3 of the 12 rated months
* the rater and senior rater comments violate QA/NPDB disclosure laws

4.  The applicant purports a lack of objectivity and fairness on the part of his rater and senior rater, based on his analysis of the circumstances leading to the statements contained in the contested OER.  He has attempted to refute what he believes to be the underlying events that formed the basis for the negative comments; however, the rater and senior rater did not specifically address the circumstances that warranted their negative narrative comments.  Therefore, the Board cannot be certain the correlation drawn by the applicant, between the circumstances he related and the resulting narrative summaries, is a correct one. 

5.  His contention regarding the amount of time the rater and senior rater observed his duty performance and therefore should not have been his rating officials is noted and rejected.  As stated in Army Regulation 623-3, the rated Soldier’s authentication in Part II of a DA Form 67–9 verifies the information in Part I and confirms that the rating officials named in Part II are those established as the rating chain.  

6.  His contention that the rater and senior rater comments violate QA/NPDB disclosure laws is noted and rejected.  The laws he cited pertain to the confidentiality of, and disclosure of, practitioner data after it is received from the NPDB.  

7.  The applicant has failed to provide convincing evidence that shows the contested OER fails to accurately reflect the honest and valued judgments of his rating officials at the time the report was rendered, or that it fails to accurately portray his performance during the rating period.  

8.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.  In this case, there is no evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's OMPF.

9.  With respect to his request for promotion to the rank/grade of LTC/O-5, the promotion process starts with a selection by a board, approval by the Secretary of the Army (SA), and a scrolling action by the Secretary of Defense.  The applicant was never selected by a promotion board.  This Board is not a promotion board.  Since he was not selected by a board, his name was never added to a promotion list for approval by the SA or scrolling action by the Secretary of Defense.   

10.  In view of the foregoing, there is an insufficient basis to grant the requested relief.   

11.  As an exception to the conclusions stated above, the rater's comment,      vis-à-vis the applicant's privileges being placed in abeyance and summarily suspended, was premature since according to Army Regulation 40-68, these actions do not occur until The Surgeon General approves the actions at the conclusion of the appeal process.  This had not occurred by the end date of the contested OER; therefore, those comments were inappropriate and should be removed from the contested OER.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from Part V, sub-section b., the following comment:

On 21 February 2006, his privileges were placed in abeyance after a poor outcome on a patient in which [Applicant] misrepresented the facts of the operative procedure during the postoperative course.  Following a full investigation, his clinical privileges were summarily suspended.  

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the contested OER from his OMPF or promoting him to the rank/grade of LTC/O-5.



      ____________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)                                         AR20090007349



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ABCMR Record of Proceedings (cont)                                         AR20130019849



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