RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-01668
		INDEX NUMBER:  108.00; 134.02

		COUNSEL:  

		HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

All references to limitations imposed on her medical practice, including but not limited to any reference to any requirement for monitoring, evaluation or supervision by others be removed in its entirety from her records.

She be deemed to have remained on active duty for an additional year from the date of her discharge and paid all applicable backpay and allowances.

She be provided a proper, impartial medical evaluation board (MEB) followed by a physical evaluation board (PEB) to determine whether she was fit for duty at the time of her discharge or, in the alternative, entitled to disability retirement or severance pay.

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APPLICANT CONTENDS THAT:

Counsel for the applicant submits an 18 page “Brief” with attachments that details the applicant’s case.  Between 25 and 28 Apr 00, the applicant was the subject of a credentials hearing.  The Air Force’s conduct leading up to, in, and following that hearing is outrageous and unfair, and all references to the hearing should be expunged from the applicant’s military records.

The following seven allegations were addressed by the hearing committee:

	  1.  Deficient data gathering.

	  2.  Deficient clinical formulation.

	  3.  Deficient treatment plan formulation/execution.

	  4.  Ineffective collaboration with colleagues.

	  5.  Lack of focus in her role as a child psychiatrist.

	  6.  Difficulties in maintaining appropriate boundaries with patient’s parents.

	  7.  Deficiencies in responding constructively to supervision.

The hearing committee found that allegations 5 and 6 were unsubstantiated but sustained the remainder.  It concluded that the applicant “is incapable of practicing independent as a child and adolescent psychiatrist at this time” and recommended that her clinical privileges remain restricted but not revoked and that before she is considered for reinstatement, she “successfully complete a repeat of a two-year program in child and adolescent psychiatry.  If the applicant is unable to complete the above requirements then this should be grounds for consideration for full revocation of privileges.”

On 26 Jun 00, the commander approved the recommendations of the committee, but changed the bottom line.  He directed that the applicant be granted restricted clinical privileges and that to practice, the applicant had to undergo 100% direct clinical supervision from a board certified child and adolescent psychiatrist.  This meant that the applicant’s supervisor must be physically present for part or all of every clinical visit to precept her, review the case, and co-sign chart entries before the patient/family leave the clinic.  Her privileges would remain restricted until she demonstrated the ability to practice independently in a clinically competent fashion and within the standard of care for a period of at least one-year.  Monthly updates would be presented in writing to the Credential Review Function by her direct supervisor outlining her progress towards obtaining these goals.

Shortly afterwards, the applicant was released from active duty, although she had requested an extension.  She was never afforded an opportunity to receive the supervision that had been ordered by the commander.

On 8 Sep 00, the applicant submitted a Provider Appeal from the commander’s final decision to the Air Force Medical Operations Agency (AFMOA) (attached).  In the appeal, the applicant raised procedural objection to the hearing.  During the period that the applicant waited for a decision, she was compelled to disclose the adverse action both to her state licensing agency and potential employers.  Air Force medical authorities at her previous base of assignment duly communicated ex parte detailed information about the matter to those authorities, noting pending appeal to the Surgeon General.  As a result, the applicant lost valuable employment opportunities and was required to participate in a 7 Feb 01 hearing before the Investigation Committee of the Oregon State Board of Medical Examiners.  That Board soon after approved her application for an unrestricted license.

By letter dated 9 Apr 01, the AFMOA commander advised the applicant that after consideration of recommendations of the Medical Practice Review Board, the restriction imposed by the applicant’s Medical Group commander had been overturned and that her privileges were being reinstated, with a required period of monitoring and evaluation (not otherwise explained either as to duration or other specifics).  Upon receipt of the letter, applicant and counsel sent an e-mail requesting clarification of the “required period of monitoring and evaluation” and what it would consist of.  After much back and forth communication, the applicant and counsel were provided with a copy of AFMOA’s 28 Mar 01 letter to Ramstein reporting the outcome of the Review Board’s deliberations, as well as a summary of the board’s rationale.  The summary was redacted by the Air Force, so they have no inkling of what the Review Board’s rationale was for rejecting the applicant’s procedural objections to the proceedings in Germany.  Other than the fact that the Clinical Reviewer felt that the one-year restriction was appropriate and thought that she should have been able to set her own limits, the applicant does not know and cannot learn what advice the Surgeon General received concerning her case, either from the anonymous Clinical Reviewer or Legal Advisor.  They do know that the applicant prevailed on important aspects of her appeal and on others she did not.  Specifically, the unperformable monitoring and evaluation requirement remains a part of her record, and she prejudicially remains under an obligation to disclose the original 1999 suspension.

The Review Board’s decision is defective for several fundamental reasons:

	  1.  Important procedural objections lodged by the applicant with respect to the hearing committee process and the seeming application of a regulation that was not in effect have apparently disregarded or, if they have been ruled upon and rejected subsilentio, The Review Board’s reasoning has not been disclosed.  It is irrational for the Review Board to have concluded that a period of monitoring and evaluation was appropriate without addressing such issues as whether the sequence of events were affected by severe and rampant documented personality conflicts, which the command failed to manage proactively.

	  2.  The Review Board’s decision to require a period of monitoring and evaluation rests on an evidentiary basis that the Board itself found inadequate.  The Review Board was not at liberty simply to ignore, or fail to explain its rulings on the applicant’s procedural objections and equitable arguments.  Because it failed to explain how, if at all, it dealt with those objections and arguments, the Review Board’s decision to require a period of monitoring and evaluation is arbitrary and capricious and an abuse of discretion and must be set aside.  The applicant is also entitled to relief because the very reasons relied on by the Review Board in support of its reversal of the action it was reviewing apply equally to the Board’s own decision.  Specifically, it determined that the hearing committee’s action could not be sustained because the committee did not itself review actual patient records, and the few records that were reviewed were not randomly selected.  The same flaw infects the Review Board’s proceedings.  It did not review patient records and the only sample described in the record was the same one it found defective when relied upon by the hearing committee.  The Review Board’s discussion contains three observations that cumulatively raise a grave issue of fairness.  Specifically, the board noted that (1) implementation of the original monitoring and evaluation may have obviated the need for a privilege action, (2) the lack of documentation to support that an opportunity for remediation through monitoring and evaluation by a peer was given full consideration, and (3) there was insufficient time to provide such supervision because the applicant was separating from the Air Force.

On 14 Jun 00, before her separation, the applicant requested that she be permitted to remain on active duty.  She reiterated this a week later, and was told that such a request would not be recommended for approval.  Given the Air Force’s desire to retain physicians, it is clear that had the adverse credentialing recommendation not been made, she would have been retained on active duty.  This is reinforced by the fact that AFMOA approved a period of monitoring and evaluation that of course cannot be effected because she was not on active duty.

Counsel’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant served on active duty for a period of eight years, five in training programs and three as a practicing child psychiatrist.  In April 2000, she was the subject of a credentialing hearing in which five of seven allegations against her were substantiated.  The hearing panel concluded the applicant was incapable of independent practice as a child and adolescent psychiatrist, but recommended restricted privileges be granted.  The panel also suggested applicant complete a two-year program in child and adolescent psychiatry and if unable, that the credentials be revoked.

Applicant submitted a statement of exceptions to the hearing decision on 16 June 2000.  The final decision on 26 Jun 00 was to reinstate privileges restricted to 100% direct clinical supervision, by a board certified child and adolescent psychiatrist until applicant demonstrated the ability to practice independently.  This would be followed by at least an additional one-year restriction.  Upon demonstration of competence, it was implied that applicant’s credentials could be restored.  The applicant separated from the Air Force on   30 June 2000 after the expiration of her Active Duty Service Commitment.

On 8 September 2000, applicant appealed the restrictions placed on her clinical privileges for professional incompetence to the Air Force Medical Practice Review Board (AFMPRB), alleging numerous errors with the conduct of the hearing and its conclusions.  The AFMPRB agreed in part and on 28 March 2001, overturned the restriction as an adverse privileging action and reinstated applicant’s privileges, but required a period of monitoring and evaluation.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends that the applicant’s request for MEB/PEB consideration be denied, but her request for expungement of all references to the credentialing action be further reviewed by proper legal authority, and that a decision regarding this issue be determined based on their decision and advisory.

The applicant’s recognized medical and psychological disorders were not unfitting for performance of her military duties once she was already commissioned.  Appropriate evaluations and treatments were initiated for the established diagnoses.  The Ehler-Danlos Syndrome (EDS) (a congenital abnormality of her connective tissue) is not cause for a finding of unfitness and clearly was a part of the applicant’s genetic makeup she brought with her to the military.  As she had no unfitting conditions upon which to base disability processing, she was appropriately not evaluated in that system and approval of her present request for such disability consideration is not warranted or recommended.

The complete evaluation is at Exhibit C.

AFPC/DPPD recommends denial of the applicant’s request for an MEB/PEB.

Individual’s military records reflect the applicant was identified for a medical examination on 9 May 00 due to her pending voluntary separation.  Although some previous mention was made in her medical records that she was going to undergo an MEB, a review of the medical data from her 14 Jun 00 appointment does not point to any severe or grave medical conditions, which would have required that she be presented before an MEB.  Comments in her medical records (one day prior to her discharge) by her provider states:  “It is agreed that her current diagnoses do not warrant a medical board and that she would be able to continue her duties in her current medical condition, although with limited profile.  Although her condition could progress to requiring an MEB, there is no current indication and no way to predict a future need.  Therefore, I will not initiate a medical board.”  

The fact that a person may have had a medical condition while on active duty does not automatically mean that the condition is unfitting for continued military service.  Although some of the applicant’s medical conditions may have been onset prior to her discharge, they were not severe enough to prematurely curtail her military career.  In cases where medical principles and the preponderance of evidence appear to indicate certain medical conditions existed while in service, the Department of Veteran Affairs (DVA) can rule in favor of the veteran and classify their condition as service-connected, thereby qualifying the member for DVA compensation and treatment under Title 38, United States Code.

The complete evaluation is at Exhibit D.

AFMOA/SGZC recommends denial of the applicant’s request to expunge the record of her suspension.  Suspension of the applicant’s privileges was authorized by AFI 44-119 and was done so appropriately at the discretion of the commander who had a valid reason for invoking the suspension.

Questions about the applicant’s clinical abilities arose shortly after her arrival at the Pediatric Behavioral Management Clinic in the summer of 97.  These were formalized during a peer review in April 1998, but not found severe enough to warrant a privileging action at that time.  A formal supervisory plan was, however, put into effect to monitor her clinical practice.  She was moved to another clinic to allow peer support and consultation.  On 11 Oct 99, while she was on call she did not respond to an ER request to come in.  This prompted a second complete review of her clinical practice.  As a result, her privileges were placed in abeyance, and eventually suspended while an investigation ensued.

A credentialing hearing was eventually convened, as requested by the applicant, and recommended restriction of all privileges and required 100% supervision of all patient encounters and chart review.  Privileges were to be restricted for a period of one year, at which time a second review would be performed to see if the privileges could be restored to full independent practice.  The applicant appealed this decision to AFMOA/CC.  After reviewing the deliberations and recommendations of the Air Force Medical Practice Review Board, AFMOA/CC overturned the MTF Commander’s restriction of the applicant’s privileges.  He recommended full reinstatement of privileges, but required a period of monitoring and evaluation.  The MTF Commander and the applicant were notified of this decision.  No reports were made to the National Practitioner Data Bank.

The following addresses the specific allegations that form the basis for the applicant’s appeal:

	  1.  The Air Force’s conduct leading up to, in and following that hearing is outrageous and unfair.  Specifically, the applicant alleges that some committee members had conflicts of interests, and that the commander based his decision on a version of an AFI that had not yet taken effect.

The MTF Commander determined, with the advice of the base legal office, that it was not necessary to recuse certain members of the credentialing committee that the applicant believed had conflicts of interest.  In regards to the commander basing his decision on a version of an AFI that had not taken effect, his letter announcing his final decision clearly refers to AFI 44-119, Chapter 4, which was the version in effect at that time.  However, even if an error in terminology were made, it would not have had an impact on the final outcome.

	  2.  There was a prejudicial delay by the MPRB.

The MTF Commander’s final decision was rendered on 26 Jun 00, and the AFMOA/CC decision was signed on 28 Mar 01.  The adverse action process allows a provider 10 days to submit an appeal of an adverse privileging action.  This office honored a request on 14 Jul 00 for a one-month extension.  An additional extension request was granted on 10 Aug 00 and her appeal, dated 8 Sep 00 was received in the latter part of Sep 00.  There was no attempt to unduly delay this action.

	  3.  The applicant struggled to obtain a copy of the Military Practice Review Board minutes.

These minutes are protected from disclosure IAW 10 USC 1102 and historically have not been released to a provider undergoing a privileging action.  However, the applicant’s attorney obtained a copy after extensive discussions with the SG legal advisor.  The identity of the MPRB membership is protected form disclosure per 10 USC 1102.

	  4.  The applicant’s privileges were improperly suspended.

AFI 44-119, Chapter 4, Paragraph 4.7 states that an individual’s privileges become suspended if the clinical concerns are not resolved prior to the end of the abeyance period.  This action was appropriately taken after reasonable deliberation.  It remains a part of her record because it was indeed a factual event leading to the ultimate disposition of her case.

	  5.  The Review Board’s decision is arbitrary and capricious and unsupported by substantial evidence.

The MPRB is comprised of a group of medical and legal professionals who review each case thoroughly for appropriate due process and clinical deficiencies, and make recommendations to the Air Force Surgeon General.  There was evidence that the applicant had some deficiencies in her clinical practice, but they did not rise to the level warranting a restriction of her privileges and making a report to the National Practitioner Data Bank.  Given the concerns noted, however, the MPRB could not, in good faith, recommend she be returned to duty completely unrestricted.

	  6.  The Review Board’s own rationale refutes the board’s decision.

The final recommendation was to return to the original monitoring and evaluation plan that was never carried out.  This information would be provided to any facility or agency requesting information about her privileging status.

The complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the Air Force evaluations through a 12 page Brief of Counsel.  Counsel addresses the applicant’s request for a MEB and the credentialing issue.

Counsel states that AFPC/DPPD’s assertion that the applicant did not submit any material or documentation to show that she was unfit due to a physical disability at the time of her “voluntary discharge” is plainly wrong and suggests that the author did not read the documentation they submitted.  Their advisory opinion fails to take into account in any way the fact that the applicant was improperly denied a professionally conducted discharge physical.  The physical she received was a sham.  The physician to whom she was required to report never examined her that day.  The physician’s commander had already determined the outcome of this physical.  The day before, the applicant’s commander had announced to her that she did not “qualify” for an MEB.

Counsel refers the Board to the applicant’s 8 Sep 00 Provider Appeal Brief (p.10, and enclosures 19-20) included with her BCMR application for details of how the “putative” physical was conducted.  Counsel disagrees with the assertion that the applicant can always go to the VA (which she has done).  If the applicant had unfitting conditions, as the record indicates, she had a right to an MEB.  She also had a further right, if called by an MEB and normal review, to a statutory full and fair hearing before a physical evaluation board.  The VA cannot grant military retirement.  VA benefits are not identical with military retirement benefits.

Counsel questions the allegation that the applicant’s military records clearly reflect that she was able to perform her military duties up until her discharge.  He asserts that the applicant was assigned menial tasks from the time her privileges were suspended in Oct 99 until her discharge on    30 Jun 00.

AFPC/DPPD’s evaluation relied on the 26 Sep 01 evaluation prepared by the BCMR Medical Consultant concerning the medical aspects of the case.  Counsel indicates that while they agree with the BCMR Medical Consultant’s view regarding the expungement of the records of the credentialing action, they believe the evaluation is otherwise flawed due to his conclusory comments regarding her Ehler-Danlos Syndrome and his failure to address with particularity a variety of the symptoms and conditions that the applicant identified.  Counsel discusses the applicant’s medical conditions and why she was entitled to an MEB.

In regards to the evaluation prepared by AFMOA, Counsel asserts that they have failed to provide substantive responses to the errors he and the applicant have pointed out.  Counsel also indicates that AFMOA’s summary of the factual background of the case is incorrect and he provides what he asserts is the correct summary of events.

The complete submission by Counsel is at Exhibit G.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, HQ USAF/JAG evaluated this application.  They concur with the opinion of the BCMR medical Consultant to grant the applicant’s request for expungement of her records pertaining to the credentialing action.  However, they recommend that applicant’s request that her records be corrected to show she remained on active duty until 30 June 2001 be denied.  They also recommend that applicant’s request for MEB/PEB be denied.

The complete evaluation is at Exhibit H.

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APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant responded through counsel to the Additional Air Force evaluation.  They agree with the recommendation on the credentialing action.

Regarding whether the applicant should be deemed to have remained on active duty, they disagree with their recommendation to deny this request.  The evaluation incorrectly suggests that the applicant requested separation.  Instead, it was a function of the expiration of her HPSP Active Duty Service Commitment, rather than a request on her part.  Counsel states that applicant indicated a desire to remain on active duty, but given the reaction of her command understood that it would have been futile to submit a formal request.  In light of the monitoring and evaluation condition placed on the applicant, it was fundamentally unfair not to allow her a chance to satisfy it within the Air Force.

As for whether the command’s efforts to exclude the applicant from the MEB/PEB process was fair or proper, the evaluation adds nothing, but simply expresses agreement with views previously submitted by AFPC/DPPD and the BCMR Medical Consultant.

Counsel’s complete response is at Exhibit J.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the applicant’s request that her record be cleared of all reference to the suspension and credentialing action against her, including the Review Board’s decision and the Review Board approved requirement for monitoring and evaluation.  We accept the determination and recommendation of the BCMR Medical Consultant, supported by HQ USAF/JAG, that in view of the follow-up action taken by the Air Force Medical Operations Agency, there was, in essence, no valid credentialing action in the first place, and removal of all references to such action would be appropriate.  Therefore, in the interest of equity and justice, we recommend that the applicant’s record be corrected as indicated below.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the applicant’s request for a Medical Evaluation Board and her request that her record reflect that she was retained on active duty for a year beyond her present separation date.  We accept the findings of the BCMR Medical Consultant that the applicant did not have an unfitting medical condition warranting processing under the Air Force disability system.  While taking note of the relief we have recommended above, we do not find any grounds to support extending the applicant’s separation date.  We do not agree with the apparent argument by counsel that the requirement for a one-year period of monitoring was reason for the applicant to have been retained on active duty.  This requirement and the applicant’s impending separation appear to be a coincidence of timing.  There is no evidence that the amount of time the applicant had left in service was a determinant in the monitoring requirement.  At any rate, we note, as pointed out by HQ USAF/JAG, that the applicant did not submit a formal withdrawal of her separation request.  Therefore, we find no compelling basis to recommend granting this portion of the relief sought in this application.

5.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that all references to the suspension and credentialing action against her, including, but not limited to, the decision of the Air Force Medical Practice Review Board, the requirement to undergo a period of monitoring and evaluation, and all other adverse information related to this action be removed from her records and sequestered.

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The following members of the Board considered Docket Number 01-01668 in Executive Session on 19 June 2002, under the provisions of AFI 36-2603:

Panel Chair
Member
Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 10 May, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, BCMR Medical Consultant,
                 Dated 26 Sep 01.
     Exhibit D.  Memorandum, AFPC/DPPD, dated 31 Oct 01.
     Exhibit E.  Memorandum, AFMOA/SGZC, dated 12 Feb 02.
     Exhibit F.  Letter, SAF/MIBR, dated 8 Mar 02.
     Exhibit G.  Letter, Applicant’s Counsel, dated 8 Apr 02,
                 W/atch.
     Exhibit H.  Memorandum, HQ USAF/JAG, dated 13 May 02.
     Exhibit I.  Letter, AFBCMR, dated 16 May 02.
     Exhibit J.  Letter, Applicant’s Counsel, dated 3 Jun 02.

                                   

AFBCMR 01-01668

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to, be corrected to show that all references to the suspension and credentialing action against her, including, but not limited to, the decision of the Air Force Medical Practice Review Board, the requirement to undergo a period of monitoring and evaluation, and all other adverse information related to this action be, and hereby is, removed from her records and sequestered.