MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           31 January 2002
	DOCKET NUMBER:   AR2001060771

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Ms. Regan K. Smith		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                              records
	Exhibit B -  Military Personnel Records (including
	                   advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his prior requests to correct his records to show he satisfactorily completed the Military Physician’s Assistant Program (MPAP) and that he be appointed/commissioned as a physician assistant (PA) in the appropriate grade based on his original graduation date of 
4 March 1994, with entitlement to all back pay and allowances due as a result. 

APPLICANT STATES:  In effect, that the evidence provided with his current application to the Board will show that the MPAP phase II course director authored a false statement and misled others concerning the real facts regarding his academic standing in the MPAP program.  As a result of this false statement, a recommendation was forwarded to the Academy of Health Sciences (AHS) for an academic extension.  This fraudulent academic extension was allowed even though his academic record shows that he had no failing grades and a very strong academic record.  He claims that non-academic issues raised in his dismissal from the MPAP program were opinionated and subjective, and a direct result of the personality conflicts he had with the MPAP phase II course director and the course coordinator.  He also states that the reason these personality conflicts existed are unknown, however, his ethnicity may have played a role, as he was the only minority member in his phase II class at Womack Army Medical Center (WAMC), Fort Bragg, North Carolina.  He also indicates that his evidence makes clear that an injustice occurred.  

The applicant also indicates that particular attention should be given to his 
17 page rebuttal to the legal opinion provided to the Army Board for Correction of Military Records (ABCMR) by an Army Review Board Agency (ARBA) legal advisor, dated 20 October 1999.  He claims this rebuttal is an extensive detailed explanation of the academic and non-academic issues.  In support of his application, he provides the following evidence not previously considered by the Board:  a rebuttal to the 20 October 1999 ARBA legal opinion; rebuttal comments to both of the previous decisional documents issued by this Board; and three third party statements addressing his MPAP phase II academic record, the personality conflict that existed between he and the two MPAP course officials, and comments of a member of the Board of Inquiry (BOI) conducted in his case in regard to its findings.  The applicant also provides several other documents pertaining to his academic extension action, academic record, degree status, release from the course, and other documents pertaining to the policies and procedures of the MPAP training program that were previously considered by the Board in whole or in part.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the enclosed memoranda prepared to reflect the Board's original consideration of his case on 15 December 1999 (AR1999029189) and its reconsideration of the case on 25 July 2000 (AR2000038120). 

The applicant’s military records show that he entered active duty on 18 July 1984 and that he was trained as a medical specialist.  He has continuously served on active duty and is currently assigned to Fort Irwin, California, where he serves in the rank and pay grade of sergeant first class/E-7 (SFC/E-7). 

On 21 January 1994, the MPAP phase II course director at WAMC submitted a recommendation that the applicant be extended and placed on academic probation for 60 days.  

On 2 March 1994, a BOI convened at WAMC to determine if the applicant should be retained in phase II of the MPAP course.  After considering the case, the BOI recommended that the applicant be retained in the MPAP with the 2 month extension intact and that the MPAP phase II adapt a more structured preceptor involvement in keeping with Army Medical Department Center and School (AMEDDC&S) Pamphlet 351-7 (Military Physician Assistant Course Phase
II Educational Guide).  The BOI findings also contained comments that confirmed that as of December 1993, steps had been taken by the WAMC commander toward this end by affording the PA preceptor 1 ½ days per week away from clinical duties to devote time solely to the candidates and the program. 

On 15 March 1994, the Chief, Medicine and Surgery, WAMC, recommended that the applicant be dismissed from the MPAP course for his lack of demonstration of personal conduct, behavior, and professional qualities required for an Army health care professional.   

On 24 March 1994, the applicant failed one of his two oral boards.  On 25 March 1994, the applicant was notified that he was being considered for relief from the course for academic reasons.   

On 31 March 1994, the applicant’s company commander offered the applicant non-judicial punishment for seven offenses that consisted of three specifications of his failure to go to his appointed place of duty; three specifications of dereliction of duty; and one specification of failure to obey the lawful order of a field grade officer.  The applicant demanded trial by court-martial; however, the command never tried him for these offenses. 

Also on 31 March 1994, the applicant’s clinical privileges were suspended based on a determination by hospital medical personnel that he was unable to provide safe and effective patient care.  On 7 April 1994, the Dean, AHS, relieved the applicant for non-academic reasons.  

On 14 April 1994, the applicant appealed his relief and offered his rationale for missing conferences, emergency room duty, and the class presentation.  He also indicated that he believed his oral academic boards were biased and he did not have enough time to prepare.  In addition, he commented that his academic extension was improper, he had not been counseled adequately, and he asked that he be given another opportunity to complete the course. 

On 15 April 1994, the Dean, AHS, deferred his final decision on the applicant’s appeal of his relief for non-academic reasons and on 18 April 1994, he directed the applicant’s recycling in the MPAP pending the outcome of the non-academic relief procedures and appeals.  The applicant’s problems were reviewed with him by the MPAP phase II course director and course coordinator and he was encouraged to perform notwithstanding his concern over being a recycled student.  His clinical privileges were restored, he was urged to adopt a positive attitude, and he was furnished guidance regarding attendance at personal and professional appointments at the expense of training time.

On 3 June 1994, the applicant was relieved from the MPAP course for cause for non-academic reasons.  He received an Academic Evaluation Report (AER) that indicated that he failed to achieve course standards.  The supporting documents indicate that his written and oral communication skills were inconsistent, that a demonstration of acceptable leadership was avoided by the applicant, and that the professional expectations were not met.  The applicant, in comparison with his peers, fulfilled his assigned duties and obligations in a haphazard, negligent manner, and in other ways was consistent with a demonstrated lack of continuous determination and motivation.  It indicated the applicant had failed on two occasions to pass the end of course examination and was relieved for cause for non-academic reasons.  

On 13 May 1995, the applicant was awarded a BS degree as a PA from the University of Oklahoma and on 25 October 1995, he requested reinstatement to the MPAP.  He alleged that his academic extension in the program was improper because the course director’s request for the action contained false justification by indicating he had failed elements of his rotations.  

On 1 November 1995, the Director, Residency Training and Chief, Department of Family Medicine, WAMC, completed a review of the applicant’s MPAP records and found the applicant’s training record indicated inconsistent academic performance.  He concluded that the applicant was properly relieved from the course and he stated that in his experience in supervising hundreds of medical learners, including PAs, that the applicant’s record displayed an inconsistency in effort, participation, and an attitude most inconsistent with successful completion of PA training.  He finally recommended to the Deputy Commander for Clinical Studies (DCCS), that the applicant’s request for reinstatement be denied.  

On 7 February 1996, although supported by the hospital commander (a brigadier general), the applicant’s reinstatement request was denied by the commandant, AHS.  The commandant indicated that the course director may have erred in commenting that the applicant had failed course rotations in the course extension action; however, this error was harmless.  He further stated that all the applicant’s supervisors were convinced that he demonstrated areas of weaknesses in clinical performance and as a result, it was concluded that the extension of the applicant was warranted and proper.  The commandant also observed that the applicant was terminated for non-academic reasons, not for failing his courses, and that there was significant evidence that he had been absent without authority, failed to repair, and disobeyed orders.  He further stated that he believed the applicant’s misconduct cast great doubt upon his character and fitness for being an officer; and as a result, his nonacademic relief was directed.  Finally, he commented that the applicant could have been justly dismissed for academic reasons based on his failure of the oral boards subsequent to his extension in the course. 

On 7 July 1999, the applicant applied to this Board requesting that he be deemed a graduate of the MPAP, that he be issued the appropriate certificate with seal affixed, that he be commissioned as a PA in the appropriate grade retroactive to the date he was originally scheduled to graduate (4 March 1994), with entitlement to any promotions and pay allowances that he would have received from that date.  

On 20 October 1999, the enclosed legal opinion was provided to the ABCMR by an ARBA legal advisor.  In this opinion, the legal advisor presented the applicant’s contentions and an extensive discussion of the facts of the case.  After having reviewed these contentions and facts, the legal advisor recommended that the ABCMR refrain from second guessing the medical community responsible for educating medical professionals by either commissioning the applicant as an officer and PA or requiring the expenditure of critical medical training resources on the applicant for a second time.  The legal advisor based his recommendation on the lack of injustice in the case and on the applicant’s extensive indiscipline.

The applicant was provided a copy of the ARBA legal opinion and all associated documents at the time in order to be provided an opportunity to respond during the original consideration of the case.  He responded, in effect, that the ARBA legal opinion was a group of snapshots taken out of context, that it disregarded the improper set of academic guidelines, distorted his academic competence, ignored the fact that his course director distorted the facts and coerced other physicians to support his (the course director’s) case to the extent of stacking the oral board examinations. 

The applicant further indicated that the legal opinion ignored the fact that the BOI sided with him yet failed to do so in writing.  It also ignored the general officer recommendation for reinstatement and the fact that he received his PA degree from the University of Oklahoma, which is awarded upon the successful completion of the MPAP course.  In addition, it ignored the fact that he was unjustly denied the opportunity to take the National Certification Examination.  Finally, he commented that the legal opinion ignores his impeccable record of service and while his case is both simple and complex, the misrepresentation of the course director cannot be overlooked.  

On 15 December 1999, a three member panel of this Board, after considering all the facts of this case, to include the applicant’s rebuttal to the ARBA legal opinion, determined that the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice and voted unanimously to deny his application.  

On 12 January 2000, the applicant requested reconsideration of his case by this Board.  In support of his reconsideration request, he submitted copies of his diploma and transcript from the University of Oklahoma; a memorandum from the MPAP phase II course director; and a memorandum of support from the senior PA, Fort Bragg, North Carolina, who had previously supported his case.  

On 25 July 2000, a second three member panel of this Board considered the applicant’s reconsideration request and determined that the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.  The Board commented in its findings that expressions of dissatisfaction and disagreement with the previous Board decisions did not warrant consideration by the Board.  

This Board panel further found that the MPAP phase II course director’s recommendation relates to the applicant’s performance at phase II of the course training at WAMC, Fort Bragg, and that the grades he provided by the University of Oklahoma were irrelevant to the content, purpose, and intent of that memorandum and to the case before the Board.  This Board panel noted the comments and opinion provided by a senior PA in support of the applicant; however, it concluded that his opinions and arguments were insufficient to demonstrate an error or injustice in the applicant’s case.  Finally, the Board concluded that the overall merits of the applicant’s case, including the submissions provided for reconsideration, were insufficient as a basis for it to reverse the original Board decision in the applicant’s case and it voted unanimously to deny the application.    

In support of this latest request for reconsideration, the applicant provides the enclosed extensive rebuttal to the ARBA legal opinion.  In it, he provides item by item rebuttal comments stating his version of the events in regard to items discussed in the original legal opinion.  He further states his version of events and reinforces his opinion of how the facts of the case should be applied from his perspective.  He also restates his argument that he completed all academic requirements necessary to receive his degree and to be commissioned a PA and that he was fraudulently extended in the course which should render any subsequent actions null and void.  He also restates his claim that this extension was an improper action and the major cause for it was personality conflicts that existed between him and the MPAP phase II course director and course coordinator.  

He also provides a third party letter of support from a third party who had served as the MPAP phase II course coordinator at WAMC before the course coordinator involved in the case.  This letter supports the applicant’s contention that the antagonistic relationships he had with course officials resulted in his being treated unfairly.  The applicant also claims that this third party statement clearly outlines the antagonistic relationship that existed between him and the course officials and that it supports the fact that the applicant’s treatment by these two course officials was biased, unfair, and impressively ruthless.   He also states, in regard to the recommendation comment made by the legal advisor regarding nonacademic issues, that these nonacademic issues are essentially bias and without merit because the course director’s motives are clearly in question.  

The applicant also provides comments on the decisional document published by the Board on 15 December 1999, as a result of its original review of his case.  He comments, in effect, that the Board’s findings relative to his receiving his degree and the certification process are inaccurate and that the Board  findings relative to his obligations to follow the guidance and direction of MPAP phase II course officials is also without merit.  He states that the circumstances he found himself in were unfair and biased and that the course officials instigated many academic and non-academic issues that were primarily motivated by the personality conflict that existed and resulted in his eventual dismissal from the MPAP program.  

The applicant also provides comments to the 31 July 2000 decisional document published as a result of the reconsideration of his case by this Board.  He states that the Board’s finding, that his grades while an academic student were irrelevant to the content, purpose, and intent of the that memorandum and to his case, are incorrect.  

In fact, the applicant states that the transcripts are a direct reflection of the phase II grades he received at WAMC.  He also indicates that the memorandum referred to in the Board’s findings in regard to the MPAP phase II course director’s recommendation for an academic extension were incorrect because this extension was based on a false statement and misleading arguments, and that his legal opinion rebuttal proves this claim.  He finally argues that the University of Oklahoma transcript is important in establishing that he had no failing grades, which was the very theme that the course director pursued in his recommendation to have him academically extended in the course.  

In addition, the applicant provides a letter, dated 29 May 2001, from a third party who was a member of the BOI conducted on him at WAMC.  It indicates that at the time of the BOI proceedings, the applicant’s record revealed no failing grades.  This third party also comments that the findings and conclusions of the BOI demonstrate that inconsistent standards of performance and a lack of overall accountability by the phase II course manager contributed to many instances of impropriety by all of the MPAP students.  Further, he states that the BOI testimony and inquiry made it evident that considerable enmity existed between the applicant and the course director and that the cause for this hostility, while not apparent, seemed to have a definite deleterious effect on the course director’s treatment of the applicant. 

The applicant also provides a memorandum, dated 30 May 2001, from the Education Assistant, Graduate Medical Education, WAMC, which responded to an academic grade inquiry regarding the procedures used in the PA phase II program while the applicant was enrolled.  It indicates that the records revealed that the applicant had no failing grades during the time he was a student, which includes the time he was on academic extension.  It also indicates that for every rotation found on the master rotation schedule, there is a corresponding academic evaluation on file for the applicant.  Consequently, there is no undocumented evaluated clinical time during the applicant’s time as a student in the program and his last clinical rotation is listed as Preventive Medicine from 8-14 May 1994.  Finally, the writer states that during her 9 year tenure of association with the PA program the following schedule of grade had been used:  90-100=A; 80-89.9=B; 70-79.9=C; and below 70=F.  She confirms that at no time was a grade of 70 or above a failing grade.  

Finally, the applicant also provides a third party letter, dated 30 May 2001, from the previous MPAP phase II coordinator, WAMC, that he uses as support in his legal opinion rebuttal.  In it, the third party indicates that he has known the applicant for over 15 years and that during this period the applicant had consistently demonstrated himself to be a true professional both on and off duty.  He also comments that while the applicant was attending the phase II MPAP course he was a competent and confident student who possessed the traits looked for in young PAs.  
Further, this third party ( the former course coordinator) comments that the applicant had no failing grades prior to his departure in the Spring of 1994, and had maintained a B average.  He also comments that during the latter part of his tenure, he had occasion to witness the new course director conversing about the applicant.  He comments that he can state, without equivocation, that he recollects the course director stating that he, “was going to get the applicant”, or words to that effect.  He also indicates that he is not aware of what the PA course director specifically meant by those comments, but it is his perception that the course director did not wish the applicant to complete phase II of the course.  In conversation with the PA coordinator who replaced him, his replacement also conceded his wish that the applicant not complete the program. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board carefully considered the latest argument and evidence presented by the applicant with his latest submission to the Board.  This consideration included, but was not limited to, a through evaluation of his rebuttal to the ARBA legal opinion, his rebuttal to the prior findings and recommendations contained in the decisional documents published by the Board, and the additional third party statements he provided in support of his application.  However, even after considering these submissions, the Board still finds an insufficient evidentiary basis to support the requested relief. 

2.  The Board took special note of the applicant’s contention that his academic extension was illegal and was the result of personality conflicts that existed between him and the MPAP phase II course director and course coordinator; however, it finds these factors are not considered determinative in this case.  

3.  Notwithstanding the applicant’s extensive argument that his course grades and the improper academic extension should render the subsequent action to relieve him from the PA course null and void, the Board finds this is not the overriding factor in this case.  The primary issue is whether or not there was sufficient justification for his relief from the course for non-academic reasons subsequent to his academic extension being considered and approved by the proper authority.  

4.  The evidence of record clearly establishes that the applicant’s academic extension, as recommended by the MPAP phase II course director, was approved by the appropriate AHS authority.  Further, although reservations were expressed in its findings and recommendations, the 2 March 1994 BOI conducted at WAMC, also upheld this academic extension action and recommended it stay in force.  Therefore, the Board finds no evidentiary basis to conclude the academic extension was improper or inequitable or that its approval should render any subsequent actions taken null and void.  

5.  In addition, the Board concludes that regardless of the applicant’s perception in regard to the fairness of his academic extension, once it was approved by the proper authority, as a student and senior noncommissioned officer, he had the obligation to comply with the requirements and directives of course officials, which he failed to do.  

6.  The applicant’s failure to comply with course requirements are well documented and confirmed by the commandant, AHS, in his decision directing the applicant’s relief from the course based on his conduct.  It is in this context that earlier decisions of this Board have found that the applicant’s academic standing and degree completion, while deserving of consideration, were not the determinate factors in deciding if there was any error or injustice related to his ultimate relief from the MPAP course, and this Board concurs with those assessments. 

7.  Further, the commandant, AHS, also confirmed that while some mistakes may have been made in the comments regarding the applicant’s grades used to extend the applicant in the course for 60 days on academic probation, these mistakes were harmless, and did not render the extension action invalid.  He further indicated that the applicant could have been legitimately dismissed from the course for academic reasons based on his failure to pass the oral boards given during this probation period.  

8.  While it is obvious that the applicant does not agree with the decisions made in his case, and he believes his interpretation of the events and facts support the relief he requests, the Board does not find them sufficiently convincing to reverse the priors decisions made in this case.  The Board concedes there was likely a personality conflict between the applicant and the course officials involved, however, it finds insufficient evidence to establish that this was the basis for the applicant’s dismissal from the course.  

9.  In the opinion of the Board, the applicant’s failure to comply with the directives and guidance of course officials and his disregard for their authority provided sufficient justification for his relief from the course for non-academic reasons and it finds no error or injustice associated with his dismissal.

10.  Therefore, in view of the facts of this case, this Board concurs with the prior decisions rendered in this case and it finds that the overall merits of the case, including the latest submissions and arguments, are insufficient to provide a basis for reversing its previous decisions.

11.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__RVO__   _ _EJA__  __RKS     DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001060771	
SUFFIX		
RECON	AR2000038120 & AR1999029189	
DATE BOARDED	2002/01/31	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  14	102.0000	
2.		
3.		
4.		
5.		
6.