RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  99-01050

		COUNSEL:  

		HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

His records be corrected to reflect removal of any reference to the suspension, limitation and revocation of credentials.

The Referral Officer Performance Report (OPR) rendered for the period 1 May 95 through 30 Apr 96 be expunged and/or revised.

The Report of Adverse Action placed by the United States Air Force into the National Practitioner Data Bank (NPDB) on or about 24 Jan 97, be removed from the NPDB and any and all other reporting agencies.

APPLICANT CONTENDS THAT:

The recommendations of the Credentials Hearing Board, later adopted by the Command, were so clearly erroneous and contrary to the substantial weight of the evidence that the resultant adverse action report(s) should be removed.

The decision to limit his credentials constituted a blatant injustice based upon his past performance, background and outstanding record.

He has been deprived of a liberty interest without due process of law guaranteed by the Fifth and Fourth Amendments to the United States Constitution based upon procedural irregularities in the credentialing process; bias on the part of the participants and decision makers; and ineffective assistance of former counsel.

His credentials have been fully restored, and is currently a credentialed provider at the Walter Reed Army Medical Center.  He has been fully “punished,” and whatever the limitation of credentials was meant to accomplish has long since been accomplished.  (He has also received additional "refresher" training.)  It would be an injustice to continue to punish him for the remainder of his medical career.

The cumulative “punishments” in this case so far outweigh the gravity of any perceived occurrence as to call into question the motivation of the participants in this matter.

He was subjected to a “hostile work environment” before, during, and after the credentialing hearing process, which pre-determined the outcome of the hearing.

There is no pathologist in the Air Force, nor indeed in either military or civilian practice, who has a 100 percent error-free practice or where terminology or semantics will be in agreement with other pathologists 100 percent of the time.  If he is to be judged and punished this harshly for what even the government concedes is “minor,” then every pathologist in practice, at one time or another, would likewise have his credentials restricted and be reported to the National Practitioner Data Bank.

The continued refusal of the Air Force to expunge his records and to remove the adverse information from the reporting agencies is based upon the erroneous assertion that “The evaluation from the National Naval Medical Center, Bethesda, substantiated the allegations generated at Malcolm Grow Medical Center."  However, supplemental information provided by Dr. XXXXXX X. XXXXXXXX, Head, Laboratory Medicine Department, National Naval Medical Center, Bethesda, demonstrates that in fact the evaluation from Bethesda was biased, and he did not receive the “refresher training” that he was supposed to be getting at Bethesda.

In support of his appeal, the applicant provided a counsel’s brief and numerous other documents associated with the matter under review.

Applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) indicates that the applicant is currently serving on active duty in the grade of colonel, having been promoted to that grade on 31 Jul 95.  His Total Active Federal Military Service Date (TAFMSD) is 5 Jul 83.

Applicant's OER/OPR profile follows:

	PERIOD ENDING	EVALUATION

	 5 Jan 90	Meets Standards
	 8 Jun 90	Meets Standards
	 8 Jun 91	Meets Standards
	 8 Jun 92	Meets Standards
	 8 Jun 93	Meets Standards
	30 Apr 94	Meets Standards
	30 Apr 95	Meets Standards
  *  30 Apr 96                      Does Not Meet Standards
	30 Apr 97	Meets Standards
	31 Oct 97	Meets Standards
	31 Oct 98	Meets Standards

The relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force.  Accordingly, there is no need to recite these facts in this Record of Proceedings.

AIR FORCE EVALUATION:

The Air Force Medical Operations Agency, Office of the Surgeon General, AFMOA/SGOC, reviewed this application and recommended denial of the applicant’s request to remove the Adverse Action Reports from the NPDB and other reporting agencies.  According to AFMOA/SGOC, Clinical Privilege actions are taken by the MTF following due process procedures.  The applicant was afforded due process during this action and was represented by civilian counsel.  He was afforded an appeal to the AF/SG.  He case was reviewed by his peers at both the MTF and at AFMOA/SGOC.  The action was appropriately reported following all applicable due process and appeal procedures.

A complete copy of the AFMOA/SGOC evaluation, with attachments, is at Exhibit C.

The Promotion, Evaluation and Recognition Division, AFPC/DPPP, reviewed this application and recommended denial of the applicant’s request to remove the referral OPR closing 30 Apr 96 from his records.  According to DPPP, the applicant has not provided conclusive evidence to show the contested report was not rendered in good faith by all evaluators based on the knowledge available at the time.  In the absence of sufficient evidence demonstrating an injustice occurred, DPPP believes the contested report was accurate and just.

A complete copy of the DPPP evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In her response, counsel indicated that throughout the entirety of the proceedings, the Air Force has never demonstrated any foundation for the Draconian punishments meted out.  The applicant has more than 10,000 cases to his credit during the period under examination and has practiced pathology since 1972.  Not a single instance of overt patient harm or malpractice has ever been documented.  The Air Force’s whole case is based on a “concern” for possible future practice patterns, which has no basis in fact.

Counsel’s complete response and additional documentary evidence, including the applicant’s personal statement, are at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the Chief Medical Consultant, AFBCMR, reviewed this application to look at whether actions to limit the applicant’s privileges were proper.  According to the Medical Consultant, Credential Committees are charged with maintaining proper standards of care in their facilities, and the multiple incidents of substandard care rendered by the applicant warranted the actions taken.  He, himself, alluded to his having become “rusty in his skills, and the proper time to take action is when such skill deterioration is recognized--before such actions further jeopardize patient care.  This instance of privilege limitation was in keeping with acceptable standards of hospital care and should be expunged.  In the opinion of the Medical Consultant, no change in the records was warranted and the application should be denied.

A complete copy of the Medical Consultant’s evaluation is at Exhibit G.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In his response, counsel indicated that it was unclear to them how this appeal could be turned down based upon the overwhelming evidence that the adverse action was taken against him due to command bias, that the applicant was and is competent, that he was sent to Bethesda Naval Hospital after being kept from practicing medicine for one year and then not given refresher training; and that the adverse action taken against him constituted excessive punishment for the type of offenses allegedly committed.

Counsel complete response and additional documentary evidence are at Exhibit I.

By letter, dated 16 Aug 00, counsel provided additional documentary evidence for the Board’s consideration.

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions and the documentation presented in support of his appeal sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility.  In view of the above, and in the absence of clear-cut evidence to the contrary, we adopt the Air Force rationale and conclude that no basis exists to recommend granting the relief sought in this application.

4.  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.

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered this application in Executive Session on 4 Apr 00 and 14 Sep 00, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Apr 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFMOA/SGOC, dated 22 Oct 99, w/atchs.
    Exhibit D.  Letter, AFPC/DPPP, dated 13 Dec 99.
    Exhibit E.  Letter, SAF/MIBR, dated 23 Dec 99.
    Exhibit F.  Letter, counsel, dated 19 Jan 00, w/atchs.
    Exhibit G.  Letter, Medical Consultant, dated 31 May 00.
    Exhibit H.  Letter, AFBCMR, dated 9 Jun 00.
    Exhibit I.  Letter, counsel, dated 4 Aug 00, w/atchs.
	Exhibit J.  Letter, counsel, dated 16 Aug 00, w/atchs.