IN THE CASE OF: BOARD DATE: 20 November 2012 DOCKET NUMBER: AR20110025103 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 correction of his military records to show that he was reinstated into the General Surgical Residency Program because: a. he was denied procedural due process as a result of inadequate notice to allow him to prepare for the Graduate Medical Education Committee (GMEC) hearings; and b. he was denied substantive due process when he was arbitrarily and capriciously dismissed from the surgical residency program for reasons that were impermissibly discriminatory, violated the Army's own regulations, and/or pretextual for the animus and hostile work environment he endured in the surgery department at Tripler. 2. He further contends that his active duty service obligation (ADSO) should not have been extended beyond 15 March 2015. In the alternative, the applicant argues that he should be released from the Army instead of being retained as a general practitioner and sent to the field. He contends that he entered the Army with the expectation of being a surgeon. He did not expect to be exposed to a hostile work environment and discrimination. 3. The applicant states he was terminated in his 5th and final year of his General Surgical Residency Program at Tripler Army Medical Center (AMC). At the time, he was scheduled to complete the program in approximately 3 or 4 months. a. In 2009, he was treated by a psychiatrist for a recurrence of major depression attributable to conflicts he was having with his superiors who had falsely alleged that he had been untruthful. His superiors recommended his termination from the surgical residency program. b. On 29 March 2010, the GMEC convened a hearing and subsequently rejected the recommendation to terminate him from the program. The GMEC found that he had been subject to a hostile work environment and recommended that he be transferred to a different program for the completion of his surgical residency. However, he was not transferred but was simply returned to the same general surgery residency program. c. In the middle of August 2010, he experienced difficulties in eating, sleeping, and preparing a report. He was relieved from duty on 2 September 2010, for alleged declines in his duty performance which he believed were attributable to depression. He was ordered to undergo a command-directed psychiatric examination. He was diagnosed as suffering from major recurrent depression that impaired his abilities to perform his duties and to have insight into his condition. His medication was adjusted and he was provided therapy and counseling. d. He enrolled in the Impaired Healthcare Provider Program at Tripler AMC. His psychiatrists found him fit and recommended his return to duty without restriction as of 29 October 2010. Unfortunately, this recommendation was ignored. e. In a memorandum dated 22 November 2010, he was recommended for termination from the surgical residency program based on a consensus of the faculty. This notice failed to comply with Tripler AMC's own regulations and otherwise deprived him of sufficient notice to allow him to adequately prepare for his subsequent hearing. f. On 16 December 2010, the GMEC convened a hearing to consider his dismissal from the surgical residency program. He was denied representation by counsel at this hearing and had to present, examine, and cross-examine witnesses by himself. His depression was the only basis stated for his termination. His psychiatrists testified that other Soldiers, doctors, and surgeons suffer from the same depressive disorder and were able to perform their duties. Accordingly, there was no reason why the applicant could not complete the surgical residency program. g. In a memorandum dated 20 December 2010, the GMEC concurred with the recommendation to terminate him from the surgical residency program. The applicant filed an appeal on 28 December 2010. The appeal was denied on 9 February 2011. h. On 16 February 2011, the applicant filed a civil complaint in the U.S. District Court for the District of Hawaii. He amended this complaint on 26 April 2011. His complaint, as amended, was dismissed because he had not exhausted his administrative remedies by requesting relief from the Army Board for Correction of Military Records. i. On 6 April 2011, the applicant also filed an administrative claim with Tripler AMC's Equal Employment Opportunity Officer based on the impermissible discrimination he suffered as a result of his actual or perceived disability. 4. The applicant provides copies of: * Memorandum, Tripler AMC, dated 2 September 2010 * Memorandum, Tripler AMC, dated 22 November 2010 * Memorandum, Tripler AMC, dated 20 December 2010 * Letter, applicant's attorney, dated 28 December 2010 * Memorandum, Tripler AMC, dated 9 February 2011 * Amended Civil Complaint, filed 26 April 2011 * Applicant's Motion to Dismiss, filed 17 October 2011 COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests resolution of the applicant's request so that they may return to court. 2. Counsel states there is no need for any additional comment. 3. Counsel provides no additional documentation. CONSIDERATION OF EVIDENCE: 1. On 29 April 1998, the Mount Sinai School of Medicine conferred a Medical Doctor degree on the applicant. 2. A DA Form 71 (Oath of Office - Military Personnel) shows the applicant was sworn as a Reserve commissioned officer in the rank of captain, pay grade O-3, on 13 December 2004. 3. A memorandum, U.S. Army Human Resources Command, dated 4 March 2005, informed the applicant that he had been appointed as a Reserve commissioned officer of the Army for an indefinite term of service. His specialty is identified as 61J (General Surgeon). 4. Orders A-03-590252, U.S. Army Human Resources Command, dated 4 March 2005, ordered the applicant to active duty, to report in May 2005 to Tripler AMC, Hawaii. These orders identify his active duty commitment as an obligated volunteer officer for a 10 year period. 5. The applicant's DA Form 67-9 (Officer Evaluation Report (OER)) for the period commencing on 14 May 2005 indicates he began training as a junior general surgery resident at Tripler AMC. His subsequent OERs indicate that he remained in general surgery residency as a research resident, senior general surgery resident, and chief general surgery resident through 8 August 2011, the ending date of the last OER filed in his Army Military Human Resource Records file. 6. On 29 April 2010, the Director of Medical Education wrote a memorandum to the applicant concerning his dismissal from residency training. a. He was reminded of their discussion on 5 April 2010, about the GMEC decision to allow him to find a civilian program that would accept him as a transfer resident. Because he had not found a program that would accept him, he was instructed to report for duty at Tripler AMC. b. He still needed to complete 9 more months of his surgical residency training. He was provided a schedule that assigned him to the Blue Team for 2 months, the Red Team for 3 months, and to Kaiser Moanalua Medical Center for 4 months. c. His probationary status remained active and 2 months remained on his original probation. His program was to provide him with objectives for each assigned rotation and he was to resume training with monthly progress reports given to the GMEC. d. He was informed that should he fail to make adequate progress, or should his performance decline, his probation may be extended further or he may again be recommended for dismissal per the Due Process Policy. 7. A memorandum from the Director of Medical Education, Tripler AMC, dated 10 June 2010, requested a 7-month extension of the applicant's residency training because he had not met the program requirements at the chief resident level and the minimum of 150 major cases in his chief year. The memorandum states the reason for his failure to complete these requirements was due to his placement on probation for poor performance. He also took a 2-month medical leave of absence during the academic year. On 18 June 2010, the applicant was granted an extension until 31 January 2011. 8. In a Memorandum for Record, as provided by the applicant, subject: Relief of Duty for Medical Reasons, dated 2 September 2010, the Program Director (PD), General Surgery, Tripler AMC, stated he had a real and honest concern for the applicant's well being and ability to care for patients safely. He had been off probation since July 2010 and had his training extended. His performance during the month of July 2010 was without deficiencies. However, his performance during the previous 5 weeks had degraded substantially. He had overslept for rounds, sleeping 20 plus hours at a time, and missed meals due to no appetite. Residents reported seeing him sleep excessively in the call room which culminated in his absence from an academic conference and his failure to complete required Morbidity and Mortality Reports in a timely fashion. a. When questioned about these issues, the applicant responded that he simply could not will himself to complete assigned tasks and his appetite was to the point where he must remind himself to eat. The applicant indicated he had no desire to hurt anyone and was not suicidal. He assessed his daily performance as adequate 60 percent of the time. The PD agreed with that assessment. b. The applicant acknowledged his insight into his problem and how it affected him and his patients. He explained that after graduation, he hoped to be assigned to a location where he would not have to carry a very large case burden for a couple years to "get himself together." The PD countered with the very real possibility that not only may he end up with a busy surgical center, but deployment was almost a certainty in his future requiring him to perform at a high level of 100 percent all the time. c. The PD recommended that the applicant seriously consider resigning from the residency program in good standing. The applicant agreed that this option had crossed his mind, but he had promised his wife that he would finish. The PD explained that finishing was only a small part of what the implications of his problems would mean to him personally and his future patients. The applicant wanted time to think about things. d. The PD stated that the applicant's difficulties were due to severe depression and emotional stress. The PD said this with the full understanding that he was not a psychiatrist, but had enough insight as a physician to recognize the signs of depression. This had nothing to do with the applicant's surgical ability. He was technically able to operate and was in good academic standing. However, being a surgeon and making life and death decisions required someone who was 100 percent at all times, not someone who was 60 percent at best, no exceptions. It was no fault of the applicant and the PD told him so. As a person, the PD liked the applicant a great deal and he knew the PD had no personal issues with him. The applicant needed appropriate treatment and to see his psychiatrist. e. The PD stated his obligation was to ensure the resident had demonstrated sufficient competence to enter practice without supervision. Clearly the applicant was not at that point. Furthermore, the PD was obligated to citizens of the United States to field surgeons who were ready to perform in any environment and, ultimately, to each and every patient he may care for in the future. f. The PD placed the applicant on 72 hours quarters to give him time to sort things out. 9. In a memorandum, dated 22 November 2010, the Associate PD, General Surgery Residency, notified the applicant that he was being recommended for dismissal due to his regression after removal from probation. a. The memorandum stated that the Tripler AMC Due Process Policy for Residents in Graduate Medical Education Programs provided at paragraph 10.a(2) that a dismissal request may be based on a resident's regression or failure to satisfactorily progress after removal from probation. b. The applicant was given a period of 5 working days to submit a written response and to meet with the Associate PD regarding this recommendation. c. The memorandum shows the applicant's signature and was dated 24 November 2010. 10. On 1 December 2010, the applicant responded to the proposed dismissal, saying that he did not accept and wished to appear before the GMEC. He acknowledged his understanding that he could present evidence to show why his residency should not be terminated, have witnesses appear on his behalf, and to have an attorney present. 11. On 16 December 2010, the GMEC convened a hearing to consider the applicant's dismissal from the General Surgery Residency Program. The record of the hearing indicates that there was a quorum of 75 percent of the official membership or representatives present. The GMEC's and applicant's rights were discussed. 12. In a memorandum, dated 20 December 2010, the Director of Medical Education informed the applicant that the GMEC had concurred with the recommendation to terminate his residency at Tripler AMC. In accordance with Tripler AMC's Due Process Policy, he had the right to submit an appeal within 5 working days. Due to the holiday, the deadline for submission of his appeal was set at 29 December 2010. The memorandum indicates that the applicant signed and dated the memorandum on 20 December 2010. 13. In a letter dated 28 December 2010, the applicant's counsel submitted an appeal to the Commander, Tripler AMC. Counsel made the following comments and/or arguments: a. The applicant was a gifted surgeon whose base of knowledge and abilities in the operating room have never been questioned. He had initially entered into an internship/residency program a number of years earlier and had voluntarily left medicine to pursue a career on Wall Street. After a lengthy absence he felt a strong desire to initiate a career in military medicine and successfully completed 4 of the 5 years at Tripler AMC. In late 2009, the applicant suffered a recurrence of a major depressive disorder for which he was diagnosed and treated with medicine and therapy. b. It is not entirely clear what had triggered the applicant's recurrent condition; however, it did coincide with his wife's acceptance of a teaching position in Australia and serious conflicts between himself and two of his supervisors who had accused him of being untruthful. c. After a lengthy and contentious meeting on 29 March 2010, the GMEC voted unanimously to retain the applicant. The GMEC believed the applicant had been compelled to work in a hostile environment and recommended that he complete his training away from Tripler AMC. The applicant was placed on probation and returned to Tripler AMC to complete his 5th year, in disregard of the GMEC's recommendation. During the months to follow, his probation was ended. d. During the month following the end of his probation, the applicant began to experience difficulties with eating, sleeping, and completing certain tasks. These are symptoms of his depressive disorder. He was working for long hours and was unable to discipline himself. After an adjustment of his medications he was counseled and returned to duty as a surgeon without restriction. e. Counsel argues that the only basis for terminating the applicant just short of the completion of his residency training was the medical disability from which he suffers. Counsel contends that this is not legal basis for the action. f. At the most recent hearing, both of the applicant's doctors testified, without contradiction, that there was no medical reason why the applicant could not continue and complete his residency training and then work as a surgeon. He was found to be fully fit to perform the military medical duties required of him. g. Counsel pointed out that the applicant and his wife have resolved the circumstances of their long distance relationship in a manner that would likely minimize some of the triggers for his symptoms. h. Counsel stated the applicant wanted and was highly motivated to complete his residency and to serve as a surgeon in the Army. Counsel believed by terminating the applicant on the evidence presented, the GMEC acted without proper and sufficient legal advice and effected a form of discrimination that was impermissible. i. Counsel further argued that the GMEC proceedings were defective because the applicant was not afforded the opportunity to be represented by his counsel. j. Counsel stated to terminate the applicant at a time when there was a shortage of competent and trained surgeons, due to the current demands of the service, was detrimental to the Army and the needs of many patients. 14. On 9 February 2011, the Commander, Tripler AMC upheld the GMEC decision to dismiss the applicant from residency training at Tripler AMC. The commander stated he had carefully reviewed the applicable policies and Army regulations, the applicant's records, the transcript of the GMEC hearing on 16 December 2010, and the written document and verbal comments submitted by his attorney on 7 February 2011. He also independently interviewed staff physicians who supervised the applicant in the clinical and academic areas and the Director of Graduate Medical Education. He consulted with the Deputy Chief of Clinical Services and the physician who performed a psychiatric evaluation of the applicant, to include reviewing and considering his report. The applicant acknowledged the denial of his appeal with his signature and date of 10 February 2011. 15. In emails, dated in September 2011, the Director, Medical Education, Office of the Surgeon General, Falls Church, Virginia, informed the applicant that his ADSO was adjusted to 9 February 2016, based on the training he had completed and his leave of absence. He was further informed that any appeal of his ADSO would need to be submitted to the U.S. Army Human Resources Command. 16. In the processing of this case, an advisory opinion was obtained from the Director, Medical Education, Office of the Surgeon General, Falls Church, Virginia. a. Due process in Graduate Medical Education is a clearly defined systematic mechanism for problem identification and remediation, with the overall goal of ensuring that program graduates meet the standards to perform as fully qualified independent providers in their selected specialty. b. When the results of remediation do not result in the trainee meeting standard, more formalized interventions such as probation follow. c. If probation fails, then termination (dismissal) ensues. Probation and terminations are considered to be adverse actions. As such, they are not executed without a thorough examination of the documented facts, a deliberate review by a representative body that weighs all the information, and after careful discussion and deliberation, renders a decision. d. The process is administrative in nature and codified by policy. It is not a court of law. There is a well-established track record when decisions have been challenged in court that, as long as the policies and procedures were followed, due process was administered. e. The applicant was initially presented by his PD for termination in March 2010, due to inconsistent clinical performance and lapses in professionalism. These actions represented his failure to meet the conditions of his probation which had been initiated in February 2010. The GMEC did not concur with the proposal and voted to continue him on probation. However, because there were no openings at any other military general surgery programs, the applicant was given a leave of absence to identify a civilian program to which he could transfer to avoid the appearance of any bias in the further execution of his probation. f. When the applicant could find no other program to transfer to, he was then continued on probation in the Tripler AMC General Surgery Residency with every effort made to ensure its fairness. g. The applicant's contact with previous staff who had been critical of him was minimized. A staff ombudsman was identified. The PD was deployed and the Assistant PD directed his probation. In June 2010, the applicant's training was extended for 7 months so he could meet the minimum training requirements. h. The applicant was removed from probation in July 2010, but slightly more than a month later, he was counseled concerning multiple episodes of being late for rounds, missing academic conferences, performing at only 60 percent of his capacity, and for not having presented his morbidity and mortality case in a timely fashion. i. On 2 September 2010, the applicant was removed from clinical duties and referred for a command-directed mental health evaluation. He was never returned to clinical duties and in November 2010, he was recommended for termination. j. The applicant exercised his rights for a formal hearing, which was held on 16 December 2010. His lawyer was present. The applicant called his own witnesses and was able to question all witnesses and to also answer questions posed. The GMEC voted to terminate him. He was so notified on 20 December 2010. He was given until 29 December 2010, to appeal the decision. k. On 28 December 2010, the applicant's lawyer submitted an appeal on behalf of the applicant. An email indicates that there may have been an availability problem with the appellate authority resulting in a mutually agreeable date of 7 February 2011. The appeal was denied on 9 February 2011. l. The opinion states that while the applicant's depression was a mitigating factor, it did not absolve him of the responsibility of meeting established academic and professional standards. At least two psychiatrists and one psychologist were voting members of the GMEC. Given the testimony heard and the composition of the GMEC, it is not conceivable that his depression served as the basis for the decision to terminate him from training. There were multiple issues to consider; the assertion that the decision to terminate him was arbitrary and capricious is not tenable. There was a delay in the appeal decision because the appellate authority was not available in January; having a decision rendered by a substitute would have been problematic. m. The opinion finds no basis for the applicant's allegations that procedural due process was denied him; that substantive due process was denied him; that his dismissal from the General Surgical Residency Program was based solely on his disability; and that he should be separated from active duty because he had expectations of being allowed to participate in the General Surgical Residency Program without being exposed to a hostile working environment. n. The opinion also states that even though the applicant did not complete his training, he is contractually obligated to serve the ADSO for the training that he did receive. The Director, Medical Education will provide separate correspondence to the applicant concerning the calculation of his ADSO. 17. In a letter, dated 24 May 2012, the applicant's counsel responded to the advisory opinion. He said it was somewhat unprofessional that the correspondence was sent directly to the applicant, who had counsel in this matter, and that it took a month to reach him with a proposed response date that was by then overdue. Furthermore, counsel found the advisory opinion similarly unprofessional, and declined to comment further at this time. Counsel asked that the application be processed without delay so that they may return to Federal district court to obtain a fair adjudication of his claims. 18. The Tripler AMC Handbook for Residents and Program Directors provides the due process policy for residents in Graduate Medical Education Programs. a. Paragraph 10 (Dismissal from Training) states that dismissal is the most serious action that can be proposed by a PD. Dismissal will normally be imposed only after a period of formal probation or after a single incident of gross negligence or willful misconduct. A recommendation for dismissal must be approved by a two-thirds vote of the GMEC. b. Recommendations for dismissal must be based upon one of the following: * Failure to satisfactorily progress toward correction of deficiencies while on probation * Regression or failure to satisfactorily progress after removal from probation * Any act of gross negligence or willful misconduct c. In order for a resident to be dismissed from training, the PD must notify the resident in writing that dismissal is being considered. The notification must include specific reasons for the proposed action and a copy of the institutional policy on due process. The resident will be given a minimum of 5 working days to submit a written response and meet with the PD. d. Paragraph 15 (Resident's Rights under Due Process and GMEC Hearing Procedures for Adverse Actions) states that GMEC proceedings are administrative and are not bound by formal rules of evidence or strict procedural format. * At least 75 percent of the official GMEC membership or representatives must be present for hearings on dismissal * The GMEC has the responsibility to ensure that the concerns of PDs meet reasonable criteria for any proposed action * The GMEC has the right to question the resident; however, he is not obligated to answer * The resident has the right to waive the hearing * The resident has the right to hear reasons for the action as put forth by the PD * The resident has the right to review all documents before the committee * The resident has the right to secure a military or civilian legal advisor, to have him present, and to consult with during the hearing * The resident has the right to respond orally and/or in writing to statements of the PD * The resident has the right to request witnesses to speak on his behalf or to submit statements * The resident has the right to submit statements, written documents, or other information on their own behalf * The resident has the right to appeal a decision DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected to show that he was reinstated into the General Surgical Residency Program because he was denied both procedural and substantive due process. In the alternative, he argues that he should be released from the Army instead of being retained as a general practitioner and sent to the field because he entered the Army with the expectation of being a surgeon. He did not expect to be exposed to a hostile work environment and discrimination. 2. The available evidence indicates that the applicant was diagnosed as suffering from major recurrent depression that impaired his abilities to perform his duties. On 2 September 2010, the applicant acknowledged that he was only able to perform at 60 percent of his capacity and could not will himself to complete assigned tasks. 3. The PD clearly stated that the applicant's difficulties were due to his severe depression and emotional stress and had nothing to do with his surgical ability. However, being a surgeon requires a person who can perform at 100 percent at all times, not someone who can perform at 60 percent at best. As a result, the applicant had not completed the required training and did not present himself as sufficiently competent to enter practice without supervision. This constituted a regression of the applicant's progress after his earlier removal from probation. This was the basis for the applicant's dismissal from the General Surgical Residency Program. 4. A review of the governing policy and the actions of the GMEC failed to show any breach of the applicant's rights to due process. He was adequately notified of his GMEC hearings in accordance with the governing policy. Furthermore, there is no evidence showing that he was arbitrarily and capriciously dismissed for any reasons that were discriminatory. His dismissal was solely based on his regression as evidenced by his failure to complete assignments and to convincingly show he was competent to practice independently, without supervision as a surgeon. 5. The available evidence clearly shows the applicant's ADSO was adjusted to 9 February 2016, based on the training he completed and his leave of absence. Any disagreement the applicant has concerning this matter must be appealed to U.S. Army Human Resources Command before this board can consider this issue. 6. In view of the above, the applicant's request should be denied. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ___X__ _ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ X ______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20110025103 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110025103 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1