BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20140014235 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 that: a. All records pertaining to unlawful referral to the Madigan Army Medical Center (MAMC) Personnel Health Program (MPHP) as a condition of being granted clinical privileges be expunged from his military personnel and medical records and from his military medical professional records. b. The disapproval by the Army Human Resources Command (HRC) of his time in grade (TIG) waiver be reversed and that he be allowed to retire as a colonel (COL). 2. The applicant states his referral to the MPHP was in violation of the Military Mental Health Evaluation Program enacted by the National Defense Authorization Act of 1993, Public Law Number 102-484 (certain provisions of which have been codified at Title 10, U.S. Code (USC), Section 1074). His request to be allowed to retire in the grade of COL was denied without explanation and without consideration of the exceptional or unusual circumstances that were present in his situation in violation of Title 10, USC, Section 13770(a)(2)(A), and implementing Army regulations. 3. The applicant provides: * Two memoranda in support of his claims of error * Letter, dated 11 July 2007, from Deputy Commander for Clinical Services, William Beaumont Army Medical Center (WBAMC) * Email message, dated 12 July 2007, from MAMC, Deputy Hospital Judge Advocate to the MAMC Credentials Manager * Memorandum for Record, dated 24 July 2008, from the Chief, Department of Pediatrics, MAMC * Minutes of Credentials Committee meetings held on 2 and 7 August 2007 and the applicant's statement * Applicant's suit in the U.S. District Court for the Western District of Washington * MPHP records * Letter, dated 16 July 2014, from a licensed physician * Application for retirement * Email, dated 22 January 2010, notifying him of a grade determination requirement * Memorandum, subject: Waiver Request to Retire in Current Grade, [Applicant] * Memorandum, subject: Operational Delay to Elective Retirement, [Applicant] * Email, dated 2 June 2010, disapproving retirement application * Resubmission of retirement application, dated 10 June 2010 * Retirement Orders 228-003, dated 16 August 2010 * Letter, dated 28 March 2011, requesting records related to a waiver for TIG requirement pursuant to the Freedom of Information Act (FOIA)/Privacy Act * Letter, dated 4 January 2012, following up on the FOIA request * Letter, dated 2 March 2012, FOIA appeal * Letter, dated 20 March 2012, from an Associate Deputy General Counsel * Letter, dated 26 March 2012, from the Chief, FOIA and Privacy Act, with enclosures * Letter, dated 10 October 2012, from Chief, Management Support Office, Office of the Deputy Chief of Staff, G-1 * Policy Memorandum, dated 21 July 2008 * Memorandum, subject: Perceptions of Impropriety, MAMC Cardiac Catheterization Laboratory, dated 8 August 2008, with attachments * U.S. District Court Western District of Washington at Tacoma Plea Agreement * U.S. District Court Western District of Washington at Tacoma Government's Sentencing Memorandum * Letter, dated 20 April 2011, from the Resident Agent-in-Charge, Northwest Fraud Resident Agency, Major Procurement Fraud Unit, U.S. Army Criminal Investigation Command (CID) * Statement from a lieutenant general given to The New York Times CONSIDERATION OF EVIDENCE: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was appointed as a Reserve commissioned officer on 17 July 1986 in the rank of second lieutenant. He was ordered to active duty in the Regular Army on 21 June 1990. 3. He served in a variety of assignments and he was promoted to lieutenant colonel (LTC) on 21 June 2002. 4. The applicant provided an 11 July 2007 letter from the Deputy Commander for Clinical Services, WBAMC. The Deputy Commander informed the Chief, Department of Medicine, MAMC, that the applicant may have been involved in a significant adverse patient encounter. The Deputy Commander also stated that any quality care issues were forwarded to the Peer Review Committee and the Committee determined that that standard of care was met. The Deputy Commander further stated that the applicant's privileges were never suspended or restricted and that the applicant was in good standing at WBAMC. 5. The applicant provided a 12 July 2007 email from the Deputy Center Judge Advocate, MAMC, who informed the Credential Manager, MAMC, that there was an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation that had been completed. It was an Equal Opportunity (EO) investigation and didn't pertain to the applicant's clinical skills or medical judgment. 6. In an 8 August 2007 memorandum, the Credentials Manager, MAMC, stated the applicant was granted clinical privileges and medical staff appointment for the period 7 August 2007 through 6 August 2009. He signed the memorandum indicating he agreed with the review of the Credentials Committee and the appointment/privileges awarded by the Commander on 7 August 2007. 7. He was promoted to COL on 21 June 2008. 8. On 3 December 2009, the applicant voluntarily submitted his request for retirement under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 6, with release from active duty and assignment on 31 August 2010 and placement on the Retired List on 1 September 2010 or as soon thereafter as practicable. 9. The applicant's military personnel record includes a certificate which shows he was certified as an interventional cardiologist for the period 2000 through 2010. His records also contain a license that was issued on 17 May 2002 and expired on 1 July 2011 showing he was a licensed physician. 10. In an 11 February 2010 memorandum, the applicant requested a waiver of TIG requirements of Army Regulation 600-8-24, paragraph 6-1c. He specifically requested authorization to retire in the grade of COL. 11. In a 21 May 2010 memorandum, the applicant requested a 30-day operational delay to planned elective retirement. The purpose for this operational delay was to complete mission-essential duties as assigned by the Western Regional Medical Command. The memorandum is not signed. 12. On 16 August 2010, following his request for voluntary retirement, Joint Base Garrison, Joint Base Lewis-McChord, published Orders 228-0013 retiring him from active duty effective 30 November 2010 and placing him on the Retired List in his retired rank of LTC effective 1 December 2010. 13. The applicant retired on 30 November 2010. His DD Form 214 shows his rank as COL, the rank he held at the time of his retirement, and his effective date of rank as 21 June 2008. 14. The applicant provided a statement in support of his claim regarding wrongful referral to MPHP. The statement shows: a. He was a board-certified cardiologist serving on active duty as a member of the U.S. Army Medical Corps. He completed a 7-year assignment at WBAMC, Fort Bliss, TX, and was reassigned to MAMC at Fort Lewis, WA, in July 2007. He claims that the Acting Chief of Medicine and his prospective supervisor at MAMC told him he was not wanted at MAMC. b. He appeared before the Credentials Committee at MAMC when he arrived there as a standard procedure in seeking clinical privileges at MAMC. The Committee recommended that he be required to enroll in the MPHP as a condition of granting him clinical privileges. The Committee's recommendation was subsequently approved by MAMC's Commanding General. The Committee's action was prompted by an administrative, non-judicial written reprimand he received while assigned at Fort Bliss based on a complaint from a disgruntled civilian employee. The reprimand was not related to patient care or his clinical privileges. It was filed only in his local military personnel records jacket (MPRJ) at Fort Bliss. In accordance with Army Regulation 600-37 (Unfavorable Information), paragraph 3-4a(3), the reprimand was supposed to be removed from his MPRJ when he was reassigned to a different commander and convening authority at MAMC, Fort Lewis. c. The Committee's referral to MPHP was in violation of the Military Mental Health Evaluation Protection Act (MMHEPA), which was enacted by the National Defense Authorization Act of 1993, Public Law Number 102-484 (certain provisions codified at Title 10, USC 1074). There was no evidence to warrant the referral, and the Committee failed to consult with a mental healthcare provider prior to his mental health evaluation. He has never been diagnosed as having any psychiatric condition, personality disorder, or other mental health condition. One of his supervisors told him that some physicians had attempted to block his medical privileges because he ignored evidence of improper conduct. d. He was issued reassignment orders on 30 March 2007 authorizing his permanent change of station to MAMC with a reporting date no later than 30 July 2007. A physician at MAMC investigated the issue regarding three doctors' at MAMC attempt to stop his assignment to MAMC. The Acting Chief of Medicine at MAMC had informed the Deputy Chief of Clinical Services at WBAMC that the applicant's quality care issues had been forwarded to the Peer Review Committee. This Committee determined that the standard of care had been met, his privileges had never been suspended or restricted, and he was in good standing at WBAMC. Medical officers at MAMC obtained information from WBAMC regarding an administrative investigation of the applicant, which was sent to the Credentials Committee. The Committee recommended approval of the applicant's application based on two conditions, the pertinent condition being he had to enroll in the MPHP. e. Army Regulation 40-60 (Army Medical Materiel Acquisition Policy), dated 10 July 2007, governs the functions and procedures of the MPHP as local implementation of Army Regulation 40-60, chapter 11. This program was designed to assess, monitor, and manage impaired healthcare providers based on psychiatric or medical impairment as well as substance abuse or impairment. The prerequisites for referral to a non-emergency outpatient mental health evaluation or treatment were not met in his case. He met with a psychiatrist on staff at MAMC. He inquired years later that he wanted to review a copy of his MPHP records, but he was denied on the basis that this was a "Quality Assurance" document within the meaning of Title 10, USC, Section 1102. He later sought legal advice to obtain MPHP records and learned his referral was in violation of federal law. His subsequent request for these documents under the FOIA were denied. After exhausting his administrative remedies, he filed suit in federal court to obtain copies of his MPHP records 15. The applicant provided an additional statement in support of his claim regarding wrongful denial of his TIG waiver request. The statement shows: a. He left MAMC in March 2009 on a 6-month deployment as Deputy Command Surgeon and Chief of Clinical Services for the Multinational Forces, Iraq. He was unable to return to his former position as a cardiologist at MAMC because the Chief of Cardiology was under investigation by federal authorities. He was assigned to Western Regional Medical Command as a medical staff officer because of the risk of retaliation. b. He submitted an application for retirement to be effective in August 2010 because he was concerned that his medical skills might erode because he was no longer in active clinical practice. He also submitted a TIG waiver request since he didn't have 3 years' TIG as a COL at the projected retirement date. The TIG waiver was denied and he was released from active duty (REFRAD). At that time, he had 2 years, 5 months, and 9 days' TIG. There is no evidence that his TIG waiver request was properly evaluated in accordance with the Army's regulatory standards and procedures. He later voluntarily requested a postponement of his REFRAD date because he was appointed as an investigating officer to conduct a complex informal investigation under Army Regulation 15-6. c. Email correspondence between the Career Manager, Medical Corps Branch and Western Region Medical Command stated that his retirement request had been disapproved because HRC could not approve one part (retirement) and disapprove another (TIG waiver). He resubmitted his request on 10 June 2010 and again on 16 August 2010. His retirement orders were issued authorizing his retirement on 30 November 2010. He never received any written confirmation that his TIG waiver request had been denied nor was he given a reason for denial. d. He filed a FOIA request on 28 Mach 2011 through counsel seeking all records and documents pertaining to his TIG waiver, both with respect to pay and with respect to grade. He also sought disclosure of all records pertaining to guidelines or standards governing evaluation of waiver requests pursuant to Title 10, USC, Section 1370(a)(2)(A), regardless of whether such guidelines or standards had been promulgated by regulation, directive, instruction, or other written policy. This request was sent to HRC by certified mail on 30 March 2011 and a follow-up letter was sent on 4 January 2012, which was received by HRC on 10 January 2012. On 26 March 2012, HRC replied and provided certain documents. A portion of the FOIA request was forwarded to the Deputy Chief of Staff, G-1, for action. That office replied by letter dated 10 October 2012 indicating that no records had been found. e. There is probable error or injustice because his TIG waiver request was not properly evaluated. He references Title 10, USC, Section 1370, which provides that in order to be eligible for voluntary retirement in grades above major (MAJ) and below lieutenant general, an officer must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years. Subsection 1370(a)(2)(C) allows the Secretary of a military department to delegate that authority to a civilian official in that department who has been appointed by the President with the advice and consent of the Senate. f. He references Army Regulation 600-8-24, chapter 6, which provides that the Secretary of Defense has authorized the Secretary of the Army to waive the 3-year TIG requirement in individual cases "involving extreme hardship or exceptional or unusual circumstances." Title 10, USC, Section 1370(a)(2)(E), provides that the number of members of the Armed Forces in that grade for whom a reduction is made during any fiscal year "may not exceed the number equal to 2 percent of the authorized active duty strength for that fiscal year for officers of that armed force in that grade." g. His FOIA request was considered using outdated standards. This apparent reliance on outdated statutory authority was important because it may not have been evident to HRC that someone other than the Secretary of the Army had authority to approve grade waiver requests. There was no indication in any of the documents produced by HRC that the applicant's TIG waiver request was considered or acted upon. An undated and unsigned Information Paper also made no mention of his TIG waiver request. h. He questions whether the Army's regulatory standard in Army Regulation 600-8-24 was overly restrictive since it duplicates the statutory standard limiting the President's authority to approve TIG waiver requests for periods of less than 2 years. He references this issue considered in an Air Force Board for Correction of Military Records case in Docket Number BC-2003-02723. i. There are no records or documents produced by the Army to show how grade waiver requests are actually evaluated. The Army responded to his FOIA request stating that no statistics or information as to grade waiver requests were maintained. It could be conceivable that the Army's practice might be to deny all grade waiver requests; however, it would be necessary to maintain documentation. This type of policy would be arbitrary and capricious since there would be no process to evaluate and consider grade waiver requests. The absence of documentation concerning action taken by the Army on other grade waiver requests itself is evidence that there is no formal established practice or procedure to consider grade waiver requests. j. It became apparent to him that he was not welcomed at MAMC by several senior officers on the medical staff. It has been documented in this application regarding the improper use of the reprimand which had been directed for local filing only at Fort Bliss and the wrongful referral of him to the impaired provider panel. There were repeated efforts to isolate him, to include attempting to relegate him to the local Department of Veterans Affairs (VA) medical center, ordering him to Fort Irwin on a 5-week involuntary assignment to fill an O-3 Internal Medicine position, being told he wasn't needed or wanted at MAMC, and reassigning him a second time to Fort Irwin for another involuntary 5-week temporary duty assignment for the same pay grade O-3 Internal Medicine position. These assignments were below his grade level and area of specialization, which created a hardship for him. He's the sole parent of a teenage son and had to make arrangements for members of his family to assist in his absence. He was commended by Fort Irwin officials for his quality of care during these temporary duty assignments. k. He questioned the instructions from the Chief of Cardiology at MAMC regarding the use of implant devices manufactured only by a certain company. He reported his concerns to the Deputy Commander for Clinical Services about the apparent improper relationship between the manufacturer and the three physicians at MAMC. When no action was taken, he reported the matter to a general officer who was the hospital commander. The general officer promised to look into the matter, but retired soon after the incident was reported and it appears no action was taken. l. During the period he was on temporary duty at Fort Irwin, the Chief of Medicine convened an informal advisory board to select a new Chief of Cardiology. The Chief of Medicine selected MAJ D despite the seniority of several other cardiologists in the department, including himself. m. He was promoted to COL on 21 June 2008 and assigned as Director of the Cardiac Catheterization Laboratory. As Director of the laboratory, he issued a policy memorandum, which attempted to level the field among the three vendors. He reviewed the budget and purchasing program for the laboratory and discovered additional evidence of what appeared to be improper, preferential sole-source purchases. He was scheduled to report his findings to a senior official and a civilian, but only the civilian attended the meeting. He was advised to report his concerns to the Western Regional Contracting Office, MAMC, and to the hospital Inspector General (IG). The retaliation started the same day he was notified of his 1-year deployment to Afghanistan as an infantry battalion surgeon in an O-3 position. Through his own efforts, he was accepted for a voluntary deployment as the Deputy Surgeon/Chief, Clinical Operations, for both the Multinational Corps - Iraq and Multinational Force - Ira q in an O-6 position. Although he accepted this position, his senior official took weeks before removing him from nomination for the battalion surgeon position. n. He was issued a written counseling statement regarding his submission of reports of supply contract irregularities and other issues. He completed a 3-week training rotation at Fort Irwin with the infantry battalion with which he was slated to be deployed. After he returned, he was released from this assignment and allowed to deploy to Iraq for 6 months as Deputy Surgeon and Chief of Clinical Operations for the Multinational Corps and Multinational Force. o. During his deployment, CID and the Department of Justice continued their investigation and his senior official attempted to give him an annual evaluation with negative comments without going through the "referred report" procedure. He was assigned as a medical staff officer to Western Regional Medical Command when he returned from deployment. He volunteered to provide clinical support to the MAMC Department of Cardiology as long as no one at the department or hospital was in his rating chain. He was then known as the whistleblower and was vulnerable to unfounded complaints being made against him if he returned to practice where his presence was unwelcomed by persons who were in a position to influence the outcome. p. The Chief of Cardiology (MAJ D) and the U.S. Attorney for the Western District of Washington filed a written plea agreement in the U.S. District Court on 12 January 2011 and the U.S. filed its sentencing memorandum on 4 October 2011. The sentencing report explained how the new and former Chiefs of Cardiology (MAJ D and COL S) became qualified to implant devices manufactured by the vendor. The sentencing report detailed the gratuities and direct payment MAJ D received from the vendor. The report also explained that the doctors, MAJ D and COL S, were qualified to implant the device at MAMC. They controlled whether a device would be recommended for a patient or which manufacturer's device that would be selected by MAMC patient. He is not mentioned in the sentencing report; the report specifically mentions that a whistleblower had brought the case to the attention of law enforcement. The manufacturer reached a civil settlement with the U.S. He didn't seek or receive any of the settlement amount. He received no commendation of any sort by any person in his chain of supervision or command for having had the moral courage to repeatedly report his reasonable suspicions of misconduct to different members of his chain of supervision. A letter, dated 20 April 2011, to his attorney from the Resident Agent-in-Charge of CID's Major Procurement Fraud Unit has been the government's only recognition of his contributions and selfless action in reporting procurement fraud. 16. On 27 July 2015, an advisory opinion was obtained from the Social Work Programs Manager, U.S. Army Medical Command (MEDCOM), Fort Sam Houston, TX who stated: a. This opinion relied on statements from a physician, Doctor H., dated 16 July 2014. Dr. H. based his statements on firsthand knowledge of the applicant's psychological condition at the time of his referral to the impaired provider program (MPHP) and knowledge of the Credentials Committee processes at MAMC at the time of referral. b. The advisory official concurred with Dr. H's statement that the applicant's referral to the MPHP was not in compliance with procedures outlined under the Military Mental Health Evaluation Protection Act. c. The applicant's request to have records of his referral expunged is not necessary. A search of the MEDCOM Quality Management provider database produced no record indicating the applicant enrolled in the MEDCOM's MPHP. His request for clinical privileges to practice medicine at an Army Medical Center cannot be accomplished centrally. This type of application must be made in relationship to a job offer at a specific MTF and the commander of that facility is the only person who can grant the requested privileges. 17. On 31 July 2015, a copy of the MEDCOM advisory opinion was forwarded to the applicant to allow him to provide comments. On 27 August 2015, counsel provided comments regarding the advisory opinion. Counsel stated: a. The applicant requests that the Board adopt the advisory opinion's conclusion that the applicant's referral to MPHP was in violation of the Military Mental health Evaluation Protection Act. However, the applicant disagrees with the advisory opinion's conclusion that expungement of his referral to the MPHP is not necessary because there is no record of the applicant ever having been enrolled in the MEDCOM MPHP. b. While the applicant is relieved that records of his unlawful referral are confined to those at MAMC, he believes that expungement is still appropriate and necessary. c. The applicant asked that the Credentials Committee Minutes on 7 August 2007 be corrected to expunge any reference to his referral to the MPHP, that any reference in any other Army records (to include his Provider Activity File and his Provider Credentials File) that refer to his involuntary referral to the MAMC MPHP similarly be redacted to delete such reference, that his MAMC MPHP records be expunged, and that documentation of such corrective action be provided to the applicant. The requested relief of expungement is necessary to correct the records at the local level which pertain to the improper referral by the MAMC Credentials Committee. d. The applicant is not requesting clinical privileges to practice medicine at any Army Medical Center. He is simply asking that the MAMC records pertaining to his hospital credentials at that facility delete any reference to a referral to the MPHP. 18. On 19 August 2015, an advisory opinion was obtained from the U.S. Army Assistant Surgeon General-Quality and Safety, Deputy Chief of Staff-Quality and Safety, Office of the Surgeon General (OTSG), who opined: a. The applicant was referred to the MPHP upon his application for privileges at MAMC in August 2007. This action was taken by the Credentials Committee after learning of a locally filed letter of reprimand issued to the applicant for unprofessional conduct. In addition, there was a question of the veracity of his reporting of medical malpractice cases. These factors contributed to the Commander's recommendation to enroll the applicant into the MPHP. b. The impaired provider program is governed by Chapter 11 of Army Regulation 40-68 (Rapid Action Revision (RAR) 22 May 2009). Paragraph 11-2b of this regulation requires every Medical Treatment Facility (MTF) to establish and maintain an Impaired Healthcare Personnel Program (IHPP) and sets out the supportive and rehabilitative purposes of the program. Paragraph 11-4 of the same regulation mandates reporting to the IHPP any person involved in the delivery of healthcare who is suspended for having a physical, psychiatric, or emotional problem that impairs (or could potentially impair)) clinical performance. The MAMC credentials committee properly referred the applicant to the MPHP based on suspicions raised by the nature of the applicant's unprofessional conduct and his lack of veracity when disclosing past medical malpractice claims. c. Army Regulation 40-68, paragraph 11-4, does not explicitly require a command-directed mental health evaluation, but does require the IHPP to request a statement of diagnosis, prognosis, and implications for clinical performance from a physician who has evaluated the enrolled provider. Paragraph 11-4b(1) states, "a mental health evaluation should be included in the assessment of the health status of…[the enrolled provider], as appropriate." If the mental health evaluation is achieved through a command-directed mental health evaluation, then paragraph 11-4a requires compliance with Department of Defense (DoD) Directive 6490.1, DoD Instruction 6490.4, and current U.S. Army Medical Command (MEDCOM) guidance. If a command-directed mental health evaluation was indicated in the applicant's enrollment in the MPHP, then the request and processing must be in accordance with the guidance cited. A command-directed mental health evaluation was apparently not required in this case. d. No adverse actions were taken with regard to the applicant's privileges nor were any reports made to regulatory or licensing agencies in the applicant's name. There is no record of enrollment in the MPHP in the applicant's official military record. In addition, there is no evidence to support that the applicant's decision to resign prior to attaining enough time in grade to retire as a COL was related to his referral to the MPHP. e. The applicant's credentials file in the Centralized Credentials Quality Assurance System (CCQAS) shows a single line notating his referral to the MPHP. There are no MPHP minutes or other records in CCQAS. The single line entry is factual and relates to the initial grant of privileges at MAMC, so it must be maintained as part of the applicant's CCQAS record. Credentials Committee Minutes and IHPP reports are maintained at the MTF and are not releasable except pursuant to an enumerated exception in Title 10, USC, Section 1102. The applicable exception is primarily for reports to licensing boards and the National Practitioner Data Bank. Since there was no adverse privileging action, the minutes and reports are not part of his official military record and they are not releasable. The records are part of a DoD Quality Assurance process and subject to statutorily-restricted access. f. Therefore, there is no basis to expunge these records. 19. The OTSG advisory opinion was forwarded to the applicant to allow him to provide comments. On 3 September 2015, counsel provided comments regarding the advisory opinion. Counsel states: a. The applicant strongly disagreed with the general officer's opinions, conclusions, and recommendations. b. The advisory official should have recused himself from providing an advisory opinion because he has a material conflict of interest in this matter. The advisory official was assigned as the Deputy Commander for Clinical Services at MAMC in 1997 as a COL. In 1998, the advisory official became the Principal Deputy Commander at MAMC where he was responsible for the daily operations of the medical center. In the advisory official's first position, he was responsible for the proper functioning of the Credential Committee, but he had no direct involvement in the Committee's actions regarding the applicant's credentialing. However, he had a vested interest in defending the Committee's actions. c. The advisory official was responsible for taking appropriate action upon receipt of credible information regarding fraud, waste, and abuse. On 14 May 2008, the applicant properly reported to the advisory official evidence of suspected improper relationships between certain medical supply vendors and two members of the Cardiology Department. The advisory official may have been involved in the various acts of retaliation against the applicant and supported the selection of MAJ D as Chief of the Cardiology Service over more senior qualified cardiologists, including the applicant. The advisory official had knowledge of the actions taken by the Chief of Medicine at MAMC in which the applicant was nominated to a 1-year deployment to Afghanistan as an Infantry Battalion Surgeon in an O-3 position immediately after the applicant had reported the suspected procurement fraud to the Western Regional Contracting Office. There are other documented examples in which the advisory official and principal members of his staff took retaliatory actions against the applicant. d. The advisory official was aware of, if not involved inm the various acts of retaliation that were taken against the applicant, Additional retaliatory actions were taken against the applicant in which the advisory official either was personally involved or was aware as evidence by having been copied on email messages. The advisory official's failure to disclose his conflict of interest is biased. e. The advisory official references a written reprimand the applicant received that had been locally filed; however, this reprimand was issued by the Commander at Fort Bliss prior to the applicant's reassignment to Fort Lewis and it involved an EO complaint against the applicant when he was at WBAMC. The written reprimand had nothing to do with the applicant's clinical skills and performance, had been filed in the applicant's local file (his MPRJ), and should not have been considered by anyone at Fort Lewis and MAMC, including the Credentials Committee. f. The advisory official's claim that the Credentials Committee questioned the applicant's "veracity" about reporting of medical malpractice cases is refuted by the minutes of the Credentials Committee. The minutes stated that the Committee members felt the applicant should had checked "Yes" on DA Form 5754 (Malpractice History and Clinical Privileges Questionnaire) due to a 15-6 investigation completed at WBAMC. The applicant checked the block "No" because the 15-6 investigation at WBAMC involved an EO complaint and had nothing to do with any malpractice history. The Credentials committee had no authority or justification to consider the 15-6 investigation of the EO complaint against the applicant at WBAMC or the reprimand he had received since it had nothing to do with the applicant's medical skills, judgment, or professional qualifications. g. In paragraph 2 of the advisory opinion, the advisory official argued that the Credentials Committee properly referred the applicant to the MAMC impaired provider program. It appears that the senior officer's letter mentioning the applicant's "good standing" at WBAMC and that the applicant's privileges had never been restricted or suspended were issues that were never brought to the attention of the Credentials Committee. There is no reference to the senior officer's letter in the Committee's minutes. It seems the MAMC Credentials Committee was not concerned too much about the EO complaint or the reprimand since the Committee unanimously recommended the applicant be granted privileges after changing his answer to the one question and enrolling in the MPHP. The objective evidence shows the MAMC Credentials Committee lacked any factual basis to recommend that the applicant be required to enroll in the MPHP. The minutes do not mention the applicant was suspected of having a physical, psychiatric or emotional problem that impaired or could impair his clinical performance. h. In paragraph 3 of the advisory opinion, the advisory official confused the issue. The advisory official didn't address whether the commander's action in approving the Credentials Committee recommendation that the applicant be enrolled in the MPHP constituted a command referral. Instead, he tried to argue that a command-directed involuntary enrollment to an impaired provider program was permissible if a command-directed mental health evaluation is not required. The advisory official was mistaken based on two reasons: (1) The advisory official failed to address the statement by COL H, Chief of Psychiatry who stated that there was no basis for the applicant's referral to MPHP, and (2) this was a command referral because the Commander, MAMC, approved the recommendation of the Credentials Committee that the applicant be enrolled in the impaired provider program. The Credentials Committee, the Commander, and the applicant's supervisors couldn't comply with any of the procedural requirements because they had no evidence to rely upon. The advisory official also allowed the applicant to remain involuntarily enrolled in the MHP until sometime on or after 26 October 2009. i. In the last sentence of paragraph 4 of the advisory opinion, the advisory official stated there was no evidence to support that the applicant's decision to resign prior to attaining enough time in grade to retire as a COL was related to his referral to the MPHP. This conclusion is beyond the scope of the advisory official's advisory opinion, is unsupported by any facts or references to authority, and is the only mention made by the advisory official of the applicant's claim of error. j. In paragraph 5 of the advisory opinion, the advisory official mentioned that in the applicant's credentials file in CCQAS, there is a notation regarding his referral to the MPHP. The applicant's referral to the MPHP lacked any justification or legal basis; the reference to this improper event in CCQAS also must be redacted. k. The relief requested by the applicant is important to his continued ability to practice medicine as a cardiologist in private practice. He should never have to fear that sometime in the future he may be asked about records that document his improper referral to the MPHP. 20. A review of the applicant's military personnel documents in the interactive Personnel Electronic Records Management System (iPERMS) failed to locate any records pertaining to his referral to MPHP. 21. Army Regulation 40-68 (Rapid Action Revision (RAR) 22 May 2009) prescribes policies, procedures, and responsibilities for the administration of the Clinical Quality Management Program. a. Paragraph 11-2b of this regulation requires every MTF to establish and maintain an IHPP and sets out the supportive and rehabilitative purposes of the program. b. Paragraph 11-4 of the same regulation mandates reporting to the IHPP any person involved in the delivery of healthcare who is suspended of having a physical, psychiatric, or emotional problem that impairs (or could potentially impair)) clinical performance. 22. Title 10, USC, Section 1370(a) states: a. Unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months. b. In order to be eligible for voluntary retirement under any provision of this title in a grade above MAJ or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years. c. An officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements specified shall be retired in the next lower grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months. DISCUSSION AND CONCLUSIONS: 1. With respect to expunging all records pertaining to his referral to the Madigan MPHP: a. The applicant was referred to the MPHP upon his application for privileges at MAMC in August 2007. This action was taken by the Credentials Committee after learning of a locally filed letter of reprimand issued to the applicant for unprofessional conduct. In addition, there was a question of the veracity of his reporting of medical malpractice cases. These factors contributed to the Commander's recommendation to enroll the applicant into the MPHP. b. Chapter 11 of Army Regulation 40-68 mandates reporting to the IHPP any person involved in the delivery of healthcare who is suspended of having a physical, psychiatric, or emotional problem that impairs (or could potentially impair)) clinical performance. The MAMC credentials committee properly referred the applicant to the MPHP based on suspicions raised by the nature of the applicant's unprofessional conduct and his lack of veracity when disclosing past medical malpractice claims. c. Additionally, paragraph 11-4 does not explicitly require a command-directed mental health evaluation, but does require the IHPP to request a statement of diagnosis, prognosis, and implications for clinical performance from a physician who has evaluated the enrolled provider. A command-directed mental health evaluation was not required in the applicant’s case. d. No adverse privileging actions were taken with regard to the applicant's privileges nor were any reports made to any regulatory or licensing agencies in the applicant's name. There is no record of enrollment in the MPHP in the applicant's official military record. In addition, there is no evidence to support that the applicant's decision to resign prior to attaining enough time in grade to retire as a COL was related to his referral to the MPHP. e. The applicant's credentials file in CCQAS shows a single line notating his referral to the MPHP. There are no MPHP minutes or other records in CCQAS. The single line entry is factual and relates to the initial grant of privileges at MAMC, so it must be maintained as part of the applicant's CCQAS record. Credentials Committee Minutes and IHPP reports are maintained at the MTF and are not releasable except pursuant to an enumerated exception in Title 10, USC, Section 1102. The applicable exception is primarily for reports to licensing boards and the National Practitioner Data Bank. Since there was no adverse privileging action, the minutes and reports are not part of his official military record and they are not releasable. The records are part of a DoD Quality Assurance process and subject to statutorily-restricted access. 2. With respect to the retirement grade: a. By law, in order to be eligible for retirement as a COL, the applicant would have to have served for at least 3 years in that grade. This requirement may be reduced to no less than 2 years as authorized by the Secretary of Defense. Only the President can waive the 2-year minimum and only in cases of extreme hardship or unusual circumstances. Officers who do not meet the time in grade minimum in the grade held at the time of retirement are retired in the next-lower grade in which they satisfactorily served at least 6 months. b. The applicant was promoted to COL on 21 June 2008. He retired on 30 November 2010. The total TIG between promotion and retirement is less than 3 years. He does not meet statutory requirements to retire in the higher grade. 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) AR20140014235 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140014235 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1