SAMA-RB 7 November 2017 MEMORANDUM FOR Office of the Surgeon General, ATTN: DASG-HSZ-PAD, 7700 Arlington Blvd., Suite 3SW328B, Falls Church, VA 22042 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20150019028 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 8 August 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be sent to the Office of the Surgeon General for review and reconsideration to remove the revocation of the applicant's clinical privileges and any associated National Practitioners Data Bank annotations. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 7 March 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20150019028 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20150019028 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20150019028 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, in effect, correction of his records by reversing/voiding the U.S. Army Medical Command (MEDCOM) Appeal Board's decision to revoke his clinical privileges, notification of the National Practitioners Data Bank (NPDB) and each State of licensure of the U.S. Army's correction of his credentialing, and just compensation as a result of the unjust taking of his clinical privileges. The applicant also requests personal appearance before the Board. 2. The applicant states new evidence renders the privilege revocation decision erroneous and unjust because the decision: * was contrary to the law * violated due process * violated Article 13, Uniform Code of Military Justice (UCMJ) * was an unconstitutional taking * was arbitrary, capricious, and an abuse of discretion a. The applicant states he served honorably as a Reserve medical officer for more than 25 years in both the continental United States and overseas. Since publishing a paper on suicide prevention in 1981, he dedicated his career to serving as an expert in suicide prevention. In 2004, his suicide prevention course was used by health services staff in North Atlantic Treaty Organization (NATO) combat zones. b. He states the decision to revoke his clinical privileges at the Kosovo Army Health Clinic in 2004 was based on materially prejudicial error that has resulted in a decades-long injustice that has brought financial hardship and shame to him and his family. He adds that the nature of the accusation (i.e., falsifying a letter of support) was unrelated to patient care. c. He also states that Doctor (Dr.) Colonel (COL) Kimberly L. K___, Deputy, Clinical Performance Assurance (MEDCOM), had knowledge of new information directly contradicting the Kosovo revocation, but thwarted his efforts for review of his clinical privileges based on personal animus. Specifically, she reported to an attorney at the Department of Veterans Affairs (VA) that his file "had no new information to present." She also falsely represented that she had no evidence to push forward to The Surgeon General (TSG) as a basis for reconsideration of the revocation of his privileges. He has pursued efforts for relief since October 2004. In addition, 18 members of Congress have expressed their concerns regarding the decision. d. He adds that he has three doctoral degrees. Additionally, he has work experience at Harvard, Yale, and Columbia universities, and also at the National Institute of Health, National Naval Medical Center, and Walter Reed Army Medical Center (WRAMC). e. He concludes by stating that it has been more than 12 years since the revocation of his clinical privileges and he is now 76 years of age. The sooner the Board makes a decision, the sooner his name will be cleared from baseless allegations and he can resume serving our Nation's sons and daughters. 3. The applicant provides a self-authored statement (summarized above) and 33 enclosures (as identified on his application). COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, correction of the applicant's records by reversing/ voiding the MEDCOM Appeal Board's decision to revoke his clinical privileges; notification of the NPDB and each state of licensure of the U.S. Army's correction of his credentialing; and just compensation as a result of the unjust taking of the applicant' clinical privileges. Counsel also requests personal appearance before the Board, along with the applicant. 2. Counsel states the applicant is a medically trained psychiatrist. On 17 May 2006, two months after he retired from the U.S. Army, an Appeal Board made a determination to revoke his clinical privileges. The basis for the decision was that the applicant edited a letter of support from a colleague (Dr. (COL) David M___) and that he pressured a senior noncommissioned officer (NCO) (Sergeant (SGT) Gary W___) to provide a letter of support. However, neither of these issues are connected with patient care. a. Counsel located Dr. (COL) M___, confronted him with the issue, and he agreed to review the relevant material. He provided an affidavit that repudiates the Army's conclusion. However, MEDCOM refused to reengage on the issue of the applicant's adverse credentialing action. Counsel states that the Army erred in this case and the Board should grant relief. b. Counsel offers information pertaining to the applicant's Reserve military service and professional career. He also provides highlights of the applicant's significant accomplishments. He notes that the applicant was ordered to active duty on 22 July 2004. Prior to his deployment, the Army reviewed the applicant's credentials, employment, qualifications, and licensing record. Patient complaints were also investigated and determined to have no substance or merit. There were no complaints involving issues of quality of care provided. c. On 28 August 2004, Brigadier General (BG) Carla H___-B___ instructed COL Stanley F___, Commander, Task Force (TF) Medical Falcon X, to relieve the applicant of his duties as Officer in Charge (OIC), Combat Stress Control Program (CSCP). Counsel states the applicant's TF was independent of TF Medical Falcon X. During a meeting, the applicant explained to the Commanding General (CG), NATO, what had happened to him. He was subsequently counseled by BG H___-B___ and COL F___ about the conversation with the CG, NATO. The applicant filed a complaint with the Inspector General (IG). The IG determined the counseling was improper. COL Doreen L___ (MEDCOM) then instructed the applicant's supervisors to find problems in his performance. d. The applicant began preparing an Article 138 complaint to address COL F___'s retaliatory actions for the applicant filing an IG complaint. He obtained letters of support from six senior officials and submitted his Article 138 complaint on 16 October 2004. e. On 8 November 2004, based upon a confidential command referral and unbeknownst to the applicant (who was stationed in Kosovo), the Landstuhl Regional Medical Center (LRMC) Credentialing Committee (CC) convened to review allegations of fraud, unethical misconduct, and unprofessional conduct on the part of the applicant. The LRMC CC recommended placing the applicant's privileges in abeyance for 15 days pending further investigation. f. On 11 November 2004, the applicant was relieved of duties, but he was not provided notice/documents related to an investigation. He was reassigned to Germany on 24 November 2004, held in conditions tantamount to confinement, and his lawyer was unable to have his confinement reviewed by a military judge. His access to communicate with his lawyer was restricted during this time. When he was allowed to see his attorney, the attorney was required to sign a ""transfer of inmate" form to take "custody and control" of the applicant. He had to remain in a building that was undergoing reconstruction unless he was escorted by military police. g. Counsel states the attorney later discovered that the command searched the applicant's residence and personal effects (including unopened mail) without authorization or consent. He adds this shows an assumption was made that the applicant would not be returning to Camp Bondsteel (Kosovo) and, therefore, an inaccurate assumption that he would not prevail at the LRMC CC. h. The LRMC CC discovered and seized unredacted letters in support of the applicant (that were from Dr. (COL) M___, SGT W____, and others). Military attorneys working with the applicant redacted all personal identifiable information (PII) in the letters. Counsel states the command then pressured the authors of the letters to retract their statements and the individuals were then removed from the command in a "compassionate leave" status. i. On 6 January 2005, the applicant was given notice that the LRMC CC would convene on 18 January 2005. At that time, his third attorney in two months was appointed as his counsel. His attorney requested government materials related to the case and an extension to prepare for the hearing. Both requests were denied. (1) The command accused the applicant of pressuring an associate (SGT W____) to write a letter of support on his behalf. The allegation was backed by a signed statement provided by SGT W____. However, a U.S. Army magistrate reviewed the letters of Dr. (COL) M____ and SGT W____ and opined that they were pressured by the command to sign the retractions. (a) The command accused Dr. (COL) M___ of unauthorized use of government stationary. He made a statement that he did not put his letter of support on "government stationary." (b) The command then accused the applicant of falsifying Dr. (COL) M___'s statement by placing it on the government stationary. (c) The applicant was not afforded the opportunity to question Dr. (COL) M___ or SGT W___ at the hearing. (He notes that they were not present for questioning to any reviewing bodies.) (2) On 18 January 2005, the LRMC CC recommended revocation of the applicant's practicing privileges. j. In February 2005, the applicant was transferred to WRAMC, Washington, DC, where he received treatment for injuries he had sustained. The applicant disclosed the actions/events that had occurred and the brigade commander ordered a mental health evaluation. Lieutenant Commander (LCDR) Gerald D___, issued his report verifying the applicant's report of mistreatment, confirming the applicant did not suffer from delusions or dementia, and diagnosed him with "narcissistic personality traits." COL Ronda L. C___, Commander, LRMC, pressured LCDR D___ to change his original diagnosis of the applicant from "narcissistic personality traits" to "personality disorder, not otherwise specified (NOS) with narcissistic and passive aggressive traits." He adds the applicant was found psychiatrically fit for duty. k. On 15 November 2005, BG H___-B___ accepted the LRMC CC's recommendation to revoke the applicant's clinical privileges. The applicant appealed the decision to the MEDCOM Appeal Board. l. He retired from military service on 31 March 2006. m. On 17 May 2006, the MEDCOM Appeal Board affirmed the LRMC commander's decision. The basis was: (1) the applicant edited a letter of support he solicited from Dr. (COL) M___ and that the letter submitted was not Dr. (COL) M___'s letter; and (2) he pressured a senior NCO to provide a letter of support. n. The U.S. Army submitted the applicant's privileges revocation to the NPDB and assigned a description for the revocation of his clinical privileges as "unprofessional conduct" and "privileges revoked for significant unprofessional conduct for falsifying a letter of recommendation from a peer physician and coercing an enlisted soldier to write a letter of recommendation that was subsequently used in an official government complaint." o. The applicant has made persistent efforts to seek relief from the revocation of his clinical privileges. Several members of Congress wrote to the Army expressing concern that the action was "improper and possibly illegal." (1) In October 2013, Dr. (COL) M___ provided a sworn affidavit to clarify the matter. (2) Despite knowledge of new information, Dr. (COL) K___ (MEDCOM) reported to the VA that the file had no new information. (3) The Secretary of the Department of Health and Human Services (HHS) was asked to review the report. The NPDB declined to review the Army's report. p. Counsel provides a summary of relevant statutes, directives, and regulations in support of the applicant's petition. He references: * Title 10, United States Code (USC), section 1552 * Title 42, USC, section 11112 * Article 13, UCMJ * Article 138, UCMJ * Department of Defense Directive (DODD) 1332.41 (Boards for Correction of Military Records and Discharge Review Boards * Army Regulation (AR) 15-185 (Army Board for Correction of Military Records (ABCMR)) * AR 40-68 (Clinical Quality Management) (1) Counsel states the Fifth Amendment to the U.S. Constitution forbids the federal government to deprive a person of liberty or property without due process of law. (2) Counsel asserts clinical staff privileges are a property interest and that parties whose rights are affected are entitled to be notified and heard. He notes that inverse condemnation is an action where the property owner undertakes legal proceedings to have a government action declared a taking and to recover just compensation due under the Fifth Amendment. He adds, the applicant's property was taken without just compensation. q. Counsel offers a discussion of the following issues: * new evidence renders the privilege revocation decision erroneous and unjust based upon – * Dr. (COL) M___'s affidavit, dated 21 October 2013 * SGT W___ never retracted his favorable statements * Dr. Howard F. D___ opined that the two sworn statements were not coerced by the applicant or altered by some other means * the decision to revoke the applicant's clinical privileges was contrary to law – * the action was not based upon a concern of the quality of care * the allegations do not interfere with the health or safety of patients * the adverse clinical privileges action violated law, policy, and procedures, including – * the applicant's right to due process * an unconstitutional taking of his clinical privileges * unlawful confinement (Article 13, UCMJ) * the action was arbitrary, capricious, and an abuse of discretion r. Counsel concludes that relief should be granted by correcting the applicant's records to show: * his clinical privileges were not revoked * awarding him just compensation for violation of his rights * notifying NPDB of the correction concerning his credentialing * any further relief the Board deems just and equitable s. Counsel adds that Dr. COL Kimberly L. K___, MD, should be admonished for her actions relating to this action. 3. Counsel provides a statement (summarized above) with reference to the 33 enclosures provided in support of the application. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer in the rank of captain in the Medical Corps (MC) on 7 March 1981. a. He was awarded specialties 60W (Psychiatrist) and 62B (Field Surgeon). b. He was ordered to active duty and served in support of Operation Desert Shield/Storm from February 1991 to June 1991. c. He was promoted to COL (O-6) on 13 November 1995. 2. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was ordered to active duty in support of Operations Allied Force/Joint Guardian (Yugoslav/Kosovo) on 22 July 2004, honorably released from active duty on 21 March 2006 based on completion of required active service, and transferred to the 2290th U.S. Army Reserve (USAR) Hospital, Washington, DC. 3. Headquarters, WRAMC, Washington, DC, Orders 080-0003, dated 31 March 2006, released him from assignment on 21 March 2006 and transferred him to the 2290th U.S. Army Hospital, Washington, DC. 4. Headquarters, Army Reserve Medical Command, Pinellas Park, FL, Orders 06-089-00035, dated 30 March 2006, released the applicant from assignment on 31 March 2006 and transferred him to the USAR Control Group (Retired Reserve) effective 1 April 2006. 5. A review of the applicant's Army Military Human Resource Record (AMHRR) and Official Military Personnel File (OMPF) failed to reveal evidence of any documentation pertaining to the adverse privileging action that is under review. This review also failed to reveal a copy of a General Officer Memorandum of Record related to the applicant's unprofessional misconduct. 6. In support of this request the applicant and his counsel provide 33 enclosures that include, in pertinent part, the following: a. Two letters (dated 6 October 2004) and the affidavit of Dr. (COL) M___, dated 21 October 2013, submitted after a comparison of the two letters. The affidavit shows, in pertinent part: * Paragraph 5: "In your correspondence you state the following: 'COL [Applicant] reports that you wrote a letter for him to sign, he extensively edited it and the final product was not the letter that he had approved'." * Paragraph 6. "This statement above in paragraph 5 is misleading. The letter was written on a word processor by me with input from Dr. [Applicant]. The contents of the letter pertaining to Dr. [Applicant] were not edited or altered after I had signed it." b. Documents from his AMHRR/OMPF, including copies of his professional degrees and certificates, appointment documents, academic and letter reports, assignment orders, awards, and separation documents. c. Letters from applicant's counsel requesting releasable records under the Freedom of Information Act pertaining to an AR 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation conducted on the applicant in 2004 and an Article 138 complaint filed by the applicant on 16 October 2014. On 27 March 2014, the Chief, Correspondence Management Division, Executive Service Division, Office of Freedom of Information, Washington, DC, advised counsel that the agency had conducted their search without finding any responsive records. d. Orders that show the applicant was ordered to active duty in support of Operation Joint Guardian on 22 July 2004 for a period of 270 days. e. Two Headquarters, TF Medical Falcon X, Camp Bondsteel, Kosovo, memoranda, dated 16 October 2004, with enclosures, that show the applicant forwarded to Major General (MG) Bennie E. W___, CG, 21st Theater Support Command, Kaiserslautern, Germany, a Complaint of Wrong (Article 138, UCMJ), along with COL Stanley L.K. F___'s Response to his Request for Redress. The applicant provided details of the events leading to and since being wronged by COL F___ on 28 August 2004. The issue centered on whether or not the applicant was appointed as OIC, CSCP. He also offered events/reasons related to him being wronged and summarized administrative actions he had taken to address the matter (previously summarized in the applicant's and his counsel statements to this Board). He provided supporting documents that included three letters of recommendation; he redacted the PII to protect the individuals from reprisal. f. William Beaumont Army Medical Center, El Paso, TX, memorandum, dated 14 June 2004, that shows a review of the applicant's qualifications and the licensing issues determined that he should have full credentials. Also an email message, dated 18 June 2004, that shows sporadic complaints over the last six months that were investigated with no substance/merit identified. g. Multi-National Brigade (East), Kosovo Force, Sixth Army (KFOR 6A), Camp Bondsteel, memorandum, dated 5 October 2004, that shows LTC Jane L___, IG, KFOR 6A, received confirmation (on 30 September 2004) from COL Stanley F___ and LTC Robert R___ that the Developmental Counseling Form, dated 4 September 2004, had been revoked and permanently destroyed through shredding. h. Letters of appreciation and commendation, certificates, and newspaper articles that attest to the applicant's professionalism (1990 – 2004). i. A redacted email from COL Doreen M. L___, Deputy Chief, Quality Management, MEDCOM, undated, pertaining to the applicant, that shows the license issue was not patient care related. She wrote that to take action, documentation was needed that there were competence issues that were significant enough to warrant and support an adverse privileging action. She cautioned against sharing email messages with the applicant. j. Letters submitted in support of the applicant's Article 138 complaint (dated 22 January 2004 to 10 October 2004, and one dated 17 February 2006). k. LRMC memorandum, dated 8 November 2004, subject: Minutes of Ad Hoc CC Meeting. The purpose was to review concerns regarding the allegation of fraud, unethical misconduct, and unprofessional conduct on the part of the applicant. It shows: (1) The applicant's credentials had been reviewed previously and he was recommended for deployment to Kosovo (11 August to 30 November 2004). (2) Immediately following his arrival in Kosovo, the LRMC Credentials Office received requests from Dr. James M___ to initiate further verification of reference letters. This was based on allegations that three letters were not written by the individuals who signed them. (3) The CC voted to place the applicant's privileges in abeyance for 15 days pending further investigation. (If additional time was required, it could be requested and permitted by regulation.) (4) On 9 November 2004, COL Ronda L. C___, Commander, LRMC, approved the LRMC CC's recommendation. l. An email message from CPT Sue L___ (then, applicant's defense counsel) to COL Alan D__, dated 11 November 2004, that shows she informed COL D___ the applicant informed her that COL F__ relieved him of his duties (that same day). She also stated the applicant was not provided written notice prior to his relief nor any information pertaining to an investigation. m. Affidavit of CPT Mary H. R___, dated 15 April 2005 (then, applicant's defense counsel), that shows she offered information pertaining to the condition's the applicant was held in (from 24 November until 17 December 2004) that were (in her opinion) tantamount to confinement. n. An email message from CPT R___, dated 12 January 2005, to LTC Jeffrey F__, subject: Travel, that shows CPT R___ stated the applicant had been represented by "a number of attorneys before [her] for various reasons." She was a Reserve officer not on active duty stationed in Schweinfurt, Germany, and travel was an issue in the applicant's case. She noted, if the command did not make arrangements for the applicant to travel from Heidelberg to meet with her, he will have been denied adequate representation by counsel. CPT R___ also conveyed this information to COL Rhonda C___, Commander, LRMC, in a memorandum, dated 15 January 2005. The memorandum shows she listed specific documentation that had been previously requested, but not received by the applicant or counsel. o. An email message from Major (MAJ) Philip M___ (then, applicant's defense counsel) to the applicant, dated 10 December 2004, that shows MAJ M___ commented on Dr. (COL) M__'s (ambiguous) statement and SGT W__'s statement (i.e., the tone was such that he was under pressure when he made the statement). He advised the applicant that it may be time for him to reconsider his tactic (i.e., going on offense versus staying on defense). p. An email message from CPT R___ to COL Alan D___, dated 12 December 2004, subject: Objection to AR 15-6 Investigation, that shows COL D___ ordered an inventory of the applicant's personal possessions without prior notification and without giving the applicant the opportunity to have a witness present. q. A report by Howard F. D___, MD, General Psychiatry (undated; after notification had been sent to NPDB in 2006), in which he evaluated the statements of Dr. (COL) M__ and SGT W___. He concluded that SGT W__'s several retraction statements do not support a finding of obvious "coercion" and that they point to command influence. He also concluded that Dr. (COL) M__'s selective retraction of issues pointed to command influence. r. DA Form 2173 (Statement of Medical Examination and Duty Status), that shows the applicant sustained a hernia (in line of duty) while on active duty orders from July 2004 to January 2005. s. Documentation pertaining mental health evaluations of the applicant. (1) On 22 December 2004, Hans-Peter V___ informed Mr. Gary S___, Ph.D, that he had reviewed a 7 December 2004 memorandum that Mr. S__ had written diagnosing the applicant with a Narcissistic Personality Disorder. He stated that he was not able to follow his argumentation. He concluded the applicant did not suffer from any personality disorder since he did not meet the respective diagnostic items. (2) On 3 May 2005, the applicant was evaluated by LCDR G.F. D___ and his diagnoses were: * Axis I: No diagnosis * Axis II: Narcissistic Personality Traits * Axis III: Hypercholesterolemia (3) On 31 May 2005, the applicant was again evaluated by LCDR G.F. D___ and his diagnoses were: * Axis I: No diagnosis * Axis II: Personality Disorder, NOS with Narcissistic and Passive * Aggressive Traits * Axis III: Hypercholesterolemia, abdominal hernia, completion of cardiovascular work-up pending (4) On 1 June 2005, LCDR G.F. D___ explained the process that caused him to revise his initial report. (5) On 21 June 2005, CPT Jason A. B___, Legal Assistance Attorney, petitioned the Department of the Army IG, on behalf of the applicant, stating he objected to the mental health evaluation and its findings. t. U.S. Army Europe Regional Medical Center (RMC), memorandum, dated 15 November 2005, subject: Action on CC Recommendations, that shows BG H__-R__ explained the events and circumstances following the CC Hearing. She also stated that it was determined (in consultation with legal authorities), as the next higher commander (and the only available commander without a conflict of interest), that she should act upon the CC's recommendation (vice the Medical Treatment Facility (MTF) commander). After review of the record, BG H__-R__ decided to revoke the applicant's clinical privileges. The applicant was notified of the decision and informed that he had 10 days to submit an appeal/request for reconsideration. u. On 17 May 2006, TSG notified the applicant that the MEDCOM Appeals Committee met on 16 March 2006 to consider his appeal of the action taken by the Commander European RMC to revoke the applicant's clinical privileges for unprofessional conduct. TSG determined the actions taken regarding the applicant's clinical privileges were proper. TSG advised the applicant that this was the final action in the appeals process and that the action would be reported to the NPDB, The Federation of State Medical Boards, and known states of licensure. v. NPDB, Adverse Action Report – Revocation of Clinical Privileges, dated 19 May 2006, that shows the applicant's privileges were revoked for significant unprofessional conduct for falsifying a letter of recommendation from a peer physician and coercing an enlisted Soldier to write a letter of recommendation that were subsequently used in an official government complaint. The action was taken on 17 May 2006, it was permanent, and it was effective 17 May 2006. w. A letter to the Secretary of Defense, under the signatures of four U.S. Senators and two Members of Congress, dated 16 December 2008, along with seven letters in support of the applicant, requesting disclosure of the results of the applicant's case. x. The Federal Practice Group Worldwide Service letter, dated 2 December 2013, from applicant's counsel notifying MEDCOM Quality Management Division he had been retained to assist the applicant in his privilege revocation matter. Counsel provided the sworn affidavit of Dr. (COL) M___ indicating the letter in question was his letter without alteration. Counsel also asserted deprivation of the applicant's due process rights. y. Headquarters, MEDCOM memorandum, dated 10 December 2013, that shows Dr. (COL) Kimberly L. K___, Deputy, Clinical Performance Assurance, informed Maya S___, Juris Doctorate, VA Regional Office, Los Angeles, CA, that the applicant's clinical privileges were revoked by the Army Surgeon General in May 2006. She noted she was contacted by the applicant in August/ September 2012, he asked her to relook his file, and he also requested that she ask TSG to remove the entry from NPDB. She was not familiar with his case and agreed to read the documents he submitted, as well as the case file. She noted that the applicant had completed the appeal process and this was a review to determine if he had new information. Upon review, she found he had no new information to present and, after consultation with Army legal authorities, the applicant was advised to return to the NPDB dispute resolution process as the Army considered the matter closed. z. The Federal Practice Group Worldwide Service letter, dated 8 April 2015, that shows applicant's counsel requested the NPDB Dispute Resolution Manager to consider the additional documents that he was providing (listed as enclosures to the letter) in making a determination in the applicant's case. aa. Department of HHS, Bureau of Health Workforce, Rockville, MD, letter, dated 7 May 2015, that notified the applicant after review of the information provided and the record presented to that office, the Secretary HHS found, "There is no basis to conclude that the Report should not have been filed in the NPDB or that the Report is not accurate. Your request that the Report be voided is denied. The Report will remain in the NPDB." (1) The letter provided a summary of the evidence the applicant provided. It also noted that HHS had requested additional information from the Army concerning the report on 24 February 2015. On 9 April 2015, the Army provided a copy of a 28 November 2012 letter that had been sent to the applicant. On 24 April 2015, HHS provided the letter to the applicant. (2) It also referenced (and provided) a Memorandum of Understanding (MOU) pertaining to the Army's reporting procedures and requirements regarding the NPDB. The applicant was informed that the MOU, along with policies and procedures of the Department of Defense, supersede the NPDB reporting requirements. He was also informed, "The Army has the sole authority to determine which individuals are reportable." bb. Headquarters, MEDCOM memorandum, dated 28 November 2012, that shows COL Kimberly L. K___, MC, Quality Management Division, informed the applicant that she had reviewed the documents he submitted, as well as the file maintained at MEDCOM. She provided a brief summary of some of the evidence (i.e., the two sworn statements). She added, "There is no new evidence to refute these sworn statements in the documents that you have provided. Therefore, I have no evidence that I can push forward to TSG as a basis for reconsideration of the revocation of your privileges." She added that MEDCOM and the Army could offer him no further assistance the matter. cc. Two letters from Stephen N. X___, MD, Brigadier General (U.S. Army, Retired), dated 2 October 2011 (to TSG) and 19 December 2012 (to the New Jersey Division of Licensing Board of Medicine). In his 2 October letter, he asserted that the Army's adverse action against the applicant did not comply with the accepted procedures in AMEDD and are not supported by the record. In his 19 December letter, he acknowledged the adverse action against the applicant is an analogous to civilian medicine and specific to that (military) MTF. dd. Declaration by Frank J. S___, Attorney at Law (former U.S. Air Force, Judge Advocate), dated 21 October 2006, who represented the applicant in his credentialing dispute with the U.S. Army. The declaration was provided in support of the applicant. He provided a summary of events related to the processing of the applicant's privileges action, along with his conclusion that the revocation of the applicant's practicing privileges at LMRC was procedurally improper and materially groundless. ee. U.S. Trial Defense Services, Camp Bondsteel, Kosovo, memorandum, dated 15 December 2004, subject: Rebuttal to Letter of Reprimand pertaining to Captain Pedro J. C___, authored by CPT Susan J. L___, Senior Defense Counsel and addressed to MJ Bennie H. W___, 21st Theater Support Command. The rebuttal shows, in pertinent part, "COL F___ [Commander, TF Falcon] has a history of embarking on campaigns against soldiers who have crossed him. It also shows, "As you know, COL F___ is retaliating against COL [Applicant] for calling him on his vindictive behavior." (A review of CPT C___'s military personnel record shows the Letter of Rreprimand and attachments (including his rebuttal) was filed in the performance folder of his record and, upon petition, it was transferred to the restricted folder on 15 December 2009.) ff. Applicant's Power of Attorney, dated 19 October 2015, designating The Federal Practice Group Worldwide Service to serve as his attorneys in all matters related to the action under review. 7. In the processing of this case, an advisory opinion was obtained from the Administrative Law Attorney, MEDCOM, Fort Sam Houston, TX, dated 25 January 2017. a. The MEDCOM advisory official noted that the applicant's petition asserted numerous arguments and attachments for the Board to consider and to grant relief; however, the advisory opinion deals only with the Quality Management (QM) process by which the applicant's clinical privileges were revoked. b. After a review of the proceedings and applicant's assertions, the advisory official found that the records comply with Department of Defense (DoD) 6025.13-R (Military Health System (MHS) Clinical Quality Assurance (CQA) Program Regulation), dated 11 June 2004, and Army Regulation (AR) 40-68 (Clinical Quality Management), dated 26 February 2004. Consequently, the U.S. Army MEDCOM recommends denial of the requested relief. c. The advisory opinion addressed specific issues raised by the applicant. A summary of the advisory official's comments is provided below: (1) Issue: New evidence that renders the revocation decision erroneous and unjust. The affidavit the applicant submitted by Dr. (COL) David M____, U.S. Army (Retired), dated 21 October 2013, was previously reviewed by MEDCOM in December 2013. At that time, it was determined that the affidavit does not negate all bases upon which TSG made the decision to report the applicant's privilege revocation to NPDB nor does it contradict all of Dr. (COL) M___'s original sworn statement. Additionally, there is independent, still unrefuted evidence upon which the revocation decision was based. (2) Issue: Decision to revoke privileges was contrary to law because it was not based on the quality of care he provided to patients. The regulatory requirement allows for adverse privileging action for "any other cause affecting the safety of patients or others" which expressly includes "significant unprofessional conduct" (see AR 40-68, paragraphs 10-2b and 10-4b). She stated, "The recommendation of the Appeal Board, the determination by TSG, and the NPDP reporting language refer to the [applicant's] privileges being revoked for significant unprofessional conduct resulting from him falsifying a letter from a peer physician and coercing an enlisted Soldier medic to write a letter, and then using the documents in an official Government complaint." This conduct satisfies the regulatory requirement for a report. Additionally, the applicant received a General Officer Memorandum of Reprimand for this unprofessional conduct, which provides an independent basis for the report under AR 40-68, paragraph 10-15a, and Appendix Ii. (3) Issue: The decision violated his due process rights. The assertion is without merit. The applicant's due process rights were met throughout the QM review process; required notices were provided to the applicant; he had the assistance of counsel; and he was given the opportunity to appear, present evidence, and answer questions at the Peer Review and Credentialing Hearing Board. The QM process was properly conducted at LRMC and the Europe Regional Medical Commander was an appropriate authority to revoke the applicant's privileges. Additionally, the case was subjected to legal review prior to TSG making a final reporting determination. (4) Issue: The decision violated Article 13, UCMJ. Article 13 is a provision that prohibits punishment before trial. There is no evidence the applicant was held for trial or that he was punished before trial. Additionally, this assertion is not relevant to the QM process, which is separate and distinct from any military justice process. (5) Issue: The decision to revoke his privileges was an unconstitutional taking. The 5th Amendment to the U.S. Constitution provides that no person shall be deprived of property without due process of law. (The issue of violation of his due process was addressed in paragraph 7c(3), above.) The advisory official states the applicant's claim that he was deprived of his property interest without due process is without merit. (6) Issue: The decision to revoke his privileges was arbitrary, capricious, and an abuse of discretion. The applicant's assertion is without merit. There were multiple levels of review by objective medical professionals who were not members of the leadership. The process complied with regulatory requirements, which involved comprehensive review of all the evidence and panel votes at multiple junctures. There is specific evidence that the Hearing Board decision was reached by a properly comprised panel that considered the complete record, including evidence submitted by the applicant. The Hearing Board found sufficient evidence and supportable grounds for the recommended revocation of the applicant's privileges. d. The advisory official cites Public Law, USC, and both DoD and Army regulatory guidance that requires TSG to report adverse privileging actions against a provider to the NPDB and The Federation of State Medical Boards and/or other appropriate authorities. (1) Information pertaining to actions the MTF commander takes against a provider's privileges based on performance suspected or deemed not to be in the best interest of quality patient care (governed by AR 40-68) was summarized. The advisory official stated that all of the requirements were followed in the applicant's case. (2) The MTF commander is also required to review the hearing record (including credentials committee/peer review panel findings and recommendations and any input from the provider in question) and make a decision regarding the provider's privileges. The findings and recommendations are advisory only and not binding on the MTF commander. If the MTF commander denies the request for reconsideration (in whole or in part), the action is endorsed to TSG through the Commander, Regional Medical Command as an appeal. All of these requirements were followed in this case. (3) TSG is the final appellate authority for denying, suspending, restricting, reducing, or revoking clinical privileges. e. The Secretary of the Army is authorized by Title 10, USC, section 1552, to correct errors of injustice in military records. AR 15-185 implements this statute. (1) The MEDCOM advisory official opines that the health care providers acted in good faith and in compliance with the regulatory requirements during the processing of the applicant's QM case, and in the ultimate recommendation for revocation of privileges. (2) Based on the review, MEDCOM found no evidence of error or injustice that would warrant reversal of TSG's decision to revoke the applicant's privileges, which led to the NPDB report. f. The MEDCOM advisory official notes that the ABCMR cannot directly order the removal of information from the NPDP and/or other reporting agencies since these are not records under the control of the Secretary of the Army. The ABCMR could inform the agencies that the original notification was in error. However, based on the MEDCOM review of the facts in this case, the report approved by TSG was an accurate statement. 8. On 9 May 2017, the applicant and his counsel were provided a copy of the advisory opinion to allow them the opportunity to submit comments or a rebuttal. 9. On 24 May 2017, applicant's counsel provided a response. He stated, contrary to the information provided by the MEDCOM advisory official, the decision to revoke the applicant's clinical privileges was materially prejudicial error and resulted in a decades-long injustice to the applicant. He also stated the advisory opinion overlooked key documentation and argument that has not been disputed. a. A summary of the counsel's rebuttal shows that it addresses the following: (1) AR 40-68 requires a revocation of clinical privileges to be related to the health or safety of patients. Paragraph 10-6 provides that only when a "provider's conduct, condition, or performance requires action to protect the health or safety of patients" will his clinical privileges be held in abeyance or suspended. The allegations against the applicant were wholly independent to the health or safety of patients. The advisory opinion – * overlooks that the "significant unprofessional conduct" cause must effect the safety of patients or others * provides no explanation as to how the applicant's privileges were revoked due to patient care (2) He noted that neither the Appeal Board nor the Opinion presented any evidence or argument that the applicant's alleged letters of recommendation impacted the safety of patients or others. (3) He stated that new evidence renders the privilege revocation decision erroneous and unjust. Dr. (COL) M___'s affidavit directly repudiates the Army's conclusion that the applicant pressured him to sign the letter of recommendation. In addition, efforts to reengage MEDCOM with this new evidence were met without success (e.g., COL K___ reported to the VA, "no new information to present"). Further, the MEDCOM opinion failed to reveal the "still unrefuted evidence upon which the revocation decision was based." Counsel presumes this refers to allegations that the applicant pressured SGT W___ into writing a letter of recommendation. Counsel states that this cannot be a considered a valid reason to revoke applicant's privileges. In fact, the statement (opinion) by Dr. D___ that SGT W___'s statement was voluntarily produced shows it was not the product of coercion or alteration. (4) Counsel states applicant's due process rights were violated resulting in an unconstitutional taking of his clinical privileges. He states that due process violations diminished the value of the applicant's clinical privileges so completely that it constituted an inverse condemnation. Counsel asserts the applicant's due process rights were violated and offers: * there is no written or oral notice of an investigation * there is no written notification when privileges were placed under abeyance or suspended * the applicant was – * denied access to the information considered at the hearing, as well as his right to submit evidence and to call witnesses * provided insufficient documents to prepare for his defense * received no adequate notice of hearing and procedures * denied his right to call, examine, and cross-examine witnesses * the command failed to decide what privileging action to take based on the facts within 14 calendar days (i.e., it took 11 months to make a decision) (5) Counsel states the Article 13, UCMJ, precludes the unlawful confinement of applicant. Counsel states the committee read the applicant his rights prior to the 18 January 2005 hearing and a 24-hour, military police detail escorted him during his confinement. Article 13 protects Soldiers from overly zealous commanders and should be applied in the applicant's case. (6) He asserts the revocation of applicant's clinical privileges was arbitrary, capricious, and an abuse of discretion. (a) Counsel states this is demonstrated by: * uncontroverted facts submitted, the commander's revocation of his privileges, and the advisory official's failure to address them * COL K___'s false statement to the applicant (i.e., "[t]here is no new evidence to refute these sworn statements in the documents that you have provided. Therefore, I have no evidence that I can push forward to TSG as a basis for reconsideration of the revocation of your privileges." * COL K___'s intentional material misrepresentation to an attorney at the VA (i.e., applicant's file "had no new information to present") (b) Counsel adds that the credentialing decision was a clear error of judgment and based upon erroneous application of the facts, and Army policies and regulation. The decision was taken without observance of procedures required by law. Also, the action was wholly independent of a concern of the quality of patient care or in the furtherance of the quality of health care. Finally, the decision was retaliation against the applicant for IG complaints he filed. b. Counsel concludes that the command did not act in good faith or in compliance with the regulatory requirements during the processing of the applicant's credentials review. The Board should find that his privileges were unlawfully revoked and report to NPDB that the original notification was in error. REFERENCES: 1. AR 15-6 establishes procedures for investigations and boards not specifically authorized by any other regulation or directive. a. Chapter 1 (Introduction) shows, even when not specifically made applicable, this regulation may be used as a general guide for investigations or boards authorized by another regulation or directive, but in that case, its provisions are not mandatory. When adverse administrative action is contemplated against a Soldier, including one designated as a respondent, based upon information obtained as a result of a preliminary inquiry, administrative investigation, or board of officers conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual: (1) Notify the Soldier, in writing, of the proposed adverse action and provide a copy, if not previously provided, of those parts of the findings and recommendations of the inquiry, investigation, or board and the supporting evidence gathered during the proceeding upon which the proposed adverse action is based. (2) Give the Soldier a reasonable opportunity, no less than 10 days, to reply, in writing, and to submit rebuttal matters. (3) Review and evaluate any matters submitted by the Soldier. (4) When the inquiry, investigation, or board is conducted pursuant to this regulation and the contemplated administrative action is prescribed by a different regulation or directive with more stringent procedural safeguards than those outlined above, the more stringent safeguards must be observed. b. Chapter 2 (Responsibilities – Investigations and Boards) and Chapter 3 (General Guidance for Investigating Officers and Boards), in pertinent part, provides guidance on appointment authorities and notification procedures, and detailed information pertaining to due process (i.e., rules of evidence, proof of facts, exhibits/evidence, witnesses, communications with the appointing authority, etc.), including the reporting of findings and recommendations. 2. AR 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. Chapter 3 (Unfavorable Information in Official Personnel Files) shows that unfavorable information will be referred to the recipient for information and acknowledgment of his or her rebuttal opportunity. Additionally, unfavorable information of which the recipient had prior official knowledge and an adequate chance to refute may be filed. 3. AR 40-68 establishes policies, procedures, and responsibilities for the administration of the Army Medical Department (AMEDD) Clinical Quality Management Program (CQMP). Chapter 10 (Adverse Clinical Privileging/ Practice Actions) describes the management of adverse privileging/practice actions for privileged providers and other professionals. It shows action taken on the part of the commander against a provider's privileges (professional's scope of practice) may be warranted based on performance suspected or deemed not to be in the best interest of quality patient care. The commander's prerogative to hold in abeyance, to deny, or to summarily suspend clinical privileges/practice is exercised when there is reasonable cause to doubt the individual's competence to practice or for any other cause affecting the safety of patients or others. Reasonable cause includes, in pertinent part, significant unprofessional conduct. It also provides specific guidance on the process (actions and procedures), provider hearing rights, board procedures, the appeals process, and reporting. 4. AR 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The ABCMR considers individual applications that are properly brought before it and begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. The ABCMR will decide cases on the evidence of record; the ABCMR is not an investigative body. b. The regulation also shows that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant and his counsel's contention that the applicant's records should be corrected by reversing/voiding the LRMC CC's and U.S. Army MEDCOM Appeals Board's decisions to revoke his clinical privileges; notifying the NPDB and each state of licensure of the U.S. Army's correction of his credentialing; and paying him just compensation as a result of the unjust taking of his clinical privileges was carefully considered. 2. The applicant's and his counsel's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. A copy of the adverse privileging/practice action is not available to the Board. a. The evidence shows an investigation was conducted into the matter under review and the applicant was issued a General Officer Memorandum of Record for his unprofessional misconduct. b. The applicant and his counsel provided copies of several documents in support of the request; however, copies of all relevant documentation pertaining to the aforementioned actions were not provided. 4. The ABCMR begins its consideration of each case with the presumption of administrative regularity and decides each case based on the evidence of record. 5. The evidence of record shows the applicant was ordered to active duty on 22 July 2004. a. Immediately following his arrival in Kosovo, the LRMC Credentials Office received requests to initiate verification of reference letters based on allegations that three letters were not written by the individuals who signed them. b. On 28 August 2004, based on the instruction of the applicant's senior commander (BG H___-B___, Commander, 21st Theater Support Command), COL F___, Commander, TF Medical Falcon X, relieved the applicant of duty. c. On 8 November 2004, The LRMC CC voted to place the applicant's privileges in abeyance for 15 days pending further investigation. d. On 9 November 2004, COL Ronda L. C___, Commander, LRMC, approved the LRMC CC's recommendation. e. On 11 November 2004, applicant's counsel (at the time) stated the applicant had informed her that COL F__ relieved him of his duties. Based on the evidence of record, it appears the 28 August 2004 action was actually a suspension of the applicant from duties as OIC, CSCP, not a relief from duty. f. Subsequent to the LRMC CC's recommendation: (1) On 10 December 2004, applicant's counsel (at the time) opined that Dr. (COL) M__'s statement was ambiguous and that the tone of SGT's W___'s statement was such that he was under pressure when he made the statement. He suggested a change in the applicant's defense strategy. (2) On 15 April 2005, CPT R___ (applicant's counsel) opined that the period the applicant was held (from 24 November until 17 December 2004) was tantamount to confinement. There is no evidence of record that shows the applicant was arrested and/or placed in a military confinement facility. The opinion offers insufficient evidence to show that the applicant was arrested and/or deprived his rights. (3) Based on the chronology, it may be concluded that the above information was available (and submitted) to the approving authority in support of the applicant's rebuttal to the LRMC CC's recommendation. g. On 15 November 2005, BG H__-R__, European RMC, approved the recommended actions of the LRMC CC. h. The applicant was released from active duty on 31 March 2006 and transferred to the USAR Control Group (Retired Reserve) effective 1 April 2006. i. On 16 March 2006, the MEDCOM Appeals Committee considered his appeal of the action taken by the Commander, European RMC, to revoke the applicant's clinical privileges for unprofessional conduct. j. On 17 May 2006, TSG determined the actions taken regarding the applicant's clinical privileges were proper. The applicant was notified this was the final action in the appeals process and that the action would be reported to the NPDB, The Federation of State Medical Boards, and known states of licensure. Accordingly, the action was reported to the NPDB. 6. The allegations of false statements made by Dr. (COL) Kimberly L. K___, Deputy, Clinical Performance Assurance, MEDCOM, with respect to the applicant's case were considered. a. On 21 October 2013, Dr. (COL) David M___ provided a sworn affidavit to clarify the matter regarding his original sworn statement. b. On 10 December 2013, Dr. (COL) K___ informed an official at the VA Regional Office, Los Angeles, CA, that the applicant's clinical privileges were revoked by the Army Surgeon General in May 2006. She stated she was contacted by the applicant in August/September 2012, he asked her to relook his file, and he also requested that she ask TSG to remove the entry from NPDB. She noted the applicant had completed the appeal process and the purpose of her review was to determine if the applicant had new information. Upon her review (in 2012), she found that he had no new information to present and, after consultation with Army legal authorities, the applicant was advised to return to the NPDB dispute resolution process as the Army considered the matter closed. (1) The applicant and counsel assert that Dr. (COL) K___ falsely reported to the VA that the applicant's file "had no new information to present." (2) A review of allegation reveals that this was not a false report because Dr. (COL) K___ conducted a review of the applicant's file in September 2012 and Dr. (COL) M___'s affidavit was not sworn until 21 October 2013. The evidence of record does not support the contention that there was new information in the file when Dr. (COL) K___ reviewed the applicant's case file in September 2012. c. In December 2013, Dr. (COL) M___'s affidavit was reviewed by MEDCOM officials, in consultation with Army legal authorities. (1) The applicant and counsel assert that COL K___ falsely represented that she had no evidence to push forward to TSG as a basis for reconsideration of the revocation of his privileges. (2) Upon review of the affidavit by MEDCOM officials, it was determined that the affidavit did not negate all bases upon which TSG made the decision to report the applicant's privilege revocation to NPDB nor did it contradict all of Dr. (COL) M___'s original sworn statement. (3) The evidence of record fails to show COL K___ falsely represented that she had no evidence to push forward to TSG as a basis for reconsideration of the revocation of his privileges. 7. Army regulations pertaining to the matter under review provide information pertaining to appointment authorities, notification procedures, and detailed instructions that pertain to ensuring due process (i.e., rules of evidence, proof of facts, exhibits/evidence, witnesses, communications with the appointing authority, and the reporting of findings and recommendations). a. The evidence of record shows the regulatory requirement allows for adverse privileging action for "any other cause affecting the safety of patients or others" which includes "significant unprofessional conduct." b. The evidence of record also shows the case was subjected to legal review prior to TSG making a final reporting determination. It is reasonable to conclude this legal review included compliance with Army regulations and due process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019028 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019028 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2