Petition for Writ of Certiorari — Voge v. Dalton

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No. OsFICE OF THE CLERK

In the Supreme Court of the Gnited States

OCTOBER TERM, 1994

VICTORIA M. VOGE, Petitioner,

SECRETARY OF THE NAVY, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

EUGENE R. FIDELL

(Counsel of Record)

DAVID P. SHELDON

LAUREN N. MANDEL

FELDESMAN, TUCKER, LEIFER,

FIDELL & BANK

2001 L Street, N.W.

Suite 300

Washington, D.C. 20036

(202) 466-8960

Counsel for Petitioner

DECEMBER 20, 1994

nt ce ne

“~~ wah a eowe vas £ IVa’ 2asly

1. In Sullivan v. Finkelstein, 496 U.S. 617, 623 n.3

(1990), the Court left open the question whether, where a

district court remands a case to a federal agency, the person

seeking relief may appeal on the ground that the court

should have granted broader relief. This case presents that

question in extreme form: must an appeal be taken at the

time such a decision is rendered? Does a failure to do so

forfeit the right to appellate review of such a decision when,

after the completion of agency proceedings on remand, the

district court enters final judgment?

2. Did the Court of Appeals abdicate its responsibili-

ty under Universal Camera Corp. v. NLRB, 340 U.S. 474,

487-88 (1951), and the APA’s requirement for substantial

evidence review based on the “whole record” when it sus-

tained a decision of the Board for Correction of Naval

Records that failed to account in any way for evidence that

detracted materially from the board’s conclusion?

fate

ais sh peel ee ee a eae ee ee

aeath ond

TABLE OF CONTENTS

Page

Opinions Below ............cccccccseccesccece 1

eed cease detec eceeecececes 2

Statutory and Regulatory Provisions .............. 2

I co tees eccccccccccccoces 3

Reasons for Granting the Writ ...............--- 11

I THE DECISION OF THE COURT OF AP-

PEALS RESTS ON THE NOTION THAT A

REMAND TO A FEDERAL AGENCY IS

IMMEDIATELY APPEALABLE, CON-

TRARY TO THE RULINGS OF OTHER

GENE suc eee eee. rs eae 11

II. BY UPHOLDING AGENCY ACTION THAT

FAILED TO ACCOUNT FOR SUBSTAN-

TIAL CONTRARY EVIDENCE, THE

COURT OF APPEALS DISREGARDED

UNIVERSAL CAMERA ........+--++++%: 14

Ee 17

Appendix

Decision of the Court of Appeals (Sept. 2, 1994) ...... 1

Order of the Court of Appeals denying rehearing

and rehearing en banc (Sept. 26, 1994) ........... 6

Order of the District Court (Jan. 12, 1990) .......... 7

Transcript of District Court Proceedings

Ee ea Peewee paseo cccccccees 9

Order of the District Court (Oct. 18, 1993) ......... 31

Memorandum Opinion of the District Court

Tec UEeGG pees nee ssecccccccces 32

Decision of the Board for Correction of Naval Records

GPs ts ED, b 006 bon 00444600 08805990068' 37

Decision of the Board for Correction of Naval Records

Cc Wi EE ho 6 odo 000666 bee eeheneeness 53

Decision of the Board for Correction of Naval Records

sis Oven ancs sone he weemeasseeua’s 56

Memorandum from Capt. John M. Mateczun

rere rere errr ee ee 59

Psychiatric Evaluation by Prof. Raymond M. Costello

GUN I bo nbs ge «bee ee eas bee a wo 70

Psychiatric Evaluation by Terence F. McGuire, M.D.

ewer es. ee oe Pree Tee 94

U.S. Navy, Bureau of Medicine and Surgery,

OC TT Te eee Ere 106

Amended Notice of Appeal (Oct. 20, 1998) ........ 112

ee ge pen

+ we emis te

TABLE OF AUTHORITIES

Page

Cases:

American Hawaii Cruises v. Skinner, 893 F.2d 1400

RR RO PPP TT Tee eee ee eee ee eee 13

Bohms v. Gardner, 381 F.2d 283 (8th Cir. 1967),

cert. denied, 390 U.S. 964 (1968) ............... 13

Crowder v. Sullivan, 897 F.2d 252 (7th Cir. 1990) .... 12

Domegan v. Fair, 859 F.2d 1059 (1st Cir. 1988) ..... 13

Hepperle v. Southern Methodist University,

a 13

Occidental Petroleum Corp. v. SEC, 873 F.2d 325

RE SS ee ee 12

Pauls v. Secretary of the Air Force, 457 F.2d 294

kG Era 10, 11, 12, 13

Service v. Dulles, 354 U.S. 363 (1957) .......... 11, 14

Silver v. Secretary of the Army, 554 F.2d 664

ee GE he oo cence se 046d 10, 11, 12, 13

St. Francis Medical Center v. Sullivan, 962 F.2d 1110

i Ss ee eh a ae 6 sé oe 6 ae we oe 12

Stephens v. United States, 174 Ct. Cl. 365,

i 7 ciicucaawes oaah de ee 0408 15

Stewart v. Baldwin County; 908 F.2d 1499 (11th Cir.

ee a ee eh eek ee sakes veces be 13

Sullivan v. Finkelstein, 496 U.S. 617 (1990) ... 1, 10,138

Synergy Gas Corp. v. NLRB, 19 F.3d 649

REE 15

Travis vy. Sullivan, 985 F.2d 919 (7th Cir. 1998) ..... 12

Universal Camera Corp. v. NLRB,

eR a a 14

Vitreous Steel Co. v. Miller, 911 F.2d 1223

ne ays wa ca Nee Rake eee 13

Voge v. United States, 11 Cl. Ct. 510 (1987),

aff'd in part & vacated in part, 844 F.2d 776

(Fed. Cir.), cert. denied, 488 U.S. 941 (1988) ....... 5

Statutes:

Administrative Procedure Act, 5 U.S.C. § 501

I GE ese ccccecccesevecesecee 5, 18, 16

an a a oe oa:9 eo 0 5 6 eee eee 2

10 U.S.C. § 1552 (Supp. IV 1992) ........... wee BS

PCED ca cccecceccsceceeseess 2

ED owe Sev ecccvsccveesees 2,12

no. wssctceveseeveeseneee 12

SU OE OE ob oc db clcceseseneeceows 4,13

Regulations:

U.S. Navy, Bureau of Medicine and Surgery

Instruction 6320.62, 1 14-11 (Fair Hearing Plan)

TE 2 6 h:s.6e re sed eeuee essere ww passim

Miscellaneous:

Moore’s Federal Practice (Supp. 1993-94) .......... 12

0 8 Orr eee ee ee 14

Hn the Suprem. com. ot te Gimt.. States

OCTOBER TERM, 1994

VICTORIA M. VOGE, Petitioner,

SECRETARY OF THE NAVY, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Victoria M. Voge, a commander in the Navy Medical

Corps, respectfully petitions for a writ of certiorari to

review the judgment of the Court of Appeals for the Fourth

Circuit.

The case is “‘certworthy”’ because, contrary to the

holdings of other circuits, the decision below proceeds on

the premise that a partial denial of summary judgment

coupled with a remand to an administrative agency is

immediately appealable. The case thus presents the issue

left unresolved in Sullivan v. Finkelstein, 496 U.S. 617, 623

n.3 (1990). To make matters worse, the Court of Appeals

appears to have taken the view that such a decision must

be appealed immediately.

In addition, certiorari is warranted because the

Court of Appeals disregarded the settled rule that an

agency must consider all of the evidence, and not only that

which supports the agency’s view.

(1)

Opinions Below

The Court of Appeals’ unpublished per curiam

affirmance is reproduced in the Appendix (“‘App.’’) at 1. Its

order denying rehearing and declining rehearing en banc is

at App. 6. The proceedings, unpublished orders and judg-

ment of the District Court for the Eastern District of Court

of Virginia are at App. 7, 9, 31 and 32.

Jurisdiction

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1) (1988). The judgment of the Court of

Appeals was entered on September 2, 1994. A timely

petition for rehearing was denied on September 26, 1994.

Statutory and Regulatory Provisions

Section 1291 of the Judicial Code provides: “The

courts of appeals. . . shall have jurisdiction of appeals from

all final decisions of the district courts of the United States

Section 10(e) of the Administrative Procedure Act

(““APA”’), 5 U.S.C. § 706 (1988), provides:

To the extent necessary to decision and when

presented, the reviewing court shall decide all

relevant questions of law, interpret constitu-

tional and statutory provisions, and deter-

mine the meaning or applicability of the

terms of an agency action. The reviewing

court shall—

a th Mein a

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law

se: 8

In making the foregoing determinations, the

court shall review the whole record or those

parts of it cited by a party, and due account

shall be taken o » rule of prejudicial error.

The military re: orrection statute, |

1552(a)(1) (Supp. IV vides in per tp

The Secretary of a military department may

correct any military record of the Secretary’s

department when the Secretary considers it

necessary to correct an error or remove an

injustice. Except as provided in paragraph (2)

such corrections shall be made by the Secre-

tary acting through boards of civilians of the

executive part of that military department .

The Navy’s Fair Hearing Plan for health care

professionals—Bureau of Medicine and Surgery Instruction

6320.62, 1 14-11 (May 29, 1981)—is reproduced at App. 106.

Statement of the Case

In 1982, while stationed on Guam, Dr. Voge was

diagnosed as paranoid by another Navy doctor. This led to

her medical evacuation to San Diego, where she was

ST TT Fone aT

examined at some length and found fit for full duty. She

was subjected to a variety of other adverse actions, includ-

ing the loss of her hospital credentials, the submission of

highly critical fitness reports (with resulting failure of

promotion) and the loss of $30,000 in statutory Additional

Special Pay (“‘ASP”’).

After exhausting intraservice remedies, Dr. Voge

sought relief from the Board for Correction of Naval

Records (“‘BCNR’’) under 10 U.S.C. § 1552. She maintained

that she had been transferred to Guam in the first place in

retaliation for positions she had taken while assigned to the

Naval Sefety Center in Norfolk; that the original paranoia

diagnosis was the result of command-influence; that that

diagnosis was incorrect; and that the Navy had violated key

procedural rights afforded by its Fair Hearing Plan, a

binding agency regulation for the protection of Navy

medical personnel. Those rights include, among others, the

right to attend key meetings of the decision making body

and the right to impartial board members.

In a 1986 decision, the BCNR removed from Dr.

Voge’s record one fitness report and parts of another, but

left references to her loss of credentials, all of one adverse

fitness report and most of another, her passover for

promotion to captain and both the Guam and San Diego

psychiatric records. App. 37. The BCNR reasoned:

The Board finds that the psychiatric evalua-

tions and medical board report were properly

entered in Petitioner’s naval record. The

Board notes that Petitioner was aware of

each medical report at the time made’ and

chose to rebut the medical board report. App.

49-50.

Dr. Voge sued in the United States Claims Court

under the Tucker Act, 28 U.S.C. § 1491 (1988), for the lost

ASP and for corrections to her naval record. That court

entered judgment for her on the pay issue in light of a

government concession that it had been improperly with-

held and dismissed the record-correction portions of the

case. Voge v. United States, 11 Cl. Ct. 510 (1987). The

Federal Circuit affirmed the money judgment but vacated

the rest of the Claims Court’s order. 844 F.2d 776 (Fed.

Cir.), cert. denied, 488 U.S. 941 (1988).

Since the Tucker Act litigation had not resolved her

record-correction cause of action, Dr. Voge sued the

Secretary of the Navy under the APA in the District Court

for the Eastern District of Virginia. In 1990, Judge Bryan

denied both her motion for summary judgment on the Fair

Hearing Plan claim and the Secretary’s motion to dismiss

or, in the alternative, for summary judgment, but remanded

the case with instructions that the BCNR reconsider Dr.

Voge’s claim that her paranoia diagnosis was the result of

command influence. App. 7-8.

On remand, the BCNR wrote to the officer who had

given the paranoia diagnosis, but received no response. It

obtained a statement from that officer’s supervisor, who

predictably denied all wrongdoing. Meanwhile, Dr. Voge

obtained and submitted to the BCNR a letter from the

officer who had given the paranoia diagnosis. In that letter,

the officer denied that his diagnosis was the result of

command influence, but cast doubt on the accuracy of his

diagnosis, stating that in hindsight he should not have

diagnosed her as paranoid. The BCNR denied relief. App.

53.

In light of the diagnosing officer’s unanticipated

change of position and in an effort to prove that she did not

suffer from any mental illness, Dr. Voge consulted two

distinguished independent experts: Raymond M. Costello,

Ph.D., a professor in the Department of Psychiatry at the

University of Texas Health Science Center, App. 70-93, and

Terence F. McGuire, M.D., a board-certified psychiatrist

and examiner for the American Board of Psychiatry and

Neurology. App. 94-105. Dr. McGuire was an Air Force

flight surgeon for 23 years and NASA’s consultant in

psychiatry for over 30 years.

Drs. McGuire and Costello met separately with and

interviewed Dr. Voge. Each subjected her to a requisite

battery of diagnostic tests. After considering the results of

the tests, both severely criticized the Navy’s paranoia

diagnosis. Both found that Dr. Voge was not and never had

been paranoid. App. 90, 104. They faulted the Navy for

failing to investigate the underlying question of whether

Dr. Voge in fact had been intentionally misdiagnosed as a

result of her stand at Norfolk with regard to Navy pilots’

drug and alcohol abuse. According to Dr. Costello,

[e]very one started with the premise that

Voge was disturbed, that Voge was producing

occupational turmoil, and that Voge required

psychiatric labeling and fixing. Not one,

however, could locate her alleged personality

disorder except in extraclinical data, that is in

the complaints registered against her by

Naval command. App. 91 (emphasis added).

Dr. Costello referred with evident approval to the

observation of a professor of psychiatry and psychology at

Temple University, who had also examined Dr. Voge, that

she was “singularly one of the most psychologically healthy

individuals [he] ever met.” App. 85.

After reviewing a complete set of Dr. Voge’s paychi-

atric reports, Dr. McGuire noted:

In all the USN reports I have read, I am

struck by the apparent failure of the examin-

ers openly to consider whether there could be

real substance to Dr. Voge’s sense of victim-

ization at the hands of a vindictive and pow-

erful few. In my long experience with mili-

tary, government, industrial and academic

settings, I have seen such odious scenarios in

action. The possibility of such a script in Dr.

Voge’s case cannot be dismissed out of hand

by any conscientious investigator . . . yet it is

not even mentioned by her military evalua-

tors. Why did she apparently function so well

before her controversial assignment to the

Naval Safety Center and yet so poorly in the

subsequent punitive assignment to Guam

where she was labeled a personality disorder?

... App. 99.

Dr. Voge’s pre-military and early milit[a]ry

record strongly suggest superior performance

rather than functional impairment. By her

report, she was more closed and less insight-

ful prior to her assignment from NSC to

Guam, but there is nothing available histori- -

cally to suggest she would have been seen as

pathologic. Nor do any of the Navy evalua-

tions I have seen document the pervasive

long-term pathology necessary to make a

personality disorder diagnosis. I have

checked with contacts at the USAF School of

Aerospace Medicine, where Dr. Voge is cur-

rently on detached duty; she is reported to be

functioning quite well on both occupational

and interpersonal levels. Why would she now

be functioning quite credibly, without evi-

dence of those life-long “enduring patterns”

mentioned above? App. 100 (emphasis in

original).

Dr. McGuire found no warrant for a paranoia

diagnosis, and a basis for only a “history of a probable past

major depressive episode [resulting from her transfer to

Guam] which went untreated and which is now resolved.”

Id. 104. Both of these experts concluded that Dr. Voge did

not suffer from any personality disorders. App. 89-90, 104.

Dr. Voge submitted these reports to the BCNR, but

the board totally disregarded them in its reconsideration on

remand from the District Court. App. 56. Instead, it relied

upon a Navy consulting psychiatrist, Captain John M.

Mateczun, who never met with Dr. Voge but merely

reviewed reports furnished to him. App. 59. He never

considered the reports of Drs. McGuire and Costello

because the BCNR failed to send him copies. After consider-

ing Captain Mateczun’s report, Dr. Costello noted:

No one asked to review documents from the

[Naval Safety Center], to talk with her supe-

riors or peers about her when she was as-

signed [there] or, in any other way, to open

up the context within which she became a

problem to the Navy rather than a prized

asset. How is this oversight, not by one, but

by every psychiatrist who was duty-bound to

act as a physician in relationship to his

patient, to be explained? Every psychiatrist,

entrusted with her as a responsibility, appar-

ently considered his client to be the U.S.

Navy and not this human being... . App. 92.

Nonetheless, the BCNR adhered to its earlier refusal

to order the Guam and San Diego evaluations removed

from Dr. Voge’s service record:

After careful and conscientious consideration

of the entire record, the Board found that the

evidence submitted was insufficient to estab-

lish the existence of probable material error

or injustice. In this connection, the Board

substantially concurred with the comments

contained in the advisory opinion from [the

Military Personnel Evaluations Branch of the

Naval Military Personnel Command] and the

memorandum from the Specialty Advisor for

Psychiatry [Captain Mateczun]. .. . App. 57.

In reaching this conclusion, the BCNR never

conducted an evidentiary hearing. What is more, neither it

nor its consultant ever addressed the evidence from Drs.

Costello and McGuire.

When Dr. Voge returned to the District Court, Judge

Bryan rulw! that the BCNR had properly reviewed her case

in conduet:ng the remand and that its action was neither

arbitrary nor capricious. App. 32. He did not address her

claim that the Navy had violated its Fair Hearing Plan. Id.

passim.

Dr. Voge timely appealed Judge Bryan’s final order

to the Fourth Circuit, and in a timely amended notice of

appeal, specifically identified his 1990 Order as one of the

two orders being appealed. App. 112. Her briefs to the

Court of Appeals raised several issues addressing the

validity of the BCNR’s action on the remand and the

district court’s affirmance of the BCNR’s decision. She also

briefed the Navy’s violation of its Fair Hearing Plan.

The Secretary did not attempt to defend the viola-

tion. Instead, without citing any authority, he asserted in

a footnote that

[mJany of the claims raised in appellant’s

brief address the latter three psychiatrist’s

[sic] attack on the accuracy of the 1982

Tinelli evaluation in addition to several other

issues that were addressed and denied by

Judge Bryan’s order in 1990, and by his

refusal to address those issues at the October

1993 hearing. Since those issues were not

specified in the remand order, this court

should similarly decline to address those

issues. Respondent’s 4th Cir. Br. 13 n.9.

Dr. Voge’s reply brief drew the Court of Appeals’

attention not only to Sullivan v. Finkelstein, but also to

Silver v. Secretary of the Army, 554 F.2d 664, 665 (5th Cir.

1977) (per curiam), and Pauls v. Secretary of the Air Force,

457 F.2d 294, 297-98 (1st Cir. 1972). The latter two cases

hold that remands to a BCMR are not appealable. She

explained that because Judge Bryan’s 1990 decision was a

remand, his ruling on the Fair Hearing Plan issue had been

unappealable at that time. That issue could only be ap-

pealed following the 1993 decision which resolved the

balance of her case and constituted the first and only final

judgment.

The Fourth Circuit (Niemeyer, Williams and Erwin,

JJ.) affirmed in a per curiam opinion which focuses on Dr.

Voge’s contention that the paranoia diagnosis was the

result of command influence, App. 2-3, but is entirely silent

with respect to the Fair Hearing Plan. It also never

addresses the fact that the BCNR and the consultant whose

report it adopted lock-stock-and-barrel had simply ignored

the reports of Drs. Costello and McGuire. The court stated

that “(t]he record evidences that Navy doctors observed a

pattern of behavior which in their professional judgment

clinically warranted referring Voge to a psychiatrist in

1982,” App. 4, and concluded that the BCNR’s decision was

not arbitrary and capricious. App. 5.

Dr. Voge sought rehearing and rehearing en banc

because—there being no other explanation—it appeared

that the panel had embraced the Secretary’s position that

the Fair Hearing Plan issue need not be considered and

because the panel had overlooked the BCNR’s failure to

take any account of critical evidence from Drs. Costello and

McGuire. Rehearing was denied without explanation. App.

Reasons for Granting the Writ

THE DECISION OF THE COURT OF APPEALS

RESTS ON THE NOTION THAT A REMAND TO

A FEDERAL AGENCY IS IMMEDIATELY

APPEALABLE, CONTRARY TO THE

RULINGS OF OTHER CIRCUITS

Certiorari should be granted because the decision

below is in conflict with rulings of the First and Fifth

Circuits, both of which have correctly held that a remand

to a military record correction board is not appealable.

Silver v. Secretary of the Army, 554 F.2d 664, 665 (5th Cir.

1977) (per curiam); Pauls v. Secretary of the Air Force, 457

F.2d 294, 297-98 (1st Cir. 1972). The Fourth Circuit, in

contrast, apparently proceeded on the premise that such

remands are immediately appealable. It refused to review

the portion of Judge Bryan’s 1990 decision that rejected Dr.

Voge’s claim under Service v. Dulles, 354 U.S. 363 (1957),

that the Navy violated its own Fair Hearing Plan regula-

tions in decredentialing her on Guam. This was the analysis

proffered by the Secretary in the Fourth Circuit, and

nothing in that court’s decision suggests that some other

analysis drove the outcome on the Service v. Dulles issue.

The Secretary ignored the Fair Hearing Plan issue

on appeal, mistakenly claiming that the only matter before

the Court was the correctness of Judge Bryan’s 1998 order.

See p. 10 supra. That Judge Bryan ruled on the Fair

Hearing Plan issue in 1990 but not in 1998 is irrelevant to

whether that issue was before the Court of Appeals. Dr.

Voge properly appealed both rulings in a timely manner

following the 1993 decision which resolved the balance of

her case and which constituted the first and only final

judgment. To hold otherwise would permit an interlocutory

order to elude appellate review entirely, contrary to 28

U.S.C. § 1291. If this is what the Circuit Court intended

(and there is no other explanation in the per curiam), its

decision would, to say the least, dramatically alter the

appellate landscape. It would also do so in the most unfair

fashion, since Dr. Voge’s right to appellate review would

have been materially truncated without prior notice.

Pauls and Silver merely illustrate the larger princi-

ple that ordinarily remands to federal agencies are not

appealable. E.g., Travis v. Sulliven, 985 F.2d 919, 920 (7th

Cir. 1993) (citing Crowder v. Sullivan, 897 F.2d 252 (7th

Cir. 1990) (per curiam), and Occidental Petroleum Corp. v.

SEC, 873 F.2d 325, 329 (D.C. Cir. 1989)); St. Francis

Medical Center v. Sullivan, 962 F.2d 1110, 1118 (8d Cir.

1992). The courts of appeals may only review final decisions

of district courts. 28 U.S.C. § 1291. Remands “‘may be

treated as final orders if so designated by Congress,” 9

Moore’s Federal Practice 1 110.08(1], at 18 & n.31 (Supp.

1993-94) (emphasis added). Congress has not designated

remands to the correction boards as final orders. Because

BCNR decisions are reviewable as garden variety federal

questions, 28 U.S.C. § 1831 (1988), the general rule that

remands to agencies are nonfinal applied to Judge Bryan’s

1990 order.

The Court of Appeals thus applied a rule of lew

which is materially different from that which is generally

recognized by either this Court or other circuits: neither

remands nor denials of summary judgment are final

appealable decisions. E.g., Sullivan v. Finkelstein, 496 US.

617 (1990); American Hawaii Cruises v. Skinner, 893 F.2d

1400 (D.C. Cir. 1990); Stewart v. Baldwin County; 908 F.2d

1499 (11th Cir. 1990); Vitreous Steel Co. v. Miller, 911 F.2d

1223, 1230 n.3 (7th Cir. 1990); Domegan v. Fair, 859 F.2d

1059 (1st Cir. 1988); Hepperle v. Southern Methodist

University, 526 F.2d 1257 (5th Cir. 1976).

In Finkelstein, the Court noted but disclaimed any

view on the question whether, where a district court

remands a case to a federal agency, the person seeking

relief may appeal on the ground that the court should have

granted broader relief. 496 U.S. at 623 n.3, citing Bohms v.

Gardner, 381 F.2d 288 (8th Cir. 1967) (Blackmun, J.), cert.

denied, 390 U.S. 964 (1968). The instant case presents that

question in extreme form: must an appeal be taken at the

time such a decision is rendered? Does a failure to do so

forfeit the right to appellate review of such a decision when,

after the completion of agency proceedings on remand, the

district court enters final judgment? The Court of Appeals’

decision, silent as it is on the Fair Hearing Plan issue,

indicates that it deemed that issue not properly before it.

Unless Silver, Pauls, Bohm and the myriad other cases to

the same effect were wrongly decided, the Court of Appeals

erred.

The conflict implicit in the Fourth Circuit’s action is

not one that may be overlooked or put off to await further

consideration by other courts of appeals. The legal issue is

a fundamental one and numerous cases are potentially

affected. The armed forces’ correction boards handle

thousands of cases each year. They generate a regular flow

of judicial review proceedings under the APA, in addition to

Tucker Act litigation. Remands are not uncommon in this

kind of litigation, and it is important that the courts of

appeals as well as the district courts and litigants be aware

of the appellate consequences of a remand. If the rule is, as

the decision below implies, that a failure to appeal a

decision which affirms the agency in part and remands in

part works a forfeiture of the right to appellate review of

the partial affirmance, that should be made clear. In

addition, if that is to be the rule, it should not be applied

retrosctively.

Finally, a rule that effectively compels members of

the service to appeal decisions such as Judge Bryan’s 1990

order at once not only clutters up the courts of appeals with

cases that may well be resolved in the remanded agency

proceedings, but works a special hardship on military

personnel who often can ill afford to litigate at all, much

less to incur the expense of both an appeal and simulta-

neous reopened proceedings at the agency.

Because the first issue presented is particularly

lopsided and the proper outcome clear, the Court may wish

to dispense with full briefing and argument and direct the

Court of Appeals to address Dr. Voge’s Service v. Dulles

issue. S. Ct. R. 16.1.

BY UPHOLDING AGENCY ACTION THAT

FAILED TO ACCOUNT FOR SUBSTANTIAL

CONTRARY EVIDENCE, THE COURT OF

APPEALS DISREGARDED UNIVERSAL CAMERA

The case also warrants review because the Court of

Appeals failed to insist that the BCNR render a rational

account of the entire record, and not merely those parts of

it that it thought supported the decision reached. This is

contrary to Universal Camera Corp. v. NLRB, 340 U.S. 474,

487-88 (1951).

The Court of Appeals’ departure from this basic rule

of administrative law was particularly transparent: the

BCNR merely adopted the report of the Navy’s psychiatry

consultant without ever furnishing that consultant two key

pieces of evidence: the reports of Drs. Costello and McGui-

re. Nor did the BCNR itself ever explain how it had taken

those reports into account. Such a decision is arbitrary and

capricious and should have been set aside. Where an agency

simply brushes inconveniently contradictory evidence under

the rug, it thwarts the right to reasoned agency action and

meaningful judicial review. The failure of the District Court

and the Court of Appeals to insist that the BCNR explain

in any way how it had reconciled its decision with the

powerful reports of Drs. Costello and McGuire was a major

abdication.

As Judge Sentelle recently observed, a reviewing

court must take into account any part of the record which

fairly detracts from the weight of the evidence cited by the

agency to support its conclusions. An appellate court must

not merely “rubber stamp” an agency decision. S* nergy

Gas Corp. v. NLRB, 19 F.3d 649, 651 (D.C. Cir 1994). Here,

there is strong reason to believe that precisely this has

occurred. The BCNR relied solely on Captain Mateczun’s

file-folder review, but never furnished him the reports of

Drs. McGuire and Costello and never addressed those

reports itself. Neither the BCNR nor Captain Mateczun

responded to those reports or explained why they did not

warrant a different outcome. This is not reasoned agency

action. An agency is not at liberty to literally ignore rele-

vant and competent evidence. E.g., Stephens v. United

States, 174 Ct. Cl. 365, 373, 358 F.2d 951, 955 (1966). When

an agency disregards evidence of record, however, the

reviewing court has a duty to act.

The issue is an important one and, regrettably, this

is not an isolated case. An incorrect psychiatric diagnosis

can have a pernicious and devastating effect on the individ-

ual. “Both for state licensure purposes and for employment

purposes, a past diagnosis of personality disorder is poison-

ous.”” App. 105. This is particularly true of a paranoia

diagnosis, since the very act of objecting to it can be viewed

as confirmation. A person who (being in the military) has

no right to refuse a psychiatric evaluation and who is

subjected to an incorrect, stigmatizing psychiatric diagnosis

which is likely to have lifelong adverse career and personal

consequences has an unusually compelling claim to both

reasoned agency action and meaningful APA review. While

it obviously was not for the District Court or the Court of

Appeals merely to substitute their judgment for that of the

BCNR, they did have a duty to insist that the BCNR take

into account all of the evidence presented to it and explain

its ruling in light of and with reference to that evidence.

The purpose of this, of course, is both to facilitate intelli-

gent judicial review but also to furnish the citizen with the

assurance to which she is entitled that her claim and her

evidence have been properly considered. Those purposes

were not served in this case.

A judicial determination that an agency’s decision iz

supported by substantial evidence is premature until the

agency considers all of the evidence and explains how that

evidence relates to its conclusion. Allowing an appellate

court to review an agency’s decision when the agency has

not considered all of the evidence which supports or

detracts from its decision is as impermissible an intrusion

on the agency’s authority as would be judicial review prior

to the exhaustion of administrative remedies.

* * &

The bedrock principles of judicial review and

administrative law at issue in this case apply to judicial

review of decisions of agencies as obscure as the record

correction boards just as clearly as they do to judicial

review of decisions of such better known agencies as the

Nuclear Regulatory Commission, Interstate Commerce

Commission and Federal Communications Commission.

Those principles are greatly eroded by the approach

adopted by the Fourth Circuit.

Conclusion

For the foregoing reasons, certiorari should be

granted.

Respectfully submitted.

EUGENE R. FIDELL

(Counsel of Record)

DAVID P. SHELDON

LAUREN N. MANDEL

FELDESMAN, TUCKER, LEIFER,

FIDELL & BANK

2001 L Street, N.W., Suite 300

Washington, D.C. 20036

(202) 466-8960

Counsel for Petitioner

DECEMBER 20, 1994

APPENDIX

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VICTORIA M. VOGE, Commander,

Medical Corps, U.S. Navy,

Plaintiff-Appellant,

v. No. 93-2346

SECRETARY OF THE NAVY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-89-1441-A)

Argued: May 10, 1994

Decided: September 2, 1994

Before NIEMEYER and WILLIAMS, Circuit Judges, and

ERWIN, Senior United States District Judge for the

Middle District of North Carolina,

sitting by designation.

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: Eugene Roy Fidell, FELDESMAN, TUCKER,

LEIFER, FIDELL & BANK, Washington, D.C., for Appel-

lant. Lt. Karen M. Gibbs Ernst, General Litigation Division,

OFFICE OF THE JUDGE ADVOCATE GENERAL,

(1)

Alexandria, Virginia, for Appellee. ON BRIEF: Jeffrey E.

Rummel, FELDESMAN, TUCKER, LEIFER, FIDELL &

BANK, Washington, D.C., for Appellant. Helen F. Fahey,

United States Attorney, Dennis E. Szybala, Assistant

United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this

circuit. See I.0.P. 36.5 and 36.6.

OPINION

PER CURIAM:

Appellant Voge, an active duty officer in the United

States Navy Medical Corps, filed suit against the Navy

requesting the court to set aside the decision of the Board

for Correction of Naval Records (BCNR) and to expunge a

psychiatric evaluation, documentation affecting her hospital

credentials, and contested Officer Fitness Reports from her

military records.

On January 12, 1990, Judge Bryan denied both the

Government’s motion to dismiss and its motion for summa-

ry judgment and remanded one factual issue to the BCNR

for reconsideration and re-examination. The factual issue,

alleged in a letter written by Appellant dated May 24, 1985,

is whether Lieutenant Commander Eugene T. Tinelli, the

Navy physician who gave Voge a psychiatric diagnosis in

1982, was ordered to do so by his military superior, Captain

Charner W. Bramlett, and whether Bramlett was command-

ed to obtain Voge’s psychiatric evaluation.

On October 13, 1993, the court reviewed the deci-

sions rendered by the BCNR and denied the requested

relief. Specifically, the court found that the BCNR properly

reviewed Voge’s allegations and that the BCNR did not act

arbitrarily or capriciously in denying Voge the relief she

requested. Voge now contends that the court erred in this

finding and seeks a reversal from the court order.

The court’s grant of summary judgment is subject to

de novo review. Baber v. Hospital Corp. of America, 977

F.2d 872, 874 (4th Cir. 1992). The BCNR’s denial of relief

is a final agency action and is reviewable under the Admin-

istrative Procedures Act. The proper standard of review

under the Administrative Procedures Act is whether the

decision was “arbitrary, capricious, an abuse of discretion

or otherwise not in accordance with law.” See 5 U.S.C. §

706(2)(A)(1988). Under this standard, “the court must

consider whether the decision was based on a consideration

of the relevant factors and whether there has been a clear

error of judgment.” See Hutto Stockyard, Inc. v. United

States Dep’t of Agric., 903 F.2d 299, 307 (4th Cir. 1990)

(quoting Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 416 (1971)); see also Aquino v. Stone, 957

F.2d 189 (4th Cir. 1992).

‘(Tt is not the role of the courts to second-guess an

agency’s decision, absent a clear error of judgment .. . -

Aquino, 957 F.2d at 144. The question on appeal is whether

the trial court properly held that the decision of the BCNR

was not arbitrary, capricious, or unsupported by substantial

evidence and that the decision complied with its January

1990 order to review and resolve the issues raised in

Appellant’s letter dated May 24, 1985.

Bramlett, Voge’s commanding officer in Guam,

evaluated her and, based upon her behavior, decided to

refer her for psychiatric evaluation. The administrative

record shows that Voge’s professional judgment was

questionable as evidenced by the course of treatment she

provided to numerous patients. The cumulative evidence

concerning Voge’s behavior served as legitimate indicia of

a possible psychiatric problem.

Upon remand, the BCNR attempted to contact

Tinelli and Bramlett for responses to Voge’s allegations in

her May 24, 1985 letter, in which she alleged that Tinelli

told her that he and Bramlett had been ordered to give her

a psychiatric diagnosis. Although Tinelli did not respond

directly to the BCNR, Voge later submitted to the BCNR

the letter he wrote to her counsel. Both Tinelli and Bram-

lett empathetically denied in writing that they had been

ordered to refer Voge for psychiatric evaluation or to give

her psychiatric diagnosis.

Bramlett wrote: “‘[T]here is no truth what-so-ever

that I, or anyone else asked, suggested, hinted at, or

ordered LCDR Tinelli to make any diagnosis of any sort on

CDR Voge.” (J.A. 363.) Tinelli, in a letter to Voge’s attor-

ney which was later submitted to the BCNR, stated that

the allegation that the commanding officer ordered him to

do a psychiatric evaluation of her was untrue. (J.A. 380.)

These strong denials lead the BCNR to conclude that there

was no need for further inquiry.

Voge makes numerous claims of having been

mistreated due to command influence. Her assertion that

she arrived in Guam labeled as a troublemaker and a non-

team player is unsupported by evidence in the record.

The record evidences that Navy doctors observed a

pattern of behavior which in their professional judgment

clinically warranted referring Voge to a psychiatrist in

1982. The referring Navy physicians, Tinelli and Bramlett,

emphatically denied Voge’s allegations that they were .

ordered to have her evaluated.

After careful consideration of the evidence in the

record, we conclude that the BCNR’s decision was nct

arbitrary and capricious. The district court judgment is

therefore affirmed.

AFFIRMED

| UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED September 26, 1994

No. 93-2346

CA-89-1441-A

VICTORIA M. VOGE, Commander,

Medical Corps, U.S. Navy

Plaintiff-Appellant

SECRETARY OF THE NAVY

Defendant-Appellee

On Petition for Rehearing with

Suggestion for Rehearing in Banc

The appellant’s petition for rehearing and suggestion

for rehearing in banc were submitted to this Court. As no

member of this Court or the panel requested a poll on the

suggestion for rehearing in banc, and

As the panel considered the petition for rehearing

and is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

For the Court,

/s/ Bert M. Montague

CLERK

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

VICTORIA M. VOGE,

)

Plaintiff, )

)

Vv. ) Civil Action

) No. 89-1441-A

SECRETARY OF THE NAVY, )

)

Defendant. )

ORDER

For the reasons stated from the bench, the court

concludes that the failure of the Board for Corre-tion of

Naval Records (BCNR), in its decision of February 4, 1986,

to address and resolve the issues raised by the plaintiff's

May 24, 1985 statement (R. 219), that the April 12, 1982

report of Eugene T. Tinelli, LCDR MC USN (R. 216), was

prepared because he was ordered to do so by the Command-

ing Officer, Captain Bramlett, and by BUMED, renders the

decision of that board, insofar as it failed to remove the

said report of Tinelli from the plaintiff's record and consid-

er its adverse effect on plaintiff's requested relief, unsup-

ported by substantial evidence. Accordingly, it is hereby

ORDERED that:

1. This action is remanded to the Secretary of the

Navy with directions that it be further considered by BCNR

for the purpose of addressing and resolving the issues

raised by the plaintiff's statement of May 24, 1985, and in

light of such reconsideration to re-examine the ultimate

relief awarded the plaintiff.

2. To the foregoing extent the motion of the plaintiff

for summary judgment is granted. In all other respects, it

is denied.

3. The motion of the defendant to dismiss or for

summary judgment is denied.

/s/ Albert V. Bryan, Jr.

United States District Judge

Alexandria, Virginia

January 12th, 1990

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

VICTORIA M. VOGE,

)

Plaintiff, )

)

-vs- ) CIVIL ACTION

) NO. 89-1441-A

SECRETARY OF THE NAVY, )

)

Defendant. )

Friday, January 12, 1990

Alexandria, Virginia

Transcript of motions proceedings in the above

captioned matter.

BEFORE:

The Honorable ALBERT V. BRYAN, JR., Judge

United States District Court

THE COURT: This comes on the cross motion for

summary judgment and defendant’s motion to dismiss.

I take it the parties agree that the record is adequate

to enable the Court to resolve it on summary judgment?

MR. FIDELL: The parties do not agree that the

record—that the contents of the record are clear, Your

Honor. You may recall that in a footnote we pointed out

that we have been furnished a copy of the December 1989

version of a record that bears a certificate that shows there

are 56 more pages than were furnished to us, and then I

presume were filed with the Court. If I could ask the Court

to advise me, how many, what the last numbered page,

Your Honor, is in your record.

THE COURT: 538.

MR. FIDELL: Your Honor, the document we were

furnished had 482 pages, but it had a certificate that

represented that there were 538 pages. So there are 56

pages in this record that I don’t know.

THE COURT: I’m not going to let this case get

further bogged down over the absence. If you want to look

at the other 50-some pages, you are welcome to come and

look at them at any time.

MR. FIDELL: Thank you.

THE COURT: They have been here for some time.

MR. FIDELL: Yes, Your Honor.

THE COURT: With that out of the way, is there

anybody—I mean you do not assert that the record is not

sufficient to enable the Court to resolve the matter on

éummary judgment?

MR. FIDELL: No, I think the case is properly here

on summary judgment.

THE COURT: All right.

Yes, sir.

MR. FIDELL: Thank you. Your Honor, there are it

seems to me two levels of this case. One has to do with

justiciability. The other has to do with merits, and as to

each of those, there are four elements.

Specifically, we have invited the Court to address the

decredentialing of Dr. Voge, the preparation and mainte-

nance of certain psychiatric records relating to her, several

fitness reports, and her passover for promotion to captain.

We suggested in our papers that these were inter-

related because among other things the fitness reports

relate to the decredentialing; the decredentialing and the

psychiatric records, in turn, are part of a single res gestae,

and as the Court is familiar, I think through many, many

cases, there is a direct correlation ordinarily between fitness

report contents and whether or not one is promoted in the

naval service.

With respect to justiciability, we stressed in our

papers that Congress hes indicated that decredentialing

controversies are justiciable in relatively recent legislation,

legislation that is retroactive and that applies to this case.

In addition, the Court has ample standards to guide

the exercise of its review function in the fair hearing plan

that the Navy promulgated. It’s a very detailed set of

blueprints, and there is no question about whether the

Court would be at sea, so to speak, in performing its review

function.

With respect to the psychiatric records, these are

unquestionably subject to review by the Board for Correc-

tion of Naval Records, and it’s also unquestionably the case

that decisions of the BCNR are subject to review here. My

hunch is that over the course of any year you and your

colleagues see some number of cases arising from this and

the other correction boards.

The fitness reports are of course reviewed all the

time in passover cases. Indeed, in the case of Reamy

(phonetic) [Remy] against Secretary of the Air Force, which

ENCANA EOLA TATE Ee A SO a eK

was decided by one of your brethren, the review was

afforded with respect to fitness reports. Similarly, as to

passovers, this is completely garden-variety military

personnel litigation. I really don’t think there is a substan-

tial question as to whether these are justiciable matters.

That said, I would like to address the merits of each

of those categories.

With respect to the credentialing issues, the Secre-

tary of the Navy promulgated an instruction that included

a fair hearing plan. This is as a practical matter the

equivalent of the bylaws of a hospital, and the purpose of

course is to afford due process.

THE COURT: Where do you say she was not

afforded due process?

MR. FIDELL: Specifically, Your Honor, she was not

afforded the process that—

THE COURT: (Interposing) Her main argument

seems to be that the initiating decision which gave her

notice of proposed actions sort of locked in the ultimate

decision maker and gave them preconceptions of what the

outcome was going to be and therefore the hearing that she

did attend in June was preordained in result. It seems to

me they gave her at least due process she was due. These

decisions of proposed action have to be initiated somewhere

by somebody, and that body may also be a portion of or

some segments of it or components of it be part of the

ultimate decision maker it doesn’t seem to me invalidates

the matter from due process.

MR. FIDELL: Well, with all respect, I think that the

case is a far stronger one than your comments would

suggest. Specifically—of course there has to be an initiating

action, and in this case, and I think this is quite revealing—

in this case the chief of clinical services and another

physician at the Naval Hospital in Guam, who had personal

involvement and who as far as I can determine the initia-

tors of the proceedings or at least were substantial actors

in the decision to initiate, recused themselves from the

second secret meeting.

That’s not simply an interesting fact. It’s a pivotal

fact because what that means is that someone in Guam

recognized that there was a need to make sure that only

people who did not play the initiating role participated in

the ultimate hearing process.

What happened here was there were two ex parte

meetings, at which the vast majority of the people who

ultimately sat on the credentials review committee became

privy to information concerning this case. The case in chief

has certain momentum. That it seems to me is quite

unquestionable on this record, and by the time a hearing

was held at which this physician had an opportunity to

speak up for herself and to have the rights that a fair

hearing plan afforded her, two meetings had already taken

place without her presence.

To suggest that those were merely preliminary

proceedings, it seems to me, does not apply the sense of

realism that we think the Court ought to apply.

In a way it’s like having a Grand Juror sit on the

trial jury. I don’t think that’s what the Secretary had in

mind when he promulgated this regulation. I think that the

fact that there were two recusals at the second meeting

shows that those officers knew that there was something

not right about people who had played a prior role in the

matter participating in the decision.

THE COURT: Doesn’t the regulation say as near as

possible or practicable?

MR. FIDELL: Yes, that’s correct, Your Honor, but

jnteaieda aaa,

there isn’t a syllable in this record, however many pages

there are in it, there is not a syllable that indicates there

was an unavailability of personnel or that a particular

number of people had to participate.

It just doesn’t say that. I think you may recall, and

I know this Court is familiar with the military justice

system. There are circumstances under which, where you,

because of military exigencies let us say, can’t assign a

military judge, or you can’t find a lawyer or attorney to do

a court martial in the field, what the command does at that

point is make a matter of contemporaneous record the

reasons for not abiding by the basic obligation, and I think

had something like that been done here, the BCNR and

indeed this Court would be faced with a somewhat different

situation.

But here you don’t have a record on which to explain

the departure from the clear norm at the regulation. So

that I think is what I would like to leave the Court with,

with respect to the credentialing.

This is not a situation where the Secretary’s regula-

tions were conformed with. The fact that there were two

meetings at which this matter plainly achieved a consider-

able measure of momentum is incompatible with the spirit

and the letter of the regulations.

We cited in our last papers, Your Honor, a Fourth

Circuit case, which I would ask that the Court take particu-

lar notice of, which talks about the interpretation, agency

interpretation, that cuts against the tenor of the applicable

regulation. This is Charlotte Memorial Hospital cited on

page 7 of our reply.

I would suggest that the interpretation that the

Navy would apply now for this case to its regulation, a

regulation which by the way we have no quarrel with. It’s

a good regulation. But the interpretation that the Navy

would like to retrofit to what happened in Guam is one that

cuts against the tenor of the regulation.

I would like to address myself if I may to the

psychiatric records, and in doing 80, I would like to specifi-

cally invite the Court’s attention to the fact that we are

here under Section 706 of the Administrative Procedure

Act, which calls for review of the agency decision on the

record as a whole and specifically the Universal Camera

Case. That’s the major gloss on that.

The key, if I can, Your Honor, refer you specifically

to some pages of the record. This may be something that

the solitude of the quiet of Chambers may be better suited

to than taking time in open Court.

THE COURT: The solitude of Chambers is a myth.

MR. FIDELL: Well, I take your point.

In any event, if I can refer the Court to pages 216 to

218, Your Honor, of the record made before the Board for

Correction of Naval Records.

This, Your Honor, is the workup that Lieutenant

Commander Tinelli (phonetic) prepared, and as I read over

it, I kept on looking for what it was of a psychiatric nature

that started this process rolling. And I came away unnour-

ished. I noted that this was acommand initiated psychiatric

evaluation. I noted that the reference to Dr. Voge’s claimed

reluctance to do clinical medicine in view of her function as

more administrative and regulation oriented; her perceived

administrative function has caused this Court between the

squadron and its flight surgeon, who was a coworker, she

was offered an opportunity to polish her clinical skills and

so forth.

This is not matters of a psychiatric nature. At the

end of the next paragraph, Dr. Tinelli observes that Dr.

Voge could not appreciate the seriousness of the present

and past situations. In other words, that Dr. Voge appeared

to be at cross-purposes with the command. That is not an

assertion of a psychiatric disorder.

The next paragraph, she was instructed by the CO

to improve relations with her coworker but the situation in

the last two months has deteriorated and she is now

alienated from virtually the whole hospital community.

Well, that doesn’t say to me and I think to a reason-

able reader, this is a person who requires psychiatric

attention.

The final incident on page 2 has to do with a specific

procedure employed in the clinic. It has to do with whether

a male medical foreman can under any—conduct unsuper-

vised pelvic examinations. Dr. Voge, this chit says, defended

her actions as being within regulations. She never accepted

the fact that a junior corpsman should not do pelvic

examines on an unsupervised routine basis.

This doesn’t talk the language of psychiatry, Your

Honor. It goes on. She and her husband, who is also a naval

officer, by the way, appear to have a stable and enjoyable

relationship. Read the last paragraph. Mental status exam.

Now we are getting warm. Now we are talking about what

you see a psychiatrist about—presented—it’s a wonderful

word that physicians love and psychiatrists love—presented

as a neatly attired female, clear sensorium, speech normal

in rate, appropriate in syntax, affect cheerful but unable to

appreciate the seriousness of her present situation, namely,

the command was angry at her.

She gave the impression of taking pride in battling

alleged discrimination against her, overall appearance of

being distant and unemotional. I know a lot of people who

are distant and unemotional, and I think it would be

absurd to think that those are the things that lead you to

a psychiatrist interview.

Thought processing was logical and coherent, and

her thought comment was dominated by the self-perceived

discrimination against her. No evidence of any psychotic

thoughé and so on.

Opinion—the naval air station clinic has deteriorated

from an integrated and functioning unit to almost total

demoralization and chaos.

That’s not a psychiatric representation. It’s an

administrative representation. Whether or not it’s true, this

is ridiculous as a basis for causing this naval officer and

physician to be subjected to a diagnosis and to be required

to go to the mainland for further workup by other psychia-

trists.

When she did get that further workup, as I know

the Court knows, she was found fit for full duty. We have

in this reeord—the Government, Your Honor, in it’s papers,

stressed the Supreme Court’s decision in the Lorion Case.

I’m not sure of the pronunciation. L-o-r-i-o-n against

Florida Power and Light, which says that you judge these

matters on the record made here—on the record made

before the agency and not some new record. We couldn’t

agree more.

The record before the BCNR hasn’t got a syllable of

refutation for the fact that Dr. Tenelly confessed to my

client that his diagnosis was bogus and it hasn’t—

THE COURT: Did the board ever discuss that?

MR. FIDELL: Not that I recall. The board’s treat-

ment of this case, Your Honor, to be perfectly honest was

perfunctory.

THE COURT: Well, without regard to that, did they

specifically address the affidavit or statement that the

plaintiff makes that the author of this report had stated to

her that it was command influence, and but for that, she

would not have— .

MR. FIDELL: I recall no such reference, Your

Honor.

THE COURT: I can’t find it.

MR. FIDELL: I don’t see how an agency can make

a decision where the evidence is unrebutted on the record

that a factor like that played a role. It seems to me that a

decision only one way is possible.

THE COURT: Well, but— (pause)

MR. FIDELL: While I am at the store on that

particular point, Your Honor, another point that is not

rebutted is Dr. Voge’s representations that shortly after she

arrived at Guam, the commanding officer, Captain Bramlett

(phonetic), who caused the psychiatric process to be

initiated, said to her that he had heard all about her and

that he knew that she was troublemaker, his word. This is

unrebutted.

If you look—this is why I referred to the substantial

evidence on the record as a whole test and Universal

Camera—

THE COURT: (Interposing) Well, the board may

have found out that she was a troublemaker. I mean—

MR. FIDELL: Say it again, please?

THE COURT: That she was. I don’t know that they

did, but—

MR. FIDELL: The question is not whether she was

or not. The question is whether the well was poisoned

against her because of actions that she had taken in her

capacity as the medical advisor at the Naval Safety Com-

mand, which may have brought her into conflict with the

medical management of the Bureau of Medicine and

Surgery, and when a person, when the well is poisoned

before a person even gets to Guam, never mind why she

happened to be sent to Guam. Frankly, people used to joke

about that when I was on active duty about being sent

there, but this is not a process that is anything near the

kind of disinterested official determination that the Admin-

istrative Procedure Act and that Section 1552 contemplates.

Finally, and we stress this in the last submission

that we made, Your Honor, the suggestion in the Secret-

ary’s papers that the reason Dr. Voge received a fit-for-full-

duty report at the conclusion of her visit to Balboa Naval

Hospital was because she had been treated there is ludi-

crous. I will go no further than to simply ask that the

Court review the record references that we have given in

this regard. There was no treatment, and any suggestion to

the contrary is really an imposition on rational thinking.

With respect to the fitness reports and passovers, I

think that they stand or fall on what I have already said,

and that being the case, I would simply offer to respond to

any questions you may have, sir. Thank you very much.

MS. KIMBALL: May it please the Court, this case

represents a difference of opinion between Commander

Voge, who is a naval officer and a medical doctor, and her

medical superiors about her medical competence while she

was stationed in Guam.

THE COURT: Well, what have you to say, though,

about the statement which is in the record and apparently

not addressed, or at least I can’t find it in the board’s

decision by the plaintiff, that this doctor who rendered the

report we have been discussing, page 218 of the record, has

stated to her that report was command-influenced?

MS. KIMBALL: Well, of course this is a statement

by Commander Voge, Your Honor.

THE COURT: Sure.

MS. KIMBALL: It isn’t necessarily evidence.

THE COURT: And if the board rejected it, that’s

fine, but the board didn’t even address it.

MS. KIMBALL: Well, the board did address the

psychiatric reports, Your Honor. That will be at page 9 of

the report.

THE COURT: Don’t you think that that was an

important aspect? This psychiatric report, despite the

subsequent one that exonerated her from psychiatric

problems, is a very damning—its conclusion is very damn-

ing to the plaintiff. It says she is paranoid and some other

terms that I am not, that I don’t understand. But it seems

to me that it’s there, and to what extent it was relevant in

the actions taken with regard to the plaintiff, when the

board didn’t even address it, we really don’t know.

MS. KIMBALL: Well, what the board did say is that

they find that the psychiatric evaluations and medical

board report were properly entered in petitioner’s naval

record. Now, that suggests under the standard that the

board operates under, which is to correct an error or

remove an injustice, that they found no error or injustice.

Beyond that, Your Honor, I can’t speculate.

While the plaintiff was stationed in Guam due to the

multiple instances of poor medical judgment on her part

and also due to the evidence of interpersonal problems that

she was having, the commander asked the staff psychiatrist

to evaluate Commander Voge. Even though the staff

psychiatrist made a diagnosis, he also recommended that a

second opinion be obtained. That second opinion of course

was the one obtained at an independent facility in San

Diego.

THE COURT: Is that Balboa?

MS. KIMBALL: The Balboa, yes, Your Honor, it is.

What’s at stake here really is the obligation and the

responsibility of the Department of the Navy to insure that

their medical doctors are competent to treat naval person-

nel and their dependents. That’s what at issue here.

THE COURT: Well, nobody denigrates the impor-

tance of that. But what does concern me is the very thing

I have just been discussing with you. Here is what she said

in her certification: on August 19, 1982, Tenelly—that’s the

doctor that said she was paranoid—he stated that he only

gave me a psychiatric diagnosis because he was ordered to

do so by the commanding officer, Bramlett, the man who is

alleged to have been giving the plaintiff a hard time from

the minute she arrived in Guam—and he only wanted to

know why I was sent to Guam for them to, quote—oh, and

that Captain Bramlett had been ordered to do so by

BUMED, which is a—what is BUMED?

MS. KIMBALL: Bureau of Medicine, Your Honor, I

believe.

THE COURT: He stated they wanted to know why

I was sent to Guam for them to quote, “‘Do all that to me.”’

I would have thought that would have been some-

thing the board would have addressed in its decision.

MS. KIMBALL: Well, we don’t have any evidence

really that it didn’t.

THE COURT: We have the board’s decision.

MS. KIMBALL: We have the board’s decision and—

THE COURT: And it doesn’t mention that.

MS. KIMBALL: It doesn’t go into that specific detail,

no.

THE COURT: It doesn’t go into it at all.

MS. KIMBALL: It has a paragraph which addresses

the fact that they did review the psychiatric reports. That’s

all we can tell from a review, that’s correct, Your Honor.

The standard here is whether the plaintiff can

demonstrate by cogent and clearly convincing evidence to

this Court that the decision of the Board of Corrections of

Naval Records was arbitrary, capricious, contrary to law or

not supported by the evidence. She has failed to make that

showing her. There is really nothing more that I can add to

that, Your Honor, unless you have some further questions.

THE COURT: You don’t think that the failure to

address that allegation is arbitrary? It’s a serious allegation.

MS. KIMBALL: The question is, was there a per-

ceived error? Was there an injustice? That’s the question

that we have to ask here.

THE COURT: If what she says is true, then that

psychiatric record in her record is an injustice, isn’t it? If a

doctor has put in her record a statement that she is

paranoid on order of a commanding officer, and that is why

he did it, and that remains in her record, that’s an injus-

tice, isn’t it?

MS. KIMBALL: Well, it’s possible that Your Honor

would send this case back to the Department of the Navy

and ask them to look into that question.

THE COURT: That doesn’t answer all of the

plaintiff's complaints about this decision, but that’s the one

that jumped out at me.

MS. KIMBALL: Well, certainly. Well, perhaps I can

address some of the other questions that have been raised

by the plaintiff in this case.

The plaintiff maintains that it was these two

individuals who were responsible for raising the question

about her medical competence. Well, that isn’t true. If you

look at pages 184 and 185 of the administrative record, it

talks about where the evidence of her, the instances of her

poor medical judgment are taken from, a review of the

emergency room treatment records, random sample of

outpatient entries, a letter from apparently the husband of

a patient who had been treated there. Also, criticisms from

her fellow coworkers about the suboptimum treatment that

Commander Voge was giving to patients there.

There is certainly sufficient evidence in this record,

and I would refer the Court again as I did in the brief, to

pages 187 to 198, 199 to 202, where there are multiple

instances of medical incompetence that were demonstrated

by Commander Voge.

THE COURT: And it may well be that the board

would not have changed its ultimate decision in the matter

as to her, or in a finding that her incompetence was

established in the record or her deficiencies, but—

MS. KIMBALL: I think you can conclude based on

the decision of the Board of Correction of Naval Records

that they corrected the errors that they perceived and they

did correct some errors. And beyond that, they felt that the

plaintiff had been treated fairly during the credentialing

process. They thought that the psychiatric reports vere

appropriately entered in this record. That’s really all we

can say, but it seems to be sufficient.

Beyond that, I have nothing more to add. I would

simply state that this decision is supported by the record,

by this very ample record and that it should be affirmed.

MR. FIDELL: May I be heard very briefly, Your

Honor.

THE COURT: Yes. If I find, as you may have

gathered I am leading towards finding, that the failure to

address this particular issue warrants a remand, and it

seems to me that’s the remedy, that won’t guarantee that

with the absence of that in the record, if the board should

decide that that ought to be expunged from her re-

cord—when I say that, I am talking about that report.

MR. FIDELL: Yes, Your Honor.

THE COURT: I don’t know how that would affect

their ultimate decision or the passovers or the other

matters of which you complain. That is the matter that

concerns me the most. But I am not sure that beyond a

remand, at this stage, any further relief can be obtained. I

would like you to address that.

MR. FIDELL: And I appreciate the opportunity to do

that, Your Honor.

In deciding whether the PCNR should be afforded a

further opportunity to function on this case, I would ask on

Dr. Voge’s behalf that the Court be mindful of the fact that

she has had to live with this—

THE COURT: (Interposing) I know this thing has

been going on—

MR. FIDELL: Since 1982.

THE COURT: —a disgracefully long time, but there

is not much I can do about that.

MR. FIDELL: But in framing the remand, it seems

to me the Court has discretion as to whether or not to

deem this matter closed based on the agency record, and

make a decision whether the Secretary’s decision is sup-

ported by substantial evidence with respect to the psychiat-

ric reports. I think—

THE COURT: Where does that leave you?

MR. FIDELL: Well, as to the psychiatric—

THE COURT: We don’t know whether other

evidence in the record, even if the board is directed to

consider that or even if I find that, as you suggest, that I

ought to myself strike it from the record.

MR. FIDELL: Yes. We ask for an injunction.

THE COURT: But where does that leave you? That

doesn’t promote her.

MR. FIDELL: No, it doesn’t promote her, but let

me—the reason that I gave for the architecture that I did

at the beginning of my presentation this morning, Your

Honor, is because these matters in addition to being part of

a single res gestae, have independent significance to my

client. She has an independent segregable interest in having

no improper psychiatric records in her official file. She has

an interest in having that, regardless of the sequela[e]—

THE COURT: But all I have is her bare allegation

of that.

MR. FIDELL: You have an agency record not

supported by substantial evidence. Otherwise, there is

never going to be—

THE COURT: But normally in these APA appeals,

and that’s what this really, all that this is—

MR. FIDELL: Yes.

THE COURT: If the agency fails to address a subject

or an issue, the proper course is for the Court to remand it,

not for the Court to decide itself how it would have resolved

the issue had the matter been presented to it.

MR. FIDELL: Let me suggest that there is a sense

in which counsel has made a good point. She contends that

the BCNR by implication ruled on this matter. That was

her presentation. If so, the matter is at an end in terms of

the evidentiary process.

THE COURT: Yes, but they didn’t—I mean, if they

did, they didn’t say anything about it.

MR. FIDELL: Their attorney has made a represen-

tation on this, and I would treat, and I think the Court

would be on firm ground, particularly given the passage of

time, the Court would be on firm ground in treating that as

a representation that the record is at an end for purposes

of that psychiatric issue. I think that there is a judgment

that can be made properly in terms of framing injunctive

relief. We are here before you in your capacity as the

chancellor, and you have some discretion in framing the

injunction. We think in determining whether the remand is

ant aes AAS lal an Aah ANE AEB Ct H8 ae ib Rican

Lae eae th H

the injunctive remedy that’s appropriate, because that is an

equitable remedy, as opposed to drawing the white sheet

over this controversy if at all possible. We think you have

the discretion and we think that we have by far the better

of the argument, in terms of the interest at stake, and the

damage that has been done.

I would say that on the other side of the scale, there

is nothing, because the Navy will in no way be harmed by

excision of that psychiatric record, because my client,

number one, has ultimately been found fit for full duty, and

number two, she is a functioning naval officer even as we

speak.

So when you apply your chancellor’s yardstick to

this, I would hope that you would give very sympathetic

attention to the fact that this controversy like others has to

be drawn to a close.

As to the psychiatric report, we don’t think there is

a substantial basis for affording the Navy a further oppor-

tunity to remedy the matter that has been known about for

over seven years.

Now, Your Honor, there is one thing that I have

neglected to address in my opening remarks, and may I

simply invite your attention to the fact that I referred to in

a footnote. Because we were sent two different records in

different order, we were compelled, for no fault of my

client, to revise our brief in this case. And that occupied

four-and-one-half hours of time. I would ask the Court to

give attention to whether that expense ought to be borne

by the Secretary in the circumstances. Thank you very

much, Your Honor.

THE COURT: I would like to hear from the defen-

dant on the scope of relief. This matter has been going on

now for a long time.

MS. KIMBALL: It was originally brought in the

United States Court of Claims by the plaintiff.

THE COURT: And went up to the Federal Circuit

and cert was denied and back down to the District Court

and then the District Court ultimately, after waiting a time,

sent it over here.

MS. KIMBALL: That’s correct.

THE COURT: There comes a time, even with

administrative records, because, to reopen this thing now,

I don’t know what was the date of the decision—

MR. FIDELL: Three-and-a-half years ago, almost

four years ago, Your Honor.

THE COURT: The personnel on that board has

changed.

MS. KIMBALL: Commander Voge of course chal-

lenged her records when the case was pending in the Court

of Claims. It’s through no fault of the defendant that the

Federal Circuit determined that the Claims Court didn’t

have jurisdiction, Your Honor. But the question here is, you

know, the question that they are asking is to have this

Court consider the fitness of Commander Voge. That is the

problem here. And if Your Honor concludes after looking at

the record that in your opinion there is some question

about whether the board’s decision is complete then the

proper response to that of course would be to remand it

back, with directions for the board to take a look at that

question.

But the ultimate question is how is that going to

affect the ultimate outcome in this case?

THE COURT: We don’t know.

MS. KIMBALL: That’s true, we certainly don’t.

THE COURT: That’s what concerns me. I am not in

a position to decide.

MS. KIMBALL: It certainly won’t affect the ability

of Commander Voge to be considered for retroactive

promotion as she has asked. It will be a very narrow

question, what to do about the report.

THE COURT: All right. This case deserves, just as

a matter of mercy, a decision and a final decision, but I am

afraid that the appropriate remedy here is to remand the

case, because except for the issue that I have raised, and

that is the allegation which the decision of the board does

not address, that this psychiatric report, which appears in

the record at page 216, I think, was command-influenced

and command-ordered. I find that the due-process rights

were otherwise met insofar as this plaintiff’s treatment is

concerned, but because I’m not sure what, if they decided

it, I mean, if they considered it, the board would do with

this allegation and whether they would find it unfounded,

whether they would, despite it, they would still come to the

conclusion that they did, whether they would decide that

that psychiatric record ought to be removed from her file,

or her record, I just don’t know.

They are in a better position to decide those things

than I. So, the motion for summary judgment of the

plaintiff will be granted to that limited extent. I will

remand the case to the board for reconsideration of its

decision after a consideration of the statements contained

in the plaintiff's May 24, 1985, certification, and whether

and to what extent that will affect their ultimate decision.

Beyond that, I am unwilling to interfere with the

board’s decision. But that will be my order in the matter.

MR. FIDELL: If the Court please, will the Court

entertain a fee application?

THE COURT: Under the— (pause) I would be

encouraging you to waste your time.

MR. FIDELL: You have answered my question.

Thank you.

THE COURT: I will prepare the order.

(Whereupon, the proceedings in the above-captioned

matter were concluded.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

VICTORIA M. VOGE,

)

Plaintiff, )

)

Vv. ) CIVIL ACTION

) NO. 89-1441-A

SECRETARY OF THE NAVY, )

)

Defendant. )

ORDER

For the reasons set forth in the Memorandum

Opinion this day filed, it is ORDERED that:

1. The motion of the plaintiff, Victoria M. Voge, for

summary judgment is denied.

2. The motion of the defendant, Secretary of the

Navy, for summary judgment is granted.

3. The appeal of the plaintiff from the March 4, 1993

decision of the Board for Correction of Naval Records is

dismissed, and that decision is affirmed.

/s/ Albert v. Bryan, Jr.

United States District Judge

Alexandria, Virginia

October 13th, 1993

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

VICTORIA M. VOGE,

)

Plaintiff, )

)

Vv. ) CIVIL ACTION

) NO. 89-1441-A

SECRETARY OF THE NAVY, )

)

Defendant. )

MEMORANDUM OPINION

This action is an appeal, pursuant to the Administra-

tive Procedures Act, from a decision of the Board for

Correction of Naval Records (BCNR). Originally before the

court on January 15, 1990 on cross motions for summary

judgment, the action was at that time remanded to the

BCNR to consider whether an April 12, 1982 report of a

psychiatric examination which diagnosed the plaintiff as

having a “‘[pJaranoid personality manifested by over-suspi-

ciousness, hypervigilance, and restricted affectivity” was

command influenced.

The order of remand refers to the issues raised by

the plaintiff's May 24, 1985 statement. The plaintiff now

argues that the plural use of the word allowed and directed

the BCNR on remand to explore issues other than whether

the report was command influenced, including a reexamina-

tion of the underlying correctness of the April 12, 1982

report and new issues raised by a more recent communica-

tion from the author of the report.

The court disagrees. The use of the plural was

unfortunate, but the succeeding clause in the first para-

graph makes clear that the issue raised by the May 24

statement which the court felt needed exploration by the

BCNR was whether the report was command influenced.

The BCNR has complied with the remand. It

considered both the plaintiffs statement and the statement

of the officer who had allegedly influenced the report,

Captain Charner W. Bramlett. He unequivocally denies

ordering any diagnosis of the plaintiff. The BCNR also

considered the statement of Dr. Eugene T. Tinelli, the

author of the 1982 repurt. While declining to respond to the

inquiries of the BCNR, Tinelli did respond to the plaintiff's

inquiry and produced a letter, dated October 30, 1990,

which in agreement with Bramlett unequivocally denies any

order from Bramlett to perform a psychiatric examination

of the plaintiff. Finally, the BCNR sought an advisory

opinion regarding the performance of Tinelli from a

psychiatrist, Captain John M. Mateczun, who opined that

Tinelli’s diagnosis was within a degree of competence

expected of a reasonable, prudent psychiatrist.

The plaintiff challenges the independence of Matecz-

un, pointing out that he is a naval officer. The report is

apparently objective, and Mateczun’s naval connection does

not warrant its being disregarded. The report adds little to

the question whether Tinelli’s 1982 report was command

influenced; however, it does provide evidence that the 1982

diagnosis was professionally supportable.

The statements of Bramlett and Tinelli, and to a

lesser extent that of Mateczun, provide substantial evidence

for the decision of the BCNR on remand that the 1982

report was not command influenced.

Nor does the manner in which the matter was

handled on remand evidence arbitrary or capricious behav-

ior on the part of the BCNR in arriving at its decision.

Although it held no evidentiary hearing which would have

permitted an opportunity for a more informed credibility

decision, none is required; and the BCNR, having the entire

record before it, was well within its competence in resolving

the issue on that record. It is no fault of the BCNR that

Tinelli would not respond to its inquiries, but rather had to

have his comments elicited at the plaintiff's request.

That the BCNR did not have the benefit of Tinelli’s

letter until after its first post-remand report of October 4,

1990; and that it did not address the post-remand evalua-

tions of the plaintiff by Dr. Raymond M. Costello, a psychol-

ogist, and Dr. Terence F. McGuire, a psychiatrist, do not

alter the court’s view as to the arbitrary or capricious

nature of the Board’s decision. McGuire and Costello attack

the underlying 1982 diagnosis. Mateczun addressed this

also to some extent, but the underlying correctness of the

diagnosis, unless it was command influenced, was not a

subject of the remand. The underlying correctness of that

diagnosis had, of course, already been addressed in the

original, February 4, 1986 decision of the BCNR.

Tinelli’s October 30, 1990 letter raises some prob-

lems for the plaintiff. Rebuffed in her hope for confirmation

of her position on remand, namely, that Tinelli’s 1982

report was command influenced, she seeks to gain comfort

from other contents of the letter. First, she says that

property read the letter undermines the correctness of the

1982 diagnosis. But this is not what Tinelli says. He never

concedes, as Mateczun points out, that his 1982 diagnosis

was wrong. He says that “with the clarity of almost a

decade of hindsight, I would not diagnose [Dr. Voge] with

Paranoid Personality,” but wishes that he had given her a

diagnosis of “‘Diagnosis Deferred.” This does not support

the plaintiff's argument that Tinelli in effect now says that

there was “‘no diagnosis” in 1982.

Second, Tinelli’s letter launches an attack on the

Navy’s treatment of the plaintiff, which the plaintiff seeks

to use as a further basis of her claim of injustice and her

challenge to the correctness of the April 1982 report and

the May 12, 1982 evaluation and recommendation by the

Psychiatry Department at the Naval Regional Medical

Center in San Diego.' To use Tinelli’s letter in this way

requires a change, indeed a reversal, of a substantial

portion of the plaintiff's arguments prior to remand. Prior

to remand the plaintiff took the position that she had

suffered an injustice because the reports of her alleged

“trouble-making”’ propensities had preceded her when she

went to Guam, causing her supervisors there to be predis-

posed to treat her unfairly. Tinelli, on the other hand,

faults the Navy for not having notified the command on

Guam that there were any “prior problems concerning Dr.

Voge’s behaviors.” He elaborates on this as follows:

This presented a major problem since Dr.

Voge thought that we knew information

about her prior to her arrival and we didn’t.

She thought we were watching her very

closely and, after a while, we were. When we

tried to be friendly and helpful, as individuals

and as a medical group, she became more

suspicious and more defensive. Thus, on

Guam, she appeared over-suspicious and

paranoid, even though some of this suspi-

ciousness may have been justified. The hospi-

tal command and many of my fellow physi-

cians and physician’s assistants went to great

lengths to try to work with Dr. Voge, howev-

er she rejected the help. My gut feeling is

that if we had been properly informed by

personnel at her prior command, this pro-

* The substance of this report is beneficial to the plaintiff; however,

her reason for wanting it expunged is that the very fact of having been

referred for such an evaluation is a harmful mark on her record.

gressive tragedy of over-suspiciousness may

never have occurred.

How to reconcile these viewpoints was the plaintiff's

problem, but Tinelli’s opinion was there for the inquiring

prior to remand, and indeed, presumably prior to the

original February 4, 1986 decision of the BCNR. The court

is unwilling at this date, even if competent to do so, to

undertake to reconcile the two positions, or to use Tinelli’s

arguments to find support for the plaintiff's claim for

injustice.

Accordingly, the motion of the defendant for summa-

ry judgment will be granted, and that of the plaintiff

denied.

/s/ Albert V. Bryan, Jr.

United States District Judge

Alexandria, Virginia

October 13th, 19938

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

WASHINGTON, D.C. 20370-5100

DJU: vmt

8827-85

4 February 1986

From: Chairman, Board for Correction of Naval Records

To: Secretary of the Navy

Subj: VOGE, Victoria M. CDR, MC, USN, 040-58-

0657/2100; Review of naval record

Ref: (a) Title 10 U.S.C. 1552

End: (1) DD Form 149 dtd 18Sep85 w/attachments

(2) 1611 NMPC-32CC/75 memo of 1Nov85

(3) 5420 NMPC-22M memo of 27Nov85

(4) 5420.L NMPC-06L memo of 17Dec85

(5) Subj’s counsel’s Itr dtd 3Feb86

(6) Microfiche record

1. Pursuant to the provisions of reference (a), Subject,

hereinafter referred to as Petitioner, filed written applica-

tion, enclosure (1), with this Board requesting the follow-

ing, quoted from pages 100 and 101 of her counsel’s brief:

a. Declare invalid and remove from all records

any and all references to the proceedings of

the NRMC [Naval Regional Medical Center]

Guam Credentials Committees which con-

vened on 9 Mar 1982, 27 May 1982 and 17

June 1982.

b. Remove from her records all references to

each and every administrative action, docu-

ment, letter, message or report of CAPT

Bramlett and CAPT Rahe and/or their superi-

ors, agents, subordinates and employees,

flowing from, regarding or touching on the

proceedings set out in paragraph a, above.

Correct her records to show that her formal

credentials application of 22 Dec 1981 was

favorably acted upon and she was granted

the defined clinical privileges therein request-

ed with an effective date of 24 Feb 1982 (the

date her temporary privileges were due to

expire).

Expunge all Naval documents and references

thereto (wherever located, including, but not

limited to, Naval Hospital, San Diego and

Naval Hospital, Guam (formerly NRMC,

Guam) concerning the psychiatric reports

rendered on applicant by LCDR Tinelli,

NRMC Guam on 12 April 1982 and by the

Psychiatric Department, NRMC, San Diego,

CA on 12 May 1982.

Remove from her record the entire adverse

fitness report (31 Oct 1981—16 June 1982)

rendered by CAPT Bramlett and delete from

the successive fitness report rendered by

CAPT Rahe (17 June 1982—1 April 1983)

any references to the decredentialing proceed-

ings and require Navy to insert an appropri-

ate and nonprejudicial explanation for the ab-

sence and deletion.

Correct her record to show that she has been

entitled to additional Special Pay, without

interruption, since 1 July 1982 and that the

denial of such pay for a period of three years

was based on illegal considerations. She

further requests that she be awarded the

appropriate back additional Special Pay due

under Navy regulations.

g. Correct her records to show that her Article

1388, UCMJ [Uniform Code of Military Jus-

tice] complaint of wrongs, dated 10 August

1982, was found to be meritorious by CHBU-

MED [Chief, Bureau of Medicine and Sur-

gery] and approved by the Secretary of the

Navy and, as far as now possible, show that

her requested redress was granted.

h. Correct her records to show her Article 138,

UCMJ complaint of wrongs, dated 5 May

1983, was found to be meritorious and was

approved upon final review by the Secretary

of the Navy and, as far as now possible, show

that her requested redress was granted

including a specific finding that the investiga-

ion by CDR Baggs and actions thereon by

3UMED were contrary to law and regula-

d therefore null and void.

i. Following\the correction of her records,

request her fdider be considered by a special

promotion board\If selected, grant her retro-

active promotion Wth service credits, back

pay, and all other bertefits appertaining.

2. The Board, consisting of Messrs. Hens) Courtney and

Schultz, reviewed Petitioner’s allegations‘ef error and

injustice on 30 January 1986 and completed te delibera-

tions this date. Pursuant to its regulations, the Board

determined that the corrective action indicated below

should be taken on the available evidence of record.

Documentary material considered by the Board consisted of

the enclosures, naval records, and applicable statutes,

regulations and policies.

3. The Board, having reviewed all the facts of record

pertaining to Petitioner’s allegations of error and injustice,

finds as follows:

a. Before applying to this Board, Petitioner exhaust-

ed all administrative remedies which were available under

existing law and regulations within the Department of the

Navy. ,

b. Petitioner, a medical ofticer with a flight surgeon

specialty was attached to NRMC, Guam, from 31 October

1981 to 31 March 1983. She was assigned to the Branch

Clinic. Petitioner also served as an advisor to the Com-

manding Officer (CO), U.S. Naval Air Station, Guam.

c. Upon her arrival at NRMC, Guam, Petitioner was

granted temporary clinical privileges for 90 days. This was

standard procedure for all newly reporting physicians. As

indicated at paragraph 3.f below, this observation period

was extended for another 90 days. On 17 June 1982 the

NRMC, Guam, Professional Credentials and Standards

Committee (hereinafter the credentials review committee)

recommended that Petitioner’s temporary clinical privileges

be revoked and that she not be credentialed to practice

medicine at NRMC, Guam (enclosure (1), Tab A).

d. On 15 July 1982 the CO, NRMC, Guan, instituted

the recommendation of the credentials review committee

and revoked Petitioner’s clinical privileges (enclosure (1),

Tab B). That same day the CO cancelled Petitioner’s

assignment as a flight surgeon to the branch clinic and

reassigned her as special assistant for quality assurance

matters (enclosure (1), Tab C).

e. As a result of the action of 15 July 1982, Petition-

er’s special medical pay was cancelled (enclosure (1), Tab D

refers).

f. Prior to the 17 June 1982 credentials review

committee meeting, the committee had two other meetings

that dealt with Petitioner’s clinical privileges. The first

such meeting took place on 9 March 1982. Concerned with

some of Petitioner’s medical judgments, the credentials

review committee extended Petitioner’s initial observation

period for an additional 90 days (enclosure (1), Tab E). The

meeting of 9 March was convened pursuant to NRMC-

GUAMINST 5420.9, which was based upon BUMEDINST

6320.54.

g- On 27 May 1982 there was a second credentials

review committee meeting to reevaluate Petitioner’s case

(enclosure (1), Tab F). After reviewing the cases where

Petitioner’s judgment had been called into question (see

enclosure (1), Tab G) the credentials review committee

voted to recommend that the CO, NRMC, Guam, consider

adverse action against Petitioner (enclosure (1), Tab F).

This 27 May 1982 meeting was convened pursuant to

NRMCGUAMINST 6320.16 which was based on BUMEDI-

NST 6320.62 of 29 May 1981. As a result of the 27 May

1982 Committee meeting, the CO, NRMC, Guam, suspend-

ed Petitioner’s clinical privileges on 2 June 1982, pending

a “full and fair evaluation” by the committee (Tab G,

enclosure (1)).

h. Petitioner objects that the only one of the three

credentials review committee meetings she was invited to

attend was the last one, held on 17 June 1982.

i. Petitioner. contends that the first committee

meeting of 9 March 1982 was not valid because it was

convened pursuant to an instruction, BUMEDINST

6320.54, that had been superseded by BUMEDINST

6320.62 of 29 May 1981. The latter instruction, according

to Petitioner, does not provide for an extension of tempo-

rary privileges. A copy of the pertinent portion of BUMED-

INST 6320.62 is at enclosure (1), Tab H.

j. Petitioner contends that the 27 May 1982 meeting

should be found null and void because she was not invited

to attend even though the credentials review committee

was considering whether to recommend adverse action in

her case. She further contends that BUMEDINST 6320.62

does not allow for a hearing to contemplate adverse action

Petitioner contends that because the 27 May 1982 meeting

was flawed, so was the 17 June 1982 meeting, thereby

causing all actions taken as a result of the 17 June 1982

meeting to be proper.

k. Petitioner also contends that the 27 May 1982

meeting was unfair in that the chairman of the credentials

review committee, who was also the Director of Clinical

Services, and the Chief of Internal Medicine both excused

themselves from participation because of prior involvement

in the case, but neither physically left the meeting room.

1. According to Petitioner another reason that the 17

June 1982 was improper is that several of the committee

members from the 27 May 1982 meeting also participated

in the 17 June 1982 meeting.

m. The portions of BUMEDINST 6320.62 which are

applicable to this case are as follows:

Para. 14-9 Periodic Reevaluation

a. Before expiration of temporary privileges and

annually, upon the anniversary of the initial grant

of defined privileges, the credentials committee must

review the current granted clinical privileges. The

request for reevaluation of clinical privileges with all

endorsements (appendix 14-4) and significant perfor-

mance data on each clinical staff member shall be

evaluated. After this review, the credentials commit-

tee must make specific recommendations to the

commanding officer regarding renewal of privileges.

Para. 14-11. Fair Hearing Plan

The following actions are considered adverse: sus-

pending, limiting, or revoking privileges previously

granted by the same activity.

a. Whenever adverse action is contemplated, the

practitioner shall be afforded effective and timely

notice of the right to the following procedural

safeguards:

(2) A meaningful hearing before the creden-

tials review committee at which time there must be

an opportunity to be heard in person and present

evidence.

d. The commanding officer shall ensure, to the

extent practicable, that members of the credentials

review committee hearing a particular case can be

objective and independent in their deliberations. Any

member with prior involvement in the matter being

considered should normally be excused from taking

part.

n. During the period between the 9 March 1982

meeting and the 27 May 1982 meeting Petitioner had a

medical consultation with the staff psychiatrist. The consult

was dictated and typed on 12 April 1982. The staff psychia-

trist diagnosed Petitioner as having a paranoid personality

(enclosure (1), Tab D.

o. On 18 April 1982, on the recommendation of the

staff psychiatrist that a second opinion be obtained,

Petitioner was admitted to NRMC, San Diego, where she

became the subject of a medical board. The diagnosis and

finding of the medical board was “‘No diagnosis or condition

on Axis I, #V710.9” and Petitioner was returned to full

duty (enclosure (1), Tab I). Petitioner filed a rebuttal to the

medical board report.

p. After revocation of her clinical privileges, Petition-

er filed two complaints of wrong against the CO, NRMC,

Guam. The complaints were filed pursuant to Article 138,

UCMJ. Both complaints were denied.

q. The two fitness reports about which Petitioner

complains are actually three. They are for the periods 31

October 1981 to 16 June 1982, 17 June 1982 to 31 August

1982 and 1 September 1982 to 31 March 1983. Copies of

these reports are at Tabs A, B and C, respectively.

r. The fitness report for the period 31 October 1981

to 16 June 1982, Tab A, was prepared upon the detachment

of the reporting senior. It is an adverse report which places

Petitioner in the lowest possible category in ‘‘Mission

Contribution”; recommends against her promotion; and

contains mostly “‘I’’ grades, the lowest possible. The narra-

tive comments are uncomplimentary and cite instances of

allegedly poor medical judgment on Petitioner’s part. The

narrative also contains language which refers to the

prospective review of Petitioner’s clinical privileges by the

credentials review committee. The narrative states that the

committee has advised that an adverse recommendation is

contemplated. Petitioner was afforded an opportunity to

review this report and filed a rebuttal thereto.

8. The fitness report for the period 17 June 1982 to

31 August 1982, Tab B, is a “not observed”’ report. It was

prepared by the “new” reporting senior, who became the

CO, NRMC, Guam, one day before the final meeting of the

credentials review committee in Petitioner’s case. The

narrative comments state that because of the credentials

review committee actions Petitioner has been without

clinical privileges and therefore no opportunity has existed

to observe her in the practice of medicine. Petitioner’s

signature does not appear in block 82 of the report, nor

does her record contain any indication that this report was

referred to her for comment.

t. The fitness report for the period 1 September 1982

to 31 March 1983, Tab C, was prepared upon the detach-

ment of Petitioner. This report is rendered adverse by the

comment that the credentials review committee had

recommended against clinical privileges for Petitioner. The

report was referred to Petitioner and a rebuttal was filed

thereto.

u. Petitioner has completed clinical retraining as

recommended by the credentials review committee meeting

of 17 June 1982 and has gone on to a new duty station

where she has performed rather well (enclosure (1), Tabs K,

L and M refer).

v. At enclosure (1), Tab N, are 12 letters from

various individuals who have known Petitioner and attest

to her competence as a flight surgeon.

w. The advisory opinion at enclosure (2), submitted

by the Director, Military Personnel Evaluations Division,

Naval Military Personnel Command (NMPC), recommends

partial relief in regard to the contested fitness reports. That

office concludes that the entries concerning prospective

credentials committee action are inappropriate and should

be removed from the report for the period 31 October 1981

to 16 June 1982, Tab A. The opinion recommends outright

removal of the report for the period 17 June 1982 to &

August 1982, Tab B. Even though the report is a “not

observed” evaluation, the advisory opinion notes that it

contains adverse comment and as such should have been

referred to Petitioner, but was not. The opinion recom-

mends against removing the report for the period 1 Septem-

ber 1982 to 31 March 1983, Tab C, unless her complaints

concerning the decredentialing process are found to have

merit.

x. The advisory opinion at enclosure (3), submitted

by the Director, Officer Promotions and Enlisted Advance-

ment Division, NMPC, states the following:

In my opinion, removal of the three NRMC

Guam reports would have substantially

increased the competitiveness of [Petition-

er’s] overall performance record with those of

peers also eligible before the FY-86 board.

Should BCNR determine that [Petitioner’s]

petition has merit and remove the three

reports in question, removal of her failure of

selection would be warranted.

Liaison with the office that submitted this opinion revealed

that the references to “three” reports should read “‘two”’,

referring to the two reports with respect to which the

opinion at enclosure (2) recommends relief.

y. The advisory opinion at enclosure (4), submitted

by the Office of Legal Counsel, NMPC, recommends no

corrective action, except for the revisions in the fitness

report for 31 October 1981 to 16 June 1982 recommended

by the opinion at enclosure (2) and referral, rather than

removal, of the report for 17 June 1982 to 31 August 1982.

Concerning the 9 March 1982 meeting, the Office of Legal

Counsel makes the following finding:

Although such action was apparently con-

trary to the new regulation, it’s [sic] practical

effect was to extend the time under which

[Petitioner] would be “under observation”

prior to a final decision on her credentialing;

it did not permanently affect her status or

have direct bearing on the subsequent actions

of either the committee or commanding

officer.

Additionally the opinion addresses as follows the allegations

of irregularities surrounding the meetings of 27 May 1982

and 17 June 1982:

I am not convinced that any of these alleged

“irregularities” require corrective action by

BCNR. The two-tiered system about which

petitioner complains actually afforded her

greater protection than the “one-look” sys-

tem for which she apparently would argue.

If fact, the two-tiered system seems to be the

desired method since the requirement for no-

tice only arises after an initial determination

that the deciding authority contemplates

adverse action. That authority can only

contemplate adverse action if (1) he makes

such determination on his own without the

benefit of review or recommendation, or (2)

he uses the review and recommendation

procedures established by the regulation. Not

only is the latter preferred, it seems to be

supported by the procedures established in

BUMEDINST 6320.62. That instruction also

provides that a commanding officer shall

ensure, to the extent practicable, that mem-

bers of the credentials review committee

hearing are objective and independent. While

he should normally excuse members with

prior involvement from taking part in the

hearing, it is not mandatory. Since I do not

feel the members of the 17 June hearing

were less than objective and independent, I

do not concur with petitioner’s contention

that the hearing must be disregarded.

z. Enclosure (5) is Petitioner’s counsel’s rebuttal to

the advisory opinions at enclosures (2) through (4). He

essentially reiterates the contentions outlined above.

CONCLUSION:

Upon review and consideration of all the evidence of record,

and concurring with the advisory opinion at enclosure (2),

the Board finds an injustice warranting correction of the

fitness report for 31 October 1981 to 16 June 1982 (Tab A)

by removing the last two sentences from the first page of

the narrative and the last sentence from the second (last)

page of the narrative. In further concurrence with the

opinion at enclosure (2), the Board finds that the entire

fitness report for the period 17 June 1982 to 31 August

1982 (Tab B) should be removed. The Board finds that

referral of the report at this late date, as proposed by the

NMPC Office of Legal Counsel, would provide an inade-

quate remedy. The Board finds that no other relief is

warranted.

The Board agrees with the NMPC Office of Legal Counsel

opinion at enclosure (4) regarding Petitioner’s complaints

of procedural irregularities in the decredentialing process.

The Board concludes that Petitioner was treated fairly in

this process. The supporting statements at enclosure (1),

Tab N, do not persuade the Board that the contested

fitness reports are substantively erroneous or unfair.

Accordingly, the Board finds no basis for granting further

relief in regard to Petitioner’s fitness reports or for grant-

ing relief regarding her entitlement to special pay.

The Board finds that Petitioner’s selection by the FY86

Staff Captain Selection Board would have been unlikely,

even if her fitness report record had been corrected as

recommended above. The Board finds that removing the

references to prospective review of Petitioner’s clinical

privileges does not alter the tone of the report ending 16

June 1982. The Board finds that even with the removal of

these sentences, the report remains extremely adverse in

both marks and comments. The Board is convinced that the

proposed revisions of that fitness report, coupled with the

removal of the “not observed” report for 17 June 1982 to

31 August 1982, would not have significantly enhanced

Petitioner’s competitiveness before the FY86 Staff Captain

Selection Board.

The Board finds that the psychiatric evaluations and

medical board report were properly entered in Petitioner’s

naval record. The Board notes that Petitioner was aware of

each medical report at the time made and chose to rebut

the medical board report.

The Board notes in passing that it does not consider itself

empowered to entertain Petitioner’s request concerning her

Article 138, UCMJ, complaints. In this regard, the Board

notes that evidence of her Article 188 complaints should

not and does not appear in her own naval record. Moreover,

Article 138 of the UCMJ provides a statutory avenue for

relief separate and independent from that involving the

military correction boards.

In view of the foregoing, the Board recommends the

following limited corrective action:

RECOMMENDATION:

a. That the fitness report for the period 31 October

1981 to 16 June 1982, dated 14 August 1982, signed by

Capt C.W. Bramlett, USN be corrected by removing the last

two sentences from the first page of the block 88 comments

and the last sentence from the second (last) page of the

block 88 comments. The sentences to be removed from the

first page of the block 88 comments read as follows:

This period expires on 12 June 1982 and a

preliminary report of the Credentials Com-

mittee has advised that an adverse recom-

mendation is contemplated. She will appear

before this committee formally on 17 June

1982.

The sentence to be removed from the second page of the

block 88 comments reads as follows:

She is aware that her future in the N avy may

be in jeopardy and that it will depend upon

the recommendation of the Credentials Com-

mittee meeting of 17 June 1982.

b. That Petitioner’s naval record be corrected further

by removing therefrom the following fitness report:

Date Reporting Period of Report

of Report Senior From To

31Aug82 CAPT R.H.Rahe, USN 17Jun82 31Aug82

c. That there be inserted in Petitioner’s naval record

a memorandum in place of the removed report, containing

appropriate identifying data concerning said report; that

the memorandum state that the report has been removed

by order of the Secretary of the Navy in accordance with

the provisions of Federal law and may not be made avail-

able to selection boards and other reviewing authorities;

and that such board may not conjecture or draw any

inference as to the nature of the report.

d. That any material or entries inconsistent with or

relating to the Board’s recommendation be corrected,

removed or completely expunged from Petitioner’s record

and that no such entries or material be added to the record

in the future.

e. That any material directed to be removed from

Petitioner’s naval record be returned to this Board, togeth-

er with this report of the Board’s proceedings, for retention

in a confidential file maintained for such purpose, with no

cross reference being made a part of Petitioner’s naval

record.

f. That the remainder of Petitioner’s application be

denied.

4. It is certified that a quorum was present at the Board’s

review and deliberations, and that the foregoing is a true

and complete record of the Board’s proceedings in the above

entitled matter.

/s/ Jonathan S. Ruskin

ROBERT D. ZSALMAN JONATHAN S. RUSKIN

Recorder Acting Recorder

5. The foregoing report of the Board is submitted for your

review and action.

/s/ W. Dean Pfeiffer

W. DEAN PFEIFFER

Reviewed and approved: 7 FEB 1986

/s/ Charles J. Untermeyer

CHASE UNTERMEYER

Assistant Secretary of the Navy

(Manpower and Reserve Affairs)

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

WASHINGTON, D.C. 20370-5100

BJG

Docket No: 220-90

05 October 1990

CDR Victoria M. Voge, MC, USN

D1-8, Maple Ave.

Hatfield, PA 19440

Dear Commander Voge:

This is in reference to your application for correction of

your naval record pursuant to the provisions of title 10,

United States Code, section 1552.

A three-member panel for the Board of Correction of Naval

Records, sitting in executive session, considered your case

on 3 October 1990. The Board was ordered by the U.S.

District Court for the Eastern District of Virginia to

reconsider removing from your record a medical report

dated 12 April 1982 in light of you statement dated 24 May

1985. The Board also considered your request to remove a

fitness report for 1 September 1988 to 31 August 1989.

Your allegations of error and injustice were reviewed in

accordance with administrative regulations and procedures

applicable to the proceedings of this Board. Documentary

material considered by the Board consisted of your applica-

tion, together with all material submitted in support

thereof, your naval record and applicable statutes, regula-

tions and policies. In addition, the Board considered its file

on your prior case, docket number 8827-85. The Board also

considered the advisory opinion furnished by the Naval

Military Personne! Command dated 31 January 1990 and

your former commanding officer’s letter dated 10 Septem-

ber 1990, copies of which are attached. Finally, the Board

considered your rebuttal statement dated 1 March 1990 and

counsel’s letter dated 19 September 1990.

After careful and conscientious consideration of the entire

record, the Board found that the evidence submitted was

insufficient to establish the existence of probable material

error or injustice regarding the contested fitness report. In

this connection, the Board substantially concurred with the

comments contained in the advisory opinion.

The Board again found that the medical report of 12 April

1982 should stand. The Board was unable to find, despite

your statement of 24 May 1985, that the report was the

result of coercion. In this regard, the Board particularly

noted the statement from the former commanding officer.

Counsel contends that since the psychiatrist who submitted

the report did not respond to your “‘charges of professional

misconduct’’, he concedes the charges are true. The Board

did not agree, noting that the psychiatrist himself did not

acknowledge receipt of your statement of 24 May 1985,

therefore, he has not concurred with your assertions by

failing to respond. A copy of the return receipt is enclosed,

showing that it was signed by someone other than the

psychiatrist.

In view of the above, the Board voted to deny relief. The

names and votes of the members of the panel will be

furnished upon request.

It is regretted that the circumstances of your case are such

that favorable action cannot be taken. You are entitled to

have the Board reconsider its decision upon submission of

new and material evidence or other matter not previously

considered by the Board. In this regard, it is important to

keep in mind that a presumption of regularity attaches to

all official records. Consequently, when applying for a

correction of an official naval record, the burden is on the

applicant to demonstrate the existence of probable material

error or injustice.

Sincerely,

/s/ W. Dean Pfeiffer

W. DEAN PFEIFFER

Executive Director

Enclosures

Copy to: Eugene R. Fidell, Esq.

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

WASHINGTON, D.C. 20370-5100

BJG

Docket No: 14033-90

04 March 1993

CDR Victoria M. Voge, MC, USN

RR 3, Box 73

Gonzales, TX 78629

Dear Commander Voge:

This is in reference to your applications of 4 October 1990,

3 December 1990, and 25 April 1991 for correction of your

naval record pursuant to the provisions of title 10, United

States Code, section 1552, in which your requested removal

of the fitness report for 1 September 1989 to 31 August

1990, sought reconsideration of your previously denied

request for removal of the psychiatric evaluation dated 12

April 1982, and made a new request for removal of the

psychiatric evaluation dated 4 September 1990.

A three-member panel of the Board for Correction of Naval

Records, sitting in executive session, considered your

applications on 3 March 1998. Your allegations of error and

injustice were reviewed in accordance with administrative

regulations and procedures applicable to the proceedings of

this Board. Documentary material considered by the Board

consisted of your application, together with all material

submitted in support thereof, the Board’s file on your latest

previous case (docket number 220-90), your naval record

and applicable statutes, regulations and policies. In addi-

tion, the Board considered the advisory opinion form the

Naval Military Personnel Command Military Personnel

Evaluations Division (NMPC-32D), dated 27 December

1990, and the memorandum from the Specialty Advisor for

Psychiatry, dated 21 January 1992. The Board also consid-

ered your rebuttal letter dated 12 February 1991 with

attachment, and your counsel’s rebuttal letter dated 30

November 1992 with attachments.

After careful and conscientious consideration of the entire

record, the Board found that the evidence submitted was

insufficient to establish the existence of probable material

error or injustice. In this connection, the Board substan-

tially concurred with the comments contained in the

advisory opinion from NMPC-32D and the memerandum

from the Specialty Advisor for Psychiatry. Accordingly, the

relief requested in your three latest applications has been

denied. The names and votes of the members of the panel

will be furnished upon request.

It is regretted that the circumstances of your case are such

that favorable action cannot be taken. You are entitled to

have the Board reconsider its decision upon submission of

new and material evidence or other matter not previously

considered by the Board.

In this regard, it is important to keep in mind that a

presumption of regularity attaches to all official records.

Consequently, when applying for a correction of an official

naval record, the burden is on the applicant to demonstrate

the existence of probable material error or injustice.

Sincerely,

/s/ W. Dean Pfeiffer

W. DEAN PFEIFFER

Executive Director

Enclosures

Copy to:

Eugene R. Fidell, Esq.

6000.16

21 Jan 92

MEMORANDUM

From: CAPT J. Mateczun, MC, USN, Specialty Advisor for

To:

Subj:

Ref:

Encl:

Psychiatry, c/o Force Surgeon’s Office, Headquar.

ters, Fleet Marine Force, Pacific, Camp H.M. Smith,

HI, 96861

Board for the Correction of Navai Records, Washing-

ton, D.C. 20870-5100

BOARD FOR CORRECTION OF NAVAL RECORDS

ADVISORY OPINION ICO CDR VICTORIA M.

VOGE, MC, USN, 040-58--0657/2100

(a) Memorandum from Chairman, BCNR of 11 Jun

(b) Memorandum from Chief, BUMED (MED 3B5)

of 20 Jun 91

sor)/LT Hustetler (BUMED) of 9 Jul 91

(d) Memorandum from Chief, BUMED (MED 35B1)

of 30 Jul 91

(e) PHONCON Mr. Brian George (BCNR)/CAPT

Mateczun (Specialty Advisor) of 21 Jan 92

(1) BCNR File

(2) Microfiche Service Record

(3) Medical Record

(4) Additional medical information forwarded

with reference (d)

1. Reference (a) requested an advisory opinion from

BUMED in the subject case and reference (b) forwarded the

request to the Specialty Advisor for Psychiatry with

Enclosures (1) through (3) for review, professional opinion

and recommendation regarding the SNO’s request. Refer-

ence (c) was a request to BUMED from the Specialty

Advisor for Psychiatry for additional medical information

not contained in the Enclosures; the Medical Board Report

of 12 May 1982 and the Report of Psychiatric Consultation

of 8 Feb 89. Reference (d) forwarded the additional infor-

mation requested. Reference (e) requested return of the

report directly to BCNR.

2. This reviewer is a Diplomate of the American Board of

Psychiatry and Neurology in Adult Psychiatry and also a

Diplomate of the American Board of Forensic Psychiatry. In

the preparation of this report the enclosures were reviewed.

No interview of the applicant was performed and the report

is correspondingly limited. I apologize for the time con-

sumed in the preparation of this report. I had begun review

of this complex request for correction of records from a

physician lodging serious allegations and subsequently

received short notice orders for a permanent change of

station which I have executed. Rather than have another

reviewer begin the review from scratch I retained and

completed it myself.

3. Recommend the request for removal of the NAMI

psychiatric evaluation from the Navy’s records be denied.

4. The application for correction of records contends that

the psychiatric evaluation was “invalid” citing as sup-

porting evidence:

a. An “independent psychiatric (sic) evaluation days

before the Navy evaluation” which “found no pathology,

personality or otherwise.” This apparently refers to Enclo-

sure (2) to the application “Psychological report by Dr. R.

Turner, Head of Outpatient Psychiatric Services, Temple

University, dtd 17 Sept 1990, with Dr. Turner’s C.V.”

Comments: The evaluation referred to was per-

formed by a doctorate level psychologist who is licensed to

practice clinical psychology. The report of the evaluation is

a summary of psychological test findings without raw data.

Although the findings are of interest they comprise only a

portion of what would be considered a psychiatric evalua-

tion. The structured interviews that were used are reliant

upon accurate self-report by the patient. No outside sources

of information were reported.

The report includes no psychiatric history. Without

a psychiatric history no psychiatric evaluation or diagnosis

would be complete or valid. Although knowledge of previous

evaluations is cited in the report there is no evidence that

they were reviewed by the evaluator nor is any history

contained within the previous evaluations addressed by the

report.

Of concern is apparent bias of the evaluator reflected

in the statement “. . .it appears that the Navy has attempt-

ed to utilize psychiatric reasons for sabotaging Dr. Voge’s

career.” The statement is made in the “Reason for evalua-

tion” section and contains no data which would support

such a conclusion.

In summary, as a reviewer | placed little value on

this evaluation in supporting the petitioners request.

b. BUMED letter Serial NAMI 9008712 and dated 22

Oct 90 cites the psychiatric evaluation performed at NAMI

and finds CDR Voge physically qualified but not aeronau-

tically adapted due to a personality disorder. BUMED

letter, Serial 02/0167, dated 18 Nov 90 and signed by

RADM Buckendorf is cited in support of the application by

CDR Voge with a parenthetical comment that “(para 2

states psych report not supportable)”’. The letter supersedes

and cancels the finding of physically qualified but not

aeronautically adapted. Paragraph 2 of the cited letter

notes that the concept and applicability of aeronautical

adaptability need better definition and opines that until

changes are approved the basis of the disposition in CDR

= __—¥oge’s case would not withstand close scrutiny.

Comment: There is no reference to any problem with

the psychiatric evaluation at NAMI in either of these

documents. The interpretation by CDR Voge in her paren-

thetical comment is not supported by the evidence in the

documents.

c. The petitioner also cites ““My comment for the

record re: NAMI psychiatric evaluation dtd 4 Sept 1990”

dtd 1 Oct 91, with enclosures’’. In that ““comment” she

alleges ‘“‘distortion of facts, use of information out of

context, and frank fabrication” in her psychiatric evalua-

tion at NAMI. She includes enclosures to support her

allegations to include:

(1) “My memo, dtd 1 Sep 90; brief summary of

events during my NAMI evaluation, (27 August to 30

August 1990”. This consists of short statements summa-

rizing from CDR Voge’s viewpoint the evaluation period.

Comments: There is nothing in the way of factual

material that would serve as evidence that the evaluation

was improperly conducted.

The statement that ‘‘—All psychological tests were

read as normal’ deserves comment. The testing results

recorded in paragraph 5 of the report of psychiatric evalua-

tion are descriptive of functioning and not necessarily

normative in nature.

The results of the psychological testing performed at

NAMI may have been affected by CDR Voge having

received many of these same psychological tests some

eleven days prior to their administration at NAMI. The

neuropsychologist who administered and interpreted the

testing was informed of the previous test (per CDR Voge’s

report in her memo of 1 Sep 90). Additionally, the inter-

pretations by Dr. Turner from Temple (“. ..The only deficit

finding is that . . . she would clearly rather stick to facts

and concrete reality than attempt to generate and construct

new ideas and inventions.’’) and Dr. Moore from NAMI (“.

. . obsessive concern with being accurate, being precise and

preferring to minimize ambiguity and constrain affective

displays. There was a tendency to over-simplify input in

order to make the world seem less threatening . . .”’) are

akin and would seem to reliably relate to obsessive defenses

and rigidity.

(2) “My memo, dtd 1 Sep 90; sequence of events

during my psychiatric evaluation at NAMI”’. This is a day

by day description by CDR Voge of her recollections of the

evaluation process.

Comments: The focus is primarily an iteration of

CDR Voge’s perceptions and reiteration of the facts as she

sees them. There is nothing in the way of factual informa-

tion that would indicate lack of an adequate evaluation.

The memorandum in fact details a lengthy evaluative

process.

The statement contained in 29 Aug—p.m. that “I

reminded him Dr. Tinelli told me he lied, and that he was

told to do so by the CO who was told to do so by BUMED”

is directly contradicted by Dr. Tinelli’s letter of 30 Oct 90

64°

to CDR Voge’s attorney which is contained in the BCNR

file. The 29 Aug—a.m. report relates CDR Voge’s expecta-

tion that the evaluation team at NAMI would “follow

orders” as did the CO and psychiatrist on Guam. As noted

by CDR Voge’s attorney in his letter of 3 Dec 90 “‘succumb-

ing to command influence in matters of psychiatric diagnos-

tics (sic) is a grave breach of professional ethics.” The state-

ments appear to rely on innuendo in that there has appar-

ently been no professional society complaint or request for

investigation initiated. Further, as the number of indepen-

dently licensed professionals involved in an evaluation:

increases it would become less likely that such a breach

could occur.

(3) ‘Rebuttal of NAMI psychiatric evaluation dtd 1

Oct 90”’. This is a line item review of the report with rebut-

tal comments.

Comments: The rebuttal comments offer nothing

that would be evidence that the evaluation was inadequate

or unprofessionally conducted.

There are some corrections to the history that are to

be expected in such a lengthy report. However, taken singly

or as a whole, the corrections would not change the result

of the evaluation.

Recollections and phrasing about information may be

expected to vary. As an example CDR Voge notes in her

“‘sequence of events’”” memorandum that on 29 Aug 90 “I

opined one cannot be honest and succeed in the Navy.”’ The

psychiatric report relates that CDR Voge said “‘. . . that ‘all

Navy senior officers’ were dishonest.” In her rebuttal CDR

Voge recalls that she “. . . did say all senior Navy officers

I KNOW (which are relatively few in number) are dishon-

est. That wouldbe an accurate statement.” Such differenc-

es do not generally affect the outcome of a psychiatric

evaluation nor do they appear to have affected the outcome

of this evaluation.

CDR Voge’s focus on CAPT Baggett in the rebuttal

does not adequately reflect the involvement of the rest of

the NAMI team in the evaluation process.

d. In summary comment, the evidence submitted in

support of the application offers nothing substantive to

show that the psychiatric evaluation at NAMI was improp-

erly or unprofessionally conducted.

4. Separate from the evidence submitted by CDR Voge in

her petition should be the question of whether or not a

reasonably prudent psychiatrist could have made the

diagnosis of personality disorder based on the examination

and information available.

a. This requires review of the diagnostic criteria

provided by the Diagnostic and Statistical Manual of

Mental Disorders (Third Edition—Revised) (Hereafter

DSM-III-R) that should have been utilized as well as a

review of previous examinations.

(1). DSM-III-R offers diagnostic criteria for mental

disorders as “guidelines” reflecting a consensus of current

formulations in psychiatry. The introductory section on

Personality Disorders notes that:

“Personality Traits are enduring patterns of perceiv-

ing, relating to, and thinking about the environment and

oneself, and are exhibited in a wide range of important

social and personal contexts. It is only when Personality

traits are inflexible and maladaptive and cause either

significant functional impairment or subjective distress that

they constitute Personality Disorders. The manifestations

of Personality Disorders are often recognizable by adoles-

cence or earlier and continue throughout most of adult life,

though they often become less obvious in middle or old age.

The diagnostic criteria for the Personality Disorders

refer to behaviors or traits that are characteristic of the

person’s recent (past year) and long-term functioning since

early adulthood. the constellation of behaviors or traits

causes either significant impairment in social or occupation-

al functioning or subjective distress.”

(2) It must be noted that only one parameter

distinguishes between personality traits and personality

disorders—the personality disorder must cause significant

impairment. There are however, no specific criteria as to

what constitutes significant impairment and judgment may

vary. This is inherent in the clinical context. Historical

information as to onset of problems is often difficult to

acquire in a manner that is accurate and unbiased by the

patient’s current circumstances. There should also be noted

the requirement that the behaviors or traits must reflect

long-term functioning since early adulthood to constitute a

personality disorder.

(3) The question underlying whether a prudent

psychiatrist could make a diagnosis of personality disorder

can be phrased as “‘Could a reasonably prudent psychiatrist

have formed the judgment that CDR Voge’s behaviors or

traits caused significant impairment in social or occu-

pational functioning?”

b. A review of the record reveals the following:

(1) CDR Voge had a psychiatric evaluation by LCDR

Eugene Tinelli at USNRMC Guam with report dated 12

April 1982. The report documents concisely and specifically

the behaviors leading up to the evaluation, the past history,

the mental status examination and the diagnostic impres-

sion. The diagnostic impression was of Paranoid personali-

ty. (The diagnosis in 1982 would have been made under

DSM-III criteria.) The opinion section spells out why the

judgment was formed that the impairment manifested by

CDR Voge was judged to be significant. The recommenda-

tion was for evaluation and recommendation by the

Psychiatry Department at NRMC San Diego.

(2) Dr. Tinelli authored a letter to CDR Voge’s

attorney dated 30 Oct 90. In that letter he says he is still

angry that “. . . the command on Guam was never notified

that there were any prior problems concerning Dr. Voge’s

behaviors . . .” He does not say that he considers his

diagnosis to be in error. He does state that question could

be best evaluated ir observing how she has per-

formed during the past nine years.” In retrospect he feels

that he would prefer to have described her oversuspicious-

ness and behavior in a narrative form and deferred diagno-

sis pending referral for evaluation. He does not say that the

oversuspiciousness and behavior were not significant.

Nothing in this letter indicates any basic change in the

clinical data.

(3) A medical board report dated 12 May 1982

documented the report of a psychiatric evaluation per-

formed at NRMC San Diego. During that evaluation

psychological testing was performed and “revealed an

insecure, conventional, and indecisive woman who represses

or denies her feelings.” A major area of difficulty at that

time was noted to be “extreme indecisiveness’”’ which was

exaggerated to the point of sometimes being unable to

reach a decision and instead “‘she hedges her answers with

disclaimers rather than making any clear statement.”

Additionally “‘hysteroid characteristics”’ where noted where

she tended to “‘lose control over her emotionality and to

react with overt behavioral expression when under stress

and tension.”” CDR Voge was diagnosed with “‘hysteroid and

obsessive-compulsive character traits which tend to get her

into trouble at times of crisis’. This evaluation documents

personality traits which created impairment but which were

apparently not thought to have sufficient historical docu-

mentation as to presence for sufficient time to make a

diagnosis of personality disorder. The board itself is not

clear on this point. The problems noted would otherwise

appear to have been “significant” enough to include in the

formal board report.

(4) CDR Voge had a psychiatric evaluation performed

at Fort Dix, New Jersey with report dated 8 Feb 89. That

report relates the information noted above and noted

subsequent “occupational difficulties” in assignment at

NAS Corpus Christi as well as a “‘phobia’”’ of water which

developed in 1984 and required treatment. The psychiatrist

included a discussion as to what constituted significant

impairment while noting that “‘. . . whatever reality exists

in her being labeled a ‘trouble maker’ sets up a self-fulfill-

ing prophecy in each new assignment .. .”. Given those

considerations he made a diagnosis of personality disorder.

(5) The subject psychiatric evaluation at NAMI

relates with specificity the patterns of behavior of CDR

Voge that have been present since 1981 and the occupation-

al difficulties that have resulted. In addition to previous

occupational difficulties it outlines problems after assign-

ment to the Naval Air Development Center. The behavioral

observations made hy the team during the evaluation

process are consistent with the difficulties noted by the

previously reported difficulties in occupational functioning.

The results of psychological testing showed areas of

ey TA BS RAR Te a es EAL Y Wi RETR

difficulty not dissimilar from previous testing in the past.

The summary paragraph of the report specifically outlines

the maladaptive behaviors and traits and delineates why

they constitute significant impairment.

c. Based on the information available it is my

opinion that a reasonably prudent psychiatrist could have

formed the judgment that the behaviors and traits reported

caused significant impairment in occupational functioning

and in occupationally related interpersonal relationships. It

is also my opinion that a reasonably prudent psychiatrist

could have made the diagnosis of personality disorder based

on that judgment, on the examination, and on the historical

information available.

Very Respectfully,

/s/ J. Mateczun

J. MATECZUN

Copy to:

Chief, Bureau of Medicine and Surgery (MED-25), Wash-

ington, D.C. 20372-5120

The University of Texas

Health Science Center at San Antonio

7703 Floyd Curl Drive

San Antonio, Texas 78284-7792

Medical School

Department of Psychiatry

July 2, 1992

Mr. Eugene R. Fidell

Attorney at Law

Feldesman, Tucker, Leifer, Fidell & Bank

2001 L Street, N.W.

Suite 300

Washington, D.C. 20036

Dear Mr. Fidell,

On June 17, 1992, I conducted an Independent

Psychological Evaluation with Virginia Voge, M.D., one of

your clients. I understand that Dr. Voge has an application

pending with the Board of Correction of Naval Records,

docket No. 14, 033-90 and that this IPE and perhaps others

as well may be used in support of her application. I ex-

plained to Dr. Voge that my task as an Independent

Psychological Evaluator would be to gain as fair and

impartial an understanding of her as I could and could, in

no way, guarantee that the evaluation results would be

favorable to her in her quest for a correction of her Naval

records. She indicated that she understood this condition of

the evaluation and agreed to participate fully and to the

best of her ability to disclose information about herself

which would characterize her fairly and accurately. We met

for slightly more than five and one-half hours and she

indeed appeared to live up to her contract. She was cooper-

ative and forthcoming.

I understand that in cases such as this there is no,

or very slim, opportunity for Deposition to clarify whatever

opinion is expressed. Therefore, this report will be quite

detailed. I apologize for its anticipated length and hope that

the informational content wil] be sufficiently substantive to

warrant the time and effort of reading. I have tried to be

fair and impartial as an “Expert” consultant and am

prepared to testify in whatever format is ordinary and

customary in such matters in the hopes of being of service

to all parties involved. I wil] give my considered opinion

with regard to the psychological state of Dr. Voge and, at

your request, will also comment on the documents listed

below in areas within my purview of training and expertise

as they pertain to the important issues of this matter.

As Director of the Psychodiagnostic and N europsy-

chology Laboratory, I evaluate approximately 250 individu-

als per year with the psychological test instruments used in

this case. I have evaluated more than 2500 individuals since

1982 when I assumed this Position and from 1971-1982

evaluated 2500 or more persons in other professional

capacities. I teach and supervise psychodiagnostic can

neuropsychological appraisal on a daily basis to psychology

and psychiatry residents and to medical students. I am

reasonably confident that my prior training and profes-

sional experience in conducting evaluation has prepared me

to offer an opinion in the matter at hand. I am a duly-

licensed Psychologist in the State of Texas (#916), hold the

Diplomate (#38101) in Clinical Psychology from the Ameri-

can Board of Professional Psychology, am a licensed Health

Service Provider (#10015) in Texas and the United Siates,

was granted a Ph.D. in Clinical Psychology from the

University of Tennessee in 1971, was tenured as an Associ-

ate Professor in 1978, and since 1986 have been a tenured

Professor in the Department of Psychiatry, UTHSCSA. My

professional resume is attached for additional information

concerning my professional background and accomplish-

ments. I have been a testifying consultant in 25 cases

involving legal matters providing written reports in every

case. I have been deposed 3 times.

This IPE was conducted using an unstructured

clinical interview which covered the essential details of Dr.

Voge’s current predicament with the U.S. Navy, her current

occupational and marital situation, her developmental and

family-of-origin history, her educational history; and four

psychological tests, all of which are ordinary an customary

evaluation instruments utilized by myself as Director of the

Psychodiagnostic and Neuropsychology Laboratory at the

University of Texas Health Science Center to San Antonio

and all accepted by the professional community as ordinary

and routine. The tests were unstructured (Murray’s

Thematic Apperception Test and Rorschach’s Inkblot Test),

semi-structured (Sach’s Sentence Completion Test) and

structured (Cattle’s Clinical Analysis Questionnaire)

Procedures purported to reveal important aspects of

personality functioning and allowing conclusions to be

drawn with reasonable psychological certainty with regard

to personality characteristics and traits and presence of

personality disorder.

In addition to the five and one-half hour face-face

encounter with Dr. Voge, prior to seeing her, I had re-

viewed carefully, and in detail, three documents which were

provided by your office June 2 by Federal Express. These

documents were: (1) a 9-17-90 Psychological Report written

by Ralph McMillan Turner, Ph.D., Professor and Director

of Psychiatry Outpatient Services, Temple University,

Philadelphia. This report was drawn after Dr. Turner’s six-

hour IPE of Dr. Voge on 8-17-90; (2) a letter dated 10-30-90

frame; and (3) a Memorandum 6000.16 dated 1-21-92 from

Capt. J. Mateczun, MC, USN, Specialty Advisor for Psychia-

try, Camp H.M. Smith, HI to the BCNR wherein he

detailed an Advisory Opinion ICO CDR Victoria M. Voge,

MC, USN 040-58-0657 2100. Subsequent to my evaluation

records which might shed light), concerning results and

conclusions of other psychiatric or psychological evaluations

conducted either independently or by Naval personnel.

These records consisted of: (4) a Medical Record Narrative

Summary dated 4-12-82 signed by Eugene T. Tinelli, LCDR

MC USN; (5) a Report of the Medical Board, Naval Region-

al Medical Center, San Diego, California, dated 5-13-82 and

signed by R.I. Ridenour CDR MC USN and C. Floyd LT MC

USNR reflecting their conclusions drawn from a psychiatric

evaluation of Dr. Voge conducted while she was hospitalized

for such a purpose from 4-13-82 to 5-12-82 in San Diego; (6)

a one page Consultation Sheet dated 4-27-82 reflecting the

opinion of a Psychology Intern (B. Harbinger, Ph.D.) and

signed by her supervisor (H.W. N athan, Ph.D., LCDR MSC

USN) based upon her evaluation of Dr. Voge while she was

hospitalized; (7) a rebuttal of the report of the Medical

Board report, undated, but singed by Dr. Voge; (8) a Report

of Psychiatric/Psychological Evaluation dated 2-8-89 singed

by Richard L. Gushwa COL MC, C, Dept. of Psychiatry,

Fort Dix, NJ containing his conclusions based upon an

evaluation of Dr. Voge conducted on 2-2-89; (9) a 26 page

report dated 5-22-89 signed by Suzanne M. Reeps, Techni-

cal Advisor and Captain F.K. Helmsin USN entitled

INVESTIGATION TO IN QUIRE INTO THE CIRCUM.

STANCES SURROUNDING ALLEGATIONS OF FRAUD,

SAFETY VIOLATIONS, HARASSMENT, PERSONALITY

CONFLICTS, AND SUCH OTHER INCIDENTS POTEN-

TIALLY REQUIRING CORRECTIVE ACTION WHICH

ARE REPORTED IN A LETTER OF REQUEST FOR

REDRESS DTD 16 FEB 839; (10) a First Endorsement on

the Helmsin document dated 7-26-89 from C.J. Winters,

Commander, Naval Air Development Center, Warminster,

Pennsylvania to the Judge Advocate General; (11) a Second

Endorsement on the Helmsin document dated 11-17-89

from John C. Weaver, Rear Admiral, USN, Commander,

Space and Naval Warfare Systems Command, Washington,

D.C. to the Judge Advocate General; (12) a Medical Record

Consultation Sheet containing an 8 page Psychiatric Report

dated 6-22-90 by NADC Flight Surgeon LT. R. Hamilton to

NAMI Psychiatry and returned from NAMI to the referring

physician dated 9-4-90 by W.A. McDonald LCDR MC USN,

Jeffrey L. Moore LCDR MSC USN, and J.C. Baggett CAPT

MC USN; (18) a two-page hand-written, psychiatric prog-

ress note dated 8-30-90 taken from the Health Record of

Dr. Voge and signed by J.C. Baggett CAPT MC USN,

Aviation Psychiatry; (14) an 8 page document by Dr. Voge

entitled “BRIEF SUMMARY OF EVENTS DURING MY

NAMI EVALUATION (27 AUGUST to 30 AUGUST 1990)”’,

unsigned and undated; (15) a one page statement dated 11-

18-90 signed by W.A. Buckendorf, Assistant Chief for Fleet

Readiness and Support, Bureau of Medicine and Surgery,

Washington, DC to Commander, Naval Military Personnel

Command regarding QUALIFICATION FOR DUTY

INVOLVING FLYING IN THE CASE OF VICTORIA M.

VOGE, USN, 040-53-0657; (16) a two-page letter from

James R. Hickman, Jr. COL USAF MC CFS to Jerald L.

Ulmer, CDR MSC USN Officer in Charge, Naval School of

Health Sciences, Fort Sam Houston, Texas regarding

Commander Victoria M. Voge, 040-58-0657; (17) a two page

letter dated 4-8-92 from George E. Schwender, M.D., COL

USAF MC, CFS, Commander to Jerald L. Ulmer regarding

Hickman’s letter to Ulmer, (18) a three-page Memorandum

for the Record dated 4-29-92 signed by James R. Hickman;

and (19) a two-page concluding opinion for the record dated

6-9-92 singed by James R. Hickman to Ulmer.

A brief review of the family and academic history of

Dr. Voge is in order. Victoria Voge was born 6-27-43, the

second of three full siblings, with a 1-2 year older brother

and a 9 year younger sister. Older brother was described as

an extension of their father who would report on his sister

whenever he thought his father should know about her

actions or attitudes. He was given caretaking authority for

her, even throughout college, and would handle her money

and drive her to and from college classes. He also became

a physician and practices in Mexico. The sister was diag-

nosed with laryngeal cancer at a very young age, was

treated oncologically with minimal residua, and received

favored treatment from her parents because of her frailty.

Victoria was not allowed to date throughout college and

began to do so only after her father’s death after she had

enrolled in Medical School. Her friends were few, consisting

almost solely of girlfriends, and dedicated to academic

achievements. She felt most loved when she accomplished

academically and her father showered her with praise. She

graduated from Mounds View High School, New Brighton,

Minnesota ranked in the top of four of more than 200

students. She completed the University of Minnesota with

a BA in pre-med in only three years and was on the Dean’s

List (top 10%). Her father retired to Mexico and insisted

that all of his children accompany him, despite his son

having completed one year at the University of Minnesota

Medical School and Victoria’s acceptance for enrollment

there. She attended and completed her medical training at

the National Autonomous University of Mexico in 1971

ranked in the top 100 of a class of more than 2000. In 1972

she was commissioned into the United States Navy, one of

only two females in her Flight Surgeon class of 1973. She

passed the ECFMG and the FLEX on her first attempt, is

licensed to practice Medicine in 5 states, Virginia, Mary-

land, Pennsylvania, New Jersey, and Florida, and is

Boarded in both Aerospace Medicine and Occupational

Medicine. She has earned the M.PH. from Johns Hopkins

and a second M.PH from the Medical College of Wisconsin.

She married a Navy career man in 1976 and they attempted

to juggle two Navy careers until his retirement. He now is

a gentleman rancher in south Texas where both reside as

she is now stationed in San Antonio, Texas. They have no

children of their union as he had previously had a vasecto-

my following the birth of his fourth child from a previous

marriage.

In 1979, Dr. Voge was assigned to the Naval Safety

Center as an 04 Flight Surgeon under an Admiral War-

wick. She was placed into the position of Head of the

Aeromedical Division following the firing of an 06, who had

held the position. She claimed that she was head of the

team which was given specific instructions by her Admiral

which she carried out to the letter with the assistance of

her team. She signed all reports once they were compiled

and double-checked for accuracy. These reports were

statistical and narrative evaluations of all Navy aircraft

mishaps and Safety Surveys critiquing Navy supervision of

pilots and other personnel as alcohol, drugs, fatigue were

implicated in an inordinate number of accidents, with the

further implication that this information had been known

previously and had either been ignored or covered up by

her predecessors. Her Admiral apparently was insistent in

running the Safety Center in a manner such that the

veracity of any document emanating from the Center could

not be impeached. Allegedly, he was fully aware of the

actions of Dr. Voge and accepted the reports of herself and

the team. She described herself as very naive during her

early N avy years. She was one of the first two female Flight

for other branches of Medicine, specialty Hematology

Pathology and then some other specialty. When the reports

which she signed off on caught the attention of the Bureau

of Medicine and surgery, the Navy was apparently embar-

rassed and very unhappy with her. She feels as though she

was scapegoated as retribution for her apparent criticism of

negligent supervision of Navy personnel and her adapta-

tional problems began. She was removed from her position

at the Naval Safety Center (Admiral Warwick may also

have been removed, but my memory fails me here) and

ed for her and preceded her to this assignment. She

believes that following her tour at the [NSC] she never had

an opportunity to work in a neutral setting as she had been

tagged a “trouble-maker” and “not a team player”.

In Guam she soon came to the attention of Eugene

T. Tinelli, M.D., aN avy psychiatrist. She claims that Tinelli

later admitted to her privately that he had been ordered to

give her a psychiatric diagnosis, apparently as part of a

retribution collusion. Tinelli denied this allegation in a

letter to Fidell dated 10-30-90. Tinelli describes the “Chief

Complaint” which framed his evaluation as “command

initiated” and justified by a series of “occupational inter-

personal difficulties” within the first two months of her

assignment as “Director of the NAS Branch Clinic’. His

report indicates that “a number of her administrative and

medical decisions were called into question” and that she

was “questioned about specific incidents by the Command-

sa ee ee ee ee eS ee a a oe ee oe ee ae

_ a os. = wel

ing Officer and Director of Clinical Services”. She apparent-

ly refused to acknowledge wrongdoing and insisted on

administrative authority consistent with her rank and

position. She was ordered to see Tinelli and he was to

accomplish an evaluation of her mental competency and,

apparently, her fitness for duty. She declared her theory of

prejudicial treatment at the behest of BUMED which she

thought was responsible for her assignment to Guam and

to the “discriminatory” treatment she received from time

of arrival. Tinelli rendered an opinion that the NAS clinic

had “‘deteriorated from an integrated and functioning unit

to almost total demoralization and chaos’”’ in the space of

the 5 months following Voge’s arrival. He implicated the

blame for his alleged state of affairs squarely upon Voge

and concluded that her theery was evidence of a Paranoid

Personality Disorder and that she was oversuspicious,

hypervigilant, and had restricted affectivity. He asked for

a second opinion and she was sent to NRMC San Diego for

an inpatient hospitalization and evaluation. In Tinelli’s 10-

30-90 letter to Fidell, he acknowledges that he was “‘still

angry towards some unidentified personnel in the United

States Navy who were responsible for sending Dr. Voge to

Guam’’. He agreed that with hindsight he was able to see

that she had “stepped on some higher ranking officer’s

toes” (in her previous command), and that the “‘end effect

was to send her . . . overseas to Guam. This is an age old

military tradition”’.

Tinelli admits in his 10-30-90 letter to Fidell that

“‘with the clarity of almost a decade of hindsight, I would

not diagnose her with Paranoid Personality” and wishes

that he had deferred her diagnosis at that time. He recog-

nizes implicitly that the characterization as Paranoid was

the label which preceded her into every psychiatric encoun-

ter she was to have subsequently. What is- remarkable to

me is that Tinelli did not in 1982, nor did he acknowledge

79 °

in 1990, any realization that Dr. Voge may have been

traumatized by her removal from her prior to command

and that she might actually have been quite depressed upon

her arrival in Guam. As will be noted later with regard to

subsequent evaluations of Dr. Voge, people who have

Obsessive-Compulsive characteristics, as she has been

shown to have, not uncommonly regress into “paranoid”

stances when they are depressed and it is not until the

underlying motivation and demoralization is discovered that

a truer understanding of the person is possible. Tinelli may,

for reasons only he may know about, have been preoccupied -

with what he considered to be the phenotypic expression

(i.e., the alleged paranoia) and may have been negligent in

his diagnosis of the genotype (i.e., the probable depressive

disorder). Although she probably would have not have met

strict requirements for the diagnosis of Post-traumatic

stress disorder upon her arrival to Guam, she probably was

traumatized sufficiently by her experience at the Naval

Safety Center that a diagnosis similar to PTSD, or Reactive

Depression, or Adjustment Disorder with mixed emotional

features, or some such similar characterization should have

been an obvious consideration. Why the Guam command,

characterized by Tinelli as a “family”, could not recognize

that this new family member may have ben traumatized on

arrival, and chose instead to see her as paranoid and

destructive, is a mystery to be considered more thoroughly.

Dr. Voge was sent to San Diego, California and was

hospitalized at the Naval Regional Medical Center for a

three week (4-18-82 to 5-4-82) period of observation to

evaluate more thoroughly Dr. Tinelli’s appraisal of her as

having a Paranoid Personality Disorder. The medical report

indicates that she was “examined, observed, and evaluated

in individual, group, and milieu settings”. Their bottom line

was “No diagnosis or condition on Axis I, #V710.9”, and

“The Medical Board agrees with the above findings and is

of the opinion that the patient at the present time is

considered psychiatrically fit for return to full duty’’, and

“‘she is now psychiatrically fit for full duty as she does not

evidence any disabling psychiatric condition”. In this

report, an observation of obsessive-compulsive character

traits was noted.

Dr. Voge was “‘decredentialed”’ administratively in

Guam and was sent to Brooks AFB, San Antonio, Texas for

“retraining”. From San Antonio, she was sent to NAS

Corpus Christi, Texas, and from there to NADC Warmin-

ster, Pennsylvania. Apparently, her CO (a CAPT Maroney)

made several trips to Washington, DC (NMPC) where he

sought to have Dr. Voge’s assignment to Warminster

cancelled and diverted to another location. Maroney cited

Dr. Voge’s “‘poor service reputation”’ as justification for his

request. He was unsuccessful and an apparently nightmar-

ish experience ensued after her arrival to NADC 4-6-88,

once Dr. Voge had made the acquaintance of Dr. James E.

Whinnery (a person allowed “‘to assume and execute the

full duties of a flight surgeon with management’s knowl-

edge, although he was not properly credentialed’). The

Helmsin document (#9 listed above) characterizes the

enormous interpersonal struggle between Whinnery and

Voge (perhaps also fairly characterized as an attack of

Whinnery on Voge) and cites that Whinnery wrote 98

memos in 8 months regarding Dr. Voge and that “Most of

these attacked her personally and recommended severe

discipline for minor issues”. What is apparent to me from

reading the Helmsin document was that Voge was never

welcome in Warminster and that occupationally she was

assigned to an intolerable situation, reporting to an officer

who was junior to her, who was not properly credentialed,

who apparently had a reputation of bias against females,

and who may have engaged in a pattern of harassment

against her. The end result of this hellish period of time is

that Voge is ordered by Maroney to submit to another

psychiatric evaluation. Maroney arranged an appointment

for Dr. Voge with COL R.L. Gushwa at Walson Army

Hospital, Fort Dix, New Jersey for 2-2-89. Subsequent to

the appointment and submission of the Gushwa report,

Maroney calls Gushwa and thanks him for his efforts,

telling him that his report will “meet his purposes’’. What

was apparent to Helmasin, as documented in his OPINIONS

(pp. 24 and 26), was that: A) Code 60 management “‘created

a highly unstable work environment fueled by rumor” by

failing to take certain preventative and corrective actions

which he outlines; B) that “events subsequent to the 25

July 1988 meeting between Dr. Whinnery, LCDR Singer,

LT Bennett, and Mr. Pasles were in effect collusion be-

tween Code 60 management and Dr. Whinnery to get rid of

CDR Voge”; C) that the work environment which existed

on Voge’s arrival was “casual” and “undocumented”; and

D) that “Captain W.F. Maroney be formally counselled in

writing regarding the need to more closely monitor person-

nel issues, to judge the issues on their merit (not a person’s

reputation)...”

Dr. Gushwa was unaware of the Helmasin document

as it was prepared 5-22-89 and his evaluation was conduct-

ed 2-2-89. He admits in his report that “there were several

paradoxical, conflicting, and perplexing issues”’, yet he does

not describe what were these issues. He concludes that a

“mixed personality disorder was readily evident” and

characterizes this alleged disorder as “301.90, personality

disorder NOS (not otherwise specified) with mixed features

of paranoid, obsessive-compulsive, and narcissistic features,

moderate severity. LOD EPTS. Not service aggravated’’. He

instructs the reader that “personality disorders are by

definition well formed by mid-adolescence and are so in

flexible and maladaptive as to cause significant functional

impairment in social or occupational functioning of subjec-

tive distress’. He does not specify which, if any, of the

diagnostic requirements for 301.00 (paranoid personality

disorder) or 301.40 (obsessive compulsive personality

disorder) she may have met, yet he claimed that he felt she

met a sufficient number for both, and that this was “‘readi-

ly evident’’. He does not track any characteristic to “‘mid-

adolescence”, yet is himself perplexed that Dr. Voge’s

accomplishments in life are considerable and well beyond

that of which most personality disordered persons are

capable.

Certainly with the benefit of the Helmsin document

the poverty of the Gushwa evaluation is exposed, but even

without the Helmsin document, it is nonetheless apparent

as a remarkably shoddy piece of work. No other alternative,

possible explanation for the occupational circumstances

which precipitated the reason for his involvement in the

case at hand was considered, except for the possibility that

Dr. Voge was personality disordered, and so maladaptive as

to create an intolerable work environment. His claim that

her alleged personality disorder was ‘‘not service aggravat-

ed’’ borders on the ludicrous and raises the suspicion that

he was merely a pawn of an institutionalized bias against

Dr. Voge and that he failed to protect his patient against

abuse which may have been being inflicted upon her. His

ethical requirement to “first do no harm” appeared to have

gone unheeded as he wielded the axe of Psychiatry to

justify what might be construed as administrative tyranny

against a patient who placed her trust in him to perform

his duties as a physician. Certainly in retrospect, with the

Helmsin document as evidence, medical negligence in

diagnosis is certainly a possibility

here.

The next psychiatric evaluation to which Dr. Voge

was required to submit was a four day event (8-27-90 to 8-

30-90) at NAMI, apparently ordered as a direct outcome of

the Gushwa evaluation. According to the NAMI report, it

is apparently consistent with the policy for Navy aviation

personnel with diagnoses of maladaptive personality style

or personality disorders for the NADC Flight Surgeon to

request NAMI consultation. Apparently, this is what

Maroney meant when he telephoned Gushwa to thank him

for his report as it served his purposes with regard to Voge.

At NAMI, over a four day period of time, Voge was inter-

viewed on multiple occasions and/or tested by “two psychia-

trists, one clinical psychologist, one neuropsychologist, and

two Aerospace Medicine Residents”, and she underwent a

“full neuropsychological test battery’’. She was identified as

a psychiatric “patient” who carried a presumptive psychiat-

ric diagnosis of ‘Paranoid personality disorder’ and her

behavior was apparently viewed from the bias that it was

her burden to disprove allegations of “personality disorder”

which caused her occupational difficulties. The NAMI team

declares that the evaluation was conducted because of a

“persistent maladaptive personality style primarily mani-

fested by her tendency to become embroiled in details and

an inflexibility of decision making that prohibits a common

sense application of rules and regulations’’. Nowhere in the

report is it apparent that the NAMI evaluation team

assumed that any other explanation for Dr. Voge’s occupa-

tional predicament was considered. No other persons were

evaluated except for Dr. Voge and no attempt was made to

check the veracity of her claims of prejudicial treatment

against her in the work place. Her conundrum was then,

and is still, of having to prove her sanity in insane circum-

stances.

Nonetheless, despite the obvious conceptual biases

which framed the evaluation for the NAMI team, despite

the bombardment over four days of “multiple clinical

interviews’’, a “full neuropsychological test battery’’, and,

Bea

presumably, full testing by a clinical psychologist, the

bottom line is that the NAMI team convincingly considered

and ruled out paranoid personality disorder, just as had the

NRMC team done in 1982 after an even longer period of

hospital-based observation. The NAMI team concluded

‘Personality Disorder NOS, 301.90”, with “Narcissistic and

Obsessive-Compulsive Features manifested by sense of

entitlement, perfectionism that interferes with job com-

pletion, preoccupation with details, rules and organization

and unreasonable insistence that others submit to exactly

her way of doing things and excessive devotion to work to

the exclusion of leisure activities, over-conscientiousness

and inflexibility and restricted expression of affection”’.

What is remarkable in this conclusion is that it represents

a tautology, i.e., the occupational difficulties are taken, on

their face, as evidence for the alleged condition which is

claimed to have produced them. The NAMI team has not

developed a profile of interview or test data which supports

the claim of personality disorder independently of the real

world data of occupational turmoil upon which they are so

dependent for their conclusions. Would they have come to

the same conclusion on the basis of their interview or test

data alone, without the prejudicial influence of the extra-

clinical data, the validity of which they never confirmed?

Would they have been so confident, even arrogant, in their

opinion if they had had the Helmsin document to consider?

Based upon my years of collecting this sort of data, and

trying to read between the lines of their professional jargon

(i.e., the last few lines of their diagnostic conclusion), I

would say that they could not and would not have.

Just prior to the NAMI evaluation, Dr. Voge sought

the services of Ralph M. Turner, Ph.D., a Professor of

Psychiatry and Psychology at Temple University at Phila-

delphia, Pennsylvania, for an Independent Psychological

Evaluation. Dr. Turner interviewed and tested Dr. Voge

over a 6-hour period of time. The conceptual frame which

he adopted for his evaluation apparently was much differ-

ent than that assumed by the command-ordered personnel.

He stated that since 1978-81, “‘it appears that the N avy has

attempted to utilize psychiatric reasons for sabotaging Dr.

Voge’s career’”’. He conducted an evaluation consistent with

the professional standards which reasonably competent and

licensed psychologists are expected to comply. He also

explicitly ruled out paranoid personality disorder and

further claimed that Dr. Voge did not meet criteria for any

psychiatric disorder or personality disorder. He even went

on to say that “Dr. Voge is singularly one of the most

psychologically healthy individuals the examiner has ever

met”. He then went on to list her attributes; intelligence,

dedication to work and family, dedication to the military

establishment, strong moral convictions, appropriate sex

role adaptation, integrity, and the capacity to withstand

prolonged emotional hardship”.

The BCNR asked BUMED for an advisory opinion in

the case of Dr. Voge and CAPT J. Mateczun MC USN,

Specialty Advisor for Psychiatry, replied. Dr. Mateczun re-

viewed certain documents not including the Helmain report,

which were supplied by BCNR. He never met Dr. Voge. His

bott

This text is long and has been trimmed here. Open the source document for the complete record.

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