# Petition for Writ of Certiorari — Voge v. Dalton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1016

## Text

No. OsFICE OF THE CLERK

In the Supreme Court of the Gnited States

OCTOBER TERM, 1994

VICTORIA M. VOGE, Petitioner,
v.

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?

(D

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

IV
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

V

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

V1

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

A

Hn the Suprem. com. ot te Gimt.. States
OCTOBER TERM, 1994

VICTORIA M. VOGE, Petitioner,
v.

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)

2
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

3

(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

4

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

5

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

6

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-

7

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).

8

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:

9

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

10

[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

11

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.
6.

Reasons for Granting the Writ
I

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.

12

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

13

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

14

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.

II

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

15

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-

16

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

17

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)

2

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

3

finding and seeks a reversal from the court order.
I

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.

Il

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

4

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.

Il

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.

5

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

6

| 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
v.
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

7

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

9

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

10

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.

11

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

12

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—

18

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,

14

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.

15

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.

16

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.

17

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.

18
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

19

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.

20
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

21
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.

22
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

23
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

24

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—

25
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]—

26

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

27

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.

28

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?

29
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.

30

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.

31

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

32

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.

33

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

34

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

35

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.

36

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

37

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-

38

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

39

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-

40

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),

41

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

42

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

43

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

44

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-

45

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).

46

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.

47

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

48

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)

49

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

50

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:

51

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

52
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)

53

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-

54

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

55

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.

56

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

57

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.

59

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
91

(b) Memorandum from Chief, BUMED (MED 3B5)
of 20 Jun 91

(c) PHONCON CDR Mateczun (Specialty Advi-
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

60

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

61
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

62

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 rec

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1052%3A1. Public record. Not legal advice.