RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-02840
COUNSEL:
HEARING DESIRED: YES
APPLICANT REQUESTS THAT:
He be reinstated as a cadet at the United States Air Force
Academy (USAFA).
APPLICANT CONTENDS THAT:
The applicant thru counsel states that despite the challenges he
has faced, he is ready to resume his studies and training in
order to be commissioned.
In September 2010, he started to suffer from headaches, nausea
and vomiting and had difficulties with concentration. In
February 2011, an MRI of his brain identified a tumor that
resulted in surgery to remove the mass.
In 2011, he took a medical leave of absence from the USAFA and
returned in May 2012. Despite a very good recovery, good
academic and military performance and strong support from his
chain of command, the Physical Evaluation Board (PEB) found him
unfit and placed him on the TDRL.
A MEB was convened on 29 January 2013 and found his Primitive
Neuroectodermal Tumor (PNET) made his qualification for world-
wide duty questionable and referred his case to the Informal PEB
(IPEB). On 18 April 2013, the IPEB convened and rated him at
100 percent disabled according to the Department of Veterans
Affairs (DVA) regulations as determined by the Integrated
Disability Evaluation System (IDES). The Formal PEB (FPEB)
convened on 23 May 2013 found him unfit for Category I unfitting
condition of PNET S/P Resection, Craniotomy.
He suffered from a serious brain tumor condition that was
corrected by surgery and removal of the tumor was more than
three years ago. He has remained tumor, cancer and symptom free
for several years. He is fit and ready to serve in any
environment.
In a letter dated 3 October 2014, his doctor writes that he has
not had any seizures since May 2012. The most recent MRI of his
brain from August 2014 shows stable, post-surgical changes, with
no recurrence of the right frontal lobe primitive
neuroectodermal tumor. He has been seizure free for over two
years and wishes to taper off topiramate slowly.
In support of his requests, the applicant provides a statement
from his counsel, chronology of events, medical information and
other various documents associated with his requests.
The applicants complete submission, with attachments, Exhibit
A.
STATEMENT OF FACTS:
According to Special Order ACD-00842 dated 28 January 2014, the
applicant was placed on the TDRL effective 1 February 2014 in
the grade of Cadet Third Class (C3C) with a compensable
percentage for physical disability of 100 percent.
AIR FORCE EVALUATION:
AFPC/DPFD recommends denial of the request to show that the
recommended finding of placement on the TDRL be overturned to
show he is fit and should be returned to duty with admission to
the USAFA. The preponderance of the evidence reflects that no
error or injustice occurred during the disability process. The
applicant submitted a one-page letter from his doctor but it
does not address the information required for his TDRL
evaluation.
The IPEB reviewed the medical board findings on 18 April
2013 for PNET S/P Resection, Craniotomy with a disability rating
of 100 percent. The applicant appealed to both the FPEB and
SAFPC. On 3 January 2014, the SAFPC directed the applicant be
placed on TDRL with a disability rating of 100 percent under the
provisions of 10 U.S.C. § 1202. SAFPC noted: The Board offers
the following rationale for its decision. PNET is a neural
crest tumor. It is a rare tumor, usually occurring in children
and young adults. The overall five year survival rate is about
50 percent and 35 percent in adults over 20 years of age.
Although his prognosis appears to be better than the statistics
suggest, he will require close medical follow-up and will have a
limited ability to deploy for an extended period of time. The
board also notes that the cadet is specifically unfit for duty
under DODI 6130.03, Medical Standards for Appointment,
Enlistment, or Induction in the Military Services, paragraph
30.b, current or history of malignant tumors. The board finds
the member unfit for duty at this time and he should be placed
on the TDRL and re-evaluated in 18 months. The assessment
oncology/hematology at that time should include comments on the
cadets interim course/treatment, current status and treatment,
any duty/activity restrictions, future and anticipated
course/treatment and prognosis (to include specific
mortality/morbidity estimates). Special Order ACD 00842 issued
on 28 January 2014 established the applicants retirement date
as 1 February 2014. The scheduled TDRL appointment will comply
with all the requests directed by Secretary of the Air Force
Personnel Council (SAFPC).
A complete copy of the AFPC/DPFD evaluation is at Exhibit B.
USAFA/A1A states they will evaluate the applicants readmission
according to USAFA 36-2005, Readmission of Former USAF Academy
Cadets, should the applicant be removed from TDRL and applies
for admission.
A complete copy of the USAFA/A1A evaluation is at Exhibit C.
SAFPC recommends denial of the applicants request to return to
duty for the purpose of readmission to USAFA. To grant relief
would be contrary to the criteria established by DODI 6130.03.
While not explicitly prohibited by the DODI, reinstatement would
be inconsistent with its objectives. A person with the
applicants medical history who was not on TDRL status would be
ineligible for appointment to a military academy and denied
commissioning. If the applicant was to pursue return to duty
through the IPEB, and if necessary the FPEB, he might possibly
exceed the age requirement for readmission to the USAFA. In order
to be eligible for readmission, the applicant must not have passed
his 27th birthday on 1 July of the year of graduation.
The applicant contends that he is fit for duty and there is no
reason to question the Commandant of Cadets who indicated the
applicant was fulfilling all duties required of cadets at the
time he was placed on TDRL. His counsel also contends that
SAFPC erred in considering a limited ability to deploy.
Counsels statement is applicable only if one considers the goal
of USAFA attendance to be limited to graduation, and not to
eventual commissioning. In addition, some USAFA cadets have
participated in brief deployments during the course of their
studies.
The applicant also contends that he is cured of his disease.
However, even if the applicants tumor is cured, he is
potentially and still medically disqualified for commissioning
in the Air Force. DODI 6130.03 considers a history of
congenital or acquired anomalies of the central nervous system
or meningocele to be disqualifying for appointment as a
commissioned officer and disqualifying for cadets and midshipmen
at the U.S. Service academies and students enrolled in ROTC
scholarship programs applying for retention in their respective
programs. The DODI does provide some flexibility for members on
the TDRL. In this case, SAFPC was required to place the
applicant on TDRL status by the Veterans Administration Schedule
for Rating Disabilities (VASRD) per 38 U.S.C. § 1155. VASRD
code 8002 requires that a 100 percent disability compensation
rating for malignancy of the brain be continued for two years
following cessation of surgical, chemotherapeutic or other
treatment modality. At this point, if the residuals have
stabilized the rating will be made on neurological residuals
according to symptomatology. The decision to place the
applicant on the TDRL did not necessarily imply he would be
returned to duty. Any subsequent board would be expected to
justify why the applicant would meet standards for commissioning
when a potential new accession not on TDRL status would be
denied commissioning for the same condition.
The fact that the applicants neurologist chose to maintain the
applicant on anti-seizure medications for at least two years
after his last reported seizure is an indication the applicant
is at higher risk for seizures than the rest of the general
population. Because a prior history of seizures places a person
at higher risk of subsequent seizures, the DODI Enclosure
4 considers disqualifying any seizure occurring beyond the 6th
birthday, unless the applicant has been free of seizures for a
period of 5 years while taking no medication for seizure control
and has a normal sleep-deprived electroencephalogram and normal
neurology evaluation while taking no medications for seizure
control. Seizures by their very nature require deployment
limitations; it is not within the best interest of the Air Force
to commission a member who has the potential for a recurrence of
seizure.
There is historical precedent for cadets who fail to meet
medical standards for commissioning to be allowed to graduate
with their USAFA class. However, graduation without a
commission typically occurs when the cadets medical condition
is discovered late in his or her USAFA career. As the
applicants medical condition was discovered in the middle of
his C3C (sophomore year), the precedent for graduation without a
commission does not appear to apply in his case. The applicant
does not provide sufficient justification to override
application of established standards for commissioning.
A complete copy of the SAFPC evaluation is at Exhibit D.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the
applicant on 18 May 2015 for review and comment within 30 days
(Exhibit E). As of this date, no response has been received by
this office.
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by
existing law or regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to
demonstrate the existence of an error or injustice. We took
notice of the applicants complete submission in judging the
merits of the case; however, we agree with the opinions and
recommendations of the Air Force offices of primary
responsibility and adopt the rationale expressed as the basis
for our conclusion the applicant has failed to sustain his
burden of proof that he has been the victim of an error or
injustice. Therefore, in the absence of evidence to the
contrary, we find no basis to recommend granting the requested
relief.
4. The applicants case is adequately documented and it has not
been shown that a personal appearance with or without counsel
will materially add to our understanding of the issues involved.
Therefore, the request for a hearing is not favorably
considered.
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of material error or injustice; the
application was denied without a personal appearance; and the
application will only be reconsidered upon the submission of
newly discovered relevant evidence not considered with this
application.
The following members of the Board considered AFBCMR Docket
Number BC-2014-02840 in Executive Session on 8 July 2015 under
the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence pertaining to AFBCMR Docket
Number BC-2014-02840 was considered:
Exhibit A. DD Form 149, dated 17 June 2014, w/atchs.
Exhibit B. Memorandum, AFPC/DPFD, dated 24 October 2014.
Exhibit C. Memorandum, USAFA/A1A, dated 30 January 2015.
Exhibit D. Memorandum, SAFPC, dated 11 May 2015.
Exhibit E. Letter, SAF/MRBR, dated 18 May 2015.
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