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 applicant’s 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 cadet’s 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 applicant’s 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 applicant’s 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 applicant’s 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 applicant’s 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.” Counsel’s 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 applicant’s 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 applicant’s 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 cadet’s medical condition is discovered late in his or her USAFA career. As the applicant’s 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 applicant’s 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 applicant’s 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.