RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-05055

XXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His medical board decision be overturned to reflect his condition of thyroid cancer did not exist prior to service.

APPLICANT’S CONTENTIONS

His medical discharge was unfair.  His thyroid cancer could not be pre-existing because he had a medical examination at the Military Entrance Processing Station when he went through Basic Training and the doctors gave him a clean bill of health.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant entered the Regular Air Force on 29 Jan 08.

On 17 Sep 08, the applicant’s commander notified the Medical Evaluation Board (MEB) that the applicant was unable to perform all primary duties and recommended that the applicant be processed through the MEB.

On 25 Sep 08, the MEB recommended the applicant be referred to the Informal Physical Evaluation Board (IPEB) for Metastatic Papillary Thyroid Carcinoma (stage 1) and Moderate Persistent Asthma.

On 18 Nov 08, the IPEB recommended the applicant be Discharged Under Provisions Other Than Chapter 61, Title 10, United States Code (U.S.C.), for conditions that can be unfitting but are not currently compensable or ratable of (1) Asthma – existed prior to service not permanently service aggravated; and (2) Metastatic Papillary Thyroid Carcinoma (stage 1) status post surgical resection, in remission on hormone replacement.  The IPEB remarked that the applicant’s medical condition, which existed prior to service (EPTS) and had not been permanently aggravated through military service, was incompatible with the rigors of military service.  His thyroid cancer was in remission and he was doing well on hormone replacement.  The IPEB found the applicant was unfit and recommended that he be discharged under provisions other than Chapter 61, Title 10, U.S.C.

On 26 Nov 08, the applicant agreed with the findings and recommended disposition of the IPEB, waived his right to a formal PEB hearing, and acknowledged that upon review by a special assistant to the Secretary of the Air Force Personnel Council (SAFPC), that his case may be referred to the SAFPC for further review and final decision.

On 1 Dec 08, the Secretary of the Air Force directed that the applicant be separated from active service for physical disability due to a condition that existed prior to service (EPTS) and the applicant was not entitled to any benefits under the provisions of Chapter 61, Title 10 U.S. Code.

On 29 Dec 08, the applicant was furnished an honorable discharge with a narrative reason for separation of “Discharge: Disability Existed Prior to Svc-PEB,” and was credited with 11 months, and 1 day of total active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the application.  Based on the documentation provided by the applicant and analysis of the available documentation and facts, there is no indication an error or injustice occurred at the time the IPEB processed the applicant’s disability case.  On 18 Nov 08, the IPEB found that the applicant’s asthma was unfitting for duty, but stated that the thyroid carcinoma was not unfitting.  Since the applicant had undergone appropriate treatment for his carcinoma, the carcinoma was in remission, the applicant was cleared for “Activity as tolerated,” the applicant was expected to do well, and his requirements for medical follow-up were expected to decrease over time, AFPC/DPFDD agrees that the thyroid carcinoma was not unfitting for duty.  Thus, no determination regarding EPTS or service aggravation was or is needed.  AFPC/DPFDD has discussed this case with the endocrinology consultant to the Air Force Surgeon General, who confirmed that thyroid papillary carcinoma is a slow growing cancer.  So, even if the carcinoma was found to be unfitting (which it was not), AFPC/DPFDD believes that it would have been classified as EPTS, without service aggravation, with application of the “compelling evidence or medical judgment” standard.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 26 Feb 20 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFDD and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2019-05055 in Executive Session on 17 Jun 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 30 Sep 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 10 Feb 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 26 Feb 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.