RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 August 2005
      DOCKET NUMBER:  AR20040008724


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. David S. Griffin              |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann Jr.         |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, the records be changed to show that
upon removal from the Temporary Disability Retired List (TDRL) she was
transferred to the retired list with a combined disability rating of 40
percent instead of being discharged because of permanent physical
disability with a combined disability rating of 20 percent with severance
pay.

2.  The applicant states, in effect, that:

      a.  she was erroneously removed from the TDRL without proper
representation and that she was not given an opportunity to present her
case;

      b.  she had not received notification that the Physical Evaluation
Board (PEB), convened on 12 November 2003, had reached a decision on her
case until
17 May 2004 and that she would have not agreed with the decision to
discharge her with severance pay;

      c.  she "had moved from Texas in December [2003]" and that could be
the reason she did not receive the PEB decision;

      d.  upon receipt of the decision she made phone inquiries and Mrs.
S____e, Physical Evaluation Board Liaison Officer (PEBLO), Ft. Hood, Texas
informed the applicant that the decision was made automatically because the
PEB decision sent to the applicant was returned to the office and not
forwarded;

      e.  the residuals from her stroke have not gone away or healed and
that part of her brain is still damaged and will always remain damaged; and

      f.  the statement by the neurologist that her headaches occur on an
every two to three month basis is a misprint because her migraines occur
"every 4-6 weeks and they last about 5-7 days".

3.  The applicant provides a copy of:

      a.  U.S. Army Physical Disability Agency Orders D46-2, dated 9 March
2004, that removed the applicant from the TDRL and discharged her from the
service because of permanent physical disability.  Percentage of disability
was
20 percent;

      b.  a memorandum addressed to the applicant, dated 9 March 2004, that
forwards documents pertaining to her removal from the TDRL and notifies her
that she will no longer receive Army retired pay effective 9 March 2004;

      c.  a Medical Profile that shows medications prescribed to the
applicant during the period from 29 June 1994 to 26 June 2004; and

      d.  a copy of her medical records from 1999 through 7 September 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that she initially enlisted on
17 September 1992 for a period of 4 years.  She successfully completed
basic combat and advanced individual training and was awarded the military
occupational specialty 92Y10 (supply specialist).  She was released from
active duty on 16 July 1997 due to completion of required active duty.  She
had served
4 years and 10 months of active service characterized as honorable.

2.  On 6 August 1997, the applicant reenlisted for a period of 3 years.

3.  On 22 Jun 1999, a PEB found that the applicant was unfit for duty for
the following conditions:

      a.  Migraine headaches, recurrent severe, refractory to medication
with a recommended disability percentage of 30 percent; and

      b.  Status post ischemic infarction of left parieto-occipital cortex
in the setting of acute migraine (migrainous infarction) with residual of
right superior quadrantanopia and mild hemisensory dysesthesias with a
recommended disability percentage of 10 percent.

4.  The PEB recommended a combined rating of 40 percent and that the
applicant be placed on the TDRL with reexamination during January 2001.

5.  The PEB Proceedings, dated 22 June 1999, also advised the applicant
that failure to report for a scheduled examination or report a change of
address would result in the suspension of retired pay.

6.   On 6 July 1999, the applicant acknowledged that she was advised of the
findings and recommendations of the PEB and that concurred with the
findings and waived a formal hearing of her case.

7.  On 21 September 1999, the applicant was released from active duty due
to disability, temporary and placed on the TDRL on 22 September 1999.  The
applicant had served 7 years, 10 months, and 16 days of active service
characterized as honorable.
8.  According to memorandums from the Womack Army Medical Center, Fort
Bragg, North Carolina, dated 24 October 2001, and from the PEB, Walter Reed
Army Medical Center, Washington, DC the applicant moved from the Fort Bragg
area of treatment to Fort Sam Houston, Texas.

9.  A Memorandum, dated 17 June 2002, from the U.S. Army Medical Department
Activity, Fort Hood, Texas forwarded the approved findings and
recommendations of the applicant's periodic TDRL evaluation of 19 April
2002 to the applicant at a Killeen, Texas address.  A PS Form 3811
(Domestic Return Receipt) signed by the applicant showed she received the
memorandum on
20 June 2002.

10.  On 30 July 2002, a PEB recommended that the applicant be retained on
the TDRL with reexamination during August 2003.  A memorandum, dated 31
July 2002 from the PEB at Fort Sam Houston, Texas notified the applicant of
the findings.

11.  On 22 August 2003, during her TDRL follow up examination, the
applicant was examined by a neurologist who remarked that the applicant's
headaches "occur currently on an every two to three month basis."  The
examiner also stated that the applicant's headaches "are currently milder
than in the past . . ."  However, they increase when she is in school.

12.  A memorandum, dated 9 October 2003, from the U.S. Army Medical
Department Activity, Fort Hood, Texas forwarded the approved findings and
recommendations of the applicant's periodic TDRL evaluation of 22 August
2003 to the applicant at a Killeen, Texas address.  This letter also
provided the name and phone number of the PEBLO for the applicant to
contact if she had any questions.  A PS Form 3811 signed by the applicant
showed she received the memorandum on 20 October 2003.

13.  The memorandum, dated 9 October 2003, also advised the applicant that
if she did not reply within 7 days it would be assumed that she agreed with
the findings and recommendations and her case would be forwarded to the PEB
for review and further action.

14.  There is no record that the applicant replied to the 9 October 2003
memorandum.

15.  On 12 November 2003, a PEB found that the applicant was unfit for duty
for the following conditions:

      a.  Migraine headaches occurring every 2 to 3 months with a
recommended disability percentage of 10 percent; and

      b.  Status post left parieto-occipital stroke with right superior
quadrant opsia and right hemisensory deficit with a recommended disability
percentage of 10 percent.

16.  The PEB recommended a combined rating of 20 percent and that the
applicant be separated with severance pay if otherwise qualified.

17.  A memorandum, dated 17 November 2003, from the Texas PEB forwarded a
letter of instructions and the informal PEB TDRL findings and
recommendations to the applicant's Texas address.  The memorandum informed
the applicant that the PEB recommended that she be removed from the TDRL
and that she had
10 days from the date of receipt of the findings to submit her election of
concurrence or non-concurrence with the findings.  The memorandum also
stated that if the applicant's election was not returned to the PEB within
10 days, it would be presumed that she agreed with the PEB recommendation.

18.  A memorandum, dated 3 February 2004, from the Texas PEB to the
Commander of the U.S. Army Physical Disability Agency (USAPDA) stated that
the applicant had not received the findings and recommendations of the
informal PEB dated 12 November 2003.  The memorandum also stated that:

      a.  an attempt to deliver the findings and recommendations package by
Federal Express (FED-EX) to the applicant on 18 November 2003, was returned
to the PEB as undeliverable;

      b.  the applicant's address of record was confirmed with Ms. B__d,
USAPDA;

      c.  the package was then sent to the applicant at the address of
record by certified mail, but was returned as undeliverable;

      d.  since the applicant failed to make an election within the
prescribed time limits, the case was forwarded in accordance with paragraph
7-20e of Army Regulation 635-40.

19.  USAPDA Orders D46-2, dated 9 March 2004, removed the applicant from
the TDRL and discharged her from the service because of permanent physical
disability effective 9 March 2004.  The percentage of disability assigned
was
20 percent which entitled the applicant to severance pay.

20.  The medical records, from 30 July 2002 through 7 September 2004,
submitted and tabbed by the applicant, show that she sought treatment for
her migraine headaches six times during that period.  The records do not
show a greater severity or that a frequency of her headaches that would be
greater than that indicated on the TDRL examination that she received in
August 2003.

21.  The medical records submitted by the applicant contain a record of
treatment dated 16 December 2003 which show she received medical care at
the Darnall Army Community Hospital, Fort Hood, Texas on that date.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) states, in pertinent part, that a Soldier placed on the TDRL
must undergo a periodic medical examination and PEB evaluation at least
once every 18 months to decide whether a change has occurred in the
disability for which the Soldier was temporarily retired.

23.  Army Regulation 635-40, states, in pertinent part, that if the PEB
recommends removal from the TDRL, the PEB will forward to the Soldier a
DA Form 199 (Physical Evaluation Board (PEB) Proceedings) and a letter of
explanation by certified mail, restricted delivery, return receipt
requested.  The Soldier then has 10 days from the date of receipt to
provide a statement of election.  Paragraph 7-20e states, in pertinent
part, that if the Soldier fails to respond or the package is returned
undelivered, a memorandum waiving the Soldier's right of election will be
prepared.

24.  Army Regulation 635-40 also provides that a soldier may be separated
with severance pay if his or her disability is rated at less than 30
percent; if he or she has less than 20 years of service as defined in 10
United States Code (USC) 1208; and if his or her disability occurred in the
line of duty, and is the proximate result of performing active duty or IDT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she was erroneously removed from the TDRL
and that she was not given an opportunity to present her case.  She
contends that her move from Texas in December 2003 may have caused her to
not receive the findings and recommends of the PEB.  She further contends
that her migraine headaches are of such severity that she should have been
placed on the retired list.

2.  The applicant had been on the TDRL since 1999.  Therefore, it is
reasonable to presume that she was aware of her responsibility to keep the
PEBLO informed of her current address.

3.  Sometime in 2001 the applicant moved from Fort Bragg, North Carolina to
Fort Sam Houston, Texas.  She signed a receipt for the TDRL findings that
were sent to a Killeen, Texas address.  Therefore, it is reasonable to
presume that she was aware of the procedures that were required to update
her current address.

4.  The evidence shows that the applicant received the findings and
recommendations of the 22 August 2003 examination and the name and phone
number of the PEBLO.

5.  All subsequent correspondence to the applicant and attempts to deliver
that correspondence were dated in November 2003.  According to the
applicant's statement, she did not move until December 2003.  A record of
medical treatment shows that she was still in Texas as late as 16 December
2003.  Therefore, the evidence does not support her contention that her
move caused her to not receive the PEB package.

6.  Every possible attempt was made to ensure the applicant received her
PEB package.  The time from the date of the PEB, 12 November 2003, until
the date of her discharge on 9 March 2004  greatly exceeded the 10 days
that the applicant had to respond after receipt of the PEB findings.

7.  The evidence of record clearly shows that the applicant was properly
notified of her final PEB's findings and recommendation at her last known
address.  More than reasonable effort was made to determine the applicant's
current address when the PEB packet was returned as undeliverable.  Final
action on the final PEB's recommendation was delayed for almost 4 months in
an attempt to contact the applicant.  As such, there is no error or
injustice in the USAPDA taking final action on the PEB's recommendation
without a response by the applicant.  Regulation requires final action be
taken on a Soldier who is assigned to the TDRL when his or her disability
becomes stable enough to rate permanently.

8.  The medical evidence submitted does not rebut the statements made by
the neurologist on the TDRL examination given on 22 August 2003.
Therefore, there is insufficient evidence to change the findings and
recommendations of the PEB.

9.  The applicant has not submitted any evidence which would show that her
disabilities were not properly rated in accordance with the VA Schedule for
Rating Disabilities.  Her separation with severance pay was in compliance
with law and regulation.

10.  In order to justify correction of a military record the applicant
must, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___klw __  ___phm_  ___bje___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  _________Barbara J. Ellis__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008724                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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