RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 September 2007
      DOCKET NUMBER:  AR20060016426


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Frank C. Jones                |     |Member               |
|     |Ms. Carmen Duncan                 |     |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, that his retired pay be calculated
at 50% or above.

2.  The applicant states, in effect that his left shoulder injury should be
rated higher.  He further states that his shoulder injury is in the 5% of
shoulder dislocations, which dislocates from the front.  This is very rare
and his shoulder dislocates on a regular basis.  He has had numerous
dislocations and he does not have full range of motion due to the fear of
subsequent dislocations which are very painful.  Finally, he adds that he
would have fought the determination of the rating, but he was given false
information from the medical review section at Fort Hood, Texas.  The
evidence is included in his request to this Board on
20 November 2006.  He only agreed to the rating as an attempt to not clog
up the system with paperwork, by requesting additional money.  He was
assured that the compensation that he was receiving would remain the same.
He attempted to have his retirement reversed but it was not allowed because
orders were already cut.  He adds that his shoulder injury is real.  He
only asks that the ABCMR allow him to remain on TDRL until he has his
shoulder surgery, which would have him out of commission for 9 months to a
year.

3.  The applicant provides a letter from a certified Orthopedic Surgeon in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  On 12 September 2004, the applicant was admitted into a hospital for
injuries received in a motorcycle accident.  The limited medical record
indicates that the applicant fractured his left ankle and dislocated his
left shoulder.  On
12 September 2004, the applicant under went surgery for his left ankle and
for an open wound on his left leg.  The applicant’s left ankle was
surgically transfixed with a plate and screw.  While in the hospital the
applicant suffered multiple dislocation episodes of the left shoulder.  The
applicant was placed on TDRL status following the injuries sustained to his
left shoulder and ankle.

2.  A TDRL Evaluation Board recommended the applicant’s case be evaluated
by a PEB after diagnosing his condition as recurring instability and pain
to the left shoulder.  The applicant was offered possible surgical
intervention; however, surgery would unlikely relieve all of his symptoms
in his shoulder.  The final diagnosis also included left ankle pain and
reduced motion status post open reduction, internal fixation.  His ankle
has limited range of motion and inability to

perform basic Soldier skills such as running, jumping, and marching.  The
applicant concurred with the MEB findings and recommendations.  On 20 July
2005 the applicant was given a combined rating of 40 percent.  The
applicant concurred with the findings and recommendation.

3.  On 20 July 2005, the applicant was honorably retired by reason of
physical disability, temporary, under the provisions of Army Regulation 635-
40 paragraph 4-24b (2).  The DD Form 214 he was issued confirms he
completed a total of
5 years, 7 months and 3 days of active military service and held the rank
of Captain.  On 21 July 2005, the applicant was placed on the Temporary
Disability Retired List (TDRL).

4.  On 14 June 2006, the applicant’s TDRL re-evaluation was completed and
submitted to the PEB.  On 2 July 2006, the applicant acknowledged that he
had been informed of the findings and recommendation of his periodic TDRL
examination and non-concurred with the findings and recommendations and
requested an appeal.

5.  On 6 September 2006, an informal Physical Evaluation Board (PEB)
Proceedings, convened at Fort Sam Houston, Texas, to consider the
applicant’s case.  After reviewing the applicant’s case, the PEB found that
the applicant was physically unfit and recommended that the applicant be
retired by reason of "Permanent Disability." A finding of 20 percent for
marked left ankle range of motion (ROM) limitation and 10 percent for left
shoulder pain.

6.  On 15 September 2006, the applicant was advised of the findings and
recommendation of the PEB, and after being given a full explanation of the
result of the findings and recommendation and legal rights he concurred
with the findings and recommendation of the PEB and waived a formal hearing
of his case.

7.  On 28 September 2006, the applicant was removed from Temporary
Disability Retired List and placed on the permanent disability retired list
(PDRL).  The PEB also noted that the Soldier’s retirement was not based on
disability from injury or disease received in the line of duty as a direct
result of armed conflict or caused by an instrumentality of war and
incurring in the line of duty during a period as defined by law.

8.  On 5 October 2006, the applicant called the Medical Evaluation Board
(MEB) section, Carl R Darnall Army Medical Center, Fort Hood, Texas.  He
informed the Liaison Officer that he believed that he was given erroneous
information in
reference to the calculation of his retirement pay.  He stated that he was
told that his retirement pay would not change from the 50 percent he was
receiving while on TDRL status.  However, when he received his first PDR
retirement check, it was definitely lower than what he had been receiving
while on TDRL status.  The applicant added that if he had known that his
retirement pay would drop from 50 percent to 30 percent he would have
disagreed with the PEB findings and submitted a rebuttal statement and that
he wanted a chance to resign his PEB findings.  Calls were made to the PEB
and the PDA.  The PEB handled the review and requested for recall to PDA.
At the PDA level, the case was reviewed by the PDA legal and on 6 October
2006, the decision was made not to recall the case but to allow the
applicant to submit an appeal.  The applicant was informed of the PDA
decision not to recall the case and allow him to change his election and
that if he believed that an injustice had occurred then he may consider
applying to the ABCMR.  Finally, to ensure that this situation did not
happen again the staff was re-educated in reference to the calculation of
retired pay (TDRL Versus PDR).

9.  On 4 May 2007, the U.S. Army Physical Disability Agency (USAPDA).
USAPDA issued an advisory opinion that notified this Board that the
applicant’s case was properly adjudicated by the PEB which correctly
applied the rules that govern the Physical Disability Evaluation System
(PDES).  The USAPDA also found the PEB findings and recommendations were
supported by a preponderance of the evidence and were not arbitrary or
capricious and were in conformance with all statutory, regulatory and
directive guidance.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities, and procedures that apply
in determining whether a Soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.


11.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a Medical Evaluation
Board (MEB) to document a Soldier's medical status and duty limitations
insofar as duty is affected by the Soldier's status.  If the MEB determines
a Soldier does not meet retention standards, the case will be referred to a
Physical Evaluation Board (PEB).

12.  Chapter 4 of the same regulation further states that the PEB evaluates
all cases of physical disability equitably for the Soldier and the Army.
The PEB investigates the nature, cause, degree of severity, and probable
permanency of
the disability of Soldiers whose cases are referred to the board.  It also
evaluates the physical condition of the Soldier against the physical
requirements of the Soldier's particular office, grade, rank, or rating.
Finally, it makes findings and recommendations required by law to establish
the eligibility of a Soldier to be separated or retired because of physical
disability.

13.  Army Regulation 635-40 also prescribes the function of the TDRL.  The
TDRL is used in the nature of a “pending list.”  It provides a safeguard
for the Government against permanently retiring a Soldier who can later
fully recover, or nearly recover, from the disability causing him or her to
be unfit.  The TDRL safeguards the Soldier from being permanently retired
with a condition that may reasonably be expected to develop into a more
serious permanent disability.

14.  Title 10, U.S. Code, section 1210a states that a physical examination
shall be given at least once every 18 months to each member the disability
for which he was temporarily retired.  He may be required to submit to
those examinations while his name is carried on that list.  If a member
fails to report for an examination, after receipt of proper notification,
his disability retired pay may be terminated.

15.  Title 10, U. S. Code, section 1210b provides that the Secretary
concerned shall make a final determination of the case of each member whose
name is on the TDRL upon the expiration of five years after the date when
the member's name was placed on that list.  If, at the time of that
determination, the physical disability for which the member's name was
carried on the TDRL still exists, it shall be considered to be of a
permanent nature and stable.  A decision as to the percentage of disability
is made at that time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an increase to the disability rating he was
assigned by the PEB and the supporting evidence he provided were carefully
considered.  However, the evidence of record confirms he was properly
processed through the PDES in accordance with the applicable laws and
regulations.  His case was properly considered by a PEB and his appeal was
properly reviewed by the USAPDA.  When the applicant was on the TDRL he was
compensated at the 50 percent level, even though, he was only rated at 40
percent.  However, that minimum of 50 percent rating is not authorized once
removed from the TDRL.  Once the applicant was placed on PDR, his
retirement pay was calculated based on years of service versus the
disability percentage or whichever, is higher.

2.  The arguments and medical evidence provided by the applicant were
considered and evaluated by both the PEB and by the USAPDA during the
appellate process.  Further, the USAPDA, after considering the applicant’s
appeal and the medical evidence provided, affirmed the PEB findings and
recommendations.  It confirmed that the PEB correctly applied the rules
that govern the PDES in making its determination on the applicant’s case.

3.  Therefore in order to justify correction of a military record the
applicant must show to the satisfaction of the Board, or it must otherwise
satisfactorily appear, that the record is in error or unjust.  The
applicant has failed to provide any new medical evidence that would call
into question the decision of the PEB or the final affirmation of the
USAPDA.  Therefore, there is an insufficient evidentiary basis to support
granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LDS__  ___FCJ__  ___CD__  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.




                                  ___ Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/09/06                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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