RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008 
	DOCKET NUMBER:  AR20080000542 


	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.  










      The following members, a quorum, were present:













	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 he be entitled to Traumatic Servicemembers' Group Life Insurance (TSGLI). 

2.  The applicant states, in effect, that he injured his shoulder while serving in Iraq and had months of physical therapy and could not return to his civilian job for 1 year.

3.  The applicant provides copies of several documents from his OMPF (Official Military Personnel File) and several documents relating to his TSGLI application in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Arkansas Army National Guard (ARARNG), in the rank of staff sergeant (SSG/E-6).  

2.  The applicant was ordered to active duty on 18 November 2003 in support of Operation Iraqi Freedom (OIF).  

3.  The applicant provided a sworn statement, prepared by a former service member.  The former service member states that in the month of September 2004, they were conducting training for prisoner holding and prisoner transportation.  The training consisted of hand to hand tactics and take down tactics using less lethal force.  During training, the applicant injured his right shoulder and continued training but not at full speed.

4.  On 6 April 2005, a report of medical assessment was prepared which indicated that the applicant had right shoulder pain due to a rotator cuff injury.  He was referred to orthopedics.

5.  The applicant provided medical documentation to show that he continued to be evaluated by medical officials for his injury and was provided therapy.   

6.  On 21 March 2006, the applicant submitted a TSGLI claim for loss of ADL (Activities of Daily Living).  On the form he indicated the date of onset of the condition was September 2004.



7.  Part B (To be Completed by Attending Physician), of the applicant’s Certification of Traumatic Injury Protection [TSGLI] Form, dated 21 March 2006, shows that his attending physician stated that he could not perform dressing, bathing, toileting, eating, and transferring independently for over 120 days.  
He also diagnosed the applicant as having right shoulder impingement, encapsulation loss of motion from wearing body armor in Baghdad; adhesive capsulitis, tendonopathy; tremors; and subacromial bursitis, right shoulder.

8.  The applicant was released from active duty on 6 April 2006.  He was transferred to a troop program unit (TPU).

9.  On 7 June 2006, the Office of SGLI (OSGLI) informed the applicant that his TSGLI claim was disapproved based on the available evidence.  The OSGLI stated that to be eligible he must have incurred a covered loss and that loss must have been a direct result of a traumatic event.  Therefore, his claim could not be approved.  

10.  On 23 February 2007, the applicant submitted another TSGLI claim.  Part B, of the form indicates that he was unable to perform the ADLs of dressing, bathing, toileting, eating, and transferring independently for over 120 days.  His physician also stated that he had right shoulder impingement, encapsulation, loss of motion, adhesive capsulitis, and tendonopathy.

11.  The OSGLI received the applicant's appeal request on an unknown date; however, his appeal package is unavailable for review.

12.  On 25 October 2007, a Member of Congress (MOC) responded to the applicant’s request regarding his claim for TSGLI.  The MOC understood that his claim was initially denied.  The MOC directed his staff to contact the TSGLI and note Congressional interest in the applicant’s case.  He assured the applicant that he would do all that he could to help him receive the benefits he deserved.

13.  The applicant was ordered to active duty on 3 January 2008 in support of OIF for a period of 400 days.   

14.  Public Law 109-13 (The, Emergency Supplement Appropriations Act, for Defense, the Global War on Terror, and Tsunami Relief, 2005), signed by the President on 11 May 2005, established the TSGLI program.  The TSGLI program was established by Congress to provide relief to Soldiers and their families after the Soldier suffered a traumatic injury.  TSGLI provides between $25,000 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense.  As of 1 December 2005, TSGLI is included as part of a Soldier's SGLI coverage.  Any Soldier who elected SGLI coverage automatically receives TSGLI coverage with an additional $1 taken out each month to cover the cost of the TSGLI policy.  Soldiers paying for SGLI coverage cannot decline TSGLI--it is a package.  In addition, there is a retroactive program, in which Soldiers who incurred a qualifying traumatic injury from 7 October 2001 through 30 November 2005, while supporting OIF and OEF or who where under orders in a Combat Zone Tax Exclusion (CZTE) area are covered regardless of whether they elected SGLI coverage or not.  Soldiers who elect SGLI coverage and incur a qualifying traumatic injury after 1 December 2005 (with the exception of some specific circumstances under which a traumatic injury will not be covered), regardless of their component (Active, Reserve, or National Guard) or the location in which they incurred the injury will be covered by TSGLI. 

15.  There are some specific circumstances under which a traumatic injury will not be covered by TSGLI.  A qualifying traumatic injury is an injury or loss caused by application of external force or violence (a traumatic event) or a condition whose cause can be directly linked to a traumatic event.  Traumatic injuries covered may include, but are not limited to the following types of losses:

	a.  total and permanent loss of sight in one or both eyes;

	b.  loss of hand or foot by severance at or above the wrist or ankle; 

	c.  total and permanent loss of hearing in one or both ears;

	d.  loss of speech;

	e.  loss of thumb and index finger of the same hand by severance at or above the metacarpophalandeal joints;

	f.  quadriplegia, paraplegia or hemiplegia;

	g.  3rd degree or worse burns covering 30 percent of body or 30 percent of the face;

	h.  coma or traumatic brain injury; or

	i.  other traumatic injuries resulting in the inability to carry out two of the six ADLs, which are dressing, bathing, toileting, eating, continence, and transferring. 
TSGLI claims may be filed for loss of ADLs if the claimant is completely dependent on someone else to perform 2 of the 6 ADLs for 30 days or more 
(15 days or more in the case of traumatic brain injuries).  ADL loss must be certified by a healthcare provider in Part B of the claim form, and ADL loss must be substantiated by appropriate documentation such as Occupational/Physical Therapy Reports, Patient Discharge Summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss.  While TSGLI claims won't be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.  

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence provided by the applicant was carefully considered.  The evidence failed to show he incurred a covered loss and that the loss was the direct result of a traumatic event.

2.  The statement by the applicant’s attending physician in Part B, of his TSGLI claim form, dated 23 February 2007, indicating that he was unable to perform the ADLs of dressing, bathing, toileting, eating, and transferring independently for over 120 days is not corroborated.  The applicant did require continued medical support for his injury.

3.  The applicant has not provided sufficient evidence to support his contention that his TSGLI claims were improperly disallowed.  Neither the available records nor the medical documentation the applicant provided established a basis to support his request.  The supporting medical documentation did not support the physician's certification.

4.  In view of the circumstances in this case, the applicant is not entitled to TSGLI compensation for his alleged loss of ADLs for the 120 day period beginning in September 2004.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ___x_____  ___x___ 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.




      __________x____________
                CHAIRPERSON
















ABCMR Record of Proceedings (cont)                                         AR20080000542



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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