IN THE CASE OF:	

		BOARD DATE:	 24 September 2008 

		DOCKET NUMBER:  AR20080010836 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim for being completely dependent on another person for completion of activities of daily living (ADL) be reconsidered.

2.  The applicant states, in effect, that a letter from the U.S. Army Human Resources Command (HRC), Alexandria, Virginia (VA), shows that his appeal request was denied.  

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  Legal Power of Attorney, dated 28 December 2007. 

	b.  HRC-Alexandria, VA, letter, dated 4 October 2007, denying his TSGLI appeal.  

	c.  Statement of support, dated 15 October 2006, from the Fort Gordon, Georgia, Chief of Orthopedic Surgery.

	d.  DA Forms 3349 (Physical Profiles), dated 21 February 2006, 13 May 2006, 28 July 2006, and 13 October 2006.

	e.  Medical Reports, dated 3 November 2005 and 8 March 2006, from Eisenhower Army Medical Center, Fort Gordon, Georgia.

	f.  Medical Record Report, dated 26 January 2006. 

	g.  Hospital Outpatient Rehabilitation Services-Progress Notes, dated on miscellaneous dates in 2006.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Pennsylvania Army National Guard (PAARNG) on 25 June 2002.  He was subsequently ordered to active duty for training (ADT), completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 19K (Armor Crewman).

2.  On 19 January 2005, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 29 June 2005 to 1 October 2005.  He was honorably released from active duty to the control of his ARNG unit on 30 September 2006.  

3.  On 1 October 2005, the applicant sustained a gun-shot wound (GSW) to the right hand (open fracture to 3rd and 4th finger) and shrapnel to his left hand.  The investigation revealed that he used a 50 caliber round to loosen the M240 Machinegun gas regulator plug.  He struck the primer end of the 50 caliber round against the gas regulator plug which caused the round to discharge, causing injury to his right hand.  The appointed investigative officer subsequently determined that the applicant’s injury was incurred in line of duty (LOD) due to simple negligence as supported by substantial evidence. 

4.  On 19 October 2005, the applicant underwent a right hand irrigation and debridement and revision and fracture fixation of his phalange fractures of his ring finger and long finger.  He was discharged on 3 November 2005 in stable condition with continuation of occupational therapy.

5.  The applicant’s records show he was issued four temporary physical profiles due to his hand injury.  In each profile, the profiling officer recommended continued physical therapy, limited physical training, and limited use of right hand.

6.  On 8 May 2006, the applicant filed his first TSGLI claim.  He claimed Activities of Daily Living (ADL) loss and his physician certified 90 days of occupational therapy ADL loss (dressing, bathing, toileting, and eating).  However, his claim was denied and a denial letter was sent to him on 12 June 2006.  A copy of this letter is not available for review with this case.

7.  On 16 August 2006, the applicant submitted a reconsideration of his TSGLI claim.  At the time, his physician certified 90 days of OTI ADL loss for dressing, bathing, toileting, and eating.  Again, his claim was denied on 8 September 2007. A copy of this letter is not available for review with this case.

8.  On 15 October 2006, by memorandum, the Chief of Orthopedic Surgery at Eisenhower Army Medical Center, Fort Gordon, Georgia, stated that as a hand surgeon, he believed the applicant’s dominant hand was severely impaired for several months and that reconsideration of the applicant’s claim for TSGLI was medically reasonable and highly recommended.

9.  On 14 August 2007, the applicant appealed the denial decision.  At the time, his physician certified 90 days of OTI ADL loss for dressing, bathing, toileting, and eating.  Again, his claim was denied on 4 October 2007.  The TSGLI Branch identified the traumatic event, but determined the medical documentation submitted by the applicant did not substantiate the duration and type of ADLs impacted.  He was also advised that documents that were helpful in supporting his case involving ADLs include, but were not limited to, Nurses’ notes, OT reports, and hospital discharge summary reports.

10.  Public Law 109-13 (The Emergency Supplemental Appropriations Act, for Defense, the Global War on Terror, and Tsunami Relief, 2005), signed by the President on May 11, 2005, established the TSGLI program.  U.S. Army Combat-Related Special Compensation (CRSC) has been designated as the lead agent for implementing the Army TSGLI program.  The TSGLI program was established by Congress to provide relief to Soldiers and their families after suffering 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 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. 

11.  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 hemiplegic;

	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.  

12.  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 evidence provided by the applicant was carefully considered; however, it does not show that he was unable to perform his ADLs for 30 or more days.  By law, 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.  The applicant in this case did not provide any evidence to support a contention that he depended on someone else to assist him for 30 days or more in the performance of his ADLs.

2.  The applicant has not provided sufficient documentation to support his implied contention that his TSGLI claims were improperly disallowed.  Neither the available records nor the medical documentation the applicant provided establish a basis to support his request. 

3.  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 did not submit evidence that would satisfy that requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080010836



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ABCMR Record of Proceedings (cont)                                         AR20080010836



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