IN THE CASE OF:	

		BOARD DATE:	  18 February 2009

		DOCKET NUMBER:  AR20080011480 


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, approval of his claim for payment of Traumatic Servicemember's Group Life Insurance (TSGLI) benefits. 

2.  The applicant states, in effect, that he should be granted two months TSGLI benefits in accordance with his previous claim made through his counsel on 21 April 2008.  He indicates that the TSGLI appellate board offered an untenable explanation for denying his appeal, stating he did not specifically address the definition of a traumatic event.  The applicant also states that letters from the TSGLI board evidenced that their grounds for denying his appeal continued to shift and that their justifications were inconsistent.  He indicates the TSGLI board was negligent in handling his appeal.

3.  The applicant provides the following documents in support of his application:  counsel's letter, dated 15 July 2008; TSGLI letter, dated 30 June 2008; counsel's letter, dated 18 April 2008; TSGLI appeal, dated 21 April 2008, with an Exhibit List of twenty-nine documents.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, adjudication of the applicant’s TSGLI appeal through the Army Review Boards Agency (ARBA) or to have his appeal remanded to the TSGLI Board for a new TSGLI Board review and fair adjudication.

2.  Counsel states, in effect, that the TSGLI appeals board inconsistently denied the applicant’s appeal on three different occasions, citing the following different reasons as their justification for doing so:  the applicant “did not suffer a scheduled loss”; his “condition was not the direct result of a traumatic event”; and indicating that the applicant’s claim “did not specifically address the definition of a traumatic event.”  Counsel indicates that contrary to each determination made by the TSGLI board, that the applicant proved his case in each of his appeals.

3.  Counsel provides the same evidence as the applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was commissioned a second lieutenant in the Army National Guard (ARNG) on 9 April 1985.  He was promoted to first lieutenant on 8 April 1988, to captain (CPT) on 15 May 1988, to major (MAJ) on  9 January 1993, to lieutenant colonel (LTC) on 1 March 1997, and to colonel (COL) on 13 February 2002.  

2.  On 9 January 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom (OIF).  A Statement of Medical Examination and Duty Status (DA Form 2173) shows that the applicant received medical treatment for low back pain on 1 April 2004, at the Consolidated Troop Medical Clinic.  It also contains an entry in Item 15 (Details of Accident or History of Disease) that shows that on or about April 2004, while serving in support of OIF, the applicant injured his lower back while lifting personal military equipment.  It further shows that the injury was determined to be in the line of duty.

3.  A Chronological Record of Medical Care (Standard Form) 600 prepared on 16 April 2004, shows that the applicant was treated for low back pain with radiculopathy.  The physical findings revealed “no tenderness anterior iliac crest” and no right lateral femoral cutaneous nerve distribution sensory loss.  The applicant was released without limitations and advised to follow up in two months in the neurosurgery clinic or sooner if any problem occurred.

4.  The applicant’s Official Military Personnel File (OMPF) contains Headquarters, 24th Infantry Division and Fort Riley, Orders Number 176-0013, dated 24 June 2004.  These orders directed the applicant’s release from active duty (REFRAD) not by reason of physical disability on 9 July 2004, and his reassignment to his Reserve unit.  Accordingly, on 9 July 2004, he was honorably REFRAD by reason of completion of required service.  The DD Form 214 issued on that date shows that he completed 6 months and 1 day of active military service.  It also confirms in Item 18 (Remarks) that the applicant served in Iraq and Kuwait from 11 January 2004 - 5 April 2005.

5.  A TSGLI Summary shows the applicant's initial TSGLI claim was filed on
19 April 2007, claiming hemiplegia.  He submitted a reconsideration claim on
8 November 2007, followed by an appeal claim on 2 May 2008.  In letters, dated 5 May and 10 December 2007, these claims were denied based on a determination that the applicant was not hemiplegic, but instead suffered from right leg weakness, and because his injury resulting from lifting equipment did not qualify as a traumatic event.  The TSGLI summary also shows he filed a claim on 2 May 2008, claiming loss of activities of daily living (ADL) (dressing, bathing, and transferring) for six months based on the injury he sustained lifting personal military equipment.  On 30 June 2008, this claim was denied because his injury did not qualify as a traumatic event.  

6.  The applicant's OMPF contains an ARNG Retirement Points Summary (National Guard Bureau [NGB] Form 23) which shows his continuous service in the ARNG from 9 April 1985 to the present.

7.  The applicant provides witness statements from individuals that include his wife and son.  These individuals support the applicant’s claim and provide comments on his physical condition and detail their assistance to aid him following his return from active duty to his ARNG unit.

8.  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's 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.

9.  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 will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.  

10.  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 applicant's contention that his TSGLI claims should be reconsidered and the supporting statements he provided were carefully considered.  However, there is insufficient evidence to support this claim.  The available medical treatment records and the line of duty investigation fail to provide any compelling corroborating evidence that confirms the injury the applicant sustained while lifting equipment was the direct result of a qualifying traumatic event.  

2.  The evidence of record clearly shows the applicant was injured; however,  there is insufficient evidence to support a conclusion that this injury was sustained as a result of an application of external force or violence (a traumatic event) or a condition whose cause can be directly linked to a qualifying traumatic event.   

3.  The evidence of record shows, and the applicant acknowledges, that his injury was caused while lifting equipment, and was denied because his injury did not qualify as a traumatic event.  There is insufficient evidence to show that he met the primary criteria for award of TSGLI; i.e., that the injury was caused by a traumatic event or a condition whose cause can be directly linked to a traumatic event.

4.  In order to justify correction of a military record the applicant must show, 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.  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)                                         AR20080011480



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ABCMR Record of Proceedings (cont)                                         AR20080011480


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