IN THE CASE OF:	  

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090012607 


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 payment of the balance of his Traumatic Serviceman's Group Life Insurance (TSGLI) in the sum of $50,000.00.

2.  The applicant states he met all requirements to receive the full $100,000.00 in TSGLI benefits but was only paid $50,000.00.

3.  The applicant provides documentation through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests payment of the balance of the applicant's TSGLI in the sum of $50,000.00.

2.  Counsel states the following:

	a.  While deployed in Iraq, the applicant attempted to move a transport container express (CONEX) door.  The door was jammed and snapped back, injuring his spine.

	b.  He was treated by medics and saw a doctor the week following the injury.

	c.  He tried to continue to perform his duties, but was sent back to the United States.

	d.  On 2 June 2005, the Army National Guard declared him temporarily totally disabled.

	e.  The applicant sought treatment from a private physician who declared him totally disabled, performed spinal fusion and lumbar reduction surgery, and placed four titanium rods in his back.

	f.  The applicant continues to be unable to do the activities of daily living (ADL's) and is cared for in his home by his wife.

	g.  The applicant experiences dizziness and vision anomalies and is undergoing tests for possible traumatic brain injury and post-traumatic stress disorder.

	h.  The Social Security Administration has determined the applicant is totally disabled.

	i.  The applicant meets the standard of inability to perform at least two ADL's for over 120 days.

	j.  His injury was a covered traumatic event as defined in the TSGLI Procedures Guide.

	k.  TSGLI is an insurance program and it is black-letter law that any ambiguity be resolved in favor of the policyholder.

	l.  The U.S. Army Human Resources Command (HRC) TSGLI Branch may have been using an outdated procedural guide to review the claim.

3.  Counsel provides:

* an affidavit signed by the applicant
* a memorandum to the Physical Evaluation Board, Fort Lewis, from the Commander, 1138th Engineer Company
* a report of a medical imaging consultation
* a copy of the Army's TSGLI claims denial appeals process
* copies of correspondence and medical records submitted to HRC
* a 2008 Army News Service article on changes to the TSGLI program
* a page from the TSGLI Procedures Guide
* a printout of an HRC TSGLI web page
* an abstract of an article regarding ambiguities in insurance policies
* a letter commenting on an advisory opinion provided by the Chief, HRC TSGLI Branch
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 24 August 1984 and transferred to the Army National Guard on 8 October 1989.

2.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant served in Iraq and Kuwait during the period 22 February 2004 through 22 February 2005.

3.  A Standard Form 600 (Chronological Record of Medical Care) shows the applicant sought medical treatment on numerous occasions beginning on 16 August 2004 for a back strain incurred while opening a CONEX door.

4.  The record includes physical evaluation board (PEB) proceedings showing that a PEB determined he would be temporarily retired with a disability rating of 70 percent for post-traumatic stress disorder and spinal fusion on 29 September 2009.  The applicant was honorably retired and placed on the Temporary Disability Retired List effective 3 November 2009.

5.  An advisory opinion provided by the Chief, HRC TSGLI Branch, shows the following:

	a.  The applicant was paid $50,000.00 based on an erroneous decision by a TSGLI Branch analyst.  The payment was not recouped because the error was not the applicant's fault.

	b.  Three requests for reconsideration for the maximum TSGLI benefit were submitted to the TSGLI Branch.  Each request was denied based on the determination that the applicant's injury was not the result of a traumatic event under TSGLI standards.

	c.  A further claim analysis was conducted as part of an internal "reach-back" program.  This analysis found that the applicant might have been eligible for a partial TSGLI benefit had his injury been the result of a traumatic event.

6.  Counsel objected to the advisory opinion for the following reasons:

	a.  The Chief, HRC TSGLI Branch, should be an impartial arbiter in the process of interpreting TSGLI coverage and the intent of Congress, not an advocate or adjudicator who would issue an advisory opinion.

	b.  The Chief, HRC TSGLI Branch, incorrectly alleged the applicant's injury is not covered under TSGLI standards.  The CONEX door sprang back at him and should be classified as an external force.

	c.  Regarding the "reach-back" program, the claim center does not use new regulations, nor does the center apply guidelines set forth in newer versions of the TSGLI Procedures Guide.

7.  Counsel provides an affidavit from the applicant showing that in August 2004 he attempted to open a CONEX.  In order to reach the levers used to open the doors, he had to bend over forward at a severe angle and squat in order to lift and rotate the levers.  He pulled the levers and the door opened slightly and stopped.  He pulled harder and the door sprung back taking him forward and injuring his back.

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 11 May 2005, established the TSGLI program.  U.S. Army Combat-Related Special Compensation 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 $25,000.00 and $100,000.00 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Veterans Affairs in coordination with the Department of Defense.  As of 1 December 2005, TSGLI is included as part of a Soldier's SGLI coverage.  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 Operation Enduring Freedom and Operation Iraqi Freedom or under orders in a combat zone tax exclusion area are covered regardless of whether or not they elected SGLI coverage.  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.  The TSGLI Procedures Guide defines a traumatic event as the application of external force; violence; chemical, biological, or radiological weapons; accidental ingestion of a contaminated substance; or exposure to the elements that causes damage to the body.  The guide further states the event must involve a physical impact upon an individual.  Some examples would include an airplane crash, a fall in the bathtub, or a brick that falls and causes a sudden blow to the head.  It would not include an injury that is induced by the stress or strain of the normal work effort that is employed by an individual, such as straining one's back from lifting a ladder.

DISCUSSION AND CONCLUSIONS:

1.  The requests made by the applicant and his counsel to pay the applicant the full TSGLI benefit were carefully considered but not supported by the evidence.

2.  The available evidence does not show the applicant's injury was the result of a traumatic event as defined in the TSGLI Procedures Guide.  The guide clearly states a traumatic event must involve a physical impact upon an individual.  It also states a traumatic event does not include an injury induced by the stress or strain of normal work effort.  The available evidence shows the applicant's injury resulted from attempting to open a CONEX door.  It is reasonable to conclude his injury resulted from the stress or strain of normal work effort.

3.  The available evidence also shows the applicant continued to serve in an area of combat operations for more than 6 months after the incident in which he was injured.

4.  Notwithstanding counsel's objections to the advisory opinion provided by the Chief, HRC TSGLI Branch, there is no evidence indicating the applicant's claim was unfairly considered under the TSGLI Procedures Guide.  Therefore, there is no basis for granting relief 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)                                         AR20090012607



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ABCMR Record of Proceedings (cont)                                         AR20090012607



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