IN THE CASE OF:	  

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120005661 


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 correction of his records to show his previous request for payment of Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits was approved.

2.  The applicant states:

	a.  He believes his request for TSGLI benefits was unjustly denied.  He originally applied for the TSGLI benefit on 30 January 2006 and received a denial letter on 6 March 2006.  The letter stated his request was denied because his injury occurred outside a combat area; therefore, even though he was otherwise qualified he was denied the TSGLI.  He immediately appealed this decision and was again denied due to where his injury occurred.  

	b.  In November 2011, he was aware of a program change that took effect 1 October 2011 which allows all service members to apply for TSGLI payment, no matter where the injury occurred as long as they met basic eligibility requirements.  He reapplied to the U.S. Army Human Resources Command (HRC) and was dismayed when his claim was denied again because of the length of loss of his activities of daily living (ADL).  Originally his doctor noted he (the applicant) required 30 days of assistance based on the doctor's direct observation.  The new application required the specific dates of the duration of the loss and that if the service member could use devices they are considered able.  He needed assistance with showering, washing, and putting on his pants and shoes from 9 December 2005 through 22 January 2006.  He was not issued any type of device which assisted him with washing and rinsing his lower body; his wife and son took turns doing that and helped him get dressed.  This was not mentioned in his first denial; the denial was originally based on the location of where the injury occurred.

3.  The applicant provides four letters, a statement of support, six pages of a Certification of Traumatic Injury Protection (TSGLI) form.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a sergeant (SGT/E-5) in the Hawaii Army National Guard (HIARNG) and he held military occupational specialty 11B (Infantryman).  He was mobilized as a member of his ARNG unit in support of Operation Iraqi Freedom (OIF) and entered active duty on 16 August 2004.

2.  His records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 4 February 2005, that shows on 11 January 2005, the applicant was seen at the Troop Medical Center, Fort Polk, LA, for an injury of "internal derangement of medial meniscus posterior horn."  His commander found his injury as being in the line of duty and noted that while deployed to Fort Polk, LA, in support of OIF, the applicant exacerbated a torn meniscus that he had incurred while at infantry school due to wearing extra equipment (i.e. body armor).  The date the torn meniscus was originally incurred, the specific location where it was incurred, and the specific circumstance surrounding the initial injury was not noted.  

3.  He served in Iraq from 7 July to 6 October 2005 while assigned to the 1st Battalion, 487th Field Artillery.

4.  On 9 December 2005, the applicant underwent arthroscopy surgery on his left knee.  He subsequently submitted a claim for TSLGI benefits based on receiving knee injuries on 11 January 2005 while training that required surgery on the left knee.  The attending physician completed Part B of the TSLGI form, dated 30 January 2006, wherein he indicated the applicant could not independently perform the ADLs of dressing or bathing for 30 days.  

5.  On 6 March 2006, his claim for TSGLI benefits was denied as traumatic injuries that were incurred between 7 October 2001 through 30 November 2005 required the injury to have occurred when a service member was deployed outside the United States in a combat zone in support of OIF or Operation Enduring Freedom (OEF).

6.  He was discharged from active duty on 20 June 2006 by reason of disability with severance pay.  He completed 1 year, 10 months, and 5 days of net active service during this period of service.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he had 2 years, 4 months, and 1 day of prior active service and 12 years, 9 months, and 6 days of prior inactive service.

8.  His records contain a DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)), dated 31 August 2012, wherein it corrected his DD Form 214 dated 26 June 2006 to show he was permanently retired on that date with 40 percent disability.

9.  On 28 November 2011, he appealed the denial of his claim for TSGLI benefits.  In a letter, dated 22 February 2012, HRC denied his appeal request and stated that according to their records, he was claiming ADL losses of bathing and dressing for 30 days from December 2005 to January 2006.  The documentation he provided did not indicate that he met the TSGLI standards for ADL losses.  If a Soldier was able to use adaptive measures such as crutches to perform the ADL, that Soldier was considered to be a modified independent.

10.  The applicant provides a statement of support, dated 10 March 2012, wherein his spouse stated that the applicant required the assistance of her and her son with showering and dressing after his knee surgery until 22 January 2006.  She further stated that he was given crutches, but he still needed their help while showering and getting dressed.

11.  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 TSGLI program.  The TSGLI program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury.  The 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 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 $1.00 deducted 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 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.

12.  Effective 1 October 2011, Public Law 111-275 removed the OIF/OEF requirement for injuries incurred during the retroactive period.  As a result, TSGLI coverage will be provided retroactively for members who incurred severe losses as a result of traumatic injuries incurred between 7 October 2001 and 30 November 2005, regardless of where the injury occurred, and regardless of whether they had SGLI coverage.

13.  A traumatic event is defined 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 and a traumatic injury is defined as the physical damage to the body that results from a traumatic event.  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. 

14.  There are basic eligibility requirements that must be met in order to be eligible for TSGLI.  All of the following must be met:

	a.  The member must be an active duty or Reserve service member on the date a traumatic event occurs.

	b.  The member must suffer a loss that is a direct result of a traumatic event and no other cause.

	c.  The member must survive for a period of at least 7 full days from the date of the traumatic event.

	d.  The member must suffer a loss covered under the law within 2 years of the traumatic event.

15.  Traumatic injuries covered under TSGLI may include the following types of losses:

	a.  Total and permanent loss of sight in one or both eyes, loss of hand or foot by severance at or above the wrist or ankle, quadriplegia, paraplegia, or hemiplegia, coma or traumatic brain injury.

	b.  Other traumatic injuries resulting in the inability to carry out two of the six ADL which are dressing, bathing, toileting, eating, continence, and transferring.  

16.  A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six activities of daily living.  If the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.), the patient is considered able to independently perform the activity.  Requires assistance is defined as without the assistance, the patient would be incapable of performing the task.

17.  TSGLI claims may be filed for loss of ADL if the claimant is dependent on someone else to perform two of the six ADL for 30 days or more and is incapable of performing the tasks without the required assistance.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant had surgery on 9 December 2005 for a torn meniscus that was exacerbated on 11 January 2005, while he was serving on active duty in support of OIF.  It appears he stressed his knee on 11 January 2005 during the performance of his normal duties and, as such, it would not be considered a traumatic event/injury.

2.  In addition, while it is recognized that for a period of time after his knee surgery the ADL of bathing and dressing would have easier with assistance and, although he may have used assistance in bathing and dressing for a certain period of time, it appears he was able to use crutches, had full use of his limbs, minus his left leg, and therefore would have been independently able to perform these ADL.

3.  Notwithstanding the applicant's sincerity, there is no evidence in the available records that serves as sufficient evidence and the applicant has not provided sufficient evidence that shows he required assistance and was dependent on someone else to perform two of the six ADL for the required period of time as the result of a traumatic event/injury that would meet the qualifications for TSGLI as set forth by law. 
4.  In view of the foregoing, there is no basis to grant the relief requested.

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)                                         AR20120005661





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ABCMR Record of Proceedings (cont)                                         AR20120005661



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