IN THE CASE OF:	 

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120007820 


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 approval of his Traumatic Servicemember’s Group Life Insurance (TSGLI) injury request and that he be promoted to the pay grade of   E-7 on the Retired List.

2.  The applicant states, in effect, that he suffered a traumatic brain injury (TBI) from an improvised explosive device (IED) in Iraq and he received a 90% disability rating for his injuries and was awarded the Purple Heart and Combat Action Badge (CAB).  He goes on to state that there are sufficient records to show that he qualifies for TSGLI and he paid for SGLI for 23+ years and wants what he deserves.  He further states that he would have been promoted to the pay grade of E-7 had he not been injured and he should have been placed on the retired List in the pay grade of E-7.

3.  The applicant provides a three-page handwritten letter explaining his application, copies of his three TSGLI appeal denials, a copy of his Purple Heart and CAB orders, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his Physical Evaluation Board (PEB) Proceedings,  a copy of a psychiatric evaluation, a copy of his Medical Evaluation Board Proceedings, copies of medical treatment records related to his head trauma and copies of his reassignment orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Louisiana Army National Guard on 10 December 1984 and served until he was honorably discharged on 4 April 1985 to enlist in the Air Force.  He served on active duty in the Air Force from 19870305 – 19920708.  He enlisted in the Air National Guard on 1 August 1994 and on 17 August 1991 he was injured in an automobile accident.  He was diagnosed as having a spinal sprain and was subsequently diagnosed with chronic pain syndrome.  He served until he was honorably discharged by reason of disability with severance pay on 15 March 1999.

2.  On 23 March 2002 he enlisted in the United States Army Reserve (USAR) with a waiver in the pay grade of E-5 for a period of 6 years and training as a military policeman.  He deployed to Iraq during the period of 20030304 – 20040303.

3.  On 22 June 2005 he enlisted in the Regular Army with a waiver for a period of 3 years and 9 weeks and training as a fire support specialist.  He deployed to Iraq on 2 December 2005 and on 30 March 2006, the applicant was in a military vehicle when it was struck by an IED.  The applicant was awarded the Purple Heart and CAB for that incident.  He was promoted to the pay grade of E-6 on    1 July 2006 and he departed Iraq on 15 November 2006 and was returned to Fort Hood, Texas.

4.  On 15 February 2008 a Medical Evaluation Board (MEB) convened at Fort Hood and diagnosed the applicant as having medically unacceptable conditions of:
* Cervical Degenerative Disk Disease
* Thoracic Degenerative Disk Disease
* Lumbar Degenerative Disk Disease
* Traumatic Brain Injury (TBI)
* Post-Traumatic Headaches  
* Cognitive Disorder NOS (not otherwise specified)
* Pain Disorder associated with both psychological factors and general medical condition

5.  The MEB also diagnosed the applicant as having medically acceptable conditions of:
* Strain, tricep left arm
* Carpal tunnel syndrome
* Post-traumatic stress disorder (PTSD)
* Patellofemoral dysfunction
* Tenosynovitis

6.  On 20 May 2008 a Physical Evaluation Board (PEB) at Fort Sam Houston, Texas and determined that the applicant’s unfitting conditions were:
* Neck Pain – 20% disabling
* Thorocolumbar Pain – 10% disabling
* Cognitive Disorder due to Traumatic Brain Injury associated with Depressive Disorder, NOS – 10% disabling
* Post-Traumatic Headaches, Mixed Tension and Vascular Headaches – 10% disabling.

7.  The PEB also determined that the remaining conditions were not disabling, that his condition was not sufficiently stable for final adjudication and recommended that he be placed on the Temporary Disability Retired List (TDRL) with a combined disability rating of 50%.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case on 4 June 2008.

8.  On 9 September 2008 he was honorably released from active duty and placed on the Temporary Disability Retired List (TDRL) in the pay grade of E-6.  He had served 15 years, 11 months and 5 days of total active service and had 7 years, 11 months and 23 days of prior inactive service.

9.  On 7 October 2010, the PEB was again convened at Fort Sam Houston, Texas and diagnosed the applicant as having unfitting conditions of:
* Residuals of TBI – 70% disabling
* PTSD with Comorbid Depressive Disorder – 30%
* Degenerative Arthritis of the Thoracolumbar Spine – 20%
* Degenerative Arthritis of the Cervical Spine – 10% disabling
 
10.  The PEB recommended that the applicant be permanently retired with a 90% disability rating.  Accordingly, he was removed from the TDRL and permanently retired.

11.  The applicant applied for and was granted Combat-Related Special Compensation of total combined combat-related disability of 80% for:
* Myofacial Syndrome of Cervical Spine – 10%
* Post Concussive Headaches – 10%
* PTSD – 70%
* Left Arm Triceps Strain – 10%
* Tinnitus – 10%
* Residuals of TBI – 0%

12.  The applicant applied for Traumatic Injury Protection under the TSGLI benefits in 2008, 2009 and 2011 and in each instance his claims were denied because there was insufficient evidence to show that he had 30 or more days of consecutive loss of Activities of Daily Living (ADL) or that he suffered losses within 730 days of the traumatic event.
13.  A review of the evidence provided by the applicant and the evidence contained in his Army Military Human Resource Record (AMHRR) fails to show that the applicant had  losses of ADLs, which are dressing, bathing, toileting, eating, continence, and transferring for 30 or more days within 730 days of the traumatic event of 30 March 2006.  Additionally, there is no evidence to show that the applicant was selected for promotion to the pay grade of E-7. 

14.  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 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 Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (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.

15.  There are 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 activities of daily living (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 two of the six ADLs for 30 days or more (15 days or more in the case of traumatic brain injuries (TBI)).  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is qualified for TSGLI benefits was carefully considered and unfortunately appears to be without merit.

2.  Records clearly show he sustained injuries during an IED attack in Iraq.  However, it does not appear that his injury is medically qualified for TSGLI benefits without a loss of ADLs.

3.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing he was unable to perform two of the ADLs for the required period.

4.  Absent evidence to show that the applicant's disabilities met the criteria for award of TSGLI benefits, there is no basis to grant the relief requested.

5.  Also, there is no available evidence to show the applicant was promoted to the pay grade of E-7 or that he was on a promotion list.

6.  The applicant and all others should know that the sacrifices he made in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20120007820





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ABCMR Record of Proceedings (cont)                                         AR20120007820



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