IN THE CASE OF:	  

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130001514 


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 reconsideration of his Traumatic Service Members' Group Life Insurance (TSGLI) claim.

2.  The applicant states his medical records that document his being treated via the hospital for over 15 consecutive days were lost.  However, Brooke Army Medical Center (BAMC) confirmed he entered the emergency room and was treated for close to 21 consecutive days, then released for continued treatment that is still being received to date.

3.  It is clearly unjust not to process his claims because his medical records were lost or destroyed yet they have clearly confirmed and documented they show well over 15 consecutive days that obviously led to the 100-percent combat-related, line of duty, service-connected loss of creative organ, wheel chair bound, both knees, left shoulder, back, breathing sleep apnea, just to name a few documented permanent losses that met all of the eligibility criteria.  He states he wants an attorney assigned to him.

4.  The applicant provides:

* his SGLV 8600 (Application for TSGLI Benefits), dated 3 April 2012
* a letter, dated 24 May 2012, from the U.S. Army Human Resources Command (HRC)
* a letter, dated 21 August 2012, from BAMC, Fort Sam Houston, TX
* his undated letter to HRC
* a letter, dated 10 December 2012, from HRC
* medical records
* physical therapy records
* Department of Veterans Affairs (VA) claim

CONSIDERATION OF EVIDENCE:

1.  He previously served 23 years, 3 months, and 15 days of inactive service in the U.S. Marine Corps and the U.S. Army Reserve (USAR).  On 1 June 2001, he immediately reenlisted in the USAR.

2.  He was ordered to active duty in an Active Guard Reserve status effective 
10 December 2001.  

3.  On 21 April 2004, he was notified he completed the required years of qualifying Reserve service and was eligible for retired pay on application at 
age 60 (20-year letter).

4.  On 1 June 2005, he was discharged from the USAR/Active Guard Reserve.  He completed 3 years, 6 months, and 7 days of active service that was characterized as honorable.

5.  On 3 April 2012, he filed an SGLV 8600 claiming TSGLI based on injuries suffered in a fall on an obstacle course in March 2004.

	a.  The block "Traumatic Injury Information" does not describe an actual injury suffered from a fall on the obstacle course.  It does talk about conditions that appear to have been service connected by the VA including hypertension, loss of use of a creative organ, cervical spine condition, sleep apnea, limited motion with muscle spasms with severe gaited walking, and severe paralysis below the knees.  Also stated is that there are service-connected disabilities that were aggravated due to the fall, such as the left shoulder, and numbness of the lower extremities.  He used a cane, walker, and wheel chair, back and knee braces for both knees and required doctor-approved spousal aid for driving, feeding, dressing, and bathing.

	b.  In Part B of the form he states his longest period of hospitalization was from 7 July 2010 to 7 March 2012.

	c.  He claimed inability to perform three activities of daily living (ADL).

		(1)  Unable to bathe independently.  No start or end dates are entered.  Physical assistance is checked and spousal aid approved for wife is noted.

		(2)  Unable to dress independently.  A start date of 24 March 2004 is shown with no end date.  Physical assistance is checked and spousal aid is noted.

		(3)  Unable to eat independently.  A start date of 24 March 2004 is shown with no end date.  Physical assistance is checked and spousal aid is noted.

	d.  The physician signing the SGLV 8600 indicated he had not observed the patient's loss, but had reviewed the patient's medical records.

6.  A review of the medical records he provided does not show the loss of ADL claimed by the applicant.  The records do not show a period of hospitalization for 15 consecutive days.  A note, dated 6 October 2004, in the Metro Physical Therapy progress notes he provides indicates he reported he ran every day.

7.  The original denial of the applicant's TSGLI claim is not available for review.

8.  On 24 May 2012, the TSGLI Branch at HRC reconsidered the decision on his claim, but was unable to overturn the previous denial.  The documentation he provided did not clearly support his claim of a fall from an obstacle course or the loss of ability to perform ADL immediately following.

9.  The applicant provided a letter, dated 21 August 2012, from BAMC.  The Deputy Chief, Medical Record Administrator stated a thorough search had been conducted and they were unable to locate a March 2004 Emergency Department medical record.  They stated all records located had been provided to him.

10.  In an undated statement to the TSGLI Branch, HRC, the applicant stated:

	a.  The exact date of injury as documented in emergency room documents was 24 March 2004.

	b.  He "suffered immediate loss of a creative organ, uncontrolled high blood pressure, severe from the traumatic fall to the left shoulder, back, both knees, knot to right side of his neck causing severe restrictions to any movement, sleep apnea, mold infection, all of which was consistently medically documented as a direct result of the traumatic event."

	c.  He suffered losses covered under the law well within 730 days of his traumatic event.  

11.  On 10 December 2012, the TSGLI Branch at HRC reviewed his appeal and supporting documentation; however, they were unable to overturn the previous denial.  He was advised if he chose to appeal their decision he had to submit an appeal to this Board.

12.  Army Regulations 15-185 (Army Board for Correction of Military Records) states the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants may be represented by counsel at their own expense.

13.  Public Law 109-13 established the TSGLI Program.  The TSGLI program was established by Congress to provide financial relief to Soldiers and their families after suffering a traumatic injury.  TSGLI payments are designed to help traumatically injured service members and their families with financial burdens associated with recovering from a severe 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 Defense.  To be eligible for payment of TSGLI, service members must meet all of the following requirements:

* must be insured by SGLI when the service member experiences a traumatic event
* must incur a scheduled loss and that loss must be a direct result of a traumatic injury
* must have suffered the traumatic injury prior to midnight of the day the service member is separated from the uniformed services
* must suffer a scheduled loss within 2 years (730 days) of the traumatic injury
* must survive for a period of not less than 7 full days from the date of the traumatic injury 

14.  A qualifying traumatic injury is an injury or loss caused by a traumatic event. The HRC official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II.  Each loss has a corresponding payment amount.

	a.  Part I loss includes sight, hearing, speech, quadriplegia, hemiplegia, uniplegia, burns, amputation of hand, amputation of four fingers on one hand or one thumb alone, amputation of foot, amputation of all toes including the big toe on one foot, amputation of big toe only, or other four toes on one foot, limb salvage of arm or leg, and facial reconstruction.

	b.  Part II loss includes traumatic injuries resulting in the inability to perform at least 2 ADL for 30 or more consecutive days and hospitalization due to a traumatic injury and Other Traumatic Injury (OTI) resulting in the inability to carry out 2 of the 6 ADL, which are dressing, bathing, toileting, eating, continence, and transferring.  TSGLI claims may be filed for loss of ADL if the claimant is completely dependent on someone else to perform 2 of the 6 ADL for 30 days or more. 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.

15.  A member who is hospitalized for 15 consecutive days as the result of a traumatic injury is eligible for a $25,000.00 payment under TSGLI.  The count of consecutive hospitalization days begins when the injured member is transported to the hospital, includes the day of admission, continues through subsequent transfers from one hospital to another, and includes the day of discharge.  If a member is hospitalized for 15 consecutive days, the member's hospitalization takes the place of the first ADL milestone payment only.  The 15 days of hospitalization cannot be substituted for any other ADL milestone payment.  Payment will be made for the 15-day hospitalization or the first ADL milestone, whichever occurs first.  There are two situations covered by this replacement:  the member is hospitalized due to coma/TBI or the member is hospitalized due to OTI.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR is an administrative board and does not assign counsel to an applicant.  An applicant may be represented by counsel at his or her own expense.

2.  Although loss of three ADL are indicated on the SGLV 8600, the form is incomplete.  The start and stop dates are not completed on all of the ADL.  The medical records provided by the applicant do not substantiate his claims of inability to perform ADL.  By law, for ADL loss from OTI to be covered, the loss must be for at least 30 days, the member must require assistance to perform 2 of 6 ADL, the ADL loss must be certified by a healthcare provider and must be substantiated by appropriate documentation such as occupational therapy/physical therapy reports, discharge summaries and other medical documentation.  The medical documentation does not show he was unable to perform two or more ADL for 30 consecutive days or more within 730 days of the traumatic event.

3.  A member who is hospitalized for 15 consecutive days as the result of a traumatic injury is eligible for a $25,000.00 payment under TSGLI.  However, due to BAMC being unable to produce records of his hospitalization there is no evidence to show he was hospitalized for at least 15 consecutive days.

4.  In view of the foregoing, there is insufficient 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)                                         AR20130001514





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ABCMR Record of Proceedings (cont)                                         AR20130001514



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