IN THE CASE OF:	   

		BOARD DATE:  30 January 2014

		DOCKET NUMBER:  AR20130008534 


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 defers his request to counsel.

2.  The applicant makes no additional statement in support of his request.

3.  The applicant provides no additional evidence in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim be reconsidered.

2.  Counsel makes the following statements:  

a. The [Applicant's] traumatic injury occurred on or around 4 July 2008.  This 
traumatic event and resulting injury are the basis of this TSGLI claim and appeal. The [Applicant's] TSGLI claims and subsequent appeals were denied as follows:

* the original claim was filed by the applicant on or about 17 August 2010 and was denied on 11 November 2010
* a request for reconsideration was filed by the applicant on 8 June  2011 and was denied on 24 June 2011
* a third application was submitted for appeal on 25 May 2012 and was denied by the TSGLI office on 23 July 2012

   b. On or about 4 July 2008, the applicant accidentally ingested Methadone, a drug legally prescribed to his uncle, who was staying at the same house the applicant was staying at while celebrating Independence day.  The applicant mistakenly ingested the Methadone pills, believing they were Tramadol, a drug he was legally prescribed.  The Methadone pills are similar in size and color to the Tramadol pills; their pill bottles were of similar size and color.

   c. The next morning, his fiancé could not wake him.  An ambulance was called and he was rushed to an area hospital.  He was unresponsive and unconscious on arrival; he had respiratory failure and was in a coma upon admission.  After extensive care, the applicant woke from the coma and required continued hospitalization for treatment and assistance with activities of daily living (ADL).  He was discharged from the hospital on 15 September 2008, over two months after being admitted.  After being discharged, he received in-home care and extensive physical and occupational therapy through 7 January 2009.

   d. There is no question the applicant suffered injury requiring hospitalization and assistance with ADLs from July 2008 through January 2009.  The evidence shows this loss (and the injury that caused it) is clearly supported by sufficient medical information; therefore, ADL loss will not be addressed in this appeal.  This appeal will address whether or not the applicant willfully ingested medication not prescribed to him, and whether the incident occurring on 4 July 2008 is rightfully considered a traumatic event.

3.  Counsel makes the following contentions:

   a. The Army TSGLI Office's denial of the applicant's TSGLI claim was incorrect for two reasons: [Applicant] accidently and unknowingly ingested medication he believed was prescribed to him by a medical doctor; and the claimed losses are a direct result of a "traumatic event" (as defined by the TSGLI Procedures Guide).

   b. The exclusion to deny losses due to ingestion of a medication not administered/consumed on the advice of a medical professional must be considered in its entirety.

   c. According to the Code of Federal Regulations (CFR), only willful use of a medication not administered or consumed on the advice of medical professional disqualifies a claim.

   d. No evidence exists that [Applicant] willfully (emphasis added) ingested medication that was not administered or consumed on the advice of a doctor.

   e. The fact that [Applicant] took another's medication is not a valid reason to infer that [Applicant] willfully ingested the medication.

   f. The TSGLI Office's interpretation is contrary to the purpose of the TSGLI statute: to compensate servicemembers for qualifying losses.

   g. [Applicant's] ingestion of a prescribed medication (and resulting injuries) is a traumatic event, as defined under TSGLI.

4.  Counsel provides 6 separate exhibits, labeled Exhibits A through F, as follows:

* Exhibit A – TSGLI Claim Procedural History
* Exhibit B – TSGLI Application
* Exhibit C – TSGLI Denial Letters
* Exhibit D – Letters of Support and ADL Loss
* Exhibit E – Medical Timeline
* Exhibit F – Medical Records and Supporting Documents

CONSIDERATION OF EVIDENCE:

1.  On 13 September 2003, after previous enlisted service in the Texas Army National Guard (TXARNG), the applicant was appointed as a Reserve commissioned officer of the Army, as a second lieutenant (2LT) in the infantry branch.  On this same date, he was appointed as a 2LT in the TXARNG. 

2.  On 13 September 2005, he was promoted to first lieutenant (1LT).

3.  On or about 4 July 2008, while visiting his family, he accidently ingested Methadone.  He lost consciousness, became cyanotic, went into full respiratory arrest, required intubation, and was hospitalized for an extended period.

4.  On or about 15 September 2008, he was released from the hospital for further in-home care.

5.  On or about 17 August 2010, he submitted his initial TSGLI claim.  On          11 November 2010, his initial claim was denied.  According to the denial letter, he claimed loss of hearing, coma, and loss of ADLs due to other traumatic injury (OTI).  His claim was denied because the loss resulted from an illegal or controlled substance that was not administered or consumed on the advice of a medical doctor.

6.  On 8 June 2011, the applicant requested reconsideration of his initial TSGLI claim.  On 24 June 2011, his reconsideration request was denied because the provided documentation showed his losses resulted from the ingestion of a medicine that was not administered or consumed on the advice of a medical professional.

7.  On 25 May 2012, he submitted his appeal application for TSGLI benefits, which was denied on 23 July 2012.  The denial letter stated the reason for denial of his appeal was because the accidental ingestion of the prescribed medication for his claimed losses was not a direct result of a traumatic event, and therefore, was not covered by TSGLI.

8.  On 27 June 2012, he appeared before an informal physical evaluation board (PEB), which found him permanently unfit for further service, based on the following conditions:

* post-traumatic stress disorder
* cognitive disorder secondary to anoxic brain injury, rated as traumatic brain injury
* neuralgia of unknown etiology involving the left thoracic, lumbar, and posterior lower extremity regions
* sciatica of the left lower extremity as a residual of hepatic neuralgia

The board recommended his permanent retirement for disability in the amount of 100 percent (%).  On 10 August 2012, the U.S. Army Physical Disability Agency (USAPDA) approved the board's findings and recommendation.

9.  Orders D223-09, issued by the USAPDA on 10 August 2012, ordered his permanent retirement as a 1LT with 100% disability, effective 17 September 2012.

10.  On 17 September 2012, he was honorably retired from the TXARNG and placed on the Retired List as a 1LT.

11.  Counsel submits journal entries, letters of support, sworn statements, and medical documentation that addresses the applicant's accidental ingestion of Methadone and his subsequent treatment and hospitalization following the event.

12.  Public Law 109-13, signed by the President on 11 May 2005, 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 Servicemembers 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, servicemembers must meet all of the following requirements: 

* the servicemember must be insured by SGLI when he or she experiences a traumatic event
* the servicemember must incur a scheduled loss, and that loss must be a direct result of a traumatic injury 
* the servicemember must have suffered the traumatic injury prior to midnight of the day he or she separates from the uniformed services
* the servicemember must suffer a scheduled loss within 2 years (730 days) of the traumatic injury
* the servicemember must survive for a period of not less than seven full days from the date of the traumatic injury 

The Department of Defense (DOD) and Department of Veterans Affairs (VA) have joint responsibility for the Program.  

13.  The TSGLI Program is administered by the U.S. Army Human Resources Command (HRC), Fort Knox, KY; however, the VA developed the TSGLI Procedures Guide.  This 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.

* an external force is a force or power that causes an individual to meet involuntarily with an object, matter, or entity that causes the individual harm
* the event must involve a physical impact upon an individual - physical impacts do not require penetrating injuries to occur
* 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 applicant, through counsel, requests his TSGLI claim be reconsidered. 

2.  His TSGLI request was based on ADL loss from injuries and hospitalization resulting from his accidental ingestion of Methadone.  
3.  His request was initially denied because his losses resulted from an illegal or controlled substance that was not administered or consumed on the advice of a medical doctor.  His appeal was finally denied because his losses were not the direct result of a traumatic event; therefore, not covered by TSGLI.  

4.  Counsel contends the applicant's accidental ingestion of another person's controlled substance was not willful; therefore, it should not preclude him from favorable consideration in accordance with the program criteria and should not be the basis for denial.  

5.  Counsel further contends the applicant's ingestion of a prescribed medication and resulting injuries should be considered a traumatic event as defined under the TSGLI Program.

6.  Counsel's assertion that the applicant's ingestion was accidental rather than willful is irrelevant to the fact that there was no qualifying traumatic event, since the injury lacked a requisite external force.  Further, he did not accidentally ingest a contaminated substance.  Absent a qualifying traumatic event, there is no basis for granting the requested relief.

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)                                         AR20100014472



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130008534



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1