IN THE CASE OF:	

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130008626 


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 a Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim. 

2.  The applicant states, in effect, the record is unjust because she qualified for compensation under TSGLI standards.

3.  The applicant provides:

* Pages 3 through 13 of a TSGLI application
* Colorado Statutory Power of Attorney
* Letter from a registered nurse, dated 25 February 2013
* Speech made before the Senate Committee on Veterans' Affairs given by the Principal Deputy Under Secretary of Defense for Personnel and Readiness, dated 7 September 2006  
* Letter from the Department of Veterans Affairs (VA), dated 22 February 2012
* Notarized statement, dated 6 December 2011
* Two Officer Evaluation Reports
* Extracts of Progress Notes from the Wisconsin VA Hospital and University of Wisconsin Hospital and Clinics - American Family Children's Hospital, Madison, Wisconsin


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed as a U.S Army Reserve (USAR) commissioned officer and executed an Oath of Office on 21 March 1990.  She was promoted to lieutenant colonel on 20 August 2008.

3.  The applicant's TSGLI application shows:

   a.  On 7 November 2009, the applicant was involved in a severe motor vehicle accident in which she hit her head on the windshield and was diagnosed with a concussion, jaw pain, chest pain, and right shoulder pain.
   
	b.  On 12 November 2009, the applicant followed up with her primary care provider who noted, "patient has some amnesia surrounding event and through the ER [emergency room] visit."

	c.  The applicant reported being in a "daze" and dizzy for weeks and that she felt like her head was in a fog.  She complained of short-term memory loss and she requested cognitive rehabilitation, but was not evaluated until 3 months later in February 2010.

	d.  The applicant required standby assistance and verbal assistance for about 6 weeks after her accident.

4.  On 20 April 2012, a Physical Evaluation Board (PEB) found the applicant unfit for service with an 80 percent disability rating based on her physical limitations due to lupus and post-traumatic stress disorder (PTSD).  The PEB recommended permanent disability retirement and she concurred with the decision and waived her right to a formal hearing of her case.

5.  On 14 June 2012, she was permanently retired with an 80 percent disability rating.

6.  On an unknown date, the applicant submitted a TSGLI claim due to her motor vehicle accident in 2009.  On 27 November 2012, her claim was denied and contained the comment, "KJB-16 August 2012, 2nd medical review, medical documentation provided does not indicate the member's loss met the TSGLI minimum standard."

7.  The applicant provides a copy of her TSGLI claim; a power of attorney; a speech presented before the Senate Committee on Veterans' Affairs by the Principal Deputy Under Secretary of Defense for Personnel and Readiness; a letter from the VA, dated 22 February 2012, which shows she was awarded a monthly stipend of $555.93 per month; medical record extracts; and two OERs for the periods ending 31 August 2003 and 26 December 2007.

8.  The applicant provides a notarized statement from her caregiver, dated 6 December 2011.  Her caregiver stated the applicant required 24-hour care after her accident.  She further stated the applicant's memory loss was severe and even today still exists.  A noticeable improvement started to occur by the end of 2010.

9.  The applicant provides a letter, dated 25 February 2013, from a registered nurse who states that from 7 November 2009 through 30 August 2010, the applicant was unable to independently perform 3 of the 6 activities of daily living (ADL).  She was unable to dress, bathe or eat independently.  The registered nurse also states the applicant's declining cognitive ability was clearly documented.  The applicant was reportedly at a high level of functioning prior to her motor vehicle accident. 

10.  The medical records provided by the applicant do not show any specific ADL deficiencies.

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 office 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.  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.

12.  A qualifying traumatic injury is an injury or loss caused by a traumatic event or a condition whose cause can be directly linked to a traumatic event.  The U.S. Army Human Resources Command official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II.  Each loss has a corresponding payment amount.

13.  Part II loss includes traumatic injuries resulting in the inability to perform at least 2 ADLs 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 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 2 of the 6 ADLs 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.

14.  ADLs are routine self-care activities that a person normally performs every day without needing assistance.  There are six basic ADLs:  eating, bathing, dressing, toileting, transferring (moving in and out of bed or chair) and continence (managing or controlling bladder and bowel functions).  A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six ADLs.  If the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.), the patient is considered to be modified independent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for payment of a TSGLI claim was carefully considered.  However, there is insufficient evidence to support this claim.

2.  Her request for payment of TSGLI was based on her inability to perform 3 of 6 ADLs for the period 7 November 2009 through 30 August 2010, occurring as a result of a motor vehicle accident in which she incurred a concussion, jaw pain, chest pain, and right shoulder pain. 

3.  Medical documentation from the time of her injury until her initial claim submission in 2011 is insufficient to substantiate her claims of ADL loss or to attribute her losses to the injuries she sustained.  While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.

4.  The applicant has not provided sufficient documentation to support her contention that her TSGLI claim was improperly disallowed.  Neither the available records nor the medical documentation the applicant provided establish a basis to support her request.  The documentation provided does not explain how the injuries she received made her completely dependent on someone else to perform 3 of the 6 ADLs for 8 months.

5.  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)                                         AR20130008626



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ABCMR Record of Proceedings (cont)                                         AR20130008626



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