IN THE CASE OF:	  

		BOARD DATE:	   1 April 2014  

		DOCKET NUMBER:  AR20130013247 


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 reversal of his denied Traumatic Servicemembers Group Life Insurance (TSGLI) claim of $100,000.00 for 120 days loss of ability to independently perform Activities of Daily Living (ADLs).

2.  The applicant states:

   a.  The error or injustice is in regard to the denial of his TSGLI claim.  On 5 March 2002, he suffered traumatic injuries resulting from a motor vehicle accident (MVA) at Fort Leavenworth, KS, while in the line of duty (LOD).  This occurred 4 days after he was promoted to sergeant first class with 14 years in the Army.  He was never promoted after that.  He could no longer deploy and feels this was held against him which resulted in his non-selection for promotion to master sergeant/sergeant major.

   b.  The traumatic injuries he sustained did indeed occur within the first two years of the injury and got worse over time.  His TSGLI claim was denied several times, each denial was eventually overturned.  He was informed the traumatic injuries to his ADL didn't occur during the first two years of the injury.  That isn't true.  He sustained multiple soft tissue injuries that required numerous surgeries since the LOD accident.  He is currently 100 percent permanently disabled and has had at least 11 in-and-outpatient surgeries/procedures on his back.  He was hospitalized for over 45 days.  He was medically evacuated from his duty station a year early for Spinal Fusion which occurred on 18 and 23 June 2005.


3.  The applicant provides copies of the following:

* DA Form 705 (Army Physical Fitness Test (APFT) Scorecard)
* Five DA Forms 3349 (Physical Profile)
* DD Form 1610 (Request and Authorization for Temporary Duty Travel of Department of Defense Personnel)
* Medical Status memorandum
* Naval Hospital Outpatient Low Back Pain Assessment
* Request for Reconsideration of Appeal memorandum
* TSGLI denial letter

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 enlisted in the Regular Army on 12 November 1987.

3.  His record contains the following:

   a.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 July 2002, which shows he was involved in a privately owned vehicle accident on 5 March 2002 when he was hit by another person operating a separate automobile.  He received minor injuries caused by his seatbelt and deployment of his airbag.

	b.  A final approved LOD determination of his 5 March 2002 injury.

   c.  A memorandum, dated 8 August 2003, wherein he stated that on 5 March 2002, while performing his official military duties on Fort Leavenworth, KS, he was involved in an MVA.  He sustained injuries to his back, chest, knee, mouth, and head from this MVA.  As a result, he had and continued to suffer muscle spasms and pain due to severe cervical strain and musculoskeletal damage to his lower back.
4.  He provided copies of the following:

   a.  A DA Form 705, dated 30 October 2001, which shows he completed his APFT.

   b.  Five DA Forms 3349, dated 29 April, 14 May, 8 July, 22 October 2003, and 16 November 2004, which show he was placed on the following profiles for back pain on:

		(1)  temporary from 29 April to 13 May 2003
		(2)  temporary from 14 May to 7 July 2003
		(3)  permanent from 8 July to 21 October 2003
		(4)  temporary from 22 October 2003 to 15 November 2004
		(5)  permanent on 16 November 2004
   
   c.  A Pain Management Center medical record from March 2004 referencing his surgeries and procedures.

   d.  An Outpatient Low Back Pain Assessment, dated 2 July 2003, referencing re-evaluation of his low back pain.

   e.  A DD Form 1610, dated 26 March 2004, which shows he was medically evacuated from Naples, Italy, to the Army Regional Medical Center, Landstuhl, Germany, with a proceed date of 29 March 2004.
   
   f.  A Medical Status memorandum, dated 23 September 2004, which referenced his MVA and sustaining a significant back injury.
   
   g.  A memorandum, dated 3 May 2012, wherein he requested reconsideration of his TSGLI claim.
   
5.  He was retired on 30 November 2010 for sufficient service for retirement. 

6.  He also provided copies of the following:

   a.  2002 to 2004 medical records regarding his diagnosis and treatments for back pain.

   b.  A letter, dated 3 May 2013, from the U.S. Army Human Resources Command, wherein he was advised of the denial to overturn the previous adjudication because he did not suffer his claimed loss due to an MVA within 730 days of his initial claimed date of injury, 5 March 2002, as defined by Department of Veterans Affairs guidance.
7.   A TSGLI appeal summary, dated 30 July 2012, stating:

   a.  The applicant's initial application for TSGLI was received on or about 24 October 2011 and was denied on 4 January 2012.  His reconsideration application was received on or about 6 March 2012 and was denied on 23 April 2012.  His appeal application was received on or about 13 June 2012 and was denied on 31 July 2012.
   
	b.  It was recommended the applicant's claim be denied because he injured his back in an MVA in March 2002 and his claimed losses were from 18 June 2005 to 11 July 2005, which is greater than 2 years (730 days) from the traumatic event and did not meet the basic requirements of the program.

8.  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 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.

9.  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.  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.  

10.  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.

11.  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.

12.  A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six ADL.  If the member 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.

13.  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 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 initial TSGLI claim and subsequent requests were denied because the claimed losses were greater than 2 years from the initial clamed date of injury.

2.  By law, for an ADL loss to be covered there must be a traumatic event that leads to a loss for a duration of at least 30 days and falls within the 2-year qualifying period.  His claimed ADL losses fell outside the qualifying period; therefore, he is not entitled to TSGLI benefits and reversal of the denial for these benefits.  There is no evidence and he did not provide sufficient evidence to show he was improperly disallowed the TSGLI benefits.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130013247





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ABCMR Record of Proceedings (cont)                                         AR20130013247



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