IN THE CASE OF:  	  

		BOARD DATE:  2 October 2014	  

		DOCKET NUMBER:  AR20140002680 


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 request for approval of his Traumatic Servicemember's Group Life Insurance (TSGLI) injury request and promotion to pay grade E-7.

2.  The applicant states that he suffered a traumatic brain injury (TBI) from an improvised explosive device (IED) in Iraq on 30 March 2006.

   a.  He states his doctor has certified that he had the permanent loss of at least two Activities of Daily Living (ADL) within the 730-day window of his injury.  As a result, he is entitled to TSGLI.

   b.  He also states that he started class at the Basic Noncommissioned Officer Course (BNCOC), but was not allowed to finish because of his injuries.  He further states that, had he completed BNCOC, he would have qualified for promotion to pay grade E-7.

   c.  He adds that he served for 23 years and 11 months and deserves these corrective actions.

3.  The applicant provides copies of a DA Form 4187 (Personnel Action) and
10 (of 15) pages of an Application for TSGLI Benefits.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120007820, on 24 January 2013.

2.  The applicant provides new evidence that will be considered by the Board.

3.  The applicant had prior enlisted service in the Army National Guard, U.S. Air Force, and Air National Guard between 10 December 1984 and 15 March 1999, at which time he was honorably discharged by reason of disability with severance pay.

4.  He enlisted in the U.S. Army Reserve (USAR) on 23 March 2002 and he deployed to Iraq during the period of 4 March 2003 to 3 March 2004.

5.  The applicant enlisted in the Regular Army on 22 June 2005 and he was awarded military occupational specialty 13F (Fire Support Specialist).  He deployed to Iraq on 2 December 2005.

6.  On 30 March 2006, the applicant was in a military vehicle when it was struck by an IED.  He was awarded the Purple Heart and Combat Action Badge as a result of the incident.

7.  The applicant was promoted to pay grade E-6 on 1 July 2006.  He departed Iraq on 15 November 2006 and redeployed to Fort Hood, TX.

8.  A letter from the Commander, Company A, Special Troops Battalion,
4th Infantry Division, Fort Hood, TX, dated 17 October 2007, to the President, Physical Evaluation Board (PEB), shows the commander verified the applicant had performed his duties as a Fire and Effects Coordination Noncommissioned Officer in a professional manner while assigned to the command.  He also noted his physical health had slowly deteriorated since his redeployment from Iraq.

9.  On 15 February 2008, a Medical Evaluation Board (MEB) convened at Fort Hood and referred the applicant to a PEB.

10.  A DA Form 3349 (Physical Profile), dated 19 May 2008, shows the applicant was issued a permanent profile for Cervical Lumbar, Thoracic Degenerative Disk Disease; Headache Syndromes; TBI; Post-Traumatic Headaches; Cognitive Disorder; Depressive Disorder, Not Otherwise Specified (NOS); and Pain Disorder.
11.  On 20 May 2008, a PEB convened at Fort Sam Houston, TX, and determined that the applicant's unfitting conditions were –

* Neck Pain – 20% disabling
* Thorocolumbar Pain – 10% disabling
* Cognitive Disorder due to TBI associated with Depressive Disorder, 
NOS – 10% disabling
* Post-Traumatic Headaches, Mixed Tension and Vascular Headaches – 10% disabling

12.  The PEB also determined 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%.

13.  On 9 September 2008, he was honorably retired and placed on the TDRL in pay grade of E-6.  He had completed 15 years, 11 months and 6 days of total active service and 7 years, 11 months, and 23 days of total  prior inactive service.

14.  On 7 October 2010, a PEB again convened at Fort Sam Houston, TX, and diagnosed the applicant as having unfitting conditions of –

* Residuals of TBI – 70% disabling
* Post-Traumatic Stress Disorder (PTSD) with Comorbid Depressive Disorder – 30% disabling
* Degenerative Arthritis of the Thoracolumbar Spine – 20% disabling
* Degenerative Arthritis of the Cervical Spine – 10% disabling
 
15.  The PEB recommended that the applicant be permanently retired with a
90% disability rating.  He was removed from the TDRL and permanently retired in pay grade E-6.

16.  The applicant applied for and was granted Combat-Related Special Compensation with a 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%

17.  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 a sufficient number of days of consecutive loss of ADLs or that he suffered losses within 730 days of the traumatic event.

18.  A review of the applicant's Official Military Personnel File fails to show that the applicant had losses of ADLs, which are dressing, bathing, toileting, eating, continence, and transferring for 30 (or 15) or more days within 730 days of the traumatic event of 30 March 2006.

19.  A review of the U.S. Army Human Resources Command website fails to show the applicant was selected for promotion to pay grade E-7 by a Headquarters, Department of the Army, Promotion Selection Board.

20.  In support of his request for reconsideration the applicant provides the following documents:

   a.  A DA Form 4187, dated 13 November 2007, that shows the applicant was reassigned from Headquarters and Headquarters Company, 4th Infantry, Fort Hood, TX, to the Warrior Transition Unit on 12 November 2007 pending an MEB.

   b.  Application for TSGLI Benefits (pages 3 – 11 and 13, of 15 pages) that shows –

* the header information (i.e., applicant's last name and Social Security Number) are typed on pages 3 – 9

* page 4, the applicant does not indicate the loss of any ADLs
* page 8, item 9 (TBI), "Did the TBI render the patient completely dependent upon another person to perform at least two ADLs?"), an "X" in the "Yes" box with initials over an "X" in the "No" box
* page 9, Doctor Jerry E. W----, Clinical Psychologist, signed the document on 13 August 2008 (emphasis added)

* The header information is handwritten on pages 10 and 11 –

* page 10, shows a "checkmark" indicating, "I have observed the patient's inability to perform daily activities"

* "Is this claim for inability to Bathe?," an "X" in the "Yes" box –

* Begin Date:  13 November 2006, End Date:  25 March 2007
* a "checkmark" in the box indicating the inability is ongoing

* "Is this claim for a lack of Continence?," an "X" in the "No" box
* "Is this claim for inability to Dress?," an "X" in the "Yes" box –

* Begin Date:  13 November 2006, End Date:  28 March 2007
* a "checkmark" in the box indicating the inability is ongoing

* page 11 –

* "Is this claim for inability to Eat?," an "X" in the "No" box
* "Is this claim for inability to Toilet?," a "checkmark" in the "Yes" box –

* Begin Date:  13 November 2006, End Date:  23 March 2007

* "Is this claim for inability to Transfer?," an "X" in the "No" box –

* Begin Date:  13 November 2006, End Date:  23 March 2007

* Doctor Jerry E. W----, Clinical Psychologist, signed the document on 8 September 2008 (emphasis added)

* The header information is typed on page 13 –

* It shows the applicant has been under the clinical psychologist's care from November 2007 until his discharge in September 2008
* Doctor Jerry E. W----, Clinical Psychologist, signed the document on 12 April 2010 (emphasis added)

21.  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.  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.

22.  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 TBI; or

	i.  other traumatic injuries resulting in the inability to carry out two of the six ADLs, which are dressing, bathing, toileting, eating, continence, and transferring.  TSGLI claims may be filed for loss of ADLs if 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 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 request for reconsideration of his promotion/advancement to pay grade E-7 and approval of TSGLI benefits was carefully considered.

2.  The applicant's contention that his injuries precluded him from being allowed to complete BNCOC is not in dispute.  However, there is no evidence of record that shows he was recommended for promotion by a Headquarters, Department of the Army, Promotion Selection Board or promoted to pay grade E-7.  Thus, he is not entitled to promotion and/or advancement to grade E-7 on the Retired List.

3.  The evidence of record shows the applicant's requests for Traumatic Injury Protection under the TSGLI benefits were denied in 2008, 2009, and 2011 because there was insufficient evidence to show that he had sufficient days of consecutive loss of ADLs or that he suffered losses within 730 days of the traumatic event.

4.  In his request for reconsideration, the applicant provides a partial Application for TSGLI Benefits that appears to be comprised of at least three different applications (i.e., dated 13 August 2008, 8 September 2008, and 12 April 2010).  In this regard, the pages provided show header information that is mostly typed, but sometimes handwritten, along with inconsistent entries by the medical provider in the response boxes (i.e., both "Xs" and "checkmarks").  In addition, three of the ADLs (i.e., bathing, dressing, and toileting) show an "End Date"; however, the medical provider also indicated that two of these ADLs (i.e., bathing and dressing) are "ongoing."  Additionally, one ADL (i.e., transferring) is marked "No"; however, it also shows beginning and ending dates for a period of more than 4 months.  Moreover, and most importantly, the ADL losses are not 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.  In this regard, the requirement is clear that claims will not be approved without a certification from a healthcare provider and additional documentation to substantiate the certification within 730 days of the traumatic event (emphasis added).  

5.  Therefore, in view of all 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 to amend the decision of the ABCMR set forth in Docket Number AR20120007820, dated 24 January 2013.




      _______ _   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)                                         AR20140002680



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ABCMR Record of Proceedings (cont)                                         AR20140002680



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