IN THE CASE OF:	  

		BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20140003511 


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 correction of his military records by showing he is entitled to receive pay for his injury/claim under the Traumatic Servicemember's Group Life Insurance (TSGLI) Program.

2.  The applicant states the record of his appeals should be corrected to reflect his application identified that he was unable to perform activities of daily living (ADLs) for over 200 days; therefore, the denials of TSGLI benefits for over 180 days were in error.  He contends that based on the information provided by his medical professional, all requirements for establishing TSGLI were met and the disability does in fact render him eligible to receive $100,000.00 in compensation, of which he has only received $25,000.00.  The claim form clearly shows his doctor indicated that he was unable to bathe, dress, toilet, and transfer independently for over 200 consecutive days.  Consequently, the record should reflect that the previous denials were in error and the appropriate TSGLI compensation should be provided.

3.  The applicant provides copies of:

* TSGLI Claim, dated 28 January 2013
* TSGLI Appeals, dated 30 June and 27 November 2013
* Power of Attorney, dated in June 2013



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's military records be corrected to reflect his claim for TSGLI was correctly re-filed and approved for proper compensation.

2.  Counsel states, in essence, that the applicant was paid $25,000.00 on
1 October 2013.  This occurred after his application had been previously denied.  In accordance with instructions included with this payment, the applicant appealed the amount of the payment as being insufficient given the length of time he was recovering from his injury.  According to the schedule of losses, the total payment due to the applicant would be $100,000.00.  Therefore, he should receive another $75,000.00.

3.  Counsel provides a copy of the TSGLI Schedule of Losses that was downloaded from the Department of Veterans Affairs Website.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a member of the Army National Guard, serving in the rank of specialist, pay grade E-4.

2.  Records at the U. S. Army Human Resources Command (HRC), TSGLI Compensations Branch provided the following:

	a.  The available record of the applicant's claims:

* Initial application on or about 13 July 2012
* Initial application denied on 27 July 2012
* Application reconsidered on 18 April 2013
* Reconsideration denied on 23 April 2013
* Appeal received on or about 31 July 2013
* Appeal denied on 30 September 2013

	b.  Summary of case:  The applicant, a 38-year old male Soldier, sustained an accidental self-inflicted nail gun injury to his left knee on 12 July 2010.  Medical treatment consisted of irrigation and debridement and 3 days hospitalization.  He was initially quite mobile on crutches; however, he developed septic arthritis and was again hospitalized in late July 2010.  He was treated with arthroscopic lavage and intravenous (IV) antibiotics for 40 days.  A follow-up note on 
30 August 2010 describes the applicant as doing well and eager to return to work.  The IV was discontinued.  The few additional medical documents dated after August 2010 do not support ADL loss.
	c.  The applicant claimed 15 consecutive days of hospitalization.  However, the medical records that were submitted do not support continuous hospitalization for 15 or more days.  He also claimed inability to perform four ADLs for 120 days.  His single limb wound was complicated by septic arthritis, a second surgical procedure, and the need for outpatient IV antibiotics for more than 30 days.  

	d.  The documented injuries did not support the loss of ADLs for the duration claimed but did support a loss of two or more ADLs for up to the 30 day milestone.  Therefore, the applicant's claim and subsequent appeals were denied.

	e.  During the processing of the applicant's claim by HRC, a clerical error occurred, resulting in the applicant receiving an erroneous payment of $25,000.00.

3.  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 May 11, 2005, established the TSGLI program.  U.S. Army Combat-Related Special Compensation (CRSC) 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 and $100,000 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.  In addition, there is a retroactive program, in which Soldiers who incurred a qualifying traumatic injury from 7 October 2001 through 30 November 2005, while supporting Operation Iraqi Freedom and Operation Enduring Freedom or under orders in a Combat Zone Tax Exclusion (CZTE) area are covered regardless of whether they elected SGLI coverage or not.  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.

4.  There are some 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 traumatic brain injury; 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 the claimant is completely dependent on someone else to perform 2 of the 6 ADLs for 30 days or more 
(15 days or more in the case of traumatic brain injuries).  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 medical documents demonstrating the injury type and duration of ADL loss.  While TSGLI claims won't be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.

5.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that military records should be corrected by showing that he is entitled to receive pay for his injury/claim under the TSGLI Program.

2.  The applicant argues that he was unable to perform ADLs for over 200 days; therefore, the denials of TSGLI benefits for over 180 days were in error.

3.  There is no available medical documentation to support the applicant's claim that he was unable to perform ADLs for any period in excess of the 30 day milestone.

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20140003511



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ABCMR Record of Proceedings (cont)                                         AR20140003511



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