RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03330

  						COUNSEL:  YES

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

Through counsel, he be entitled to receive benefits under the Traumatic Servicemembers’ Group Life Insurance (TSGLI) program.  

APPLICANT CONTENDS THAT:

He needed assistance from 14 May 06 to 11 Jan 07 with two Activities of Daily Living (ADLs) (bathe and dress) due to his ankle injury for at least 120 days which qualifies him for the TSGLI program.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

Prior to the events under review, the applicant initially entered the Regular Army on 25 Jun 80.  On 24 Jun 84, he was furnished an honorable discharge and credited with four years of active service; however, he continued to affiliate with the Reserve Component in both the Army and Air Force Reserve.

On 22 Aug 05, he was recalled to extended active duty with the Air Force.  

On 14 May 06, he incurred injuries in a single vehicle accident.

On 21 Aug 06, he was honorably released from active duty due to demobilization with net active service this period of one year.  

On 24 Aug 06, according to the documents provided by the applicant, an informal line of duty determination recommended his injuries resulting from the vehicle accident were not in the line of duty due to his own misconduct.  The police report showed the applicant received a 0.05 blood alcohol content level test result.  

On 14 Oct 06, according to the documents provided by the applicant, the appointing authority decided to initiate a formal investigation.

On 31 Oct 06, according to the documents provided by the applicant, the formal investigation found the injury was a proximate cause of intentional misconduct or neglect.  The report states he fell asleep while driving, was speeding, and had a blood alcohol content level of 0.05.  

On 15 Feb 07, according to the documents provided by the applicant, the approving authority found his injuries incurred were in the line of duty.

On 5 Oct 07, he reenlisted for six years in the Air Force Reserve.

On 01 Oct 13, the applicant was assigned to the Retired Reserve.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

AFPC/DPFCS recommends denial indicating there is no evidence of an error or an injustice.  The applicant was denied his TSGLI claim and subsequent appeal for injuries incurred on 14 May 06.  In order to qualify for a TSGLI payment, there must be ADL losses, meeting TSGLI loss criteria, for at least 30 consecutive days.  The TSGLI program loss criteria for the claimed ADLs in this case are: 

Bathe:  Patient is UNABLE to bathe independently if he/she requires physical, stand-by, or verbal assistance from another person to bathe more than one part of the body (via tub bath or sponge bath) or get in or out of the tub or shower).

Dress:  Patient is UNABLE to dress independently if he/she requires physical, stand-by, or verbal assistance from another person to get and put on appropriate clothing (i.e. dress for the correct season), socks or shoes (may have help tying shoes).

On 5 May 05, Public Law 109-13 established a traumatic injury program designed to provide financial assistance to servicemembers during recovery from a serious traumatic injury (not necessarily as a result of combat).  The insurance (TSGLI) is a rider to the Servicemembers’ Group Life Insurance (SGLI) policy.  TSGLI pays a monetary benefit from $25,000.00 to $100,000.00 for covered losses that are incurred by the member as a result of a traumatic injury suffered from 7 Oct 01 to present.

The applicant’s TSGLI claim and other pertinent records were evaluated by physicians educated in TSGLI loss criteria for both the original claim and the claim appeal.  In both, no evidence in the medical record supports the claim that the applicant was unable to perform the claimed ADLs and it was noted the applicant was able to ambulate with an assistive device without any difficulty at discharge (19 May 06) and during the last three days as an inpatient his mobility was “slightly impaired” and ADL requirement was assessed as “minimal assistance.”  His rehabilitation apparently progressed slowly and he remained in Controlled Ankle Movement (CAM) boot for a prolonged period and was noted to have developed pain at the surgical site.  There is somewhat conflicting statements as to the applicant’s work and duty status but it appears his surgeon initially released him to limited light/desk duty as of mid-June 06.  This was apparently later amended due to increasing ankle pain and the need for further evaluation.  The applicant underwent several months of physical therapy before it was concluded that his chronic ankle pain might be alleviated by surgery to remove orthopedic hardware (screw) and to repair a torn tendon.  This surgery was ultimately performed on 3 Oct 06 followed by several more months of physical and aqua therapy and restricted progressive weight bearing.  Aside from prolonged occupational restrictions and functional limitations involving weight bearing and ambulation, he otherwise continued to have "minimal ADL restrictions".  By Jan 07 he was able to transition from a CAM walker boot to an air cast for support of his ankle and was advised to "get rid of crutches".  As of May 07 he was released to ambulate and perform regular activities as tolerated, including a release from previous physical profile restrictions.  In conclusion, if he was receiving assistance, it was for convenience and not because he was incapable of performing the ADLs.  The burden of proof is on the applicant to demonstrate that he suffered a scheduled loss as a result of his traumatic event.  After reviewing the original claim and appeal, the physicians’ position is that he does not meet TSGLI criterion for ADL loss due to other traumatic injury for any payable threshold.

A complete copy of the AFPC/DPFCS evaluation, with attachments, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In rebuttal, the applicant’s counsel asks the Board to apply the ‘benefit of the doubt’ principle in reviewing the applicant’s TSGLI claim.  He argues the standard of evidence in TSGLI cases is generally a ‘preponderance of the evidence’ standard, meaning that if the evidence proves the applicant’s claim is more likely true than not, he is entitled to the benefit.  He believes the standard is commonly misapplied by the agency and servicemembers are held to a much higher standard of proof.  

A complete copy of the applicant’s rebuttal is at Exhibit E.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice as there is no evidence in the medical record that supports the claim that the applicant was unable to perform the claimed ADLs.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2015-03330 in Executive Session on 16 Aug 16 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03330 was considered:

	Exhibit A.  DD Form 149, dated 23 Jun 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFSC, dated 31 Mar 16, w/atchs.
	Exhibit D.  Letter, AFBCMR, dated 1 Apr 16.
	Exhibit E.  Applicant’s Rebuttal, dated 12 Jul 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.