DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 864-20 Ref: Signature Date This is in reference to your application of 24 February 2020 for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board, sitting in executive session, considered your application on 28 April 2020. The names and votes of the members of the panel will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You commissioned into the Marine Corps and began a period of active duty on 28 April 2014. On 12 July 2017, you suffered a grievous gunshot wound during a training exercise. You were immediately hospitalized and remained hospitalized until 7 September 2017. Upon your release from the hospital you continued to need assistance with certain activities of daily living (ADLs). You were readmitted to the hospital from 16 October 2017 to 23 October 2017. You have received an initial award of $25,000 TSGLI benefits. On 11 May 2018, you submitted a supplemental claim for 60, 90 and 120 days of ADL loss; your supplemental claim was denied at the service level, citing insufficient medical evidence to meet the TSGLI standard for financial benefits. In January 2019, you submitted a first level appeal, and received a second award of an additional $25,000 TSGLI benefits for loss of ADLs up to 60 days. On 12 February 2019, your request for ADL losses on days 90 and 120 was denied. In April 2019, you submitted a request to the Navy Council of Review Boards (CORB) for reconsideration of the additional $50,000 TSGLI award for loss of ADLs from days 61 to 120. Your request for the $50,000 TSGLI benefit to cover days 61 to 120 was denied; your appeal was denied. In September 2019, the Physical Evaluation Board (PEB) found you unfit for duty, and you were medically retired from the Marine Corps on 30 November 2019. In your application to the Board you request a third-level review of your TSGLI claim for ADL losses at day 90 and day 120 (totaling $50,000). You stated that medical documents contained in your electronic medical record speak to your ongoing challenges with providing self-care. You assert that the prior medical reviews that resulted in denial of the additional TSGLI benefits up to 120 days disregard functional independent measure (FIM) scores provided by clinical staff to clarify your abilities and functional issues. You contend that quantitative data provided by two independent medical providers serve as FIMs that defined your inability to perform activities of daily living without assistance and either hands on or stand-by support. You submit a copy of the supplemental claim for 120 days ADL losses to support your request for the additional $50,000 benefit to result in the maximum TSGLI award for the injury you sustained in July 2017. The Board reviewed your request pursuant to the guidance of SECNAVINST 1770.4A and OPNAVINST 1770.3A. The Board carefully considered the supporting documentation you submitted in conjunction your request, including the following: the TSGLI letter of denial (first level and second level); AHLTA medical notes from 14 September to 13 October 2017 representing your status on 91 days post injury; AHLTA medical notes from 16 October 2017 to 16 November 2017 representing your status on 120 days post injury; email correspondence from your occupational therapist along with FIM scores for 60 and 90 days; FIM scores from your physical therapist representing day 90 and 120 days respectively; and AHLTA notes documenting your complex recovery to day 60. The Board noted your occupational therapy goals for October and November 2017, and considered the medical notes taken by your treatment providers during your visits during the same period. The Board noted that on 3 October 2017, your physical therapy notes indicate that you arrived to the clinic alone and reported having taken a 50-mile bike ride over the weekend; on 5 October 2017, you reported that you lived alone in with your family in and that despite paralysis from the knee down, you spent three to four hours per day biking. On 12 October 2017, you arrived at the clinic ambulating on a single crutch. From 16­23 October 2017, you were re-admitted to the hospital for a nerve graft surgery. You assert that following the surgery you had a primary inability to dress your lower body and needed assistant with bathing/showering. FIM provided the Occupational Therapist NMCSD rated you as 3:7 with moderate assistance for needed 50% of the time for grooming, bathing and dressing, 1:7 for colostomy and toileting management; and 4:7 at day 120 for multiple domains requiring minimal caregiver assistance or standby assistance 25% of the time. The Board considered the information you provided but noted that in October 2017, your medical records indicate that you were living independently and were biking 3 to 4 hours per day. When making its determination on TSGLI benefits, the Board took into account your commitment to your recovery, your independent living situation, and your ability to participate in extensive exercise as evidenced by lengthy bike rides. The Board also noted that you had normal function of your upper extremities. Based on the available information, the Board concurred with the CORB’s determination that at the time of your discharge from the hospital (with the assistance of a wheelchair) there is no medical reason that you would have been unable to bathe, dress, toilet, transfer, and change the ostomy bag independently for the 90 day and 120 day interval. For you to qualify for additional TSGLI benefits beyond the 60 day milestone, you would have had to be unable to independently perform at least two of the six defined ADLs for the full length of the next scheduled payment intervals (90 days, 120 days). The Board determined that the FIMs provided with your request do not overcome the totality of the medical evidence that indicates independence during the 90 day and 120 day intervals. The Board concluded that your record and the information submitted, do not support an entitlement to TSGLI benefits for the 90 day or 120 day interval. Consequently, your request for entitlement to an additional $50,000 TSGLI benefit is denied. It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. Sincerely, 5/29/2020