RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01202

xxxxxxxxxxxx	COUNSEL: XXXXXXXXXXXXX
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

He be given Servicemembers’ Group Life Insurance Traumatic Injury Protection Program (TSGLI) benefits for the inability to perform Activities of Daily Living (ADL) between 61 and 120 days after his injury.

APPLICANT’S CONTENTIONS

On 26 Aug 16, he was seriously injured after being struck by a motor vehicle.  He was diagnosed with an open reduction, internal fixation (ORIF) of the right proximal tibia with ligament repair.  His recovery proceeded slowly and over the months he gradually gained some independence in his ADL.  He did improve somewhat, but due to balance issues and the overall trauma he suffered, he required standby assistance from his wife for all of his ADL for a period of greater than 120 days which is annotated in the medical documents from his orthopedist stating he required standby assistance for a least four ADL for a period exceeding 120 days.  He was recently discharged from the Air National Guard (ANG) for medical reasons due to his injuries.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former ANG technical sergeant (E-6).

On 26 Aug 19, NGB Form 22, National Guard Bureau Report of Separation and Record of Service, indicates the applicant was honorably discharged from the ANG with a total service for pay of 17 years and 9 months (16 years total service for retired pay).  The authority and reason for discharge was AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, paragraph 3.12.1, “Expiration of Enlistment.”  He was assigned a Reenlistment Eligibility Code of “6B” which denotes “ANG Eligible to Reenlist-Member Elected Separation or Discharge.”

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

NGB/A1PS recommends denying the application finding no evidence of an error or injustice.  The TSGLI program provides coverage to any Service member insured under Servicemembers' Group Life Insurance (SGLI) who sustains a serious traumatic injury that results in certain prescribed losses.  TSGLI provides between $25,000 and $100,000 of coverage depending on the loss incurred.  The applicant submitted a TSGLI claim on 10 Dec 18 for a loss of ADL for 120 days but was denied.  He submitted an appeal on 12 Aug 19 and was approved for the loss of ability to independently perform ADL for the 30 and 60 day milestones and denied for loss of ability to independently perform ADL for the 90 and 120 day milestones.  The applicant submitted his final appeal on 20 Jul 20 and was denied for loss of ability to independently perform ADL for the 90 and 120 day milestones.  The reviewer states “Since the current TSGLI appeal is for the loss of two or more ADL for 90 and 120 days, we performed an additional review of the physical therapy evaluations after the 60th post injury day beginning with the physical therapy encounters on 26 Oct 16 (62nd post injury day) to 23 Nov 16 (90th post injury day).  The physical therapy appointment on 23 Nov 16 gave a detailed evaluation of the applicant’s ADL ability and noted he was right leg weight bearing, able to dress independently (don/don off his clothing and put on his shoes) but was unable to shower independently.  He required an increase in time to complete all ADLs.  These physical therapy comments support his ability to perform the ADLs of toileting, dressing, transferring (albeit requiring additional time to accomplish them) by the 90th post injury day.  Grooming is not a covered in the TSGLI ADL guidelines.  It is also important to note that there were no physical therapy comments that he required any other assistance except for showering.  Based on my review of this claim, there is clear documentation of a covered mechanism of injury resulting in the applicant’s claimed ADL losses for the 30 day and 60 day periods.  There is supporting documentation that his resulting limitations following his injury resulted in a loss of the ability to independently perform two or more ADLs for a period of 30 and 60 consecutive days.  However, there is no supporting evidence that he was unable to perform two or more ADLs at the 90th or 120th post injury day.”  Based on the physical therapy (PT) notes dated 23 Nov 16, he was right leg weight bearing and able to dress independently.  The medical records support that the applicant was able to independently dress, toilet, and transfer, albeit requiring additional time to accomplish, by the 90 day post injury date. It is also important to note that there were no physical therapy comments that he required any other assistance except for showering.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 24 Oct 21 for comment (Exhibit D), and the applicant replied on 25 Oct 21.  In his response, the applicant’s counsel contends the advisory contains conflicting language recommending a denial but suggesting that perhaps 90 days should be allowed for TSGLI.  It also appears the advisory opinion reviewer was looking at the wrong records as it references a different applicant.  Furthermore, there is no reference to the caregiver’s affidavit which case law suggests is an important consideration and the fact that the reviewing medical examiner based his opinions upon the hands-on repeated examinations rather than solely upon a review of the physical therapy records.
The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

NGB/A1PS recommends denying the application.  The information from the previous advisory regarding the other applicant was removed.  In regards to the confusion of the conflicting language, it is based on the OPR recommendation to deny.  The Proposed Directive Language, however, if the decision by the Board is to grant the relief sought, is for the member’s TSGLI claim to be approved for loss of ADL for a period of at least 90 days.  The proposed directive language is required per the Secretary of the Air Force (SECAF) and is only if the Board elects to grant the members request against the advisory opinion.  In regards to the caregiver affidavit, that was not mentioned upon review on the final appeal documentation, and there is no document provided in the original claim, 1st appeal or 2nd appeal.  There were mentions in the notes that the spouse was needed to assist with showering.  This only indicates that assistance was only needed for one of the two out of six ADLs that would be needed for approval based on the TSGLI guidelines.  In regards to the comment by counsel pertaining to the hands-on examination versus the physical therapy records, the medical reviewer based all information on the physical therapy records which details the applicant’s progression.

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the additional advisory opinion to the applicant on 10 Nov 21 for comment (Exhibit G), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of NGB/A1PS and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2021-01202 in Executive Session on 23 Nov 21 and 11 Dec 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 8 Feb 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/A1PS, dated 1 Oct 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 24 Oct 21.
Exhibit E:	Applicant’s Response, dated 25 Oct 21.
Exhibit F:  Advisory Opinion, NGB/A1PS, w/ atch, dated 10 Nov 21.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 10 Nov 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.