ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 May 2019

	DOCKET NUMBER:  AR20160013694


APPLICANT REQUESTS:  

* reversal of the denial of her entitlement to Traumatic Servicemmembers’ Group Life Insurance (TSGLI) claim for loss of activities of daily living (ADLs) for 30 days
* personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* TSGLI application packet
* four letters to and from the U.S. Army Human Resources Command (HRC), Special Compensation Branch

FACTS:

1.  The applicant defers statements to her counsel.  Counsel states:

     a.  The TSGLI officer has denied the applicant’s claim and subsequent appeals for loss of activities of daily living (ADL) for 30 days.  The findings are not consistent with the hospitalization, submitted statements, and medical reports.  Ignoring the statements and medical records are in error and an injustice.  Counsel request on behalf of the applicant that the decision be reversed and the requested benefits be provided, as the totality of the evidence requires it.

     b.  The denial of the TSGLI claim is unjustified in light of statements and evidence in the medical records, which demonstrated the applicant required assistance to perform at least two of her ADL’s for over 30 days.  The statements and medical records have been ignored or unjustifiably discounted, which makes the finding an injustice and error, especially under the low burden of proof for the preponderance of the evidence standard.  Being such, it is requested benefits for 30 days of ADL’s be provided.  

     c.  The submitted disk contains all the necessary records related to this claim.  A personal appearance before the Board is requested, so the applicant can tell her story first-hand rather than base it on a record review.  The testimony will be very probative and can be accomplished via teleconference, if most convenient for the Army Review Boards Agency.  

2.  A review of the applicant’s military records show:

     a.  She enlisted in the Army National Guard (ARNG) on 27 December 1999.  

     b.  She elected to participate in the SGLI on 18 February 2000.  

     c.  She was discharged from the ARNG on 21 March 2001.

     d.  She enlisted in the Regular Army (RA) on 22 March 2001.  

     e.  On 18 February 2002, she suffered serious traumatic injuries as a result of a high speed motor vehicle collision.  She was hospitalized from 18 to 28 February 2002.

     f.  She reenlisted in the RA on 24 April 2003 and 20 October 2005.

     g.  On 6 January 2009, an informal Physical Evaluation Board (PEB) convened and considered her medical condition of major depression.  The PEB found her physically unfit and recommended her placement on the temporary disability retired list (TDRL), with a combined rating of 50 percent.  She concurred and waived her right to a formal hearing.  The PEB was approved on 7 January 2009.

     h.  She was honorably retired on 29 March 2009, under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B, for temporary disability.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was credited with a total of 8 years, 5 months, and 20 days of net active service.

     i.  She was removed from the TDRL on 24 October 2013 and placed on the Permanent Disability Retired List.

3.  On 27 May 2014, through counsel, the applicant submitted an application for TSGLI benefits for a traumatic injury on 18 February 2002 leading to a loss of at least two ADL’s for over 30 days.

4.  The TSGLI office advised the applicant and counsel of the following on:

* 9 October 2014 – the submission of the applicant’s incomplete application
* 14 May 2015 – denial of the reconsideration of the previous claim decision based on the documentation provided did not indicate she met the TSGLI standards for ADLs
* 24 June 2016 – denial to overturn previous adjudication and information for applying to the Army Board for Correction of Military Records (ABCMR)

5.  An advisory opinion was received from the Senior Medical Advisor, Army Review Boards Agency, on 22 January 2019, in the processing of this case.  The medical advisor reviewed the record for alleged medical condition(s) warranting award of TSGLI benefits.  The medical advisor reiterated the applicant’s period of military service and recommended denial of the applicant’s request.  He stated that there were no medical basis or rational (not corroborated or confirmed) for the submitted TSGLI claim.

6.  The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal.  She did not respond.

7.  By law, the TSGLI Program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury.  A service member must meet all of the following requirements to be eligible for payment of TSGLI.  The service member must have:

* been insured by SGLI at the time of the traumatic event
* incurred a scheduled loss and that loss must be a direct result of a traumatic injury
* suffered the traumatic injury prior to midnight of the day of separation from the Uniformed Services
* suffered a scheduled loss within 2 years (730 days) of the traumatic injury
* survived for a period of not less than 7 full days from the date of the traumatic injury

9.  By regulation (AR 15-185), an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that they could make a fair and equitable decision in the case without a personal appearance from the applicant.

Additional, based upon the medical advisory’s finding that there were no medical basis or rational for the submitted TSGLI claim, the Board concluded that there was insufficient evidence to corroborate the statements of the applicant and, therefore, the Board recommended denying the applicant’s request for relief.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

	 
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.




REFERENCES:

1.  Public Law 109-13 (Making Emergency Supplemental Appropriations for Defense, the Global War on Terror, and Tsunami Relief 2005) signed by the President on 11 May 2005 established the Traumatic Servicemembers’ Group Life Insurance (TSGLI) Program.  The U.S. Army Combat-Related Special Compensation Office 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 $25,000.00 and $100,000.00 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense.  A service member must meet all of the following requirements to be eligible for payment of TSGLI.  The service member must have:

* been insured by SGLI at the time of the traumatic event
* incurred a scheduled loss and that loss must be a direct result of a traumatic injury
* suffered the traumatic injury prior to midnight of the day of separation from the Uniformed Services
* suffered a scheduled loss within 2 years (730 days) of the traumatic injury
* survived for a period of not less than 7 full days from the date of the traumatic injury (in a death-related case)

2.  A qualifying traumatic injury is an injury or loss caused by a traumatic event or a condition whose cause can be directly linked to a traumatic event.  The U.S. Army Human Resources Command’s official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II.  Each loss has a corresponding payment amount.

	a.  Part I losses includes sight, hearing, speech, quadriplegia, hemiplegia, uniplegia, burns, amputation of hand, amputation of four fingers on one hand or one thumb alone, amputation of foot, amputation of all toes including the big toe on one foot, amputation of big toe only, or other four toes on one foot, limb salvage of arm or leg, facial reconstruction, and coma from traumatic injury and/or traumatic brain injury resulting in the inability to perform two activities of daily living (ADL).

	b.  Part II losses include traumatic injuries resulting in the inability to perform at least two ADLs for 30 or more consecutive days and hospitalization due to a traumatic injury and other traumatic injury 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 ADL if the claimant requires assistance from another person to perform two of the six ADLs for 30 days or more.  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.
3.  AR 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 of the regulation states:

    a.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

     b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.


ABCMR Record of Proceedings (cont)	 AR20160013694


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