ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20160014677 APPLICANT REQUESTS: Reversal of denial of his claim for additional Traumatic Servicemember’s Group Life Insurance (TSGLI) benefits. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Limited Power of Attorney * Occupational Therapy (OT) Initial Consult Report * three letter from the U.S. Army Human Resources Command (HRC) FACTS: 1. The applicant defers statements to counsel. 2. Counsel states: a. The applicant’s claim fits the legal requirements for a TSGLI award. The applicant’s initial TSGLI claim and subsequent appeals were denied. The original claim was submitted by the applicant on an unknown date. The claim was denied on 31 March 2012. The board stated the following reason for its denial; “You were previously awarded a $25,000.00 benefit for 15 days of hospitalization…” b. A reconsideration request was submitted by his office on behalf of the applicant on 17 February 2015. The claim was denied on 9 September 2015. The board stated; “ was approved for an additional $25,000.00 for traumatic injury or 60 consecutive days…” and “Other losses claimed were not approved.” c. A subsequent appeal was submitted by his office on behalf of the applicant and was denied on 28 September 2015. The board simply stated; “Your claim…was not approved because your loss did not meet the TSGLI medical criteria.” As such, the applicant and he were appealing to the Army Board for Correction of Military Records. d. On 24 July 2004, the applicant was involved in a serious motorcycle crash when he struck a guardrail and he was airlifted to the emergency room at St. Joseph Medical a. Center for his injuries. As a result of the accident, the applicant sustained multiple thoracic spinal fractures. Due to the severity of his injuries, he underwent compressive surgery and a posterior spinal fusion from T12 to L2 on 27 July 2004. e. The July 2004 motorcycle accident and resulting injuries are the basis for this TSGLI claim and appeal. The applicant received a partial payment of $25,000.00 for hospitalization and a partial payment of $25,000.00 for 60 days of activities of daily living (ADL) loss. His loss ADL’s and corresponding injuries are supported by sufficient medical information and evidence to grant him a supplemental $25,000.00 TSGLI payment for inability to perform ADL’s for a period of at least 90 days without assistance. f. The applicant began occupational therapy on or about 30 August 2004. On 5 November 2004, he was performing all activities either independently or modified independently. As a result of the blast, he needed assistance with bathing, dressing, maintaining continence, toileting, and transferring, in order to accomplish those activities safely, for over 90 consecutive days from the date of the accident. The applicant’s claim is clearly meritorious based on the preponderance of the evidence that he was unable to perform them without physical and/or standby assistance to do so safely from 25 July to 5 November 2004. g. The denial of full award should be reversed on the basis that the preponderance of the evidence shows the applicant’s inability to bathe, dress, maintain continence, toileting, and transfer independently for over 90 days of ADL loss from 25 July to 5 November 2004 entitled him to a supplemental award of the $25,000.00 TSGLI benefit. h. The applicant and he wish to avoid litigation in Federal District Court of this matter if the denial is upheld. That would only add delay and expense to the parties in reaching a final disposition of this case. 3. A review of the applicant’s military records show he enlisted in the Regular Army on 8 August 2002. 4. On 24 July 2004, he sustained traumatic injuries as a result of a motorcycle accident and was hospitalized. On 20 August 2004, he began OT. The OT report lists his ADL’s were dressing, grooming, self- feeding, bathing, and toileting. He was discharged from the hospital on 22 September 2004. 5. The completed facts and circumstances surrounding the applicant’s discharge are unavailable for review by the Board. However, the available record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing: 1. * he was honorably retired on 15 September 2005, under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B, for temporary disability * he was credited with completing 3 years, 1 month, and 8 days of net active service 6. On 26 February and 11 March 2015, HRC, Special Compensation Branch, advised the applicant’s counsel of their receipt of incomplete TSGLI applications for benefits. 7. On 9 September 2015, HRC, Special Compensation Branch, advised the applicant’s counsel the applicant was approved for an additional $25,000.00 for traumatic injury resulting in the inability to perform at least two ADL’s for 60 consecutive days. In accordance with TSGLI guidelines the previous payment of $25,000.00 for hospitalization brought the total payment to $50,000.00. Other loses claimed were not approved. 8. On 18 May 2016, HRC, Special Compensation Branch, advised the applicant’s counsel that the applicant was previously approved for $50,000.00 for loss of ADL’s for 60 days. Other losses claimed were not approved for loss of ADL’s up to 90 days. The letter further advised of the right to appeal that decision and the general requirements for TSGLI benefits. 9. An advisory opinion was received from the Senior Medical Advisor, Army Review Boards Agency, on 29 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 was no evidence indicating the applicant was incapable of performing 1, 2, or more (4 and/or 5 claimed) ADL’s for 60, 90, or 120 or more days after injury. There was no medical basis or rational (not corroborated or confirmed) for the submitted TSGLI claim. 10. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. He did not respond. 11. By law, the TSGLI Program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. Losses include traumatic injuries resulting in hospitalization for 15 consecutive days or 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. 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 BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s finding that there was no evidence indicating the applicant was incapable of performing 1, 2, or more (4 and/or 5 claimed) ADL’s for 60, 90, or 120 or more days after injury, the Board concluded there was insufficient evidence to corroborate the statements of the applicant concerning his medical condition; 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. 5/14/2019 X CHAIRPERSON Signed by: 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.