IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20200007452 APPLICANT REQUESTS: the following: * reconsideration of the denial of his entitlement to the Traumatic Service Members’ Group Life Insurance (TSGLI) benefits * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * TSGLI initial request and denial packet FACTS: 1. The applicant defers request and statements to counsel and provides his initial TSGLI claim request and denial packet. 2. Counsel states: a. He and the applicant disagree with the decision to deny TSGLI benefits for 30 days of Activities of Daily Living (ADL) losses caused by a traumatic injury. An error and an injustice have resulted in the denials for 30 days of the ADL losses to date. In review of the complete file and the reasons below, a correction to the applicant’s record is proper and requested to allow for payment of $25,000.00 under the TSGLI Schedule of Losses Number 20 for traumatic injury resulting in inability to perform at least two ADLs at 30 consecutive days. b. The decisions to date have discounted or ignored medical records favorable to approval, statements in support of the claim, and medical opinions provided. The TSGLI reviewer has minimized the applicant’s injuries and fails to recognize ADLs were severely impacted in light of the records and statements at issue, and but for assistance, the claimed ADLs could not be accomplished independently. The Commanding General (CG) is wrong in his assessment of ADL independence in the records, and he fails to consider both PHYSICAL and/or STANDBY assistance for ALL ADLs claimed, which include bathing, dressing, toileting, and transferring. A fair weighing of the evidence with proper consideration of the statements must be made. Such a weighing supports approval of this appeal for 30 days of assistance for at least two of the eight claimed ADL losses especially for the unconsidered STANDBY assistance under the benefit of the doubt and preponderance of evidence standards. 3. Review of the applicant’s service records show: a. Having prior Missouri Army National Guard (MOARNG) enlisted service, he reenlisted in the MOARNG on 28 October 2011. He held military occupational specialties 12B (Combat Engineer) and 31B (Military Police). b. On 1 November 2016, the MOARNG issued him a Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years) and National Guard Bureau (NGB) Form 23A (ARNG Current Annual Statement) showing he was credited with 20 years, 2 months, and 22 days of qualifying service for retired pay. c. On 12 November 2018, through counsel, he submitted a TSGLI claim for losses of ADL, for over 30 days, but less than 60 days, due to an Other Than Traumatic Brain Injury (OIT). d. On 30 November 2018, an informal Physical Evaluation Board (PEB) convened and determined he was physically unfit for a left hip fracture, with open reduction and internal fixation, with trochanteric bursitis and traumatic arthritis (Medical Evaluation Board (MEB) Diagnosis (Dx) 1) and left knee internal derangement with meniscal tear and degenerative arthritis. (MED Dx 2). The PEB recommended a rating of 100 percent and his placed on the Temporary Disability Retired List (TDRL), with a reexamination during November 2019. He concurred with the findings and recommendations of the PEB and waived his rights to a formal hearing. The PEB was approved on 3 January 2019. e. Orders Number D-003-05, dated 3 January 2019, announced his placement on the TDRL, effective 7 February 2019. f. On 19 January 2019, the TSGLI Special Compensations Branch, U.S. Army Human Resources Command (HRC), advised that his claim for his event in Missouri on 3 October 2015 was not approved, of his rights to appeal the decisions, and the general requirements for TSGLI benefits. g. He was honorably discharged from the MOARNG, in pay grade E-5, on 6 February 2019, by reason of Placement on the TDRL. His NGB Form 22 (Report of Separation and Record of Service) shows he completed 21 years, 2 months, and 22 days of total service for retired pay. h. On 8 May 2019, the TSGLI Special Compensations Branch, HRC, advised that his claim for the inability to perform ADLs to an OTI was not approved because his loss did not meet the TSGLI medical standard. The letters provided with his claim were considered; however, the medical documentation provided indicated he achieved modified independence with his ADLs prior to the 30-day milestone. i. On an unknown date, the CG, Office of The Adjutant General, HRC, advised the applicant’s counsel of receipt of the appeal request and after reviewing the claim and supporting documentation, he was unable to overturn the previous adjudication concerning losses associated with the ADL from the traumatic event on 3 October 2015.The applicant had the right to apply to the Army Board for Correction of Military Records (ABCMR). 4. On 19 May 2021, the Chief, Special Compensations Branch, HRC, provided an advisory opinion in the processing of the case. The HRC official stated all requested advisory opinions they had on file for the traumatic event claimed on 3 October 2015, were enclosed with this memorandum and attached the three TSGLI letters, dated 19 January and 8 May 2019, and undated CG letter. 5. 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 6. 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 HRC’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 ADLs. 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. 7. Army Regulation 15-185 (ABCMR), 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record, regulatory guidance and the findings of the Human Resource Command Special Compensation Branch. The findings referenced medical documentation provided by the applicant and in which he indicated he achieved modified independence with his ADLs prior to the 30-day milestone. Based on the preponderance of the evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF :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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200007452 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1