PROCEEDINGS

	IN THE CASE OF:          

-	BOARD DATE:               1 March 2000               
	DOCKET NUMBER:      AR1999021257

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby 		Member	
	Mr. John Saputo		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, retroactive enrollment in and compensation from the Ready Reserve Mobilization Income Insurance Program (RRMIIP).

3.  The applicant states, in effect, that in October 1997 he was ordered to active duty for deployment to Bosnia.  He comments that prior to this mobilization he had never been notified of the RRMIIP by any USAR commander, that he had never been counseled in regard to the program or the insurance coverage, nor did he ever sign a declination roster.  He claims he is being unfairly denied an entitlement based on the negligence of USAR officials.  He has enclosed the denial of his appeal for coverage and indicates it shows the unfairness of the decision.  He goes on to indicate that his chain of command cannot support its unintentional negligence in never affording him a formal briefing on the RRMIIP or the opportunity for enrollment in the program.  He reasserts the fact that during the initial enrollment period, between 1 October and 31 December 1996, he was never notified of the RRMIIP and he never received the monthly newsletter the command tried to pass off as official notification.  He enclosed all the statements and documents used in support of his various appeals and asks that they be reviewed, which should result in his request for retroactive RRMIIP coverage being approved.  

4.  The applicant’s military records show that he was reassigned, as a captain, from the 445th Civil Affairs Battalion, Mountain View, California, a USAR Troop Program Unit (TPU), to the 1st Brigade of the 91st Division, Dublin, California, another TPU, effective 17 October 1996.  

5.  The applicant transferred to the 404th Civil Affairs Battalion Support Element 3, Fort Dix, New Jersey and on 30 October 1997, he was ordered to active duty for a period not to exceed 242 days, effective 6 December 1997, for the purpose of mobilization and assignment to Bosnia in support of Operation Joint Guard.  

6.  On 9 December 1997, the applicant completed RRMIIP claim forms and submitted a request for enrollment in the RRMIIP.  His appeal was received by the RRMIIP Program Manager at the Army’s Reserve Personnel Command (ARPERSCOM) on 28 January 1998.  On 29 April 1998, the applicant’s request was returned without action because ARPERSCOM considered his appeal packet incomplete; in addition, they requested additional documents to support his claim.  Primarily they needed a statement from his unit commander, during the initial RRMIIP enrollment period, verifying that he had not been briefed on the program.

7.  A statement provided on behalf of the brigade commander of the 
91st Division, dated 1 June 1998, indicated that, during the initial RRMIIP enrollment period, the program was offered via a brigade newsletter, dated 
8 November 1996, which was mailed to every soldier in the unit.  Therefore, it could not be put in writing that the applicant was not notified of the RRMIIP, as every member of the unit had the opportunity to read the Newsletter.  In addition, the unit commander believed, since the applicant did not mobilize with his unit and had transferred to another unit that did mobilize, he should have received the RRMIIP briefing from his new unit.

8.  On 25 June 1997, the applicant submitted an appeal to receive RRMIIP benefits to ARPERSCOM with additional documentation.  In this appeal the applicant restated the fact that he had never been briefed on the program or given a legitimate opportunity to enroll.  He included his communications with his previous commander to show that he had attempted to satisfy the documentation requirement for appeal.  He again asked that he be enrolled in the RRMIIP at the $5,000 per month rate.

9.  On 1 September 1998, ARPERSCOM denied the applicant’s appeal, citing contradictory information.  They indicated that the applicant’s unit commander, during the initial enrollment period, stated that the applicant had been adequately notified via a brigade newsletter.  In addition, they claimed that the applicant had volunteered to transfer to the Individual Ready Reserve (IRR) in order to deploy and as a volunteer he would not have been entitled to RRMIIP benefits.

10.  On 3 August 1998, the applicant was honorably released from active duty upon the completion of his required service, as evidenced by a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which is contained in the record.  

11.  In the processing of this case a staff advisory opinion was obtained from the ARPERSCOM RRMIIP Program Manager.  It opines, in effect, that the applicant’s request should be denied.  The reason for this opinion is that given the unit commander’s comment it should be considered the applicant was notified during the initial enrollment period and failed to apply and that his appeal, dated 5 July 1998, is considerably outside the sixty-day enrollment window.  The Program Manager further indicated, based on the comment of the unit commander, that the applicant volunteered to enter the IRR in order to deploy and because he was a volunteer he was not entitled to RRMIIP benefits.  The Program Manager concludes his advisory opinion by indicating that the applicant’s appeal is dated after he was on active duty and given that fact even if the unit commander had indicated he had not been briefed on the program, he would still only be entitled to coverage of $1,000 per month of mobilization, minus the first 30 days.  
12.  The advisory opinion was provided to the applicant for comment and he responded, in effect, that at no time did he ever receive notification from his chain of command of the availability of any mobilization insurance.  He went on to indicate that for the Program Manager to indicate that the unit commander felt he was adequately notified via a newsletter, is to imply that he therefore, was directly notified which is completely not true.  He goes on to indicate he was only transferred to the unit in mid October and did not receive the newsletter until sometime in February 1997, which was already beyond the initial enrollment period.  In support of this claim he indicates that after his deployment he returned to the same unit and still has not received a newsletter, 8 months later, in spite of his repeated attempts to be placed on the mailing list.  This fact he claims can be verified by his unit.  He also indicated that the RRMIIP Program Manager had a meeting with personnel in Bosnia and stated that “a unit or command is on definite shaky grounds of proving adequate notification if it cannot be demonstrated that the soldier received notification by either certified letter or the signing of a declination letter by the soldier.”  This he indicates is a verbatim quote of the RRMIIP Program Manager.  He goes on to reiterate that he never received notification by anyone, directly or indirectly, which would have provided him an opportunity to sign up for mobilization insurance coverage while deployed in Bosnia.  Regarding his status at the time of deployment, the applicant states that he never volunteered for transfer to the IRR for the opportunity to deploy to Bosnia, as is evidenced by his record.  He concludes that it is unfortunate that the RRMIIP Program Manager’s investigation of the facts was wholly inadequate, deficient, circumspect, and biased toward only denying him his bona-fide entitlement.  Further, it is obvious that the advisory opinion was designed to absolve the command from their negligence rather than resolve the issue of his true entitlement.  

13.  The National Defense Authorization Act for Fiscal Year 1996, dated 10 February 1996, authorized the RRMIIP with an initial start date of 1 October 1996.  RRMIIP was designed to provide income insurance for most Reserve Component members who were involuntarily ordered to active duty in support of military operations for over 30 days.  The initial enrollment period for active members of the Reserve Components (USAR and National Guard) was 1 October 1996 through 31 December 1996.  Personnel who failed to enroll within 60 days after being briefed were considered to have declined.  Personnel on active duty were not eligible to apply for enrollment in the RRMIIP.  Personnel who enlisted in a TPU after the initial enrollment period were required to be briefed on the program within 60 days of arrival in the unit and had 60 days after being briefed to enroll or decline.

14.  The National Defense Authorization Act for Fiscal Year 1998, effective 18 November 1997, terminated the RRMIIP coverage for those not ordered to involuntary active duty as of that date and prohibited new enrollments.  Consequently, the USAR and Army National Guard extended administrative appeals/errors processing to offer Reserve Component soldiers who believed that they were wrongfully denied enrollment an opportunity to appeal.  All appeals had to be received in complete form as of 30 June 1998.

15.  The Office of the Assistant Secretary of Defense memorandum, dated 
14 November 1996, provided clarifying guidance regarding eligibility of Reserve members who were insured under the RRMIIP.  It states, in pertinent part, that during the period in which eligible members of the Reserve components who were members prior to the establishment of the RRMIIP who were called to active duty for a period of covered service prior to having an opportunity to enroll or decline to be insured under the RRMIIP, will have the option to elect coverage not to exceed the $1,000.00 basic amount.

CONCLUSIONS:

1.  The issue in this case is whether or not the applicant was properly briefed on the RRMIIP and was it accomplished within the prescribed timeframe.  Notwithstanding the ARPERSCOM opinion, the Board does not find that a unit newsletter item meets the test for proper notification.  Given there was no formal briefing or notification procedure used by the applicant’s unit during the initial enrollment period and no indication that the applicant ever declined enrollment in the program, the Board finds that the applicant was not properly briefed or provided an opportunity for enrollment in the RRMIIP during the initial enrollment period.  

2.  Therefore, the Board accepts the applicant’s contention that he was not briefed on the program and was unjustly denied a benefit that he otherwise would have been able to receive had he been properly and timely briefed.  Accordingly, it would be in the interest of justice to enroll the applicant in the RRMIIP effective 1 December 1996 (the first day of the month following the publication of the brigade newsletter, when a proper briefing should have been conducted and which was prior to the date he was ordered to active duty and became ineligible through no fault of his own.  

3.  As a result, he is entitled to receive RRMIIP benefits at the rate of $5,000 per month for the period beginning on 6 December 1997, minus the first 30 days, until the date he was released from active duty.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.
RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was enrolled in the RRMIIP effective 1 December 1996 under the $5,000 option.

2.  That the individual concerned be afforded the opportunity to submit a      DFAS-CL Form 1241/3 (RRMIIP Claim for Mobilization Insurance Benefits) and supporting documents for retroactive payment of RRMIIP benefits, at the $5,000 rate, for the period 6 December 1997 to 3 August 1998, minus any premiums he would have paid had he been properly enrolled on 1 December 1996, and minus the first 30 days.  

BOARD VOTE:  

__js___   ___mmd__   ___gdp__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____George D. Paxson_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999021257	
SUFFIX		
RECON		
DATE BOARDED	2000/03/01	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A 	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  13	101.0000	
2.		
3.		
4.		
5.		
6.