PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            6 March 2001
	DOCKET NUMBER:   AR2000043285

	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. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Harry B. Oberg		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 the remission/cancellation of her debt to the government which resulted from an overpayment of Ready Reserve Mobilization Income Insurance Program (RRMIIP) benefits.

3.  The applicant states, in effect, that she enrolled in the RRMIIP on 24 December 1996 and elected the $5,000 option.  She was ordered to active duty under the Presidential Selected Reserve Call-up (PSRC) and was mobilized to Germany.  She further states that she was assigned/transferred to several different locations in Germany and in the process injured her shoulder to the extent that it required surgery.  As a result her orders were amended to allow her to remain on active duty until her medical care was completed.  She continues by stating that she was released from active duty (REFRAD) on 12 February 1998 and she received a recap of her RRMIIP benefits from the Defense Finance and Accounting Service (DFAS) informing her what her total RRMIIP benefit entitlements were and her responsibility to pay the appropriate taxes for monies received.  However, in August 1999 she received a notice from a collection agency demanding repayment of $18,333.33.  She also states that she informed the collection agency that she had to contact the DFAS for clarification and after all attempts to do so failed, she initiated an inquiry through her congressional representative.  She was then informed that her orders had been amended retroactively to change the authority for her retention on active duty from involuntary to voluntary, which resulted in the recoupment action by the DFAS.  She also states that she cannot afford to pay back the $15,000 plus with interest penalties that the DFAS claims she owes. 

4.  The applicant’s military records show that on 26 January 1997, while serving in the pay grade of E-7 in the United States Army Reserve (USAR), she was called to active duty for a period of 1 day at Fort Benning, Georgia.  Orders were published on 27 January 1997 ordering her to active duty in support of Operation Joint Endeavor for a period not to exceed 270 days.  She was deployed to Germany on 31 January 1997 and submitted her claim for RRMIIP mobilization benefits on 27 February 1997. 

5.  On 16 September 1997 the Medical Department Activity (MEDDAC) in Heidelberg, Germany submitted a request for a 90-day extension on active duty for the applicant for the period 22 October 1997 to 22 January 1998.  The request indicated that the applicant suffered from right shoulder pain and that she would possibly undergo surgery by December 1997.  It also indicated that the applicant had been advised of the advantages of remaining on active duty for medical care and that she consented to do so.

6.  An amendment to her orders was published on 17 September 1997 extending her period of active duty from 270 days to 360 days or until completion of medical care.  Her orders were again amended on 22 October 1997 to change the fund cite authority from fiscal year (FY) 1997 to FY1998.  A third endorsement was prepared on 20 January 1998, which extended her on active duty until 1 March 1998 or completion of medical care and changed the authority that ordered her to active duty.  On the same day a fourth endorsement was prepared which directed her redeployment effective 2 February 1998. 

7.  The applicant was redeployed to Fort Benning and on 12 February 1998 was REFRAD and was transferred to the USAR Control Group (Individual Ready Reserve).  She had served 1 year and 17 days of active service during the period of deployment.

8.  On 10 July 1998 the DFAS sent the applicant a detailed summary of her RRMIIP account which indicated that her benefits earned to date were $57,666.67 and that all benefits had been paid.  It also informed the applicant of her responsibility to pay the taxes on the benefits received. 

9.  Although not explained in the available records, the applicant dispatched a letter to the DFAS on 18 August 1999 indicating that she did not believe that she owed the DFAS any monies for overpayment and requested an explanation as to why she allegedly owed the monies.

10.  The DFAS responded to the applicant’s letter on 17 December 1999 and indicated that her debt was correct.  A RRMIIP Debt Worksheet was attached which indicated that she was entitled to $39,333.34 in RRMIIP benefits but was paid $57,666.67.

11.  On 1 January 2000 the applicant initiated an inquiry through her congressional representative requesting assistance in determining why she owed the debt.  Her congressional representative initiated an inquiry to the DFAS and the DFAS responded on 28 March 2000 to the effect that RRMIIP payments are only authorized for involuntary service and that the applicant’s service from the time she was demobilized (270 day point), till separation, was considered to be voluntary by the Army Reserve Personnel Command (ARPERSCOM).  Accordingly, she was not entitled to the RRMIIP benefits she had been paid for that period.  The DFAS also informed the congressional representative that RRMIIP payments are insurance benefits and can not be remitted or cancelled as pay and allowances may be; therefore, her recourse was to apply to the Board.

12.  In the processing of this case the ARPERSCOM RRMIIP Manager opined, in effect, that while it is apparent that she was retained for medical care and that RRMIIP benefits are not authorized when individuals are retained for such reasons, in all likelihood the applicant was not properly briefed on the effect that her consent to remain on active duty would have on her RRMIIP benefits.  Additionally, the system used to report such changes in status was not especially accurate or responsive and given the likelihood that she was under the impression that she was authorized the benefits, she should not be penalized.

13.  Department of Defense Instruction (DODI) 1341.10 implemented the RRMIIP procedures.  It states, in pertinent part, that an insured member ordered involuntarily into covered service is entitled to payment of a benefit for each month after a 30-day period of covered service, except that no member may be paid a benefit for more than 12 months during any period of 18 consecutive months.  The active duty order must specify that the member’s service is involuntary.

14.  The Office of General Counsel, DOD, has opined that, under regulations implementing Chapter 1214, title 10, U.S. Code, only insured members involuntarily ordered to active duty under orders that otherwise meet the requirements of the “covered service” definition of 10 U.S.C, section 12521(2) may receive payments.  Consequently, members who voluntarily extend past 270 days to receive medical treatment would no longer be eligible to receive RRMIIP benefit payments for two reasons.  First, they would no longer be serving involuntarily and second, they would no longer be serving under orders that specify service in support of an operational mission as required by the definition outlined in 10 U.S.C.

CONCLUSIONS:

1.  The Board has noted that the RRMIIP was plagued with problems throughout the Department from the onset.  It appears that the primary difficulty experienced was the dissemination and understanding of the program to the soldiers as well as the lack of understanding of the specifics of the program by the personnel responsible for briefing and administering the program.  Consequently, the Board has seen many appeals that involved either a failure on the part of the Department to afford soldiers the opportunity to participate in the program or a failure to properly brief on the specifics/entitlements of the program. 

2.  The Board also notes that the purpose of the RRMIIP was to provide income insurance for most Reserve Component members involuntarily ordered to active duty in support of military operations for more than 30 days and the intent of the RRMIIP was to alleviate the financial hardships that a Reservist typically experiences during such deployments.

3.  While the Board understands the interpretations of the applicable laws and regulations regarding what constitutes voluntary and involuntary service, the Board also understands the importance of providing timely and accurate information to the soldiers who are affected by such a change when monetary concerns are involved.  In this particular case, the Board finds no evidence to show that the Department properly advised the applicant that by consenting to remain on active duty to receive medical treatment, her entitlement to RRMIIP benefits would be terminated.  In fact, her benefits continued to be paid and it was not until well after her REFRAD that it was determined that her benefits should have been terminated at the point that she was extended for the purpose of receiving medical care.

4.  The evidence shows that she remained on active duty in the theater of operations to which she was initially deployed while she was receiving medical care and there is nothing in the available records to suggest that she did not continue to support the operation while undergoing medical care.  Consequently, it appears that the applicant continued to serve in a “business as usual” fashion because she had no reason to believe otherwise.  It is also logical to presume that she budgeted her finances based on the information she was given (or not given) and used the funds for the purposes in which they were intended, that being the care of her family in the United States.

5.  The Board believes that had she been properly briefed at the time that she would lose her entitlement to RRMIIP benefits, she could have declined an extension on active duty or set the funds aside for repayment at a later date if she continued to receive them.  At the very least, she would have been able to make an informed decision regarding her financial situation before she incurred such a large debt.

6.  Therefore, the Board finds that the failure of the Department to properly and timely advise the applicant that her RRMIIP benefits would cease if she consented to be extended on active duty, has resulted in the imposition of an undue financial hardship on her that she otherwise would not have incurred had she been properly advised.

7.  Accordingly, the Board finds that it would be in the interest of justice, as an exception to policy, to cancel/remit all RRMIIP debts, that have been incurred as a result of overpayment.

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

RECOMMENDATION:  That all of the Department of the Army records related to this case be corrected:

a)  by amending her orders to reflect that she was involuntarily ordered to                  active duty and subsequently involuntarily extended on active duty   
     pursuant to Title 10, United States Code, Section 12304. 

b)	by remitting/canceling all RRMIIP debts incurred by the individual concerned and that any funds collected to date be returned to her, and;

 c)  by correcting any adverse reports to the credit history of the individual  concerned by showing to the agencies concerned that the demand was 
 erroneous and that the individual has no debt.

BOARD VOTE:  

___sk___  __ewl ___  ___hbo__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Stanley Kelley_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000043285	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/03/01	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/RRMIIP	
2.  293	128.1000/REMIT DEBT	
3.		
4.		
5.		
6.