PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            3 October 2000
	DOCKET NUMBER:   AR2000044192

	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. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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 that his service beginning on 13 November 1997 be deemed “involuntary” and that his debt to the government, which resulted from an overpayment of Ready Reserve Mobilization Income Insurance Program (RRMIIP) benefits be remitted/cancelled.

3.  The applicant states, in effect, that he was mobilized and deployed in support of Operation Joint Guard and while serving on active duty was hit as a passenger in a military vehicle when it was struck by a jack-knifed tractor and his vehicle rolled numerous times down a mountainside.  He goes on to state that he sustained serious injuries, which included a posterior dislocation of the left hip, and required medical treatment and rehabilitation.  As a result, he was extended on active duty to receive medical care and continued to receive his RRMIIP benefits.  However, he was subsequently notified by the Defense Finance and Accounting Service (DFAS) that because his extension on active duty to receive medical care was voluntary, he was not entitled to receive RRMIIP benefits for that period and has to repay the monies.  He goes on to state that not only has he paid the taxes on the monies he received, he was unable to return to his civilian job and the monies have been spent.  He continues by stating that the debt imposed against him has created a financial hardship on his family of four at a time when his mobility has been limited, arthritis has set in, and he has been informed that he will eventually have to undergo hip replacement surgery as a result of his injuries.  He continues by stating that he does not agree that his extension on active duty is voluntary and not deemed covered service because he did not volunteer to be ordered to active duty, to leave his family, or to suffer injuries while in support of an operation.  He also states that he has previously answered his nation’s call and was deployed during Operation Just Cause and Operation Desert Shield/Storm and he requests that the Board consider the financial hardship and burden that will be placed on his family if he is required to repay a debt for funds he believes he is entitled to receive.

4.  The applicant’s military records show that on 16 February 1997, while serving in the rank of Captain in the United States Army Reserve (USAR), he was ordered to active duty in support of Operation Joint Guard for a period not to exceed 270 days.  He was deployed to Germany on 22 February 1997 and became eligible for RRMIIP benefits on 18 March 1997.  He was subsequently reassigned to Sarajevo on 20 March 1997. 

5.  On 2 August 1997, he sustained an injury while serving on active duty and was treated for a posterior dislocation of the left hip.  He was initially seen at the hospital in Landstuhl, Germany and then at Walter Reed Army Medical Center, in Washington, D.C.  He was then referred to Keller Army Community Hospital, West Point, New York for further evaluation and treatment.  On 21 October 1997, the Chief of Orthopaedic Surgery recommended that he be retained on active duty for approximately 90 days in order to complete the rehabilitation of his hip injury or to be processed for disability. 
.
6.  On 20 October 1997, an endorsement was published which changed the authority (effective 13 November 1997) that ordered him to active duty based on his voluntary request to remain on active duty to resolve medical problems.  The endorsement extended him indefinitely until upon completion of action to resolve his medical problems.

7.  On 30 March 1998 he was released from active duty (REFRAD) and was transferred back to his USAR unit in New York.  He had served 1 year, 1 month, and 15 days of total active service during that period of his mobilization.  He was subsequently promoted to the rank of Major on 4 May 1998. 

8.  The applicant submitted a request for waiver of the debt ($20,833.33) to the DFAS and was informed by the DFAS that RRMIIP benefits could not be waived because they were not considered pay and allowances.  As a result, the applicant requested that the Department of Defense (DOD) Defense Legal Service Agency Office of Hearings and Appeals (DOHA) review the DFAS determination.  Accordingly, the DFAS forwarded his claim to that agency and the DOHA determined, in effect, that because RRMIIP benefits were not pay and allowances, it had no authority to consider his claim.  The DOHA advised the applicant to apply to the Board.

9.  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.

10.  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 RRMIIP statute.

11.  In the processing of the case the legal staff of the Board prepared a legal opinion (Copy Enclosed) which opined, in effect, that as a matter of law, the applicant was legally paid RRMIIP benefits that were consistent with Congressional intent, that the applicant’s orders dated 29 October 1997 with an effective date of 13 November 1997 should be corrected to reflect that he was extended on active duty pursuant to Title 10, United States Code, Section 12304, that his records be corrected to reflect that he has no debt to the government in regards to the matter before this Board, that any funds collected in regards to this debt be returned to the applicant, and that all agencies concerned be notified that the demand by the government regarding this debt was erroneous and that his credit history be cleared of any references to the debt. 

CONCLUSIONS:

1.  The Board adopts and incorporates the legal memorandum furnished by the legal staff of the Board.

2.  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. 

3.  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.

4.  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, his entitlement to RRMIIP benefits would be terminated.  In fact, his benefits continued to be paid and it was not until well after his REFRAD that it was determined that his benefits should have been terminated at the point that he was extended for the purpose of receiving medical care.

5  It is logical to presume that he budgeted his finances based on the information he was given (or not given) and used the funds for the purposes in which they were intended (which included paying the due taxes), that being the care of his family and the loss of income that resulted from his mobilization and his inability to return to work immediately after his REFRAD.

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

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

8.  Accordingly, the Board finds that the applicant was legally paid RRMIIP benefits, that he has no debt to the government, and that all debts, interest, and charges therefrom should be voided.

9.  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 his 29 October 1997 orders (Corrected Copy), effective 13 November 1997, to reflect that he was 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 him, 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:  

___rtd___  __js ____  ___rjw  __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone _____
		        CHAIRPERSON

INDEX

CASE ID	AR2000044192	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/03	
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.