PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            1 March 2001
	DOCKET NUMBER:   AR2000044731

	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 H. Kern		Chairperson	
	Mr. Curtis L. Greenway		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 the remission/cancellation of his 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 he was mobilized on 7 September 1997 for a period of 270 days in support of Operation Joint Endeavor with a demobilization date of 6 June 1998.  During his tour he was injured in a parachute accident and was evacuated to a Mobile Army Surgical Hospital (MASH) in Tusla, Bosnia, then to Landstuhl, Germany for emergency surgery, and then to Fort Benning, Georgia for treatment, therapy, and recovery.  He goes on to state that he received his RRMIIP entitlements ($5,000 per month) for the entire (maximum) 270 days allowed and while in medical hold, his orders were amended without his knowledge and changed to reflect a demobilization date of 25 May 1998.  He further states that he was unaware that the change had been made until the Defense Finance and Accounting Service (DFAS) notified him that he owed $5,923.44 in principal and interest that had been overpaid, due to the change in his orders.

4.  The applicant’s military records show that while serving in the pay grade of   E-5 in the United States Army Reserve (USAR), he was ordered to active duty on 8 September 1997 for a period of 270 days in support of Contingency Operation Joint Guard and was deployed to Bosnia.

5.  On 12 November 1997, he fractured his right femur during an airborne jump at Sarajevo, Bosnia.  He was medically evacuated to a MASH unit in Bosnia, then further evacuated to Germany and then to a hospital at Fort Benning on 22 November 1997 for further medical care.

6.  On 20 May 1998, the hospital Patient Administration Division notified the Fort Benning Adjutant General’s office that the applicant would require follow-up medical care which would require that he remain on active duty for treatment.

7.  On 28 February 1999, he was honorably released from active duty and was transferred to the USAR Control Group (Individual Ready Reserve).  He had served 1 year, 5 months and 23 days of total active service. 

8.  The DFAS sent the applicant a notice of indebtedness through his commander on 1 November 1999 informing him that he was indebted to the government in the amount of $5,923.44 and that collection action was required.  The notice provided no indication as to the basis for the indebtedness. 

9.  In the processing of this case a staff member of the Board contacted officials at the DFAS to ascertain the basis for the applicant’s indebtedness.  Officials at the DFAS indicated, in effect, that the debt was incurred as a result of the retroactive change to the applicant’s demobilization date to 25 May 1998 that was made by the ARPERSCOM via a message on 30 September 1998.  

10. In the processing of this case the ARPERSCOM RRMIIP Manager opined, in effect, that while it is apparent that he 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 his consent to remain on active duty would have on his RRMIIP benefits. Additionally, the system used to report such changes in status was not especially accurate or responsive and given the likelihood that he was under the impression that he was authorized the benefits, he should not be penalized.  The opinion was provided to the applicant for comment and he concurred.

11.  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.

12.  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, his entitlement to RRMIIP benefits would be terminated.  In fact, his benefits continued to be paid and it appears that his orders were amended retroactively, without the applicant’s knowledge, and resulted in his incurring the debt in question.  This action, in itself, is indicative that the applicant was not properly advised at the time. 

4.  The evidence shows that he received the RRMIIP benefits for the maximum allowable time and 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.  This appears especially true given that he was injured early on in his deployment and received RRMIIP benefits while he was undergoing treatment for the majority of his period of eligibility.

5.  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.

6.  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, as an exception to policy.

7.  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, as an exception to policy:

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

b.)  by remitting/canceling all RRMIIP debts incurred by the individual concerned, that any funds collected to date be returned to him and that the appropriate credit agencies be notified that the debt is no longer valid. 

BOARD VOTE:  

__jhk ___  __clg____  __rtd____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John H. Kern ______
		        CHAIRPERSON

INDEX

CASE ID	AR2000044731	
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.  293	128.1000/remit debt	
2.  13	101.0000/RRMIIP	
3.		
4.		
5.		
6.