PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            8 March 2001
	DOCKET NUMBER:   AR2000048102

	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. Roger W. Able		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. William D. Powers		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, that his active service during the period of 29 July 1997 to 20 May 1998 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 originally mobilized involuntarily in support of Operation Joint Endeavor on 21 October 1996 for a period not to exceed 270 days.  However, his orders were subsequently amended to allow him to stay on active duty pending disability separation for an injury incurred while on active duty.  He further states that he applied for and was paid his benefits under the RRMIIP; however, approximately 2 months after he was discharged (20 May 1998), officials at the National Guard Bureau (NGB) notified officials at the Defense Finance and Accounting Service (DFAS) on 10 July 1998 that his demobilization date had been changed from 20 May 1998 to 29 July 1997 in order to comply with the Office of the Secretary of Defense (OSD) directive that no one could be mobilized for more than 270 days.  He also states that he never received such orders amending his service to voluntary service after 29 July 1997 and was always under the impression that his service was involuntary.  As a result of the subsequent change made by the NGB, the DFAS audited his records and has determined that he was overpaid $20,333.34, plus interest.  He continues by stating that he never received any counseling on this matter and that it is unjust for him to have his credit marred by this debt and to have such a burden placed on him after such a long period after he received the money from the RRMIIP.  

4.  The applicant’s military records show that while serving in the Texas Army National Guard (TXARNG) in the pay grade of E-4, he was involuntarily ordered to active duty on 21 October 1996 for a period not to exceed 270 days in support of Operation Joint Endeavor.  He was promoted to the pay grade of E-5 on 2 November 1996.

5.  On 2 July 1997 he was attached for an indefinite period to the Patient Holding Detachment at Fort Sill, Oklahoma for medical treatment.  On 15 August 1997 he was further attached to the Medical Holding Company at Brooke Army Medical Center (BAMC), Fort Sam Houston, Texas for further medical treatment. 

6.  The applicant underwent physical disability evaluations and on 20 May 1998 was honorably discharged under the provisions of Army Regulation 635-40, by reason of physical disability with severance pay (20%).  He had served 1 year and 7 months of active service during the period of mobilization and 8 years, 6 months and 24 days of total active service.  He was paid $35,598.00 in severance pay.

7.  The applicant was also paid $60,000.00 in RRMIIP benefits based on his demobilization date of 20 May 1998 (also his discharge date) and on 10 July 1998 officials at the NGB dispatched a message to the DFAS informing them that the applicant’s demobilization date had been changed from 20 May 1998 to 29 July 1997, in order to comply with OSD directives limiting mobilization to 270 days.  Accordingly, the DFAS audited his records and determined that based on the change in the mobilization date, the applicant had been overpaid $20,333.34 in RRMIIP benefits.  The applicant’s account was reported for collection and credit bureaus were notified of the debt.  The DFAS subsequently advised the applicant, through his congressional representative to apply to the Board if he felt the debt unjust.

8.  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.

9.  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.

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 was not until well after his discharge that his demobilization date was changed and it was determined that his benefits should have been terminated at the point that he was extended for the purpose of receiving medical care.

4.  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 discharge.

5.  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.

6.  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.

7.  In similar cases, the Board has opined that as a matter of law the applicant was legally paid RRMIIP benefits that were consistent with Congressional intent, that the orders (demobilization date) should be changed to reflect that he was involuntarily extended on active duty pursuant to Title 10, United States Code, Section 12304, and that any debt incurred as a result of the error should be cancelled/remitted.  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.

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 his mobilization orders to reflect that he was 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 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:  

___wdp__  ___bjl___  ___rwa__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Roger W. Able______
		        CHAIRPERSON

INDEX

CASE ID	AR2000048102	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/03/08	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  13	101.0000/RRMIIP	
2.  293	128.1000/REMI DEBT	
3.		
4.		
5.		
6.