PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            27 August 2002
	DOCKET NUMBER:   AR2002072510

	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	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas Lanyi		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, 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 12 February 1997 for a period of 270 days in support of Operation Joint Guard.  He states that during the time that he was mobilized he was injured, which resulted in his having to undergo an operation.  He states that after the operation he was in rehabilitation, which prolonged his tour on active duty until he was released from his doctor’s care.  He goes on to state that he received his RRMIIP entitlements ($5,000 per month) until he was released from active duty on 19 April 1998 because he had been informed that he was eligible to continue receiving RRMIIP benefits.  He states that the Defense Finance and Accounting Service (DFAS) notified him that he has been overpaid and they are now collecting the debt that was incurred as a result of his being misinformed.

4.  The applicant’s military records show that while serving in the pay grade of   E-5 in the United States Army Reserve (USAR), the applicant enrolled in the RRMIIP effective 1 October 1996 at the $5,000.00 rate.

5.  On 8 January 1997, he was ordered to active duty in support of Operation Joint Endeavor/Guard effective 12 February 1997, for a period of 109 days.  Orders were published on 8 April 1997, amending the 8 January 1997, orders to change his number of days on active duty to 270 days.

6.  On 19 September 1997, while he was in Kaiserslautern, Germany the applicant was working under a vehicle in the motor pool when his right hand slipped hitting against the vehicle.  On 19 November 1997, he underwent surgery, which involved repairing a ligament in his right wrist.  He was placed in a cast for 12 weeks and he required rehabilitation for 2 months.

7.  On 19 April 1998, he was honorably released from active duty and was transferred to Headquarters, Headquarters Company, 7th Army Command.  He had served 1 year, 2 months and 8 days of total active service.

8.  The DFAS sent the applicant a notice of indebtedness on 21 June 1999 informing him that Title 10, United States Code 12304 limits involuntary service to a maximum of 270 days for any presidential call up and that RRMIIP benefits are only payable for involuntary service.  The DFAS informed him that his service modified his benefit termination date and as a result he had been overpaid.  He was informed that he would be contacted at a later date with additional details and to make arrangements for repayment.

9.  In the processing of this case a staff member of the Board contacted officials at the DFAS to ascertain the amount of the applicant’s indebtedness.  Officials at the DFAS indicated that the amount of the debt was $20,833.34 and that they have recouped $1,336.33 via garnishment of his pay.  The staff member was also able to obtain an RRMIIP Debt Worksheet, which reflects that the applicant did not receive his first RRMIIP payment until 1 July 1997 in the amount of $5,000.00.  The worksheet shows that his demobilization date was retroactively changed from 19 April 1998 to 8 November 1997 per an Army Reserve Personnel Command (ARPERSCM) fax dated 15 October 1998, to comply with an Office of the Secretary of Defense’s Directive that no one can be called to active duty involuntarily longer than 270 days, pursuant to a Presidential Selected Reserve Call-up.  Based on the RRMIIP Debt Worksheet the total benefits paid to the applicant was $60,000.00 ($5,000.00 a month for 12 months) and the payments were made between 1 July 1997 and 15 July 1998.

10.  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.

11.  On 14 October 1997, the RRMIIP statute authorizing reservists to receive RRMIIP benefit payments for a maximum of 12 months was addressed by the Associate Deputy General Counsel (Compensation Matters), Office Deputy General Counsel (Fiscal), DOD.  He opined of a service member’s eligibility for RRMIIP benefits while in a medical hold status.  He opined that an insured member performing covered service under an order to active duty for 270 days, who is placed in a medical hold status would remain entitled to payment beyond the 270 days if the original orders were amended to extend the period of service beyond 270 days so that the member could complete a course of treatment.

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.  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.  This action, in itself, is indicative that the applicant was not properly advised at the time.

4.  It is inequitable for the military to give the applicant the impression that he was entitled to RRMIIP benefits, while simultaneously and without his knowledge, terminating his RRMIIP eligibility while continuing to pay him.  A demand for recoupment under these circumstances is unfair; especially since the applicant was seriously injured during a deployment and was dependent solely on military health care.  This was an involuntary extension on active duty.

5.  Pursuant to the guidance by the Office of General Counsel, Secretary of Defense, it is appropriate to amend the applicant’s orders and records to reflect that his entire period on active duty was pursuant to the Presidential call-up, involuntary, and covered service in support of an operational mission.

6.  Accordingly, the Board finds that the $20,833.34 debt was and is invalid from its inception as a matter of law, equitable, and justice. 

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;

b.  by invalidating the debt and all administrative changes related thereto from the date of inception;

c.  by returning to the applicant all funds recouped or collected from him; and

d.  by notifying all appropriate credit agencies and financial institutions that the debt was erroneously incurred and that the debt has never been and is not valid.

BOARD VOTE:  

__ao____  __inw ___  __tl  ____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Irene N. Wheelwright___
		        CHAIRPERSON

INDEX

CASE ID	AR2002072510	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/27	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  293	128.1000	
2.  13	101.0000	
3.		
4.		
5.		
6.