2.  The applicant requests reimbursement for adoption expenses as an exception to policy under the Department of Defense (DOD) Adoption Reimbursement Policy.

3.  The applicant states, in effect, that he was denied reimbursement because his adoption procedures had been finalized prior to 5 December 1991 and there were no retroactive provisions provided for in the implementing legislation.  Legislation was subsequently passed that qualified him for reimbursement; however, it contained a filing deadline of 23 October 1993, and he did not find out about the change until it was too late. 

4.  On 11 August 1992, while serving as an Active Guard Reserve (AGR) member of the Texas Army National Guard in the pay grade of E-5, the applicant submitted an application to the Defense Finance and Accounting Service (DFAS) for reimbursement of expenses in the amount of $2,785.00 associated with his and his wife’s adoption of a 5-year old boy.  The adoption was finalized on 18 July 1991.

5.  On 10 September 1992 the DFAS informed the applicant by memorandum, that he was not eligible for reimbursement of adoption expenses because the law did not contain a retroactive provision for adoptions finalized prior to 5 December 1991.  The DFAS also informed the applicant that legislation was being introduced in Congress to incorporate a retroactive provision and if it was passed, he may be eligible to apply when the implementing instructions were released.

6.  The applicant resubmitted his application to the DFAS in February 1995.  In response to his request, the DFAS (Indianapolis Center) informed him that he should exhaust his administrative remedies by applying to the DFAS - Cleveland Center.  The DFAS assured him that the DFAS - Cleveland Center would deny his request and that he should then apply to the Board for relief.  The DFAS - Indianapolis Center provided the applicant with a letter to submit with his application to the Board.  In its letter the DFAS explained the provisions of the DOD Adoption Reimbursement Program that had a test period that ended on 1 October 1990. The program was not permanently implemented until 5 December 1991.  Initially, no provisions were made to cover the period between the end of the test period (1 October 1990) and the beginning of the permanent program (5 December 1991).  This oversight was subsequently corrected by the passage of legislation on 23 October 1992. The DFAS stated that the applicant’s adoption was finalized during this period.  However, the expiration date for filing for reimbursement covered by the remedial legislation was 23 October 1993.  The DFAS opined that there were only 2 months and 25 days between the date the DOD instructions were published (29 July 1993) and the filing deadline.  The DFAS further opined that little or no instructions were published advising service members of the change to the law. Furthermore, it would be unjust to deny payment based on the expiration date of the law because most service members do not have access to DOD instructions and many Adjutant General sites cannot provide copies of instructions and claim forms upon request.    

7.  In an identical case previously adjudicated by this Board, the DFAS opined that the National Guard Bureau was not included in the distribution of the DOD instructions published on 29 July 1993.

8.  The applicant again submitted his application for reimbursement to the DFAS (Cleveland Center) in March 1995. The DFAS informed the applicant on 5 April 1995 that the filing deadline for adoptions that were finalized during the period 1 October 1990 through 4 December 1991, as amended by Public Law 102-484, section 652, dated 23 October 1992, was 23 October 1993.  The legislation made no provisions for a waiver of the filing deadline; therefore, his application was returned without action.

9.  The applicant retired for length of service in the pay grade of E-5 on 1 April 1995.

10.  DOD Instruction Number 1341.9 issued 29 July 1993 implemented the DOD Adoption Reimbursement Policy.  It provides that an active duty member whose adoption of a child under 18 years or age is finalized on or after 5 December 1991 or during the period 1 October 1990 and 4 December 1991, and who incurs expenses for the adoption of a child, may be reimbursed up to $2,000.00 per child (with a maximum reimbursement to one service member of $5,000.00 in any calendar year) for qualifying expenses.  It also provides that only active duty members of the military services serving on continuous active duty or full time National Guard duty under orders specifying a period of at least 180 days may apply for reimbursement.  The legislation required that applications submitted for reimbursement of adoptions finalized during the latter period had to be submitted no later than 23 October 1993. 

CONCLUSIONS:

1.  The applicant’s adoption was finalized on 18 July 1991. Although the applicant became eligible to apply for reimbursement after the remedial legislation was passed, he was unaware of his eligibility to apply and the filing deadline until after the filing deadline had passed. 

2.  At the time the implementing instructions were released, the applicant was serving as an AGR soldier in a National Guard unit in Corpus Christi, Texas, and the National Guard Bureau was not on the distribution for the DOD Instructions.

3.  Inasmuch as the applicant had originally applied for reimbursement and was denied and because the information regarding his renewed eligibility to apply for reimbursement was released with little or no time for him to apply, coupled with the fact that the information was not made available to his command, the applicant’s failure to apply prior to the established deadline was through no fault of his own and has resulted in an injustice to him.

4.  It is reasonable to presume, based on his original application, that the applicant would have resubmitted his application by the filing deadline had he been aware that he was eligible to do so. 

5.  It is also reasonable to presume that it was the intent of the law to afford those members affected by the remedial legislation sufficient time to submit their applications for reimbursement, as evidenced by a 1-year filing period.  However, due to delays by the DOD in announcing the instructions, the 1-year filing period was, in effect, reduced to 2 months and 25 days, and the instructions were not properly disseminated.

6.  In view of the foregoing, it would be appropriate to grant the applicant’s request as an exception to policy.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by authorizing the individual concerned appropriate reimbursement for allowable adoption expenses in an amount to be determined by the DFAS.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON