PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 December 2001
         DOCKET NUMBER: AR2001058025


         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. Samuel A. Crumpler		Chairperson
Mr. Mark D. Manning		Member
Ms. Regan K. Smith		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.

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2. The applicant requests the remission/cancellation of his $5,700.00 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 at the time he enrolled in the RRMIIP he was given very little information on how the program worked except for how much it cost. He enrolled under the $3,000 option and was mobilized several months later. He goes on to state that he was not informed, at the time he broke his leg and had to be medically evacuated from Bosnia to Madigan Army Medical Center (MAMC), that remaining on active duty would terminate his RRMIIP benefits. He further states that he continued to receive his RRMIIP benefits and it was not until a year later that he received a notice from the Defense Finance and Accounting Service (DFAS) notifying him that he had been overpaid RRMIIP benefits because his status had been changed from involuntary to voluntary, in order to receive medical treatment. He also states that had he been notified earlier, he could have returned the money without any problems; however, the payment of those funds is now causing him a financial burden.

4. The applicant’s military records show that on 1 October 1996, while serving in the pay grade of E-5 in a United States Army Reserve unit in Bothell, Washington, he enrolled in the RRMIIP for coverage in the amount of $3,000 per month.

5. He was ordered to active duty on 23 February 1997 in support of Operation Joint Endeavor/Guard. He deployed to Germany, Hungary and Bosnia. Although not explained in the available records, his records show that on 27 August 1997, orders were published by the Landstuhl Regional Medical Center in Germany that relieved him from attachment to that unit and further attached him to MAMC, effective 30 August 1997.

6. On 17 November 1997, an endorsement to the applicant’s original orders were published by the Infantry Center at Fort Benning, Georgia, which changed the authority that ordered him to active duty from Title 10, United States Code, Section 12304 to Section 12301 effective 17 November 1997. The endorsement indicated that the change was based on the applicant’s voluntary request to remain on active duty to resolve medical problems. The applicant was physically located in Washington State at the time the orders were changed by Fort Benning.

7. On 13 January 1998, the applicant was honorably released from active duty (REFRAD) by Fort Benning, due to completion of required service. He had served 10 months and 21 days of active service during the deployment and was still in Washington State at the time he was REFRAD.

8. On 18 October 1999, the DFAS in Denver, Colorado, notified the applicant that he had been overpaid RRMIIP benefits in the amount of $5,700 based on a facsimile message from the Army Reserve Personnel Command (ARPERSCOM) on 11 April 1998, which changed the applicant’s demobilization date to 16 November 1997.

9. The applicant contacted officials at the DFAS on 15 November 2000 in an attempt to have the debt forgiven. He was advised at that time that he could apply for a waiver of the debt and was provided an application in which to do so.

10. The applicant completed the request for a waiver of the debt and returned it to the DFAS. However, on 27 April 2001, his request was returned without action because it had been determined that his debt was not a debt involving pay and allowances and could not be acted on by the DFAS.

11. In the processing of this case, a staff advisory opinion was provided by the RRMIIP manager at the ARPERSCOM which opined, in effect, that the applicant had sufficient time between the time of his enrollment and the time he was mobilized to obtain the specifics of the RRMIIP. The RRMIIP manager recommended that his request be denied. The opinion was provided to the applicant for comment and to date no response to that opinion has been received by the Board.

12. 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.

13. 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 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.

4. The evidence shows that he contacted officials at the DFAS immediately after he was notified of the debt (over 1 year after his REFRAD) and was informed that he still owed the RRMIIP debt and that he could apply for a waiver (which also turned out to be incorrect information). It was then that he was informed that at the time he received the benefits, it was understood that personnel in his category were entitled to the RRMIIP benefits and that a subsequent determination deemed otherwise. The applicant applied for a waiver and was then told that he could not qualify for a waiver as he had originally been informed.

5. 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 financial debt.
6. Therefore, the Board finds that it is inherently unjust to impose such a hardship on a soldier simply because the Department failed to properly brief soldiers in an accurate or timely manner. Accordingly, the Board finds that he continued to serve involuntarily until he was REFRAD on 13 January 1998, that he was entitled to receive RRMIIP benefits and that the debt imposed against him is invalid.

7. The Board finds that the applicant’s extension of service on active duty was involuntary and in support of operational mission; and all RRMIIP benefits were lawfully paid to him pursuant to the actual and implied contract between the applicant and the RRMIIP. Consequently, the applicant has no debt as a matter of law; and the debt of principal alleged by the DFAS, and all interest and any other charges arising therefrom, are void from their inception. The RRMIIP refund charges levied against the applicant were erroneous.

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 by:

         a) showing that the individual concerned was involuntarily extended on active duty in support of an operational mission, that all RRMIIP benefits were lawfully paid to him pursuant to the actual and implied contract between the individual concerned and the RRMIIP, that as a matter of law, the individual concerned has no debt or principal alleged by the DFAS, and all interest and charges arising therefrom are void from their inception, and that the RRMIIP refund charges levied against the individual concerned are erroneous.

b) by publishing orders to reflect that the individual concerned was involuntarily ordered to active duty and subsequently involuntarily extended on active duty pursuant to Title 10, United States Code, Section 12304; 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:

__mdm__ __rks ___ __sac___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Samuel A. Crumpler____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001058025
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/12/13
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/remit debt
3.
4.
5.
6.