MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 April 2002
         DOCKET NUMBER: AR2002068547

         I certify that hereinafter is recorded the record of consideration 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:

Ms. Karol A. Kennedy		Chairperson
Mr. Mark D. Manning		Member
Mr. Thomas Lanyi		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his mobilization orders be amended to reflect an authorization/entitlement to payment of an additional 96 days of Ready Reserve Mobilization Insurance Income Program (RRMIIP) benefits.

APPLICANT STATES: In effect, that in his previous request to the Board where he requested that his indebtedness for overpayment of RRMIIP benefits be cancelled/remitted, the Board granted his request and directed that his orders be amended to show that he remained on active duty involuntarily. As a result of that decision, he is entitled to receive the maximum benefits allowed under the law, which would entitle him to an additional 96 days of RRMIIP benefits. However, officials at the Defense Finance and Accounting Service (DFAS) have informed him that he is not entitled to additional funds. He also states that based on the Board’s previous decision in his case, the Board cannot deny him these additional benefits.

EVIDENCE OF RECORD: The applicant's military records show:

While serving in the pay grade of E-5 in the United States Army Reserve (USAR), the applicant 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.

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, Georgia on 22 November 1997, for further medical care.

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.

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.

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.

The applicant applied to this Board requesting that his indebtedness be remitted/cancelled and in the processing of that 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 Army Reserve Personnel Command (ARPERSCOM) via a message on 30 September 1998.

The ARPERSCOM RRMIIP Manager provided an advisory opinion which 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.

The Board determined that while the applicable laws and directives governing the RRMIIP do not provide for RRMIIP benefits when members elect to voluntarily remain on active duty to receive medical care, the applicant had not been properly briefed as to the consequences of remaining on active duty to receive medical care, that being the loss of his RRMIIP benefits. The Board also determined that it was unjust to impose such a financial hardship on the applicant and elected to take steps to deem his service during the period he incurred the indebtedness as involuntary for the purpose of satisfying the debt against the applicant.

The applicant is currently serving on active duty in the Active Guard/Reserve Program in the pay grade of E-6.

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.

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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. In the applicant’s previous case to the Board, he requested that he be relieved of the financial burden imposed on him by being overpaid RRMIIP benefits that he was not entitled because he had not been properly briefed regarding his entitlements.

3. The Board recognized the hardship that had been imposed upon the applicant by the failure to properly brief the applicant and elected to deem his service as involuntary for the purpose of canceling/remitting the debt against him. While the Board recognized that he was not entitled to those benefits under the law, the Board felt that it was in the interest of justice to allow him to keep those funds in order to alleviate a hardship on him.

4. While the language used in the previous Board decision in this case (AR2000044731) may have led the applicant to believe that it was the Board’s intent to deem all of his service involuntary, such was not the case. The intent of the Board was to deem only the period of service in which he incurred the debt to be involuntary. The officials at the DFAS recognized this fact when they denied him additional payments and the Board now provides an official clarification of that issue in order to eliminate any further confusion of the matter.

5. The applicant’s contention that in view of the Board’s previous determination in his case, the Board has no choice but to grant him additional benefits is without merit. The Board’s decision in his previous case was clearly made for the purpose of relieving him of the burden of a debt that was imposed against him when he received funds to which he was not entitled to receive under the law. The Board’s intent was not then, nor is it now, to entitle him to additional funds that he should not have received. To do so would provide him a benefit that he not only is not entitled to, but that others in similar circumstances were not afforded.

6. The Board also notes that officials at the DFAS also recognized that the intent of the Board was to cancel/remit the debt against the applicant and properly denied him any additional benefits under the RRMIIP. Inasmuch as the DFAS did not require that his orders be amended in order to comply with the Board’s directive, the Board finds no basis to amend his orders at this time.

7. While it appears that the applicant did not understand that the Board, in its previous decision, attempted to ensure that justice was served, the fact remains that under the law, his actual entitlements under the RRMIIP should have terminated on 25 May 1998, and only through the actions of this Board was he allowed to keep the funds he received after that date. Accordingly, the Board finds no basis to grant him any additional funds.

8. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___mdm _ __kak___ ___tl____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002068547
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/04/23
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 13	101.0000/RRMIIP
2.
3.
4.
5.
6.