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1997 Military Personnel Redacted Decisions

 

      These 58 redacted Board decisions involve claims related to uniformed service members' pay, allowances, travel, transportation, retired pay, and survivor benefits. The uniformed service member may be a member of a Service within DoD, like the Army, or one outside of DoD like the Public Health Service. This group of decisions also includes waiver applications which result from the erroneous overpayment of these pay, allowances or other benefits to, or on behalf of, a service member.

Other years: 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Travel; leave

12/12/1997

The proper application of the leave laws, 10 U.S.C. §§ 701 and 704, for members of the Armed Forces with regard to the accounting for leave is considered an administrative matter over which the military has broad discretion. This Office will generally not question a leave classification.


Pay; retired Pay; active duty

12/04/1997

A service member, who was in confinement following a court-martial sentence at the time his term of enlistment expired, was properly paid pay and allowances through the expiration of his term of enlistment. He has no right to additional pay after that date where the sentence was affirmed on appellate review.


General; waiver of indebtedness

11/26/1997

An Air Force reservist elected Survivor Benefit Plan coverage for his spouse in 1981, but premium deductions were not initiated for spouse coverage when he began receiving retired pay in April 1991, although deductions were made for coverage he had received for his children. In 1993, the member received a form which alerted him to the fact that deductions were not being made for his spouse. In 1995, the Board for Correction of Air Force Records corrected his records to indicate that he elected spouse coverage in 1991. Collection of the retroactive premiums was waived for the period from April 1991 until he was alerted in 1993. Waiver of collection of the premiums for subsequent months is not possible because the member was aware that he was being overpaid by the amount of the premiums.


General; waiver of Indebtedness - dual compensation

11/19/1997

Since an agency may not initiate salary offset to collect a debt more than 10 years after the government's right to collect the debt first accrued, initiation of an offset to collect an employee's debt based on overpayments which arose in 1985 and 1986 is barred.


General; waiver of indebtedness - final pay

11/06/1997

Upon separation in mid-September, a service member received appropriate separation pay. Subsequent payments of end-of-September and mid-October pay were erroneous. Service member should have questioned his entitlement to these payments and set aside the amounts for eventual return to the government. The service member is considered at fault for not questioning his entitlement. Waiver is denied.


Pay; retired

10/28/1997

An Air Force officer was selected by a Selective Early Retirement Board (SERB) for retirement effective January 1, 1994. Retirement after January 2, 1994, would have entitled him to retired pay with over 26 years of service instead of over 24 years. In December 1993, he obtained a Temporary Restraining Order (TRO) in United States District Court to delay his retirement and was allowed to remain on active duty until February 19, 1994. In February, the TRO was dissolved as improperly issued, and the Air Force reinstated the January 1 retirement date. Under 10 U.S.C. 638, once he was selected and the Secretary approved the SERB's action, his retirement was required as of January 1, 1994. Therefore, the active duty he performed in January and February cannot be counted toward retirement. For the period of his active duty in 1994, he is entitled to either the pay he received for that period or his retired pay, whichever is more beneficial to him. Subsequently, he is entitled to retired pay based on over 24 years of service.


General; waiver of indebtedness - notice of error

10/24/1997

A service member who had been placed on the Temporary Disability Retired List with a 50 percent disability received written orders transferring him to the Permanent Disability Retired List with a 40 percent disability. However, the service member continued to receive retired pay at the 50 percent rate. The service member states that he had expected a written explanation of how his retired pay was calculated, but that he did not receive it. He contends that he telephoned pay officials and was assured that he was to receive pay at the 50 percent rate, but there is nothing in the record to corroborate the member's version of the events; namely, that officials told him that he was still entitled to 50 percent. In the absence of clear proof to the contrary, the service member is at least partially at fault for not questioning his receipt of pay at the 50 percent rate after he received written orders indicating that he was retired at a 40 percent disability. The collection of erroneous payments of pay in such circumstances would not be against equity and good conscience and would be in the best interest of the United States.


General; waiver of indebtedness - final pay

10/01/1997

A member who separated from the service received final pay, then received active duty pay at the end of the month for days after she had already separated from the service. Waiver of such an overpayment is inappropriate since a person of her experience reasonably knew or should have known that she was receiving pay in excess of her entitlement. The member should have at least questioned payment of such active duty pay. The member did not acquire title to the money she received and is obligated to return it.


General; waiver of indebtedness - notice of error

09/16/1997

A member who received Basic Allowance for Quarters (BAQ) and Variable Housing Allowance (VHA) after his divorce remained unaware of the erroneous payments until an audit in January 1996 showed a discrepancy in his records. The member was informed in January of the possibility that he was receiving erroneous payments. Waiver of the debt of amounts paid after he became aware that the payments might be erroneous is denied because he did not acquire title to the money he received and is obligated to return it.


General; waiver of indebtedness - final pay

09/16/1997

1. In the absence of evidence to dispute a member's statement that he did not know of an overpayment in his final payment when he did not receive a leave and earnings statement for the period, we uphold the waiver granted in the Settlement Certificate. Opinions of the Defense Finance and Accounting Service with no supporting evidence are insufficient to overcome the determination in the Settlement. 2. The function of a Settlement Certificate and the adjudicators of our Office is one of fact finding, and the function of this Board is to review the reasonableness of the factual findings in the Settlement in light of the facts as documented in the record.


Travel; unreimbursable expenses Travel; reimbursement

09/16/1997

A member who traveled to a temporary duty assignment did not purchase airline tickets from a travel agency under government contract or other approved facility. Reimbursement is not proper because paragraph U3120-A of volume 1 of the Joint Federal Travel Regulations requires that a member purchase tickets from one of those facilities unless he can demonstrate that he had no alternative but to purchase tickets elsewhere. The record contains no such demonstration.


General; Barring Act General; burden of proof

08/26/1997

Irrespective of the Barring Act, now codified at 31 U.S.C. § 3702, a service member claiming additional pay and allowances which accrued during World War II has the burden of proving that he was not paid the pay and allowances claimed. The claim is disallowed where government records necessary to either justify or refute it have been destroyed or become unavailable due to lapse of time, and there is no other documentation available from any source to establish the liability of the United States.


Travel; reimbursement - authorized travel agency

08/26/1997

A member who traveled to a temporary duty assignment did not purchase airline tickets from a travel agency under government contract or other approved facility. Reimbursement is not proper because paragraph U3120-A of volume 1 of the Joint Federal Travel Regulations requires that a member purchase tickets from one of those facilities unless he can demonstrate that he had no alternative but to purchase tickets elsewhere. The record contains no such demonstration.


Travel; reimbursement - authorized travel agent

08/22/1997

A member who traveled to a temporary duty assignment did not purchase airline tickets from a travel agency under government contract or other approved facility. Reimbursement is not proper because paragraph U3120-A of volume 1 of the Joint Federal Travel Regulations requires that a member purchase tickets from one of those facilities unless he can demonstrate that he had no alternative but to purchase tickets elsewhere. The record contains no such demonstration.


Pay; retired Pay; reserve General: jurisdiction - correction board

08/22/1997

1. A retired service member seeking irregular retired pay generally has the burden of proving that he met all of the conditions necessary to establish his claim for retired pay, including the burden of proving that he was not a Reserve of an armed force before August 16, 1945, under 10 U.S.C. § 12731(c) (formerly 10 U.S.C. § 1331(c)) when that issue is in dispute. 2. An attempt by a correction board to avoid application of the statute of limitations by recital or affirmation of facts already in a record, or by stating conclusions of law but changing no facts, does not constitute an effective correction action. Instead there must be an actual change to facts in a member's record that gives rise to a monetary entitlement that was not present before.


Travel; air travel Travel: reimbursement

07/30/1997

A member who traveled to a temporary duty assignment did not purchase airline tickets from a travel agency under government contract or other approved facility. Reimbursement is not proper because paragraph U3120-A of volume 1 of the Joint Federal Travel Regulations requires that a member purchase tickets from one of those facilities unless he can demonstrate that he had no alternative but to purchase tickets elsewhere. The record contains no such demonstration.


Travel: air travel Travel: reimbursement

07/30/1997

A member who traveled to a temporary duty assignment did not purchase airline tickets from a travel agency under government contract or other approved facility. Reimbursement is not proper because paragraph U3120-A of volume 1 the Joint Federal Travel Regulations requires that a member purchase tickets from one of those facilities unless he can demonstrate that he had no alternative but to purchase his tickets elsewhere. The record contains no such demonstration.


Travel; temporary duty

07/22/1997

Upon graduation from the Air Force Academy, an Air Force officer departed the Academy to his first permanent duty assignment in Japan, with temporary duty to Mississippi en route. He traveled to his temporary duty station and completed his temporary duty. He was then ordered back to the Academy for temporary duty. Under these circumstances, 1 JFTR U7000-B does not appear to prohibit payment of per diem, since the member had departed the Academy and therefore was in a travel status performing active duty away from his permanent duty station.


General; waiver of indebtedness - notice of error

07/21/1997

Recoupment of a service member's debt for the erroneous overpayment of pay and allowances is not against equity and good conscience, and waiver of the debt is not proper under 10 U.S.C. 2774, when the service member suspected that a payment of pay and allowances was erroneous and contacted pay and disbursement officials to verify his entitlement to the payment, but there is nothing in the record to corroborate the member's attempt at verification, no statements from any pay and disbursing official in this regard and no proof of what he told them and what they told him.


General; waiver of indebtedness - notice of error

07/10/1997

A service member has no reasonable expectation of receiving pay and allowances once he is released from active duty on appellate leave pending discharge, especially when he received payment in cash for all remaining accrued leave and his service termination date (ETS) occurrs shortly thereafter. In the absence of clear proof to the contrary, the service member is at least partially at fault for not questioning his receipt of pay and allowances after both of those events have occurred, and the collection of erroneous payments of pay and allowances made after these events would not be against equity and good conscience and would be in the best interest of the United States.


Travel; lodging

07/10/1997

An Air Force reservist on Inactive Duty Training was authorized to stay in contract quarters. He was instructed to pay for the quarters with his credit card, and seek reimbursement. While paragraph U7150-C4 of volume 1 of the Joint Federal Travel Regulations indicates that a member may be reimbursed in that situation, it is Air Force policy that quarters be provided without cost to a reservist on IDT only if the cost of the quarters is billed directly to the reservist's unit. The member's claim is denied because Air Force Instruction 32-6005 prohibits reimbursement.


General; waiver of indebtedness - notice of error

07/08/1997

A service member who knows that he received an erroneous payment of pay and allowances is obliged to return that amount, or set aside an equivalent amount for refund to the government when the error is corrected.


General; waiver of indebtedness - erroneous advice

07/01/1997

Recoupment of a service member's debt for the erroneous overpayment of per diem is not against equity and good conscience, and waiver of the debt is not proper under 10 U.S.C. 2774, when the service member is provided government quarters for his use during his temporary duty but the service member continues to collect per diem. In such circumstances, the service member's application for waiver is not supported by his allegation that a named person lead him to believe that he was entitled to receive "travel compensation," when there is nothing in the record to corroborate the member's version of the events, there are no statements from any pay and disbursing official corroborating the member's statement and there is no proof of what he told them and what they told him.


General; waiver of indebtedness - notice of error

06/26/1997

An Air Force officer, who had an Aviation Continuation Agreement to serve through May 1997, but who decided in October 1995 not to voluntarily continue on active duty and to separate in February 1996, received an annual installment of aviation continuation pay (ACP) due in December 1995. While the member contends that he did not know until mid-January 1996 that he was not entitled to the whole amount of that payment, prior to that time he stated that he suspected that he might have to refund a portion of the payment prorated to the period after February 1996. While the service member alleges that he sought advice from installation pay officials concerning possible recoupment by the government, and that the figures he obtained from them indicated that the government would not recoup any part of his ACP, he did not document the information he provided and what he was told by these officials. In these circumstances, to the extent that Air Force policy recognizes that it is erroneous to pay a member for the portion of the annual ACP installment prorated to the period after scheduled separation, recoupment of that portion of ACP is not against equity and good conscience, and waiver of any overpayment under 10 U.S.C. 2774 is improper. ACP payments received by the service member prior to his decision not to continue his service, and prorated to the period after his separation, were not erroneous payments and are not subject to 10 U.S.C. 2774.


General; waiver of indebtedness - erroneous advice

06/26/1997

A member purchased airplane tickets for a permanent change of station move in reliance on information that he would be reimbursed. Reimbursement was not proper because the member did not purchase the tickets from a travel agency under government contract or other approved facility, but the member received two erroneous payments in partial reimbursement. The Service determined that the member was in debt in the amount of the partial reimbursement. The member may not receive further reimbursement, but collection of the erroneous payments he received may be waived.


General; waiver of indebtedness - final pay

06/26/1997

When a former service member erroneously continues to receive active duty pay and allowances after discharge, his request to waive the debt of repayment of these amounts is denied because he does not acquire title to the money he receives and is obliged to return it.


General; waiver of indebtedness - dual compensation

06/26/1997

A retired officer of the Navy who accepts civilian government employment may not reasonably rely on vague assurances concerning an exemption from the Dual Compensation Act, and is instead at fault in drawing military retired pay in an unreduced amount if he fails to notify his agency and his military finance office of his dual status, to obtain a definite determination of his entitlements. Where service member relied on a statement by a personnel technician at the civilian agency that the needs of the agency was the basis for waiver, he is considered partially at fault for not verifying his eligibility for such a waiver. The member completed the appropriate paperwork for the Navy, but never contacted the Navy finance office and never received a Notification of Personnel Action (Standard Form 50) confirming the technician's statement.


Travel; leave

06/26/1997

A member of the United States Air Force Reserve performing temporary active duty obtained lodging and was paid per diem for days she was in an active duty status. The member rented quarters under a short term lease, which cost the Government less than renting conventional lodgings at a daily rate. The member claims per diem for days on which she was on leave. A member is not entitled to per diem on any day classified as leave or proceed time under the Joint Federal Travel Regulations.


Allowances; dislocation

06/26/1997

Two service members who are married to each other are not entitled to two separate dislocation allowances when: both obtain permanent change of station orders which transfer them to the same new duty station; they move from one household at the old duty station and reestablish one household at the new duty station; they move substantially at same time; and one household mover moves the personal effects of both service members to the same destination.


General; waiver of indebtedness - notice of error

06/13/1997

Waiver of collection of an overpayment resulting from an agency's failure to reduce the salary of a rehired annuitant to reflect a cost of living increase is denied where the employee generally alleges that he had problems with his pay at various times since his appointment because of his status as a rehired annuitant and that he generally relied on the expertise of pay officials. The employee offered no rebuttal to the finding that he was advised in Notifications of Personnel Actions and through prior experience over a 3-year period that his salary was reduced each time that there was a cost-of-living increase, and he failed here to document the suspected error, obtain assurances from agency pay officials that it was not an error, and show reliance on their advice with regard to this error.


General; waiver of indebtedness - notice of error

06/09/1997

A member erroneously received longevity credit for pay purposes for four years he spent in medical school, and the error was reflected on his Leave and Earnings Statements. The resulting overpayments may not be waived under 10 U.S.C. 2774 because the member had a duty to verify the information on his Leave and Earnings Statements and to bring any errors promptly to the attention of the proper authorities.


General; waiver of indebtedness - final pay

06/06/1997

Waiver of an indebtedness arising from erroneous payment of pay and allowances is appropriate when collection would be against equity and good conscience and not in the best interest of the United States but may not be exercised if there is an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the service member or employee. An individual is at fault if he/she knows or should know that a payment was erroneous and failed to set aside the overpayment for its eventual return to the government.


General; waiver of indebtedness - unreimbursable expenses

06/06/1997

Waiver is not appropriate where a service member seeks relief from a debt arising from the government's payment of a portion of a carrier's charges attributed to weight of household goods in excess of the weight that the service member is entitled to ship on PCS. The member argued that the Service or the carrier failed to provide the weight of a portion of the internal packing material for the purpose of determining whether the weight of his household goods still exceeded the entitlement even with an allowance for internal packing material and alleged that the Service or the carrier committed error by disobeying his instructions not to pack certain items which he did not intend to ship.


General; waiver of indebtedness - advance

06/06/1997

1. A member received a proper payment of advance pay. Payments which are proper when made may not be considered for waiver under 10 U.S.C. 2774, which deals with erroneous payments. 2. A Correction Board directed that a valid payment which a member received be deemed erroneous. When a Correction Board does not change a fact in a member's record, but merely reaches a legal conclusion, the Board's action is not effective to change the character of the payment, so as to allow the payment to be considered for waiver.


General; waiver of indebtedness - SRB

06/04/1997

Generally, when a payment of Selective Reenlistment Bonus (SRB) is erroneous when paid, it may be considered for waiver. When a service member has served more than the pro-rata period for which he received the erroneous SRB, his debt may be waived. Any amount he has repaid may be returned to him at that time.


Travel; unreimbursable expenses

06/02/1997

A member incurred expenses en route to her home of selection for retirement due to delays in the pickup of her household goods. Her claim for reimbursement for those expenses is denied because there is no authority in statute or regulation which would allow reimbursement.


General; waiver of indebtedness - final pay

05/20/1997

Service member who received discharge pay and allowances, and appropriate documentation, at his out-processing briefing is considered partially at fault for not questioning an end-of-month payment received after discharge. Waiver is denied.


Allowances: Basic Allowance for Quarters

05/19/1997

1. A service member who marries another active duty service member is not entitled to basic allowance for quarters (BAQ) and variable housing allowance (VHA) at the with- dependent rate. 2. A service member who received allowances at the with-dependent rate while having certified that he had no dependents should have questioned his entitlements to basic allowance for quarters (BAQ) and variable housing allowance (VHA) at the with-dependent rate. Waiver request is denied.


Pay; Reserve Pay; retired SBP; participation

05/16/1997

The widow of a Reserve component service member who retired in 1952 and who died in 1964, is not entitled under Section 305 of the Army and Air Force Vitilization and Retirement Equalization Act of 1948, or Air Force Pamphlet 30-1-1 (1964), to receive monthly payments equal to her late husband's retired pay when she reaches age 60.


General; waiver of indebtedness - notice of error

05/13/1997

This Office cannot waive an erroneous payment of military pay and allowances to the extent that the service member is at fault for the overpayment. Where a lieutenant colonel in the United States Army Reserve served a three-month tour of active duty and should have reasonably expected to receive a net payment of $5,000 per month for basic pay and allowances, and he received two payments which totaled less $15,000 without also receiving the appropriate Leave and Earnings Statement, it is reasonable for him to expect the difference plus any unpaid accrued leave. But to the extent that a third payment clearly exceeded these expectations, it is not appropriate for waiver.


Travel; commuting

05/13/1997

A member of the Army National Guard performed several periods of Active Duty for Special Work. He commuted daily from his home to his duty station. Except to the limited extent allowed under paragraph U7150 of volume 1 of the Joint Federal Travel Regulations, his claim for reimbursement of mileage and other commuting expenses is denied because a member who commutes to his duty station daily is generally not entitled to travel and transportation allowances.


SBP; competing claims

04/22/1997

A retired Air Force member was under court order to provide a Survivor Benefit Plan (SBP) annuity for his former spouse. He attempted to do so, but the election form he submitted lacked her signature. Due to apparent administrative error, the member's second wife (now his widow) was established as his SBP beneficiary and began receiving an SBP annuity upon his death. When the member's former spouse filed a claim for an SBP annuity with the Comptroller General, the Comptroller General pointed out the administrative errors and referred the matter to the Secretary of the Air Force for correction under 10 U.S.C. 1454. The Secretary established the former spouse as the proper beneficiary and waived collection under 10 U.S.C. 1453 of amounts already paid to the widow. Review indicates that the Comptroller General's decision is without error, and the widow's claim for reinstatement of an SBP annuity is denied


Pay; disciplinary punishments Pay; retroactive

04/21/1997

A military member was placed in confinement pursuant to a court-martial conviction. When his conviction was set aside, he became entitled to retroactive pay and allowances. He had received Social Security Disability Benefits, and the retroactive pay and allowances were offset by the amount of those benefits. Such an offset was not proper in the absence of a statute or regulation requiring it.


General; waiver of indebtedness - notice of error

04/18/1997

Debt of service member who was aware of receiving overpayments of active duty pay subsequent to his retirement may not be waived under 10 U.S.C. 2774.


General; waiver of indebtedness; erroneous advice

04/10/1997

A Navy member left the service before completing the term of service for which he had received a selective reenlistment bonus (SRB). Under an "early out" program, he received a special separation benefit at discharge and was erroneously advised that he would not have to repay the unearned portion of the SRB. Because the unearned portion of the SRB should have been collected from his final pay, the final pay is erroneous to the extent of the unearned portion of the SRB. Due to the erroneous information the member received about repayment of that amount, he was without fault in receiving his final pay, and his debt may be waived.


Travel; unreimbursable expenses

04/09/1997

A member seeks reimbursement of car rental expenses he incurred when he arrived at his new duty station before his automobiles did. He may not be reimbursed since there is no authority in statute or regulation which would allow reimbursement.


General; waiver of indebtedness - dual compensation

04/04/1997

A debt for erroneous payment of retired pay is not waived when the debt arose as a result of the Federal civilian employer's failure to notify the office paying military retired pay of the employment of the retired officer who is subject to the Dual Compensation Act (DCA), 5 U.S.C. 5532, and the retired service member was aware of the possible application of the DCA but did not escrow or otherwise set aside funds to reimburse the government once the office responsible for paying the retired pay became aware of the service member's status.


General; waiver of indebtedness - notice of error

03/20/1997

A former Navy member received Basic Allowance for Quarters at the with-dependent rate while he lived in governent quarters and supported no dependents. The fact that he was initially misinformed as to his entitlements does not provide a basis for waiver, since a reasonable person in his situation would have set the money aside while he sought further verification of his entitlements with the appropriate authorities. Since he did not pursue the issue with the proper authorities, waiver under 10 U.S.C. 2774 is precluded.


SBP; premiums General; Barring Act

03/11/1997

The widow of a military retiree applied for a Survivor Benefit Plan (SBP) annuity in January 1988, shortly after her husband's death, and the Defense Finance and Accounting Service (DFAS) established an SBP annuity for her. The Department of Veterans Affairs also awarded her Dependency and Indemnity Compensation (DIC) in 1988. The SBP annuity was reduced by the amount of DIC to which she was entitled. In 1996 DFAS discovered that she had not received the partial refund of SBP premiums to which she became entitled when DIC was awarded in 1988. Her claim is not barred by the Barring Act, 31 U.S.C. 3702(b), since her claim for the SBP annuity constituted a claim for the partial refund. The claim was filed in a timely manner according to GAO regulations issued in 1989.


General; waiver of indebtedness - unreimbursable expenses

03/03/1997

In accordance with the Joint Federal Travel Regulations, no storage is authorized at the member's destination when the shipment originates from non-temporary storage. Storage charges paid by the government to the carrier for such storage do not reflect an "erroneous" payment. A claim against a member arising from such payments may not be considered for waiver under the waiver statute.


Pay; Reserve Pay; retired

02/20/1997

Section 12738 of title 10 of the United States Code states that once a Reservist is granted retired pay, his eligibility for such pay may not be revoked "on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed as required by section 12731(a)(2)" (i.e., 20 years of service). However, the administrative determination concerning "years of service" does not include the determination concerning whether a service member meets any additional conditions precedent for retired pay, such as the requirements that he must have served during certain periods of conflict as required by 10 U.S.C. 12731(c).


Travel; medical

02/19/1997

A claimant has the burden of establishing the liability of the government. A member who traveled by privately owned vehicle to undergo medical treatment claims mileage allowances. The Joint Federal Travel Regulations give discretion to military authorities to approve reimbursement for such expenses. The member's claim is denied because he has provided no evidence that reimbursement was approved.


General; waiver of indebtedness - notice of error

02/18/1997

We may grant waiver of a debt arising out of an erroneous payment of pay and allowances to members or former members if collection would be against equity and good conscience and not in the best interest of the United States, provided there is no indication of fraud, fault, misrepresentation, or lack of good faith on the part of the member. Additional information provided on appeal regarding the member's understanding at the time the payments were received and supporting statements from his former counsel provide sufficient evidence that the member was not at fault in accepting the erroneous payments.


Pay; Variable Separation Incentive

02/06/1997

A military member's entitlements are governed by statute. Misinformation from a government official cannot provide a basis for payment of amounts in excess of the statutory entitlement, since the government is not liable for the erroneous or negligent acts of its officers agents, or employees.


SBP; spouse-former

01/30/1997

1. As a general proposition, the validity of a marriage is for determination under the laws of the jurisdiction where the marriage is performed. Doubts concerning the validity of a marriage may properly be resolved by a final judgment of a court of competent jurisdiction. 2. If a spouse was not married to the member at the time of initial election into the SBP, he or she must have been married to the member for at least 1 year immediately before the member's death or be the parent of issue born of that marriage in order to become an eligible widow or widower beneficiary. However, if a member who was married at the time of retirement and initial election into SBP, elects coverage for that spouse, divorces that spouse and later remarries that spouse, the spouse on remarriage is exempt from the 1- year waiting period before becoming an eligible beneficiary. 3. When divorce documents show that the marital status of a couple is terminated, this Office cannot conclude, based on that document, that the couple was married after that date, regardless of the fact that the judgment was not entered until several months later. 4. If a couple divorces and remarries, a child born of the first marriage of the parties does not qualify as "issue of that marriage" for purposes of qualifying the claimant for an SBP annuity.


General; jurisdiction

01/29/1997

The Claims Appeals Board declines jurisdiction over a matter where the claimant litigated the issue in dispute before a court of competent jurisdiction, especially where, as here, the Department of Justice represented the government against the claimant.


Pay; Reserve

01/27/1997

The administration of incapacitation pay is a matter within the jurisdiction of the reservist's Service. When an agency has such discretionary authority, this Office will not disturb the Service's determination unless it is clearly erroneous, arbitrary, or capricious.


Travel; erroneous advice

01/27/1997

The Government cannot be bound by the erroneous act of its agents, even when committed in the performance of their official duties. Neither misrepresentation by a transportation officer nor misinformation provided by military officials provides a legal basis for reimbursement of additional travel costs.


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