1998 Military Personnel Redacted Decisions
These 34 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.
A member's record was corrected in a way which entitled him to additional pay and allowances. He is not entitled to interest on the amount thus owed to him in the absence of a provision in the applicable statute specifically providing for payment of interest.
A discharged service member's debt arising from advance pay may not be considered for waiver under 10 U.S.C. § 2774 because the advance pay was not erroneous when paid. Because his entire final separation payment should have been applied to his debt, the amount he received at separation may be considered for waiver. However, waiver of that amount is denied because he should have questioned his entitlement to a final separation payment in light of his debt for advance pay.
Waiver of overpayments of active duty pay and allotments received after discharge is denied. A reasonable person would know that deposits had been made in his bank account. Under the circumstances, collection is not against equity and good conscience. This decision was affirmed by the Deputy General Counsel (Fiscal), Department of Defense, on February 9, 2001.
A Service member is considered at least partially 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. A waiver request is denied under the circumstances.
A reservist serving on inactive duty for training (IDT) was incorrectly advised that she would be reimbursed for the cost of the commercial quarters she occupied if she obtained a nonavailability statement for government quarters. She was not entitled to reimbursement for commercial quarters while on IDT. Erroneous information does not provide a basis for payment, since the government is not bound by erroneous information provided by its officers, agents, and employees.
Because a member did not decline Survivor Benefit Plan (SBP) coverage for his spouse when he retired, she became his SBP beneficiary and remained so until they divorced. The member notified the Service of his remarriage, but because he did not decline SBP coverage for his new spouse, she became his SBP beneficiary one year after their marriage. SBP premiums should have been deducted from his retired pay beginning one year after the marriage, but they were not. If the member had died during the seven years when premiums were not being deducted, his wife would have become eligible for an SBP annuity. Since the member received the benefit of SBP coverage for those seven years, repayment of the unpaid premiums may not be waived.
Erroneous overpayments of pay and allowances received after a member becomes aware of the administrative error which accessed him as an O2E rather than an O1E may not be waived. The member does not acquire title to the amounts received erroneously and has a duty to hold the money for eventual repayment. Amounts deposited in his account prior to his becoming aware of the error are waived.
The waiver of a former service member's debt for the erroneous overpayment of pay and allowances under 10 U.S.C. § 2774 is not appropriate when the member is partially at fault for the error. While the Army was at fault for overpaying the member and not discovering the error for 13 months, the service member could have discovered the error shortly after it was made by reviewing the next periodic bank statement involving the account to which her active duty pay and allowance entitlements were deposited and reconciling the deposits made in the account with the amounts she and her spouse expected to receive.
Under 10 U.S.C. § 2774, when a member knows or should know that she is receiving questionable payments, she has a duty to hold the payments for eventual repayment. In such circumstances waiver is not proper.
A former service member received active duty pay for 9 months following his retirement. He is considered partially at fault for not questioning his entitlement to active duty pay during the 6 months following his retirement. Waiver is denied for this period as well as the 3 months following his notice of payments of active duty pay. The member did not acquire title to the money he received and is obligated to return it to the government.
Under 10 U.S.C. § 2774, when a member is aware that he is receiving payments to which he is not entitled, he does not acquire title to those payments, and he has a duty to hold the money for eventual repayment. In such circumstances, waiver is not proper.
A member was transferred from Oslo, Norway, to Bahrain and was entitled to constructive transportation of his dependents between those points. Under paragraph U5116-D1 of Volume 1 of the Joint Federal Travel Regulations, his reimbursement is limited to the rate the sponsoring Service would have been required to pay for the transportation.
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. The member is considered at fault under the waiver statute because he knew of the overpayments. The member did not acquire title to the money he received and is obligated to return it. His continued appeal of the calculation of his separation pay is a separate issue which does not affect the outcome of his waiver application.
A member received pay and allowances while in confinement. Waiver under 10 U.S.C. § 2774 is not appropriate since he knew or should have known that he was receiving amounts to which he was not entitled.
Member who received overpayments when her pay was not reduced in accordance with her court-martial sentence is considered partially at fault and cannot have the debt waived under 10 U.S.C. § 2774.
Under 31 U.S.C. § 3702(b) a claim must be submitted within six years of accrual. If it is not submitted within six years, the claim is barred and this Office does not have jurisdiction to consider it.
A member assigned to government quarters that are not considered adequate to meet the needs of his family should receive a reduced basic allowance for quarters (BAQ) in accordance with the inadequacy assigned to the quarters. A member who receives full BAQ in such circumstances is considered at least partially at fault under the waiver statute and his debt may not be waived under 10 U.S.C. § 2774.
1. Our Office does not provide for a hearing in settling waiver applications. The agency which was responsible for the overpayment must determine the facts surrounding the erroneous payment. 2. A member's debt resulting from the government's payment to the carrier of the entire amount charged for the member's household goods shipment, including weight in excess of the authorized weight, is not appropriate for waiver. The debt is not the result of an erroneous payment and, therefore, cannot be waived under 10 U.S.C. § 2774.
In order to be considered for waiver, a payment must be erroneous at the time it is made. Payments which are valid when made are not erroneous payments for the purposes of 10 U.S.C. § 2774. Advance payments a member received for two permanent change of station moves were proper when made and, thus, are not subject to waiver.
When a former service member erroneously continues to receive active duty pay after retirement, 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.
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.
When a member knows or should know that his receipt of Basic Allowance for Quarters at the with-dependent rate is questionable, waiver of the amounts he erroneously receives is not proper.
When a National Guard member is aware that he has received erroneous payments, he cannot reasonably expect to retain the overpayments, but must set them aside for eventual repayment when the error is corrected.
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.
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. Paragraph 030107B.1 of volme 7A of the DoD Financial Management Regulation, 7000.14R, does not provide a basis for the offset since it requires offset when a member has received public assistance. The Social Security program is an insurance program rather than public assistance.
A member's dependents traveled from his duty station in Germany to the United States at the member's expense due to a family emergency without availing themselves of emergency travel entitlements. He cannot be reimbursed for their return travel to Germany under the emergency leave provisions of the Joint Federal Travel Regulations (JFTR), since paragraph U7205 of volume 1 of the JFTR states that there is no entitlement to one-way emergency leave transportation from the continental United States back to a permanent duty station outside the continental United States.
Over two months after discharge, a former National Guard member received an unexplained payment by direct deposit to her bank account. Waiver under 32 U.S.C. § 716 is precluded since the member is partially at fault for receiving payment in excess of her entitlement without bringing the matter to the attention of the proper authorities. Because a reasonable person would verify her bank balance, stated lack of knowledge of the deposit does not provide a basis for waiver.
The proper application of 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 calculation in the absence of evidence of clear error.
A member performing a permanent change of station may not be reimbursed for an airline ticket he purchased from a foreign flag carrier in violation of the "Fly America" Act, 49 U.S.C. §§ 40117-40118, unless he can provide evidence of non-availability of a flight on an American carrier. Lack of awareness of the "Fly America" Act does not justify failure to comply with it.
A former Navy member's request for waiver of a debt to the United States under 10 U.S.C. § 2774 is denied. The debt arose when an extra paycheck was deposited in the member's bank account on the next regular payday after he had received his final pay upon separation. Waiver is precluded because the member should have been aware that he was receiving pay and allowances beyond his entitlement.
Collection of erroneous payments is neither against equity and good conscience nor contrary to the interests of the United States when a National Guard member who was experiencing problems with his pay account from the beginning of his tour of duty received erroneous payments during his tour.
Members traveling under permissive Temporary Duty (TDY) orders were erroneously advised that they were entitled to Temporary Lodging Expense (TLE). Payment of TLE is not appropriate for members in their situation, and members on permissive TDY are not entitled to be reimbursed for travel expenses. Erroneous information does not provide a basis for payment of allowances, since the government is not liable for erroneous information provided by its officers, agents, and employees.
A member was incorrectly advised that he was entitled to full Temporary Lodging Allowance (TLA) and would be completely reimbursed for the commercial quarters he occupied. Because he was without dependents, he was entitled to only 65 percent of the full TLA rate. The TLA he received was therefore less than the amount he spent for the commercial quarters. The member cannot be paid TLA in excess of the amount allowed by the Joint Federal Travel Regulations. Misinformation does not provide a basis for payment in excess of a member's legal entitlement, because the government is not bound by the erroneous actions of its officers, agents, or employees.
Only one Dislocation Allowance may be paid for the Permanent Change of Station of two service members who are married to each other and reside in the same household when the household is disestablished and reestablished once and the members continue to reside in the same household.