2004 Military Personnel Redacted Decisions
These 18 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.
When a Correction Board merely recites facts already in a member's file and does not change any facts, no additional rights accrue as a result of the Board's action. A Service member was discharged with over 19 years of service. His record contained another two years of service which could have been included in his years of service, but were not. A Correction Board included the additional time in his years of service and retroactively awarded him retired pay without changing any facts in his record. The claim for retired pay, which was barred by the passage of time before the Board's action, remains barred.
For a payment to be considered for waiver, it must be erroneous at the time it was made. Payments that are valid when made may not be considered for waiver under 10 U.S.C. Sec. 2774.
A member's reserve retired pay was not reduced by the amount of the compensation he was receiving from the Department of Veterans Affairs (VA). Upon signing an application for VA Compensation, the member is considered to be on notice that when he became entitled to retired pay it would be reduced by the amount of his VA disability compensation. Therefore, waiver of the overpayment is not appropriate because he knew or should have known that he was not entitled to the full amount of his retired pay, and therefore, had the responsibility to bring the matter to the attention of the appropriate officials, and to persist in questioning them until he received a thorough explanation of his entitlement.
A service member is entitled to per diem for meals when he is ordered to annual training away from home and government mess is not available. Government mess is considered to be not available if (1) the member's orders specifically state that government mess is not available, and (2) the unique circumstances of the member's duty and assignments prevent him from taking any meals at government mess facilities located at the nominal site of his assignment.
A member who appeals an unfavorable waiver determination must provide a rationale for reversing the prior determination and applying the outcome advocated by the member.
A retired member received erroneous active duty payments after retirement. He questioned at least one of the payments and received assurances that it was correct. Unless he could articulate a reason why he thought he was entitled to a payment in that amount, he should not have relied on general assurances that the payment was correct. He did not acquire title to the overage and should have held it until his entitlement to it was determined or until he was asked to return it. Under those circumstances, waiver under 10 U.S.C. § 2774 is not proper.
When a member knows or should know that he has been overpaid, he has a duty to notify the proper authorities of the error and hold the overpayment for eventual repayment.
Due to administrative error, a member's retired pay was not reduced by the amount of the compensation he was receiving from the Department of Veterans Affairs(VA). When he applied for VA compensation, the member was advised in his written application that the filing of that application constituted a waiver of military retired pay in the amount of any VA compensation to which he may be entitled. Under such circumstances, the member knew or should have known that he was not entitled to the full amount of his retired pay.
A service member is not entitled to per diem allowances when he is ordered to annual training away from home and the government provides quarters and mess.
A retired member received two erroneous active duty payments after retirement. He questioned the first payment and received assurances that it was correct. Unless he could articulate a reason why he thought he was entitled to a payment in that amount, he should not have relied on general assurances that the payment was correct. He did not acquire title to the overage and should have held it until his entitlement to it was determined or until he was asked to return it. Under those circumstances, waiver under 10 U.S.C. § 2774 is not proper.
Although a military member had retired and was no longer receiving active duty pay, the Defense Finance and Accounting Service erroneously continued sending income tax withholding amounts to the Internal Revenue Service (IRS) on the member's behalf. Waiver of the debt is not appropriate, since the member is able to request refund of the excess withholding from the IRS and restitution therefore is not against equity and good conscience.
A military member continued to receive pay and allowances after her separation, and a discretionary savings allotment continued to be paid to her bank on her behalf on the two months after the month of she separated. Waiver of the debt for the discretionary allotment under 10 U.S.C. § 2774 is not appropriate, since the member should have been aware that she was receiving amounts to which she was not entitled.
When a service member is aware or should be aware that he is receiving payments in excess of his entitlements, he does not acquire title to the excess amounts and has a duty to hold them for eventual repayment.
A former member of the Air Force was convicted by court-martial and sentenced to confinement, and as a result, he forfeited all pay and allowances under Article 58b of the Uniform Code of Military Justice (UCMJ) while confined. However, the convening authority waived the forfeiture and remitted the pay and allowances to the member's dependents in accordance with Article 58b(b) of the UCMJ. The Air Force Court of Criminal Appeals reversed the forfeiture because the member committed the offenses of which he was convicted prior to the effective date of Article 58b, and Article 58b did not apply to the member. The member seeks reimbursement of most of the amounts remitted to his dependents. The government has the right to be indemnified to the extent that the amounts paid to the dependents discharged an obligation the member owed to them under court order. The member may not be reimbursed.
Determinations as to how long a medical disability continues and whether it was incurred in the line of duty are left to the exercise of sound administrative judgment of a member's service, the Department of Veterans Affairs, or the relevant agency concerned. They do not come within the purview of this Office.
A travel advance is only considered to be erroneous and subject to waiver under 10 U.S.C. § 2774 to the extent it is made to cover expenses erroneously authorized and the member actually spends the advance in reliance on the erroneous authorization. When the record shows that neither the travel orders nor the advances made pursuant to those orders were erroneous, consideration for waiver is not appropriate.
A former member erroneously received active-duty pay and allowances through direct deposit to his bank account several months after he separated. Waiver is not appropriate because the member should have been aware that he was receiving payments to which he was not entitled. The fact that his payments were direct-deposited into a bank account does not relieve the member of monitoring his statements and questioning any unexpected deposits.
This decision responds to an appeal of Defense Office of Hearings and Appeals (DOHA) Settlement Certificate, DOHA Claim No. 03053007, dated August 6, 2003, which denied an Air National Guard member's claim for reimbursement for the rental of a house, furniture rental, and utility expenses incident to a temporary duty (TDY) tour in 2002.