2005 Military Personnel Redacted Decisions
These 8 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.
Pursuant to a divorce decree, a member was required to elect a spousal annuity for his former wife and ordered to provide her with survivor's benefits. His former wife timely requested a deemed election. The member's subsequent election of a reduced base amount of Survivor Benefit Plan (SBP) coverage and his former spouse's signature on a DD Form 2656-1 has no effect on his court-ordered obligation to provide her with full, unreduced SBP coverage.
1. The interpretation of a statutory provision and implementing regulation by those charged with their execution, and their implementation of them by means of a consistent administrative practice, is to be sustained unless shown to be arbitrary, capricious or contrary to law. 2. When provisions of a state divorce decree conflict with a scheme adopted by Congress for administering a Federal military entitlement, the state divorce decree must yield to the Federal scheme to the extent that it conflicts with the Supremacy Clause of the U.S. Constitution.
Under the Uniformed Services Former Spouse Protection Act, state courts are permitted to treat disposable retired pay as marital property. The increase in a member's monthly retired pay resulting from its restoration under 10 U.S.C. § 1414 is subject to a state court divorce decree, and under the decree disposable retired pay is properly being distributed to the member's former wife at the percentage directed by the decree.
A member who was authorized to stay in off-post housing while on temporary duty travel (TDY) was charged a processing fee and an administrative fee by the apartment complex where he stayed. He may not be reimbursed for such fees since there is no authority in statute or regulation which would allow reimbursement.
After being ordered to active duty in support of a contingency operation, a member received basic allowance for housing (BAH) at the rates of his various duty stations, and not his principal place of residence at the time he was recalled to active duty. Waiver of the debt under 10 U.S.C. § 2774 is not appropriate, since the member should have been aware that he was receiving amounts to which he was not entitled. We will not disturb the Coast Guard's determination of a member's principal place of residence for BAH purposes where the member never changed the location for his home of record before the issuance of his orders.
When a member receives orders erroneously authorizing payment of per diem, waiver under 32 U.S.C. § 716 is appropriate only for amounts actually expended in reliance on the erroneous authorization.
When a member is aware or should be aware that he has received an overpayment, he does not acquire title to the excess amounts, and he has a duty to hold the money for eventual repayment. In such circumstances waiver is not proper under 10 U.S.C. § 2774.
In the absence of express language or a clear implication in the statute or legislative history, a member's entitlement to reimbursement for expenses incurred for an adoption arranged by a foreign government or an agency authorized by a foreign government to place children for adoption, is prospective only, from the date of enactment of Public Law 108-375, October 28, 2004. There is therefore no authority to pay qualifying adoption expenses a member incurred prior to that date.