4/05/2011

Under the provisions of the Department of Defense Instruction 1340.23, the Defense Office of Hearings and Appeals generally must receive a claimant’s request for reconsideration of an appeal decision within 30 days of the date of the appeal decision. Upon request, this period may be extended for an additional 30 days for good cause shown. In the absence of such a request, the decision becomes final 30 days after the date of the appeal decision.

12/31/2008

Under the provisions of Department of Defense Instruction 1340.23, the Defense Office of Hearings and Appeals generally must receive a claimant's request for reconsideration of an appeal decision involving an application for waiver of debt collection under 10 U.S.C.  2774 within 30 days of the appeal decision.

12/23/2008

When a 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.

11/28/2008

Properly made payments of aviation continuation pay (ACP) are considered advances and are not eligible for waiver consideration under 10 U.S.C.  2774 because they are not erroneous payments when made.

11/26/2008

11/26/2008

Effective November 1, 2001, family coverage under Servicemembers' Group Life Insurance (FSGLI) automatically covers spouses and dependent children of uniformed service members. A member did not decline in writing FSGLI coverage for her spouse. FSGLI premiums should have been withheld from her pay, but they were not. If the member's spouse had died during the period when premiums were not being deducted, she would have received the FSGLI proceeds minus the uncollected premiums. Therefore, collection of the premiums is not against equity and good conscience.

11/18/2008

The member elected Survivor Benefit Plan (SBP) coverage for his spouse and retired. The member divorced and subsequently remarried. He did not decline SBP coverage. Under the law, his new spouse became his SBP beneficiary one year after their marriage. SBP premiums should have been deducted from his retired pay, but they were not. He then divorced his second spouse and remarried another. He subsequently notified the appropriate officials about his remarriage and requested coverage for his third spouse. Once that spouse became his SBP beneficiary, the Defense Finance and Accounting Service (DFAS) failed to deduct SBP premiums for a month, causing an overpayment. If the member had died during the periods when premiums were not being deducted, his spouse who was his SBP beneficiary would have become eligible for an SBP annuity. Since the member received the benefit of SBP coverage, waiver is not appropriate.

11/4/2008

A claim for Philippine Scout pay is barred under the Act of October 9, 1940, when the claimant, the service member's widow, did not present it to an authorized representative of the United States until 2008, more than 59 years after he was discharged from the service.

10/23/2008

Under Department of Defense Instruction 1340.21,  E.7.13, DOHA must receive a request for reconsideration within 30 days of the appeal decision.

10/23/2008

When a 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.

10/23/2008

The unearned portion of a Selective Reenlistment Bonus may not be considered for waiver under 10 U.S.C.  2774 because payment was proper when made.

10/15/2008

The burden of proving the existence of a valid claim against the United States is on the person asserting the claim.

9/23/2008

Due to an 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 the member applied for VA compensation, he was 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. Under such circumstances, the member knew or should have known that he was not entitled to the full amount of his retired pay.

8/28/2008

A member was receiving basic allowance for housing at the dependent rate (BAH-D). When the member divorced, he was no longer entitled to BAH-D, but was entitled to the lesser entitlement of BAH at the differential rate (BAH-Diff) to support his dependent daughter. An overpayment arose when the government erroneously failed to reduce the member's entitlement to BAH-Diff from BAH-D. Waiver of the resulting debt is appropriate only to the extent that the allowance was spent for its intended purpose.

8/14/2008

In order to be considered for waiver under 10 U.S.C.  2774, a payment to a service member must be erroneous when made. Payments that were valid when made are not "erroneous" under 10 U.S.C.  2774(a).

8/14/2008

Under Department of Defense Instruction 1340.21,  E.7.13, DOHA must receive a request for reconsideration within 30 days of the appeal decision.

8/08/2008

7/17/2008

A member erroneously continued to receive active duty mid-month and end-of-month pay and allowances for eight months after he was released from active duty. Waiver of the overpayments is not appropriate because he knew, or should have known, that he was receiving pay in excess of his entitlement.

5/22/2008

The burden of proving the existence of a valid claim against the United States is on the person asserting the claim.

5/21/2008

The member elected enrollment in the Survivor Benefit Plan (SBP) for his wife and children and subsequently retired. He and his wife elected to discontinue participation in SBP but then withdrew their election to discontinue within 30 days, effectively reinstating SBP coverage. SBP premiums should have then been deducted from his retired pay, but they were not. If the member had died during the period 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, waiver is not appropriate.

4/15/2008

When a 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.

2/28/2008

The interpretation of a statutory provision and implementing regulation by those charged with their execution, and the implementation of them by means of a consistent administrative practice, is to be sustained unless shown to be arbitrary, capricious or contrary to law.

2/12/2008

Member's request for waiver of a claim against him for excess leave he took while in the Air Force is denied since he knew or should have known he was taking leave that he had not earned.

2/08/2008

A former member erroneously received active duty mid-month and end-of-month pay and allowances for about nine months after he was discharged. Waiver of the overpayments is not appropriate because he knew, or should have known, that he was receiving pay in excess of his entitlement. Therefore, he had the responsibility to bring these payments to the attention of appropriate officials, and to persist in questioning them until he received a thorough explanation for the payments.

2/04/2008

A Reserve component member chose to protect his family by participating in the Reserve Component Survivor Benefit Program (RCSBP) after reaching 20 years of service, but before he was old enough to collect retired pay. Prior to collecting retired pay, the member was awarded disability compensation from the Department of Veterans Affairs (VA). When he started collecting retired pay, the Defense Finance and Accounting Service (DFAS) withheld premiums for RCSBP, but stopped the deductions when VA compensation began to exceed retired pay, and no retired pay was due. At a later point, the member became eligible again to receive retired pay, but due to administrative errors, DFAS had concluded that the member had not elected RCSBP, and it failed to withhold RCSBP premiums. Whether or not the member could have reasonably known that RCSBP was still available to him, the member had chosen RCSBP, and his coverage remained in effect even during the period when DFAS failed to deduct premiums. Since the member received the benefit of SBP coverage, collection of the overpayment of retired pay from the failure to withhold the premiums cannot be waived under 10 U.S.C.  2774.

1/29/2008

The burden of proving the existence of a valid claim against the United States is on the person asserting the claim.

1/23/2008

Properly made payments of aviation continuation pay (ACP) are considered advances and are not eligible for waiver consideration under 10 U.S.C. § 2774 because they are not erroneous payments when made. A member retired without completing the period he was obligated to serve under the ACP agreement. The fact that the member may have received incorrect information after payment about whether the government would recoup the unearned portion of an ACP payment does not transform a proper ACP advance into an erroneous payment.

1/22/2008

When a 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.