Waiver Procedures for Debts Resulting from Erroneous Payments of Pay and Allowances, 59374-59380 [E6-16649]
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Federal Register / Vol. 71, No. 195 / Tuesday, October 10, 2006 / Rules and Regulations
3. The authority citation for part 135
continues to read as follows:
I
Authority: 49 U.S.C. 106(g), 44113, 44701–
44702, 44705, 44709, 44711–44713, 44715–
44717, 44722.
4. In § 135.128, amend paragraph
(a)(2)(ii)(D) to read as follows:
§ 135.128 Use of safety belts and child
restraint systems
(a) * * *
(2) * * *
(ii) * * *
(D) Except as provided in
§ 135.128(a)(2)(ii)(C)(3) and
§ 135.128(a)(2)(ii)(C)(4), booster-type
child restraint systems (as defined in
Federal Motor Vehicle Safety Standard
No. 213 (49 CFR 571.213)), vest- and
harness-type child restraint systems,
and lap held child restraints are not
approved for use in aircraft; and
*
*
*
*
*
Issued in Washington, DC on September
29, 2006.
Brenda D. Courtney,
Acting Director, Office of Rulemaking.
[FR Doc. E6–16622 Filed 10–6–06; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 520
Oral Dosage Form New Animal Drugs;
Omeprazole
AGENCY:
Food and Drug Administration,
HHS.
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ACTION:
Final rule.
SUMMARY: The Food and Drug
Administration (FDA) is amending the
animal drug regulations to reflect
approval of a supplemental new animal
drug application (NADA) filed by Merial
Ltd. The supplemental NADA provides
for administration of omeprazole paste
to horses for 8 or 28 days for the
prevention of gastric ulcers.
DATES: This rule is effective October 10,
2006.
FOR FURTHER INFORMATION CONTACT:
Melanie R. Berson, Center for Veterinary
Medicine (HFV–110), Food and Drug
Administration, 7500 Standish Pl.,
Rockville, MD 20855, 301–827–7540, email: melanie.berson@.fda.hhs.gov.
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Merial
Ltd., 3239 Satellite Blvd., Bldg. 500,
Duluth, GA 30096–4640, filed a
supplement to NADA 141–227 for
ULCERGARD (omeprazole) Paste. The
supplemental application provides for
administration of omeprazole paste to
horses for 8 or 28 days for the
prevention of gastric ulcers. The
supplemental NADA is approved as of
September 15, 2006, and 21 CFR
520.1615 is amended to reflect the
approval. The basis of approval is
discussed in the freedom of information
summary.
In accordance with the freedom of
information provisions of 21 CFR part
20 and 21 CFR 514.11(e)(2)(ii), a
summary of safety and effectiveness
data and information submitted to
support approval of this application
may be seen in the Division of Dockets
Management (HFA–305), Food and Drug
Administration, 5630 Fishers Lane, rm.
1061, Rockville, MD 20852, between 9
a.m. and 4 p.m., Monday through
Friday.
Under section 512(c)(2)(F)(iii) of the
Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360b(c)(2)(F)(iii)), this
approval qualifies for 3 years of
marketing exclusivity beginning
September 15, 2006.
The agency has determined under 21
CFR 25.33(d)(1) that this action is of a
type that does not individually or
cumulatively have a significant effect on
the human environment. Therefore,
neither an environmental assessment
nor an environmental impact statement
is required.
This rule does not meet the definition
of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because
it is a rule of ‘‘particular applicability.’’
Therefore, it is not subject to the
congressional review requirements in 5
U.S.C. 801–808.
SUPPLEMENTARY INFORMATION:
PART 135—OPERATING
REQUIREMENTS: COMMUTER AND
ON-DEMAND OPERATIONS AND
RULES GOVERNING PERSONS ON
BOARD SUCH AIRCRAFT
List of Subjects in 21 CFR Part 520
Animal drugs.
I Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs and redelegated to
the Center for Veterinary Medicine, 21
CFR part 520 is amended as follows:
PART 520—ORAL DOSAGE FORM
NEW ANIMAL DRUGS
1. The authority citation for 21 CFR
part 520 continues to read as follows:
I
Authority: 21 U.S.C. 360b.
§ 520.1615
Omeprazole.
2. In paragraph (d)(1)(ii) of § 520.1615,
at the end of the first sentence remove
‘‘for up to 28 days’’ and add in its place
‘‘for 8 or 28 days’’.
I
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Dated: September 27, 2006.
Steven D. Vaughn,
Director, Office of New Animal Drug
Evaluation, Center for Veterinary Medicine.
[FR Doc. E6–16604 Filed 10–6–06; 8:45 am]
BILLING CODE 4160–01–S
DEPARTMENT OF DEFENSE
Office of the Secretary
[DOD–2006–OS–0134; RIN 0790–AG91]
32 CFR Part 284
Waiver Procedures for Debts Resulting
from Erroneous Payments of Pay and
Allowances
Department of Defense.
Final rule.
AGENCY:
ACTION:
SUMMARY: This rule implements policy
and prescribes procedures for
considering applications for the waiver
of debts resulting from erroneous
payments of pay and allowances
(including travel and transportation
allowances) to or on behalf of members
of the Uniformed Services and civilian
Department of Defense (DoD)
employees. The Legislative Branch
Appropriations Act of 1996 transferred
to the Director of the Office of
Management and Budget (OMB) the
Comptroller General’s authority to settle
claims. The OMB Director subsequently
delegated some of these authorities to
the Department of Defense. Later, the
General Accounting Office Act of 1996
codified many of these delegations to
the Secretary of Defense and others and
transferred to the OMB Director the
authority of the Comptroller General to
waive uniformed service member and
employee debts arising out of the
erroneous payment of pay or allowances
exceeding $1,500. The OMB Director
subsequently delegated the authority to
waive such debts of uniformed service
members and DoD employees to the
Secretary of Defense. The Secretary of
Defense further delegated his claims
settlement and waiver authorities to the
General Counsel. This rule implements
the reassignment of the Comptroller
General’s former duties within the
Department of Defense with little
impact on the public.
DATES: Effective Date: October 10, 2006.
FOR FURTHER INFORMATION CONTACT:
Michael Hipple, 703–696–8510.
SUPPLEMENTARY INFORMATION: On
Thursday, November 14, 2002 (67 FR
68964), the Department of Defense
published 32 CFR part 284 along with
parts 281, 282, and 283 as proposed
rules with request for public comments.
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Federal Register / Vol. 71, No. 195 / Tuesday, October 10, 2006 / Rules and Regulations
No public comments were received on
part 284. Numerous comments,
however, were received from the DoD
components on the appropriate format,
syntax, and in some instances, the
substance of the final regulation. None
of the possibly substantive changes
negatively impact individual applicants.
The changes deal mostly with internal
government organization or process.
However, the redesign of the regulation,
and its coordination throughout DoD,
was time consuming.
In consideration of the various
internal comments that were offered, the
final rule modifies the proposed rule as
follows:
(1) The functional process for
obtaining a waiver is now contained in
the appendices of the regulation rather
than being intermingled with such
internal matters as purpose, policy and
responsibilities. Accordingly, subparts
284.6 through 284.12 were eliminated,
and the content of these former subparts
is now contained in Appendix A to part
284 (Overview of Waiver Application
Process). The word ‘‘and functions’’ was
deleted from the heading of 284.5. The
other appendices were re-labeled to
reflect that there is a new Appendix A
(e.g., former Appendix A is now
Appendix B, etc.).
(2) Technical changes include the
deletion of the word ‘‘Instruction’’
where it appears and the substitution of
the word ‘‘part.’’ While Part 284 is the
same regulation as DoD Instruction
1340.23, the word ‘‘Instruction’’ is not
used in the Federal Register format. The
underlining of statutory citations is
deleted, and underlines are now used to
differentiate separate processes and
concepts. Numbers less than 10 are
spelled out rather written as a number;
e.g. ‘‘Three’’ has been substituted for
‘‘3.’’
(3) The overall format was changed to
provide for a more distinct, and less
verbose, paragraph style. The bulk of the
modifications involve simpler sentence
structures and word reduction. For
example, in Appendix B (Standards for
Waiver Determinations), paragraph A.1,
the words ‘‘In other words,’’ were
deleted from the beginning of the third
sentence which now reads: ‘‘If a benefit
is bestowed by mistake, no matter how
careless the act of the Government may
have been, the recipient must make
restitution.’’ The phrase ‘‘In other
words,’’ added nothing to the meaning
of the standard. Another example is the
deletion of ‘‘strict conformity,’’ and the
substitution of compliance,’’ from the
definition of ‘‘Erroneous Payment’’in
Subpart 284.3 (Erroneous Payment. A
payment that is not in compliance with
applicable laws or regulations.) Other
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examples include the deletion of words
like ‘‘therefore’’ and the splitting of
larger sentences into multiple, smaller
ones. Examples are found throughout
the entire document and are too
numerous to detail each instance.
(4) Changes that could be considered
as substantive are as follows:
(a) Subpart 284.2(b) was revised to
include references to agreements
between DoD and the departments and
agencies that involve the ‘‘non-DoD
Components’’ that are impacted by the
regulation. The substance of former
Subpart 284.2(b) is now found at
Subpart 284.2(c), and is contained in a
more succinct form.
(b) The definition of ‘‘Uniformed
Services’’ was eliminated from Subpart
284.3 because it is defined by statute.
(c) The words ‘‘of Uniformed Service
personnel’’ were added for clarification
purposes to make it clear that the
regulation only pertained to the debts of
uniformed service members and not to
those of civilian employees working
under the Heads of the Non-DoD
Components. See Subpart 284.5(d) and
Appendix D paragraph C.1.i. The
General Accounting Office Act of 1996
and the subsequent delegation of the
Director, Office of Management and
Budget to the Secretary of Defense
affected only uniformed service
personnel of the non-DoD Components.
Part 284 was never intended to affect
the civilian employees of the heads of
the Non-DoD Components. The only
civilian employees affected by this
regulation are those within the
Department of Defense.
(d) The reference to the Director,
Department of Defense Dependent
Schools (DoDDS) was struck and
replaced with the Director, Department
of Defense Education Activity (DoDEA)
to assure that all elements within
DoDEA were included.
(e) An additional responsibility for
DoD Components is added. DoD
Components must also ensure that, if
applicable, the submission and filing of
waiver applications/appeals also satisfy
the requirements of 5 U.S.C. 552a. See
Appendix A, paragraph B and E.
(f) The requirement that an applicant
include his social security number to
DOHA was eliminated, and is now only
required if the component concerned
requires such information as part of its
procedures. See Appendix C, paragraph
C.3 and Appendix F, paragraph C.3.
(g) For clarification purposes, the date
of discovery of an overpayment is
further defined by adding the following
sentence to Appendix C, paragraph F:
‘‘The date of discovery is the date it is
definitely determined by an appropriate
official that an erroneous payment has
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been made.’’ This language is consistent
with the explanation provided in the
decisions of the Defense Office of
Hearings and Appeals and the
Comptroller General.
Executive Order 12866, ‘‘Regulatory
Planning and Review’’
It has been determined that 32 CFR
Part 284 is not economically significant
regulatory actions and will not
significantly affect a substantial number
of small entities.
Unfunded Mandates Reform Act (Sec.
202, Pub. L. 104–4)
It has been certified that 32 CFR part
284 does not contain a Federal mandate
that may result in the expenditure by
State, local and tribal governments, in
aggregate, or by the private sector, of
$100 million or more in any one year.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
It has been certified that 32 CFR Part
284 is not subject to the ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601) because,
if promulgated, they would not have a
significant economic impact on a
substantial number of small entities.
These rules affect members of the
Uniformed Services, Federal employees
and transportation carriers. 32 CFR Part
284 establishes policies and provide
procedures for considering applications
for waiver of debts resulting from
erroneous pay and allowances to or on
behalf of members and civilian DoD
employees.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been certified that these parts
do not impose any reporting or recordkeeping requirements under the
Paperwork Reduction Act of 1995.
Executive Order 13132, ‘‘Federalism’’
It has been certified that these parts
do not have federalism implications, as
set forth in Executive Order 13132.
These parts do not have substantial
direct effects on:
(1) The States;
(2) The relationship between the
National Government and the States; or
(3) The distribution of power and
responsibilities among various levels of
government.
List of Subjects in 32 CFR Part 284
Administrative practice and
procedure, Armed Forces, Waivers.
Accordingly, 32 CFR part 284 is
added to read as follows:
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Federal Register / Vol. 71, No. 195 / Tuesday, October 10, 2006 / Rules and Regulations
PART 284—WAIVER PROCEDURES
FOR DEBTS RESULTING FROM
ERRONEOUS PAYMENTS OF PAY
AND ALLOWANCES
Sec.
284.1 Purpose.
284.2 Applicability and scope.
284.3 Definitions.
284.4 Policy.
284.5 Responsibilities.
Appendix A to part 284—Overview of
Waiver Application Process.
Appendix B to part 284—Standards for
Waiver Determinations.
Appendix C to part 284—Submitting a
Waiver Application.
Appendix D to part 284—Processing a
Waiver Application When the Debt is
$1,500 or Less.
Appendix E to part 284—Processing a Waiver
Application When the Debt is More than
$1,500.
Appendix F to part 284—Appeals.
Authority: 10 U.S.C. 2575, 2771, 4712,
9712; 24 U.S.C. 420; 31 U.S.C. 3529, 3702; 32
U.S.C. 714; 37 U.S.C. 554.
§ 284.1
Purpose.
This part implements policy under 32
CFR part 283 and prescribes procedures
for considering waiver applications
under 10 U.S.C. 2774, 32 U.S.C. 716,
and 5 U.S.C. 5584.
§ 284.2
Applicability and Scope.
This part applies to:
(a) The Office of the Secretary of
Defense, the Military Departments, the
Chairman of the Joint Chiefs of Staff, the
Combatant Commands, the Office of
Inspector General of the Department of
Defense, the Defense Agencies, the
Department of Defense Field Activities,
and all other organizational entities
within the Department of Defense
(hereafter referred to collectively as the
‘‘DoD Components’’).
(b) The Coast Guard, when it is not
operating as a Service in the Navy under
agreement with the Department of
Homeland Security, the Commissioned
Corps of the Public Health Service
(PHS) and the National Oceanic and
Atmospheric Administration (NOAA)
under agreements with the Departments
of Health and Human Services and
Commerce, respectively (hereafter
referred to collectively as the ‘‘non-DoD
Components’’).
(c) Certain functions for considering
waiver applications that, by statute or
delegation, are vested in the Department
of Defense or the Secretary of Defense.
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§ 284.3
Definitions.
Committee. The person or persons
invested, by order of a proper court,
with the guardianship of a minor or
incompetent person and/or the estate of
a minor or incompetent person.
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Component Concerned. The agency/
activity (as well as the official
designated by the Head of the agency/
activity) required to perform the
function or take the action indicated or
that notifies the individual of the debt
that is the subject of a waiver
application.
Debt. An amount an individual owes
the Government as the result of
erroneous payments of pay and
allowances (including travel and
transportation allowances) to or on
behalf of members of the Uniformed
Services or civilian DoD employees.
Employee. A person who is or was an
officer or employee as defined in 5
U.S.C. 2104 and 2105.
Erroneous Payment. A payment that is
not in compliance with applicable laws
or regulations.
Final Action. A finding by the
appropriate official under this part
concerning a waiver application from
which there is no right to appeal or
request reconsideration, or for which
the time limit prescribed in this part for
submitting an appeal or request for
reconsideration has expired without
such a submission.
Member. A member or former member
of the Uniformed Services.
Waiver Application. A request that
the United States relinquish its claim
against an individual for a debt resulting
from erroneous payments of pay or
allowances (including travel and
transportation allowances) under 10
U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C.
5584.
§ 284.4
Policy.
It is DoD policy under 32 CFR part
283 that waiver applications for debts
resulting from erroneous payments of
pay and allowances (hereafter referred
to as ‘‘waiver applications’’) be
processed according to all pertinent
statutes, regulations, and other relevant
authorities.
§ 284.5
Responsibilities.
(a) The General Counsel of the
Department of Defense (GC, DoD) or
designee shall consult on, or render
opinions concerning, questions of law
or equity that arise in the course of the
performance of the Director, Defense
Office of Hearings and Appeals’ (DOHA)
responsibilities under paragraph (b) of
this section when requested by the
Director.
(b) The Director, Defense Office of
Hearings and Appeals or designee,
under the GC, DoD (as the Director,
Defense Legal Services Agency), shall:
(1) Deny or grant all or part of a
waiver application, if the aggregate
amount of the debt is more than $1,500.
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(2) Consider an appeal of an initial
determination and affirm, modify,
reverse, or remand the initial
determination, according to this part
and relevant GC, DoD opinions.
(3) Process waiver applications and
appeals according to this part.
(c) The Heads of the DoD Components
or designee shall process waiver
applications according to this part.
(d) The Heads of the Non-DoD
Components or designee concerning
debts of Uniformed Services personnel
resulting from the Component’s activity;
the Director, Department of Defense
Education Activity (DoDEA) or designee,
concerning debts of civilian employees
resulting from that Component’s
activity; the Director, National Security
Agency (NSA) or designee, concerning
debts resulting from that Component’s
activity; and the Director, Defense
Finance and Accounting Service (DFAS)
or designee, under the Under Secretary
of Defense (Comptroller)/Chief
Financial Officer (USD(C)/CFO),
concerning debts resulting from all
other DoD Components’ activities shall:
(1) Deny or grant all or part of a
waiver application, if the aggregate
amount of the debt is $1,500 or less.
(2) If the aggregate amount of the debt
is more than $1,500:
(i) Deny a waiver application in its
entirety, or
(ii) Refer a waiver application for
consideration with a recommendation
that part or all of the application be
granted, according to this part.
(3) Process waiver applications, when
the aggregate amount of the debt is more
than $1,500, and appeals according to
this part.
(4) Resolve a debt according to the
final action that results from the waiver
application process provided for in this
part.
Appendix A to Part 284—Overview of
Waiver Application Process
A. Standards for Waiver Determinations
The standards that must be applied in
determining whether all or part of a waiver
application should be granted or denied are
at Appendix B to this part.
B. Submitting a Waiver Application
The DoD Components shall ensure, if
applicable, the submission and filing of
waiver applications/appeals satisfy the
requirements of 5 U.S.C. 552a. The
procedures an applicant must follow to
submit a waiver application are at Appendix
C to this part.
C. Processing A Waiver Application When
The Debt Is $1,500 Or Less
The procedures a DoD Component must
follow in processing a waiver application
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when the debt is $1,500 or less are at
Appendix D to this part.1
D. Processing a Waiver Application When
the Debt Is More Than $1,500
The procedures a DoD Component must
follow in processing a waiver application
when the debt is more than $1,500 are at
Appendix E to this part.
E. Appeals
The DoD Components shall ensure, if
applicable, the submission and filing of
waiver applications/appeals satisfy the
requirements of 5 U.S.C. 552 and 552a. The
procedures for appealing initial
determinations are at Appendix F to this
part.
F. Refund of Repaid Debts That Are
Subsequently Waived
When a final action waives all or part of
a debt that has been repaid, the waiver
application shall be interpreted as an
application for a refund and the Component
concerned shall, to the extent of the waiver,
refund the amount repaid.
G. Publication
The Director, DOHA or designee shall
make redacted copies of responses to
requests for reconsideration available for
public inspection and copying at the DOHA’s
public reading room and on the worldwide
web according to 5 U.S.C. 552 and 552a.
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Appendix B to Part 284—Standards for
Waiver Determinations
A. Standards
1. Generally, persons who receive a
payment erroneously from the Government
acquire no right to the money. They are
bound in equity and good conscience to
make restitution. If a benefit is bestowed by
mistake, no matter how careless the act of the
Government may have been, the recipient
must make restitution. In theory, restitution
results in no loss to the recipient because the
recipient received something for nothing.
However, 10 U.S.C. 2774, 32 U.S.C. 716, and
5 U.S.C. 5584 provide authority to waive,
under certain conditions debts individuals
owe the Government that are the result of
erroneous payments of pay and allowances
(including travel and transportation
allowances). A waiver is not a matter of right.
It is available to provide relief as a matter of
equity, if the circumstances warrant.
2. Debts may be waived only when
collection would be against equity and good
conscience and would not be in the best
interests of the United States. There must be
no indication the erroneous payment was
solely or partially the result of the fraud,
misrepresentation, fault, or lack of good faith
of the applicant.
3. The fact that an erroneous payment is
solely the result of administrative error or
mistake on the part of the Government is not
sufficient basis in and of itself for granting a
waiver.
4. A waiver usually is not appropriate
when a recipient knows, or reasonably
1 Contact the appropriate non-DoD Component for
the procedures it follows in processing a waiver
application.
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should know, that a payment is erroneous.
The recipient has a duty to notify an
appropriate official and to set aside the funds
for eventual repayment to the Government,
even if the Government fails to act after such
notification.
5. A waiver generally is not appropriate
when a recipient of a significant unexplained
increase in pay or allowances, or of any other
unexplained payment of pay or allowances,
does not attempt to obtain a reasonable
explanation from an appropriate official. The
recipient has a duty to ascertain the reason
for the payment and to set aside the funds
in the event that repayment should be
necessary.
6. A waiver may be inappropriate in cases
where a recipient questions a payment
(which ultimately is determined to be
erroneous) and is mistakenly advised by an
appropriate official that the payment is
proper, if under the circumstances the
recipient knew or reasonably should have
known that the advice was erroneous.
7. Financial hardship is not a factor for
consideration in determining whether a
waiver is appropriate.
8. Waiver determinations under these
standards depend on the facts in each case.
Appendix C to Part 284—Submitting a
Waiver Application
A. Who May Apply for Waiver
Any person (‘‘applicant’’) from whom
collection is sought for a debt resulting from
erroneous payments of pay or allowances
(including travel and transportation
allowances) may submit a waiver application
under 10 U.S.C. 2774, 32 U.S.C. 716, and 5
U.S.C. 5584. Additionally, an authorized
official of the Component concerned, or the
Director, DOHA or designee may initiate a
waiver application during the processing of
a claim under 32 CFR part 281.
B. Where To Submit A Waiver Application
An applicant must submit a waiver
application to the Component concerned
according to the guidance provided by that
Component. A waiver application submitted
somewhere other than to the Component
concerned does not stop the calculation of
the time limit as discussed in paragraph F to
this Appendix. It is the applicant’s
responsibility to submit the waiver
application properly.
C. Format of a Waiver Application
An applicant must submit a waiver
application in the format prescribed by the
Component concerned. It must be written
and signed by the applicant (in the case of
an application on behalf of a minor or
incompetent person, there are additional
requirements explained at paragraph E to this
Appendix) or by the applicant’s authorized
agent or attorney (there are additional
requirements explained at paragraph D to
this Appendix). In addition, the waiver
application should include:
1. The applicant’s mailing address.
2. The applicant’s telephone number.
3. The applicant’s social security number
when required by the Component concerned.
4. The amount for which waiver is
requested.
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5. An explanation why a waiver should be
granted under the standards explained at
Appendix B to this part.
6. Copies of documents referred to in the
application.
7. Statements (that are attested to be true
and correct to the best of the individual’s
knowledge and belief) of the applicant or
other persons in support of the application.
D. Waiver Application Submitted by Agent
or Attorney
In addition to the requirements in
paragraph C to this Appendix, a waiver
application submitted by the applicant’s
agent or attorney must include or have
attached a duly executed power of attorney
or other documentary evidence of the agent’s
or attorney’s right to act for the applicant.
E. Waiver Application Submitted on Behalf
of a Minor or Incompetent Person
In addition to the requirements in
paragraph C to this Appendix:
1. If a guardian or committee has not been
appointed, a waiver application submitted on
behalf of a minor or incompetent person
must:
i. State the applicant’s relationship to the
minor or incompetent person.
ii. Provide the name and address of the
person having care and custody of the minor
or incompetent person.
iii. Include an affirmation that any moneys
received shall be applied to the use and
benefit of the minor or incompetent person,
and that the appointment of a guardian or
committee is not contemplated.
2. If a guardian or committee has been
appointed, a waiver application on behalf of
a minor or incompetent person must include
or have attached a certificate of the court
showing the appointment and qualification
of the guardian or committee.
F. When To Submit a Waiver Application
An applicant must submit a waiver
application so that it is received by the
Component concerned within three years
after the erroneous payment is discovered.
The date of discovery is the date it is
definitely determined by an appropriate
official that an erroneous payment has been
made. The time limit is set by 10 U.S.C. 2774,
32 U.S.C. 716, and 5 U.S.C. 5584, whichever
applies. It may not be extended or waived.
Although the issue of timeliness is usually
raised on initial submission (as explained in
paragraph B to Appendix D in this part), the
issue may be raised at any point during the
waiver application consideration process.
Appendix D to Part 284—Processing a
Waiver Application When the Debt Is
$1,500 or Less
A. Initial Component Processing
Upon receipt of a waiver application, the
Component concerned must:
1. Date stamp the application on the date
received.
2. Determine whether the application was
received within three years after the
discovery of the erroneous payment. If the
application was not timely, follow the
procedures in paragraph B to this Appendix.
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3. Investigate the circumstances relating to
the erroneous payment.
4. Refer the application to the appropriate
determining official (see paragraph C to this
Appendix) for consideration and an initial
determination.
i. Return the application to the Component
concerned for processing on its merits
according to this part, or
ii. Consider the application and make an
initial determination on its merits according
to paragraph C.2. to this Appendix.
B. Untimely Waiver Applications
When the Component concerned
determines that a waiver application was not
received within three years after the
erroneous payment was discovered, the
Component must send the applicant a notice
of untimely receipt.
1. The notice must:
i. Cite the applicable statute and explain
the reasons for the finding of untimely
receipt.
ii. State that the application was not
received within the statutory time limit and
may not be considered unless that finding is
reversed on appeal.
iii. Explain that the applicant may submit
a rebuttal to the finding of untimely receipt
(as explained in paragraph B.2.).
iv. State that the statutory time limit may
not be extended or waived.
2. An applicant may submit a written
rebuttal, signed by the applicant or the
applicant’s agent or attorney, to a notice of
untimely receipt. The Component concerned
must receive the rebuttal within 30 days of
the date of the notice and may grant an
extension of up to an additional 30 days for
good cause shown. The rebuttal should:
i. Explain the points of, and reasons for,
disagreement with the notice.
ii. Have any documents referred to in the
rebuttal attached.
iii. Include or have attached statements
(that are attested to be true and correct to the
best of the individual’s knowledge and belief)
by the applicant or other persons in support
of the rebuttal.
3. If the applicant does not submit a
rebuttal within the time permitted, the notice
of untimely receipt is a final action and the
Component must return the application to
the applicant with a notice that the finding
is final and the application may not be
considered.
4. If the applicant submits a timely
rebuttal, the Component must consider the
rebuttal.
i. If the Component finds that the
application was received within the required
time limit, the Component must reverse its
finding of untimely receipt, notify the
applicant in writing, and process the
application on its merits.
ii. If the Component does not reverse the
finding of untimely receipt, the Component
must forward the record, including the
application, notice of untimely receipt, and
rebuttal, to the appropriate determining
official (see paragraph C.1. to this Appendix)
for an initial determination on the issue of
untimely receipt. The Component does not
need to investigate the merits of the
application before forwarding the record.
5. After making an initial determination on
the issue of untimely receipt, the determining
official must follow the procedures in
paragraph D to this Appendix. In addition, if
the determining official finds that the
application was timely, the official may:
C. Initial Determinations
The standards in Appendix B to this part
must be applied when considering the merits
of a waiver application. After making an
initial determination, the determining official
must follow the procedures at paragraph D to
this Appendix.
1. The officials listed and referred to in this
part as determining officials shall consider
waiver applications and take the appropriate
action described in paragraph C.2. to this
Appendix. These officials are identified as
follows:
i. The Head of a non-DoD Component or
designee for debts of Uniformed Services
personnel resulting from that Component’s
activity.
ii. The Director, DoDEA or designee for
debts of civilian employees resulting from
that Component’s activity.
iii. The Director, NSA or designee for debts
resulting from that Component’s activity.
iv. The Director, DFAS or designee for
debts resulting from the DoD Component
activity not included in paragraphs C.1.ii.
and C.1.iii. to this Appendix.
2. The officials listed in paragraph C.1. to
this Appendix may make an initial
determination for the following:
i. Whether or not a waiver application was
received within three years after the
discovery of the erroneous payment.
ii. Deny a waiver application in its entirety.
iii. Grant all or part of a waiver application.
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D. Processing After An Initial Determination
After making an initial determination, the
determining official must:
1. Notify the applicant. The notification
must explain:
i. The determination and the reasons for it.
ii. The appropriate Component action to
resolve the debt as a consequence of the
determination if it is or becomes a final
action (the finality of an initial determination
is explained at paragraph E to this
Appendix).
iii. The appeal process (as explained in
Appendix F to this part) if the determination
does not grant the entire application or does
not contain a finding of timely receipt.
2. Notify the Component concerned if the
determining official is not an official of the
Component concerned when and if the
determination is a final action. The notice
must explain:
i. The determination and its reasons.
ii. The appropriate Component action to
resolve the debt as a consequence of the
determination.
E. When an Initial Determination Is Final
A final action is an initial determination
that grants the entire waiver application or
finds that the application was timely
received. Also, an initial determination
(including one of untimely receipt) is a final
action if the determining official does not
receive an appeal within 30 days of the date
of the initial determination (plus any
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extension of up to 30 additional days granted
by the determining official for good cause
shown).
Appendix E to Part 284—Processing a
Waiver Application When the Debt Is
More Than $1,500
A. Initial Component Processing
Upon receipt of a waiver application, the
Component concerned must:
1. Date stamp the application on the date
received.
2. Determine whether the application was
received within three years after the
discovery of the erroneous payment. If the
application was not timely, follow the
procedures in paragraph B in this part.
3. Investigate the circumstances relating to
the erroneous payment.
4. Refer the waiver application to the
appropriate determining official (see
paragraph C to this Appendix) who after
applying the standards in Appendix B in this
part may either:
i. Deny the application in its entirety, if
appropriate, and follow the procedures in
Appendix D to this part, or
ii. Refer the application with a
recommendation that part or all of the
application be granted to the DOHA for
consideration and an initial determination
under paragraph C to this Appendix. The
determining official must send the entire
record and prepare and submit a
recommendation and administrative report
(as explained in paragraphs D and E to this
Appendix) with the application.
B. Untimely Waiver Applications
When the Component concerned
determines that a waiver application was not
received within three years after the
erroneous payment was discovered, the
Component must send the applicant a notice
of untimely receipt.
1. The notice must:
i. Cite the applicable statute and explain
the reasons for the finding of untimely
receipt.
ii. State that the application was not
received within the statutory time limit and
may not be considered unless that finding is
reversed on appeal.
iii. Explain that the applicant may submit
a rebuttal to the finding of untimely receipt
(as explained in paragraph B.2. to this
Appendix.).
iv. State that the statutory time limit may
not be extended or waived.
2. An applicant may submit a written
rebuttal, signed by the applicant or the
applicant’s agent or attorney, to a notice of
untimely receipt. The Component concerned
must receive the rebuttal within 30 days of
the date of the notice and may grant an
extension of up to an additional 30 days for
good cause shown. The rebuttal should:
i. Explain the points of, and reasons for,
disagreement with the notice.
ii. Have any documents referred to in the
rebuttal attached.
iii. Include or have attached statements
(that are attested to be true and correct to the
best of the individual’s knowledge and belief)
by the applicant or other persons in support
of the rebuttal.
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3. If the applicant does not submit a
rebuttal within the time permitted, the notice
of untimely receipt is a final action and the
Component must return the application to
the applicant with a notice that the finding
is final and the application may not be
considered.
4. If the applicant submits a timely
rebuttal, the Component must consider the
rebuttal:
i. If the Component finds that the
application was received within the required
time limit, the Component must reverse its
finding of untimely receipt, notify the
applicant in writing, and process the
application on its merits.
ii. If the Component does not reverse the
finding of untimely receipt, the Component
must forward the record, including the
application, notice of untimely receipt, and
rebuttal, to the appropriate determining
official (see paragraph C.1. of Appendix D to
this part) for an initial determination on the
issue of untimely receipt. The Component
does not need to investigate the merits of the
application before forwarding the record.
5. After making an initial determination on
the issue of untimely receipt, the determining
official must follow the procedures in
Appendix D to this part. In addition, if the
determining official finds that the application
was timely, the official may:
i. Return the application to the Component
concerned for processing on the merits
according to this part, or
ii. Make a recommendation to the DOHA
to grant all or part of the application as
described in paragraph D to this Appendix.
C. Initial Determinations
The standards in Appendix B to this part
must be applied when considering the merits
of a waiver application. After making an
initial determination, the DOHA must follow
the procedures at paragraph F to this
Appendix and may take the following actions
regarding waiver applications referred under
paragraph A.4.ii. or B.5.ii. to this Appendix:
1. Make an initial determination denying a
waiver application in its entirety; or
2. Make an initial determination granting
all or part of a waiver application.
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D. Recommendation to the DOHA To Grant
All or Part of an Application
Referrals to the DOHA must include the
entire record along with the recommendation
and administrative report described in
paragraph E to this Appendix. The record
and the report must be sent to: Defense Office
of Hearings and Appeals, Claims Division,
P.O. Box 3656, Arlington, VA 22203–1995.
E. Recommendation and Administrative
Report
The recommendation and administrative
report required by paragraph D to this
Appendix must describe the recommended
action (and its reasons) and the following:
1. The names and mailing addresses of
each employee, member, or other person
from whom collection is sought, or a
statement that the person cannot reasonably
be located.
2. The aggregate amount of the debt,
including an itemization showing the
elements of the aggregate amount.
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3. The date the erroneous payment was
discovered.
4. The date the recipient was notified of
the error and a statement of the erroneous
amounts paid before and after receipt of such
notice.
5. A summary of the facts and
circumstances describing how the erroneous
payment occurred; the recipient’s knowledge
of the erroneous nature of the payment; the
steps taken by the recipient to bring the
matter to the attention of the appropriate
official; and the Component’s response, if
any.
6. A finding of whether there is any
indication of fraud, misrepresentation, fault,
or lack of good faith on the part of the
applicant and the reasons for such a finding.
7. Legible copies or the originals of
supporting documents, such as leave and
earnings statements, notifications of
personnel actions, travel authorizations and
vouchers, and military orders.
8. Statements (that are attested to be true
and correct to the best of the individual’s
knowledge and belief) of the applicant or
other persons in support of the application.
F. Processing After an Initial Determination
After making an initial determination, the
DOHA must:
1. Notify the applicant if all or part of the
waiver application is denied. The
notification must explain:
i. The determination and the reasons for it.
ii. The appropriate Component action to
resolve the debt as a consequence of the
determination if it is or becomes a final
action (the finality of an initial determination
is explained at paragraph G to this
Appendix).
iii. The appeal process (as explained in
Appendix F to this part) if the determination
does not grant the entire application or does
not contain a finding of timely receipt.
2. Notify the Component concerned when
and if the determination is a final action. The
notice must explain:
i. The determination and its the reasons.
ii. The appropriate Component action to
resolve the debt as a consequence of the
determination.
G. When an Initial Determination Is Final
A final action is an initial determination
that grants the entire waiver application or
finds that the application was timely
received. Also, an initial determination
(including one of untimely receipt) is a final
action if the determining official does not
receive an appeal within 30 days of the date
of the initial determination (plus any
extension of up to 30 additional days granted
by the determining official for good cause
shown).
Appendix F to Part 284—Appeals
A. Who May Appeal
An applicant may appeal if an initial
determination denies all or part of a waiver
application or finds that the application was
not received by the Component concerned
within the time limit required by statute.
B. When and Where To Submit an Appeal
1. When the determining official is not in
the DOHA, the determining official must
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59379
receive an applicant’s appeal within 30 days
of the date of the initial determination. The
determining official may extend this period
for up to an additional 30 days for good cause
shown. No appeal may be accepted after this
time has expired. The appeal shall be
processed under the procedures in
paragraphs C through K to this Appendix.
2. When the determining official is in the
DOHA, the DOHA must receive an
applicant’s appeal within 30 days of the date
of the initial determination. The DOHA may
extend this period for up to an additional 30
days for good cause shown. No appeal may
be accepted after this time has expired. The
appeal shall be considered to be a request for
reconsideration and shall be processed under
the procedures in paragraphs L through Q of
this Appendix.
C. Content of an Appeal
No specific format for an appeal is required
however it must be written and signed by the
applicant, the applicant’s authorized agent,
or the applicant’s attorney. In addition, it
should:
1. Provide the applicant’s mailing address.
2. Provide the applicant’s telephone
number.
3. Provide the applicant’s social security
number when required by the Component
concerned.
4. Identify specific:
i. Errors or omissions of material and
relevant facts.
ii. Legal or equitable (under the standards
in Appendix B to this part) considerations
that were overlooked or misapplied.
iii. Conclusions that were arbitrary,
capricious, or an abuse of discretion.
5. Present evidence of the correct or
additional facts alleged.
6. Explain the reasons why the findings or
conclusions should be reversed or modified.
7. Have attached copies of documents
referred to in the appeal.
8. Include or have attached statements (that
are attested to be true and correct to the best
of the individual’s knowledge and belief) by
the applicant or other persons in support of
the appeal.
D. Determining Official’s Review
The determining official must review an
applicant’s appeal, and affirm, modify, or
reverse the initial determination.
1. When the determining official grants the
entire waiver appeal or grants the application
to the extent requested in the appeal after
review of an appeal in a case involving a debt
in the aggregate amount of $1,500 or less, the
determining official must notify the applicant
in writing and the Component concerned if
the determining official is not an official of
the Component concerned. The notice must
explain the appropriate action to resolve the
debt. This is a final action.
2. When the determining official finds that
the application was received within the time
limit required by statute after review of an
appeal concerning the untimely receipt of the
waiver application, the determining official
must notify the applicant in writing and take
the appropriate action under paragraph B.5.
of Appendix D to this part or paragraph B.5.
of Appendix E to this part, as appropriate.
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3. In all other cases, the determining
official must forward the appeal to the DOHA
according to paragraph E. of this Appendix.
The determining official must prepare a
recommendation and administrative report
(as explained in paragraph F to this
Appendix) and send a copy of the
administrative report to the applicant with a
notice that the applicant may submit a
rebuttal to the determining official (as
explained in paragraph G to this Appendix).
4. The determining official must date
stamp the applicant’s rebuttal on the date it
is received.
E. Submission of Appeal to the DOHA
The determining official must send the
entire record along with the recommendation
and administrative report required by
paragraph F to this Appendix no earlier than
31 days after the date of the administrative
report or the day after the applicant’s rebuttal
period, as extended, expires, to the following
address: Defense Office of Hearings and
Appeals, Claims Division, P.O. Box 3656,
Arlington, Virginia 22203–1995.
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F. Recommendation and Administrative
Report
The recommendation and administrative
report required by paragraph D.3. to this
Appendix must describe the recommended
action (and its reasons) and include:
1. The names and mailing addresses of
each employee, member, or other person
from whom collection is sought, or a
statement that the person cannot reasonably
be located.
2. The aggregate amount of the debt,
including an itemization showing the
elements of the aggregate amount.
3. The date the erroneous payment was
discovered.
4. The date the recipient was notified of
the error and a statement of the erroneous
amounts paid before and after receipt of such
notice.
5. A summary of the facts and
circumstances describing how the erroneous
payment occurred; the recipient’s knowledge
of the erroneous nature of the payment; the
steps taken by the recipient to bring the
matter to the attention of the appropriate
official; and the Component’s response;
6. A finding of whether there is any
indication of fraud, misrepresentation, fault,
or lack of good faith on the part of the
applicant and the reasons for such a finding.
7. Legible copies or the originals of
supporting documents, such as leave and
earnings statements, notifications of
personnel actions, travel authorizations and
vouchers, and military orders.
8. Statements (that are attested to be true
and correct to the best of the individual’s
knowledge and belief) of the applicant or
other persons in support of the application.
G. Applicant’s Rebuttal
An applicant may submit a written
rebuttal, signed by the applicant or the
applicant’s agent or attorney, in response to
the recommendation and administrative
report. The rebuttal must be received by the
determining official within 30 days of the
date of the recommendation and
administrative report. The determining
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official may grant an extension of up to an
additional 30 days for good cause shown.
The rebuttal should include:
1. An explanation of the points and reasons
for disagreeing with the report.
2. The file reference number.
3. Any documents referred to in the
rebuttal.
4. Statements (that are attested to be true
and correct to the best of the individual’s
knowledge and belief) by the applicant or
other persons in support of the rebuttal.
H. DOHA Appeal Decision
Except as provided in paragraph P to this
Appendix, the DOHA must base its decision
on the written record, including the
recommendation and administrative report
and any rebuttal by the applicant. The
written decision must:
1. Affirm, modify, reverse, or remand the
initial determination and decide the
application on its merits or return the
application to the Component concerned for
investigation and processing for an initial
determination on the merits according to
Appendix D to this part.
2. State the amount of the waiver
application that is granted and the amount
denied and/or that the application was or
was not received within the statutory time
limit, as appropriate.
3. Explain the reasons for the decision.
I. Processing After the Appeal Decision
After issuing an appeal decision, the
DOHA must:
1. Send the applicant the decision and
notify the applicant of:
i. The appropriate Component action to
resolve the debt as a consequence of the
decision if it is or becomes a final action (as
explained in paragraph J to this Appendix).
ii. The procedures under this Appendix to
request reconsideration (as explained in
paragraphs K through M to this Appendix),
if the decision does not grant the waiver
application to the extent requested, or does
not contain a finding of timely receipt, when
applicable.
2. Notify the Component concerned of the
decision and the appropriate Component
action to resolve the debt as a consequence
of the decision.
J. Finality of a DOHA Appeal Decision
An appeal decision that grants the waiver
application to the extent requested on appeal,
or that finds that the application was timely
received, when applicable, is a final action
when issued. An appeal decision is a final
action if the DOHA does not receive a request
for reconsideration within 30 days of the date
of the appeal decision (plus any extension of
up to 30 additional days granted by the
DOHA for good cause shown). Note: In the
case of a DOHA appeal decision issued
before the effective date of this part that
denied all or part of the waiver application,
a request for reconsideration by the GC, DoD
may be submitted within 60 days of the
effective date of this part. The GC DoD shall
consider such requests and affirm, modify,
reverse, or remand the DOHA appeal
decision. Requests for reconsideration by the
GC, DoD received more than 60 days after the
effective date of this part shall not be
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accepted. Requests must be submitted to the
address in paragraph E.5. to this Appendix.
The provisions of paragraph M to this
Appendix apply.
K. Who May Request Reconsideration
An applicant may request reconsideration
of a DOHA appeal decision.
L. When and Where To Submit a Request for
Reconsideration
The DOHA must receive a request for
reconsideration within 30 days of the date of
the appeal decision.2 The DOHA may extend
this period for up to an additional 30 days
for good cause shown. No request for
reconsideration may be accepted after this
time has expired. A request for
reconsideration must be sent to the DOHA at
the address in paragraph E to this Appendix.
M. Content of a Request for Reconsideration
The requirements of paragraph C to this
Appendix for the content of an appeal apply
to a request for reconsideration.
N. DOHA’s Review of a Request for
Reconsideration
No earlier than 31 days after the date of the
appeal decision or the day after the last
period for submitting a request, as extended,
expires, the DOHA must:
1. Consider a request for reconsideration.
2. Affirm, modify, or reverse the appeal
decision.
3. Prepare a response that explains the
reasons for the finding.
4. Send the response to the applicant and
the Component concerned and notify them of
the appropriate action on the debt.
O. Finality of a DOHA Reconsideration
Decision
The response is a final action. It is
precedent in the consideration of all waiver
applications covered by this part unless
otherwise stated in the document.
P. Consideration of Appeals and Requests
for Reconsideration
When considering an appeal or request for
reconsideration, the DOHA may:
1. Take administrative notice of matters
that are generally known or are capable of
confirmation by resort to sources whose
accuracy cannot reasonably be questioned.
2. Remand a matter to the Component with
instructions to provide additional
information.
Dated: October 3, 2006.
L.M. Bynum,
OSD Federal Register Liaison Officer, DoD.
[FR Doc. E6–16649 Filed 10–6–06; 8:45 am]
BILLING CODE 5001–06–P
2 Request for reconsideration by the GC, DoD
must be received by the DOHA within 60 days of
the effective date of this Instruction as explained in
paragraph J of this appendix for appeal decisions
issued before the effective date of this Instruction.
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[Federal Register Volume 71, Number 195 (Tuesday, October 10, 2006)]
[Rules and Regulations]
[Pages 59374-59380]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-16649]
=======================================================================
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DEPARTMENT OF DEFENSE
Office of the Secretary
[DOD-2006-OS-0134; RIN 0790-AG91]
32 CFR Part 284
Waiver Procedures for Debts Resulting from Erroneous Payments of
Pay and Allowances
AGENCY: Department of Defense.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule implements policy and prescribes procedures for
considering applications for the waiver of debts resulting from
erroneous payments of pay and allowances (including travel and
transportation allowances) to or on behalf of members of the Uniformed
Services and civilian Department of Defense (DoD) employees. The
Legislative Branch Appropriations Act of 1996 transferred to the
Director of the Office of Management and Budget (OMB) the Comptroller
General's authority to settle claims. The OMB Director subsequently
delegated some of these authorities to the Department of Defense.
Later, the General Accounting Office Act of 1996 codified many of these
delegations to the Secretary of Defense and others and transferred to
the OMB Director the authority of the Comptroller General to waive
uniformed service member and employee debts arising out of the
erroneous payment of pay or allowances exceeding $1,500. The OMB
Director subsequently delegated the authority to waive such debts of
uniformed service members and DoD employees to the Secretary of
Defense. The Secretary of Defense further delegated his claims
settlement and waiver authorities to the General Counsel. This rule
implements the reassignment of the Comptroller General's former duties
within the Department of Defense with little impact on the public.
DATES: Effective Date: October 10, 2006.
FOR FURTHER INFORMATION CONTACT: Michael Hipple, 703-696-8510.
SUPPLEMENTARY INFORMATION: On Thursday, November 14, 2002 (67 FR
68964), the Department of Defense published 32 CFR part 284 along with
parts 281, 282, and 283 as proposed rules with request for public
comments.
[[Page 59375]]
No public comments were received on part 284. Numerous comments,
however, were received from the DoD components on the appropriate
format, syntax, and in some instances, the substance of the final
regulation. None of the possibly substantive changes negatively impact
individual applicants. The changes deal mostly with internal government
organization or process. However, the redesign of the regulation, and
its coordination throughout DoD, was time consuming.
In consideration of the various internal comments that were
offered, the final rule modifies the proposed rule as follows:
(1) The functional process for obtaining a waiver is now contained
in the appendices of the regulation rather than being intermingled with
such internal matters as purpose, policy and responsibilities.
Accordingly, subparts 284.6 through 284.12 were eliminated, and the
content of these former subparts is now contained in Appendix A to part
284 (Overview of Waiver Application Process). The word ``and
functions'' was deleted from the heading of 284.5. The other appendices
were re-labeled to reflect that there is a new Appendix A (e.g., former
Appendix A is now Appendix B, etc.).
(2) Technical changes include the deletion of the word
``Instruction'' where it appears and the substitution of the word
``part.'' While Part 284 is the same regulation as DoD Instruction
1340.23, the word ``Instruction'' is not used in the Federal Register
format. The underlining of statutory citations is deleted, and
underlines are now used to differentiate separate processes and
concepts. Numbers less than 10 are spelled out rather written as a
number; e.g. ``Three'' has been substituted for ``3.''
(3) The overall format was changed to provide for a more distinct,
and less verbose, paragraph style. The bulk of the modifications
involve simpler sentence structures and word reduction. For example, in
Appendix B (Standards for Waiver Determinations), paragraph A.1, the
words ``In other words,'' were deleted from the beginning of the third
sentence which now reads: ``If a benefit is bestowed by mistake, no
matter how careless the act of the Government may have been, the
recipient must make restitution.'' The phrase ``In other words,'' added
nothing to the meaning of the standard. Another example is the deletion
of ``strict conformity,'' and the substitution of compliance,'' from
the definition of ``Erroneous Payment''in Subpart 284.3 (Erroneous
Payment. A payment that is not in compliance with applicable laws or
regulations.) Other examples include the deletion of words like
``therefore'' and the splitting of larger sentences into multiple,
smaller ones. Examples are found throughout the entire document and are
too numerous to detail each instance.
(4) Changes that could be considered as substantive are as follows:
(a) Subpart 284.2(b) was revised to include references to
agreements between DoD and the departments and agencies that involve
the ``non-DoD Components'' that are impacted by the regulation. The
substance of former Subpart 284.2(b) is now found at Subpart 284.2(c),
and is contained in a more succinct form.
(b) The definition of ``Uniformed Services'' was eliminated from
Subpart 284.3 because it is defined by statute.
(c) The words ``of Uniformed Service personnel'' were added for
clarification purposes to make it clear that the regulation only
pertained to the debts of uniformed service members and not to those of
civilian employees working under the Heads of the Non-DoD Components.
See Subpart 284.5(d) and Appendix D paragraph C.1.i. The General
Accounting Office Act of 1996 and the subsequent delegation of the
Director, Office of Management and Budget to the Secretary of Defense
affected only uniformed service personnel of the non-DoD Components.
Part 284 was never intended to affect the civilian employees of the
heads of the Non-DoD Components. The only civilian employees affected
by this regulation are those within the Department of Defense.
(d) The reference to the Director, Department of Defense Dependent
Schools (DoDDS) was struck and replaced with the Director, Department
of Defense Education Activity (DoDEA) to assure that all elements
within DoDEA were included.
(e) An additional responsibility for DoD Components is added. DoD
Components must also ensure that, if applicable, the submission and
filing of waiver applications/appeals also satisfy the requirements of
5 U.S.C. 552a. See Appendix A, paragraph B and E.
(f) The requirement that an applicant include his social security
number to DOHA was eliminated, and is now only required if the
component concerned requires such information as part of its
procedures. See Appendix C, paragraph C.3 and Appendix F, paragraph
C.3.
(g) For clarification purposes, the date of discovery of an
overpayment is further defined by adding the following sentence to
Appendix C, paragraph F: ``The date of discovery is the date it is
definitely determined by an appropriate official that an erroneous
payment has been made.'' This language is consistent with the
explanation provided in the decisions of the Defense Office of Hearings
and Appeals and the Comptroller General.
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that 32 CFR Part 284 is not economically
significant regulatory actions and will not significantly affect a
substantial number of small entities.
Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)
It has been certified that 32 CFR part 284 does not contain a
Federal mandate that may result in the expenditure by State, local and
tribal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that 32 CFR Part 284 is not subject to the
``Regulatory Flexibility Act'' (5 U.S.C. 601) because, if promulgated,
they would not have a significant economic impact on a substantial
number of small entities. These rules affect members of the Uniformed
Services, Federal employees and transportation carriers. 32 CFR Part
284 establishes policies and provide procedures for considering
applications for waiver of debts resulting from erroneous pay and
allowances to or on behalf of members and civilian DoD employees.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that these parts do not impose any reporting
or record-keeping requirements under the Paperwork Reduction Act of
1995.
Executive Order 13132, ``Federalism''
It has been certified that these parts do not have federalism
implications, as set forth in Executive Order 13132. These parts do not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among various
levels of government.
List of Subjects in 32 CFR Part 284
Administrative practice and procedure, Armed Forces, Waivers.
0
Accordingly, 32 CFR part 284 is added to read as follows:
[[Page 59376]]
PART 284--WAIVER PROCEDURES FOR DEBTS RESULTING FROM ERRONEOUS
PAYMENTS OF PAY AND ALLOWANCES
Sec.
284.1 Purpose.
284.2 Applicability and scope.
284.3 Definitions.
284.4 Policy.
284.5 Responsibilities.
Appendix A to part 284--Overview of Waiver Application Process.
Appendix B to part 284--Standards for Waiver Determinations.
Appendix C to part 284--Submitting a Waiver Application.
Appendix D to part 284--Processing a Waiver Application When the
Debt is $1,500 or Less.
Appendix E to part 284--Processing a Waiver Application When the
Debt is More than $1,500.
Appendix F to part 284--Appeals.
Authority: 10 U.S.C. 2575, 2771, 4712, 9712; 24 U.S.C. 420; 31
U.S.C. 3529, 3702; 32 U.S.C. 714; 37 U.S.C. 554.
Sec. 284.1 Purpose.
This part implements policy under 32 CFR part 283 and prescribes
procedures for considering waiver applications under 10 U.S.C. 2774, 32
U.S.C. 716, and 5 U.S.C. 5584.
Sec. 284.2 Applicability and Scope.
This part applies to:
(a) The Office of the Secretary of Defense, the Military
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant
Commands, the Office of Inspector General of the Department of Defense,
the Defense Agencies, the Department of Defense Field Activities, and
all other organizational entities within the Department of Defense
(hereafter referred to collectively as the ``DoD Components'').
(b) The Coast Guard, when it is not operating as a Service in the
Navy under agreement with the Department of Homeland Security, the
Commissioned Corps of the Public Health Service (PHS) and the National
Oceanic and Atmospheric Administration (NOAA) under agreements with the
Departments of Health and Human Services and Commerce, respectively
(hereafter referred to collectively as the ``non-DoD Components'').
(c) Certain functions for considering waiver applications that, by
statute or delegation, are vested in the Department of Defense or the
Secretary of Defense.
Sec. 284.3 Definitions.
Committee. The person or persons invested, by order of a proper
court, with the guardianship of a minor or incompetent person and/or
the estate of a minor or incompetent person.
Component Concerned. The agency/activity (as well as the official
designated by the Head of the agency/activity) required to perform the
function or take the action indicated or that notifies the individual
of the debt that is the subject of a waiver application.
Debt. An amount an individual owes the Government as the result of
erroneous payments of pay and allowances (including travel and
transportation allowances) to or on behalf of members of the Uniformed
Services or civilian DoD employees.
Employee. A person who is or was an officer or employee as defined
in 5 U.S.C. 2104 and 2105.
Erroneous Payment. A payment that is not in compliance with
applicable laws or regulations.
Final Action. A finding by the appropriate official under this part
concerning a waiver application from which there is no right to appeal
or request reconsideration, or for which the time limit prescribed in
this part for submitting an appeal or request for reconsideration has
expired without such a submission.
Member. A member or former member of the Uniformed Services.
Waiver Application. A request that the United States relinquish its
claim against an individual for a debt resulting from erroneous
payments of pay or allowances (including travel and transportation
allowances) under 10 U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584.
Sec. 284.4 Policy.
It is DoD policy under 32 CFR part 283 that waiver applications for
debts resulting from erroneous payments of pay and allowances
(hereafter referred to as ``waiver applications'') be processed
according to all pertinent statutes, regulations, and other relevant
authorities.
Sec. 284.5 Responsibilities.
(a) The General Counsel of the Department of Defense (GC, DoD) or
designee shall consult on, or render opinions concerning, questions of
law or equity that arise in the course of the performance of the
Director, Defense Office of Hearings and Appeals' (DOHA)
responsibilities under paragraph (b) of this section when requested by
the Director.
(b) The Director, Defense Office of Hearings and Appeals or
designee, under the GC, DoD (as the Director, Defense Legal Services
Agency), shall:
(1) Deny or grant all or part of a waiver application, if the
aggregate amount of the debt is more than $1,500.
(2) Consider an appeal of an initial determination and affirm,
modify, reverse, or remand the initial determination, according to this
part and relevant GC, DoD opinions.
(3) Process waiver applications and appeals according to this part.
(c) The Heads of the DoD Components or designee shall process
waiver applications according to this part.
(d) The Heads of the Non-DoD Components or designee concerning
debts of Uniformed Services personnel resulting from the Component's
activity; the Director, Department of Defense Education Activity
(DoDEA) or designee, concerning debts of civilian employees resulting
from that Component's activity; the Director, National Security Agency
(NSA) or designee, concerning debts resulting from that Component's
activity; and the Director, Defense Finance and Accounting Service
(DFAS) or designee, under the Under Secretary of Defense (Comptroller)/
Chief Financial Officer (USD(C)/CFO), concerning debts resulting from
all other DoD Components' activities shall:
(1) Deny or grant all or part of a waiver application, if the
aggregate amount of the debt is $1,500 or less.
(2) If the aggregate amount of the debt is more than $1,500:
(i) Deny a waiver application in its entirety, or
(ii) Refer a waiver application for consideration with a
recommendation that part or all of the application be granted,
according to this part.
(3) Process waiver applications, when the aggregate amount of the
debt is more than $1,500, and appeals according to this part.
(4) Resolve a debt according to the final action that results from
the waiver application process provided for in this part.
Appendix A to Part 284--Overview of Waiver Application Process
A. Standards for Waiver Determinations
The standards that must be applied in determining whether all or
part of a waiver application should be granted or denied are at
Appendix B to this part.
B. Submitting a Waiver Application
The DoD Components shall ensure, if applicable, the submission
and filing of waiver applications/appeals satisfy the requirements
of 5 U.S.C. 552a. The procedures an applicant must follow to submit
a waiver application are at Appendix C to this part.
C. Processing A Waiver Application When The Debt Is $1,500 Or Less
The procedures a DoD Component must follow in processing a
waiver application
[[Page 59377]]
when the debt is $1,500 or less are at Appendix D to this part.\1\
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\1\ Contact the appropriate non-DoD Component for the procedures
it follows in processing a waiver application.
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D. Processing a Waiver Application When the Debt Is More Than $1,500
The procedures a DoD Component must follow in processing a
waiver application when the debt is more than $1,500 are at Appendix
E to this part.
E. Appeals
The DoD Components shall ensure, if applicable, the submission
and filing of waiver applications/appeals satisfy the requirements
of 5 U.S.C. 552 and 552a. The procedures for appealing initial
determinations are at Appendix F to this part.
F. Refund of Repaid Debts That Are Subsequently Waived
When a final action waives all or part of a debt that has been
repaid, the waiver application shall be interpreted as an
application for a refund and the Component concerned shall, to the
extent of the waiver, refund the amount repaid.
G. Publication
The Director, DOHA or designee shall make redacted copies of
responses to requests for reconsideration available for public
inspection and copying at the DOHA's public reading room and on the
worldwide web according to 5 U.S.C. 552 and 552a.
Appendix B to Part 284--Standards for Waiver Determinations
A. Standards
1. Generally, persons who receive a payment erroneously from the
Government acquire no right to the money. They are bound in equity
and good conscience to make restitution. If a benefit is bestowed by
mistake, no matter how careless the act of the Government may have
been, the recipient must make restitution. In theory, restitution
results in no loss to the recipient because the recipient received
something for nothing. However, 10 U.S.C. 2774, 32 U.S.C. 716, and 5
U.S.C. 5584 provide authority to waive, under certain conditions
debts individuals owe the Government that are the result of
erroneous payments of pay and allowances (including travel and
transportation allowances). A waiver is not a matter of right. It is
available to provide relief as a matter of equity, if the
circumstances warrant.
2. Debts may be waived only when collection would be against
equity and good conscience and would not be in the best interests of
the United States. There must be no indication the erroneous payment
was solely or partially the result of the fraud, misrepresentation,
fault, or lack of good faith of the applicant.
3. The fact that an erroneous payment is solely the result of
administrative error or mistake on the part of the Government is not
sufficient basis in and of itself for granting a waiver.
4. A waiver usually is not appropriate when a recipient knows,
or reasonably should know, that a payment is erroneous. The
recipient has a duty to notify an appropriate official and to set
aside the funds for eventual repayment to the Government, even if
the Government fails to act after such notification.
5. A waiver generally is not appropriate when a recipient of a
significant unexplained increase in pay or allowances, or of any
other unexplained payment of pay or allowances, does not attempt to
obtain a reasonable explanation from an appropriate official. The
recipient has a duty to ascertain the reason for the payment and to
set aside the funds in the event that repayment should be necessary.
6. A waiver may be inappropriate in cases where a recipient
questions a payment (which ultimately is determined to be erroneous)
and is mistakenly advised by an appropriate official that the
payment is proper, if under the circumstances the recipient knew or
reasonably should have known that the advice was erroneous.
7. Financial hardship is not a factor for consideration in
determining whether a waiver is appropriate.
8. Waiver determinations under these standards depend on the
facts in each case.
Appendix C to Part 284--Submitting a Waiver Application
A. Who May Apply for Waiver
Any person (``applicant'') from whom collection is sought for a
debt resulting from erroneous payments of pay or allowances
(including travel and transportation allowances) may submit a waiver
application under 10 U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584.
Additionally, an authorized official of the Component concerned, or
the Director, DOHA or designee may initiate a waiver application
during the processing of a claim under 32 CFR part 281.
B. Where To Submit A Waiver Application
An applicant must submit a waiver application to the Component
concerned according to the guidance provided by that Component. A
waiver application submitted somewhere other than to the Component
concerned does not stop the calculation of the time limit as
discussed in paragraph F to this Appendix. It is the applicant's
responsibility to submit the waiver application properly.
C. Format of a Waiver Application
An applicant must submit a waiver application in the format
prescribed by the Component concerned. It must be written and signed
by the applicant (in the case of an application on behalf of a minor
or incompetent person, there are additional requirements explained
at paragraph E to this Appendix) or by the applicant's authorized
agent or attorney (there are additional requirements explained at
paragraph D to this Appendix). In addition, the waiver application
should include:
1. The applicant's mailing address.
2. The applicant's telephone number.
3. The applicant's social security number when required by the
Component concerned.
4. The amount for which waiver is requested.
5. An explanation why a waiver should be granted under the
standards explained at Appendix B to this part.
6. Copies of documents referred to in the application.
7. Statements (that are attested to be true and correct to the
best of the individual's knowledge and belief) of the applicant or
other persons in support of the application.
D. Waiver Application Submitted by Agent or Attorney
In addition to the requirements in paragraph C to this Appendix,
a waiver application submitted by the applicant's agent or attorney
must include or have attached a duly executed power of attorney or
other documentary evidence of the agent's or attorney's right to act
for the applicant.
E. Waiver Application Submitted on Behalf of a Minor or Incompetent
Person
In addition to the requirements in paragraph C to this Appendix:
1. If a guardian or committee has not been appointed, a waiver
application submitted on behalf of a minor or incompetent person
must:
i. State the applicant's relationship to the minor or
incompetent person.
ii. Provide the name and address of the person having care and
custody of the minor or incompetent person.
iii. Include an affirmation that any moneys received shall be
applied to the use and benefit of the minor or incompetent person,
and that the appointment of a guardian or committee is not
contemplated.
2. If a guardian or committee has been appointed, a waiver
application on behalf of a minor or incompetent person must include
or have attached a certificate of the court showing the appointment
and qualification of the guardian or committee.
F. When To Submit a Waiver Application
An applicant must submit a waiver application so that it is
received by the Component concerned within three years after the
erroneous payment is discovered. The date of discovery is the date
it is definitely determined by an appropriate official that an
erroneous payment has been made. The time limit is set by 10 U.S.C.
2774, 32 U.S.C. 716, and 5 U.S.C. 5584, whichever applies. It may
not be extended or waived. Although the issue of timeliness is
usually raised on initial submission (as explained in paragraph B to
Appendix D in this part), the issue may be raised at any point
during the waiver application consideration process.
Appendix D to Part 284--Processing a Waiver Application When the Debt
Is $1,500 or Less
A. Initial Component Processing
Upon receipt of a waiver application, the Component concerned
must:
1. Date stamp the application on the date received.
2. Determine whether the application was received within three
years after the discovery of the erroneous payment. If the
application was not timely, follow the procedures in paragraph B to
this Appendix.
[[Page 59378]]
3. Investigate the circumstances relating to the erroneous
payment.
4. Refer the application to the appropriate determining official
(see paragraph C to this Appendix) for consideration and an initial
determination.
B. Untimely Waiver Applications
When the Component concerned determines that a waiver
application was not received within three years after the erroneous
payment was discovered, the Component must send the applicant a
notice of untimely receipt.
1. The notice must:
i. Cite the applicable statute and explain the reasons for the
finding of untimely receipt.
ii. State that the application was not received within the
statutory time limit and may not be considered unless that finding
is reversed on appeal.
iii. Explain that the applicant may submit a rebuttal to the
finding of untimely receipt (as explained in paragraph B.2.).
iv. State that the statutory time limit may not be extended or
waived.
2. An applicant may submit a written rebuttal, signed by the
applicant or the applicant's agent or attorney, to a notice of
untimely receipt. The Component concerned must receive the rebuttal
within 30 days of the date of the notice and may grant an extension
of up to an additional 30 days for good cause shown. The rebuttal
should:
i. Explain the points of, and reasons for, disagreement with the
notice.
ii. Have any documents referred to in the rebuttal attached.
iii. Include or have attached statements (that are attested to
be true and correct to the best of the individual's knowledge and
belief) by the applicant or other persons in support of the
rebuttal.
3. If the applicant does not submit a rebuttal within the time
permitted, the notice of untimely receipt is a final action and the
Component must return the application to the applicant with a notice
that the finding is final and the application may not be considered.
4. If the applicant submits a timely rebuttal, the Component
must consider the rebuttal.
i. If the Component finds that the application was received
within the required time limit, the Component must reverse its
finding of untimely receipt, notify the applicant in writing, and
process the application on its merits.
ii. If the Component does not reverse the finding of untimely
receipt, the Component must forward the record, including the
application, notice of untimely receipt, and rebuttal, to the
appropriate determining official (see paragraph C.1. to this
Appendix) for an initial determination on the issue of untimely
receipt. The Component does not need to investigate the merits of
the application before forwarding the record.
5. After making an initial determination on the issue of
untimely receipt, the determining official must follow the
procedures in paragraph D to this Appendix. In addition, if the
determining official finds that the application was timely, the
official may:
i. Return the application to the Component concerned for
processing on its merits according to this part, or
ii. Consider the application and make an initial determination
on its merits according to paragraph C.2. to this Appendix.
C. Initial Determinations
The standards in Appendix B to this part must be applied when
considering the merits of a waiver application. After making an
initial determination, the determining official must follow the
procedures at paragraph D to this Appendix.
1. The officials listed and referred to in this part as
determining officials shall consider waiver applications and take
the appropriate action described in paragraph C.2. to this Appendix.
These officials are identified as follows:
i. The Head of a non-DoD Component or designee for debts of
Uniformed Services personnel resulting from that Component's
activity.
ii. The Director, DoDEA or designee for debts of civilian
employees resulting from that Component's activity.
iii. The Director, NSA or designee for debts resulting from that
Component's activity.
iv. The Director, DFAS or designee for debts resulting from the
DoD Component activity not included in paragraphs C.1.ii. and
C.1.iii. to this Appendix.
2. The officials listed in paragraph C.1. to this Appendix may
make an initial determination for the following:
i. Whether or not a waiver application was received within three
years after the discovery of the erroneous payment.
ii. Deny a waiver application in its entirety.
iii. Grant all or part of a waiver application.
D. Processing After An Initial Determination
After making an initial determination, the determining official
must:
1. Notify the applicant. The notification must explain:
i. The determination and the reasons for it.
ii. The appropriate Component action to resolve the debt as a
consequence of the determination if it is or becomes a final action
(the finality of an initial determination is explained at paragraph
E to this Appendix).
iii. The appeal process (as explained in Appendix F to this
part) if the determination does not grant the entire application or
does not contain a finding of timely receipt.
2. Notify the Component concerned if the determining official is
not an official of the Component concerned when and if the
determination is a final action. The notice must explain:
i. The determination and its reasons.
ii. The appropriate Component action to resolve the debt as a
consequence of the determination.
E. When an Initial Determination Is Final
A final action is an initial determination that grants the
entire waiver application or finds that the application was timely
received. Also, an initial determination (including one of untimely
receipt) is a final action if the determining official does not
receive an appeal within 30 days of the date of the initial
determination (plus any extension of up to 30 additional days
granted by the determining official for good cause shown).
Appendix E to Part 284--Processing a Waiver Application When the Debt
Is More Than $1,500
A. Initial Component Processing
Upon receipt of a waiver application, the Component concerned
must:
1. Date stamp the application on the date received.
2. Determine whether the application was received within three
years after the discovery of the erroneous payment. If the
application was not timely, follow the procedures in paragraph B in
this part.
3. Investigate the circumstances relating to the erroneous
payment.
4. Refer the waiver application to the appropriate determining
official (see paragraph C to this Appendix) who after applying the
standards in Appendix B in this part may either:
i. Deny the application in its entirety, if appropriate, and
follow the procedures in Appendix D to this part, or
ii. Refer the application with a recommendation that part or all
of the application be granted to the DOHA for consideration and an
initial determination under paragraph C to this Appendix. The
determining official must send the entire record and prepare and
submit a recommendation and administrative report (as explained in
paragraphs D and E to this Appendix) with the application.
B. Untimely Waiver Applications
When the Component concerned determines that a waiver
application was not received within three years after the erroneous
payment was discovered, the Component must send the applicant a
notice of untimely receipt.
1. The notice must:
i. Cite the applicable statute and explain the reasons for the
finding of untimely receipt.
ii. State that the application was not received within the
statutory time limit and may not be considered unless that finding
is reversed on appeal.
iii. Explain that the applicant may submit a rebuttal to the
finding of untimely receipt (as explained in paragraph B.2. to this
Appendix.).
iv. State that the statutory time limit may not be extended or
waived.
2. An applicant may submit a written rebuttal, signed by the
applicant or the applicant's agent or attorney, to a notice of
untimely receipt. The Component concerned must receive the rebuttal
within 30 days of the date of the notice and may grant an extension
of up to an additional 30 days for good cause shown. The rebuttal
should:
i. Explain the points of, and reasons for, disagreement with the
notice.
ii. Have any documents referred to in the rebuttal attached.
iii. Include or have attached statements (that are attested to
be true and correct to the best of the individual's knowledge and
belief) by the applicant or other persons in support of the
rebuttal.
[[Page 59379]]
3. If the applicant does not submit a rebuttal within the time
permitted, the notice of untimely receipt is a final action and the
Component must return the application to the applicant with a notice
that the finding is final and the application may not be considered.
4. If the applicant submits a timely rebuttal, the Component
must consider the rebuttal:
i. If the Component finds that the application was received
within the required time limit, the Component must reverse its
finding of untimely receipt, notify the applicant in writing, and
process the application on its merits.
ii. If the Component does not reverse the finding of untimely
receipt, the Component must forward the record, including the
application, notice of untimely receipt, and rebuttal, to the
appropriate determining official (see paragraph C.1. of Appendix D
to this part) for an initial determination on the issue of untimely
receipt. The Component does not need to investigate the merits of
the application before forwarding the record.
5. After making an initial determination on the issue of
untimely receipt, the determining official must follow the
procedures in Appendix D to this part. In addition, if the
determining official finds that the application was timely, the
official may:
i. Return the application to the Component concerned for
processing on the merits according to this part, or
ii. Make a recommendation to the DOHA to grant all or part of
the application as described in paragraph D to this Appendix.
C. Initial Determinations
The standards in Appendix B to this part must be applied when
considering the merits of a waiver application. After making an
initial determination, the DOHA must follow the procedures at
paragraph F to this Appendix and may take the following actions
regarding waiver applications referred under paragraph A.4.ii. or
B.5.ii. to this Appendix:
1. Make an initial determination denying a waiver application in
its entirety; or
2. Make an initial determination granting all or part of a
waiver application.
D. Recommendation to the DOHA To Grant All or Part of an Application
Referrals to the DOHA must include the entire record along with
the recommendation and administrative report described in paragraph
E to this Appendix. The record and the report must be sent to:
Defense Office of Hearings and Appeals, Claims Division, P.O. Box
3656, Arlington, VA 22203-1995.
E. Recommendation and Administrative Report
The recommendation and administrative report required by
paragraph D to this Appendix must describe the recommended action
(and its reasons) and the following:
1. The names and mailing addresses of each employee, member, or
other person from whom collection is sought, or a statement that the
person cannot reasonably be located.
2. The aggregate amount of the debt, including an itemization
showing the elements of the aggregate amount.
3. The date the erroneous payment was discovered.
4. The date the recipient was notified of the error and a
statement of the erroneous amounts paid before and after receipt of
such notice.
5. A summary of the facts and circumstances describing how the
erroneous payment occurred; the recipient's knowledge of the
erroneous nature of the payment; the steps taken by the recipient to
bring the matter to the attention of the appropriate official; and
the Component's response, if any.
6. A finding of whether there is any indication of fraud,
misrepresentation, fault, or lack of good faith on the part of the
applicant and the reasons for such a finding.
7. Legible copies or the originals of supporting documents, such
as leave and earnings statements, notifications of personnel
actions, travel authorizations and vouchers, and military orders.
8. Statements (that are attested to be true and correct to the
best of the individual's knowledge and belief) of the applicant or
other persons in support of the application.
F. Processing After an Initial Determination
After making an initial determination, the DOHA must:
1. Notify the applicant if all or part of the waiver application
is denied. The notification must explain:
i. The determination and the reasons for it.
ii. The appropriate Component action to resolve the debt as a
consequence of the determination if it is or becomes a final action
(the finality of an initial determination is explained at paragraph
G to this Appendix).
iii. The appeal process (as explained in Appendix F to this
part) if the determination does not grant the entire application or
does not contain a finding of timely receipt.
2. Notify the Component concerned when and if the determination
is a final action. The notice must explain:
i. The determination and its the reasons.
ii. The appropriate Component action to resolve the debt as a
consequence of the determination.
G. When an Initial Determination Is Final
A final action is an initial determination that grants the
entire waiver application or finds that the application was timely
received. Also, an initial determination (including one of untimely
receipt) is a final action if the determining official does not
receive an appeal within 30 days of the date of the initial
determination (plus any extension of up to 30 additional days
granted by the determining official for good cause shown).
Appendix F to Part 284--Appeals
A. Who May Appeal
An applicant may appeal if an initial determination denies all
or part of a waiver application or finds that the application was
not received by the Component concerned within the time limit
required by statute.
B. When and Where To Submit an Appeal
1. When the determining official is not in the DOHA, the
determining official must receive an applicant's appeal within 30
days of the date of the initial determination. The determining
official may extend this period for up to an additional 30 days for
good cause shown. No appeal may be accepted after this time has
expired. The appeal shall be processed under the procedures in
paragraphs C through K to this Appendix.
2. When the determining official is in the DOHA, the DOHA must
receive an applicant's appeal within 30 days of the date of the
initial determination. The DOHA may extend this period for up to an
additional 30 days for good cause shown. No appeal may be accepted
after this time has expired. The appeal shall be considered to be a
request for reconsideration and shall be processed under the
procedures in paragraphs L through Q of this Appendix.
C. Content of an Appeal
No specific format for an appeal is required however it must be
written and signed by the applicant, the applicant's authorized
agent, or the applicant's attorney. In addition, it should:
1. Provide the applicant's mailing address.
2. Provide the applicant's telephone number.
3. Provide the applicant's social security number when required
by the Component concerned.
4. Identify specific:
i. Errors or omissions of material and relevant facts.
ii. Legal or equitable (under the standards in Appendix B to
this part) considerations that were overlooked or misapplied.
iii. Conclusions that were arbitrary, capricious, or an abuse of
discretion.
5. Present evidence of the correct or additional facts alleged.
6. Explain the reasons why the findings or conclusions should be
reversed or modified.
7. Have attached copies of documents referred to in the appeal.
8. Include or have attached statements (that are attested to be
true and correct to the best of the individual's knowledge and
belief) by the applicant or other persons in support of the appeal.
D. Determining Official's Review
The determining official must review an applicant's appeal, and
affirm, modify, or reverse the initial determination.
1. When the determining official grants the entire waiver appeal
or grants the application to the extent requested in the appeal
after review of an appeal in a case involving a debt in the
aggregate amount of $1,500 or less, the determining official must
notify the applicant in writing and the Component concerned if the
determining official is not an official of the Component concerned.
The notice must explain the appropriate action to resolve the debt.
This is a final action.
2. When the determining official finds that the application was
received within the time limit required by statute after review of
an appeal concerning the untimely receipt of the waiver application,
the determining official must notify the applicant in writing and
take the appropriate action under paragraph B.5. of Appendix D to
this part or paragraph B.5. of Appendix E to this part, as
appropriate.
[[Page 59380]]
3. In all other cases, the determining official must forward the
appeal to the DOHA according to paragraph E. of this Appendix. The
determining official must prepare a recommendation and
administrative report (as explained in paragraph F to this Appendix)
and send a copy of the administrative report to the applicant with a
notice that the applicant may submit a rebuttal to the determining
official (as explained in paragraph G to this Appendix).
4. The determining official must date stamp the applicant's
rebuttal on the date it is received.
E. Submission of Appeal to the DOHA
The determining official must send the entire record along with
the recommendation and administrative report required by paragraph F
to this Appendix no earlier than 31 days after the date of the
administrative report or the day after the applicant's rebuttal
period, as extended, expires, to the following address: Defense
Office of Hearings and Appeals, Claims Division, P.O. Box 3656,
Arlington, Virginia 22203-1995.
F. Recommendation and Administrative Report
The recommendation and administrative report required by
paragraph D.3. to this Appendix must describe the recommended action
(and its reasons) and include:
1. The names and mailing addresses of each employee, member, or
other person from whom collection is sought, or a statement that the
person cannot reasonably be located.
2. The aggregate amount of the debt, including an itemization
showing the elements of the aggregate amount.
3. The date the erroneous payment was discovered.
4. The date the recipient was notified of the error and a
statement of the erroneous amounts paid before and after receipt of
such notice.
5. A summary of the facts and circumstances describing how the
erroneous payment occurred; the recipient's knowledge of the
erroneous nature of the payment; the steps taken by the recipient to
bring the matter to the attention of the appropriate official; and
the Component's response;
6. A finding of whether there is any indication of fraud,
misrepresentation, fault, or lack of good faith on the part of the
applicant and the reasons for such a finding.
7. Legible copies or the originals of supporting documents, such
as leave and earnings statements, notifications of personnel
actions, travel authorizations and vouchers, and military orders.
8. Statements (that are attested to be true and correct to the
best of the individual's knowledge and belief) of the applicant or
other persons in support of the application.
G. Applicant's Rebuttal
An applicant may submit a written rebuttal, signed by the
applicant or the applicant's agent or attorney, in response to the
recommendation and administrative report. The rebuttal must be
received by the determining official within 30 days of the date of
the recommendation and administrative report. The determining
official may grant an extension of up to an additional 30 days for
good cause shown. The rebuttal should include:
1. An explanation of the points and reasons for disagreeing with
the report.
2. The file reference number.
3. Any documents referred to in the rebuttal.
4. Statements (that are attested to be true and correct to the
best of the individual's knowledge and belief) by the applicant or
other persons in support of the rebuttal.
H. DOHA Appeal Decision
Except as provided in paragraph P to this Appendix, the DOHA
must base its decision on the written record, including the
recommendation and administrative report and any rebuttal by the
applicant. The written decision must:
1. Affirm, modify, reverse, or remand the initial determination
and decide the application on its merits or return the application
to the Component concerned for investigation and processing for an
initial determination on the merits according to Appendix D to this
part.
2. State the amount of the waiver application that is granted
and the amount denied and/or that the application was or was not
received within the statutory time limit, as appropriate.
3. Explain the reasons for the decision.
I. Processing After the Appeal Decision
After issuing an appeal decision, the DOHA must:
1. Send the applicant the decision and notify the applicant of:
i. The appropriate Component action to resolve the debt as a
consequence of the decision if it is or becomes a final action (as
explained in paragraph J to this Appendix).
ii. The procedures under this Appendix to request
reconsideration (as explained in paragraphs K through M to this
Appendix), if the decision does not grant the waiver application to
the extent requested, or does not contain a finding of timely
receipt, when applicable.
2. Notify the Component concerned of the decision and the
appropriate Component action to resolve the debt as a consequence of
the decision.
J. Finality of a DOHA Appeal Decision
An appeal decision that grants the waiver application to the
extent requested on appeal, or that finds that the application was
timely received, when applicable, is a final action when issued. An
appeal decision is a final action if the DOHA does not receive a
request for reconsideration within 30 days of the date of the appeal
decision (plus any extension of up to 30 additional days granted by
the DOHA for good cause shown). Note: In the case of a DOHA appeal
decision issued before the effective date of this part that denied
all or part of the waiver application, a request for reconsideration
by the GC, DoD may be submitted within 60 days of the effective date
of this part. The GC DoD shall consider such requests and affirm,
modify, reverse, or remand the DOHA appeal decision. Requests for
reconsideration by the GC, DoD received more than 60 days after the
effective date of this part shall not be accepted. Requests must be
submitted to the address in paragraph E.5. to this Appendix. The
provisions of paragraph M to this Appendix apply.
K. Who May Request Reconsideration
An applicant may request reconsideration of a DOHA appeal
decision.
L. When and Where To Submit a Request for Reconsideration
The DOHA must receive a request for reconsideration within 30
days of the date of the appeal decision.\2\ The DOHA may extend this
period for up to an additional 30 days for good cause shown. No
request for reconsideration may be accepted after this time has
expired. A request for reconsideration must be sent to the DOHA at
the address in paragraph E to this Appendix.
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\2\ Request for reconsideration by the GC, DoD must be received
by the DOHA within 60 days of the effective date of this Instruction
as explained in paragraph J of this appendix for appeal decisions
issued before the effective date of this Instruction.
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M. Content of a Request for Reconsideration
The requirements of paragraph C to this Appendix for the content
of an appeal apply to a request for reconsideration.
N. DOHA's Review of a Request for Reconsideration
No earlier than 31 days after the date of the appeal decision or
the day after the last period for submitting a request, as extended,
expires, the DOHA must:
1. Consider a request for reconsideration.
2. Affirm, modify, or reverse the appeal decision.
3. Prepare a response that explains the reasons for the finding.
4. Send the response to the applicant and the Component
concerned and notify them of the appropriate action on the debt.
O. Finality of a DOHA Reconsideration Decision
The response is a final action. It is precedent in the
consideration of all waiver applications covered by this part unless
otherwise stated in the document.
P. Consideration of Appeals and Requests for Reconsideration
When considering an appeal or request for reconsideration, the
DOHA may:
1. Take administrative notice of matters that are generally
known or are capable of confirmation by resort to sources whose
accuracy cannot reasonably be questioned.
2. Remand a matter to the Component with instructions to provide
additional information.
Dated: October 3, 2006.
L.M. Bynum,
OSD Federal Register Liaison Officer, DoD.
[FR Doc. E6-16649 Filed 10-6-06; 8:45 am]
BILLING CODE 5001-06-P