Small DOHA Seal

2007 Military Personnel Redacted Decisions

 

      These 57 redacted Board decisions involve claims related to uniformed service members' pay, allowances, travel, transportation, retired pay, and survivor benefits. The uniformed service member may be a member of a Service within DoD, like the Army, or one outside of DoD like the Public Health Service. This group of decisions also includes waiver applications which result from the erroneous overpayment of these pay, allowances or other benefits to, or on behalf of, a service member.

Other years: 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

claim; equalization pay

12/20/2007

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


claim; equalization pay; timeliness

12/14/2007

Under Department of Defense Instruction 1340.21 (Instruction),  E7.13, the Defense Office of Hearings and Appeals (DOHA) must receive a request for reconsideration within 30 days of the appeal decision, plus an additional 30 days for good cause shown. The Board cannot consider the substance of any request for reconsideration unless the claimant demonstrates, or the record otherwise contains, clear and convincing evidence of such good cause.


waiver of indebtedness; child support garnishment

12/12/2007

A retired member's child support garnishments erroneously continued to be paid on his behalf. It is not against equity and good conscience to deny waiver of the overpayment because the member received a benefit from the funds erroneously paid on his behalf.


claim; equalization pay

12/4/2007

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


waiver of indebtedness

11/30/2007

When a member is aware or should be aware that he is receiving payments in excess of his entitlements, he does not acquire title to the excess amounts and has a duty to hold them for eventual repayment.


claim; equalization pay; timeliness

11/29/2007

Under Department of Defense Instruction 1340.21 (Instruction),  E7.13, the Defense Office of Hearings and Appeals (DOHA) must receive a request for reconsideration within 30 days of the appeal decision. While DOHA may extend this period for up to 30 additional days for good cause shown, no request for reconsideration may be accepted by DOHA after this time. The Instruction does not provide for a notice of appeal procedure, and such a procedure cannot be used to extend time beyond that provided in the Instruction.


waiver of indebtedness; timeliness of reconsideration request

11/26/2007

Under the provisions of Department of Defense Instruction 1340.23, the Defense Office of Hearings and Appeals generally must receive a claimant's request for reconsideration of an appeal decision within 30 days of the appeal decision.


waiver of indebtedness

11/26/2007

When a member is aware or should be aware that he is receiving payments in excess of his entitlements, he does not acquire title to the excess amounts and has a duty to hold them for eventual repayment.


waiver of indebtedness; fault

11/21/2007

Under 10 U.S.C.  2774, the government may waive the collection of erroneous payments of pay and allowances, or erroneous payments arising out of travel and transportation allowances, to or on behalf of the member, if collection would be against equity and good conscience and not in the best interest of the United States. However, there must be no indication that the erroneous payment was solely or partially the result of the fault of the member.


waiver of indebtedness; Selective Reenlistment Bonus

11/15/2007

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


waiver of indebtedness; erroneous payment

11/14/2007

Under 10 U.S.C.  2774, we have authority to waive the collection of erroneous payments of pay and allowances to a member under certain circumstances, but the amount requested for waiver must be an erroneous payment of pay and allowances, and not a claim by the member for amounts beyond such erroneous payments.


waiver of indebtedness

10/30/2007

1. A cadet of the United States Military Academy (USMA) who failed to complete his course of instruction and subsequent military service obligation due to separation from the USMA was required to reimburse the government for the cost of advanced education payments provided to him. His resulting debt for the cost of his education may not be considered for waiver under 10 U.S.C.  2774, because his educational expenses are not considered pay and allowances under the statute. 2. We will not disturb the Army's determination that a cadet of the USMA breached his service agreement and subsequently is liable for the cost of his education under 10 U.S.C.  2005. This type of matter is in the discretion of the Secretary of the Army.


claim; Equalization Pay

10/24/2007

Under Department of Defense Instruction 1340.21,  E7.13, DOHA must receive a request for reconsideration within 30 days of the appeal decision. While DOHA may extend this period for up to 30 additional days for good cause shown, no request for reconsideration may be accepted by DOHA after this time has expired.


claim; Equalization Pay

10/24/2007

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


waiver of indebtedness

10/10/2007

Under the provisions of Department of Defense Instruction 1340.23, the Defense Office of Hearings and Appeals generally must receive a claimant's request for reconsideration of an appeal decision within 30 days of the appeal decision.


waiver of indebtedness-knowledge

10/4/2007

Waiver of an indebtedness that accrued when the government failed to collect Survivor Benefit Plan (SBP) premiums from a member is not appropriate when the member had requested coverage for his spouse and therefore knew or had reason to know that his retired pay should have been reduced to cover the premiums for SBP participation.


waiver of indebtedness-knowledge; waiver of indebtedness-erroneous debt

9/13/2007

1. When a member is aware or should be aware that he is receiving payments in excess of his entitlements, he does not acquire title to the excess amounts and has a duty to hold them for eventual repayment. 2. In order to be considered for waiver, a payment must be erroneous at the time it is made. An advance payment that a member receives for payment of rent, which was valid when made, is not erroneous for the purposes of 10 U.S.C.  2774.


waiver of indebtedness-knowledge; waiver of indebtedness-other applicants

9/11/2007

1. When a member is aware or should be aware that she is receiving payments in excess of her entitlements, she does not acquire title to the excess amounts and has a duty to hold them for eventual repayment. 2. Each waiver application is considered on the basis of its own merits, and this Office has no authority to investigate a waiver applicant's assertions that another person received similar overpayments and is not repaying them.


waiver of indebtedness-timeliness of reconsideration request

9/6/2007

Under the provisions of Department of Defense Instruction 1340.23, the Defense Office of Hearings and Appeals generally must receive a claimant's request for reconsideration of an appeal decision within 30 days of the appeal decision.


waiver of indebtedness-knowledge, mental/physical incapacity

9/4/2007

When a member is aware or should be aware that he is receiving payments in excess of his entitlements, he does not acquire title to the excess amounts and has a duty to hold them for eventual repayment. If the member asserts that he could not have been aware of the receipt of excess entitlements because of his mental or physical condition at the time, he must demonstrate by clear and convincing evidence, in the form of medical records and other documentary proof, that during that time he was in such poor mental or physical health that it was unlikely that he knew or could have known of the overpayment, or that he was otherwise unable to attend to ordinary financial affairs.


waiver of indebtedness-knowledge

08/28/2007

When a member knows or should know that he is being overpaid, he has a duty to set aside the erroneously paid funds for repayment.


waiver of indebtedness-knowledge

8/27/2007

Waiver is not appropriate when a member knows or should know that he is being paid in excess of his entitlements.


Claim-burden of proof

8/21/2007

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


Claim-per diem for TDY in same PDS

8/10/2007

In 2003, an Army National Guard member volunteered for an extended active duty Active Guard Reserve (AGR) assignment with a permanent change of station from his home state to Arlington, Virginia. The AGR tour was a dependent-accompanied tour, with transportation of household goods authorized, and the member purchased a home in Virginia while on that tour. In 2006, the member volunteered for temporary duty on a contingency operation at the Pentagon, in the same permanent duty station as the AGR tour. The temporary duty assignment was unaccompanied, and the transportation of household goods was not authorized. The orders for the AGR tour were rescinded, but the member was authorized under the rescission orders to transport his household goods to his home state if transportation occurred within 180 days. The member did not leave Virginia and return his family to his home state, and they continued to reside at his Virginia residence. In these circumstances, the payment of per diem for the contingency operation tour is doubtful, and we have no authority to extend his household good shipment entitlement after he failed to exercise it within 180 days.


Claim-burden of proof

8/6/2007

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


waiver of indebtedness-dilatory recovery

8/6/2007

When a member knows that he is being overpaid, he has a duty to set aside the erroneously paid funds for repayment, even if the government fails to act after notification. The government has the right to recover such payments irrespective of the dilatory recovery efforts of its agents.


Claim-burden of proof; Claim-timely reconsideration

7/25/2007

1. Under the provisions of Department of Defense Directive 1340.21, the Defense Office of Hearings and Appeals generally must receive a claimant's request for reconsideration of an appeal decision within 30 days of the appeal decision. 2. The burden of proving the existence of a valid claim against the United States is on the person asserting the claim.


waiver of indebtedness

7/24/2007

1. When BAH is paid erroneously, waiver is appropriate only to the extent that the overpayments were applied by the recipient for the purposes intended. 2. A waiver generally is not appropriate when a recipient of a significant unexplained increase in pay and allowances, or any other unexplained payment of pay or allowances, does not attempt to obtain a reasonable explanation from an appropriate official.


Claim-timely reconsideration; Claim-burden of proof

7/23/2007

1. Under the provisions of Department of Defense Directive 1340.21, the Defense Office of Hearings and Appeals generally must receive a claimant's request for reconsideration of an appeal decision within 30 days of the appeal decision. 2. The burden of proving the existence of a valid claim against the United States is on the person asserting the claim.


Claim-burden of proof

7/19/2007

Even though a claim is not barred by the Barring Act, the burden is still on the claimant to prove his claim by clear and convincing evidence.


military member claim; TDY

6/13/2007

A reservist who was performing Temporary Duty (TDY) in the United States away from his home of record was ordered to Kuwait on Temporary Change of Station orders, the equivalent of TDY. His entitlement to lodging expenses at the first TDY site ceased because he was no longer performing TDY duty there.


waiver of indebtedness; basic allowance for housing

6/5/2007

When a member knows or should know that his receipt of Basic Allowance for Housing at the with-dependent rate is questionable, waiver of the amounts he erroneously receives is not proper.


waiver of indebtedness

5/10/2007

A member was receiving basic allowance for housing (BAH) when she was medically evacuated and subsequently hospitalized. When she was released from the hospital, she was assigned government quarters. The overpayment arose when she continued to receive BAH. This Office waived a portion of the member's debt. When the member moved into government quarters, she should not have expected to receive BAH. In addition, she did not spend the erroneous payments on current housing expenses, because quarters were provided to her. In the absence of a clear and unambiguous written opinion allowing such payments, she cannot be said to have reasonably relied on erroneous advice regarding her entitlement to BAH and furthermore did not spend the amount received on its intended purpose. Therefore, waiver under 10 U.S.C.  2774 is not appropriate.


military member claim; untimely

5/4/2007

Under the provisions of Department of Defense Directive 1340.21, the Defense Office of Hearings and Appeals generally must receive a claimant's request for reconsideration of an appeal decision within 30 days of the appeal decision.


claim; untimely

5/1/2007

1. Under the provisions of Department of Defense Directive 1340.21, the Defense Office of Hearings and Appeals generally must receive a claimant's request for reconsideration of an appeal decision within 30 days of the appeal decision. 2. The burden of proving the existence of a valid claim against the United States is on the person asserting the claim.


waiver of indebtedness

4/30/2007

When a member ordered to active duty receives full per diem and it is later determined that he was not entitled to it because his home of record was within the commuting distance of his duty station, erroneous payments paid to the member can be waived only to the extent the money was spent for its intended purpose.


service member claim for TLE

4/25/2007

While stationed overseas a member planning his retirement from the United States Air Force was erroneously advised that he was entitled to temporary lodging expense (TLE) upon his return to his home of record. For a member in this situation, payment of TLE is not authorized under regulation or statute. Erroneous information does not provide a basis for payment of allowances, since the government is not liable for erroneous information provided by its officers, agents, and employees.


waiver of indebtedness

4/6/2007

DOD Instruction 1340.23 paragraph E8.12 provides that DOHA must receive a request for reconsideration of an appeal decision within 30 days of the date of the appeal decision. A claimant's argument that the 30 days should be measured from the date she receives the appeal decision, and not from the date of the appeal decision, is inconsistent with the plain meaning of the language in the Instruction. Our Office must actually receive the request within 30 days of the date of the appeal decision.


waiver of indebtedness

4/4/2007

Waiver of a debt under 5 U.S.C. 5584 is not appropriate when the employee knows or should be aware that she was receiving pay to which she was not entitled.


waiver of indebtedness

4/4/2007

Financial hardship is not an appropriate basis for waiver relief under 10 U.S.C. 2774.


military member claim; pay and allowances; correction of military records

4/4/2007

A member must prove his claim by clear and convincing evidence on the written record that the United States is liable to him for the amount claimed. Absent a final computation of the member's pay and allowances incident to the correction of his military records by the Defense Finance and Accounting Service (DFAS), the member's claim is premature.


waiver of indebtedness

3/27/2007

A Reservist was released from active duty and placed on medical hold. However, premiums for the member's Servicemembers' Group Life Insurance (SGLI), Family SGLI (FSGLI) and Traumatic SGLI (TSGLI) continued to be paid on his behalf. It is not against equity and good conscience to deny waiver of the total amount of the premiums because the member had the benefit of the coverage under SGLI, FSGLI and TSGLI.


waiver of indebtedness

3/20/2007

When a member is aware or should be aware that he is receiving payments in excess of his entitlements, he does not acquire title to the excess amounts and has a duty to hold them for eventual repayment.


waiver of indebtedness

3/15/2007

A discharged member's debt arising from advance pay may not be considered for waiver under 10 U.S.C. 2774 because the advance pay was not erroneous when paid. However, because the final separation payment should have been applied to his debt, the amount he received at separation may be considered for waiver. Waiver of that amount is denied because he should have questioned his entitlement to a final separation payment in light of his debt for advance pay.


waiver of indebtedness; SBP

3/13/2007

When the member retired, he elected Survivor Benefit Plan (SBP) coverage for his spouse and children. He subsequently divorced and remarried. He notified the Defense Finance and Accounting Service (DFAS) that he remarried and requested coverage for his new spouse. Under the law, his new spouse became his SBP beneficiary one year after their marriage. SBP premiums should have then been deducted from his retired pay, but they were not. If the member had died during the period when premiums were not being deducted, his wife would have become eligible for an SBP annuity. Since the member received the benefit of SBP coverage, waiver is not appropriate.


waiver of indebtedness

3/6/2007

A member continued to receive active duty pay and allowances after her separation. Waiver of the resulting debt under 10 U.S.C. 2774 is not appropriate because the member was aware that she was receiving amounts to which she was not entitled.


wavier of indebtedness

3/1/2007

A member continued to receive active duty pay after her discharge. Waiver of the resulting debt under 10 U.S.C. 2774 is not appropriate since the member should have been aware she was receiving amounts to which she was not entitled.


waiver of indebtedness

3/1/2007

When a member is erroneously ordered to active duty training with per diem, and it is later determined that he is not entitled to per diem, waiver under 10 U.S.C. 2774 is appropriate only for the amounts actually expended in reliance on the erroneous authorization.


waiver of indebtedness; survivor's benefit plan (SBP)

2/28/2007

When the member retired, he was not married. He subsequently married and filed an application within one year of his marriage for enrollment in the Survivor's Benefit Plan (SBP) for his new spouse. SBP premiums should have then been deducted from his retired pay, but they were not. If the member had died during the period when premiums were not being deducted, his wife would have become eligible for an SBP annuity. Since the member received the benefit of SBP coverage, waiver is not appropriate.


claim; death gratuity of deceased member

2/27/2007

1. The burden of proving the existence of a valid claim against the United States is on the person asserting the claim. Where records necessary to establish or refute a claim are unavailable, and the claimant, in turn, has failed to provide proof of entitlement, we have no alternative but to disallow the claim. 2. Under the provisions of Department of Defense Directive 1340.21, the Defense Office of Hearings and Appeals generally must receive a claimant's request for reconsideration of an appeal decision within 30 days of the appeal decision.


waiver of indebtedness; VA compensation

2/8/2007

A member's retired pay was not reduced by the amount of the compensation he was receiving from the Department of Veterans Affairs (VA). Upon signing an application for VA Compensation, the member is considered to be on notice that when he became entitled to retired pay it would be reduced by the amount of his VA disability compensation. Therefore, waiver of the overpayment is not appropriate because he knew or should have known that he was not entitled to the full amount of his retired pay.


waiver of indebtedness

1/30/2007

A member received advance per diem payments in connection with his active duty tour. When the member submitted his travel voucher for settlement, it was determined that his legitimate expenses were less than what he received in advance per diem payments. He was thus in debt for the difference between his legitimate expenses and the total amount of advance payments. The difference between his legitimate expenses and advances cannot be considered for waiver because the advances were proper payments when made. Waiver of the further payment is not proper because the member should have known that he was not entitled to further reimbursement.


waiver of indebtedness

1/25/2007

When a member is aware or should be aware that she is receiving payments in excess of her entitlements, she does not acquire title to the excess amounts and has a duty to hold them for eventual repayment.


waiver of indebtedness

1/24/2007

When a member is ordered to temporary duty travel, and it is later determined that such order was improper, erroneous payments paid thereafter can be waived only to the extent the money was spent for its intended purpose.


waiver of indebtedness

1/23/2007

A service member who knows that he received an erroneous payment of pay and allowances is obliged to return that amount, or set aside an equivalent amount for refund to the government when the error is corrected.


waiver; request for reconsideration; timeliness

1/22/2007

On December 13, 2006, this Office declined to reconsider the member's waiver request because it was not submitted within 30 days of the date of the appeal decision. However, after further review of the record evidence as a whole, the member has shown good cause for the delay in submitting his reconsideration request, and we will thus consider the member's request for reconsideration.


waiver of indebtedness

1/4/2007

1. When a member is aware or should be aware that he has received an overpayment, he does not acquire title to the excess payments, and he has a duty to hold the money for eventual repayment. In such instances, waiver is not proper under 10 U.S.C. 2774. 2. Financial hardship is not a factor for consideration in determining whether a waiver is appropriate under 10 U.S.C. 2774.


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Last updated 23 Aug 2014