[Federal Register Volume 69, Number 124 (Tuesday, June 29, 2004)]
[Rules and Regulations]
[Pages 38843-38848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14650]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 282

RIN 0790-AG89


Procedures for Settling Personnel and General Claims and 
Processing Advance Decision Requests

AGENCY: Defense Office of Hearings and Appeals, Office of the General 
Counsel of the Department of Defense.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule implements policy and prescribes procedures for 
processing and settling personnel and general claims and for processing 
requests for an advance decision. 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.

EFFECTIVE DATE: May 12, 2004.

FOR FURTHER INFORMATION CONTACT: Michael Hipple, 703-696-8510.

SUPPLEMENTARY INFORMATION: A proposed rule was published Thursday, 
November 14, 2002 (67 FR 68957-68963). No comments were received.

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that this rule is not a significant rule 
because it does not (1) have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy; a 
sector of the economy; productivity; competition; jobs; the 
environment; public health or safety; or State, local, or tribal 
governments or communities; (2) create a serous inconsistency or 
otherwise interfere with an action taken or planned by another Agency; 
(3) materially alter the budgetary impact on entitlements, grants, user 
fees, or loan programs, or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive order.

Public Law 96-354, ``Regulatory Flexibility Act''

    It has been certified that this rule does not have a significant 
economic impact on a substantial number of small entities because this 
rule affects members of the Uniformed Services, Federal employees and 
transportation carriers and provides procedures by which their claims 
against the United States will be adjudicated. The same minimal 
requirements for submitting a claim are applicable to members and 
transportation carriers.

Public Law 96-511, ``Paperwork Reduction Act''

    It has been certified that this rule does not impose information 
collection requirements.

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been certified that this rule does not involve a Federal 
mandate that may result in the expenditure by State, local and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more and that such rulemaking will not significantly or 
uniquely affect small governments.

Executive Order 13132, ``Federalism''

    It has been certified that this rule does not have federalism 
implications. This rule does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 32 CFR Part 282

    Administrative practice and procedure, Armed forces, Claims.

0
Accordingly, 32 CFR part 282 is added to subchapter M to read as 
follows:

PART 282--PROCEDURES FOR SETTLING PERSONNEL AND GENERAL CLAIMS AND 
PROCESSING ADVANCE DECISION REQUESTS

Sec.
282.1 Purpose.
282.2 Applicability and scope.
282.3 Definitions.
282.4 Policy.
282.5 Responsibilities.
Appendix A to Part 282--Guidance
Appendix B to Part 282--Claims Description
Appendix C to Part 282--Submitting a Claim
Appendix D to Part 282--Processing a Claim
Appendix E to Part 282--Appeals
Appendix F to Part 282--Requests for an Advance Decision

    Authority: 5 U.S.C. 552; 10 U.S.C. 2575; 10 U.S.C. 2771; 10 
U.S.C. 4712; 10 U.S.C. 9712; 24 U.S.C. 420; 31 U.S.C. 3529; 31 
U.S.C. 3702; 32 U.S.C. 714; and 37 U.S.C. 554.


Sec.  282.1  Purpose.

    This part implements policy under 32 CFR part 281 and prescribes 
procedures for processing and settling personnel and general claims 
under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 
U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, 32 U.S.C. 714 and for 
processing requests for an advance decision under 31 U.S.C. 3529.


Sec.  282.2  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 the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, and all other 
organizational entities in 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, and 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 (hereafter 
referred to collectively as ``the non-DoD Components'').


Sec.  282.3  Definitions.

    (a) Armed Forces. The Army, the Navy, the Air Force, the Marine 
Corps, and the Coast Guard.
    (b) Claim. A demand for money or property under one of the 
following statutes: 31 U.S.C. 3702, 10 U.S.C. 2575,

[[Page 38844]]

10 U.S.C. 2771, 24 U.S.C. 420, 10 U.S.C. 4712, 10 U.S.C. 9712, 37 
U.S.C. 554, or 32 U.S.C. 714.
    (c) 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.
    (d) 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 from whose 
activity a claim arose.
    (e) Final Action. A finding by the appropriate official under this 
part concerning a claim from which there is no right to appeal or 
request reconsideration, or concerning which the time limit prescribed 
in this part for submitting an appeal or request for reconsideration 
has expired without such a submission.
    (f) Member. A member or former member of the Uniformed Services.
    (g) Secretary Concerned. The Secretary of the Army, addressing 
matters concerning the Army. The Secretary of the Navy, addressing 
matters concerning the Navy, the Marine Corps, and the Coast Guard when 
it is operating as a Service in the Navy. The Secretary of the Air 
Force, addressing matters concerning the Air Force. The Secretary of 
Homeland Security, addressing matters concerning the Coast Guard when 
it is not operating as a Service in the Navy. The Secretary of Health 
and Human Services, addressing matters concerning the PHS. The 
Secretary of Commerce, addressing matters concerning the NOAA.
    (h) Settlement. A claim and the amount due that is administratively 
determined to be valid.
    (i) Uniformed Services. The Army, the Navy, the Air Force, the 
Marine Corps, the Coast Guard, and the Commissioned Corps of the PHS 
and the NOAA.


Sec.  282.4  Policy.

    It is DoD policy that:
    (a) Claims shall be settled and advance decisions rendered in 
accordance with all pertinent statutes and regulations, and after 
consideration of other relevant authorities.
    (b) This part applies to certain claim settlement and advance 
decision functions that, by statute or delegation, are vested in the 
Department of Defense or the Secretary of Defense. Appendix B to this 
part describes the claims included under these functional authorities.


Sec.  282.5  Responsibilities.

    (a) The General Counsel of the Department of Defense (GC, DoD), or 
designee, shall:
    (1) Upon the request of the Director, Defense Office of Hearings 
and Appeals (DOHA), consult on, or render legal opinions concerning, 
questions of law that arise in the course of the performance of the 
Director's responsibilities under paragraph (b) of this section.
    (2) Render advance decisions under 31 U.S.C. 3529 and oversee the 
submission of requests for an advance decision arising from the 
activity of a DoD Component that are addressed to the Director of the 
Office of Personnel Management or the Administrator General Services in 
accordance with this part.
    (b) The Director, Defense Office of Hearings and Appeals (DOHA), or 
designee, under the GC, DoD (as the Director, Defense Legal Services 
Agency), shall:
    (1) Consider, and grant or deny, a request by the Secretary 
concerned under 31 U.S.C. 3702(e) to waive the time limit for 
submitting certain claims in accordance with 32 CFR part 281 and this 
part.
    (2) Consider appeals from an initial determination, and affirm, 
modify, reverse, or remand the initial determination in accordance with 
32 CFR part 281, this part, and relevant DoD Office of General Counsel 
opinions.
    (c) The Heads of the DoD Components, or designees, shall:
    (1) Process claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 
2771, 24 U.S.C. 420, 10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, and 
32 U.S.C. 714 in accordance with this part.
    (2) Ensure that requests for an advance decision that originate in 
their organizations are prepared and submitted in accordance with this 
part.
    (3) Pay claims as provided in a final action in accordance with 
this part.
    (d) The Heads of the Non-DoD Components, or designees, shall:
    (1) Process claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 
2771, or 37 U.S.C. 554 in accordance with this part.
    (2) Ensure that requests for an advance decision that originate in 
their organizations are prepared and submitted in accordance with this 
part.
    (3) Pay claims as provided in a final action in accordance with 
this part.

Appendix A to Part 282--Guidance

    (a) Submitting a claim. The procedures a claimant must follow to 
submit a claim are at Appendix C to this part.
    (b) Processing a claim. The procedures a DoD Component must 
follow in processing a claim are at Appendix D to this part.\1\
---------------------------------------------------------------------------

    \1\ Contact the appropriate non-DoD Component for the procedures 
it follows in processing a claim.
---------------------------------------------------------------------------

    (c) Appeals. The procedures for appealing initial determinations 
are at Appendix E to this part.
    (d) Disposition of claims upon settlement in general.
    (1) The appropriate official for the Component concerned shall 
pay a claim in accordance with the final action concerning the 
claim.
    (2) Where state law requires, a committee must be appointed for 
a minor or incompetent person in accordance with State law before 
payment may be made.
    (e) Requests for an advance decision. Procedures for requesting 
an advance decision under 31 U.S.C. 3529 concerning the propriety of 
a payment or voucher certification related to claims addressed in 
this part are at Appendix F to this part.
    (f) Publication. In accordance with 5 U.S.C. 552, the Director, 
DOHA, or designee, shall make redacted copies of responses to 
requests for reconsideration and advance decisions by the GC, DoD, 
or designee, available for public inspection and copying at DOHA's 
public reading room and on the worldwide web.

Appendix B to Part 282--Claims Description

    The Secretary of Defense is authorized to perform the claims 
settlement and advance decision functions for claims under the 
following statutes:
    (a) 31 U.S.C. 3702 concerning claims in general when there is no 
other settlement authority specifically provided for by law.\1\
---------------------------------------------------------------------------

    \1\ This includes claims involving Uniformed Services members' 
pay, allowances, travel, transportation, payment for unused accrued 
leave, retired pay, and survivor benefits, and claims for refund by 
carriers for amounts collected from them for loss or damage to 
property they transported at Government expense; also included are 
other claims arising from the activity of a DoD Component. However, 
the Director of the Office of Personnel Management performs these 
functions for claims involving civilian employees' compensation and 
leave; and the Administrator of General Services performs these 
functions for claims involving civilian employees' travel, 
transportation, and relocation expenses.
---------------------------------------------------------------------------

    (b) 10 U.S.C. 2575 concerning the disposition of unclaimed 
personal property on a military installation.
    (c) 10 U.S.C. 2771 concerning the final settlement of accounts 
of deceased members of the Armed Forces (but not the National 
Guard).\2\
---------------------------------------------------------------------------

    \2\ Claims under this statute are actually settled under the 
authority in 31 U.S.C. 3702 because there is no specific settlement 
authority in the statute.
---------------------------------------------------------------------------

    (d) 24 U.S.C. 420, 10 U.S.C. 4712, and 10 U.S.C. 9712 concerning 
the disposition of the effects of a deceased person who was subject 
to military law at a place or Command under the jurisdiction of the 
Army or the Air Force or of a deceased resident of the Armed Forces 
Retirement Home.
    (e) 37 U.S.C. 554 concerning the sale of personal property of 
members of the Uniformed Services who are in a missing status.

[[Page 38845]]

    (f) 32 U.S.C. 714 concerning the final settlement of accounts of 
deceased members of the National Guard.\3\
---------------------------------------------------------------------------

    \3\ Claims under this statute are actually settled under the 
authority in 31 U.S.C. 3702 because there is no specific settlement 
authority in the statute.
---------------------------------------------------------------------------

Appendix C to Part 282--Submitting a Claim

    (a) Who May Submit a Claim. Any person (``claimant'') may submit 
a claim who has a demand for money or property against the 
Government under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 
U.S.C. 420, 10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, or 32 
U.S.C. 714.
    (b) Where to Submit a Claim. A claimant must submit a claim to 
the Component concerned in accordance with guidance provided by that 
Component. A claim that is submitted somewhere other than to the 
Component concerned does not stop the running of the time limit in 
paragraph (f) of this Appendix. It is the claimant's responsibility 
to submit a claim properly.
    (c) Format of a Claim. A claimant must submit a claim in the 
format prescribed by the Component concerned. It must be written and 
be signed by the claimant (in the case of a claim on behalf of a 
minor or incompetent person, there are additional requirements 
explained at paragraph (e) of this Appendix) or by the claimant's 
authorized agent or attorney (there are additional requirements 
explained at paragraph (d) of this Appendix). In addition, it 
should:
    (1) Provide the claimant's mailing address.
    (2) Provide the claimant's telephone number.
    (3) State the amount claimed.
    (4) State the reasons why the Government owes the claimant that 
amount.
    (5) Have attached copies of documents referred to in the claim.
    (6) Include or have attached statements (that are attested to be 
true and correct to the best of the individual's knowledge and 
belief) of the claimant or other persons in support of the claim.
    (d) Claim Submitted by Agent or Attorney. In addition to the 
requirements in paragraph (c) of this Appendix, a claim submitted by 
the claimant'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 claimant.
    (e) Claim Submitted on Behalf of a Minor or Incompetent Person. 
In addition to the requirements in paragraph (c) of this Appendix:
    (1) If a guardian or committee has not been appointed, a claim 
submitted on behalf of a minor or incompetent person must:
    (i) State the claimant'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 claim 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 Claim. A claimant must submit a claim so 
that it is received by the Component concerned within the time limit 
allowed by statute.
    (1) Claimants must submit claims within these statutory time 
limits: \1\
---------------------------------------------------------------------------

    \1\ Under Section 501 et seq. of title 50 Appendix, United 
States Code, periods of active military service are not included in 
calculating whether a claim has been received within these statutory 
time limits.
---------------------------------------------------------------------------

    (i) Claims on account of Treasury checks under 31 U.S.C. 3702(c) 
must be received within 1 year after the date of issuance.
    (ii) Claims under 31 U.S.C. 3702 (b), 10 U.S.C. 2771 and 32 
U.S.C. 714 must be received within 6 years of the date the claim 
accrued. (A claim accrues on the date when everything necessary to 
give rise to the claim has occurred.) The time limit for claims of 
members of the Armed Forces that accrue during war or within 5 years 
before war begins, is 6 years from the date the claim accrued or 5 
years after peace is established, whichever is later.
    (iii) Claims under 10 U.S.C. 2575(d)(3) must be received within 
5 years after the date of the disposal of the property to which the 
claim relates.
    (iv) Claims under 24 U.S.C. 420(d)(1), 10 U.S.C. 4712, and 10 
U.S.C. 9712 must be received within 6 years after the death of the 
deceased resident.
    (v) Claims under 37 U.S.C. 554(h) must be received before the 
end of the 5-year period from the date the net proceeds from the 
sale of the missing person's personal property are covered into the 
Treasury.
    (2) The time limits set by statute may not be extended or 
waived.\2\ Although the issue of timeliness normally shall be raised 
upon initial submission (as explained at Appendix D to this part, 
paragraph (b)), the issue may be raised at any point during the 
claim settlement process.
---------------------------------------------------------------------------

    \2\ There is an exception for certain claims described in 31 
U.S.C. 3702(e). In those cases, the Secretary of Defense may waive 
the time limits in paragraph (f)(1)(ii) of this Appendix. Appendix D 
of this part, paragraph (d), explains which claims qualify and the 
procedures that apply.
---------------------------------------------------------------------------

    (g) Claimant Must Prove the Claim. The claimant must prove, by 
clear and convincing evidence, on the written record that the United 
States is liable to the claimant for the amount claimed. All 
relevant evidence to prove the claim should be presented when a 
claim is first submitted. In the absence of compelling 
circumstances, evidence that is presented at later stages of the 
administrative process will not be considered.

Appendix D to Part 282--Processing a Claim

    (a) Initial Component Processing. Upon receipt of a claim, the 
Component concerned must:
    (1) Date stamp the claim on the date received.
    (2) Determine whether the claim was received within the required 
time limit (time limits are summarized at Appendix C to this part, 
paragraph (f)) and follow the procedures in paragraph (b) of this 
Appendix if the claim was not timely.
    (3) Investigate the claim.
    (4) Decide whether the claimant provided clear and convincing 
evidence that proves all or part of the claim.
    (5) Issue an initial determination that grants the claim to the 
extent proved or denies the claim, as appropriate. The initial 
determination must state how much of the claim is granted and how 
much is denied, and must explain the reasons for the determination.
    (6) Notify the claimant of the initial determination. The 
Component must send the claimant a copy of the initial determination 
and a notice that explains:
    (i) The action the Component shall take on the claim, if the 
initial determination is or becomes a final action (the finality of 
an initial determination is explained at paragraph (c) of this 
Appendix); and
    (ii) The procedures the claimant must follow to appeal an 
initial determination that denies all or part of the claim (those 
appeal procedures are explained at Appendix E to this part), if 
applicable.
    (b) Untimely Claims. When the Component concerned determines 
that a claim was not received within the statutory time limit, the 
Component must make an initial determination of untimely receipt. 
(The statutory time limits are explained in Appendix C to this part, 
paragraph (f).)
    (1) The initial determination must cite the applicable statute 
and explain the reasons for the finding of untimely receipt. The 
Component must send the initial determination to the claimant with a 
notice that:
    (i) States the claim was not received within the statutory time 
limit and, therefore, may not be considered, unless that finding is 
reversed on appeal, and explains how the claimant may appeal the 
finding (those appeal procedures are explained at Appendix E to this 
part); and either
    (ii) If the claim does not qualify under 31 U.S.C. 3702(e), 
states that the statutory time limit may not be extended or waived; 
or
    (iii) If the claim does qualify under 31 U.S.C. 3702(e), states 
that the claim may be further considered only if the time limit is 
waived, and explains how the claimant may apply for a waiver. 
(Paragraph (d) of this Appendix explains which claims qualify and 
the procedures for applying for a waiver).
    (2) Except in cases where a claimant has applied under paragraph 
(d) of this Appendix to request a waiver of the time limit, the 
Component must return the claim to the claimant when the initial 
determination becomes a final action with a notice that the finding 
in the initial determination is final and, therefore, the claim may 
not be considered. If the claim qualifies under 31 U.S.C. 3702(e), 
the notice must also state that the claimant may resubmit the claim 
with an application under paragraph (d) of this Appendix.
    (c) Finality of an Initial Determination. An initial 
determination that grants all of a claim is a final action when it 
is issued. Otherwise, an initial determination (including one of 
untimely receipt) is a final action if the

[[Page 38846]]

Component concerned 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 Component concerned for good cause 
shown).
    (d) Waiver of Certain Time Limits. When the Component concerned 
determines that a claim was not received within the statutory time 
limit in 31 U.S.C. 3702(b) or (c), the claimant may request a waiver 
of the time limit. Waiver is permitted only for those claims that 
satisfy the requirements of 31 U.S.C. 3702(e).\1\ This provision 
confers no right or entitlement on a claimant. It is solely within 
the discretion of the Secretary of Defense whether to grant such a 
waiver in a particular case.
---------------------------------------------------------------------------

    \1\ When this part was issued, 31 U.S.C. 3702(e) allowed time 
limit waivers only for claims up to $25,000 for Uniformed Service 
member's pay, allowances, travel, transportation, payments for 
unused accrued leave, retired pay, and survivors benefits. Since 31 
U.S.C. 3702(e) could be amended at any time to modify these 
restrictions, always consult the current provisions of that Section 
to determine which claims are included.
---------------------------------------------------------------------------

    (1) The claim must contain the information and documents that 
are generally required for claims (those requirements are explained 
at Appendix C to this part, paragraph (c)).
    (2) The Component concerned must investigate the claim and make 
an initial determination concerning the merits of the claim.
    (3) If the initial determination grants all or part of the 
claim, and if the Secretary concerned agrees with the determination, 
the Secretary may request or recommend that the time limit be 
waived.\2\ Requests and recommendations must be in writing and 
signed by the Secretary concerned. (This authority may not be 
delegated below the level of an Assistant Secretary.)
---------------------------------------------------------------------------

    \2\ 31 U.S.C. 3702(e) currently requires a Secretarial request 
only in the case of a claim by or with respect to a member of the 
Uniformed Services who is not under the jurisdiction of the 
Secretary of a Military Department. As a matter of policy, the 
Department of Defense currently requires a Secretarial 
recommendation in all other cases.
---------------------------------------------------------------------------

    (i) The Secretary concerned shall forward the request or 
recommendation to the following address: Defense Office of Hearings 
and Appeals, Claims Division, P.O. Box 3656, Arlington, VA 22203-
1995.
    (ii) The entire record concerning the claim, including the 
initial determination, must be attached to the request.
    (4) The Director, DOHA, must review the request and the written 
record and must:
    (i) Grant the request and waive the statutory time limit, if the 
Director finds that all or part of the claim has been proven. The 
Director may also modify the finding concerning the amount of the 
claim that has been proven.
    (ii) Deny the request, if the Director finds that no part of the 
claim has been proven.
    (iii) Notify the Secretary concerned and the claimant of the 
decision and the reasons for the findings.
    (5) In the event the Director, DOHA, denies the request, or 
grants the request but modifies the finding concerning the amount of 
the claim proven, the Secretary concerned or the claimant may 
request reconsideration (the procedures are explained at Appendix E 
to this part). The Director's decision is a final action if the 
Director does not receive a request for reconsideration within 30 
days of the date of the Director's decision (plus any extension of 
up to 30 additional days granted by the Director for good cause 
shown).

Appendix E to Part 282--Appeals

    (a) Who May Appeal. A claimant may appeal if an initial 
determination denies all or part of a claim or finds that the claim 
was not received by the Component concerned within the time limit 
required by statute; however, the decision of the Secretary 
concerned not to request or recommend waiver of the time limit is 
not appealable except to the Secretary concerned, if the Secretary 
as a matter of discretion provides for such appeals.
    (b) When and Where to Submit an Appeal. A claimant's appeal must 
be received by the Component concerned within 30 days of the date of 
the initial determination. The Component 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. An appeal sent directly to the 
DOHA is not properly submitted.
    (c) Content of an Appeal. No specific format is required; 
however, the appeal must be written and be signed by the claimant, 
the claimant's authorized agent, or the claimant's attorney. It also 
should:
    (1) Provide the claimant's mailing address;
    (2) Provide the claimant's telephone number;
    (3) State the amount claimed on appeal, or that the appeal is 
from a finding of untimely receipt, whichever applies;
    (4) Identify specific:
    (i) Errors or omissions of material and relevant fact;
    (ii) Legal considerations that were overlooked or misapplied; 
and
    (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 the findings or conclusions should be 
reversed or modified;
    (7) Have attached copies of documents referred to in the appeal; 
and
    (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 claimant or other persons in support of the appeal.
    (d) Component's Review. The Component concerned must review a 
claimant's appeal, and affirm, modify, or reverse the initial 
determination.
    (1) If the appeal concerns the denial of all or part of the 
claim and the Component grants the entire claim, or grants the claim 
to the extent requested in the appeal, the Component must notify the 
claimant in writing and explain the action the Component shall take 
on the claim. This is a final action.
    (2) If the appeal concerns the untimely receipt of the claim and 
the Component determines that the claim was received within the time 
limit required by statute, the Component must notify the claimant in 
writing and process the claim on the merits.
    (3) In all other cases, the Component must forward the appeal to 
the DOHA in accordance with paragraph (e) of this Appendix. If the 
appeal concerns an initial determination of untimely receipt, the 
Component should not investigate, or issue an initial determination 
concerning, the merits of the claim before forwarding the appeal. 
The Component must prepare a recommendation and administrative 
report (as explained in paragraph (f) of this Appendix). The 
Component must send a copy of the administrative report to the 
claimant, with a notice that the claimant may submit a rebuttal to 
the Component (as explained in paragraph (g) of this Appendix).
    (e) Submission of Appeal to DOHA. No earlier than 31 days after 
the date of the administrative report, or the day after the 
claimant's rebuttal period, as extended, expires, the Component must 
send the entire record along with the recommendation and the 
administrative report required by paragraph (f) of this Appendix to 
the following address: Defense Office of Hearings and Appeals, 
Claims Division, P.O. Box 3656, Arlington, Virginia 22203-1995.
    The record sent to the DOHA shall include specific 
identification of any major policy issue(s) and a statement as to 
whether the amount in controversy exceeds $100,000 either in the 
instant claim or in the aggregate for directly related claims. If 
the amount in controversy exceeds $100,000, a full description of 
the financial impact shall be provided.
    (f) Recommendation and Administrative Report. The recommendation 
and administrative report required by paragraph (d) of this Appendix 
must include the following:
    (1) The name of the claimant;
    (2) The Component's file reference number;
    (3) The Component's recommendation (and the reasons for it) for 
the disposition of the claim;
    (4) Relevant and material documents (such as correspondence, 
business records, and witness statements), as attachments; and
    (5) Complete copies of regulations, instructions, memorandums of 
understanding, tariffs and/or tenders, solicitations, contracts, or 
rules cited by the claimant or the Component, if a copy has not been 
previously provided, or is not available readily via electronic 
means.
    (g) Claimant's Rebuttal. A claimant may submit a written 
rebuttal, signed by the claimant or the claimant's agent or 
attorney, in response to the recommendation and administrative 
report. The rebuttal must be submitted to the Component within 30 
days of the date of the recommendation and administrative report. 
The Component 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 Component's file reference number;
    (3) Any documents referred to in the rebuttal; and
    (4) Statements (that are attested to be true and correct to the 
best of the individual's knowledge and belief) by the claimant or 
other persons in support of the rebuttal.

[[Page 38847]]

    (h) Action by the Component. The Component must:
    (1) Date stamp the claimant's rebuttal on the date it is 
received;
    (2) Send the entire record to the DOHA, but no earlier than 31 
days after the date of the report, or the day after the claimant's 
rebuttal period, as extended, expires (as explained in paragraph (e) 
of this Appendix).
    (i) DOHA Appeal Decision. Except as provided in paragraph (p) of 
this Appendix, the DOHA must base its decision on the written 
record, including the recommendation and administrative report and 
any rebuttal by the claimant. The DOHA shall coordinate its decision 
in advance with the GC, DoD when the appeal decision affects:
    (1) Major policy issues;
    (2) Involves a claim that is quasi-contractual in nature and 
arises from the activity of a DoD Component, but the claim was not 
settled under usual acquisition procedures; or
    (3) When the amounts in controversy exceed $100,000, either for 
the instant claim or in the aggregate for directly related claims. 
The written decision must:
    (i) Affirm, modify, reverse, or remand the Component's 
determination (and, if the issue is untimely receipt and there is a 
finding that the claim was timely received, may either consider and 
decide the claim on the merits or return the claim to the Component 
concerned for investigation and initial determination on the 
merits);
    (ii) State the amount of the claim that is granted and the 
amount that is denied and/or state that the claim was or was not 
received within the statutory time limit, as appropriate; and
    (iii) Explain the reasons for the decision.
    (j) Processing After the Appeal Decision. After issuing an 
appeal decision, the DOHA must:
    (1) Send the claimant the decision and notify the claimant of:
    (i) The appropriate Component action on the claim as a 
consequence of the decision, if it is or becomes a final action (as 
explained in paragraph (k) of this Appendix); and
    (ii) The procedures under this appendix to request 
reconsideration (as explained in paragraphs (l) through (n) of this 
Appendix), if the decision does not grant the claim to the extent 
requested, or does not contain a finding of timely receipt, as the 
case may be.
    (2) Notify the Component concerned of the decision, and of the 
appropriate Component action on the claim as a consequence of the 
decision.
    (k) Finality of a DOHA Appeal Decision. An appeal decision that 
finds that the claim was timely received is a final action when 
issued. Otherwise, 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 claim, 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) 
of this Appendix. The provisions of paragraph (n) of this Appendix 
apply.
    (l) Who May Request Reconsideration. A claimant or the Component 
concerned, or both, may request reconsideration of a DOHA appeal 
decision.
    (m) 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.\1\ 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) of this Appendix.
---------------------------------------------------------------------------

    \1\ With respect to appeal decisions issued before the effective 
date of this part, the request for reconsideration by the GC, DoD 
must be received by the DOHA within 60 days of the effective date of 
this part as explained in paragraph (k) of this Appendix.
---------------------------------------------------------------------------

    (n) Content of a Request for Reconsideration. The requirements 
of paragraph (c) of this Appendix, concerning the contents of an 
appeal, apply to requests for reconsideration.
    (o) DOHA's Review of a Request for Reconsideration.
    (1) 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:
    (i) Consider a request or requests for reconsideration;
    (ii) Affirm, modify, reverse, or remand the appeal decision 
(and, if the issue is untimely receipt and there is a finding that 
the claim was timely received, may either consider and decide the 
claim on the merits or return the claim to the Component concerned 
for investigation and initial determination on the merits);
    (iii) Prepare a response that explains the reasons for the 
finding; and
    (iv) Send the response to the claimant and the Component 
concerned and notify both of the appropriate action on the claim.
    (2) The response is a final action. It is precedent in the 
consideration of all claims 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.

Appendix F to Part 282--Requests for an Advance Decision

    (a) Who May Request an Advance Decision. A disbursing or 
certifying official or the Head of a Component may request an 
advance decision on a question involving:
    (1) A payment the disbursing official or Head of the Component 
shall make; or
    (2) A voucher presented to a certifying official for 
certification.
    (b) Who May Render an Advance Decision. The following officials 
are authorized to render an advance decision concerning the matters 
indicated:
    (1) The Secretary of Defense for requests involving claims 
under:
    (i) 31 U.S.C. 3702 for Uniformed Services members' pay, 
allowances, travel, transportation, retired pay, and survivor 
benefits, and by carriers for amounts collected from them for loss 
or damage to property they transported at Government expense.
    (ii) 31 U.S.C. 3702 that are not described in paragraph 
(b)(1)(i) of this Appendix and that arise from the activity of a DoD 
Component, when there is no other settlement authority specifically 
provided by law.
    (iii) 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 U.S.C. 
4712, 10 U.S.C. 9712, 37 U.S.C. 554, and 32 U.S.C. 714. Appendix B 
to this part describes these claims.
    (2) The Director of the Office of Personnel Management for 
requests involving claims for civilian employees' compensation and 
leave.
    (3) The Administrator of General Services for requests involving 
claims for civilian employees' travel, transportation, and 
relocation expenses.
    (c) Where to Submit a Request. All requests described in 
paragraph (b)(1) of this Appendix and all other requests arising 
from the activity of a DoD Component (even if addressed to an 
official outside the Department of Defense) must be sent through the 
General Counsel of the Component concerned to the following address: 
General Counsel, Department of Defense, 1600 Defense Pentagon, 
Washington, DC 20301-1600.
    (d) Content of a Request. Requests for an advance decision must:
    (1) Specifically request an advance decision pursuant to 31 
U.S.C. 3529;
    (2) Describe all the relevant facts;
    (3) Explain the reasons (both factual and legal) the requester 
considers the proposed payment to be questionable;
    (4) Have attached vouchers, if any, and copies of all other 
relevant documents relating to the proposed payment;
    (5) Have attached a legal memorandum from the General Counsel of 
the Component concerned that discusses the legality of the proposed 
payment under the circumstances presented in the request; and
    (6) Comply with any other requirements established by the 
Director of the Office of Personnel Management or the Administrator 
of General Services.
    (e) Advance Decisions. The GC, DoD must take action under 
paragraphs (e)(1), (e)(2), or (e)(3) of this Appendix, whichever 
applies.
    (1) If the request is described in paragraph (b)(1) of this 
Appendix, the GC, DoD must review the request and issue an advance 
decision, unless the GC, DoD elects to proceed under paragraph 
(e)(3) of this Appendix.

[[Page 38848]]

    (i) The GC, DoD must send the decision, through the General 
Counsel of the Component concerned, to the requester, and must send 
a copy of the decision to the Director, DOHA for publication 
according to Appendix A to this part, paragraph (f).
    (ii) The decision is controlling in the case; the reliance of 
certifying and disbursing officials on it in their disposition of 
the case is evidence that those officials have exercised due 
diligence in the performance of their duties.
    (iii) An advance decision is precedent in similar claims under 
this part unless otherwise stated in the decision.
    (2) If the request is not described in paragraph (b)(1) of this 
Appendix, the GC, DoD must review the request and either:
    (i) Forward the request to the appropriate advance decision 
authority and notify the requester of that action; or
    (ii) Return the request, through the General Counsel of the 
Component concerned, to the requester, with a memorandum explaining 
that under existing legal authorities a request for an advance 
decision is not necessary. After considering the memorandum, the 
requester may resubmit the request, through the General Counsel of 
the Component concerned, to the GC, DoD. The GC, DoD must forward 
the request to the appropriate advance decision authority, and 
notify the requester of that action.
    (3) If the request is described in paragraph (b)(1) of this 
Appendix, and the claim is for not more than $250, the GC, DoD may 
refer the request to the General Counsel, Defense Finance and 
Accounting Service (DFAS). The General Counsel, DFAS, shall review 
the request and issue an advance decision.
    (i) The General Counsel, DFAS, must send the decision, through 
the General Counsel of the Component concerned, to the requester, 
and must send a copy of the decision to the GC, DoD.
    (ii) The decision is controlling in the case; the reliance of 
certifying and disbursing officials on it in their disposition of 
the case is evidence that those officials have exercised due 
diligence in the performance of their duties.
    (iii) An advance decision issued by the General Counsel, DFAS, 
under this paragraph is not precedent in similar claims under this 
part.

    Dated: June 21, 2004.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 04-14650 Filed 6-28-04; 8:45 am]
BILLING CODE 5001-06-P