[Federal Register Volume 83, Number 214 (Monday, November 5, 2018)]
[Proposed Rules]
[Pages 55329-55332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23964]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 111

[Docket ID: DOD-2016-OS-0116]
RIN 0790-AI99


Transitional Compensation (TC) for Abused Dependents

AGENCY: Office of the Under Secretary of Defense for Personnel and 
Readiness, DoD.

ACTION: Proposed rule.

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SUMMARY: Transitional compensation is one of the many resources 
available to victims of domestic abuse. The Transitional Compensation 
for Abused Dependents program is a congressionally-authorized program 
which provides temporary monetary payments and military benefits to 
dependents of Service members, when the member has been separated from 
the military due to a dependent-abuse or child abuse offense. If 
adopted as final, this rulemaking would establish requirements and 
describes authorized benefits for an abused spouse and/or abused 
children affected by the separation or forfeiture of pay and allowances 
of a military Service member.

DATES: Comments must be received by January 4, 2019.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.

[[Page 55330]]

     Mail: Department of Defense, Office of the Chief 
Management Officer, Directorate for Oversight and Compliance, 4800 Mark 
Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: CDR David T. Clark, 703-693-1068.

SUPPLEMENTARY INFORMATION: 

Legal Authority for This Program

    This program was established by Congress for abused dependents of 
military personnel based on (Pub. L. 103-160) in 1994. This rule 
consolidates and clarifies existing procedural requirements established 
by the Act and currently found in internal DOD guidance.
    The legislation authorized temporary payments for families in which 
the active duty soldier had been court-martialed with a qualifying 
sentence (forfeiture of all pay and allowances, or bad conduct 
discharge, or dishonorable discharge, or in the instance of officers 
and commissioned warrant officers, dismissal from the Service) or was 
being administratively separated from the military as a result of a 
dependent-abuse offense. DOD began authorizing payments in August 1995 
in accordance with DoD Instruction (DoDI) 1342.24, Transitional 
Compensation for Abused Dependents which was last updated in January 
1997 and can be found at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/134224p.pdf.

Eligibility Requirements for the Program

    To be eligible for the benefit a family member (spouse or dependent 
child) must have been living in the home of the Service member. The 
Service member must have been administratively separated for a 
dependent-abuse offense; or convicted of a dependent-abuse offense and 
either separated under a court-martial sentence or sentenced to a 
forfeiture of all pay and allowances.
    A dependent-abuse offense must be the basis for the administrative 
separation or conviction, although it does not have to be the primary 
reason. Active duty victims of dependent-abuse are also eligible for 
transitional compensation, when the offender is also active duty.

Summary of Benefits Under This Program

     Amount of the benefit: The compensation amount is based on 
the Dependency and Indemnity Compensation, which changes annually. 
Current amounts can be found at the Department of Veterans Affairs 
Dependency and Indemnity Compensation website at https://benefits.va.gov/compensation/types-dependency_and_indemnity.asp.
     Length of the benefit: The transitional compensation is 
available for the longer of 12 months or the unserved portion of the 
Service member's obligated active service. Compensation will not extend 
beyond 36 months.
     Maintaining eligibility: Individuals become ineligible for 
compensation and benefits if they remarry or move back in with the 
former Service member while receiving benefits.
     Recertifying eligibility: If compensation is available for 
more than 12 months, recertification is required annually to ensure 
eligibility for transitional compensation.
     Other benefits: As part of the Transitional Compensation 
Program, individuals may be eligible for other benefits including 
medical care, exchange privileges and commissary privileges.
    Transitional compensation is one of the many resources available to 
military families. Each installation's Family Advocacy Program or legal 
assistance office can help a family apply for transitional compensation 
as well as other means of assistance.
    Per DoD's Financial Management Regulation at https://comptroller.defense.gov/Portals/45/documents/fmr/current/07b/07b_60.pdf, transitional compensation payments are not taxable. 
Transitional compensation recipients should not expect to receive a 
Form 1099 for tax purposes. Also, recipients need not report 
transitional compensation payments on their tax return.
    According to DoD Policy, transitional compensation for a dependent 
spouse or former spouse is at the same rate as defined in 38 U.S.C. 
1311--Dependency & Indemnity Compensation to a Surviving Spouse. There 
is also an additional amount for children under this section. For 
children without a mil-spouse parent, the amount is the same as the 
rate defined in 38 U.S.C. 1313--Dependency & Indemnity Compensation to 
Children. You can find annual updates to these payments on the DoD 
Comptroller's website at https://comptroller.defense.gov/Portals/45/documents/fmr/Volume_07b.pdf.

Expected Impact of the Proposed Rule

    The intent of this program is to encourage victims of dependent-
abuse to come forward and report abuse, provide assistance to victims 
to separate from the abuser, inform the victims of resources available 
to them as a victim of dependent-abuse, ensure the safety and well-
being of the victims, and ensure the Department of Defense does not 
leave a spouse and family financially destitute when the abusing 
Service member is discharged from the military for a dependent-abuse 
offense. In accordance with statute, the rate of payment varies based 
on the rank of the Service member, but it is designed to cover living 
expenses such as food, clothing and housing. The Department spends 
approximately $17M each fiscal year in transitional compensation 
payments. This proposed rule publishes instructions internal to DoD 
without any changes to the policies already in place, and therefore 
will not result in any changes to the number of TC recipients or the 
amount they are paid.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget (OMB).

Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs''

    This proposed rule is not expected to by subject to the 
requirements of E.O. 13771 (82 FR 9339, February 3, 2017)

[[Page 55331]]

because this proposed rule is expected be related to agency 
organization, management, or personnel.

2 U.S.C. Ch. 25, ``Unfunded Mandates Reform Act''

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. This 
rule will not mandate any requirements for State, local, or tribal 
governments, nor will it affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Ch. 6)

    The Department of Defense certifies that this proposed rule is not 
subject to the Regulatory Flexibility Act because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. Therefore, the Regulatory Flexibility Act, as 
amended, does not require us to prepare a regulatory flexibility 
analysis.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    Section 111.6(f)(1) of this proposed rule contains information 
collection requirements. These reporting requirements have been 
approved by the Office of Management and Budget and assigned OMB 
Control Number 0704-0578, ``Transitional Compensation for Abused 
Dependents (TCAD).''
    The applicable Systems of Records Notice (SORN) is T7347b, Defense 
Military Retiree and Annuity Pay System Records (January 7, 2009, 74 FR 
696), http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570196/t7347b/. The Privacy Impact Assessment 
(PIA) is available at https://www.dfas.mil/dam/jcr:5cf8a068-89c7-47eb-b844-1e2020ed5f73/Defense%20Retiree%20and%20Annuitant%20Pay%20System%20(DRAS)%202016.pdf; 
or https://www.dfas.mil/dfas/foia/privacyimpactassessments.html.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This proposed rule will not have a substantial effect on 
State and local governments.

List of Subjects in 32 CFR Part 111

    Abuse, Dependent children, Transitional compensation.

0
Accordingly, 32 CFR part 111 is proposed to be added to read as 
follows:

PART 111--TRANSITIONAL COMPENSATION FOR ABUSED DEPENDENTS

Sec.
111.1 Purpose.
111.2 Applicability.
111.3 Definitions.
111.4 Policy.
111.5 Responsibilities.
111.6 Procedures.

    Authority: 10 U.S.C. 1059.

PART 111--TRANSITIONAL COMPENSATION FOR ABUSED DEPENDENTS


Sec.  111.1   Purpose.

    This part establishes policy, assigns responsibilities, and 
prescribes procedures for the payment of monthly Transitional 
Compensation (TC) to dependents of Service members separated for 
dependent abuse.


Sec.  111.2  Applicability.

    This part applies to The Office of the Secretary of Defense, the 
Military Departments, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense (DoD), the Defense 
Agencies, the DoD Field Activities, and all other organizational 
entities in the DoD.


Sec.  111.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purposes of this part.
    Dependent abuse offense. Conduct by an individual while a Military 
Service member on active duty for a period of more than 30 days that 
involves abuse of a then-current spouse or a dependent child of the 
Service member and that is a criminal offense, under the Uniform Code 
of Military Justice, or another criminal code applicable to the 
jurisdiction where the act of abuse is committed. The term ``involves 
abuse of the then-current spouse or a dependent child'' means that the 
criminal offense is against the person of that spouse or a dependent 
child. Crimes that may qualify as dependent-abuse offenses include 
sexual assault, rape, sodomy, assault, battery, murder, and 
manslaughter. (This is not an exhaustive or exclusive listing of 
dependent-abuse offenses, but is provided for illustrative purposes 
only. The facts and circumstances of a particular case should always be 
interpreted in a manner most favorable to the spouse or a dependent 
child of the member when determining whether the conduct constitutes a 
``dependent abuse offense.'')
    Dependent child. As defined in 10 U.S.C. 1059.
    Exchange stores. The Army and Air Force Exchange Service, the Navy 
Exchange, the Marine Corps Exchange, and the Coast Guard Exchange.
    Parent. The natural father or mother, or father or mother through 
adoption. For purposes of TC, parent does not include persons who have 
stood ``in loco parentis'' to a dependent child.
    Secretary concerned. Includes the Secretary of the Military 
Departments and the Secretary of the Department of Homeland Security, 
when applicable.
    Service member. Includes former Service members, where appropriate.
    Spouse. An individual married to a Service member, but does not 
include a domestic partner.


Sec.  111.4  Policy.

    The DoD will make monthly TC payments and provide other benefits 
described in this part for spouses or dependents of Service members who 
meet the eligibility requirements of 10 U.S.C. 1059 and this part.


Sec.  111.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)):
    (1) Establishes and prescribes procedures for the payment of TC to 
dependents of Service members separated for dependent abuse.
    (2) Oversees compliance with this part.
    (b) The Secretaries of the Military Departments and the Secretary 
of the Department of Homeland Security, when applicable:
    (1) Appoint representatives to coordinate requests for TC, approve 
requests (except exceptional eligibility requests), and forward those 
requests for payment in accordance with Chapter 60, Volume 7B of DoD 
7000.14-R, ``Department of Defense Financial Management Regulations 
(FMRs): Military Pay Policy--Retired Pay'' (available at http://comptroller.defense.gov/Portals/45/documents/fmr/Volume_07b.pdf).
    (2) Review and approve or disapprove requests for TC benefits in 
accordance with the exceptional eligibility authority in accordance 
with 10 U.S.C. 1059. This responsibility may not be delegated.
    (3) Ensure dependents who are victims of a dependent-abuse offense 
are aware of their eligibility to apply for TC.
    (4) Establish departmental guidance to implement this part.

[[Page 55332]]

Sec.  111.6  Procedures.

    (a) Recipients of payment. The Secretary concerned makes TC 
payments to Service member dependents, former dependents, or court-
appointed guardians as described by 10 U.S.C. 1059. If a recipient is 
incapable of handling his or her own affairs, payments may be made only 
to a court-appointed guardian.
    (b) Payments.
    (1) Payments begin in accordance with 10 U.S.C. 1059.
    (2) Payments must continue for at least 12 months and no more than 
36 months, as prescribed by the applicable Secretary of the Military 
Department. When the unserved portion of the Service member's obligated 
active duty service, as of the starting date of payment, is greater 
than 12 months and less than or equal to 36 months, payments continue 
for no less than the unserved portion.
    (i) For enlisted Service members, obligated active duty service is 
the time remaining on their terms of enlistment.
    (ii) For officers, obligated active duty service is indefinite 
unless an officer has a date of separation established. In that case, 
it is the time remaining until the date of separation.
    (3) The amount of payment will be in accordance with 10 U.S.C. 
1059. Partial month entitlements are pro-rated. If a recipient dies, 
arrears of payments are not paid.
    (4) Payments will be stopped in accordance with 10 U.S.C. 1059.
    (i) Payments will end on the first day of the first month following 
the month in which the Secretary concerned notifies the recipient of 
such transitional compensation in writing that the payment of TC will 
stop.
    (ii) Recipients are not required to repay amounts of TC received 
before the effective date payment is stopped, in accordance with 
paragraph (b)(4)(i) of this section; however, TC may be recouped for 
erroneous payments or payments made based on false information 
provided.
    (c) Forfeiture provisions. In addition to 10 U.S.C. 1059, the 
following requirements apply:
    (1) The former spouse receiving TC must notify the Defense Finance 
Accounting Services (DFAS) within 30 days of remarriage or if the 
spouse or former spouse begins residing in the same household as the 
spouse or former spouse.
    (2) If a Service member's dependent child is not living in the same 
household as the spouse or former spouse who forfeits TC, payments are 
made to each dependent child or his or her court-appointed guardian.
    (3) In order to continue benefits, the spouse or former spouse must 
annually certify to DFAS that he or she is not remarried or is not 
cohabitating with the Service member separated for the abuse. DFAS will 
provide a form for recertification of benefits.
    (d) Coordination of benefits. A spouse or former spouse may not 
concurrently receive TC payments and retired pay payments pursuant to 
10 U.S.C. 1059 and 1408(h), respectively. If a spouse or former spouse 
is eligible for both TC payments and retired pay payments, the spouse 
or former spouse chooses which of the two payments to receive. If the 
spouse or former spouse receives TC payments and later receives 
payments from a Service member's retired pay, any TC received 
concurrently with retired pay must be recouped.
    (e) Source of funds. TC must be paid from operations and 
maintenance funds of the Department of the Service member.
    (f) Application of procedures. An individual must initiate a 
request for TC through a Service-appointed representative. The Service-
appointed representative:
    (1) Collects data and validates the claim using DD Form 2698 
(available at http://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2698.pdf).
    (2) Approves payment and forwards the application to DFAS unless 
otherwise submitted by the Secretary concerned in accordance with 10 
U.S.C. 1059.
    (g) Commissary and exchange benefits
    (1) A recipient of TC is entitled to use commissary and exchange 
stores while receiving payments.
    (2) If a recipient entitled to use commissary and exchange stores 
is also entitled to use commissary and exchange stores under another 
provision of law, the entitlement is determined under the other 
provision of law and not paragraph (g)(1).
    (h) Medical benefits.
    (1) The Secretary concerned will determine appropriate medical and 
dental care eligibility for TC recipients and affected dependents. At a 
minimum, an abused dependent who is receiving TC in accordance with 
paragraph (a) of this part may receive medical and dental care, 
including mental health services, in facilities of the military 
services or through the TRICARE program as outlined in 10 U.S.C. 1076 
and 1077.
    (2) Dental care may be provided on a space-available basis in 
facilities of the military services.
    (3) Eligible dependents of a member who is retirement eligible, but 
who loses eligibility for retirement pay because of dependent-abuse 
misconduct, may receive medical and dental care in accordance with 10 
U.S.C. 1408(h).

    Dated: October 29, 2018.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2018-23964 Filed 11-2-18; 8:45 am]
 BILLING CODE 5001-06-P