[Federal Register Volume 84, Number 183 (Friday, September 20, 2019)]
[Rules and Regulations]
[Pages 49457-49460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20075]


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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: Final 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 
that 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. This 
rulemaking establishes 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: This rule is effective on October 21, 2019.

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

SUPPLEMENTARY INFORMATION: 

Public Comments

    On Monday, November 5, 2018 (83 FR 55329-55332), the Department of 
Defense published a proposed rule titled ``Transitional Compensation 
(TC) for Abused Dependents'' for a 60-day public comment period. 
Fifteen public comments were received, and all were supportive of the 
program. The Department thanks the commenters for their support. This 
section of the preamble responds to the public comments.
    Four of the 15 comments discussed the general eligibility of 
dependents for the program, specifically the inclusion of step and 
adopted children, unborn children, and non-married domestic partners. 
With regard to general eligibility for dependents, the definition of 
``dependent child'' is provided in section 1059(i) of title 10, United 
States Code (U.S.C.). It includes step, adopted, and unborn children, 
so long as the step/adopted children resided with the Service member at 
the time of the abuse offense or the dependent spouse was pregnant with 
the unborn child at the time of the offense. Non-married domestic 
partners, to include boyfriends, girlfriends, or roommates, are not 
military dependents and are therefore not eligible to receive any 
military benefits. No changes were made to the rule as a result of 
these comments.
    Three comments questioned the duration of payments. Two suggested 
that the 36-month payment duration is unnecessarily long, and the third 
supported the use of the full 36-month duration of payments to allow 
the abused dependents ample time to recover financially. Section 
1059(e) of title 10, U.S.C., read in conjunction with 10 U.S.C. 
101(a)(9), authorizes the Secretaries of the Military Departments to 
make TC payments to abused dependents for a period of between 12 and 36 
months at their discretion pursuant to policies prescribed for this 
purpose. By policy, the DoD has further restricted the payment duration 
to be no less than either the remaining unserved portion of the Service 
member's obligated service contract length or 12 months, whichever is 
greater. In practice, the majority of abused dependents receive TC 
benefits for the full 36-month period authorized by law. No changes 
were made to the rule as a result of these comments.
    Additionally, three comments expressed concerns over the program's 
recertification eligibility restrictions that require recipients to 
forfeit benefits if they cohabitate with the abusive former Service 
member or remarry. Two of these comments stressed that a large 
percentage of abuse victims return at some point to the abuser before 
eventually leaving for good. The purpose of the Department's TC program 
is to remove the financial disincentive that could otherwise discourage 
abuse victims from reporting and ultimately leaving an abusive 
environment. Continuing to pay recipients who return to the abusive 
environment runs counter to the policy's purpose. Abuse victims may 
return to the abuser, as referenced by the commenters, due to financial 
hardships; the Department's TC program helps alleviate that potential 
incentive to return. Another purpose of the Department's TC program is 
to assist abuse victims in rebuilding their lives after the abuse 
incidents and resultant loss of household military income. Remarriage 
by an abuse victim is a key indication that they have begun that new 
life and no longer require government assistance. Other support 
programs, to include ex-spousal support, survivor benefits, and 
annuitant programs typically include

[[Page 49458]]

similar remarriage forfeiture provisions. No changes were made to the 
rule as a result of these comments.
    As the result of additional internal review, clarifying and style-
related edits were made throughout the rule.

Legal Authority for This Program

    This program was established by Congress for abused dependents of 
military personnel through the National Defense Authorization Act for 
Fiscal Year 1994 (Pub. L. 103-160). This rule consolidates and 
clarifies existing procedural requirements established by the Act and 
currently found in internal DoD guidance, DoD Instruction (DoDI) 
1342.24, Transitional Compensation for Abused Dependents which was last 
updated in January 16, 1997 and can be found at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/134224p.pdf.
    The statute authorized temporary payments for families in which the 
Service member 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 DoDI 1342.24.

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 or sentenced to a forfeiture of all pay 
and allowances (under a court-martial sentence).
    A dependent-abuse offense must be the basis for the administrative 
separation or conviction, although it does not have to be the primary 
reason. In exceptional cases where a member was separated for a reason 
other than a dependent abuse offense but a dependent abuse event was 
still determined to have occurred, the Secretary of the Military 
Department concerned may grant transitional compensation benefits to 
the dependents. 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 rate, 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 
benefit is available for no less than 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 law and 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 rates on the DoD 
Comptroller's website at https://comptroller.defense.gov/Portals/45/documents/fmr/Volume_07b.pdf.

Expected Impact of the Final Rule

    The intent of this program is to encourage victims of dependent 
abuse to come forward and report abuse, provide assistance to victims 
in separating from an abuser, inform victims of resources available to 
them as victims of dependent-abuse, ensure the safety and well-being of 
victims, and ensure the Department of Defense does not leave a spouse 
and family financially destitute when an 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 number 
of dependents impacted, and is designed to assist with living expenses 
such as food, clothing and housing. The Department spends approximately 
$17M each fiscal year in transitional compensation payments. This final 
rule 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 is not a ``significant regulatory action,'' nor 
is it economically significant, under section 3(f) of Executive Order 
12866. Accordingly, the rule has not been reviewed by the Office of 
Management and Budget (OMB).

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

    This final rule is not subject to the requirements of E.O. 13771 
(82 FR 9339, February 3, 2017) because this final rule is not 
significant under E.O. 12866.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the

[[Page 49459]]

agency promulgating the rule must submit a rule report, which includes 
a copy of the rule, to each House of the Congress and to the 
Comptroller General of the United States. We will submit a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States. A major rule cannot take effect until 60 days after it 
is published in the Federal Register. This final rule is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

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 final 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 final 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%20and20Annuitant%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 final 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 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.


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 cognizant 
Military Department 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).

[[Page 49460]]

    (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.


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 Secretary concerned. 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 
and 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 and 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 section may receive medical 
and dental care, including mental health services, in facilities of the 
Uniformed Services or through the TRICARE program as outlined in 10 
U.S.C. 1076, 1077, and 1079.
    (2) Dental care may be provided on a space-available basis in 
facilities of the Military Services.
    (3) Eligible dependents of a Service 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: September 12, 2019.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2019-20075 Filed 9-19-19; 8:45 am]
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