[Federal Register: October 9, 2008 (Volume 73, Number 197)]
[Rules and Regulations]
[Page 59501-59504]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09oc08-10]
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DEPARTMENT OF DEFENSE
Office of the Secretary
[DOD-2007-OS-0025]
RIN 0790-AI08
32 CFR Part 112
Indebtedness of Military Personnel
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: This part contains uniform Department of Defense policies for
indebtedness of military personnel. This updated rule contains
editorial changes only as required for internal Department of Defense
mandated reconsideration every five years.
DATES: Effective Date: This rule is effective November 10, 2008.
FOR FURTHER INFORMATION CONTACT: Lieutenant Colonel Tom Williams,
Office of the Deputy Under Secretary of Defense for Program
Integration, 4000 Defense Pentagon, Washington, DC 20301-4000.
SUPPLEMENTARY INFORMATION: The proposed rule was published on April 17,
2007 at 72 FR 19136. One editorial
[[Page 59502]]
comment was received and accepted. The rule is therefore adopted as
published below.
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that 32 CFR part 112 is not a significant
regulatory action. The rule does not:
1. Have an annual effect to the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribal governments or
communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
3. Materially alter the budgetary impact of 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.
Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)
It has been certified that this rule does not contain a Federal
mandate that may result in the expenditure by State, local and tribal
governments, in aggregate, or by the private sector, of $100 million or
more in any one year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that this rule does not impose reporting or
recordkeeping requirements under the Paperwork Reduction Act of 1995.
Executive Order 13132, ``Federalism''
It has been certified that this rule does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
1. The States;
2. The relationship between the National Government and the States;
or
3. The distribution of power and responsibilities among the various
levels of government.
List of Subjects in 32 CFR Part 112
Claims, Credit, Military personnel.
0
Accordingly, 32 CFR Part 112 is revised as follows:
PART 112--INDEBTNESS OF MILITARY PERSONNEL
Sec.
112.1 Purpose.
112.2 Applicability and Scope.
112.3 Definitions.
112.4 Policy.
112.5 Processing of Debt Complaints.
112.6 Processing of Involuntary Allotments.
112.7 Responsibilities.
Authority: 5 U.S.C. 5520a(k) and 10 U.S.C. 113(d).
Sec. 112.1 Purpose.
This part:
(a) Updates DoD policies and assigns responsibilities governing
delinquent indebtedness of members of the Military Services and
prescribes policy for processing involuntary allotments from the pay of
military members to satisfy judgment indebtedness in accordance with 5
U.S.C. 5520a(k).
(b) Establishes responsibility for procedures implementing 5 U.S.C.
5520a(k), 15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1665a, 1666-
1666j, and 1667-1667e (``Truth in Lending Act''), and 15 U.S.C. 1601
note, and 1692-1692o (``Fair Debt Collection Practices Act'').
Sec. 112.2 Applicability and Scope.
(a) This part applies to the Office of the Secretary of Defense,
the Military Departments (including the Coast Guard when it is not
operating as a Service in the Navy, under agreement with the Department
of Homeland Security), 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) This part does not apply to:
(1) Indebtedness of a member of the Military Services to the
Federal Government.
(2) Processing of indebtedness claims to enforce judgments against
military members for alimony or child support.
(3) Claims by State or municipal governments under the processing
guidelines for complaints, including tax collection actions.
Sec. 112.3 Definitions.
(a) Absence. A member's lack of an ``appearance,'' at any stage of
the judicial process, as evidenced by failing to physically attend
court proceedings; failing to be represented at court proceedings by
counsel of the member's choosing; or failing to timely respond to
pleadings, orders, or motions.
(b) Court. A court of competent jurisdiction within any State,
territory, or possession of the United States.
(c) Debt Collector. An agency or agent engaged in the collection of
debts described under 15 U.S.C. 1601 note and 1692-1692o (``Fair Debt
Collection Practices Act'').
(d) Exigencies of Military Duty. A military assignment or mission-
essential duty that, because of its urgency, importance, duration,
location, or isolation, necessitates the absence of a member of the
Military Services from appearance at a judicial proceeding or prevents
the member from being able to respond to a notice of application for an
involuntary allotment. Exigency of military duty is normally presumed
during periods of war, national emergency, or when the member is
deployed.
(e) Judgment. A final judgment must be a valid, enforceable order
or decree, by a court from which no appeal may be taken, or from which
no appeal has been taken within the time allowed, or from which an
appeal has been taken and finally decided. The judgment must award a
sum certain amount and specify that the amount is to be paid by an
individual who, at the time of application for the involuntary
allotment, is a member of the Military Services.
(f) Just Financial Obligation. A legal debt acknowledged by the
military member in which there is no reasonable dispute as to the facts
or the law; or one reduced to judgment that conforms to Sections 501-
591 of title 50 Appendix, United States Code (The Servicemembers Civil
Relief Act, as amended), if applicable.
(g) Member of the Military Services. For the purposes of this part,
any member of the Regular Army, Air Force, Navy, Marine Corps, or Coast
Guard, and any member of a Reserve component of the Army, Air Force,
Navy, Marine Corps, or Coast Guard (including the Army National Guard
of the United States and the Air National Guard of the United States)
on active duty pursuant to a call or order for a period in excess of
180 days at the time an application for involuntary allotment is
received by the Director, DFAS, or Commanding Officer, Coast Guard Pay
and Personnel Center. The following shall not be considered members:
(1) Retired personnel, including those placed on the temporary or
permanent disabled retired list; and
(2) Personnel in a prisoner of war or missing in action status, as
determined
[[Page 59503]]
by the Secretary of the Military Department concerned.
Sec. 112.4 Policy.
(a) Members of the Military Services are expected to pay their just
financial obligations in a proper and timely manner. A Service member's
failure to pay a just financial obligation may result in disciplinary
action under the Uniform Code of Military Justice (10 U.S.C. 801-940)
or a claim pursuant to Article 139 of the Uniform Code of Military
Justice. Except as stated in this section, and in paragraphs (a)(1) and
(a)(2) of this section, the DoD Components have no legal authority to
require members to pay a private debt or to divert any part of their
pay for satisfaction of a private debt.
(1) Legal process instituted in civil courts to enforce judgments
against military personnel for the payment of alimony or child support
shall be acted on pursuant to 42 U.S.C. 651-665, and Chapter 50, of
Department of Defense Regulation 7000.14-R Volume 7A.\1\
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\1\ Copies may be obtained from the DoD Directives Web page at:
http://www.dtic.mil/whs/directives.
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(2) Involuntary allotments under 5 U.S.C. 5520a(k) shall be
established in accordance with this part.
(b) Whenever possible, indebtedness disputes should be resolved
through amicable means. Claimants may contact military members by
having correspondence forwarded through the military locator services
for an appropriate fee.
Sec. 112.5 Processing of Debt Complaints.
(a) Debt complaints meeting the requirements of this part and
procedures established by the Under Secretary of Defense for Personnel
and Readiness, as required by Sec. 112.7(a)(1) shall receive prompt
processing assistance from commanders.
(b) Assistance in indebtedness matters shall not be extended to
those creditors:
(1) Who have not made a bona fide effort to collect the debt
directly from the military member;
(2) Whose claims are patently false and misleading; or
(3) Whose claims are obviously exorbitant.
(c) Some States have enacted laws prohibiting creditors from
contacting a debtor's employer about indebtedness or communicating
facts on indebtedness to an employer unless certain conditions are met.
The conditions that must be met to remove this prohibition are
generally such things as reduction of a debt to judgment or obtaining
written permission of the debtor.
(1) At DoD installations in States having such laws, the processing
of debt complaints shall not be extended to those creditors who are in
violation of the State law. Commanders may advise creditors that this
rule has been established because it is the general policy of the
Military Services to comply with State law when that law does not
infringe upon significant military interests.
(2) The rule in paragraph (c)(1) of this section shall govern even
though a creditor is not licensed to do business in the State where the
debtor is located. A similar practice shall be started in any State
enacting a similar law regarding debt collection.
(3) Pursuant to 15 U.S.C. 1601 note and 1692-1692o (``Fair Debt
Collection Practices Act''), contact by a debt collector with third
parties, such as commanding officers, for aiding debt collection is
prohibited without a court order or the debtor's prior consent given
directly to the debt collector. Creditors are generally exempt from
this requirement, but only when they collect on their own behalf.
Sec. 112.6 Processing of Involuntary Allotments.
Pursuant to 5 U.S.C. 5520a(k): (a) In those cases in which the
indebtedness of a military member has been reduced to a judgment, an
application for an involuntary allotment from the member's pay may be
made under procedures prescribed by the Under Secretary of Defense
(Comptroller). Such procedures shall provide the exclusive remedy
available.
(b) An involuntary allotment from a member's pay shall not be
permitted in any indebtedness case in which:
(1) Exigencies of military duty caused the absence of the member
from the judicial proceeding at which the judgment was rendered; or
(2) There has not been compliance with the procedural requirements
of the Servicemembers Civil Relief Act 50, U.S.C. Appendix, sections
501-591.
Sec. 112.7 Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness
shall:
(1) In consultation with the Under Secretary of Defense
(Comptroller), establish procedures for the processing of debt
complaints.
(2) Have policy oversight on the assistance to be provided by
military authorities to creditors of military personnel who have
legitimate debt complaints.
(b) The Under Secretary of Defense (Comptroller) shall:
(1) In consultation with the Under Secretary of Defense for
Personnel and Readiness establish procedures for processing debt
complaints, and administer and process involuntary allotments from the
pay of members of the Military Services. This includes the authority to
promulgate forms necessary for the efficient administration and
processing of involuntary allotments.
(2) Ensure that the Director, Defense Finance and Accounting
Service:
(i) Implements procedures established by the Under Secretary of
Defense for Personnel and Readiness and the Under Secretary of Defense
(Comptroller).
(ii) Considers whether Servicemembers Civil Relief Act 50 U.S.C.
Appendix, sections 501-591 has been complied with pursuant to 5 U.S.C.
5520a(k) prior to establishing an involuntary allotment against the pay
of a member of the Military Services.
(iii) Publishes, prints, stocks, redistributes, and revises DoD
forms necessary to process involuntary allotments.
(c) The Heads of the DoD Components shall urge military personnel
to meet their just financial obligations, since failure to do so
damages their credit reputation and affects the public image of all DoD
personnel. See DoD Directive 5500.7.\2\
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\2\ See footnote 1 to Sec. 112.4(a)(1).
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(d) The Secretaries of the Military Departments shall:
(1) Establish, as necessary, procedures to administer and process
involuntary allotments from the pay of members of the Military
Services. This includes designating those commanders, or other
officials who may act in the absence of the commander, who shall be
responsible for determining whether a member's absence from a judicial
proceeding was caused by exigencies of military duty, and establishing
appeal procedures regarding such determinations.
(2) Require commanders to counsel members to pay their just debts,
including complying, as appropriate, with court orders and judgments
for the payments of alimony or child support.
(3) Emphasize prompt command action to assist with the processing
of involuntary allotment applications.
(e) The Chief, Office of Personnel and Training, for the Coast
Guard shall:
(1) Establish, as necessary, procedures supplemental to those
promulgated by the Under Secretary of Defense for Personnel and
Readiness or the Under Secretary of Defense (Comptroller) to administer
and process involuntary allotment from the pay of members of the
Military Services; this includes the authority to promulgate forms
necessary for the efficient administration and processing of
involuntary allotments.
[[Page 59504]]
(2) Ensure that the Commanding Officer, Coast Guard Pay and
Personnel Center:
(i) Implements procedures established by the Under Secretary of
Defense for Personnel and Readiness, the Under Secretary of Defense
(Comptroller), and Chief, Office of Personnel and Training.
(ii) Considers whether the Servicemembers Civil Relief Act, as
amended (50 U.S.C. Appendix, sections 501-591) has been complied with
pursuant to 5 U.S.C. 5520a(k) prior to establishing an involuntary
allotment against the pay of a member of the Military Services.
(iii) Acts as the Coast Guard manager for forms necessary to
process involuntary allotments.
Dated: September 30, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E8-23977 Filed 10-8-08; 8:45 am]
BILLING CODE 5001-06-P