[Federal Register Volume 75, Number 73 (Friday, April 16, 2010)]
[Rules and Regulations]
[Pages 19878-19880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8739]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 279
[Docket ID DOD-2009-OS-0141; RIN 0790-AI59]
Retroactive Stop Loss Special Pay Compensation
AGENCY: Office of the Under Secretary of Defense for Personnel and
Readiness, DoD.
ACTION: Final rule.
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SUMMARY: This rule provides for Retroactive Stop Loss Special Pay as
authorized and appropriated in The Supplemental Appropriations Act,
2009. This program is of short duration, from October 21, 2009, to
October 21, 2010. The last day for submission of claims to the
Secretaries of the Military Departments for Retroactive Stop Loss
Special Pay is October 21, 2010. The Secretaries concerned are not
authorized to make payments on claims submitted after October 21, 2010.
DATES: This rule is effective October 21, 2009, to comply with section
310 of Public Law 111-32 that calls for the Secretary of Defense to
issue a rule not later than 120 days from the date of enactment of the
Act. The change of eligibility for Retroactive Stop Loss Special Pay is
effective on December 19, 2009, the enactment date of the 2010
Department of Defense Appropriations Act.
FOR FURTHER INFORMATION CONTACT: LTC Brigitte Williams, (703) 614-3973.
SUPPLEMENTARY INFORMATION: This action provides for Retroactive Stop
Loss Special Pay as authorized and appropriated in The Supplemental
Appropriations Act, 2009 (Section 310 of Pub. L. 111-32) and as
described in this rule.
An interim final rule was published October 23, 2009, with an
effective date of October 21, 2009 (74 FR 54751 through 54754). No
comments were received on the interim final rule.
However, the Department of Defense Appropriations Act, 2010,
Section 8108, contains statutory provisions that modify eligibility for
Retroactive Stop Loss Pay and extend payments for Stop Loss Special Pay
to active duty Service members serving under the Stop Loss authority
through FY2010.
Under these provisions, Service members who voluntarily reenlisted
or extended their service or suspended their retirement and received a
bonus for such reenlistment or extension of service are not eligible to
receive the Retroactive Stop Loss Special Pay. The change of
eligibility for Retroactive Stop Loss Special Pay is effective on
December 19, 2009. The Secretaries of the Military Departments and
Director, DFAS, shall stop all payments on applications from the newly
ineligible applicants regardless of when received or approved. These
applications will be returned to the claimant with an explanation of
the change in law that made them ineligible. There will be no
recoupment of payments made, prior to December 19, 2009. Additionally,
DoD has determined that good cause exists for exemption from public
comment of these changes and their effective date as they are in direct
compliance with the statute.
The amount of special pay remains $500 per month. If an eligible
member dies before the payment is made, the Secretary of the Military
Department concerned shall make the payment in accordance with Section
2771 of title 10, United States Code.
A new paragraph (b) has been added to Sec. 279.2 of the final rule
to reflect the change in eligibility. A new paragraph (c) has added to
Sec. 279.3 of the final rule to reflect the payment rules when an
eligible member dies before payment can be made.
Executive Order 12866, ``Regulatory Planning and Review''
It has been certified that 32 CFR part 279 does:
(1) Have an annual effect on 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. The Supplemental Appropriations Act, 2009 appropriated
$534,400,000 to the Department of Defense, to remain available for
obligation until expended: Provided, that such funds shall be available
to the Secretaries of the military departments only to make payment of
claims specified by this law.
It has been certified that 32 CFR part 279 does not:
(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.
[[Page 19879]]
Congressional Review Act, 5 U.S.C. 801, et seq.
It has been certified that this rule is a major rule under the
Congressional Review Act. This rule will have an annual effect on the
economy of $100 million or more. Because of the congressionally
mandated deadline to begin the program, 5 U.S.C. 801(a)(3) does not
apply.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been certified that 32 CFR part 279 does not contain a
Federal mandate resulting in 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 32 CFR part 279 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 impose reporting or
recordkeeping requirements under the Paperwork Reduction Act of 1995.
These requirements have been approved by the Office of Management and
Budget under OMB Control Number 0704-0464.
Executive Order 13132, ``Federalism''
It has been certified that 32 CFR part 279 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 279
Armed forces, Pay.
0
Accordingly, 32 CFR part 279 is added to read as follows:
PART 279--RETROACTIVE STOP LOSS SPECIAL PAY COMPENSATION
Sec.
279.1 Purpose.
279.2 Eligibility.
279.3 Payment.
279.4 Claims process.
279.5 Recordkeeping.
279.6 Reporting.
Authority: Sec. 310, Pub. L. 111-32, as amended.
Sec. 279.1 Purpose.
This part provides for Retroactive Stop Loss Special Pay as
authorized and appropriated in section 310 of Public Law 111-32 and as
described in this part.
Sec. 279.2 Eligibility.
(a) The Secretaries concerned shall employ the Retroactive Stop
Loss Special Pay authority and appropriated funding to compensate
Service members, including members of the Reserve components, former
and retired members under the jurisdiction of the Secretary who, at any
time during the period beginning on September 11, 2001, and ending on
September 30, 2009, served on active duty while the Service members'
enlistment or period of obligated service was extended, or whose
eligibility for retirement was suspended pursuant to any provision of
law authorizing the President to extend any period of obligated
service, or suspend eligibility for retirement, of a Service member in
time of war or of national emergency declared by Congress or the
President (commonly referred to as a ``stop loss authority'').
(b) Service members described in paragraph (a) of this section, who
voluntarily reenlisted or extended their service or suspended their
retirement and received a bonus for such reenlistment or extension of
service are not eligible to receive the Retroactive Stop Loss Special
Pay.
(c) Service members who were discharged or released from the Armed
Forces under other than honorable conditions are not permitted to
receive Retroactive Stop Loss Special Pay under section 310 of Public
Law 111-32.
Sec. 279.3 Payment.
(a) The amount of compensation shall be $500 per month for each
month or any portion of a month during the period specified above that
the member was retained on active duty as a result of application of
the Stop Loss Authority. The Military Departments are to determine and
certify who is eligible to receive the Retroactive Stop Loss Special
Pay and provide this information to the Defense Finance and Accounting
Service (DFAS) for payment. Except as noted in this section,
retroactive Stop Loss Special Pay is payable to a member under this
section in addition to any other amounts payable or paid to the member
by law or policy.
(b) Payment rules are:
(1) Service members will not receive a payment under ``The
Supplemental Appropriations Act, 2009'', section 310 of Public Law 111-
32 and ``Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act, 2009'', section 8116 of Public Law 110-329, for the
same month or portion of a month during which the member was retained
on active duty under Stop Loss Authority as outlined in the Secretary
of Defense Memorandum dated March 19, 2009, Subject: Stop Loss Special
Pay.
(2) By law, Reserve Component members retained under Stop Loss
Authority will receive Retroactive Stop Loss Special Pay only for
service on active duty. As such, Reserve Component members may have
periods before mobilization and after demobilization while under Stop
Loss Authority where no Retroactive Stop Loss Special Pay can be paid.
(3) If an eligible member dies before the payment is made, the
Secretary of the Military Department concerned shall make the payment
in accordance with section 2771 of title 10, United States Code.
(4) Retroactive Stop Loss Special Pay is subject to all applicable
taxes.
Sec. 279.4 Claims process.
(a) The last day for submission of claims to the Secretaries of the
Military Departments for Retroactive Stop Loss Special Pay is October
21, 2010. The Secretaries concerned are not authorized to make payments
on claims that are submitted after October 21, 2010.
(b) The additional period between the date of Under Secretary of
Defense for Personnel and Readiness Memorandum, Subject: Retroactive
Stop Loss Special Pay Compensation signed on September 23, 2009 and
October 21, 2009 is provided for the Military Departments to:
(1) Identify and formally notify members or former members that
official records indicate their potential eligibility for Retroactive
Stop Loss Special Pay. This notification should reflect the estimated
number of eligible months and the projected special pay amount along
with guidance about how to submit a claim. Special care should be taken
to work with family members of eligible Service members who are
deceased. These family members may not be knowledgeable of the process
and will require additional assistance after filing their claim.
(2) Make a public announcement of the Retroactive Stop Loss Special
Pay Authority highlighting the scope of the program, who qualifies for
the benefits, and how to submit a claim to a Service point of contact.
The Service contact information will be provided in all public releases
by the Office of Secretary of Defense (OSD) Public
[[Page 19880]]
Affairs Office, as well as by each of the Services Public Affairs
Offices.
(3) Establish and publish evidentiary requirements beyond those
listed in this paragraph to support an unrecorded extension under Stop
Loss Authority. Official documents may include but are not limited to:
(i) DD 214 Form, Certificate of Release or Discharge from Active
Duty and/or DD 215, Correction to DD 214.
(ii) Personnel record or enlistment or reenlistment document
recording original expiration of service date.
(iii) Approved retirement memorandum or orders establishing
retirement prior to actual date of retirement as stipulated in DD Form
214 or DD Form 215.
(iv) Approved resignation memorandum or transition orders
establishing a separation date prior to actual date of separation as
stipulated in DD Form 214 or DD Form 215.
(v) Signed documentation or affidavit from knowledgeable officials
from the individual's chain of command.
(4) Establish claim and appellate procedures, websites, points of
contact for assistance or other outreach mechanisms to inform and
expedite claims. Publish information on use of Board for Correction of
Military/Naval Records.
(5) Claim is submitted and adjudicated by the Service, then sent
forward to the Defense Finance and Accounting Service (DFAS) for
payment. Upon arrival DFAS will route claim to Debt Claims Management
who will process the claim. Payments are then routed through Dispersing
and then to Standards and Compliance. Then Dispersing will make payment
to the former Service member or estate. Standards and Compliance will
build and route reports for OSD and personnel centers.
Sec. 279.5 Recordkeeping.
The Military Departments will maintain a by-name accounting of
claims that will allow aggregate summaries to depict:
(a) The number of claims filed.
(b) The number of claims approved.
(c) The number of claims denied and the reasons why (especially
with regard to subparagraph (h) of section 310 of Pub. L. 111-32).
(d) The number of appeals.
(e) The number of claims pending and the reasons why.
(f) The amount of funding that has been obligated, to include mean
and median payments provided per claimant, the number of claims and
payments made in accordance with section 2771 of title 10, United
States Code for deceased claimants.
(g) The mean and median processing times from receipt of claim to
payment.
Sec. 279.6 Reporting.
The Department of Defense shall provide a consolidated report to
the congressional defense committees on the implementation of section
310 of Public Law 111-32. As such, the Under Secretary of Defense for
Personnel and Readiness, in coordination with the Under Secretary of
Defense (Comptroller), will establish data formats and narrative
requirements for a cumulative quarterly report beginning January 21,
2010, to monitor the program and the remaining balance of funding
appropriated for this purpose.
Dated: April 12, 2010.
Mitchell S. Bryman,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2010-8739 Filed 4-15-10; 8:45 am]
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