PART 282—PROCEDURES FOR SETTLING PERSONNEL AND GENERAL CLAIMS AND PROCESSING ADVANCE DECISION REQUESTS 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. Source: 69 FR 38843, June 29, 2004, unless otherwise noted. § 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. § 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”). § 282.3 Definitions. (a) Armed Forces. (b) Claim. (c) Committee. (d) Component Concerned. (e) Final Action. (f) Member. (g) Secretary Concerned. (h) Settlement. (i) Uniformed Services. § 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. § 282.5 Responsibilities. (a) The General Counsel of the Department of Defense (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 Director, Defense Legal Services Agency (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 (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 (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. (b) Processing a claim. 1 1 (c) Appeals. (d) Disposition of claims upon settlement in general. (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. (f) Publication. 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 (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 (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. (f) 32 U.S.C. 714 concerning the final settlement of accounts of deceased members of the National Guard. 3 3 Appendix C to Part 282—Submitting a Claim (a) Who May Submit a Claim. (b) Where to Submit a Claim. (c) Format of a Claim. (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. (e) Claim Submitted on Behalf of a Minor or Incompetent Person. (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. (1) Claimants must submit claims within these statutory time limits: 1 1 et seq. (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 2 (g) Claimant Must Prove the Claim. Appendix D to Part 282—Processing a Claim (a) Initial Component Processing. (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. (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. (d) Waiver of Certain Time Limits. 1 1 (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 2 (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. (b) When and Where to Submit an Appeal. (c) Content of an Appeal. (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. (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. 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. (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. (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. (h) Action by the Component. (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. (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. (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. 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. (m) When and Where to Submit a Request for Reconsideration. 1 1 (n) Content of a Request for Reconsideration. (o) DOHA's Review of a Request for Reconsideration. (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. (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. (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. (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. (d) Content of a Request. (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. (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. (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.