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[Federal Register: April 16, 2010 (Volume 75, Number 73)]
[Rules and Regulations]               
[Page 19878-19880]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap10-3]                         

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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]
BILLING CODE 5001-06-P
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