[Federal Register Volume 60, Number 3 (Thursday, January 5, 1995)]
[Rules and Regulations]
[Pages 1720-1735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-224]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Parts 43a, 112, and 113
[DoD Directive 1344.9 and DoD Instruction 1344.12]
RIN 0790-AF65 and RIN 0790-AF80
Indebtedness of Military Personnel
AGENCY: Office of the Secretary, Department of Defense.
ACTION: Final rule.
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SUMMARY: 5 U.S.C. 5520a(k) required the Department of Defense to
``promulgate regulations'' by April 4, 1994 for the involuntary
allotment of pay from members of the Armed Forces for debts reduced to
judgments. The Department published its proposed rule in the Federal
Register on April 26, 1994 (59 FR 21713). This final rule satisfies 5
U.S.C. 5520a(k) by promulgating regulations with regard to members of
the Armed Forces which include provisions for the involuntary allotment
of the pay of a member of the Armed Forces for indebtedness owed a
third party as determined by the final judgment of a court of competent
jurisdiction, and as further determined by competent military or
executive authority, as appropriate, to be in compliance with the
procedural requirements of the Soldiers' and Sailors' Civil Relief Act
of 1940; and which gives consideration for the absence of a member of
the Armed Forces from an appearance in a judicial proceeding resulting
from exigencies of military duty.
EFFECTIVE DATE: January 1, 1995.
FOR FURTHER INFORMATION CONTACT:
Major Alan L. Cook, (703) 697-3387.
SUPPLEMENTARY INFORMATION: Following publication of the Department of
Defense's proposed rule, the Department received several public
comments. After review of the comments, the Department amended its
proposed rule accordingly. Some of the major changes included
increasing the percentage of a member's pay that could be collected by
a debtor pursuant to an involuntary allotment; deleting the requirement
that a judgment could not be more than two years old in order for the
Department to process an involuntary allotment request; and
establishing appeal procedures for debtors from determinations by
commanders that preclude collection by involuntary allotment because of
exigencies of military duties. Additionally, the Coast Guard
coordinated with the Department of Defense to be included in the
regulations published by the Department of Defense. Note, the
Department originally intended to publish its final regulation, which
included both policy and procedural provisions, in the form of a DoD
directive. However, due to internal Department of Defense guidance
published in DoD 5025.1-M\1\ (August 1994), directives may no longer
include procedures. The procedures that were contained in the proposed
rule have been placed in a DoD instruction. Accordingly, the final rule
is now in two parts. The first part, 32 CFR part 112, is based on the
DoD directive that contains broad policy guidance. The second part, 32
CFR part 113, reflects the DoD instruction and contains the
Department's procedural guidance. The substance of both parts are
derived from the proposed rule as originally published on April 26.
Additionally, it has been determined that 32 CFR parts 112 and 113 are
not significant regulation actions. The rules do not: (1) Have an
annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector 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. It has
also been determined that this rule is not subject to the Regulatory
Flexibility Act (5 U.S.C. 601) because it will not have a significant
adverse economic impact on a substantial number of small entities. The
primary financial effect on administering the rule will be a reduction
in administrative costs and other burdens resulting from the
simplification and clarification of certain policies. Additionally, it
has been determined that 32 CFR part 112 does not impose any reporting
or recordkeeping requirements under the Paperwork Reduction Act of 1980
(44 U.S.C. 3501-3520). 32 CFR part 113 imposes an information
collection requirement for which the paperwork has been completed. The
OMB approval number is 0704-0367. Specifically, OMB provided their
approval for the collection of information required by DD Form 2653,
appendix C to 32 CFR part 113, that was originally intended to be
included in the DoD directive but had to be moved to the DoD
instruction (for internal reasons as noted above). Finally, application
forms for involuntary allotment (DD Form 2653, ``Involuntary Allotment
Application,'' as described in 32 CFR part 113, appendix C) may be
obtained from the Defense Finance and Accounting Service, Cleveland
Center, Code L, PO Box 998002, Cleveland, Ohio 44199-8002, telephone
(216) 522-5301.
\1\Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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List of Subjects in 32 CFR Parts 43a, 112 and 113
Claims, Credit, Military personnel.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
Accordingly, under the authority of 10 U.S.C. 301, Title 32 of the
Code of Federal Regulations, Chapter I, Subchapter C, is amended to
read as follows:
Dated: December 28, 1994.
PART 43a--[REMOVED]
1. Part 43a is removed.
2. 32 CFR parts 112 and 113 are added to read as follows:
[[Page 1721]]
PART 112--INDEBTEDNESS OF MILITARY PERSONNEL
Sec.
112.1 Purpose.
112.2 Applicability and scope.
112.3 Definitions.
12.4 Policy.
112.5 Responsibilities.
Authority: 5 U.S.C. 5520a(k) and 10 U.S.C. 113(d).
Sec. 112.1 Purpose.
This part: (a) Updates policy and 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'').
(c) Designates the Director, Defense Finance and Accounting Service
(DFAS), as the Department of Defense Executive Agent for forms
necessary to process involuntary allotments. The Executive Agent shall
publish, print, stock, distribute, and revise forms.
Sec. 112.2 Applicability and scope.
(a) Applies to the Office of the Secretary of Defense, the Military
Departments (including the Coast Guard when it is not operating as a
Military Service in the Navy by agreement with the Department of
Transportation), the Chairman of the Joint Chiefs of Staff, the Unified
Combatant Commands, the Inspector General of the Department of Defense,
the Defense Agencies, and the Department of Defense Field Agencies
(hereafter referred to collectively as ``the Department of Defense
Components''). The term ``Military Services,'' as used herein, refers
to the Army, the Navy, the Air Force, the Marine Corps, and the Coast
Guard.
(b) The provisions of this part do 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 missing-
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 obligations. 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 the Soldiers'
and Sailors' Civil Relief Act of 1940, as amended (50 U.S.C. appendix
sections 501-591).
(g) Member of the military services. 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 10
U.S.C. 672, 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 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 (10 U.S.C. 939). Except as stated in this section, and in
paragraphs (a)(1) and (a)(2) of this section, the Department of Defense
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 in accordance with 42 U.S.C. 651-665, and Part 7,
Chapter 7, Section B. of Department of Defense 7000.14-R\1\, Volume 7,
Part A.
\1\Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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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, as provided under DoD Instruction 7230.7.\2\
\2\See footnote 1 to Sec. 112.4(a)(1)
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(c) The following general policies apply to processing of debt
complaints (not involuntary allotments):
(1) Debt complaints meeting the requirements of this part, and
procedures established by the Under Secretary of Defense (Personnel and
Readiness), as required by 32 CFR part 113, shall receive prompt
processing assistance from commanders.
(2) Assistance in indebtedness matters shall not be extended to
those creditors:
(i) Who have not made a bona fide effort to collect the debt
directly from the military member;
(ii) Whose claims are patently false and misleading; or
(iii) Whose claims are obviously exorbitant;
(3) Some States have enacted laws that prohibit creditors from
contacting a debtor's employer about indebtedness or
[[Page 1722]] 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.
(i) At Department of Defense 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.
(ii) The rule in Sec. 112.4(c)(3)(i) 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.
(4) Under 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 this own behalf.
(d) The following general policies apply to processing of
involuntary allotments under 5 U.S.C. 5520a(k).
(1) 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 pay of the member may be made under procedures
prescribed by the Under Secretary of Defense (Personnel and Readiness).
Such procedures shall provide the exclusive remedy available under 5
U.S.C. 5520a(k).
(2) An involuntary allotment from a member's pay shall not be
started in any indebtedness case in which:
(i) Exigencies of military duty caused the absence of the member
from the judicial proceeding at which the judgment was rendered; or
(ii) There has not been compliance with the procedural requirements
of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.
appendix sections 501-591.
Sec. 112.5 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 and involuntary allotments.
(2) Have policy oversight on the assistance to be provided by
military authorities to creditors of military personnel who have debt
complaints, and on involuntary allotment of military pay.
(b) The Under Secretary of Defense (Comptroller) shall:
(1) Establish, as necessary, procedures supplemental to those
promulgated by the Under Secretary of Defense (Personnel and Readiness)
to 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, DFAS:
(i) Implements procedures established by the Under Secretary of
Defense (Personnel and Readiness) and the Under Secretary of Defense
(Comptroller).
(ii) Considers whether the Soldiers' and Sailors' Civil Relief Act
of 1940, as amended (50 U.S.C. appendix sections 501-591), has been
complied with under 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 Department of Defense Executive Agent for
Department of Defense forms necessary to process involuntary
allotments.
(c) The Heads of the Department of Defense 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 Department of Defense personnel. See DoD Directives
1000.10,\3\ 1000.11,\4\ and 5500.7.\5\
\3\See footnote 1 to Sec. 112.4(a)(1).
\4\See footnote 1 to Sec. 112.4(a)(1).
\5\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 payment 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 (Personnel and Readiness)
to 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 Commanding Officer, Coast Guard Pay and
Personnel Center:
(i) Implements procedures established by the Under Secretary of
Defense (Personnel and Readiness) and Chief, Office of Personnel and
Training.
(ii) Considers whether the Soldiers' and Sailors' Civil Relief Act
of 1940, as amended (50 U.S.C. appendix sections 501-591), has been
complied with under 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 Executive Agent for forms necessary
to process involuntary allotments.
PART 113--INDEBTEDNESS OF MILITARY PERSONNEL
Sec.
113.1 Purpose.
113.2 Applicability.
113.3 Definitions.
113.4 Policy.
113.5 Responsibilities.
113.6 Procedures.
Appendix A to part 113--Certificate of Compliance
Appendix B to part 113--Standards of Fairness
Appendix C to part 113--Sample DD Form 2653, ``Involuntary Allotment
Application''
Appendix D to part 113--Sample DD Form 2654, ``Involuntary Allotment
Notice and Processing''
Authority: 5 U.S.C. 5520a(k) and 10 U.S.C. 113(d).
Sec. 113.1 Purpose.
This part implements policy, assigns responsibilities, and
prescribes procedures under 32 CFR part 112 governing delinquent
indebtedness of members of the Military Services.
Sec. 113.2 Applicabichlity.
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 Military [[Page 1723]] Service in the Navy by agreement
with the Department of Transportation), the Chairman of the Joint
Chiefs of Staff, the Unified Combatant Commands, the Inspector General
of the Department of Defense, the Defense Agencies, and the DoD Field
Activities (hereafter referred to collectively as ``the DoD
Components''). The term ``Military Services,'' as used herein, refers
to the Army, the Navy, the Air Force, the Marine Corps, and the Coast
Guard.
Sec. 113.3 Definitions.
(a) Appearance. The presence and participation of a member of the
Military Services, or an attorney of the member's choosing, throughout
the judicial proceeding from which the judgment was issued that is the
basis for a request for enforcement through involuntary allotment.
(b) Applicant. The original judgment holder, a successor in
interest, or attorney or agent thereof who requests an involuntary
allotment from a member of the Military Services pursuant to DoD
Directive 1344.9.\1\
\1\Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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(c) Pay subject to involuntary allotment. For purposes of complying
with 32 CFR part 112 and 5 U.S.C. 5520a(k), pay subject to involuntary
allotment shall be determined by:
(1) Including:
(i) Basic pay but excluding reduction for education for education
benefits under section 38 U.S.C. 1411 (``New G.I. Bill'').
(ii) Special pay (including enlistment and reenlistment bonuses).
(iii) Incentive pay.
(iv) Accrued leave payments (basic pay portion only).
(v) Readjustment pay.
(vi) Severance pay (including disability severance pay).
(vii) Lump-sum Reserve bonus.
(viii) Inactive duty training pay.
(2) Excluding:
(i) Retired pay (including) disability retired pay).
(ii) Retainer pay.
(iii) Separation pay, Voluntary Separation Incentive (VSI), and
Special Separation Benefit (SSB).
(iv) Allowances paid under titles 10 and 37 of the United States
Code (e.g., Chapter 53 of title 10 and Chapter 7 of title 37,
respectively) and other reimbursements for expenses incurred in
connection with duty in the Military Service or allowances in lieu
thereof.
(v) Payments not specifically enumerated in Sec. 113.3(c)(1).
(3) After including the items in Sec. 113.3(c)(1), subtracting the
following pay items to compute the final earnings value of the pay
subject to involuntary allotment:
(i) Federal and State employment and income tax withholding (amount
limited only to that which is necessary to fulfill member's tax
liability).
(ii) FICA tax.
(iii) Amounts mandatorily withheld for the United States Soldiers'
and Airmen's Home.
(iv) Deductions for the Servicemen's Group Life Insurance coverage.
(v) Retired Serviceman's Family Protection Plan.
(vi) Indebtedness to the United States.
(vii) Fines and forfeitures ordered by a court-martial or a
commanding officer.
(viii) Amounts otherwise required by law to be deducted from a
member's pay (except payments under 42 U.S.C. 659, 661, 662, and 665).
(d) Preponderence of the evidence. A greater weight of evidence
that is more credible and convincing to the mind. That which best
accords with reason and probability. (See Black's Law Dictionary\2\)
\2\Black's Law Dictionary, Fourth Edition, West Publishing
Company, Saint Paul, Minnesota (1952).
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(e) Proper and Timely Manner. A manner that under the circumstances
does not reflect discredit on the Military Service.
Sec. 113.4 Policy
(a) It is DoD policy under 32 CFR part 112 that procedures be
established for the processing of debt complaints against members of
the Military Services and involuntary allotments from the pay of
members of the Military Services.
(b) An involuntary allotment shall not exceed the lesser of 25
percent of a member's pay subject to involuntary allotment or the
maximum percentage of pay subject to garnishment proceedings under the
applicable State law.
(c) The amount of an involuntary allotment under 32 CFR part 112
and this part when combined with deductions as a result of garnishments
or statutory allotments for spousal support and child support under 42
U.S.C. 659, 661, 662, or 665, may not exceed the lesser of 25 percent
of a member's pay subject to involuntary allotment or the maximum
percentage of pay subject to garnishment proceedings under applicable
State law. In any case in which the maximum percentage would be
exceeded, garnishments and involuntary allotments for spousal and child
support shall take precedence over involuntary allotments authorized
under 32 CFR part 112 and this part. Involuntary allotments established
under 32 CFR part 112 and this part shall be reduced or stopped as
necessary to avoid exceeding the maximum percentage allowed.
(d) The Truth in Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-
1646, 1661-1666j, and 1667-1667e) prescribes the general disclosure
requirements that must be met by those offering or extending consumer
credit and Federal Reserve Board Regulation Z (12 CFR 226) prescribes
the specific disclosure requirements for both open-end and installment
credit transactions. In place of Federal Government requirements, State
regulations apply to credit transactions when the Federal Reserve Board
has determined that the State regulations impose substantially similar
requirements and provide adequate enforcement measures. Commanding
officers, with the assistance of judge advocates, should check
regulations of the Federal Reserve Board to determine whether Federal
or State laws and regulations govern.
Sec. 113.5 Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness
shall monitor compliance with this part.
(b) The Under Secretary of Defense (Comptroller) shall ensure
Defense Finance and Accounting Service (DFAS) implementation of this
part.
(c) The Heads of the DoD Components shall ensure compliance with
this part.
Sec. 113.6 Procedures.
(a) The following procedures apply to the processing of debt
complaints against members of the Military Services.
(1) It is incumbent on those submitting indebtedness complaints to
show that they have met the disclosure requirements of the Truth in
Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1666j, and
1667-1667e) and Federal Reserve Board Regulation Z (12 CFR 226), and
that they complied with the Standards of Fairness (appendix B to this
part).
(2) Creditors subject to Federal Reserve Board Regulation Z (12 CFR
226), and assignees claiming thereunder, shall submit with their debt
complaint an executed copy of the Certificate of Compliance (appendix A
to this part), and a true copy of the general and specific disclosures
provided the member of the Military Service as required by the Truth in
Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1666j, and
1667-1667e). Debt complaints that request assistance but do not meet
these requirements will be returned without action to the
claimant. [[Page 1724]]
(3) A creditor not subject to Federal Reserve Board Regulation Z
(12 CFR 226), such as a public utility company, shall submit with the
request a certificate that no interest, finance charge, or other fee is
in excess of that permitted by the law of the State in which the
obligation was incurred.
(4) A foreign-owned company having debt complaints shall submit
with its request a true copy of the terms of the debt (English
translation) and shall certify that it has subscribed to the Standards
of Fairness (appendix B to this part).
(5) Debt complaints that meet the requirements of this part shall
be processed by Department of Defense Components. ``Processed'' means
that Heads of the Department of Defense Components, or designees,
shall:
(i) Review all available facts surrounding the transaction forming
the basis of the complaint, including the member's legal rights and
obligations, and any defenses or counterclaims the member may have.
(ii) Advise the member concerned that:
(A) Just financial obligations are expected to be paid in a proper
and timely manner, and what the member should do to comply with that
policy;
(B) Financial and legal counseling services are available under DoD
Directive 1344.7\3\ in resolving indebtedness; and
\3\See footnote 1 to Sec. 113.3(b).
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(C) That a failure to pay a just debt may result in the creditor
obtaining a judgment from a court that could form the basis for
collection of pay from the member pursuant to an involuntary allotment.
(iii) If a member acknowledges a debt as a result of creditor
contact with a DoD Component, advise the member that assistance and
counseling may be available from the on-base military banking office,
the credit union serving the military field of membership, or other
available military community service organizations.
(iv) Direct the appropriate commander to advise the claimant that:
(A) Those aspects of DoD policy prescribed in 32 CFR part 112.4,
are pertinent to the particular claim in question; and
(B) The member concerned has been advised of his or her obligations
on the claim.
(v) The commander's response to the claimant shall not undertake to
arbitrate any disputed debt, or admit or deny the validity of the
claim. Under no circumstances shall the response indicate whether any
action has been taken, or will be taken, against the member as a result
of the complaint.
(b) The following procedures apply to the processing of involuntary
allotments from the pay of members of the Military Services.
(1) Involuntary allotment application. (i) Regardless of the
Service Affiliation of the member involved, with the exception of
members of the Coast Guard an application to establish an involuntary
allotment from the pay of a member of the Military Services shall be
made by sending a completed DD Form 2653, ``Involuntary Allotment
Application'' (appendix C to this part) to the appropriate address
listed below. Applications sent to any other address shall be returned
without action to the applicant.
(For Army, Navy, Air Force, or Marine Corps)
Defense Finance and Accounting Service, Cleveland Center, Code L, P.O.
Box 998002, Cleveland, OH 44199-8002
(For Coast Guard only)
Coast Guard Pay and Personnel Center (LGL), 444 S.E. Quincy Street,
Topeka, KS 66683-3591
(ii) Each application must include a copy of the final judgment
certified by the clerk of court and such other documents as may be
required by Sec. 113.6(b)(1)(iv).
(iii) A garnishment summons or order is insufficient to satisfy the
final judgment requirement of Sec. 113.6(b)(1)(ii) and is not required
to apply for an involuntary allotment under this part.
(iv) Involuntary allotment applications must contain the following
information, certifications, and acknowledgment:
(A) The full name, social security number, and branch of Service of
the military member against whose pay an involuntary allotment is
sought. Although not required, inclusion of the member's current duty
station and duty address on the application form will facilitate
processing of the application.
(B) The applicant's full name and address. If the applicant is not
a natural person, the application must be signed by an individual with
the authority to act on behalf of such entity. If the allotment is to
be in favor of a person other than the original judgment holder, proof
of the right to succeed to the interest of the original judgment holder
is required and must be attached to the application.
(C) The dollar amount of the judgment. Additionally, if the
judgment awarded interest, the total dollar amount of the interest on
the judgment accrued to the date of application.
(D) A certification that the judgment has not been amended,
superseded, set aside, or satisfied; or, if the judgment has been
satisfied in part, the extent to which the judgment remains
unsatisfied.
(E) A certification that the judgment was issued while the member
was not on active duty (in appropriate cases). If the judgment was
issued while the member was on active duty, a certification that the
member was present or represented by an attorney of the member's
choosing in the proceedings, or if the member was not present or
represented by an attorney of the member's choosing, that the judgment
complies with the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended (50 U.S.C. appendix sections 501-591).
(F) A certification that the member's pay could be garnished under
applicable State law and section 5520a(k) of the United States Code, if
the member were a civilian employee.
(G) A certification that, to the knowledge of the applicant, the
debt has not been discharged in bankruptcy, nor has the member filed
for protection from creditors under the bankruptcy laws of the United
States.
(H) A certification that if the judgment is satisfied prior to the
collection of the total amount through the involuntary allotment
process, the applicant will provide prompt notice that the involuntary
allotment must be discontinued.
(I) A certification that if the member overpays the amount owed on
the judgment, the applicant shall refund the amount of overpayment to
the member within 30 days of discovery or notice of the overpayment,
whichever, is earlier, and that if the applicant fails to repay the
member, the applicant understands he or she may be denied the right to
collect by involuntary allotment on other debt reduced to judgments.
(J) Acknowledgment that as a condition of application, the
applicant agrees that neither the United States, nor any disbursing
official or Federal employee whose duties include processing
involuntary allotment applications and payments, shall be liable for
any payment or failure to make payment from moneys due or payable by
the United States to any person pursuant to any application made in
accordance herewith.
(v) The original and three copies of the application and supporting
documents must be submitted by the applicant to DFAS.
(vi) A complete ``application package'' (the DD Form 2653,
supporting documentation, and three copies of the
[[Page 1725]] application and supporting documents), is required for
processing of any request to establish an involuntary allotment
pursuant to this part and 32 CFR part 112.
(vii) Applications that do not conform to the requirements of this
part shall not be processed. If an application is ineligible for
processing, the application package shall be returned to the applicant
with an explanation of the deficiency. In cases involving repeated
false certifications by an applicant, the designated DFAS official may
refuse to accept or process additional applications by that applicant
for such period of time as the official deems appropriate to deter
against such violations in the future.
(2) Processing of involuntary allotment applications. (i) Promptly
upon receipt of DD Form 2653 (Appendix C to this part), the designated
DFAS official shall review the ``application package'' to ensure
compliance with the requirements of this part. If the application
package is complete, the DFAS official shall:
(A) Complete Section I of DD Form 2654, ``Involuntary Allotment
Notice and Processing'' (Appendix D to this part), by inserting the
name, social security number, rank, and branch of service of the
military member against whom an application for involuntary allotment
is being processed. Additionally, the DFAS official shall provide the
due date for receipt of a response at DFAS. The due date shall be 90
days from the date DFAS mails the DD Form 2654 to the commander and
member concerned as provided for in Sec. 113.6(b)(2)(i)(B).
(B) Mail one copy of the application package to the member and two
copies of the application package, along with DD Form 2654, to the
commander of the military member or other official as designated by the
Military Service concerned during times of war, national emergency,
deployment, or other similar circumstances, who may act for the
commander, provided the Military Service concerned has provided DFAS
with the name or position of the official and the appropriate address
(hereinafter, the meaning of the term ``commander'' includes such other
official).
(C) Within 60 days of mailing the copies of the application package
and DD Form 2654, DFAS shall provide notice to the member and the
member's commander that automatic processing of the involuntary
allotment application shall occur if a response (including notice of an
approved extension as authorized in Sec. 113.6(b)(2)(iii)(B) and (F),
is not received by the due date specified in Section I of DD Form 2654.
In the absence of a response, DFAS may automatically process the
involuntary allotment application on the fifteenth calendar day after
the date a response was due. When DFAS has received notice of an
extension, automatice processing shall not begin until the fifteenth
calendar day after the approved extension date.
(D) Retain the original of the application package and DD Form
2654.
(ii) Upon receipt of an application, the commander shall determine
if the member identified in Section I of DD Form 2654 is assigned or
attached to the commander's unit and available to respond to the
involuntary allotment application. If the member is not assigned or
attached, or not available to respond (e.g., retired, in a prisoner of
war status, or in a missing in action status), the commander will
promptly complete Section II of DD Form 2654 and attach appropriate
documentation supporting the determination. The commander will then
mail the application package and DD Form 2654 to DFAS. Section II shall
also be used by the commander to notify DFAS of extensions beyond the
due date for a response contained in Section I of DD Form 2654. When
such extensions are authorized, the commander will complete Section II,
make a copy of Sections I and II, and promptly mail the copy to DFAS.
(iii) Within 5 days of receipt of an application package and DD
Form 2654 from the designated DFAS official, the commander shall notify
the member of the receipt of the application, provide the member a copy
of the entire application package, and counsel the member using and
completing Section III of DD Form 2654 about the following:
(A) That an application for the establishment of an involuntary
allotment for the lesser of 25 percent of the member's pay subject to
involuntary allotment or the maximum percentage of pay subject to
garnishment proceedings under the applicable State law has been
received.
(B) That the member has 15 calendar days from the date of receipt
of the commander's notice to complete Section IV of DD Form 2654. That
for good cause shown, the commander may grant an extension of
reasonable time (normally not exceeding 30 calendar days) to submit a
response. That during times of deployment, war, national emergency,
assignment outside the United States, hospitalization, or other similar
situations that prevent the member from obtaining necessary evidence or
from responding in a timely manner, extensions exceeding 30 calendar
days may be granted. That if the member fails to respond within the
time allowed, the commander will note the member's failure to respond
in Section V of DD Form 2654 and send the form to DFAS for appropriate
action.
(C) That the member's response will either consent to the
involuntary allotment or contest it.
(D) That the member may contest the application for any one of the
following reasons:
(1) There has not been compliance with the procedural requirements
of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (50
U.S.C. appendix sections 501-591) during the judicial proceeding upon
which the involuntary allotment application is sought.
(2) ``Exigencies of military duty'' (as defined in 32 CFR part
112.3(d)) caused the ``absence'' of the member from appearance in a
judicial proceeding forming the basis for the judgment upon which the
application is sought.
(3) Information in the application is patently false or erroneous
in material part.
(4) The judgment has been fully satisfied, superseded, or set
aside.
(5) The judgment has been materially amended, or partially
satisfied. When asserting this defense, the member shall include
evidence of the amount of the judgment that has been satisfied.
(6) There is a legal impediment to the establishment of the
involuntary allotment (for example, the judgment debt has been
discharged in bankruptcy, the judgment debtor has filed for protection
from the creditors under the bankruptcy laws of the United States, the
applicant is not the judgment holder nor a proper successor in interest
to that holder, or the applicant has been enjoined by a Federal or
state court from enforcing the judgment debt).
(7) Or other appropriate reasons that must be clearly specified and
explained by the member.
(E) That, if the member contests the involuntary allotment, the
member shall provide evidence (documentary or otherwise) in support
thereof. Furthermore, that any evidence submitted by the member may be
disclosed to the applicant for the involuntary allotment.
(F) That the member may consult with a legal assistance attorney,
if reasonably available, or a civilian attorney at no expense to the
government. That if a legal assistance attorney is available, the
member should immediately arrange for an appointment. That the member
may request a reasonable delay from the commander to obtain legal
assistance (in cases where an approved delay will cause DFAS to receive
the member's [[Page 1726]] response after the due date identified in
Section I of DD Form 2654, the commander must immediately notify the
designated DFAS official of the delay, the date for an expected
response, and the reason for the delay by completing Section II of DD
Form 2654 and forwarding a copy of Sections I and II to DFAS).
Additionally, that requests for extensions of time based on the need
for legal assistance shall be denied to members who fail to exercise
due diligence in seeking such assistance.
(G) That if the member contests the involuntary allotment on the
grounds that exigencies of military duty caused the absence of the
member from the judicial proceeding at which the judgment was rendered,
then the member's commander shall review and make the final
determination on this contention, and notify the designated DFAS
official of the commander's decision by completing Section V of DD Form
2654 and forwarding the form to DFAS.
(1) In determining whether exigencies of military duty caused the
absence of the member, the commander at the level designated by the
Service concerned shall consider the definition of ``exigencies of
military duty'' (as defined in 32 CFR part 112.3(d)).
(2) Additionally, consideration shall be given to whether the
commander at the time determined the military duties in question to be
of such paramount importance that they prevented making the member
available to attend the judicial proceedings, or rendered the member
unable to timely respond to process, motions, pleadings, or orders of
the court.
(H) That if the member contests the involuntary allotment on any
basis other than exigencies of military duty, the application package
and DD Form 2654 shall be returned to the commander who shall forward
it to the designated DFAS official for appropriate action.
(I) That if the member fails to respond to the commander within the
time allowed under Sec. 113.6(b)(2)(iii)(B), the commander shall notify
the designated DFAS official of the member's failure to respond by
completing Section V of DD Form 2654, and forwarding the form to DFAS.
(iv) After counseling the member in accordance with
Sec. 113.6(b)(2)(iii)(A)-(I), the commander shall:
(A) Date and sign Section III of DD Form 2654.
(B) Obtain the member's acknowledgment of counseling by having the
member sign the appropriate space on Section III of DD Form 2654.
(C) Determine if the member consents to the involuntary allotment
or needs the time authorized under this part to review the application
package and take appropriate action. If the member consents to the
involuntary allotment, the commander shall direct the member to
appropriately complete Section IV of DD Form 2654. The commander must
then complete the appropriate item in Section V and promptly forward
the completed DD Form 2654 to the designated DFAS official.
(D) Complete the appropriate items in Section V of DD Form 2654
when the member fails to respond within the time authorized for a
response, or asserts that exigencies of military duty caused the
absence of the member from an appearance in the judicial proceeding
upon which the Involuntary Allotment Application is sought.
(1) In determining whether exigencies of military duty caused the
absence of the member, the commander, at the level designated by the
Service concerned, shall consider the definition of ``exigencies of
military duty'' (as defined in 32 CFR part 112.3(d)), the evidence
provided by the member, any other reasonably available evidence (e.g.,
a copy of the member's personnel record), and whether the commander at
the time determined the military duties in question to be of such
paramount importance that they prevented making the member available to
attend the judicial proceedings, or rendered the member unable to
timely respond to process, motions, pleadings, or orders of the court.
(2) The evidentiary standard for a commander to determine whether
existences of military duty caused the absence of the member from an
appearance in the judicial proceeding upon which the Involuntary
Allotment Application is sought is a ``preponderance of the evidence''
(as defined in Sec. 113.3(d) of this part).
(3) If the commander has made a determination on exigencies of
military duty, the commander must insert in Section V of DD Form 2654,
the title and address of the appeal authority.
(E) Promptly following the date the member's response is due to the
commander as determined by Sec. 113.6(b)(2)(iii)(B), ensure that the DD
Form 2654 is appropriately completed and mail the form, along with any
response received from the member, to DFAS.
(F) Provide the member a copy of the completed DD Form 2654 within
5 days of mailing to the designated DFAS official.
(v) Upon receipt of DD Form 2654 and any additional evidence
submitted by the member, the designated DFAS official shall conduct a
review of the entire application package, DD Form 2654, and any
evidence submitted by the member, to determine whether the application
for an involuntary allotment should be approved and established.
(A) In those cases where the member's commander has completed
Section V of DD Form 2654, and determined that exigencies of military
duty caused the absence of the member from an appearance in a judicial
proceeding upon which the involuntary allotment application is sought,
the designated DFAS official shall deny the involuntary allotment
application and provide the applicant written notice of the denial and
the reason therefor. The designated DFAS official shall also advise the
applicant that:
(1) The responsibility for determining whether exigencies of
military duty existed belonged to the member's commander and the
Military Department concerned.
(2) The commander's decision may be appealed within 60 days of the
date DFAS mailed the notice of the decision to the applicant.
(3) An Appeal must be submitted to the appeal authority at the
address provided by DFAS (as found in Section V of the DD Form 2654) in
their written notice of denial, and that an appeal submitted to an
appeal authority and address different from the one provided by DFAS
may be returned without action.
(4) An appeal must be submitted in writing and contain sufficient
evidence to overcome the presumption that the commander's exigency
determination was correct.
(5) The appellate authority shall decide an appeal within 30 days
of its receipt and promptly notify the applicant in writing of the
decision. The 30 day decision period may be extended during times of
deployment, war, national emergency, or other similar situations.
(6) If an appeal is successful, the applicant must submit a written
request, along with a copy of the appellate authority's decision, to
DFAS within 15 days of receipt of the appellate authority's decision.
(B) Upon receiving written notice that an applicant has
successfully appealed a commander's determination on exigencies of
military duty that resulted in denial of an involuntary allotment
application, DFAS shall review the application in accordance with
Sec. 113.6(b)(2)(v)(C), and determine whether the involuntary allotment
should be approved and initiated.
(C) In all cases, other than as described in
Sec. 113.6(b)(2)(v)(A), the designated DFAS official shall deny an
[[Page 1727]] involuntary allotment application, and give written
notice to the applicant of the reason(s) for denial, if the designated
DFAS official determines that:
(1) There has not been compliance with the procedural requirements
of the Soldier's and Sailor's Civil Relief Act of 1940, as amended (50
U.S.C. appendix sections 501-591) during the judicial proceeding upon
which the involuntary allotment application is sought.
(2) Information in the application is patently false or erroneous
in material part.
(3) The judgment has been fully satisfied, superseded, or set
aside.
(4) The judgment has been materially amended, or partially
satisfied. In such a case, the request for involuntary allotment may be
approved only to satisfy that portion of the judgment that remains in
effect and unsatisfied; the remainder of the request shall be denied.
(5) There is a legal impediment to the establishment of the
involuntary allotment (for example, the judgment debt has been
discharged in bankruptcy, the judgment debtor has filed for protection
from the creditors under the bankruptcy laws of the United States, the
applicant is not the judgment creditor nor a proper successor in
interest to that creditor, or the applicant has been enjoined by a
Federal or State court from enforcing the judgment debt).
(6) The member's pay is already subject to one or more involuntary
allotments or garnishments that equal the lesser of 25 percent of the
member's pay subject to involuntary allotment or the maximum percentage
of pay subject to garnishment proceedings under the applicable State
law.
(7) The applicant has abused the processing privilege (e.g., an
applicant, having been notified of the requirements of this part,
repeatedly refuses or fails to comply therewith).
(8) Or other appropriate reasons that must be clearly explained to
the applicant.
(D) In all cases other than as described in Sec. 113.6(b)(2)(v) (A)
and (C), the designated DFAS official shall approve the involuntary
allotment application and establish an involuntary allotment against
the pay subject to involuntary allotment of the member.
(vi) The designated DFAS official shall, at any time after
establishing an involuntary allotment, cancel or suspend such allotment
and notify the applicant of that cancellation if the member concerned,
or someone acting on his or her behalf, submits legally sufficient
proof, by affidavit or otherwise, that the allotment should not
continue because of the existence of the factors enumerated in
Sec. 113.6(b)(2)(v)(A) and (C)(1)-(8).
(3) Payments
(i) Payment of an approved involuntary allotment under 32 CFR part
112 and this part shall commence within 30 days after the designated
DFAS official has approved the involuntary allotment.
(ii) Payments under this part shall not be required more frequently
than once each month, and the designated official shall not be required
to vary normal pay and disbursement cycles.
(iii) If the designated DFAS official receives several applications
on the same member of a Military Service, payments shall be satisfied
on a first-come, first-served basis.
(iv) Payments shall continue until the judgment is satisfied or
until canceled or suspended.
(A) DFAS shall collect the total judgment, including interest when
awarded by the judgment. Within 30 days following collection of the
amount of the judgment, including interest as annotated by the
applicant in Section I of DD Form 2654, the applicant may submit a
final statement of interest that accrued during the pay-off period.
This final statement of interest request must be accompanied by a
statement of account showing how the applicant computed the interest
amount. DFAS will collect this post-application interest provided it is
an amount owed pursuant to the judgment. DFAS shall not accept any
further interest requests.
(B) Interest or other costs associated with the debt forming the
basis for the judgment, but not included as an amount awarded by the
judgment, shall not be paid to applicants for involuntary allotments.
(v) If the member is found not to be entitled to money due from or
payable by the Military Services, the designated official shall return
the application and advise the applicant that no money is due from or
payable by the Military Service to the member. When it appears that pay
subject to an involuntary allotment is exhausted temporarily or
otherwise unavailable, the applicant shall be told why and for how long
that money is unavailable, if known. Involuntary allotments shall be
canceled on or before the date a member retires, is discharged, or is
released from active duty. The designated DFAS official shall notify
the applicant of the reason for cancellation.
(vi) Upon receiving notice from an applicant that a judgment upon
which an involuntary allotment is based has been satisfied, vacated,
modified, or set aside, the designated DFAS official shall promptly
adjust or discontinue the involuntary allotment.
(vii) The Under Secretary of Defense (Comptroller) may, in DoD
7000.14-R\4\ Volume 7, Part A, designate the priority to be given to
involuntary allotments pursuant to 32 CFR part 112 and this part, among
the deductions and collections taken from a member's pay, except that
they may not give precedence over deductions required to arrive at a
member's disposable pay for garnishments or involuntary allotments
authorized by statute for alimony and child support payments. In the
absence of a contrary designation by the Comptroller, all other lawful
deductions (except voluntary allotments by the member) and collections
shall take precedence over these involuntary allotments.
\4\See footnote 1 to Sec. 113.3(b).
---------------------------------------------------------------------------
Appendix A to Part 113--Certificate of Compliance
I certify that the (Name of Creditor) upon extending credit
to---------------------------------------------------------------------
on---------------------------------------------------------------------
(Date)
complied with the full disclosure requirements of the Truth-in-
Lending Act and Regulation Z, and the Fair Debt Collection Practices
Act (or the laws and regulations of State of ____________________),
and that the attached statement is a true copy of the general and
specific disclosures provided the obligor as required by law.
I further certify that the Standards of Fairness set forth in
DoD Directive 1344.9\1\ have been applied to the consumer credit
transaction to which this form refers. (If the unpaid balance has
been adjusted as a consequence, the specific adjustments in the
finance charge and the annual percentage rate should be set forth
below.)
\1\Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------
----------------------------------------------------------------------
(Adjustments)
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(Date of Certification)
----------------------------------------------------------------------
(Signature of Creditor or Authorized Representative)
----------------------------------------------------------------------
(Street)
----------------------------------------------------------------------
(City, State and Zip Code)
Appendix B to Part 113--Standards of Fairness
1. No finance charge contracted for, made, or received under any
contract shall be in excess of the charge that could be made for
such contract under the law of the place in which the contract is
signed in the United States by the military member. [[Page 1728]]
a. In the event a contract is signed with a U.S. company in a
foreign country, the lowest interest rate of the State or States in
which the company is chartered or does business shall apply.
b. However, interest rates and service charges applicable to
overseas military banking facilities shall be as established by the
Department of Defense.
2. No contract or loan agreement shall provide for an attorney's
fee in the event of default unless suit is filed, in which event the
fee provided in the contract shall not exceed 20 percent of the
obligation found due. No attorney fees shall be authorized if the
attorney is a salaried employee of the holder.
3. In loan transactions, defenses that the debtor may have
against the original lender or its agent shall be good against any
subsequent holder of the obligation. In credit transactions,
defenses against the seller or its agent shall be good against any
subsequent holder of the obligation, provided that the holder had
actual knowledge of the defense or under conditions where reasonable
inquiry would have apprised the holder of this fact.
4. The military member shall have the right to remove any
security for the obligation beyond State or national boundaries if
the military member or family moves beyond such boundaries under
military orders and notifies the creditor, in advance of the
removal, of the new address where the security will be located.
Removal of the security shall not accelerate payment of the
obligation.
5. No late charge shall be made in excess of 5 percent of the
late payment, or $5.00, whichever is the lesser amount, or as
provided by law or applicable regulatory agency determination. Only
one late charge may be made for any tardy installment. Late charges
shall not be levied where an allotment has been timely filed, but
payment of the allotment has been delayed. Late charges by overseas
banking facilities are a matter of contract with the Department of
Defense.
6. The obligation may be paid in full at any time or through
accelerated payments of any amount. There shall be no penalty for
prepayment. In the event of prepayment, that portion of the finance
charges that has inured to the benefit of the seller or creditor
shall be prorated on the basis of the charges that would have been
ratably payable had finance charges been calculated and payable as
equal periodic payments over the terms of the contract, and only the
prorated amount to the date of prepayment shall be due. As an
alternative, the ``Rule of 78'' may be applied.
7. If a charge is made for loan insurance protection, it must be
evidenced by delivery of a policy or certificate of insurance to the
military member within 30 days.
8. If the loan or contract agreement provides for payments in
installation, each payment, other than the down payment, shall be in
equal or substantially equal amounts, and installments shall be
successive and of equal or substantially equal duration.
9. If the security for the debt is repossessed and sold in order
to satisfy or reduce the debt, the repossession and resale shall be
governed by the laws of the State in which the security is
requested.
10. A contract for personal goods and services may be terminated
at any time before delivery of the goods or services without charge
to the purchaser. However, if goods made to the special order of the
purchaser result in preproduction costs, or require preparation for
delivery, such additional costs shall be listed in the order form or
contract.
a. No termination charge shall be made in excess of this amount.
Contracts for delivery at future intervals may be terminated as to
the undelivered portion.
b. The purchaser shall be chargeable only for that proportion of
the total cost that the goods or services delivered bear to the
total goods called for by the contract. (This is in addition to the
right to rescind certain credit transactions involving a security
interest in real estate provided by the Truth in Lending Act (15
U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1665a, 1666-1666j, and
1667-1667e) and Federal Reserve Board Regulation Z (12 CFR 226)).
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[FR Doc. 95-224 Filed 1-4-95; 8:45 am]
BILLING CODE 5000-04-C
