The Army Lawyer (ISSN 0364-1287)
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THE ARMY Headquarters, Department of the Army Department of the Army Pamphlet 27-50-220 April 1991 Table of Contents Articles Debt Collections on Behalf of Nonapppriated Fund Instrumentalities.. ........................................................ 3 P Mr. Claudio Gnocchf Perjury During an Agency Board Roceedin................................................................................. 7 Mr. Vincent Buonocore . USALSA Report .......................................................................................................... 10 United States Amy &gal Services Agency Annual Review of Developments in htructlons.. ........................................................................... 10 Colonel Herbert Green : Examination and New Trials Division Notes............................................................................... 26 Article 69, UCMJ, Applications-R.C.M. 11 12 Review; Article 69, UCMJ. Applications- Er Parte communications Clerk of Court Note.. ................................................................................................... 27 Summary Courts-Martial Under Review TJAGSA Practice Notes ................................................................................................... 27 Instructors. The Judge Advocate General's School Criminal Law Notes.. ................................................................................................... 27 Accident and Specific Intent Crimes; Determining When a False Claim Is Made; IndmActs with Another and the Need for Touching; Requiring that Drug Distribution Be "Knowing"; Defining and Alleging Indecent Language; Pleading Carnal Knowledge; Commuting Sentences-When Is Lcss Really More? Legal Assistance Items .................................................................................................. 44 Family Law Note (Separation Agreements-Contracting for Unsatisfactory Alimony in Perpetuity?); Consumer Law Note (Updated Listing of New Car LunonLaws); Hospital Law Note (Update on Removal of Cmhodontic Devices During Operations Desert Shield and Desert Storm); Tax Note @OD Designates Imminent Danger Arcas); Survivors Benefits (Recent Developments Affect DIC md SBP Programs); Veterans Law (Supreme Court Agrees to Hear Veterans Reemployment Rights Case, Changes Made to Veterans Reemployment Rights Law); Note From the Field (California State Bar Board Initiates Statewide Effort to Assist Military Personnel on Active Duty During Operation Desert Storm) 4 1 Contract Law Notes.. ............................................................................................ ...... 50 -/ Bid Guarantee Update; Clarification to Year in Revfew Item on Leases of Vessels. Aircraft. and Vehicles Academlc Department Note .............................................................................................. 52 Military Qualification Standards System CbsBepo rt ............................................................................................................ 53 United States Army CIofnu Servlce Claims Policy Note (1991 Table of Adjusted Dollar Value); Management Notes (Disposing of r Legal-Sized Personnel Claims Forms; Certificates of Achievement) Environmental Law Notes ................................................................................................. 55 OTJAG Environmental Law Division and TJAGSA Admlnlstraiiw and Civil Law Divislon , Burning Used Oil for Energy Recovery; Useful Publications: Envlronmenlol Alert Regimental News From the Desk of the Sergeant Major.. .................................................................... 56 Sergeant Major Carlo Roquemore 7lD/71E Basic Noncommissioned Officer COulK CLE News ............................................................................................................... 57 Current Materid of Interest.. ............................................................................................. 59 The Army Lawyer (ISSN 0364-1287) Editor Captain Daniel P. 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Charlotksville, VA 22903-1781. Debt Collections on Behalf of Nonappropriated Fund Instrumentalities Mr. Clnudio Gnoccki Attorney-AdvLsot f“?. US. Army Community and Family Support Center Introduction Similarly, the administrative offset provisions of the Debt collection on behalf of nonappropriated fund DCA permit federal agencies to reconcile debts by offset instrumentalities (NAFb) is of enormous importance in ting monies that otherwise would be payable to agency these times of diminishing appropriated fund support for debtors. Administrative offsets commonly include reim morale, welfare, and recreation (MWR) activities. It is bursements for government travel and benefits checks. particularly important in light of the House hedServ Unfortunately the DCA does not apply to debts owed to a ices Committee’s exhortations to “operate MWR NAFI, because these debts are not considered debts owed activities in a businesslike manner.”I Moreover, NAFk the United States.4 cannot consider patron indebtedness as an imaginary or insignificant problem as long as they operate like their Another idiosyncracy of the offset provisions of the civilian counterparts. For example, in 1989, the combined DCA is that they apply only in the absence of a specific annual dbllar loss for the Fort Rucker Noncommissioned statute authorizing 0ffset.5 Accordingly, federal laws that Officer (NCO) and Officers’ Club delinquent account specifically provide for salary and administrative offset exceeded $28,000. In addition, the magnitude of the effectively prevent an agency from invoking the general NAFI patron indebtedness problem is evidenced by the authority to offset monies provided in the DCA. The abil Army’s applying for $185,955.68 in federal tax refund ity to employ the DCA only in the absence of other offsets from the Internal Revenue Service (IRS) in calen means of recourse is especially significant in debt collec dar year 1989. Patron indebtedness, therefore, poses a tions against soldiers because a specific statute-section substantial burden on the financial livelihood of Army 1007 of title 37, United States Code6 (U.S.C.) MWR activities. Installation NAF managers, however, authorizes the collection of debts owed by service mem may employ several procedures to obtain the payment of bers to the Department of Defense @OD), its instnunen debts from present and past patrons. The purpose of this talities, and other uniformed services. In general, this article is to provide installation judge advocates with a statute allows an agency which has determined admin brief synopsis of the legal tools available to NAFIs in istratively that a member of the uniformed services owes their collection efforts against their debtors. any amount to the United States or any of its instrumen talities’ to deduct that amount from the member’s pay in Specific Offset Statutes monthly installments.* The Debt Collection Act of 19822 OCA) provided fed Collecting soldiers’ debts through 37 U.S.C. section eral agencies with an effective method to collect their 1007, rather than through DC~,not only the law, debts. The salary offset and the administrative offset3 the is but also DOD policy.^ policy, however, d- not ~rovisionsof the DCA provide generalized authority to is foreclose the of the DCA in all situations. meexep debts Owed the to statesmunder the tional circumstances, however, under which an agency offset provisions of the DCA, federal agencies may my subject a =,,ice member to the salary offset provi deduct Up to fifteen percent Of the disposable Pay of sions of the DCA, rather than to the provkions of 37 soldiers-including