Free Notice of Additional Authority - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WILLIAM A. CLARK, et. al., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 00-644 (Chief Judge Damich)

DEFENDANT'S NOTICE OF SUPPLEMENTAL AUTHORITY On January 6, 2006, the President of the United States signed into law the 2006 National Defense Authorization Act ("NDAA").1 In section 604 of the NDAA, Congress set forth clarifying language regarding section 206(d) of Title 37. Section 604 of the 2006 NDAA states the following: SEC 604. CLARIFICATION OF RESTRICTION ON COMPENSATION FOR CORRESPONDENCE COURSES. Section 206(d)(1) of Title 37, United States Code, is amended by inserting after `reserve component' the following: `or by a member of the National Guard while not in Federal service'. An extract from the NDAA (H.R. 1815), as well as an extract of the accompanying conference report (Report 109-360), are attached to this pleading as exhibits.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ James M. Kinsella JAMES M. KINSELLA Deputy Director The Senate approved the NDAA of 2006 on December 21, 2005, and the House of Representatives approved it on December 19, 2005.
1

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OF COUNSEL: LT. COL. JOSEPH FETTERMAN MAJOR CHRIS SOUCIE United States Army Litigation Division Arlington, VA 22203-1837 LT. COL. JOSEPH WENDLBERGER United States Air Force General Litigation Division MAJOR CHRIS BROWN National Guard Bureau Office of Chief Counsel

s/ Douglas K. Mickle DOUGLAS K. MICKLE Trial Attorney National Courts Commercial Litigation Branch Civil Division United States Department of Justice Washington, D.C. 20530 Tel. (202) 353-7961 Fax (202) 353-7988

Attorneys for Defendant January 11, 2006

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on January 11, 2006, a copy of the foregoing "DEFENDANT'S NOTICE OF SUPPLEMENTAL AUTHORITY" with its accompanying appendix was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Douglas K. Mickle Douglas K. Mickle

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H.R. 1815

One~undred

AT THE FIRST

SESSION

Be~u~and held at the City of Washittb~onoft Tuesday, the fourth day of Jmm.O',

Be it enacted by the Senate and House of Representatives the United States of America in Congress assembled,

of

This Act may be cited as the '2"~ational Defense Authorization Act for Fiscal Year 2006". (a) DlvmIoNs.--This Act is organized into three dl-dsions follows: (1) Di~sion A~Dep~tmentof Defense Authorizations. (2) Di~sion B~Milita~ Construction Autho~za~ons. (3) Di~sion C~Depar~ent of Ener~ National Secu~ty Authorizations and Other Authorizations. (b) TABLE CONTENTS.~he OF table of contents for this Act is as follows:

See. 122. L~Replacement (L~(R))amphibiou~ assault ~hip prepare.

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H. R. 1815--7 Sec. 593. Adoptionleave for members the Armed of Forces adopting children.

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H. R. 1815--149 appropriate with respect to the offering of a voluntary, nondenominational prayer at an otherwise authorized activity of the academy, subject to the United States Constitution and such limitations as the Secretary of Defense may prescribe. (b) SERVICEACADEMIES.--Forpurposes of this section, the term "service academy" means any of the follo~ving: (1) The United States Military Academy. (2) The United States Naval Academy. (3) The United States Air Force Academy. SEC, 599. MODIFICATION AUTHORITY MAI[E MLL1TARY OF TO WORKING DOGSAVALLkBLE FOR ADOPTION, (a) ADglINISTIL~.TION OF AUTHORITY SECRETARIESOF MILIBY TARYDEPARTMENTS.---Subsection (a) of section 2883 of title 10, United States Code, is amended-(1) by st~ildng "Secretary of Defense may" and inserting "Secretary of the military department concerned may"; and (2) by striking "the Department of Defense" and inse~ing "such military department". (b) AUTHORITY TO MAKE DOGS AVAILABLE FOR ADOPTION BEFORE END OF USEFULWORKING LIFE.--Such subsection is further ~mended by striking "at the end" and all that follows and inserting ', unless the dog has been determined to be unsuitable for adoption under subsection (b), under circumstances as follows: ',:(1) At the end of the dog's useful ,working life. (2) Before the end of the dogs useful working life, such Secretary, in such Secretary's discretion, determines that unusual or extraordinary circumstmaces justify making the dog available for adoption before that time. "(3) When the dog is other~vise excess to the needs such military department.". (c) CLARIFICATION OF REPORTINGREQUIREMENT.--Subsection (f) of such section is amended by inserting "of Defense" ai~er "Secretary'. (d) CONFORMING AND CLERICAL A,MENDMENTS.--The heading of such section, and the item relating to such section in the table of sections at the begdnning of chapter 153 of such title, are each amended by striking the last six words.

TITLE

VI--COMPENSATION AND OTHER PERSONNEL BENEFITS

Sec. 601. Increase in basic pay for fiscal year 2006. See. 60-. Additional pay for permanentmilitary professors at United States Naval Academy over 36 years of service. with See. 603. Basic pay rates for reserve component members selected to attend mthSec. 605. Enhancedauthori~ for agency contributions for membersof the Armed Forcesparticipating in the Thrift Savlng~s Plan. Sec. 606. Pilot program contributions to Thrift SavingsPlan for initial enlistees on in the Army. Sec. 607. Prohibition against requiring certain injured members pay for meals to providedby military treatmentfacilities. See. 608. Permanentauthority for supplemental subsistence allowance for low-incomemembers ',rith dependents. Sec. 609. tncrease in basic allowance for boualngand extension of temporarylodging ~xpenses authority for areas subject to major disa~tsr declaration or

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H. R. 1815--152 by the end the following: ,, or (2) the inserting before the period at and midshipmen under at rate provided for cadets subsection (c), whicheveris greater". SEC. 604. CLARIFICATION RESTRICTION CO~PENSATION OF ON FOR CORRESPONDENCE C OLrlIs ES. Section 206(d)(1) of title 37, United States Code, is amended by inserting after "reserve component" the following: "or by a memberof the National Guard while not in Federal service". SEC. 605. ENtLA~CED AUTHORITY AGENCY FOR CONTREBUTIONS FOR ~EM~ERSOF THE APhiD FORCESPARTICIPATING IN THE THI~T SAVINGS PLAN. (a) AUTHORITY MAKE TO CONTRIBUTIONS CERTAIN FOR FIRSTTIME ENLISTEES.--Subsection(d) of section 211 of title 37, United States Code, is amended(l) in paragraph (I~-(A) in subparagraph (A), by inserting "(i)" after (B) by redeslgnatSng subparagraph (B) as clause of subparagraph (A) and, in such clause, by striking the period at the end and inserting "; or"; and (C) by adding at the end the following new subparagraph (B): "(B) is enlisting in the armed forces for the first time and the period of the member's enlistment is not less than two years."; (2) in paragraph (2), by striking "paragraph (1)" the place it appears and inserting "paragraph (1)(A)'; (3) by designating the second sentence of paragrap,h, (2) as paragr,a, ph (4) and, in such paragraph by striking this paragraph' and inserting "this subsection"; and (4) by inserting before such paragraph (4) the following new paragraph: "(3) In the case of a member described by paragraph (1)(B), the Secretary shall make contributions to the Fund for the benefit of the memberfor each pay period of the enlistment of the member described in that paragraph for which the member makes a contribution to the Fund under section 8440e of title 5 (other than under subsection (d)(2) thereof).". (b) CLERICAL AMENDMENT.-~uchsubsection is further amended by inserting "AND FIRST-TIME ENLISTEES" after "SPECIALTIES". SEC.606. FIX,OT PROGI~4J~I CONTREBUTIONS THRIFT ON TO SAVINGS (a) PILOTPROGRAMREQUIRED.~During ~sca] year 2006, the Secretary the Armyshall of usethe authority provided section by 211(d)(1)(B) of title 10, United States Code, as amendedby section 605, to carry out within the Army a pilot program in order to assess the extent to which contributions by the Secretary to the Thrift Savings Fund on behalf of members of the Armydescribed in subsection (b) would-(1) assist the Army recruiting efforts; and in (2) assist such members establishing habits of financial in responsibility during their initial enlistment in the Armed Forces. (b) COVERED MEMBERS.--To eligible to participate be in the pilot program under subsection (a), a member of the Army must

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10~H CONGI~ESS } isl Session

HOUSE OF REPRESENTATIVES

/

REPORT 109-360

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006

CONFERENCE REPORT
TO ACCOMPANY

H.R. 1815

DECE~,EBER 2005.--Ordered to be printed 18,

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CONTENTS

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TITLE V--MILITARY PEI~SONNEL POLiCY--Continued Legislative Provisions Adopted--Continued Subtitle K--Other Matters~Continued Extension of date of submittal of report of Veterans' Disability Benefits Commission 590) (sec. ..................................................... Recruitment and enlistment of home-schooled students in the armed forces (sec,591) ................................................................... Modification of requirement for certain intermediaries under certain authorities relating to adoption (sec. 592)............................ Adoption leave for members of the armed forces adopting children 593) (sec. ................................................................................. Addition of information to be covered in mandatory preseparation counseling 594)............................................... (sec. Reporton Transition Assistance Programs (sec. 595) ..................... Improvement to Department of Defense capacity to respond to sexual assault affecting members of the armed forces (sec. 596) .................................................................................................. Authority for appointment of Coast Guard flag officer as Chief of Staff to the President (sec. 597)................................................ Prayer at military service academy activities (sec. 598) ................. Modification of authority to make military ~vorking dogs availablefor adoption 599) (sec. ............................................................ Legislative Provisions Adopted Not ................................................................ Administrative censures of members the armed forces .............. of CAPSTONE overseas field studies trips to People's Republic of Chinaand Republic Chinaon Taiwan of ...................................... Cold Victory .................................................................... War Medal Commencement receipt of non-regular service retired pay by of membersof the ready reserve on active federal status or active duty significant for periods ............................................................ Comptroller Generalstudy of military recruiting ........................... Eligibility of certain persons for space-available travel on militaryaircral~ ..................................................................................... Establishment Combat of Medevnc Badge ....................................... Extansion of waiver authority of Secretary of Education ~vith respect to student financial assistance during a war or other military operationor national emergency .................................... Federal assistance for state programs under the National Guard Youth Challenge program .............................................................. Improvedadministration of transitional assistance pro~gr,ams ....... Members compIeting statutory initial military service obligation . National to Service Call program ..................................................... Performance by reserve component personnel of operational test and evaluation and training relating to new equipment............ Repeal of limitation on authority to redesignate the Naval Reserveas the Navy Reserve ............................................................. Sense of the Senate on notice to Congress of recognition of members of the armed forces for extraordinary acts of bravery, heroism, achievement and ............................................................. Short ............................................................................................ title Short ............................................................................................ title Standardization of grade of senior dental officer of the Air Force ~viththat of senior dental officer of the Army .............................. Use of National Guard to provide military support to civilian law enforcement agencies for domestic counterterrorism activities................................................................................................... TITLEV~OMPENS~.TIONOTHER AND PERSONNEL BENEFrrs ............................. Legislative Provisions Adopted ........................................................................ SubtitleA--Pay Allowances and .............................................................. Increase in basic pay for fiscal year 2006(sec. 601) ....................... Additional pay for permanent military professors at United States Naval Academy ~vith over 96 years of service (sec. 602) Basic pay rates for reserve component members selected to attend military service academypreparatory schools (sec. 903) .... Clarification of restriction on compensation for correspondence courses 604) (sec. ............................................................................

712 712 712 712 713 713 713 714 714 714 71,t 714 715 715 715 716 716 716 716 717 717 717 717 718 718 718 718 719 719 719 719 719 719 719 719 720 720

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152 tional prayer at an otherwise authorized activity of the academy, subject to the United States Constitution and such limitations as the Secretary of Defense may prescribe. CO) SERVICE ACADEMIES.--For purposes of this section, the term "service academy" means any of the following: (1) The United States Military Academy. (2) The United States Naval Academy. (3) The United States Air Force Academy. SEe. 599. MODIFICATIONOF AUTHORITY TO ~L4KE MILITA32y WORKING DOGS AVAILABLE FOR ADOPTION. (a) AZ)MINISTRATION OF AUTHORITY BY SECRETARIES OF MILITARY DEPARTMENTS.---Subsection (a) of section 2583 of title 10, United States Code, is amended~ (1) by striking "Secretary of Defense may" and inserting "Secretary of the military department concerned may';" and (2) by strikiog "the Department of Defense" and inserting "such military department': CO) AUTHORITY TO MAEE DOGS AVAIL.~d~LE FOR ADOPTION FORE END OF USEFUL ~70RIffNG LIFE.--Such subsection is further amended by striking "at the end" and all that follows and inserting ", unless the dog has been determined to be unsuitable for adoption under subsection Co), under circumstances as follows: "(1) At the end of tke dog's useful working life. "(2) Before the end of the dog's useful working life, if such Secretary, in such Secretary's discretion, determines that unusual or extraordinary circumstances justify making the dog available for adoption before that time. "(3) When the dog is otherwise excess to the needs of such military department.". (c) CLAJ?IPICATION OF REPORTING REQUIBEMENT.~ubsection (I9 of such section is amended by inserting "of Defense" after "Secretary': (d) CONFORMING .43VD CLERICAL A~IENDMENTS.--The heading such section, and the item relating to such section in the table of sections at the beginning of chapter 153 of such title, are each amended by striking the last six words.

TITLE

VI--COMPENSATION AND OTHER PERSONNEL BENEFITS

Subtitle A--Pay and Allowances Sea 601. Increasein basic pay]*or fiscal year2006. Sac. 602. Additional pay for permanentmilitary professors at United States Naval Academy over 36 years of servlee. with Sea 603. Basic pay rates for reserve compoaent members selected to attend military service academy preparatoryschools. Sea 604. Clarification of restriction on compensation correspondence for courses. Sac. 60& Enhanced authority for agency contributions for membersof the Armed Forcesparticipating in the Thrift SavingsPlan. Sac. 606. Pilot program contributions to Thrift SavingsPlan for initial enlistees on in the Army. Prohibition against requiring certain injured members pay for meals to provided milita~, treatmentfacilities. by Sac.608, Permanentauthority for supplemental subsistence allowance for low-incomememberswith dependents.

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155 BASIC PAY RATES FOR RESERVECOMPONENT ME~tBERS SELECTED TO ATTEND MILITARY SERVICE ACADEMY PRE. PARATORY SCHOOLS. Section 203(e)(2) of title 37, United States Code, is amended-(1) by striking "on active duty for a period of more than days shall continue to receive" and inserting "~shall receive';" and (2) by inserting before the period at the end the following: "or at the rate provided for cadets and midshipmen under subsection (c), whichever is greater'; SEC. 604. CLARIFICATION OF RESTRICTION ON COMPENSATION FOR CORRESPONDENCE COURSES. Section 206(d)(1) of title 37, United States Code, is amended ~nsert~ng after reserve component the following: or by a member of the National Guard while not in Federal service': SEe, 605. ENHANCED AUTHORITYFOR AGENCY CONTRIBUTIONS FOR MEMBERS THE ARMED OF FORCESP.4.RTICIPATING IN THE THRIFT SAVINGS PLAN. (a) AUTHORIT]" TO Mz~ CONTRIBUTIONS FOR CERTAIN FIRSTTIME ENLISTEES.~ubsection (d) of section 211 of title 37, United States Code, is amended-(1) in paragraph (1)-(A) in subparagraph (A), by inserting "(i)" after ¯ (B) by redesignating subparagraph (B) as clause (ii) subparagraph (A) and, in such clause, by striking the period at the end and inserting '~ or';" and (C) by adding at the end the following new subparagraph (B): "(B) is enlisting in the armed forces for the first time and the period of the member's enlistment is not less than two years."; (2) in paragraph (2), by striking "paragraph (1)" the place it appears and inserting "paragraph (1)(A)';" (3) by designating the second sentence of paragraph (2) paragraph (4) and, in such paragraph, by striking "this paragraph" and inserting "this subsection"; and (4) by inserting before such paragraph (4) the following new paragraph: "(3) In the case of a member described by paragraph (1)(B), Secretary shall make contributions to the Fund for the benefit of the member for each pay period of the enlistment of the member described in that paragraph for which the member makes a contribution to the Fund under section 8440e of title 5 (other than under subsectionCLERICz~ A~IENDMENT.--~Such subsection (d)(2) thereol~.': (b) is further amended by inserting "AND FIRST-~IME ENLISTEES" after "SPECIALTIES". SEC, 606~ PILOT PROGI~4~I ON CONTRIBUTIONS THRIFT SAV£NGS TO PLAN FOR INITIAL ENLISTEES IN THE ARMY. (a~ PILOT PROG~4M REQUIRED.--During fiscal year 2006, the Secretary of the Army shall use the authority provided by section 211(d)(1)(B) of title I0, United States Code, as amended by section 605, to carry out within the Army a pilot program in order to assess the extent to which contributions by the Secretary to the Thrift Savings would--on behalf of members of the Army described in subsection (b) Fund (1) assist the Army in recruiting efforts; and SEC. 603.

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720 The Senate recedes. Basic pay rates for reserve component members selected to attend military service academypreparatory schools (sec. 603) The House bill contained a provision (sec. 603) that would clarify that resel~e component members who are attending military service academy preparatory schools shall be paid at the rate prescribed for the member's pay grade unless the standard rate of compensation provided to cadets and midshipmen is greater. The Senate amendment contained no similar provision. The Senate recedes with a technical amendment~ Clarification of restriction on compensation for correspondence courses (sec. 604) The House bill contained a provision (sec. 604) that would clarify that members of the National Guard, as well as other members of the reserve components, are not authorized to be compensated for work associated with participation in a correspondence course sponsored by a uniformed selwice. The Senate amendmentcontained no similar provision. The Senate recedes. Enhanced authority for agency contributions for members of the Armed Forces participating in the Thrift Savings Plan (sec. 605) The Senate amendment contained a provision (sec. 602) that would authorize se~dce secretaries to make matching contributions to the Thrift Savings Fund pursuant to an agreement with an enlisted membercovering the duration of the member'sinitiai enlistment. The House bill contained no similar provision. The House recedes with a technical amendment. Pilot programon contributions to Thrift Savings Plan for initial enlistees in the Army(sec. 606) The Senate amendment contained a provision (sec. 652) that ~vould require the Secretary of the Armyto conduct a pilot program in order to assess the extent to which contributions by the Army to the Thrift Savings Plan on behalf of first term enlistees would assist in recruiting non-prior service enlistees and result in establishing habits of financial responsibility. The House bill contained no similar provision. The House recedes with a clm~fying amendment. Prohibition against requiring certain injured members to pay for meals provided by military treatment facilities (sec. 607) The House bill contained a provision (sec. 1524) that would amend section 402 of title 37, United States Code, to provide that members of the Armed Forces shall not be required to pay for meals at military treatment facilities who are undergoing medical recuperation or therapy, or are othe~vise undergoing continuous care, including outpatient care, for an injury, illness, or disease incurred in support of Operation Iraqi Freedom, Operation Enduring