B-203457 O.M., FEB 2, 1982
Highlights
AT THE TIME THE RETIRED PAY WAS PAID IT WAS PROPERLY REDUCED BY THE AMOUNT OF VETERANS ADMINISTRATION (VA) COMPENSATION THEN BEING PAID UNDER THE VA COMPENSATION RATES IN EFFECT. THE RETROACTIVE INCREASE IN THE VA COMPENSATION RATES PURSUANT TO LAW DID NOT CHANGE THE FACT THAT THE RETIRED PAY PAYMENTS IN QUESTION WERE PROPER WHEN MADE. IT DOES NOT APPLY TO A PAYMENT THAT IS LEGAL AND PROPER WHEN MADE IF. WE HAVE HELD THAT THE WAIVER STATUTE APPLIES TO DEBTS WHICH ARISE IN CERTAIN CASES WHERE PAYMENTS ARE RETROACTIVELY RENDERED IMPROPER DUE TO A CHANGE IN A MEMBER'S MILITARY RECORDS UNDER 10 U.S.C. THERE THE RETROACTIVE CHANGE WAS BASED ON THE CORRECTION IN THE MEMBER'S MILITARY RECORD UNDER STATUTORY AUTHORITY TO "CORRECT AN ERROR OR REMOVE AN INJUSTICE." 10 U.S.C.
B-203457 O.M., FEB 2, 1982
PRECIS-UNAVAILABLE
INDORSEMENT
ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):
AS YOU POINT OUT, THE EXCESS PAYMENTS IN THESE CASES DID NOT ARISE OUT OF ERRONEOUS PAYMENTS. AT THE TIME THE RETIRED PAY WAS PAID IT WAS PROPERLY REDUCED BY THE AMOUNT OF VETERANS ADMINISTRATION (VA) COMPENSATION THEN BEING PAID UNDER THE VA COMPENSATION RATES IN EFFECT. THE RETROACTIVE INCREASE IN THE VA COMPENSATION RATES PURSUANT TO LAW DID NOT CHANGE THE FACT THAT THE RETIRED PAY PAYMENTS IN QUESTION WERE PROPER WHEN MADE. NOR DOES THAT RETROACTIVE INCREASE CHANGE THE REQUIREMENT OF 38 U.S.C. SEC. 3105 THAT MEMBERS MUST WAIVE AN AMOUNT OF THEIR RETIRED PAY EQUAL TO THEIR VA COMPENSATION ENTITLEMENT IN ORDER TO RECEIVE VA COMPENSATION.
THE WAIVER STATUTE APPLIES TO A CLAIM OF THE UNITED STATES "ARISING OUT OF AN ERRONEOUS PAYMENT." 10 U.S.C. SEC. 2774(A). ORDINARILY, IT DOES NOT APPLY TO A PAYMENT THAT IS LEGAL AND PROPER WHEN MADE IF, DUE TO CIRCUMSTANCES OCCURRING LATER, THE INDIVIDUAL BECOMES INDEBTED FOR ALL OR PART OF SUCH PAYMENT. SEE COMPTROLLER GENERAL'S INSTRUCTIONS ON WAIVER TO HEADS OF AGENCIES AND DEPARTMENTS, B-152040, B-158422, DECEMBER 1972; B-180028, JULY 9, 1974; AND 55 COMP.GEN. 48, 51 (1975).
AS YOU INDICATE, WE HAVE HELD THAT THE WAIVER STATUTE APPLIES TO DEBTS WHICH ARISE IN CERTAIN CASES WHERE PAYMENTS ARE RETROACTIVELY RENDERED IMPROPER DUE TO A CHANGE IN A MEMBER'S MILITARY RECORDS UNDER 10 U.S.C. SEC. 1552. SEE 56 COMP.GEN. 587, 592 (1977) AND 57 COMP.GEN. 555 (1978). HOWEVER, THERE THE RETROACTIVE CHANGE WAS BASED ON THE CORRECTION IN THE MEMBER'S MILITARY RECORD UNDER STATUTORY AUTHORITY TO "CORRECT AN ERROR OR REMOVE AN INJUSTICE." 10 U.S.C. SEC. 1552(A). THAT IS NOT THE CASE HERE; INSTEAD, THESE MEMBERS WERE GRANTED A RETROACTIVE VA COMPENSATION INCREASE BY STATUTE INCREASING THOSE RATES. IN ORDER TO BE ENTITLED TO RECEIVE THE RETROACTIVE INCREASE, THE MEMBERS MUST WAIVE A LIKE AMOUNT OF RETIRED PAY. NO "ERRONEOUS PAYMENT" IS INVOLVED. REGARDING THE AUBREY CASE, WE DO NOT READ THE FACTS INVOLVED AS CREATING AN OVERPAYMENT RETROACTIVELY. RATHER, THE FACTS UPON WHICH THE DECISION WAS PREDICATED WERE THAT THE RETIREE RECEIVED ERRONEOUS PAYMENTS DURING THE PERIOD IN QUESTION BUT WAS NOT MADE AWARE OF THE FACT THAT THE PAYMENTS WERE ERRONEOUS UNTIL HE WAS NOTIFIED OF HIS INCREASED ENTITLEMENT OVER A YEAR AFTER ITS EFFECTIVE DATE.
THEREFORE, THE AMOUNTS OWED IN THE CASES YOU SUBMITTED ARE NOT DEBTS SUBJECT TO CONSIDERATION FOR WAIVER UNDER 10 U.S.C. SEC. 2774.