B-213977, JAN 18, 1985

B-213977, JAN 18, 1985

DISBURSING OFFICERS - RELIEF - ERRONEOUS PAYMENTS - NOT RESULT OF BAD FAITH OR NEGLIGENCE DIGEST: UPON RECONSIDERATION, ARMY DISBURSING OFFICER IS RELIEVED OF LIABILITY FOR LOSS IN HIS ACCOUNT DUE TO PAYEE CASHING AN ORIGINAL AND REPLACEMENT CHECK. NEW SUBMISSION SETS OUT ADDITIONAL FACTS EVIDENCING THAT ARMY REGULATION, WHICH APPARENTLY HAD BEEN VIOLATED SO AS TO PRECLUDE FINDING OF DUE CARE, ACTUALLY HAD BEEN COMPLIED WITH. THUS, TOTAL CASE RECORD NOW ESTABLISHES THAT IMPROPER PAYMENT WAS NOT RESULT OF BAD FAITH OR LACK OF DUE CARE.

MR. CLYDE E. JEFFCOAT: PRINCIPAL DEPUTY COMMANDER U.S. ARMY FINANCE AND ACCOUNTING CENTER INDIANAPOLIS, INDIANA 46249

THIS IS IN RESPONSE TO YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION DENYING RELIEF TO LTC H.J. LOWE, FINANCE AND ACCOUNTING OFFICER, U.S. ARMY AIR DEFENSE CENTER AND FORT BLISS, FOR AN IMPROPER PAYMENT OF $338 IN THE FORM OF A DUPLICATE CHECK PAYABLE TO GARY L. KENNISON. FOR THE REASONS STATED BELOW, RELIEF IS GRANTED.

AS EXPLAINED IN B-213977, JUNE 27, 1984, LTC LOWE'S ACCOUNT WAS CHARGED WITH A LOSS OF $338 WHEN MR. KENNISON CASHED TWO CHECKS FOR THIS ACCOUNT. THE ORIGINAL CHECK HAD BEEN DATED JULY 14, 1982, AND THE DUPLICATE CHECK HAD BEEN DATED AUGUST 4, 1982. THE DUPLICATE CHECK HAD BEEN ISSUED ON THE BASIS OF THE PAYEE'S ALLEGATION OF NONRECEIPT OF THE ORIGINAL CHECK COUPLED WITH HIS REQUEST FOR STOP PAYMENT.

UNDER 31 U.S.C. SECS. 3527(C), WE HAVE AUTHORITY TO GRANT RELIEF TO A DISBURSING OFFICER FOR A DEFICIENCY IN HIS OR HER ACCOUNT DUE TO AN IMPROPER PAYMENT IF WE DETERMINE "THAT THE PAYMENT WAS NOT THE RESULT OF BAD FAITH OR LACK OF REASONABLE CARE BY THE OFFICIAL." IN ASSESSING WHETHER THE OFFICIAL HAS EXERCISED DUE CARE, WE OFTEN LOOK TO WHETHER THE OFFICIAL COMPLIED WITH AGENCY REGULATIONS. SEE B-213977, JUNE 26, 1984, CITING 62 COMP.GEN. 91 (1982).

WE DECLINED TO RELIEVE LTC LOWE IN OUR FIRST DECISION BECAUSE ON THE RECORD SUBMITTED TO US IT APPEARED THAT HE HAD VIOLATED AGENCY REGULATIONS AND, THEREFORE, WE COULD NOT CONCLUDE THAT HE HAD EXERCISED DUE CARE. THE SPECIFIC REGULATION APPARENTLY VIOLATED WAS AR 37-103, PARAGRAPHS 4-160 AND 4-164, WHICH AUTHORIZES ARMY DISBURSING OFFICERS TO ISSUE SUBSTITUTE CHECKS IF A REQUEST FOR A SUBSTITUTE CHECK IS REQUESTED WITHIN 15 DAYS OF THE ISSUANCE OF THE ORIGINAL CHECK. THE REGULATION APPARENTLY HAD BEEN VIOLATED SINCE THE SUBSTITUTE CHECK WAS NOT REQUESTED UNTIL 21 CALENDAR DAYS FROM THE DATE OF THE ORIGINAL CHECK. WE RECOGNIZED, HOWEVER, THAT IF THE TIME PERIOD IN AR 37-103 WERE INTERPRETED TO BE WORK DAYS, NOT CALENDAR DAYS, THEN THE ISSUANCE OF THE SUBSTITUTE CHECK WOULD NOT HAVE VIOLATED THE REGULATION. WE INDICATED THAT THIS COULD BE A BASIS FOR RECONSIDERATION.

OUR RECONSIDERATION, HOWEVER, IS NOT BASED ON THE TIME PERIOD IN AR 37-103 BEING INTERPRETED TO BE WORK DAYS. INDEED THE ARMY AGREES THAT THE TIME PERIOD INTENDED IS CALENDAR DAYS. RATHER THE BASIS OF OUR RECONSIDERATION IS THAT THE SUBSTITUTE CHECK WAS ACTUALLY REQUESTED WITHIN 15 CALENDAR DAYS OF THE ORIGINAL.

PRIVATE KENNISON HAD REPORTED TO FORT BLISS TOO LATE TO HAVE HIS MONTHLY PAY PROCESSED BY THE U.S. ARMY FINANCE AND ACCOUNTING CENTER. WHENEVER SUCH A SITUATION OCCURRED, IT WAS THE PRACTICE OF THE DISBURSING BRANCH AT FORT BLISS TO PREPARE A PAY CHECK FOR THE MEMBER THE DAY AFTER HE REPORTED AND TO HOLD IT IN A VAULT AND THEN MAIL IT 2 DAYS BEFORE THE END-OF-THE- MONTH PAYDAY. THUS, PRIVATE KENNISON REPORTED FOR DUTY ON JULY 13. HIS PAYCHECK WAS PREPARED AND DATED ON JULY 14, BUT NOT MAILED UNTIL JULY 28. THEREFORE, HIS REQUEST FOR A REPLACEMENT CHECK ON AUGUST 4 WAS MADE WITHIN 15 DAYS OF THE ISSUANCE OF HIS ORIGINAL PAYCHECK.

THEREFORE, ARMY PERSONNEL DID FOLLOW THE APPLICABLE REGULATIONS. MOREOVER, OUR REVIEW OF THE ENTIRE RECORD IN THIS CASE DISCLOSES NO EVIDENCE OF BAD FAITH OR LACK OF DUE CARE. ACCORDINGLY, WE GRANT RELIEF, ALTHOUGH IN SO DOING WE DO NOT MEAN TO SUGGEST THAT THE ARMY SHOULD DISCONTINUE THE DILIGENT DEBT COLLECTION EFFORTS BEING TAKEN IN ACCORDANCE WITH THE FEDERAL CLAIMS COLLECTION ACT.