B-165979, FEB. 10, 1969

B-165979, FEB. 10, 1969

TO MR. MORRIS GLENN SMITH:

WE REFER TO YOUR LETTER OF JANUARY 3, 1969, IN WHICH YOU REQUEST THAT THE CLAIM OF THE GOVERNMENT AGAINST YOU ARISING FROM YOUR RECEIVING AN EXCESS REFUND OF CIVIL SERVICE RETIREMENT DEDUCTIONS BE WAIVED UNDER THE AUTHORITY OF PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968. WE UNDERSTAND THAT THE INDEBTEDNESS AROSE UNDER THE FOLLOWING CIRCUMSTANCES:

WHILE YOU WERE EMPLOYED WITH THE DEFENSE CONTRACT AUDIT AGENCY THERE WAS AN OVERCERTIFICATION BY THAT AGENCY TO THE CIVIL SERVICE COMMISSION OF THE RETIREMENT DEDUCTIONS WHICH WERE WITHHELD FROM YOUR SALARY. IT DOES NOT APPEAR THAT ANY INCORRECT SALARY PAYMENTS WERE MADE TO YOU AT THE TIME BUT SIMPLY THAT YOUR EMPLOYING AGENCY ADVISED THE COMMISSION THAT THERE HAD BEEN WITHHELD FROM YOUR PAY (AS RETIREMENT DEDUCTIONS) A GREATER AMOUNT THAN ACTUALLY WAS WITHHELD. THEREAFTER, FOLLOWING YOUR SEPARATION FROM THE SERVICE, YOU FILED WITH THE CIVIL SERVICE COMMISSION AN APPLICATION FOR REFUND OF THE RETIREMENT DEDUCTIONS, PLUS INTEREST, TO YOUR CREDIT IN THE RETIREMENT FUND. PURSUANT TO SUCH APPLICATION YOU RECEIVED A CHECK FROM THE CIVIL SERVICE COMMISSION IN THE AMOUNT OF $780.86 REPRESENTING THE AMOUNT TO YOUR CREDIT IN THE RETIREMENT FUND. FOLLOWING THE ISSUANCE OF SUCH CHECK THE COMMISSION WAS ADVISED BY YOUR FORMER EMPLOYING AGENCY THAT THE DEDUCTIONS FROM YOUR PAY HAD BEEN OVERCERTIFIED BY THE AMOUNT OF $210.10 AND, THEREFORE, THE AMOUNT YOU RECEIVED FROM THE CIVIL SERVICE COMMISSION REPRESENTING A REFUND OF RETIREMENT DEDUCTIONS WAS $210.10IN EXCESS OF THE AMOUNT WHICH YOU LEGALLY WERE ENTITLED TO RECEIVE. THE GOVERNMENT'S CLAIM FOR THIS AMOUNT ($210.10) IS THE CLAIM THAT YOU REQUEST BE WAIVED UNDER THE AUTHORITY OF PUBLIC LAW 90-616.

PUBLIC LAW 90-616 AUTHORIZES, UNDER THE CONDITIONS SET FORTH THEREIN AND THE IMPLEMENTING STANDARDS PROMULGATED BY THE COMPTROLLER GENERAL, THE WAIVER OF ERRONEOUS PAYMENTS OF PAY MADE TO AN EMPLOYEE. THE ERRONEOUS PAYMENTS YOU RECEIVED FROM THE CIVIL SERVICE COMMISSION REPRESENTED A REFUND OF RETIREMENT DEDUCTIONS AND NOT AN ERRONEOUS PAYMENT OF PAY. THEREFORE IS OUR VIEW THAT THERE IS NO AUTHORITY UNDER PUBLIC LAW 90-616 FOR THE WAIVER OF THE GOVERNMENT'S CLAIM AGAINST YOU.

IF YOU HAVE NOT ALREADY DONE SO, YOU MAY WISH TO REQUEST THE CIVIL SERVICE COMMISSION TO CONSIDER YOUR CASE FOR WAIVER UNDER THE AUTHORITY OF 5 U.S.C. 8346 (B), WHICH PROVIDES IN PART AS FOLLOWS:

"RECOVERY OF PAYMENTS UNDER THIS SUBCHAPTER MAY NOT BE MADE FROM AN INDIVIDUAL WHEN, IN THE JUDGMENT OF THE CIVIL SERVICE COMMISSION, THE INDIVIDUAL IS WITHOUT FAULT AND RECOVERY WOULD BE AGINST EQUITY AND GOOD CONSCIENCE. * * *" ..END :