B-165812, MAR. 11, 1969

B-165812: Mar 11, 1969

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AUTHORIZED FOR PAYMENT WHILE YOU WERE IN ALASKA. WHEN THE ERROR WAS CORRECTED. YOU SAY THAT AN ADMINISTRATIVE ERROR WAS MADE WHEREBY YOU WERE UNDERPAID BASIC SALARY DURING MOST OF THE SAME PERIOD AND THAT YOU NOTIFIED YOUR ADMINISTRATIVE OFFICE OF THE ERRORS AS SOON AS YOU BECAME AWARE THEREOF. WE NOTE YOU SAY YOU DID NOT RECEIVE YOUR FIRST SALARY CHECK UNTIL THE END OF THE 4TH PAY PERIOD AFTER JUNE 30 AND IT WAS NOT UNTIL YOU RECEIVED A PAY STATEMENT THE WEEK FOLLOWING THE RECEIPT OF THE CHECK THAT YOU WERE AWARE OF THE ERRORS. YOU SAY IT WAS DURING THE LAST WEEK OF AUGUST 1968 YOU MADE A REQUEST FOR CORRECTION OF THE ERRORS. YOU WERE UNDERPAID THE SUM OF $10.40 BECAUSE YOU WERE NOT PAID AT THE CORRECT PER ANNUM RATE.

B-165812, MAR. 11, 1969

TO MR. J. DOYLE BURKE:

YOUR LETTER OF DECEMBER 10, 1968, POINTS OUT THAT YOU TRANSFERRED ON JUNE 30, 1968, WITHIN THE FOREST SERVICE FROM REGION 10, THE ALASKA REGION, TO REGION 6, THE PACIFIC NORTHWEST REGION. FURTHER YOU POINT OUT THAT THROUGH ADMINISTRATIVE ERROR THE COST-OF-LIVING ALLOWANCE, WHICH REPRESENTS ADDITIONAL COMPENSATION -- PAY -- AUTHORIZED FOR PAYMENT WHILE YOU WERE IN ALASKA, CONTINUED TO BE PAID TO YOU UPON YOUR TRANSFER JUNE 30, 1968, UNTIL THE PAY PERIOD ENDING OCTOBER 19, 1968, WHEN THE ERROR WAS CORRECTED. YOU SAY THAT AN ADMINISTRATIVE ERROR WAS MADE WHEREBY YOU WERE UNDERPAID BASIC SALARY DURING MOST OF THE SAME PERIOD AND THAT YOU NOTIFIED YOUR ADMINISTRATIVE OFFICE OF THE ERRORS AS SOON AS YOU BECAME AWARE THEREOF. WE NOTE YOU SAY YOU DID NOT RECEIVE YOUR FIRST SALARY CHECK UNTIL THE END OF THE 4TH PAY PERIOD AFTER JUNE 30 AND IT WAS NOT UNTIL YOU RECEIVED A PAY STATEMENT THE WEEK FOLLOWING THE RECEIPT OF THE CHECK THAT YOU WERE AWARE OF THE ERRORS. YOU SAY IT WAS DURING THE LAST WEEK OF AUGUST 1968 YOU MADE A REQUEST FOR CORRECTION OF THE ERRORS.

YOU ASK THAT THE OVERPAYMENT OF THE COST-OF-LIVING ALLOWANCE, WHICH EXCEEDS $500, BE WAIVED BY THE COMPTROLLER GENERAL UNDER THE PROVISIONS OF PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, 82 STAT. 1212, 5 U.S.C. 5584.

THE ADMINISTRATIVE OFFICE REPORTS FOR PAY PERIOD NO. 13, JUNE 30 JULY 13, 1968, YOU WERE UNDERPAID THE SUM OF $10.40 BECAUSE YOU WERE NOT PAID AT THE CORRECT PER ANNUM RATE. THE RECORD SHOWS OTHER UNDERPAYMENTS OF $29.60 PER PAY PERIOD CONTINUED UNTIL PAY PERIOD NO. 18, SEPTEMBER 8-21, 1968, WHEN THE ERROR WAS CORRECTED. THE AMOUNT THEREOF IS SHOWN TO BE $158.40. FURTHER THE ADMINISTRATIVE OFFICE REPORTS FOR PAY PERIOD NO. 14, JULY 14-27, 1968, THROUGH PAY PERIOD NO. 20, OCTOBER 6-19, 1968, A COST-OF -LIVING ALLOWANCE IN THE AMOUNT OF $96 PER PAY PERIOD, TOTALING $672, WAS PAID TO YOU IN ERROR.

UNDER THE ADMINISTRATIVE ADJUSTMENT OF THE UNDERPAYMENT AND THE OVERPAYMENT REFERRED TO ABOVE THERE REMAINS THE SUM OF $513.60 REPRESENTING THE OVERPAYMENT OF THE COST-OF-LIVING ALLOWANCE WHICH YOU REQUEST BE WAIVED. WE FIND NOTHING IN THE RECORD INDICATING THAT ANY PART OF THE OVERPAYMENT HAS BEEN REFUNDED.

SECTION 201.4 OF THE STANDARDS FOR WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF PAY, ISSUED BY US PURSUANT TO PUBLIC LAW 90-616 REFERRED TO ABOVE, WHICH STANDARDS HAVE BEEN PUBLISHED AT PAGE 20001, FEDERAL REGISTER, VOLUME 33, NO. 253, DECEMBER 31, 1968, READS IN PERTINENT PART AS FOLLOWS:

"/A) THE COMPTROLLER GENERAL OF THE UNITED STATES MAY WAIVE IN WHOLE OR IN PART A CLAIM OF THE UNITED STATES IN ANY AMOUNT ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY TO AN EMPLOYEE WHEN ALL OF THE CONDITIONS SET OUT IN SEC. 201.5 ARE PRESENT. * * *

"/B) THE HEAD OF AN EXECUTIVE AGENCY MAY WAIVE IN WHOLE OR IN PART A CLAIM OF THE UNITED STATES IN AN AMOUNT AGGREGATING NOT MORE THAN $500 WITHOUT REGARD TO ANY REPAYMENTS, AGAINST ANY PERSON ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY TO AN EMPLOYEE OF SUCH AGENCY WHEN

SECTION 201.5 READS IN PERTINENT PART AS FOLLOWS:

"CLAIMS OF THE UNITED STATES ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY MAY BE WAIVED IN WHOLE OR IN PART IN ACCORDANCE WITH THE PROVISIONS OF SEC. 201.4 WHENEVER:

"/A) THE CLAIM ARISES OUT OF AN ERRONEOUS PAYMENT OF PAY MADE TO AN EMPLOYEE OF AN EXECUTIVE AGENCY ON OR AFTER JULY 1, 1960 * * *.

"/B) COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES. GENERALLY THESE CRITERIA WILL BE MET BY A FINDING THAT THE ERRONEOUS PAYMENT OF PAY OCCURRED THROUGH ADMINISTRATIVE ERROR AND THAT THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE * * *. ANY SIGNIFICANT UNEXPLAINED INCREASE IN AN EMPLOYEE'S PAY WHICH WOULD REQUIRE A REASONABLE MAN TO MAKE INQUIRY CONCERNING THE CORRECTNESS OF HIS PAY ORDINARILY WOULD PRECLUDE A WAIVER WHEN THE EMPLOYEE FAILS TO BRING THE MATTER TO THE ATTENTION OF APPROPRIATE OFFICIALS. WAIVER OF OVERPAYMENT OF PAY UNDER THIS STANDARD NECESSARILY MUST DEPEND UPON THE FACTS EXISTING IN THE PARTICULAR CASE. * * *"

UNDER THE FOREGOING STANDARDS SINCE THE AMOUNT OF THE OVERPAYMENT IS MORE THAN $500 THE EXERCISE OF THE WAIVER AUTHORITY RESTS WITH OUR OFFICE. ARE REQUIRED TO EXERCISE SUCH AUTHORITY BASED UPON THE CONDITIONS SET OUT IN SECTION 201.5 ABOVE. THERE IS NO DOUBT THE OVERPAYMENT HERE INVOLVED AROSE FROM AN ADMINISTRATIVE ERROR AND WE NOTE YOU NOTIFIED THE ADMINISTRATIVE OFFICE CONCERNED PROMPTLY UPON YOUR BECOMING AWARE THEREOF. THE FOREGING STANDARDS AND PUBLIC LAW 90 616, HOWEVER, PRECLUDE THE WAIVER OF A CLAIM AGAINST AN EMPLOYEE FOR ERRONEOUS PAYMENTS OF PAY WHEN THERE IS AN INDICATION OF FAULT ON THE PART OF THE EMPLOYEE. 165663, JANUARY 30, 1969. HAVING TRANSFERRED FROM ALASKA WHERE THE COST- OF-LIVING ALLOWANCE WAS AUTHORIZED BACK TO THE UNITED STATES WHERE SUCH ALLOWANCE WAS NOT PAYABLE, A FACT WHICH THE RECORD INDICATES YOU KNEW, WE MUST CONCLUDE ON THE PRESENT RECORD THAT YOU WERE NOT WITHOUT FAULT IN ACCEPTING AND CONTINUING TO ACCEPT SUCH ALLOWANCE.

ACCORDINGLY, YOUR REQUEST FOR WAIVER UNDER THE FOREGOING PUBLIC LAW IS DENIED.