B-169970, JUL. 7, 1970

B-169970: Jul 7, 1970

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RESULTING IN DUAL COMPENSATION MUST REFUND THE OVERPAYMENT EVEN THOUGH THE AMOUNT WAS SMALL AND APPARENTLY OVERLOOKED FOR MANY YEARS UNTIL DATE OF RETIREMENT. WE NOTE THAT YOU WERE NOT APPRISED OF THE OVERPAYMENT OF COMPENSATION UNTIL 30 YEARS LATER UPON YOUR RETIREMENT. FOR WHICH THE DAILY RATE AT THAT TIME WAS $11.11. ADMINISTRATIVE ACTION WAS NOT TAKEN AT THE TIME OF THE OVERPAYMENT BECAUSE OF THE SMALL AMOUNT INVOLVED BUT RATHER STEPS WERE FOLLOWED WHEREBY THE $11.11 WOULD BE SET OFF AGAINST YOUR RETIREMENT ACCOUNT UPON YOUR WITHDRAWING YOUR CREDIT THEREIN OR UPON YOUR RETIREMENT. POSITIVE INFORMATION IN THIS REGARD IS NOT AVAILABLE IN THE RECORD BEFORE US. IT IS REGRETTABLE THE ADJUSTMENT ACTION IN THIS MATTER WAS NOT TAKEN AT AN EARLIER DATE.

B-169970, JUL. 7, 1970

CIVIL PAY -- OVERPAYMENT OF DUAL COMPENSATION DECISION TO FORMER EMPLOYEE OF DEPT. OF JUSTICE SUSTAINING COLLECTION OF AN OVERPAYMENT OF DUAL COMPENSATION FROM RETIREMENT ANNUITY. EMPLOYEE WHO RESIGNED A GOVT. JOB ON 14 MAY 1939, AND ACCEPTED ANOTHER ON THE 15 MAY 1939 AND RECEIVED PAY FROM THE OLD AGENCY THROUGH THE 15 MAY 1939, RESULTING IN DUAL COMPENSATION MUST REFUND THE OVERPAYMENT EVEN THOUGH THE AMOUNT WAS SMALL AND APPARENTLY OVERLOOKED FOR MANY YEARS UNTIL DATE OF RETIREMENT.

TO MR. JOHN C. MERTZ:

YOUR LETTER OF MAY 12, 1970, CONCERNS THE OVERPAYMENT OF COMPENSATION TO YOU IN 1939 WHEN YOU RESIGNED FROM THE DEPARTMENT OF JUSTICE ON MAY 14, 1939, AND ENTERED ON DUTY WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 15, 1939. WE NOTE THAT YOU WERE NOT APPRISED OF THE OVERPAYMENT OF COMPENSATION UNTIL 30 YEARS LATER UPON YOUR RETIREMENT.

THE RECORDS SHOW, AS WELL AS YOUR LETTER OF MAY 12, THAT YOU RESIGNED FROM THE DEPARTMENT OF JUSTICE ON MAY 14, 1939, AND THAT THE DEPARTMENT OF JUSTICE PAID YOU THROUGH MAY 15, FOR WHICH THE DAILY RATE AT THAT TIME WAS $11.11, THE SUM DEDUCTED BY THE UNITED STATES CIVIL SERVICE COMMISSION FROM YOUR RETIREMENT ACCOUNT MANY YEARS LATER. THE PAYROLL VOUCHERS SUBSTANTIATE SUCH OVERPAYMENT, THERE BEING NO NOTATION THEREON OF ANY ACTION TO COLLECT THE SAME AT THAT TIME. PRESUMABLY, ADMINISTRATIVE ACTION WAS NOT TAKEN AT THE TIME OF THE OVERPAYMENT BECAUSE OF THE SMALL AMOUNT INVOLVED BUT RATHER STEPS WERE FOLLOWED WHEREBY THE $11.11 WOULD BE SET OFF AGAINST YOUR RETIREMENT ACCOUNT UPON YOUR WITHDRAWING YOUR CREDIT THEREIN OR UPON YOUR RETIREMENT. POSITIVE INFORMATION IN THIS REGARD IS NOT AVAILABLE IN THE RECORD BEFORE US. IT IS REGRETTABLE THE ADJUSTMENT ACTION IN THIS MATTER WAS NOT TAKEN AT AN EARLIER DATE.

AS HAS BEEN POINTED OUT TO YOU BY OUR CLAIMS DIVISION THE ACT OF AUGUST 28, 1954, 68 STAT. 890, PUBLIC LAW 83-684, NOW CONTAINED IN 31 U.S.C. 237A, PROVIDED FOR THE WAIVING OF CLAIMS AGAINST ANY PERSON ARISING OUT OF THE RECEIPT BY SUCH PERSON OF DUAL COMPENSATION WHEN NOT REPORTED TO OUR OFFICE WITHIN 6 YEARS FROM THE LAST DATE SUCH COMPENSATION WAS RECEIVED BUT THAT SUCH AUTHORITY NOT BEING ENACTED UNTIL AUGUST 28, 1954, HAD NO APPLICATION TO YOUR CASE SINCE THE OVERPAYMENT HERE INVOLVED OCCURRED IN 1939.

OUR COLLECTION ACTION OF MARCH 20, 1970, WAS PROPER AND MUST BE SUSTAINED.