B-171944, MAR 23, 1971

B-171944: Mar 23, 1971

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BECAUSE PAYROLL RECORDS WERE NOT PROPERLY CHANGED. ALTHOUGH CLAIMANT PROMPTLY NOTIFIED HIS SUPERVISOR OF THE ERROR IT CANNOT BE SAID THAT HE WAS WITHOUT FAULT WHEN HE KNOWINGLY ACCEPTED THE ERRONEOUS PAYMENTS. THE REQUEST FOR WAIVER IS THEREFORE DENIED. NATHAN: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22. OF WHICH YOU WERE THEN AWARE. THE PAYROLL RECORDS WERE NOT PROPERLY CHANGED. FOR WHICH YOU HAVE NOW BEEN CHARGED. YOU HAVE STATED THAT. YOU WERE AWARE THAT YOU WERE BEING OVERPAID. REGARDLESS OF SUCH NOTIFICATION IT MAY NOT BE SAID THAT YOU WERE WITHOUT FAULT WHEN YOU KNOWINGLY ACCEPTED AND CONTINUED TO ACCEPT THE ERRONEOUS PAYMENTS. A WAIVER IN SUCH CASES IS PRECLUDED BY THE STANDARDS FOR WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF PAY.

B-171944, MAR 23, 1971

REQUEST FOR WAIVER - ERRONEOUS PAYMENTS DECISION DENYING REQUEST FOR WAIVER OF ERRONEOUS PAYMENTS OF PAY SOUGHT PURSUANT TO PUBLIC LAW 90-616 INCIDENT TO A TEMPORARY APPOINTMENT WHICH ENTAILED A PAY REDUCTION AMOUNTING TO $22.40 PER PAY PERIOD. BECAUSE PAYROLL RECORDS WERE NOT PROPERLY CHANGED, CLAIMANT CONTINUED TO BE PAID AT FORMER RATE FOR SIX PAY PERIODS RESULTING IN AN OVERPAYMENT OF $134.40. ALTHOUGH CLAIMANT PROMPTLY NOTIFIED HIS SUPERVISOR OF THE ERROR IT CANNOT BE SAID THAT HE WAS WITHOUT FAULT WHEN HE KNOWINGLY ACCEPTED THE ERRONEOUS PAYMENTS, AND HE CANNOT REASONABLY EXPECT TO RETAIN THE EXCESS PAY WITHOUT BEING OBLIGATED TO MAKE REFUND THEREOF. THE REQUEST FOR WAIVER IS THEREFORE DENIED.

TO MR. THEODORE F. NATHAN:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22, 1971, IN WHICH YOU REQUEST RECONSIDERATION OF THE ACTION OF OUR CLAIMS DIVISION IN DENYING YOUR PREVIOUS REQUEST FOR WAIVER OF ERRONEOUS PAYMENT OF PAY SOUGHT PURSUANT TO PUBLIC LAW 90-616, 5 U.S.C. 5584. THE REQUEST AROSE OUT OF THE FOLLOWING DESCRIBED CIRCUMSTANCES:

BY ACTION EFFECTIVE FEBRUARY 14, 1966, YOU RECEIVED A TEMPORARY APPOINTMENT AT A SALARY OF $6,036 PER ANNUM. THIS APPOINTMENT ENTAILED A PAY REDUCTION, OF WHICH YOU WERE THEN AWARE, AMOUNTING TO $22.40 PER PAY PERIOD LESS THAN THE PAY RECEIVED IN YOUR PREVIOUS POSITION. HOWEVER, THE PAYROLL RECORDS WERE NOT PROPERLY CHANGED, AND YOU CONTINUED TO BE PAID AT YOUR FORMER RATE FOR SIX PAY PERIODS, ENDING MAY 8, 1966. YOU REQUEST WAIVER OF THE EXCESS AMOUNTS SO PAID, AGGREGATING $134.40, FOR WHICH YOU HAVE NOW BEEN CHARGED.

YOU HAVE STATED THAT, FROM THE OUTSET, YOU WERE AWARE THAT YOU WERE BEING OVERPAID, AND THAT YOU PROMPTLY NOTIFIED YOUR SUPERVISOR OF THE ERROR. REGARDLESS OF SUCH NOTIFICATION IT MAY NOT BE SAID THAT YOU WERE WITHOUT FAULT WHEN YOU KNOWINGLY ACCEPTED AND CONTINUED TO ACCEPT THE ERRONEOUS PAYMENTS. A WAIVER IN SUCH CASES IS PRECLUDED BY THE STANDARDS FOR WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF PAY, ISSUED PURSUANT TO PUBLIC LAW 90- 616. (THE STANDARDS ARE PUBLISHED AT PAGE 20001, FEDERAL REGISTER, VOLUME 33, NO. 253, DECEMBER 31, 1968.)

FURTHERMORE, AN EMPLOYEE WHO KNOWS THAT HE IS BEING OVERPAID, ALTHOUGH HE REPORTS THE ERROR, CANNOT REASONABLY EXPECT TO RETAIN THE EXCESS PAY WITHOUT BEING OBLIGATED TO MAKE REFUND THEREOF WHEN THE ERROR IS FINALLY CORRECTED.

ACCORDINGLY, THE REQUEST FOR WAIVER WAS PROPERLY DENIED BY OUR CLAIMS DIVISION.