B-173539, AUG 24, 1971

B-173539: Aug 24, 1971

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WILSON WAS PAID PREMIUM PAY WHILE ATTENDING A SERVICE SCHOOL WHICH IS NOT PERMITTED UNDER NGR 51. IT IS REASONABLE TO BELIEVE THAT MR. WILSON WAS BRIEFED ON BENEFITS HE WOULD AND WOULD NOT RECEIVE. THOUGH HE ALLEGES HE WAS NOT. REQUESTED WAIVER IS DENIED. TO NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES: THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF FEBRUARY 19. ARE AS FOLLOWS: "THE RECORD SHOWS THAT IN ADDITION TO HIS REGULAR PAY MR. WILSON WAS ALSO RECEIVING PREMIUM PAY WHICH UNDER NGR 51. HE WAS BRIEFED BY HIS FIRST SERGEANT ON ALL BENEFITS TO INCLUDE ENTITLEMENTS THAT HE WOULD AND WOULD NOT GET. PARA. 5.32 G(1) STATES THAT PREMIUM PAY WILL NOT BE PAID IF A TECHNICIAN IS ATTENDING AN ARMY SERVICE SCHOOL.

B-173539, AUG 24, 1971

COMPENSATION - OVERPAYMENT - WAIVER UNDER PUBLIC LAW 90-616 DECISION SUSTAINING DENIAL BY CLAIMS DIVISION OF MR. RALPH J. WILSON'S REQUEST FOR WAIVER UNDER PROVISION OF PUBLIC LAW 90-616 OF OVERPAYMENTS OF PREMIUM PAY IN AMOUNT OF $521.19. MR. WILSON WAS PAID PREMIUM PAY WHILE ATTENDING A SERVICE SCHOOL WHICH IS NOT PERMITTED UNDER NGR 51. IT IS REASONABLE TO BELIEVE THAT MR. WILSON WAS BRIEFED ON BENEFITS HE WOULD AND WOULD NOT RECEIVE, BECAUSE OF THE REDUCTION IN PAY INVOLVED, THOUGH HE ALLEGES HE WAS NOT. SINCE HE RECEIVED BIWEEKLY STATEMENTS OF EARNINGS REFLECTING CONTINUED PAYMENT OF PREMIUM PAY, AND IN VIEW OF ABOVE, REQUESTED WAIVER IS DENIED.

TO NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES:

THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF FEBRUARY 19, 1971, REQUESTING RECONSIDERATION OF THE DENIAL BY OUR CLAIMS DIVISION OF MR. RALPH J. WILSON'S REQUEST FOR WAIVER, UNDER THE PROVISIONS OF PUBLIC LAW 90-616, OF OVERPAYMENTS OF PREMIUM PAY IN THE AMOUNT OF $521.19 MADE TO HIM FOR THE PERIOD FROM MARCH 2, 1969, THROUGH DECEMBER 12, 1969.

THE FACTS SURROUNDING THAT OVERPAYMENT, AS RELATED IN THE JANUARY 19, 1971 LETTER FROM OUR CLAIMS DIVISION TO THE DEPARTMENT OF THE ARMY, ARE AS FOLLOWS:

"THE RECORD SHOWS THAT IN ADDITION TO HIS REGULAR PAY MR. WILSON WAS ALSO RECEIVING PREMIUM PAY WHICH UNDER NGR 51, PARA. 5-21 L MEANS ADDITIONAL COMPENSATION FOR OVERTIME, HOLIDAY, HAZARDOUS OR SUNDAY WORK, STANDBY DUTY, NIGHT WORK AND ADMINISTRATIVELY UNCONTROLLABLE WORK. WHEN MR. WILSON LEFT TO ATTEND USARADSCH, FT. BLISS, TEXAS, HE WAS BRIEFED BY HIS FIRST SERGEANT ON ALL BENEFITS TO INCLUDE ENTITLEMENTS THAT HE WOULD AND WOULD NOT GET. NGR SECTION V, PARA. 5.32 G(1) STATES THAT PREMIUM PAY WILL NOT BE PAID IF A TECHNICIAN IS ATTENDING AN ARMY SERVICE SCHOOL.

"WHILE AT SCHOOL MR. WILSON RECEIVED TWO CHECKS, HIS REGULAR PAY AND PREMIUM PAY FOR THE PERIOD OF MARCH 2, 1969 THRU OCTOBER 11, 1969. HOWEVER, FOR THE PAY PERIODS OF OCTOBER 12, 1969 THRU DECEMBER 12, 1969 HE RECEIVED ONE CHECK FOR THE COMBINED AMOUNT OF BASE PAY AND PREMIUM PAY.

"YOUR INVESTIGATION REVEALED THAT THE OVERPAYMENT RESULTED FROM ADMINISTRATIVE ERROR CAUSED BY THE TECHNICIAN PERSONNEL OFFICE OF THE DEPARTMENT OF DEFENSE OF NEW JERSEY IN ITS FAILURE TO MAKE AVAILABLE THE NECESSARY PAYROLL CANCELLATION DOCUMENTATION TO DELETE PREMIUM PAY FOR THE PERIOD OF MARCH 2, 1969 THRU DECEMBER 12, 1969. DURING THIS PERIOD MR. WILSON RECEIVED SEPARATE BI-WEEKLY STATEMENT OF EARNINGS, ONE FOR HIS BASE PAY AND THE OTHER FOR HIS PREMIUM PAY. ONE OF THE PURPOSES FOR ISSUING STATEMENTS OF EARNINGS AND DEDUCTIONS IS TO GIVE EMPLOYEES THE OPPORTUNITY TO VERIFY ALL LISTED ITEMS AND TO BRING TO THE ATTENTION OF THE PROPER AUTHORITIES ANY ERRORS THEREON."

YOU TAKE EXCEPTION TO CERTAIN STATEMENTS QUOTED ABOVE. YOU STATE THAT MR. WILSON WAS IN FACT BRIEFED BEFORE HIS DEPARTURE TO FT. BLISS ONLY ON THE CONTENTS OF DOD-NY FORM 447 WHICH MAKES NO MENTION OF PREMIUM PAY, AND THAT HIS UNIT WAS NOT IN POSSESSION OF A COPY OF NGR 51 WHICH INDICATES THAT PREMIUM PAY IS NOT PAYABLE IF A TECHNICIAN IS ATTENDING AN ARMY SERVICE SCHOOL. YOU HAVE SUBMITTED WITH YOUR LETTER A STATEMENT DATED MARCH 19, 1970, AND SIGNED BY MR. WILSON WHEREIN IS STATED THE FOLLOWING:

"I, THE UNDERSIGNED, WAS BRIEFED BY THE UNITS' FIRST SERGEANT PRIOR TO MY DEPARTURE FOR SERVICE SCHOOL ON THE CONTENTS OF DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY FORM 447 DATED PRIOR TO 17 DEC 69.

"NO OTHER INFORMATION WAS MADE AVAILABLE TO ME AT THAT TIME."

THE RECORD CONTAINS INDIVIDUAL STATEMENTS FROM MR. WILSON'S BATTERY SUPERVISOR, ASSISTANT BATTERY SUPERVISOR AND FIRST SERGEANT CERTIFYING THAT MR. WILSON WAS BRIEFED ON ALL BENEFITS TO WHICH HE WOULD AND WOULD NOT BE ENTITLED IN CONNECTION WITH HIS ATTENDANCE AT USARADSCH, AND THAT HE WAS AWARE THAT HE WOULD NOT RECEIVE PREMIUM PAY WHILE IN ATTENDANCE THERE. THESE TWO STATEMENTS MAY NOT BE REGARDED AS HAVING BEEN OVERCOME BY MR. WILSON'S STATEMENT. IT IS REASONABLE TO BELIEVE THAT SUCH INFORMATION WOULD HAVE BEEN COMMUNICATED TO MR. WILSON AND OTHERS ATTENDING THE COURSE BECAUSE OF THE REDUCTION IN PAY INVOLVED.

IN VIEW OF THE ABOVE AND SINCE MR. WILSON RECEIVED BIWEEKLY STATEMENTS OF HIS EARNINGS WHICH CLEARLY REFLECTED HE WAS STILL RECEIVING PREMIUM PAY, WE MUST SUSTAIN THE ACTION OF OUR CLAIMS DIVISION IN DENYING WAIVER OF THE COLLECTION OF THE OVERPAYMENTS IN QUESTION.