B-174059, OCT 8, 1971

B-174059: Oct 8, 1971

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SINCE THE RECORD INDICATES THAT CLAIMANT WAS AWARE OF A POSSIBLE ADMINISTRATIVE ERROR. IT MAY NOT BE SAID THAT HE WAS WITHOUT FAULT WHEN HE CASHED THE PAYCHECKS FROM OAKDALE AND CONTINUED TO RECEIVE CHECKS FROM LETTERKENNY. A WAIVER IN SUCH SITUATIONS IS PRECLUDED BY THE STANDARDS OF WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF PAY. WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR CLAIMS DIVISION IN DENYING YOUR REQUEST FOR WAIVER UNDER THE AUTHORITY OF 5 U.S.C. 5584. THE RECORD INDICATES THAT YOU WERE TRANSFERRED FROM U.S. WERE PLACED ON THE PAYROLL AT LETTERKENNY ON JANUARY 4. THE REASON FOR THE OVERLAPPING PAYMENTS IS DUE TO THE FACT THAT OAKDALE PAY PERIODS DIFFER FROM LETTERKENNY BY ONE WEEK.

B-174059, OCT 8, 1971

CIVILIAN EMPLOYEE - OVERPAYMENT OF PAY DECISION DENYING A REQUEST BY JOSEPH GRECO FOR WAIVER OF ERRONEOUS PAYMENT OF PAY WHILE EMPLOYED BY LETTERKENNY ARMY DEPOT, PA. SINCE THE RECORD INDICATES THAT CLAIMANT WAS AWARE OF A POSSIBLE ADMINISTRATIVE ERROR, IT MAY NOT BE SAID THAT HE WAS WITHOUT FAULT WHEN HE CASHED THE PAYCHECKS FROM OAKDALE AND CONTINUED TO RECEIVE CHECKS FROM LETTERKENNY. A WAIVER IN SUCH SITUATIONS IS PRECLUDED BY THE STANDARDS OF WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF PAY, ISSUED PURSUANT TO PUBLIC LAW 90-616.

TO MR. JOSEPH GRECO:

WE REFER TO YOUR LETTER OF JULY 6, 1971, WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR CLAIMS DIVISION IN DENYING YOUR REQUEST FOR WAIVER UNDER THE AUTHORITY OF 5 U.S.C. 5584, AS ADDED BY PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, OF ERRONEOUS PAYMENT OF PAY WHILE EMPLOYED BY LETTERKENNY ARMY DEPOT, CHAMBERSBURG, PENNSYLVANIA.

THE RECORD INDICATES THAT YOU WERE TRANSFERRED FROM U.S. ARMY SUPPORT DETACHMENT, OAKDALE, PENNSYLVANIA, TO LETTERKENNY ARMY DEPOT, CHAMBERSBURG, PENNSYLVANIA, AND WERE PLACED ON THE PAYROLL AT LETTERKENNY ON JANUARY 4, 1970. SUBSEQUENTLY, YOU RECEIVED PAYROLL CHECKS FROM LETTERKENNY WHICH COVERED THE PAY PERIODS FROM JANUARY 4 THROUGH JANUARY 17, 1970, AND JANUARY 18 THROUGH JANUARY 31, 1970. AT THE SAME TIME, HOWEVER, YOU ALSO RECEIVED PAYCHECKS FROM OAKDALE. THESE LATTER CHECKS COVERED OAKDALE PAY PERIODS OF DECEMBER 28, 1969, TO JANUARY 10, 1970, AND JANUARY 11 THROUGH JANUARY 24, 1970. THE REASON FOR THE OVERLAPPING PAYMENTS IS DUE TO THE FACT THAT OAKDALE PAY PERIODS DIFFER FROM LETTERKENNY BY ONE WEEK. THE EFFECT OF THE ERRONEOUS CHECKS WAS AN OVERPAYMENT OF PAY FOR 120 HOURS OF WORK IN THE AMOUNT OF $585.60.

AS YOU WERE INFORMED BY OUR CLAIMS DIVISION LETTER OF FEBRUARY 26, 1971, THE DEPARTMENT OF THE ARMY FINANCE CENTER IN INDIANAPOLIS, INDIANA, MADE A RECOMMENDATION AGAINST WAIVER OF THE CLAIM PREMISED UPON WHAT THAT OFFICE FELT TO BE A PRESENCE OF FAULT OR LACK OF GOOD FAITH ON YOUR PART IN CASHING THE ERRONEOUS PAYCHECKS.

IN SUPPORT OF YOUR CLAIM FOR WAIVER YOU NOW OFFER FOR THE RECORD STATEMENTS BY MESSRS. COOK AND SNYDER WHICH YOU FEEL EVIDENCE YOUR GOOD FAITH WITH REGARD TO THE MATTER AT HAND. A REEXAMINATION OF THE EVIDENCE INDICATES THAT YOU DID TALK TO YOUR SUPERVISOR, MR. COOK, WHO GAVE YOU THE SECOND CHECK PERSONALLY. IT IS ALSO NOTED FROM THE STATEMENT FROM MR. J. SNYDER, THAT YOU INFORMED HIM THAT YOU HAD JUST RECEIVED A PAYCHECK FROM YOUR FORMER SUPERVISOR. THE RECORDS INDICATE YOU ASKED MR. COOK TO SEE IF YOUR NAME WAS REMOVED FROM THE FORMER PAYROLL AND WERE TOLD HE WOULD CHECK ON IT. YOU WERE ASSURED THAT YOUR NAME HAD BEEN REMOVED FROM THE OAKDALE PAYROLL. HOWEVER, YOU CASHED BOTH OF THE CHECKS BECAUSE SOMEONE TOLD YOU THAT YOU WERE TO RECEIVE AN EXTRA TWO WEEKS FROM YOUR OLD STATION AND YOUR NEW STATION WOULD HOLD YOUR PAY FOR TWO WEEKS. THIS WAS NOT DONE AND YOU CONTINUED TO RECEIVE CHECKS FROM YOUR NEW STATION FOR THE SAME PERIOD.

YOU ASSERT THAT A WAIVER OF THE CLAIM IS AUTHORIZED BY 5 U.S.C. 5584, AS ADDED BY PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, ON THE THEORY THAT THE ERROR IN QUESTION WAS ONE OF ADMINISTRATIVE ORIGIN AND THAT "DUE TO OVERLAP IN PAY PERIODS BETWEEN PLACES OF EMPLOYMENT I COULD NOT BE EXPECTED TO KNOW THE EXACT AMOUNT AND DATE OF EACH PAY CHECK." FURTHER, YOU ASSERT THAT, AS SHOWN BY THE STATEMENTS OF MESSRS. COOK AND SNYDER, YOU ACTED IN GOOD FAITH TO DETERMINE THE PROPRIETY OF THE ERRONEOUS PAYCHECKS.

WHETHER AN EMPLOYEE WHO RECEIVES AN ERRONEOUS PAYMENT IS FREE FROM FAULT IN THE MATTER CAN ONLY BE DETERMINED BY A CAREFUL ANALYSIS OF ALL PERTINENT FACTS, NOT ONLY THOSE GIVING RISE TO THE OVERPAYMENT BUT THOSE INDICATING WHETHER THE EMPLOYEE REASONABLY COULD HAVE BEEN EXPECTED TO HAVE BEEN AWARE THAT AN ERROR HAD BEEN MADE.

IN THE PRESENT CASE THE RECORD INDICATES THAT YOU WERE AWARE OF POSSIBLE EXISTENCE OF AN ADMINISTRATIVE ERROR. THIS ACCOUNTS FOR YOUR HAVING GONE TO THE INDIVIDUALS WHICH YOU HAVE NAMED SEEKING CLARIFICATION OF THE SITUATION GIVING RISE TO THE ERRONEOUS PAYCHECKS. REGARDLESS OF THIS, HOWEVER, IT MAY NOT BE SAID THAT YOU WERE WITHOUT FAULT WHEN YOU CASHED THE PAYCHECKS FROM OAKDALE AND CONTINUED TO RECEIVE CHECKS FROM LETTERKENNY WITHOUT INTERRUPTION. A WAIVER IN SUCH A SITUATION IS PRECLUDED BY THE STANDARDS FOR WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF PAY, ISSUED PURSUANT TO PUBLIC LAW 90-616. THESE STANDARDS ARE PUBLISHED AT PAGE 20001, FEDERAL REGISTER, VOLUME 33, NO. 253, DECEMBER 31, 1968. SEE ALSO B-171944, MARCH 23, 1971; B-171487, JANUARY 26, 1971, COPIES HEREWITH.

IN LIGHT OF THE CIRCUMSTANCES SURROUNDING THE PRESENT CASE, IT DOES NOT APPEAR THAT COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES SO AS TO JUSTIFY WAIVER UNDER THE PROVISIONS OF 5 U.S.C. 5584. WE THEREFORE FIND NO BASIS FOR REVERSING THE DETERMINATION OF OUR CLAIMS DIVISION IN REFUSING TO GRANT THE WAIVER YOU REQUESTED.