B-174118, OCT 27, 1971

B-174118: Oct 27, 1971

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WHEN TWO CHECKS WERE ISSUED FOR THE SAME PAY PERIOD. THE CHECKS WERE MAILED DIRECTLY TO THE BANK BY THE GOVERNMENT. AS THE EMPLOYEE SHOULD HAVE BEEN AWARE OF ERRONEOUS PAYMENT DUE TO AN UNEXPLAINED DEPOSIT IN HIS BANK ACCOUNT. IT CANNOT BE SAID HE WAS WITHOUT FAULT. THE RECORD SHOWS THAT YOU WERE ISSUED TWO GOVERNMENT CHECKS COVERING THE SAME PERIOD OF SERVICE. 359 IN THE AMOUNT OF $240.02 WERE BOTH DEPOSITED TO YOUR BANK ACCOUNT. THE $240.02 WAS THE ERRONEOUS PAYMENT AND REFLECTED A GROSS PAYMENT OF $314.50. THE ERROR WAS DISCOVERED IN MARCH OF 1969 DURING AN AUDIT OF YOUR PAY ACCOUNT. YOU ASSERT THAT YOU WERE UNAWARE OF THE ERRONEOUS PAYMENT UNTIL IT WAS BROUGHT TO YOUR ATTENTION BY THE ADMINISTRATIVE OFFICE IN 1969 AND YOU HAD CHECKED YOUR OLD BANK STATEMENTS.

B-174118, OCT 27, 1971

CIVILIAN EMPLOYEE - ERRONEOUS PAYMENT OF PAY - WAIVER REFUSED DECISION DISALLOWING REQUEST FOR WAIVER OF COLLECTION OF ERRONEOUS PAYMENT OF PAY MADE BY MR. STAN O. WARD, EMPLOYEE OF THE U.S. ARMY TANK AUTOMOTIVE COMMAND, WHEN TWO CHECKS WERE ISSUED FOR THE SAME PAY PERIOD. THE CHECKS WERE MAILED DIRECTLY TO THE BANK BY THE GOVERNMENT. AS THE EMPLOYEE SHOULD HAVE BEEN AWARE OF ERRONEOUS PAYMENT DUE TO AN UNEXPLAINED DEPOSIT IN HIS BANK ACCOUNT, IT CANNOT BE SAID HE WAS WITHOUT FAULT; THEREFORE, NO GROUNDS FOR WAIVER EXIST.

TO MR. STAN O. WARD:

WE REFER TO YOUR LETTER OF AUGUST 24, 1971, APPEALING 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 AN ERRONEOUS PAYMENT OF PAY WHILE EMPLOYED BY THE UNITED STATES ARMY TANK-AUTOMOTIVE COMMAND, WARREN, MICHIGAN.

THE RECORD SHOWS THAT YOU WERE ISSUED TWO GOVERNMENT CHECKS COVERING THE SAME PERIOD OF SERVICE, I.E., THE PAY PERIOD ENDING JULY 15, 1967. U.S. TREASURY CHECK NO. 1,927,631 IN THE AMOUNT OF $202.52 AND U.S. TREASURY CHECK NO. 1,928,359 IN THE AMOUNT OF $240.02 WERE BOTH DEPOSITED TO YOUR BANK ACCOUNT. THE $202.52 CHECK REFLECTED THE NET AMOUNT OF YOUR CORRECT ENTITLEMENT FOR THE PERIOD INDICATED. THE $240.02 WAS THE ERRONEOUS PAYMENT AND REFLECTED A GROSS PAYMENT OF $314.50, LESS DEDUCTIONS FOR TAXES, RETIREMENT, AND INSURANCE. THE ERROR WAS DISCOVERED IN MARCH OF 1969 DURING AN AUDIT OF YOUR PAY ACCOUNT.

YOU ASSERT THAT YOU WERE UNAWARE OF THE ERRONEOUS PAYMENT UNTIL IT WAS BROUGHT TO YOUR ATTENTION BY THE ADMINISTRATIVE OFFICE IN 1969 AND YOU HAD CHECKED YOUR OLD BANK STATEMENTS.

YOUR POSITION IS THAT A WAIVER OF THE CLAIM IS AUTHORIZED BY 5 U.S.C. 5584 OR THE THEORY THAT THE ERROR IN QUESTION WAS ONE OF ADMINISTRATIVE ORIGIN AND THAT YOU WERE IN NO WAY AT FAULT IN THE MATTER SINCE THE PAY CHECKS WERE SENT DIRECTLY TO YOUR BANK INSTEAD OF BEING GIVEN TO YOU.

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 SHOULD HAVE BEEN AWARE OF AN ERRONEOUS PAYMENT DUE TO THE PRESENCE OF AN UNEXPLAINED DEPOSIT TO YOUR BANK ACCOUNT. YOU DID NOT INQUIRE INTO THE PROPRIETY OF SUCH DEPOSIT AT THE EARLIEST POSSIBLE TIME AFTER THE PERIODIC BANK STATEMENT WAS SENT TO YOU. THUS, IT MAY NOT BE SAID THAT YOU WERE WITHOUT FAULT IN ACCEPTING THE DEPOSIT WITHOUT QUESTIONING YOUR BANK AS TO ITS SOURCE AND PROPRIETY. THE LAW PRECLUDES A WAIVER WHERE THERE IS AN INDICATION OF FAULT ON THE PART OF THE EMPLOYEE.

IN LIGHT OF THE CIRCUMSTANCES SURROUNDING THE PRESENT CASE, WAIVER OF THE INDEBTEDNESS IS NOT JUSTIFIED UNDER THE PROVISIONS OF 5 U.S.C. 5584. THEREFORE FIND NO BASIS FOR REVERSING THE DETERMINATION OF OUR CLAIMS DIVISION IN REFUSING TO GRANT THE WAIVER YOU REQUESTED.