B-174254, NOV 22, 1971

B-174254: Nov 22, 1971

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WHERE CLAIMANT WAS MOVED FROM A LEAVE CATEGORY EARNING 6 HOURS EACH BIWEEKLY PAY PERIOD TO A CATEGORY EARNING 8 HOURS EACH BIWEEKLY PAY PERIOD. NO INQUIRY WAS MADE AS TO THE CORRECTNESS OF THE ACTION. CANNOT FIND THAT THE EMPLOYEE WAS WITHOUT FAULT - A PREREQUISITE TO WAIVER UNDER 5 U.S.C. 5584. THE RECORD INDICATES THAT YOU WERE APPOINTED TO THE POSITION OF TEMPORARY SUBSTITUTE CARRIER AT THE CAMDEN. AT THE TIME OF YOUR APPOINTMENT YOU WERE PLACED IN LEAVE CATEGORY 4. YOUR SERVICE COMPUTATION DATE WAS DETERMINED TO BE APRIL 5. YOU WERE ELIGIBLE FOR THE 6-HOUR LEAVE CATEGORY ON APRIL 4. YOU WOULD HAVE BECOME ELIGIBLE FOR THE 8-HOUR LEAVE CATEGORY. YOU WERE IN LEAVE CATEGORY 8 AS OF JANUARY 1.

B-174254, NOV 22, 1971

CIVILIAN EMPLOYEE - ERRONEOUS PAYMENT - REQUEST FOR WAIVER AFFIRMING ACTION OF CLAIMS DIVISION WHICH DENIED A REQUEST FOR WAIVER OF AN ERRONEOUS OVERPAYMENT IN THE AMOUNT OF $547.83 INCIDENT TO CLAIMANT'S SERVICE AS A REGULAR POSTAL CARRIER. WHERE CLAIMANT WAS MOVED FROM A LEAVE CATEGORY EARNING 6 HOURS EACH BIWEEKLY PAY PERIOD TO A CATEGORY EARNING 8 HOURS EACH BIWEEKLY PAY PERIOD, THROUGH AN ADMINISTRATIVE ERROR, AND NO INQUIRY WAS MADE AS TO THE CORRECTNESS OF THE ACTION, THE COMP. GEN. CANNOT FIND THAT THE EMPLOYEE WAS WITHOUT FAULT - A PREREQUISITE TO WAIVER UNDER 5 U.S.C. 5584.

TO MR. GEORGE W. EICHENBERG:

WE REFER TO YOUR LETTER OF JULY 31, 1971, WRITTEN TO MR. R. W. BASS, DIRECTOR OF THE POSTAL DATA CENTER IN ATLANTA, GEORGIA, WHEREIN YOU ASK FOR RECONSIDERATION OF THE ACTION OF OUR CLAIMS DIVISION WHICH BY LETTER OF JANUARY 27, 1971, TO MR. BASS, DENIED YOUR REQUEST FOR WAIVER OF AN ERRONEOUS OVERPAYMENT IN THE AMOUNT OF $547.83.

THE RECORD INDICATES THAT YOU WERE APPOINTED TO THE POSITION OF TEMPORARY SUBSTITUTE CARRIER AT THE CAMDEN, NEW JERSEY, POST OFFICE ON APRIL 3, 1958, AND BECAME A REGULAR CARRIER ON SEPTEMBER 17, 1960. AT THE TIME OF YOUR APPOINTMENT YOU WERE PLACED IN LEAVE CATEGORY 4, EARNING 104 HOURS OF LEAVE PER YEAR. HOWEVER, YOUR SERVICE COMPUTATION DATE WAS DETERMINED TO BE APRIL 5, 1956, AS A RESULT OF THE TIME YOU SPENT IN THE ARMY, AND YOU WERE ELIGIBLE FOR THE 6-HOUR LEAVE CATEGORY ON APRIL 4, 1959. YOU WOULD HAVE BECOME ELIGIBLE FOR THE 8-HOUR LEAVE CATEGORY, EARNING 1 DAY OF LEAVE FOR EACH FULL BIWEEKLY PAY PERIOD, AFTER 15 YEARS OF SERVICE. HOWEVER, DUE TO AN ADMINISTRATIVE ERROR, YOU WERE IN LEAVE CATEGORY 8 AS OF JANUARY 1, 1966, AND FROM THAT DATE UNTIL JANUARY 9, 1970, YOU WERE ERRONEOUSLY CREDITED WITH 208 HOURS OF ANNUAL LEAVE PER YEAR INSTEAD OF THE 160 HOURS WHICH YOU WOULD HAVE BEEN ENTITLED TO IN LEAVE CATEGORY 6. SINCE YOU WERE ERRONEOUSLY PAID FOR THE DAYS YOU WERE ON ANNUAL LEAVE IN EXCESS OF THE ACTUAL LEAVE TO WHICH YOU WERE ENTITLED, YOU HAVE BEEN ASKED TO REPAY THE OVERPAYMENT IN THE NET AMOUNT OF $512.23. YOU ARE SEEKING A WAIVER OF THE CLAIM AGAINST YOU ON THE GROUND THAT YOU WERE UNAWARE THAT YOU HAD BEEN PLACED IN THE WRONG LEAVE CATEGORY PRIOR TO ELIGIBILITY.

THE STANDARDS FOR WAIVER ARE FOUND IN 4 CFR 91-93, THE IMPLEMENTING REGULATIONS TO 5 U.S.C. 5584. SECTION 91.5(B) OF SUCH STANDARDS PROVIDES FOR WAIVER WHERE "THE ERRONEOUS PAYMENT OF PAY OCCURRED THROUGH ADMINISTRATIVE ERROR AND THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE *** ." WE HAVE PREVIOUSLY HELD THAT WHETHER OR NOT THERE HAS BEEN FAULT ON THE PART OF THE EMPLOYEE IS TO BE DETERMINED BY AN ANALYSIS OF THE FACTS EXISTING IN THE PARTICULAR CASE, INCLUDING THOSE WHICH GAVE RISE TO THE OVERPAYMENT, AS WELL AS THOSE INDICATING WHETHER THE EMPLOYEE COULD REASONABLY HAVE BEEN EXPECTED TO HAVE BEEN AWARE THAT AN ERROR HAD BEEN MADE. IF IT IS ADMINISTRATIVELY DETERMINED THAT A REASONABLE MAN, UNDER THE CIRCUMSTANCES INVOLVED, WOULD HAVE MADE INQUIRY AS TO THE CORRECTNESS OF THE PAYMENT AND THE EMPLOYEE DID NOT, THEN THE EMPLOYEE CANNOT BE SAID TO BE FREE FROM FAULT.

THUS, IN DETERMINING THE REASONABLENESS OF YOUR ACTIONS DURING THE TIME THAT YOU WERE RECEIVING THE EXCESS LEAVE, WE MUST TAKE INTO ACCOUNT YOUR LENGTH OF SERVICE WITH THE POSTAL SERVICE AND THE FACT THAT AT THE TIME YOU WERE EMPLOYED YOUR SERVICE COMPUTATION DATE WAS SET AT APRIL 5, 1956, AND YOU WERE ADVANCED TO THE NEXT LEAVE CATEGORY IN APRIL 1959. WE ARE OF THE VIEW THAT IT WAS INCUMBENT UPON YOU TO INQUIRE AS TO THE CORRECTNESS OF A SUBSEQUENT ACTION IN WHICH YOU WERE SUDDENLY INCREASED TO LEAVE CATEGORY 8. ACCORDINGLY, ON THE RECORD BEFORE US, WE CAN FIND NO BASIS FOR CONCLUDING THAT YOU WERE WITHOUT FAULT IN THE MATTER.

THE PREVIOUS ACTION, DENYING YOUR REQUEST FOR WAIVER, IS AFFIRMED.