B-174990, MAR 14, 1972

B-174990: Mar 14, 1972

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ABSENT ANY EVIDENCE THAT THE AGENCY DETERMINATION WAS ARBITRARY OR CAPRICIOUS. WILL NOT INTERFERE WITH NSA'S DISCRETION NOT TO EXERCISE ITS WAIVER AUTHORITY PURSUANT TO 5 U.S.C. 4108(C). THIS AGREEMENT WAS REQUIRED PURSUANT TO 5 U.S.C. 4108 AND IMPLEMENTING REGULATIONS CONTAINED IN 5 CFR 410.508 AND 410.509. HE IS REQUIRED TO REPAY THE ADDITIONAL EXPENSES OF THE TRAINING WHICH IN YOUR CASE WOULD APPARENTLY INVOLVE ONLY TUITION FEES IN THE AMOUNT OF $720. RECOVERY BY THE GOVERNMENT MAY BE ACCOMPLISHED BY SETOFF AGAINST AN AMOUNT OF RETIREMENT CREDIT AS WAS DONE IN YOUR CASE. OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THIS DISCRETION IS PRIMARILY WITHIN THE SCOPE OF AGENCY AUTHORITY.

B-174990, MAR 14, 1972

CIVILIAN EMPLOYEE - VIOLATION OF SERVICE AGREEMENT - SETOFF - REQUEST FOR WAIVER DECISION SUSTAINING PRIOR DENIAL OF A REQUEST OF SAMUEL A. MAYO FOR WAIVER OF A SETOFF BEING RECOVERED AGAINST HIS RETIREMENT CREDIT FOR TUITION EXPENSES INCURRED INCIDENT TO HIS VOLUNTARY VIOLATION OF A SERVICE AGREEMENT WITH THE NATIONAL SECURITY AGENCY (NSA). ABSENT ANY EVIDENCE THAT THE AGENCY DETERMINATION WAS ARBITRARY OR CAPRICIOUS, THE COMP. GEN. WILL NOT INTERFERE WITH NSA'S DISCRETION NOT TO EXERCISE ITS WAIVER AUTHORITY PURSUANT TO 5 U.S.C. 4108(C). ACCORDINGLY, ON THE PRESENT RECORD, THE PRIOR DENIAL MUST BE SUSTAINED.

TO MR. SAMUEL A. MAYO:

THIS REFERS TO YOUR LETTER OF DECEMBER 28, 1971, WHICH HAS BEEN CONSIDERED AS AN APPEAL FROM THE DENIAL OF YOUR CLAIM FOR WAIVER OF YOUR INDEBTEDNESS TO THE GOVERNMENT. THIS INDEBTEDNESS HAS BEEN SET OFF AGAINST YOUR RETIREMENT ACCOUNT. IT ORIGINATED AT THE TIME (MARCH 21, 1969) YOU VOLUNTARILY RESIGNED YOUR POSITION WITH THE NATIONAL SECURITY AGENCY (NSA) IN VIOLATION OF A SERVICE AGREEMENT TO REMAIN WITH SAID AGENCY UNTIL NOVEMBER 12, 1969.

THE RECORD REVEALS THAT YOU ENTERED INTO THE SUBJECT SERVICE AGREEMENT IN EXCHANGE FOR THE PAYMENT BY NSA OF YOUR TUITION EXPENSES INCIDENT TO A COURSE OF STUDY YOU PURSUED DURING THE FALL SEMESTER OF 1968 AT GEORGE WASHINGTON UNIVERSITY. THIS AGREEMENT WAS REQUIRED PURSUANT TO 5 U.S.C. 4108 AND IMPLEMENTING REGULATIONS CONTAINED IN 5 CFR 410.508 AND 410.509. IF AN EMPLOYEE LEAVES THE AGENCY'S EMPLOY BEFORE EXPIRATION OF THE SERVICE PERIOD, HE IS REQUIRED TO REPAY THE ADDITIONAL EXPENSES OF THE TRAINING WHICH IN YOUR CASE WOULD APPARENTLY INVOLVE ONLY TUITION FEES IN THE AMOUNT OF $720. RECOVERY BY THE GOVERNMENT MAY BE ACCOMPLISHED BY SETOFF AGAINST AN AMOUNT OF RETIREMENT CREDIT AS WAS DONE IN YOUR CASE. SEE 5 U.S.C. 4108.

5 U.S.C. 4108(C) CONTAINS WAIVER AUTHORITY WHICH AN AGENCY MAY EXERCISE IN ITS DISCRETION WHEN IT FINDS THAT RECOVERY OF THE TRAINING EXPENSES WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE OR AGAINST THE PUBLIC INTEREST. OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THIS DISCRETION IS PRIMARILY WITHIN THE SCOPE OF AGENCY AUTHORITY, AND WE ARE REQUIRED TO ACCEPT THE DETERMINATION OF THE ADMINISTRATIVE AGENCY IN THE ABSENCE OF ANY INDICATION THAT SUCH DETERMINATION WAS ARBITRARY AND CAPRICIOUS OR OTHERWISE BASED ON AN ERRONEOUS INTERPRETATION OF LAW OR THE TERMS OF AN EMPLOYEE'S SERVICE AGREEMENT.

IN ADDITION TO YOUR LETTER OF DECEMBER 28, 1971, WE HAVE ALSO REVIEWED YOUR LETTERS OF NOVEMBER 1 AND DECEMBER 16, 1970, AND JULY 21 AND AUGUST 14, 1971. EACH OF THOSE LETTERS GENERALLY REFERS TO MATTERS WHICH ARE OUTSIDE THE JURISDICTION OF OUR OFFICE AND CONCERN WORKING CONDITIONS AND ALLEGED FAILURES OF NSA OFFICIALS TO COMPLY WITH IMPLIED UNDERSTANDINGS ABOUT THE TERMS OF YOUR EMPLOYMENT. YOU HAVE SPECIFICALLY REFERRED TO AN "EDUCATIONAL AGREEMENT CONCERNING THE ROTATION OF A FULL TIME SEMESTER" AND TO A "FAILURE TO GENERATE AN INTERNAL REQUEST FOR DRAFT DEFERMENT." IN ADDITION, YOU MENTION INFORMAL ADVICE YOU RECEIVED FROM AN NSA EMPLOYEE TO THE EFFECT THAT "TUITION COSTS WOULD BE REIMBURSED IF THERE HAD BEEN A COUPLE OF SERIOUS SITUATIONS IN YOUR IMMEDIATE FAMILY RECENTLY."

ALTHOUGH WE HAVE NOT BEEN FURNISHED WITH A COPY OF YOUR SERVICE AGREEMENT, WE HAVE DISCUSSED IT INFORMALLY WITH THE CIVILIAN PERSONNEL DIRECTOR OF NSA WHO HAS INFORMED US THAT NONE OF THE ITEMS MENTIONED ABOVE IS COVERED BY AN EXPRESS PROVISION OF SUCH AGREEMENT. MOREOVER, YOU HAVE APPARENTLY CONCEDED THIS BY YOUR REFERENCE TO SUCH MATTERS AS BREACHES OF "IMPLIED GOOD FAITH." WITH RESPECT TO THE COMMENT FURNISHED ON WHAT WOULD JUSTIFY WAIVER OF THE TUITION, WE REGARD SUCH COMMENT AS INFORMATIONAL ONLY SINCE THERE IS NO INDICATION THAT THE PERSON OFFERING IT HAD DISCRETIONARY AUTHORITY TO GRANT WAIVER, OR THAT SUCH AUTHORITY WAS EXERCISED IN YOUR CASE.

WE ALSO BELIEVE THAT YOU ERRONEOUSLY CHARACTERIZE YOUR SERVICE AGREEMENT AS AN "EMPLOYMENT AGREEMENT" OR PERSONAL SERVICE CONTRACT WHICH CONTROLS THE CONDITIONS OF YOUR EMPLOYMENT. THERE IS NO PERCEIVABLE BASIS FOR THIS VIEW SINCE YOU APPARENTLY OCCUPIED AN APPOINTIVE POSITION IN THE CIVIL SERVICE AND WOULD THEREFORE BE SUBJECT TO THE STATUTES AND REGULATIONS GENERALLY PERTAINING TO OTHER FEDERAL EMPLOYEES. THE SERVICE AGREEMENT UNDER DISCUSSION IS ONE WHICH WAS REQUIRED INCIDENT TO EDUCATION FURNISHED TO YOU AT GOVERNMENT COST FOR THE COURSE OF STUDY AT GEORGE WASHINGTON UNIVERSITY. UNDER THAT AGREEMENT YOU WERE REQUIRED TO CONTINUE IN SERVICE WITH NSA FOR THE SPECIFIED TIME PERIOD. SUCH AGREEMENT WAS REQUIRED BY NSA AS QUID PRO QUO FOR THE CONSIDERATION YOU RECEIVED IN HAVING NSA PAY YOUR EDUCATIONAL EXPENSES.

ON THE PRESENT STATE OF THE RECORD THERE IS NO FURTHER CONSIDERATION WE MAY GIVE TO THE MATTER SINCE YOU HAVE FURNISHED NO EVIDENCE SUGGESTING THAT NSA ACTED IN AN ARBITRARY AND CAPRICIOUS MANNER IN REJECTING YOUR REQUEST FOR WAIVER OF THE SUBJECT INDEBTEDNESS.