B-175584, JUN 1, 1972

B-175584: Jun 1, 1972

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SANGER'S REQUEST IS PRECLUDED BY THE TWO -YEAR TIME LIMITATION PRESCRIBED IN PUB. IS CURRENTLY PENDING IN CONGRESS. HE SHOULD HAVE BECOME AWARE OF THE ERROR. THE SUBJECT OVERPAYMENTS AROSE FROM AN ERRONEOUS CONTINUATION OF POST-DIFFERENTIAL PAY WHICH SHOULD HAVE TERMINATED ON OCTOBER 2. CORRECTIVE ACTION WAS TAKEN EFFECTIVE MAY 17. THE RESULTING INDEBTEDNESS WAS LIQUIDATED BY PAYROLL DEDUCTIONS OVER 12 SUCCEEDING PAY PERIODS. STATED THAT CONSIDERATION OF YOUR REQUEST FOR WAIVER WAS PRECLUDED SINCE THE TIME LIMITATIONS PRESCRIBED IN PUBLIC LAW 90-616 (5 U.S.C. 5584) AS APPLIED TO YOUR CASE WOULD HAVE REQUIRED WAIVER ACTION ON OR BEFORE OCTOBER 21. THE REQUISITE ADMINISTRATIVE REPORT WAS NOT RECEIVED HERE UNTIL JANUARY 13.

B-175584, JUN 1, 1972

CIVILIAN EMPLOYEE - ERRONEOUS OVERPAYMENTS OF POST DIFFERENTIAL PAY - TIMELINESS - REQUEST FOR WAIVER DECISION SUSTAINING PRIOR DENIAL OF A REQUEST OF JOHN H. SANGER, AN EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT, FOR WAIVER OF ERRONEOUS OVERPAYMENTS OF PAY. AT PRESENT, CONSIDERATION OF MR. SANGER'S REQUEST IS PRECLUDED BY THE TWO -YEAR TIME LIMITATION PRESCRIBED IN PUB. L. 90-616, 5 U.S.C. 5584. HOWEVER, SINCE H.R. 7614, A BILL WHICH WOULD OBVIATE THE TIMELINESS ISSUE, IS CURRENTLY PENDING IN CONGRESS, THE REQUEST HAS BEEN REVIEWED ON ITS MERITS. MR. SANGER'S WIDE EXPERIENCE AS A FOREIGN SERVICE EMPLOYEE IMPUTES KNOWLEDGE THAT POST DIFFERENTIAL EXPIRES UPON DEPARTURE FROM THE FOREIGN DUTY STATION, AND OVER THE 7-MONTH PERIOD OF OVERPAYMENT, HE SHOULD HAVE BECOME AWARE OF THE ERROR. ACCORDINGLY, COLLECTION ACTION WOULD NOT BE AGAINST EQUITY AND GOOD CONSCIENCE OR CONTRARY TO THE BEST INTERESTS OF THE UNITED STATES PURSUANT TO THE REQUIREMENTS FOR WAIVER UNDER 4 CFR 91.5(B) AND THE REQUEST MUST BE DENIED.

TO MR. JOHN H. SANGER:

THIS REFERS TO YOUR LETTER OF FEBRUARY 26, 1972, WHICH HAS BEEN CONSIDERED AS AN APPEAL FROM THE ACTION OF OUR CLAIMS DIVISION (NOW TRANSPORTATION AND CLAIMS DIVISION) DENYING YOUR REQUEST FOR WAIVER OF THE GOVERNMENT'S CLAIM AGAINST YOU FOR ERRONEOUS OVERPAYMENTS OF PAY TO YOU IN THE GROSS AMOUNT OF $2,601 AS AN EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID).

AS INDICATED IN LETTER DATED JANUARY 28, 1972, FROM THE DIRECTOR OF OUR CLAIMS DIVISION, THE SUBJECT OVERPAYMENTS AROSE FROM AN ERRONEOUS CONTINUATION OF POST-DIFFERENTIAL PAY WHICH SHOULD HAVE TERMINATED ON OCTOBER 2, 1966, WHEN YOU LEFT SOUTH VIETNAM TO RETURN TO THE UNITED STATES FOR HOME LEAVE, TEMPORARY DUTY, AND EVENTUAL REASSIGNMENT TO ECUADOR ON JULY 16, 1967. THE RECORD DISCLOSES THAT YOU ARRIVED AT THE HOME-LEAVE POINT ON OCTOBER 12, 1966, AND REMAINED IN HOME-LEAVE STATUS UNTIL YOU LEFT ON DECEMBER 10 FOR TEMPORARY DUTY IN WASHINGTON, D.C. CORRECTIVE ACTION WAS TAKEN EFFECTIVE MAY 17, 1967, TO TERMINATE THE PAYMENTS OF THE POST DIFFERENTIAL, AND THE RESULTING INDEBTEDNESS WAS LIQUIDATED BY PAYROLL DEDUCTIONS OVER 12 SUCCEEDING PAY PERIODS.

THE LETTER OF JANUARY 28, 1972, STATED THAT CONSIDERATION OF YOUR REQUEST FOR WAIVER WAS PRECLUDED SINCE THE TIME LIMITATIONS PRESCRIBED IN PUBLIC LAW 90-616 (5 U.S.C. 5584) AS APPLIED TO YOUR CASE WOULD HAVE REQUIRED WAIVER ACTION ON OR BEFORE OCTOBER 21, 1971, AND THE REQUISITE ADMINISTRATIVE REPORT WAS NOT RECEIVED HERE UNTIL JANUARY 13, 1972. DESPITE THIS FACT YOUR CASE WAS EXAMINED FOR THE PURPOSE OF DETERMINING WHETHER A RECOMMENDATION SHOULD BE MADE THAT PRIVATE RELIEF LEGISLATION BE SOUGHT. THIS EXAMINATION WAS APPARENTLY MADE SINCE THERE WAS DELAY IN FORWARDING YOUR REQUEST TO OUR OFFICE. ON THE BASIS OF THE RECORD IT WAS CONCLUDED THAT, EVEN IF YOUR REQUEST HAD BEEN TIMELY RECEIVED, FAVORABLE CONSIDERATION OF YOUR REQUEST WOULD NOT HAVE BEEN MADE.

YOU ASK FOR RECONSIDERATION ON THE GROUNDS THAT YOU MADE A TIMELY REQUEST FOR REFUND OF THE AMOUNTS COLLECTED FROM YOU ON ACCOUNT OF THE ERRONEOUS PAYMENTS AND THAT THE DISCOVERY OF THE ERROR WAS THE RESULT OF YOUR VISIT TO THE AID PAYROLL DIVISION TO GET EXPLANATIONS OF IRREGULARITIES IN YOUR PAYCHECKS. THE REGULATIONS QUOTED IN YOUR LETTER DO NOT RESOLVE THE TIME LIMITATION ISSUE SINCE THE 2-YEAR PERIOD STATED IN SUCH REGULATIONS ONLY COMES INTO PLAY WHEN A WAIVER HAS BEEN PROPERLY GRANTED UNDER 5 U.S.C. 5584, AND THE EMPLOYEE HAS PREVIOUSLY REFUNDED THE ERRONEOUS OVERPAYMENT WHICH IS THE SUBJECT OF THE WAIVER. IN THAT EVENT HE HAS 2 YEARS TO MAKE APPLICATION FOR REFUND OF THE AMOUNTS REPAID TO THE UNITED STATES. SEE 5 U.S.C. 5584(C). THERE IS, HOWEVER, A BILL PENDING BEFORE THE 92ND CONGRESS (H. R. 7614) WHICH WOULD CONNECT THE PRESCRIBED TIME PERIODS WITH THE DATE AN APPLICATION FOR WAIVER IS RECEIVED IN THE APPROPRIATE OFFICE RATHER THAN THE DISCOVERY DATE OF THE ERRONEOUS OVERPAYMENT. IF THAT BILL SHOULD BE ENACTED INTO LAW WITHIN THE CURRENT SESSION, IT WOULD APPEAR TO OBVIATE THE TIMELINESS ISSUE PRESENTED IN YOUR CASE.

IN VIEW OF THE POSSIBILITY THAT YOUR REQUEST FOR WAIVER MIGHT BE FOR CONSIDERATION ON THE MERITS AT SOME FUTURE POINT, WE HAVE REVIEWED THE CIRCUMSTANCES UNDERLYING THE ERRONEOUS OVERPAYMENT OF POST DIFFERENTIAL. YOUR LETTER OFFERS THE FOLLOWING COMMENTS IN CLARIFICATION OF THE FACTS AS YOU PERCEIVE THEM:

"WHEN I RETURNED FROM VIETNAM THE AMOUNTS OF MY PAY CHECKS DID IN FACT DECREASE, AND REMAINED GENERALLY LOWER FROM THAT TIME UNTIL I AGAIN WENT OVERSEAS. HOWEVER, THERE WAS GREAT IRREGULARITY IN THE AMOUNTS OF THE CHECKS, WHICH I COULD NOT UNDERSTAND. FOR EXAMPLE, WHILE IN VIETNAM SOME CHECKS WERE IN THE 700'S. AFTER RETURNING THEY DECREASED INTO THE LOW 600'S, THE 500'S AND ONE INTO THE 400'S. DURING THESE PERIODS I RECEIVED ONLY ABOUT HALF OF THE STATEMENTS OF EARNINGS AND LEAVE, AND VERY FEW OF THE FORMS SHOWING CHANGES IN PAY CHECK AND REASON THEREFORE. I COULD NOT FOLLOW THE VARIATIONS AND THERE WAS NO TIME TO MAKE A DETAILED AUDIT, EVEN IF I HAD HAD ALL OF THE NECESSARY PAPERS AT HAND. I DID TRY TO GET MISSING PAY-ROLL STATEMENTS BUT THE WASHINGTON CONTROLLER'S OFFICE DID NOT HAVE THEM AND SAID I WOULD HAVE TO GET THEM FROM SAIGON."

YOU ALSO ASK US TO CONSIDER:

" *** (1) THAT PAY CHECKS FOR THSE OVERSEAS (ESPECIALLY IN SUCH DISORGANIZED PLACES AS VIETNAM AND GOING, AS IN MY CASE, DIRECTLY TO THE FAMILY IN THE US) ARRIVE SOME TIME AFTER THE PERIOD THEY COVER, AND EXPLANATIONS OF CHANGES STILL LATER (IF AT ALL) AND (2) THAT PEOPLE WITH FAMILIES IN TOW, IN TRANSITION BETWEEN ASSIGNMENTS, WITH INTERIM DUTY IN WASHINGTON, HOME LEAVE, PREPARATIONS TO LEAVE FOR NEXT POST, ETC; ARE TOO BUSY AND HARASSED TO PAY ATTENTION TO THE DETAILS THAT THOSE IN SETTLED CIRCUMSTANCES CAN. SO IT WOULD SEEM THAT A PERIOD OF SOME FIFTEEN PAY CHECKS IS NOT AN UNREASONABLE LENGTH OF TIME FOR ONE TO DETECT AND CORRECT AN OVERPAYMENT. THIS ESPECIALLY SINCE CHECK AMOUNTS DID IN FACT DECREASE WHILE IN THE US."

WE HAVE REVIEWED THE "DECREASE" AND "IRREGULARITY" IN THE AMOUNTS OF YOUR CHECKS AFTER RETURNING FROM SOUTH VIETNAM. WE NOTE A NET DECREASE, RANGING FROM ABOUT $34 TO $41 PER PAY PERIOD, AS COMPARED TO THE NET AMOUNTS PAID IN 7 OF THE 8 PAY PERIODS IMMEDIATELY PRECEDING YOUR DEPARTURE FROM SOUTH VIETNAM. FROM YOUR EXTENSIVE SERVICE IN FOREIGN AREAS GENERALLY, AND IN SOUTH VIETNAM PARTICULARLY, YOU WOULD HAVE OR SHOULD REASONABLY BE EXPECTED TO HAVE KNOWN THAT SUCH A NET DECREASE DID NOT APPROXIMATE AN AMOUNT ATTRIBUTABLE TO THE TERMINATION OF POST- DIFFERENTIAL ($173.40). MOREOVER, THE ONLY "IRREGULARITY" IN YOUR CHECKS (AFTER RETURN FROM SOUTH VIETNAM) STEMS FROM ADJUSTMENTS IN FEDERAL TAX WITHHOLDING AND A MINOR INCREASE IN YOUR SHARE OF HEALTH INSURANCE PREMIUMS.

YOU HAVE STATED THAT YOU ONLY RECEIVED "ABOUT HALF" OF THE EARNINGS AND LEAVE STATEMENTS, EACH OF WHICH CONTAIN A SEPARATE INFORMATION BLOCK SHOWING POST DIFFERENTIAL. HOWEVER, SINCE YOU ALSO STATE THAT YOUR CHECKS WERE FORWARDED DIRECTLY TO YOUR FAMILY IN THE UNITED STATES, IT APPEARS THAT WHILE ON HOME LEAVE FOR SOME 2 MONTHS YOU WOULD HAVE RECEIVED SOME CHECKS YOURSELF, OR ELSE DEPOSIT RECEIPTS AND/OR BANK STATEMENTS SHOWING CREDITS TO YOUR ACCOUNT IN NET AMOUNTS REPRESENTING THE SLIGHT REDUCTIONS IN PAYCHECKS DISCUSSED ABOVE. IN ADDITION, WE HAVE BEEN INFORMALLY ADVISED THAT THE USUAL PROCEDURE FOLLOWED BY AID WAS TO TRANSMIT ALL EARNINGS AND LEAVE STATEMENTS TO THE FOREIGN MISSION TO WHICH THE EMPLOYEE WAS ATTACHED. FROM THERE SUCH STATEMENTS WOULD BE FORWARDED TO THE HOME- LEAVE MAILING ADDRESS PROVIDED BY THE EMPLOYEE UPON HIS DEPARTURE. YOUR OFFICIAL DEPARTURE NOTICE (AIRGRAM) DATED SEPTEMBER 27, 1966, INCLUDES YOUR ADDRESS IN HOT SPRINGS, SOUTH DAKOTA, AND WE UNDERSTAND THAT EARNINGS AND LEAVE STATEMENTS FOR THE PERIOD IN QUESTION WERE SENT TO YOU AT THAT ADDRESS BY PERSONNEL IN SAIGON, SOUTH VIETNAM. THEREFORE, EVEN IF ALL SUCH STATEMENTS DID NOT REACH YOU IN SOUTH DAKOTA, IT IS ASSUMED THAT SOME DID AND THAT YOUR BANKING RECORDS WOULD HAVE REFLECTED THE FAILURE TO TERMINATE POST DIFFERENTIAL.

YOUR WIDE EXPERIENCE AS A GOVERNMENT EMPLOYEE SERVING IN FOREIGN AREAS IMPUTES KNOWLEDGE THAT ENTITLEMENT TO POST DIFFERENTIAL EXPIRES UPON LEAVING SUCH FOREIGN AREA FOR HOME LEAVE OR DUTY IN THE UNITED STATES. THERE IS NO SHOWING THAT YOU WERE TRAVELING AND IN A STATE OF DISLOCATION DURING THE ENTIRE PERIOD BETWEEN OCTOBER 12 AND DECEMBER 10, 1966, OR UNTIL YOUR VISIT TO THE PAYROLL OFFICE IN MAY 1967; NOR HAVE ANY OTHER CIRCUMSTANCES BEEN PRESENTED TO ESTABLISH THAT FOR OVER 7 MONTHS YOU WERE NOT IN A POSITION TO REALIZE THAT YOUR POST DIFFERENTIAL PAYMENTS WERE ERRONEOUSLY CONTINUING.

THE REGULATIONS IMPLEMENTING PUBLIC LAW 90-616 AUTHORIZING THE WAIVER OF OVERPAYMENT OF PAY UNDER CERTAIN CIRCUMSTANCES ARE FOUND AT 4 CFR 91 93. SUBSECTION 91.5(B) OF THOSE REGULATIONS PROVIDES FOR WAIVER WHENEVER:

"(B) COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES. GENERALLY THESE CRITERIA WILL BE MET BY A FINDING THAT THE ERRONEOUS PAYMENT OF PAY OCCURRED THROUGH ADMINSTRATIVE ERROR AND THAT THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT, OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE *** "

UNDER THE CIRCUMSTANCES WE BELIEVE THAT AT THE TIME OF RECEIPT OF THE FIRST ERRONEOUS OVERPAYMENT, OR SHORTLY THEREAFTER, YOU REASONABLY SHOULD HAVE BEEN AWARE OF THE FACT THAT AN ERROR HAD BEEN MADE IN YOUR PAY. YOU REASONABLY SHOULD HAVE EXPECTED THE GOVERNMENT TO RECOVER SUCH OVERPAYMENTS. CONSEQUENTLY, THE COLLECTION OF THE OVERPAYMENTS DOES NOT APPEAR TO HAVE BEEN AGAINST EQUITY AND GOOD CONSCIENCE OR CONTRARY TO THE BEST INTERESTS OF THE UNITED STATES.

IN VIEW OF THE ABOVE, THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IS HEREBY SUSTAINED.