B-181899, JAN 30, 1975, 54 COMP GEN 644

B-181899, JAN 30, 1975, 54 COMP GEN 644

DEBT COLLECTIONS - WAIVER - MILITARY PERSONNEL - PRIOR CONSIDERATION OF DEBT EFFECT AN APPLICATION FOR WAIVER UNDER 10 U.S.C. 2774, WHICH WAS ORIGINALLY RECEIVED WITHIN THE 3-YEAR STATUTORY PERIOD AND DENIED, MAY BE GIVEN RECONSIDERATION BASED ON NEW EVIDENCE, NOTWITHSTANDING THE REQUEST FOR RECONSIDERATION IS RECEIVED AFTER EXPIRATION OF THE 3-YEAR LIMITATION PERIOD.

IN THE MATTER OF RECONSIDERATION OF PREVIOUSLY DENIED REQUESTS FOR WAIVER, JANUARY 30, 1975:

THIS ACTION IS IN RESPONSE TO A LETTER DATED JULY 18, 1974, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION ON A QUESTION PRESENTED IN THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 510, ENCLOSED WITH THE LETTER, CONCERNING RECONSIDERATION OF PREVIOUSLY DENIED WAIVER REQUESTS AFTER EXPIRATION OF THE 3-YEAR LIMITATION PERIOD PRESCRIBED IN 10 U.S.C. 2774 (SUPP. II, 1972).

THE QUESTION PRESENTED IN THE COMMITTEE ACTION IS AS FOLLOWS:

IF, IN ACCORDANCE WITH 10 U.S.C. 2774, A REQUEST FOR WAIVER OF AN ERRONEOUS PAYMENT OF PAY OR ALLOWANCES IS SUBMITTED AND DENIED WITHIN THE 3-YEAR LIMITATION IN SUBSECTION (B) OF THAT LAW, WOULD A REQUEST FOR RECONSIDERATION BASED ON NEW EVIDENCE BE BARRED BY THE LAW IF SUBMITTED SUBSEQUENT TO THE 3-YEAR LIMITATION?

THE COMMITTEE ACTION NOTES THAT 10 U.S.C. 2774 AUTHORIZES THE COMPTROLLER GENERAL OR THE SECRETARY CONCERNED TO WAIVE CLAIMS OF THE UNITED STATES ARISING OUT OF ERRONEOUS PAYMENTS OF ANY PAY OR ALLOWANCES, OTHER THAN TRAVEL AND TRANSPORTATION ALLOWANCES, THE COLLECTION OF WHICH WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTEREST OF THE UNITED STATES. THE COMMITTEE ACTION FURTHER POINTS OUT THAT NEITHER THE LANGUAGE OF 10 U.S.C. 2774, ITS LEGISLATIVE HISTORY, NOR THE STANDARDS FOR WAIVER (4 C.F.R. 91-93 (1974)), ISSUED PURSUANT TO THE STATUTE, SPECIFICALLY ADDRESS THE QUESTION PRESENTED. HOWEVER, THE COMMITTEE ACTION STATES THAT IT SEEMS REASONABLE THAT THE COMPTROLLER GENERAL OR SECRETARY CONCERNED BE AUTHORIZED TO GRANT RECONSIDERATION OF AN APPLICATION FOR WAIVER WHEN SUCH A REQUEST FOR RECONSIDERATION IS BASED UPON NEW MATERIAL EVIDENCE OR IS INTENDED TO CORRECT A MANIFEST ERROR IN CALCULATION.

UNDER THE PROVISIONS OF 10 U.S.C. 2774(B)(2) THE COMPTROLLER GENERAL OR THE SECRETARY CONCERNED, AS THE CASE MAY BE, MAY NOT EXERCISE HIS AUTHORITY UNDER SECTION 2774 TO WAIVE ANY CLAIM:

IF APPLICATION FOR WAIVER IS RECEIVED IN HIS OFFICE AFTER THE EXPIRATION OF THREE YEARS IMMEDIATELY FOLLOWING THE DATE ON WHICH THE ERRONEOUS PAYMENT OF PAY OR ALLOWANCES *** WAS DISCOVERED.

IN DECISION B-175449, JULY 27, 1972, A QUESTION SIMILAR TO THAT PRESENTED IN THE COMMITTEE ACTION WAS CONSIDERED CONCERNING THE WAIVER OF A CLAIM AGAINST A CIVILIAN EMPLOYEE OF THE GOVERNMENT UNDER 5 U.S.C. 5584 (1970). IN THAT DECISION IT WAS HELD IN EFFECT, THAT THE 3-YEAR STATUTORY LIMITATION THEN PROVIDED IN 5 U.S.C. 5584(B)(2) DID NOT PROHIBIT RECONSIDERATION AND WAIVER OF A CLAIM AFTER EXPIRATION OF THE STATUTORY PERIOD WHEN THAT CLAIM WAS PREVIOUSLY CONSIDERED FOR WAIVER WITHIN THE STATUTORY PERIOD.

THE LEGISLATIVE HISTORY OF THE ACT OF OCTOBER 2, 1972, PUBLIC LAW 92 453, 86 STAT. 758, WHICH, AMONG OTHER THINGS, ADDED 10 U.S.C. 2774 AND MADE CERTAIN CHANGES IN 5 U.S.C. 5584, INDICATES THAT ONE OF ITS PURPOSES WAS TO PROVIDE AUTHORITY TO WAIVE CLAIMS ARISING OUT OF ERRONEOUS PAYMENTS MADE TO MEMBERS OF THE UNIFORMED SERVICES SIMILAR TO THE WAIVER AUTHORITY PROVIDED BY 5 U.S.C. 5584 RELATING TO CIVILIAN GOVERNMENT EMPLOYEES, AND LANGUAGE SIMILAR TO THAT USED IN 5 U.S.C. 5584 IS USED IN 10 U.S.C. 2774. THEREFORE, IT IS OUR VIEW THAT THE RESULT REACHED IN B-175449, SUPRA, WOULD ALSO BE APPLICABLE TO CLAIMS CONSIDERED FOR WAIVER UNDER 10 U.S.C. 2774.

ACCORDINGLY, THE QUESTION PRESENTED IN THE COMMITTEE ACTION IS ANSWERED IN THE NEGATIVE.