B-195706.OM, L/M, FEB 20, 1980

B-195706.OM: Feb 20, 1980

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CLAIMS DIVISION: RETURNED HEREWITH IS CLAIMS FILE NO. 11 DAYS OF ACTIVE SERVICE ON THE DATE HE WAS RETIRED FROM THE MARINE CORPS FOR REASONS OF PHYSICAL DISABILITY ON SEPTEMBER 9. THE ERRONEOUS ENTRY IN THE RETIREMENT ORDERS WAS USED BY THE MARINE CORPS FINANCE CENTER IN COMPUTING HIS RETIRED PAY ENTITLEMENT. AS A RESULT HE WAS OVERPAID BETWEEN $24 AND $27 PER MONTH DURING THE PERIOD FROM SEPTEMBER 1976 THROUGH JULY 1978. WE DENIED SERGEANT REDDY'S APPLICATION FOR WAIVER FOR THE REASON THAT HE SHOULD HAVE NOTICED THE ERROR IN HIS RETIREMENT ORDERS AND HAD IT CORRECTED AT THE TIME OF HIS RETIREMENT. SERGEANT REDDY INDICATES THAT HE BELIEVED THIS WAS THE FORM THAT WOULD BE USED FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY.

B-195706.OM, L/M, FEB 20, 1980

SUBJECT: GUNNERY SERGEANT JOSEPH T. REDDY, USMC (RETIRED) - B-195706-O.M.:

DIRECTOR, CLAIMS DIVISION:

RETURNED HEREWITH IS CLAIMS FILE NO. Z-2809303 CONCERNING THE APPLICATION OF GUNNERY SERGEANT JOSEPH T. REDDY, USMC (RETIRED), FOR WAIVER OF THE GOVERNMENT'S $537.10 CLAIM AGAINST HIM RESULTING FROM OVERPAYMENTS OF MILITARY RETIRED PAY HE RECEIVED DURING THE PERIOD FROM SEPTEMBER 10, 1976, TO JULY 31, 1978.

THE OVERPAYMENTS TO SERGEANT REDDY RESULTED FROM AN ERRONEOUS ENTRY IN HIS RETIREMENT ORDERS STATING THAT HE HAD COMPLETED 21 YEARS, 1 MONTH, AND 11 DAYS OF ACTIVE SERVICE ON THE DATE HE WAS RETIRED FROM THE MARINE CORPS FOR REASONS OF PHYSICAL DISABILITY ON SEPTEMBER 9, 1976. IN FACT, HE HAD COMPLETED ONLY 20 YEARS, 1 MONTH, AND 11 DAYS OF ACTIVE MILITARY SERVICE AT THE TIME OF HIS RETIREMENT. THE ERRONEOUS ENTRY IN THE RETIREMENT ORDERS WAS USED BY THE MARINE CORPS FINANCE CENTER IN COMPUTING HIS RETIRED PAY ENTITLEMENT, AND AS A RESULT HE WAS OVERPAID BETWEEN $24 AND $27 PER MONTH DURING THE PERIOD FROM SEPTEMBER 1976 THROUGH JULY 1978. THE SETTLEMENT OF JUNE 15, 1979, AND DECISION B-195706 OF SEPTEMBER 12, 1979, WE DENIED SERGEANT REDDY'S APPLICATION FOR WAIVER FOR THE REASON THAT HE SHOULD HAVE NOTICED THE ERROR IN HIS RETIREMENT ORDERS AND HAD IT CORRECTED AT THE TIME OF HIS RETIREMENT, AND HIS FAILURE TO TAKE CORRECTIVE ACTION PLACED HIM IN THE POSITION OF BEING AT LEAST PARTIALLY AT FAULT IN THE MATTER.

IN HIS LETTER OF NOVEMBER 27, 1979, SERGEANT REDDY HAS SUBMITTED FOR OUR CONSIDERATION HIS DEPARTMENT OF DEFENSE FORM 214, "ARMED FORCES OF THE UNITED STATES REPORT OF TRANSFER OR DISCHARGE." THAT FORM WHICH HE RECEIVED AT THE TIME OF HIS RETIREMENT CORRECTLY STATES THAT HE HAD COMPLETED 20 RATHER THAN 21 YEARS OF ACTIVE SERVICE. SERGEANT REDDY INDICATES THAT HE BELIEVED THIS WAS THE FORM THAT WOULD BE USED FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY, AND HE SUGGESTS THAT HE ACTUALLY HAD NO REASON TO BE AWARE THAT HE WAS BEING PAID ON THE BASIS OF AN INCORRECT COMPUTATION. HE THEREFORE REQUESTS THAT WE RECONSIDER OUR DENIAL OF HIS WAIVER APPLICATION.

ALTHOUGH SERGEANT REDDY PRESUMABLY ALSO RECEIVED A COPY OF HIS RETIREMENT ORDERS IN SEPTEMBER 1976, THESE ORDERS ARE NOT FINANCE RECORDS PER SE, AND THERE IS NO INDICATION THAT HE WAS EVER INFORMED THAT THOSE PAPERS RATHER THAN THE DEPARTMENT OF DEFENSE FORM 214 WOULD BE USED AS THE BASIS FOR COMPUTING HIS RETIRED PAY. IN THAT CONNECTION, IT IS TO BE NOTED THAT THE DEPARTMENT OF DEFENSE FORM 214 PLAINLY STATES, "THIS IS AN IMPORTANT RECORD - SAFEGUARD IT," AND MILITARY MEMBERS RELEASED FROM ACTIVE DUTY TEND TO REGARD IT AS THE MOST SIGNIFICANT RECORD OF THEIR SERVICE. ON THE OTHER HAND, THE MARINE CORPS RETIREMENT ORDERS IN THIS CASE WERE ISSUED BY A LOCAL RESERVE TRAINING DETACHMENT, AND THOSE ORDERS DO NOT STATE ON THEIR FACE THAT THEY WILL BE USED FOR COMPUTING RETIRED PAY OR FOR ANY PURPOSE OTHER THAN SEPARATING THE MEMBER FROM ACTIVE SERVICE. BECAUSE OF THIS, AND IN VIEW OF THE FACT THAT THE MONTHLY OVERPAYMENTS WERE RELATIVELY SMALL, WE NOW CONCLUDE THAT IT IS UNLIKELY THAT A REASONABLY PRUDENT SERVICE MEMBER IN SUCH CIRCUMSTANCES WOULD KNOW HE WAS BEING OVERPAID. CONSEQUENTLY, UPON RECONSIDERATION AND IN LIGHT OF THE NEW INFORMATION SUBMITTED, WE CONCLUDE THAT SERGEANT REDDY WAS NOT AT FAULT IN THE MATTER, AND WE THEREFORE WAIVE THE GOVERNMENT'S $537.10 CLAIM AGAINST HIM.

SERGEANT REDDY AND THE MARINE CORPS FINANCE CENTER SHOULD BE ADVISED OF THIS ACTION, AND SERGEANT REDDY SHOULD FURTHER BE INFORMED OF HIS RIGHT UNDER 10 U.S.C. 2774(C) TO APPLY FOR A REFUND OF ANY AMOUNT HE MAY HAVE REPAID IN SATISFACTION OF THE WAIVED DEBT.