Denial of Request for Waiver

B-196460: Feb 13, 1980

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An Army National Guard officer requested reconsideration of a decision which denied his request for waiver of the government's claim against him resulting from erroneous payments of military inactive duty training pay. Throughout the period in question, the officer received military inactive duty training pay on the basis of his unit's inactive duty training assemblies held while he was on active duty and he also received active duty military pay and allowances. His previous request for waiver was denied because he should have known the payments were erroneous at the time he received them. Upon appeal, the member stated that he was unaware that the payments were erroneous at the time, that he had asked if he could perform equivalent training in lieu of attending his regular unit assemblies while he was on active duty and had been advised that there would be "no difficulty," and that he had no reasonable way of knowing that it was actually improper for him to perform the equivalent training when he was not on active duty. The record indicated, however, that the officer knew that it was improper for him to apply for inactive duty pay while he was on active duty. It was held that although the member may not have actually been aware that the payments were erroneous, an officer of his rank should have consulted the regulations, and he therefore was at least partially at fault. Accordingly, the previous denial of waiver was sustained.