B-197512.OM, L/M, JUN 4, 1980

B-197512.OM: Jun 4, 1980

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FGMSD - CLAIMS GROUP (ROOM 5858): RETURNED HEREWITH IS CLAIMS FILE NO. EARNHARDT WAS ASSIGNED GOVERNMENT QUARTERS ON OCTOBER 28. CREDIT OF BAQ WAS STOPPED AS OF THAT DATE. AUTHORIZATION OF BAQ TO WHICH HE WAS NOT ENTITLED WAS ENTERED IN HIS PAY RECORD EFFECTIVE JANUARY 1. AS A RESULT HE WAS ERRONEOUSLY PAID BAQ FOR THE PERIOD JANUARY 1. THE RECORD FURTHER DISCLOSES THAT THE MEMBER QUESTIONED THE ACCURACY OF HIS PAYMENTS AND WAS ASSURED THAT THEY WERE CORRECT. THAT HIS LEAVE AND EARNINGS STATEMENTS (LES'S) WERE INCOMPLETE AND RECEIVED IRREGULARLY. THAT HE WAS AWAY FROM THE UNITED STATES AT SEA DURING MOST OF THE PERIOD COVERED BY ERRONEOUS PAYMENTS AND UNABLE TO VERIFY THEIR ACCURACY WITH EXPERIENCED FINANCE PERSONNEL.

B-197512.OM, L/M, JUN 4, 1980

SUBJECT: REQUEST FOR WAIVER - PETTY OFFICER WILEY H. EARNHARDT, USN - B-197512-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

RETURNED HEREWITH IS CLAIMS FILE NO. Z-2762601 RELATIVE TO THE REQUEST OF PETTY OFFICER WILEY H. EARNHARDT, FOR RECONSIDERATION OF THE AUGUST 13, 1979 DENIAL OF HIS APPLICATION FOR WAIVER UNDER 10 U.S.C. 2774 (1976) OF HIS DEBT TO THE UNITED STATES IN THE TOTAL AMOUNT OF $2,110.95, BASED UPON ERRONEOUS PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS (BAQ) MADE TO HIM WHILE OCCUPYING GOVERNMENT QUARTERS.

MR. EARNHARDT WAS ASSIGNED GOVERNMENT QUARTERS ON OCTOBER 28, 1975, AND CREDIT OF BAQ WAS STOPPED AS OF THAT DATE. DUE TO ADMINISTRATIVE ERROR, AUTHORIZATION OF BAQ TO WHICH HE WAS NOT ENTITLED WAS ENTERED IN HIS PAY RECORD EFFECTIVE JANUARY 1, 1976. 37 U.S.C. 403(B) (1976). AS A RESULT HE WAS ERRONEOUSLY PAID BAQ FOR THE PERIOD JANUARY 1, 1976, THROUGH FEBRUARY 15, 1977, IN AMOUNTS RANGING FROM $134.40 TO $168.30 PER MONTH.

MR. EARNHARDT'S PAY FLUCTUATED SO MUCH IN 1976 THAT HE COULD NOT REASONABLY DETERMINE HIS ENTITLEMENTS FOR ANY PARTICULAR PAY PERIOD. AFTER RECEIVING TWO NET PAYMENTS OF $238 EACH IN NOVEMBER 1975, HE INITIATED AN ALLOTMENT OF $67 IN DECEMBER 1975 AND RECEIVED TWO NET PAYMENTS DURING THIS MONTH OF $205 AND $206 RESPECTIVELY. AN ADVANCE PAYMENT OF $456 ON JANUARY 15, 1976, ADDED TO HIS USUAL NET PAYMENT, GAVE HIM AN UNUSUAL PAYMENT OF $728. HOWEVER, AT THE TIME HE HAD RECENTLY BEEN ADVANCED IN RANK AND COULD REASONABLY EXPECT AN INCREASED BASIC PAY RATE.

THE RECORD FURTHER DISCLOSES THAT THE MEMBER QUESTIONED THE ACCURACY OF HIS PAYMENTS AND WAS ASSURED THAT THEY WERE CORRECT, THAT HIS LEAVE AND EARNINGS STATEMENTS (LES'S) WERE INCOMPLETE AND RECEIVED IRREGULARLY, THAT HIS SUPERVISOR CONFIRMED THAT SOME OF HIS LESS DID NOT SHOW BAQ PAYMENTS AFTER HIS MOVE INTO GOVERNMENT QUARTERS, AND THAT HE WAS AWAY FROM THE UNITED STATES AT SEA DURING MOST OF THE PERIOD COVERED BY ERRONEOUS PAYMENTS AND UNABLE TO VERIFY THEIR ACCURACY WITH EXPERIENCED FINANCE PERSONNEL.

WHEN MR. EARNHARDT WAS ASSURED THAT HIS PAYMENTS WERE CORRECT AFTER HE QUESTIONED THEIR ACCURACY WITH THE DISBURSING OFFICE OF HIS TWO ASSIGNED SHIPS, HE MAY HAVE REASONABLY CONSIDERED THAT HE WAS ENTITLED TO THE NET AMOUNT OF PAY THAT HE RECEIVED FROM JANUARY 1, 1976, THROUGH FEBRUARY 15, 1977. THE OVERPAYMENT WAS NOT CAUSED BY ANY FRAUD OR MISREPRESENTATION ON THE PART OF MR. EARNHARDT AND IN THE PARTICULAR CIRCUMSTANCES PRESENTED, WE ARE UNABLE TO CONCLUDE THAT HE KNEW OR SHOULD HAVE KNOWN THAT HE WAS OVERPAID AT THE TIME. BECAUSE OF THE FACTS AND ISSUES PRESENTED, WE CONCLUDE THAT THERE IS NO INDICATION THAT MR. EARNHARDT WAS AT FAULT IN ACCEPTING THE EXCESS AMOUNTS FOR BAQ IN HIS PAY AND THAT COLLECTION ACTION AGAINST HIM WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTEREST OF THE UNITED STATES.

ACCORDINGLY, WE WAIVE THE CLAIM OF THE UNITED STATES AGAINST MR. EARNHARDT ON ACCOUNT OF THE OVERPAYMENTS IN THE TOTAL AMOUNT OF