B-197733.OM, L/M, MAR 17, 1980

B-197733.OM: Mar 17, 1980

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CLAIMS DIVISION: RETURNED HEREWITH IS CLAIM FILE Z-2799598. COLONEL BAIL WAS ASSIGNED TO THE UNITED STATES AIR FORCE - CANADIAN EXCHANGE PROGRAM IN MAY 1976. HE WAS STATIONED AT TRENTON. WHERE HE OCCUPIED CANADIAN-GOVERNMENT HOUSING ALTHOUGH HE WAS ASSESSED A RENTAL CHARGE FOR THE OCCUPANCY OF SUCH QUARTERS. HE WAS TOLD HE WOULD RECEIVE HOLA. AT THAT TIME HE QUESTIONED THE CLERK ON HIS ENTITLEMENT TO HOLA SINCE HE WAS GOING TO LIVE IN CANADIAN GOVERNMENT HOUSING. 1976) THAT HOLA WAS AUTHORIZED FOR THOSE OFFICERS LIVING AT TRENTON. HE INDICATES THAT HE WAS REASSURED IN HIS BELIEF THAT THE PAYMENT OF HOLA WAS CORRECT WHEN IN AUGUST 1976 ANOTHER OFFICER WAS AUTHORIZED HOLA UNDER CIRCUMSTANCES IDENTICAL TO COLONEL BAIL'S.

B-197733.OM, L/M, MAR 17, 1980

SUBJECT: REQUEST FOR WAIVER - LIEUTENANT COLONEL CHARLES E. BAIL, II, USAF - B-197733-O.M.

CLAIMS DIVISION:

RETURNED HEREWITH IS CLAIM FILE Z-2799598, CONCERNING LIEUTENANT COLONEL CHARLES E. BAIL'S REQUEST FOR WAIVER OF THE GOVERNMENT'S CLAIM AGAINST HIM RESULTING FROM ERRONEOUS HOUSING ALLOWANCE (HOLA) PAYMENTS FOR THE PERIOD OF MAY 8, 1976, THROUGH OCTOBER 1, 1977.

COLONEL BAIL WAS ASSIGNED TO THE UNITED STATES AIR FORCE - CANADIAN EXCHANGE PROGRAM IN MAY 1976. HE WAS STATIONED AT TRENTON, ONTARIO, CANADA, WHERE HE OCCUPIED CANADIAN-GOVERNMENT HOUSING ALTHOUGH HE WAS ASSESSED A RENTAL CHARGE FOR THE OCCUPANCY OF SUCH QUARTERS. COLONEL BAIL STATES THAT DURING HIS INPROCESSING AT THE USAF - CF OFFICERS EXCHANGE PROGRAM OFFICE, HE WAS TOLD HE WOULD RECEIVE HOLA. AT THAT TIME HE QUESTIONED THE CLERK ON HIS ENTITLEMENT TO HOLA SINCE HE WAS GOING TO LIVE IN CANADIAN GOVERNMENT HOUSING. THE CLERK POINTED OUT TO HIM THE PROVISION IN THE JOINT TRAVEL REGULATIONS (APPENDIX A, VOLUME 1, JTR, PAGE A-9, CHANGE 278, APRIL 1, 1976) THAT HOLA WAS AUTHORIZED FOR THOSE OFFICERS LIVING AT TRENTON. BECAUSE COLONEL BAIL PERSONALLY PAID THE CANADIAN FORCES FOR HIS HOUSING IT SEEMED LOGICAL TO HIM THAT HOLA WOULD BE AUTHORIZED. HE INDICATES THAT HE WAS REASSURED IN HIS BELIEF THAT THE PAYMENT OF HOLA WAS CORRECT WHEN IN AUGUST 1976 ANOTHER OFFICER WAS AUTHORIZED HOLA UNDER CIRCUMSTANCES IDENTICAL TO COLONEL BAIL'S.

IN AUGUST 1977 ANOTHER OFFICER MOVED INTO CANADIAN GOVERNMENT HOUSING AT TRENTON. IT LATER WAS DISCOVERED THAT THIS OFFICER WAS NOT RECEIVING HOLA. THEREUPON ANOTHER INQUIRY WAS MADE OF THE EXCHANGE OFFICE AS TO THE STATUS OF COLONEL BAIL'S HOLA. AS A RESULT OF THAT INQUIRY, IN OCTOBER 1977 HE WAS INFORMED THAT AN ADMINISTRATIVE ERROR HAD BEEN MADE BY THAT OFFICE IN INTERPRETING THE JTR ON HOLA AND THAT HE HAD BEEN ERRONEOUSLY PAID.

COLONEL BAIL SUBSEQUENTLY REQUESTED WAIVER UNDER 10 U.S.C. 2774 (1976) OF HIS RESULTING $1,407.90 DEBT TO THE GOVERNMENT. IN SUBSTANCE, HE INDICATED THAT HE HAD NOT BEEN AT FAULT IN THE MATTER, HAD PROMPTLY AND REASONABLY NOTIFIED THE APPROPRIATE AUTHORITIES OF HIS SUSPICIONS THAT A MISTAKE HAD BEEN MADE, AND HAD BEEN ASSURED BY THE RESPONSIBLE OFFICIALS BY REFERENCE TO THE JTR THAT THE HOLA ALLOWANCE WAS CORRECT. HOWEVER, THE CLAIMS DIVISION DENIED HIS REQUEST, ESSENTIALLY FOR THE REASON THAT COLONEL BAIL HAD REASON TO KNOW HE WAS BEING ERRONEOUSLY PAID AND HAD A DUTY TO RETAIN AND SET ASIDE THE ERRONEOUS PAYMENTS FOR EVENTUAL REFUND TO THE GOVERNMENT.

THE ERRONEOUS PAYMENTS WERE MADE AS THE RESULT OF ADMINISTRATIVE ERROR BY LOCAL EXCHANGE OFFICE OFFICIALS. IT DOES APPEAR THAT THE MEMBER SUSPECTED AT FIRST THAT ERRONEOUS OVERPAYMENTS WERE BEING MADE, AND TOOK ACTION TO REPORT THE ERROR TO RESPONSIBLE OFFICIALS, SPECIFICALLY ADVISING THEM THAT HE THOUGHT HIS HOLA WAS ERRONEOUS. THOSE OFFICIALS MISTAKENLY ASSURED HIM THAT NO ERROR HAD BEEN MADE.

IF A SERVICE MEMBER HAS REASON TO DEFINITELY KNOW THERE IS AN ERROR IN HIS RECORDS AND THAT AS A RESULT HE IS BEING OVERPAID, WAIVER IS INAPPROPRIATE EVEN IF HE NOTIFIES THE PROPER OFFICIALS OF THE ERROR, SINCE IN THOSE CIRCUMSTANCES HE ALSO HAS A DUTY TO SET ASIDE THE OVERPAYMENTS FOR THEIR EVENTUAL RETURN TO THE GOVERNMENT. B-188595, JUNE 3, 1977.

HOWEVER, IF A SERVICE MEMBER SUSPECTS HE IS BEING OVERPAID, NOTIFIES THE PROPER AUTHORITIES OF HIS SUSPICIONS, AND IN RETURN RECEIVES REASONABLY PERSUASIVE, ALBEIT MISTAKEN, ASSURANCES THAT HIS PAY IS CORRECT, WAIVER OF THE ERRONEOUS PAYMENTS UPON THEIR DISCOVERY MAY BE PROPER. B-191170-O.M., AUGUST 9, 1978, AND B-189286-O.M., AUGUST 31, 1977.

IN A TELEPHONE CONVERSATION BY THIS OFFICE WITH THE AIR FORCE FINANCE AND ACCOUNTING CENTER IT WAS REVEALED THAT THE ERROR OCCURRED WHEN THE EXCHANGE OFFICE FAILED TO CHECK FOOTNOTE NO. 7 OF APPENDIX A, 1 JTR, WHICH PRECLUDES PAYMENT OF HOLA TO MEMBERS OCCUPYING CANADIAN GOVERNMENT HOUSING.

THE SUPERSCRIPT NUMERAL FOR FOOTNOTE 7 APPEARS AT THE HEADING OF THE LIST OF CANADIAN LOCALITIES WHERE HOUSING ALLOWANCES ARE AUTHORIZED. THE FOOTNOTE ITSELF APPEARS AT THE END OF APPENDIX A, 1 JTR. FAILURE TO OBSERVE THE FOOTNOTE APPEARS TO HAVE BEEN AN HONEST MISTAKE BY THE CLERK AND COLONEL BAIL WHEN CHECKING ON HIS ENTITLEMENT TO HOLA. IN THESE CIRCUMSTANCES WE CONCLUDE THAT COLONEL BAIL COULD REASONABLY HAVE BELIEVED HE WAS ENTITLED TO HOLA UNTIL HE WAS ADVISED TO THE CONTRARY IN OCTOBER 1977. HOWEVER, WE NOTE THAT HE ACTUALLY RECEIVED THE FINAL ERRONEOUS HOLA PAYMENT OF $65.10 IN NOVEMBER 1977.

ACCORDINGLY, WE WAIVE THE CLAIM OF THE UNITED STATES AGAINST LIEUTENANT COLONEL CHARLES E. BAIL, II, USAF, IN THE AMOUNT OF $1,342.80. THE PAYMENT OF $65.10 RECEIVED BY COLONEL BAIL AFTER OFFICIAL NOTIFICATION OF THE ERROR DOES NOT MEET THE AFOREMENTIONED CONDITIONS FOR WAIVER AND WAIVER IS THEREFORE DENIED.

APPROPRIATE STEPS SHOULD BE TAKEN TO ADVISE COLONEL BAIL OF THIS ACTION AND OF HIS RIGHT UNDER 10 U.S.C. 2774(C) TO APPLY FOR A REFUND WITHIN 2 YEARS FOLLOWING THE EFFECTIVE DATE OF THE WAIVER OF ANY AMOUNTS WHICH HAVE PREVIOUSLY BEEN COLLECTED FROM HIM TOWARDS SATISFACTION OF THE GOVERNMENT'S CLAIM.

ALSO RETURNED IS FILE Z-2800193, CAPTAIN RICHARD E. LINCK, A CASE INVOLVING SIMILAR CIRCUMSTANCES IN WHICH WAIVER WAS GRANTED BY THE CLAIMS DIVISION.