B-198762, SEP 29, 1981

B-198762: Sep 29, 1981

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DIGEST: EMPLOYEE WAS APPOINTED IN JUNE 1973 AND WAS GRANTED A QUALITY STEP INCREASE TO GS-14. HE WAS ERRONEOUSLY GRANTED A WITHIN-GRADE INCREASE TO STEP 5 ON JUNE 7. WHICH RESULTED IN OVERPAYMENTS OF PAY OF $942.40 BEFORE THE ERROR WAS CORRECTED EFFECTIVE JUNE 6. HE THEN KNEW OR SHOULD HAVE KNOWN OF AN ERROR IN THE COMPUTATION OF HIS PAY AND HE SHOULD HAVE MADE INQUIRY. WAIVER OF THE OVERPAYMENT IS THEREFORE GRANTED FOR THE PERIOD JUNE 7 THROUGH OCTOBER 10. ROAN - WAIVER OF OVERPAYMENT OF PAY - ERRONEOUS STEP INCREASE: THIS DECISION IS IN RESPONSE TO AN APPEAL BY DR. THE BASIS FOR THE SETTLEMENT ACTION WAS THAT DR. HE KNEW OR SHOULD HAVE KNOWN AT THAT TIME THAT HE WAS BEING OVERPAID AND SHOULD HAVE RETAINED THE FUNDS FOR SUBSEQUENT REFUND TO THE GOVERNMENT.

B-198762, SEP 29, 1981

DIGEST: EMPLOYEE WAS APPOINTED IN JUNE 1973 AND WAS GRANTED A QUALITY STEP INCREASE TO GS-14, STEP 4, ON MARCH 29, 1976. HE WAS ERRONEOUSLY GRANTED A WITHIN-GRADE INCREASE TO STEP 5 ON JUNE 7, 1976, WHICH RESULTED IN OVERPAYMENTS OF PAY OF $942.40 BEFORE THE ERROR WAS CORRECTED EFFECTIVE JUNE 6, 1977. SINCE EMPLOYEE RECEIVED A PAYROLL CHANGE SLIP IN OCTOBER 1976, EFFECTIVE OCTOBER 11, 1976, WHICH SHOWED HIS GRADE AS GS-14, STEP 4, HE THEN KNEW OR SHOULD HAVE KNOWN OF AN ERROR IN THE COMPUTATION OF HIS PAY AND HE SHOULD HAVE MADE INQUIRY. WAIVER OF THE OVERPAYMENT IS THEREFORE GRANTED FOR THE PERIOD JUNE 7 THROUGH OCTOBER 10, 1976, BUT DENIED FOR PERIOD SUBSEQUENT TO THAT DATE.

CLIFFORD C. ROAN - WAIVER OF OVERPAYMENT OF PAY - ERRONEOUS STEP INCREASE:

THIS DECISION IS IN RESPONSE TO AN APPEAL BY DR. CLIFFORD C. ROAN, A CIVILIAN EMPLOYEE EMPLOYED AS A SCIENTIST AT THE ABERDEEN PROVING GROUND, MARYLAND, DEPARTMENT OF THE ARMY, FROM THE SETTLEMENT ACTION BY OUR CLAIMS GROUP. SETTLEMENT CERTIFICATE Z-2799032, NOVEMBER 29, 1979, DENIED DR. ROAN'S REQUEST FOR WAIVER OF THE CLAIM AGAINST HIM BY THE UNITED STATES IN THE AMOUNT OF $942.40, REPRESENTING THE AGGREGATE OVERPAYMENTS OF PAY MADE TO HIM RESULTING FROM THE PREMATURE GRANTING OF A WITHIN-GRADE INCREASE. THE BASIS FOR THE SETTLEMENT ACTION WAS THAT DR. ROAN HAD BEEN NOTIFIED OF THE WITHIN-GRADE INCREASE FROM GS 14, STEP 4, TO GS-14, STEP 5, AT APPROXIMATELY THE SAME TIME THAT THE INCREASE BECAME EFFECTIVE. THEREFORE, HE KNEW OR SHOULD HAVE KNOWN AT THAT TIME THAT HE WAS BEING OVERPAID AND SHOULD HAVE RETAINED THE FUNDS FOR SUBSEQUENT REFUND TO THE GOVERNMENT. CONSEQUENTLY, THE CLAIMS GROUP CONCLUDED THAT COLLECTION OF THE INDEBTEDNESS WOULD NOT BE AGAINST EQUITY AND GOOD CONSCIENCE.

FOR THE REASONS HEREINAFTER STATED, WE CONCLUDE THAT DR. ROAN'S WAIVER REQUEST SHOULD BE GRANTED IN PART AND DENIED IN PART.

OUR EXAMINATION OF THE RECORD DOES NOT DISCLOSE ANY INDICATION OF FRAUD, MISREPRESENTATION, OR LACK OF GOOD FAITH ON THE PART OF DR. ROAN. THE RESOLUTION OF THIS CLAIM THEREFORE TURNS ON THE QUESTION OF WHETHER DR. ROAN'S LACK OF KNOWLEDGE OF THE LAW GOVERNING THE COMMENCEMENT OF WAITING PERIODS IN THE GRANTING OF WITHIN-GRADE INCREASES, WHETHER ACTUAL OR CONSTRUCTIVE, IS TO BE CONSIDERED AN IMPUTABLE INDICATION OF FAULT ON HIS PART.

THE FACTS ARE AS FOLLOWS: DR. ROAN WAS APPOINTED TO THE FEDERAL SERVICE IN JUNE 1973 AT THE GS-14, STEP 1 GRADE LEVEL. HE WAS GRANTED WITHIN- GRADE INCREASES TO GS-14, STEPS 2 AND 3, ON JUNE 10, 1974, AND JUNE 9, 1975, RESPECTIVELY. EFFECTIVE MARCH 29, 1976, HE WAS AWARDED A QUALITY STEP INCREASE PLACING HIM AT GS-14, STEP 4. ON JUNE 7, 1976, HE WAS ERRONEOUSLY GRANTED A WITHIN-GRADE INCREASE TO GS-14, STEP 5. THE FINANCE AND ACCOUNTING OFFICER AT THE ABERDEEN PROVING GROUND REPORTS THAT THE CIVILIAN PERSONNEL DIVISION INCORRECTLY PROCESSED THIS LATTER WITHIN-GRADE INCREASE AND THAT THE SUBSEQUENT CANCELLATION OF THIS ACTION WAS NEVER RECEIVED IN THE CIVILIAN PAY SECTION.

THE ERROR IN GRANTING THE WITHIN-GRADE INCREASE TO STEP 5 EFFECTIVE JUNE 7, 1976, WAS THAT THE QUALITY STEP INCREASE DR. ROAN RECEIVED IN MARCH 1976 HAD THE EFFECT OF INCREASING HIS WAITING TIME FOR ANOTHER STEP INCREASE UNDER 5 U.S.C. SEC. 5335(A) FROM 52 WEEKS TO 104 WEEKS. COMP.GEN. 150 (1968); FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 531, S4-12. THUS, DR. ROAN WAS NOT ENTITLED TO A WITHIN-GRADE INCREASE TO STEP 5 OF GS-14 UNTIL JUNE 1977. THERE IS NO EVIDENCE THAT DR. ROAN WAS AWARE OF THIS LIMITATION, AND IT APPEARS THAT BOTH HE AND THE CIVILIAN PERSONNEL DIVISION ASSUMED THAT HE WAS ENTITLED TO A STEP INCREASE IN JUNE 1976.

IN JUNE 1976, THE CIVILIAN PERSONNEL DIVISION PROCESSED A PAYROLL CHANGE SLIP (DA FORM 2515), WHICH DR. ROAN RECEIVED, BUT THE ONLY CHANGE IT MADE WAS TO SHOW HIS CORRECT OLD SALARY RATE. IT WAS NOT UNTIL OCTOBER 7, 1976, THAT THE CIVILIAN PERSONNEL DIVISION PROCESSED A PAYROLL CHANGE SLIP CANCELLING THE JUNE 7, 1976, WITHIN-GRADE INCREASE. ANOTHER PAYROLL CHANGE SLIP WAS PROCESSED, EFFECTIVE OCTOBER 11, 1976, TO REFLECT THE ANNUAL COMPARABILITY INCREASE IN HIS ANNUAL SALARY. THE LATTER DOCUMENT SHOWED DR. ROAN'S GRADE AND STEP AS GS-14, STEP 4. THE CIVILIAN PAY SECTION DID NOT RECEIVE A COPY OF EITHER OF THESE DOCUMENTS AND CONTINUED TO PAY DR. ROAN AT THE GS-14, STEP 5 LEVEL UNTIL JUNE 5, 1977.

DR. ROAN REPORTS THAT HE DID NOT RECEIVE A COPY OF THE OCTOBER 7, 1976, CANCELLATION DOCUMENT, BUT HE DID RECEIVE A COPY OF THE PAYROLL CHANGE SLIP SHOWING A COMPARABILITY INCREASE, EFFECTIVE OCTOBER 11, 1976, IN HIS ANNUAL EARNINGS. ALTHOUGH THIS DOCUMENT SHOWED HIS GRADE AND STEP AS GS- 14, STEP 4, DR. ROAN STATES THAT THE AMOUNT OF HIS PAYCHECK CHANGED AS EXPECTED AND HE ASSUMED THAT EVERYTHING HAD FINALLY BEEN STRAIGHTENED OUT.

ON JUNE 6, 1977, THE CIVILIAN PERSONNEL DIVISION ISSUED A FORM 2515 WHICH GRANTED DR. ROAN A WITHIN-GRADE INCREASE FROM GS-14, STEP 4 TO STEP 5. THE FORM SHOWED THE DATE OF DR. ROAN'S LAST EQUIVALENT INCREASE AS JUNE 9, 1975. DR. ROAN STATES THAT HE DID NOT RECEIVE A COPY OF THIS DOCUMENT. HE REPORTS THAT NOTHING MORE TRANSPIRED UNTIL SEPTEMBER 30, 1977, WHEN HE CONTACTED THE ADMINISTRATIVE OFFICE TO QUESTION THE FACT THAT HE HAD NOT SEEN A PAYROLL CHANGE SLIP, DA FORM 2515, SINCE HE RECEIVED THE PAYROLL CHANGE SLIP DATED OCTOBER 11, 1976.

IN A SUPPLEMENTAL ADMINISTRATIVE REPORT DATED MARCH 27, 1980, OFFICIALS AT THE ARMY FINANCE AND ACCOUNTING CENTER, INDIANAPOLIS, INDIANA, REPORTED THAT DR. ROAN RECEIVED EARNINGS AND LEAVE STATEMENTS EACH PAY PERIOD WHICH REFLECTED HIS GRADE, STEP, AND HOURLY RATE. IT STATED THAT THE PURPOSE OF THESE STATEMENTS IS TO ENABLE THE EMPLOYEE TO CHECK THE ACCURACY OF PAY RECEIVED. THE REPORT STATED THAT DR. ROAN, A GS-14, SHOULD HAVE KNOWN THAT THERE IS A 2-YEAR WAITING PERIOD BEFORE ADVANCING TO STEP 5 AND THAT HE SHOULD HAVE NOTICED THAT HIS STEP INCREASE WAS PREMATURE AND NOTIFIED THE PROPER AUTHORITIES. HIS FAILURE TO DO SO, THE REPORT CONCLUDES, PLACED HIM IN THE POSITION OF BEING AT LEAST PARTIALLY AT FAULT IN THE MATTER WHICH STATUTORILY PRECLUDES FAVORABLE ACTION ON HIS REQUEST FOR WAIVER OF THE INDEBTEDNESS.

ON THE OTHER HAND, DR. ROAN CONTENDS THAT HE WAS NOT AWARE OF THE ADMINISTRATIVE ERRORS IN HIS PAY UNTIL HE MADE A CASUAL INQUIRY ON SEPTEMBER 30, 1977, AND FURTHER THAT PAYROLL CHANGE SLIPS, DA FORM 2515, ARE THE ONLY AUTHORITATIVE SOURCES OF INFORMATION THAT ARE AVAILABLE TO HIM CONCERNING THE ACCURACY OF HIS PAY. HE REPORTS THAT IN MARCH, JUNE, AND OCTOBER 1976, THE AMOUNT OF HIS PAYCHECKS INCREASED AND THAT THE CORRESPONDING PAYROLL CHANGE SLIPS SUPPORTED THE ACTIONS HE HAD ANTICIPATED; NAMELY, A QUALITY STEP INCREASE, A WITHIN-GRADE INCREASE, AND A COST OF LIVING (COMPARABILITY) INCREASE, RESPECTIVELY.

AS TO THE AGENCY'S REPORT THAT DR. ROAN RECEIVED EARNINGS AND LEAVE STATEMENTS EACH PAY PERIOD WHICH REFLECTED HIS GRADE, STEP, AND HOURLY RATE, THE STATEMENTS REFERRED TO ARE NOT A PART OF THE RECORD BEFORE US AND THERE IS NO EVIDENCE AS TO WHETHER DR. ROAN RECEIVED SUCH STATEMENTS EACH PAY PERIOD. ASSUMING THAT DR. ROAN DID, IN FACT, RECEIVE SUCH STATEMENTS, THERE WAS A DUTY ON HIS PART TO REVIEW THE INFORMATION AND DATA THEREIN PROVIDED. HOWEVER, THE AGENCY REPORT ALSO SHOWS THAT THE CANCELLATION OF THE WITHIN-GRADE INCREASE WAS NOT PROCESSED UNTIL OCTOBER 1976, AND, THEREFORE, THE EARNINGS AND LEAVE STATEMENTS RECEIVED PRIOR TO THAT TIME WOULD HAVE SHOWN A GRADE LEVEL OF GS-14, STEP 5. HENCE, CONSIDERATION OF THE EARNINGS AND LEAVE STATEMENTS IS NOT ESSENTIAL TO THE DISPOSITION OF THIS CLAIM.

THE ESSENTIAL ELEMENT IN THIS CASE IS DR. ROAN'S STATEMENT THAT HE DID RECEIVE A COPY OF THE PAYROLL CHANGE SLIP, EFFECTIVE OCTOBER 11, 1976, EVIDENCING A COMPARABILITY INCREASE. THIS DOCUMENT SHOWED HIS GRADE AND STEP AS GS-14, STEP 4. IN THIS REGARD WE HAVE HELD THAT THE EMPLOYEE HAS THE RESPONSIBILITY OF VERIFYING THE CORRECTNESS OF THE PAYMENTS HE RECEIVES THROUGH THE LEAVE AND EARNINGS STATEMENTS AND OTHER DOCUMENTS HE RECEIVES AND WHERE A REASONABLE PERSON WOULD HAVE MADE INQUIRY BUT THE EMPLOYEE DID NOT, THEN HE IS NOT FREE FROM FAULT AND THE CLAIM MAY NOT BE WAIVED. L. MITCHELL DICK, B-192283, NOVEMBER 15, 1978, AND CASES CITED THEREIN. AT THE TIME DR. ROAN RECEIVED THE PAYROLL CHANGE SLIP EFFECTIVE OCTOBER 11, 1976, HE KNEW OR SHOULD HAVE KNOWN THAT THERE WAS AN ERROR IN THE COMPUTATION OF HIS PAY AND HE SHOULD HAVE MADE INQUIRY AS TO THE CORRECTNESS OF HIS PAY.

ACCORDINGLY, UNDER THE WAIVER PROVISIONS OF 5 U.S.C. SEC. 5584, WE CONCLUDE THAT DR. ROAN WAS NOT AT FAULT IN THE CONTINUANCE OF THE OVERPAYMENTS OF PAY FOR THE PERIOD JUNE 7 THROUGH OCTOBER 10, 1976. IS, HOWEVER, AT LEAST PARTIALLY AT FAULT FOR THE OVERPAYMENTS OF PAY WHICH OCCURRED SUBSEQUENT TO OCTOBER 11, 1976, THE EFFECTIVE DATE OF THE PAY ADJUSTMENT FOR A COMPARABILITY INCREASE IN HIS SALARY. THE SETTLEMENT CERTIFICATE OF NOVEMBER 29, 1979, ISSUED BY OUR CLAIMS GROUP, IS OVERRULED IN PART, AND WAIVER OF COLLECTION OF THE ERRONEOUS PAYMENT FOR THE PERIOD JUNE 7 THROUGH OCTOBER 10, 1976, IS GRANTED. WAIVER OF THE OVERPAYMENTS OF PAY WHICH OCCURRED SUBSEQUENT TO OCTOBER 10, 1976, IS DENIED.