B-198918, JAN 26, 1981

B-198918: Jan 26, 1981

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DIGEST: AN AIR FORCE COLONEL WHO RECEIVED PAYMENTS OF FLIGHT PAY AFTER HE WAS AWARE OF A DISCREPANCY IN THE TOTAL FEDERAL OFFICER SERVICE CREDITED TO HIM SHOULD HAVE BEEN ALERTED TO THE STRONG POSSIBILITY THAT SUCH AN ERROR IN HIS RECORDS COULD AFFECT HIS ENTITLEMENT TO FLIGHT PAY AND HE SHOULD HAVE BEEN PREPARED TO REFUND THE PAYMENTS MADE AFTER DISCOVERY OF THE ERROR. WAIVER OF HIS INDEBTEDNESS FROM ERRONEOUS PAYMENTS MADE AFTER DISCOVERY OF THE ERROR IN HIS PERSONNEL RECORDS IS NOT GRANTED. 295 AND DENIAL OF WAIVER IN THE AMOUNT OF $370 IS SUSTAINED. THE RECORD SHOWS THAT WHILE COLONEL LUMPKINS WAS IN FLYING STATUS ENTITLED TO RECEIVE FLIGHT PAY. WAS ISSUED STATING THAT HIS AVIATION SERVICE DATE WAS JANUARY 5.

B-198918, JAN 26, 1981

DIGEST: AN AIR FORCE COLONEL WHO RECEIVED PAYMENTS OF FLIGHT PAY AFTER HE WAS AWARE OF A DISCREPANCY IN THE TOTAL FEDERAL OFFICER SERVICE CREDITED TO HIM SHOULD HAVE BEEN ALERTED TO THE STRONG POSSIBILITY THAT SUCH AN ERROR IN HIS RECORDS COULD AFFECT HIS ENTITLEMENT TO FLIGHT PAY AND HE SHOULD HAVE BEEN PREPARED TO REFUND THE PAYMENTS MADE AFTER DISCOVERY OF THE ERROR. THEREFORE, WAIVER OF HIS INDEBTEDNESS FROM ERRONEOUS PAYMENTS MADE AFTER DISCOVERY OF THE ERROR IN HIS PERSONNEL RECORDS IS NOT GRANTED.

COLONEL WILLIAM J. LUMPKINS, JR., USA:

COLONEL WILLIAM J. LUMPKINS, JR., USA, REQUESTS RECONSIDERATION OF OUR CLAIMS DIVISION'S OCTOBER 18, 1979 DENIAL OF HIS APPLICATION FOR COMPLETE WAIVER OF HIS DEBT TO THE UNITED STATES IN THE TOTAL AMOUNT OF $1,665. THE DEBT AROSE FROM ERRONEOUS PAYMENTS OF FLIGHT PAY DURING THE PERIOD JUNE 1977 THROUGH FEBRUARY 1978. THE CLAIMS DIVISION'S ACTION IN GRANTING OF WAIVER IN THE AMOUNT OF $1,295 AND DENIAL OF WAIVER IN THE AMOUNT OF $370 IS SUSTAINED.

THE RECORD SHOWS THAT WHILE COLONEL LUMPKINS WAS IN FLYING STATUS ENTITLED TO RECEIVE FLIGHT PAY, SPECIAL ORDER 116, DEPARTMENT OF THE ARMY, DATED JUNE 12, 1974, WAS ISSUED STATING THAT HIS AVIATION SERVICE DATE WAS JANUARY 5, 1955, AND TOTAL FEDERAL OFFICER SERVICE WAS 19 YEARS, 4 MONTHS, AND 26 DAYS. THE COMPUTATION AND PAYMENT OF COLONEL LUMPKINS' FLIGHT PAY WAS BASED ON THIS INFORMATION. HOWEVER, DURING A ROUTINE EXAMINATION OF HIS LEAVE AND EARNINGS STATEMENT FOR THE PERIOD JANUARY 1-31, 1978, COLONEL LUMPKINS NOTICED A DISCREPANCY IN THE TOTAL FEDERAL OFFICER SERVICE. HE INFORMED THE PERSONNEL OFFICE AT FORT SAM HOUSTON, TEXAS, AND AMENDED ORDERS WERE ISSUED FEBRUARY 2, 1978, CORRECTING HIS AVIATION SERVICE DATE TO AUGUST 22, 1955, AND HIS TOTAL FEDERAL OFFICER SERVICE TO 22 YEARS, 9 MONTHS, AND 11 DAYS. IT WAS THEN DETERMINED THAT HIS FLIGHT PAY HAD BEEN CONTINUED BEYOND JUNE 1, 1977, THE DATE IT SHOULD HAVE CEASED IN HIS CASE. SEE SECTION 4, AVIATION CAREER INCENTIVE ACT OF 1974, PUBLIC LAW 93-294, 88 STAT. 177, 179-180. THE ERRONEOUS PAYMENTS OCCURRED BECAUSE OF THE ORIGINAL INCORRECT COMPUTATION OF HIS TOTAL FEDERAL OFFICER SERVICE, RESULTING IN HIS BEING ERRONEOUSLY PAID $185 PER MONTH FOR THE PERIOD JUNE 1, 1977, THROUGH FEBRUARY 28, 1978, A TOTAL OF $1,665.

IN HIS ORIGINAL REQUEST FOR WAIVER, COLONEL LUMPKINS CONTENDED THAT HE WAS UNAWARE OF THE PROVISIONS OF THE AVIATION CAREER INCENTIVE ACT OF 1974 GOVERNING PAYMENT OF HIS FLIGHT PAY AND THAT HE DID NOT REALIZE THAT HIS TOTAL FEDERAL OFFICER SERVICE HAD BEEN INCORRECTLY COMPUTED, THUS CAUSING THE OVERPAYMENT OF FLIGHT PAY. WAIVER OF $1,295 FOR ERRONEOUS PAYMENTS MADE FOR THE PERIOD JUNE THROUGH DECEMBER 1977 WAS GRANTED ON THE BASIS THAT THE MEMBER RECEIVED SUCH PAYMENTS IN GOOD FAITH AND BROUGHT THE MATTER TO THE ATTENTION OF PROPER OFFICIALS PROMPTLY UPON DISCOVERING THE ERROR WHILE EXAMINING HIS JANUARY 1978 LEAVE AND EARNINGS STATEMENT. WAIVER DENIAL OF $370 FOR ERRONEOUS PAYMENTS MADE FOR JANUARY AND FEBRUARY 1978 WAS BASED UPON THE MEMBER'S OBLIGATION TO RETAIN THESE FUNDS FOR SUBSEQUENT REFUND TO THE GOVERNMENT AFTER DISCOVERY OF THE ERROR. IN HIS APPEAL, COLONEL LUMPKINS ALSO CONTENDS THAT ALL THE PAYMENTS WERE ERRONEOUS, MADE THROUGH ADMINISTRATIVE ERROR THROUGH NO FAULT OF HIS, AND THAT IN GOOD FAITH HE HAD REQUESTED WAIVER OF THE ENTIRE OVERPAYMENT BASED UPON THE RECOMMENDATION OF FORT SAM HOUSTON FINANCE PERSONNEL.

SECTION 2774 OF TITLE 10, U.S.C. (1976), PROVIDES OUR AUTHORITY TO WAIVE CERTAIN DEBTS WHEN COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES.

IN THE PRESENT SITUATION, COLONEL LUMPKINS WAS AWARE OF THE ERROR IN THE COMPUTATION OF HIS TOTAL FEDERAL OFFICER SERVICE AT THE TIME HE REPORTED THE DISCREPANCY IN JANUARY 1978. IT IS OUR VIEW THAT AN OFFICER OF HIS RANK AND EXPERIENCE SHOULD HAVE BEEN ALERTED TO THE POSSIBILITY THAT SUCH ERROR COULD AFFECT HIS ENTITLEMENT TO THE CONTINUED RECEIPT OF FLIGHT PAY. WHILE HE APPROPRIATELY REPORTED THE QUESTIONABLE RECORDS, SINCE HE HAD REASON TO SUSPECT AT THAT TIME THAT HIS CONTINUED FLIGHT PAY WAS QUESTIONABLE, HE SHOULD HAVE AT A MINIMUM SET ASIDE THE JANUARY AND FEBRUARY 1978 PAYMENTS UNTIL A DEFINITE DETERMINATION AND STATEMENT HAD BEEN MADE TO HIM FULLY EXPLAINING HIS ENTITLEMENT. HE SHOULD HAVE KNOWN THAT IF HE CONTINUED TO BE OVERPAID, HE WOULD BE REQUIRED TO REPAY THE ERRONEOUS AMOUNTS.

THE FACT ALONE THAT THE OVERPAYMENTS WERE MADE THROUGH ADMINISTRATIVE ERROR DOES NOT RELIEVE AN INDIVIDUAL WHO IS AWARE OF THE STRONG POSSIBILITY HE IS BEING OVERPAID FROM THE RESPONSIBILITY OF REFUNDING THE OVERPAYMENTS. IT IS FUNDAMENTAL THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO THE MONEY; SUCH PERSONS ARE BOUND BY EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. SEE DECISIONS B-188595, JUNE 3, 1977; B-124770, SEPTEMBER 16, 1955; AND CASES CITED THEREIN.

THEREFORE, COLLECTION OF THOSE PAYMENTS IS NOT AGAINST EQUITY AND GOOD CONSCIENCE, NOR IS IT CONTRARY TO THE BEST INTERESTS OF THE UNITED STATES. THE ACTION OF OUR CLAIMS DIVISION DENYING WAIVER IN THE AMOUNT OF $370 FOR THE ERRONEOUS PAYMENTS IN JANUARY AND FEBRUARY 1978 IS SUSTAINED.