B-199614.OM, DEC 23, 1980

B-199614.OM, DEC 23, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

HEREWITH IS OUR FILE RELATING TO A REQUEST FOR WAIVER UNDER THE PROVISIONS OF 10 U.S.C. 2774. A QUESTION HAS ARISEN CONCERNING WHETHER AN ERRONEOUS PAYMENT EXISTS IN THIS CASE WHICH IS APPROPRIATE FOR WAIVER CONSIDERATION.

THE RECORD SHOWS THAT GALE L. DORMAN, A FORMER MEMBER OF THE UNITED STATES AIR FORCE RESERVES, WAS CALLED TO EXTENDED ACTIVE DUTY ON JUNE 23, 1976. AT THAT TIME HE WAS PAID $802.76 AS ADVANCE PER DIEM AND ROUND TRIP MILEAGE; HOWEVER, SINCE MR. DORMAN'S ORDERS WERE FOR AN ACTIVE DUTY PERIOD OF MORE THAN 20 WEEKS, HE WAS DUE ONLY PAYMENT FOR ROUND TRIP MILEAGE, A TOTAL OF $444.96. THEREFORE, THE PAYMENT FOR ADVANCE PER DIEM IN THE AMOUNT OF $357.80 WAS ERRONEOUS WHEN MADE. HOWEVER, THE AIR FORCE DID NOT DISCOVER THIS ERROR UNTIL MAY 1977, AT WHICH TIME THEY ENTERED THE OVERPAYMENT INTO HIS PAY ACCOUNT. SINCE MR. DORMAN DID NOT EARN ANY PAY AND ALLOWANCES SUBSEQUENT TO THAT TIME FROM WHICH A DEDUCTION COULD BE MADE, THE DEBT REMAINED OUTSTANDING. IN OCTOBER 1977, THE AIR FORCE RELEASED MR. DORMAN FROM ACTIVE DUTY RETROACTIVE TO APRIL 4, 1977.

SINCE MR. DORMAN'S DEBT AROSE FROM THE OVERPAYMENT OF A TRAVEL ALLOWANCE, WE ARE AWARE THAT WE MAY NOT CONSIDER THAT OVERPAYMENT FOR WAIVER UNDER THE PROVISIONS OF 10 U.S.C. 2774. HOWEVER, IN B-185183 O.M., SEPTEMBER 17, 1976, AND B-193967-O.M., JUNE 25, 1979, WE HELD THAT WHEN DEBTS ARISING FROM TRAVEL OR TRANSPORTATION ALLOWANCES ARE NOT OFF-SET AGAINST A MEMBER'S FINAL PAY, THE AMOUNT OF THE FINAL PAY WHICH SHOULD HAVE BEEN WITHHELD AGAINST THE DEBT MAY BE CONSIDERED AN OVERPAYMENT OF "PAY AND ALLOWANCES" WITHIN THE MEANING OF THE STATUTE AND, THEREFORE, THE AMOUNT OF THE OVERPAYMENT MAY BE CONSIDERED FOR WAIVER TO THE EXTENT OF THE AMOUNT OF THE FINAL PAY.

IN THE CASE OF MR. DORMAN, THE AIR FORCE HAS INFORMED US THAT NO "FINAL PAY" WAS ISSUED TO HIM; HOWEVER, THEY STATED THAT DURING HIS ACTIVE DUTY SERVICE HE WAS PAID FOR EACH DUTY AS IT WAS PERFORMED. THUS, THEY STATED THAT THEY CONSIDERED EACH PAYMENT TO HAVE BEEN A FINAL PAYMENT FOR THE PARTICULAR DUTY PERFORMED. HOWEVER, WE NOTE THAT DURING THE PERIOD OF HIS ACTIVE SERVICE, HE RECEIVED REGULAR MID-MONTH AND END-OF-MONTH PAYMENTS SIMILAR TO WHAT AN ACTIVE DUTY MEMBER IN THE REGULAR AIR FORCE WOULD HAVE RECEIVED. THEREFORE, THE FOLLOWING QUESTIONS ARISE:

1. CAN A RESERVIST'S ACTIVE DUTY PAY BE CONSIDERED A

"FINAL PAY" FOR DUTY PERFORMED EVEN IF HE IS RECEIVING REGULAR MID-MONTH AND END-OF-MONTH PAYMENTS?

2. IF THE ANSWER TO THE ABOVE QUESTION IS NEGATIVE, CAN A RESERVIST'S LAST PAYMENT FOR A PERIOD OF ACTIVE DUTY BE CONSIDERED HIS "FINAL PAY"?

FURTHERMORE, IN B-185183-O.M. AND B-193967-O.M., THE ORIGINAL DEBTS ARISING FROM TRAVEL OR TRANSPORTATION ALLOWANCES DID NOT INVOLVE DEBTS WHICH WERE ERRONEOUS WHEN MADE; INSTEAD, THEY INVOLVED EXCESS COSTS ON THE SHIPMENT OF A MEMBER'S HOUSEHOLD GOODS. IN THE CASE OF MR. DORMAN, HOWEVER, THE ORIGINAL DEBT AROSE FROM A PAYMENT WHICH WAS ERRONEOUS WHEN MADE. THEREFORE, THE FOLLOWING QUESTION ARISES:

3. IF A MEMBER'S ORIGINAL DEBT AROSE FROM THE ERRONEOUS PAYMENT OF TRAVEL OR TRANSPORTATION ALLOWANCES, MAY IT BE CONSIDERED FOR WAIVER TO THE EXTENT OF THE FINAL PAY?

IF THE ANSWER TO QUESTION 3 IS AFFIRMATIVE AND THE ANSWER TO EITHER QUESTIONS 1 OR 2 IS AFFIRMATIVE, WE UNDERSTAND THAT WE CAN CONSIDER THE FORMER MEMBER'S REQUEST FOR WAIVER UNDER THE PROVISIONS OF 10 U.S.C. 2774.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. IN JUNE 1976 SPECIALIST FOUR (SP4) GALE L. DORMAN, USA, THEN A SERGEANT IN THE AIR FORCE READY RESERVE, WAS CALLED TO ACTIVE DUTY FOR 266 DAYS FROM HIS HOME IN CALIFORNIA TO ATTEND A TECHNICAL SCHOOL AT KEESLER AIR FORCE BASE (AFB), MISSISSIPPI. WHEN HE COMMENCED THIS ACTIVE DUTY TOUR, HE WAS ERRONEOUSLY PAID AN ADVANCE PER DIEM ALLOWANCE IN THE NET AMOUNT OF $357.80. THE ERRONEOUS PER DIEM PAYMENT WAS ACTUALLY DISCOVERED IN FEBRUARY 1977 AFTER SP4 DORMAN SUBMITTED A TRAVEL VOUCHER COVERING THE COMPLETED ACTIVE DUTY TOUR. HE IGNORED THE REQUEST FOR REPAYMENT INITIALLY SENT TO HIM IN FEBRUARY 1977.

ON APRIL 7, 1977, SP4 DORMAN WAS DISCHARGED FROM THE AIR FORCE RESERVE, AND ON JUNE 20, 1977, HE ENLISTED IN THE REGULAR ARMY FOR A TERM OF 4 YEARS. ON MAY 8, 1978, IN RESPONSE TO A DUN LETTER SENT TO HIM BY THE AIR FORCE, HE APPLIED FOR REMISSION OF HIS $357.80 DEBT ON GROUNDS THAT COLLECTION OF THE DEBT WOULD CAUSE HIM UNDUE FINANCIAL HARDSHIP.

INCIDENT TO AN INQUIRY SUBMITTED BY AIR FORCE AUTHORITIES, YOU ASK WHETHER SP4 DORMAN'S DEBT MAY BE CONSIDERED FOR WAIVER UNDER THE PROVISIONS OF 10 U.S.C. 2774.

AS YOU HAVE NOTED, 10 U.S.C. 2774 SPECIFICALLY PRECLUDES WAIVER OF ERRONEOUS "TRAVEL AND TRANSPORTATION ALLOWANCES." IN B-185183-O.M., SEPTEMBER 17, 1976, AND B-193976-O.M., JUNE 25, 1979, WE NEVERTHELESS AUTHORIZED WAIVER OF FORMER SERVICE MEMBER'S DEBTS RESULTING FROM TRAVEL AND TRANSPORTATION ALLOWANCES WHICH THROUGH ERROR WERE NOT SET OFF AGAINST THEIR "FINAL PAY." THE BASIS FOR OUR WAIVER ACTION IN EACH OF THOSE CASES WAS THAT AN ERRONEOUS PAYMENT OF THE MEMBER'S FINAL PAY (OTHER THAN TRAVEL OR TRANSPORTATION ALLOWANCES) WAS THEREFORE MADE WHEN HE RECEIVED HIS FINAL PAY AT DISCHARGE. NEITHER CASE INVOLVED A READY RESERVE MEMBER.

RESERVE MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO ACTIVE DUTY MILITARY PAY AND ALLOWANCES AT TIMES WHILE PERFORMING ACTIVE DUTY OR FULL- TIME TRAINING DUTY. 37 U.S.C. 204. READY RESERVE MEMBERS NOT SERVING ON ACTIVE DUTY ARE REQUIRED TO PARTICIPATE IN INACTIVE DUTY TRAINING AND ARE ENTITLED TO BE PAID FOR THAT DUTY. 10 U.S.C. 270; 37 U.S.C. 206. THUS, A READY RESERVE MEMBER WHO PERFORMS TOURS OF ACTIVE DUTY, WHETHER FOR SEVERAL DAYS OR FOR SEVERAL MONTHS, DOES NOT RECEIVE "FINAL PAY" IN FINAL SETTLEMENT TO CLOSE HIS MILITARY PAY ACCOUNT EACH TIME HE COMPLETES AN ACTIVE DUTY TOUR; RATHER, HE CONTINUES TO PERFORM INACTIVE DUTY TRAINING AND REMAINS IN A PAY STATUS.

IN THE PRESENT CASE, THEREFORE, IT IS OUR VIEW THAT SP4 DORMAN DID NOT RECEIVE "FINAL PAY" WHEN HE COMPLETED HIS ACTIVE DUTY TOUR AT KEESLER AFB, MISSISSIPPI, SINCE THEREAFTER HE REMAINED IN A PAY STATUS WITH HIS CATEGORY A READY RESERVE UNIT AT TRAVIS AFB, CALIFORNIA. ALSO, IT DOES NOT APPEAR THAT HE ACTUALLY RECEIVED ANY AMOUNT IN "FINAL PAY" TO CLOSE HIS AIR FORCE MILITARY PAY ACCOUNT AT THE TIME OF HIS DISCHARGE FROM THE AIR FORCE RESERVE ON APRIL 7, 1977. ACCORDINGLY, YOUR FIRST 2 SPECIFIC QUESTIONS ARE ANSWERED IN THE NEGATIVE, AND WE FIND IT UNNECESSARY TO ADDRESS THE THIRD QUESTION. SP4 DORMAN'S $357.80 DEBT IS NOT SUBJECT TO WAIVER UNDER 10 U.S.C. 2774, SINCE IT RESULTED SOLELY FROM AN ERRONEOUS TRAVEL ALLOWANCE PAYMENT AND MAY NOT PROPERLY BE CONSIDERED TO HAVE ARISEN FROM ANY SORT OF ERRONEOUS "FINAL PAY."