B-202808.OM, SEP 1, 1981

B-202808.OM: Sep 1, 1981

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DIGEST: MEMBER SHOULD NOT BE CONSIDERED AT FAULT IN ACCEPTING OVERPAYMENTS RESULTING FROM ERRONEOUS PAY ENTRY BASE DATE WHEN ONLY NOTIFICATION OF OVERPAYMENT IS CHANGE OF DATE ON LEAVE AND EARNINGS STATEMENT AND AMOUNT PAID AND GRADE AND YEARS OF SERVICE REMAIN THE SAME. AFMD - CLAIMS GROUP (ROOM 5858): RETURNED IS YOUR FILE Z-2826640 INVOLVING THE INDEBTEDNESS TO THE UNITED STATES OF CAPTAIN VINCENT L. WERE CAUSED BY HIS PAY BEING COMPUTED ON THE BASIS OF AN ERRONEOUS PAY ENTRY BASE DATE WHICH RESULTED IN HIS BEING CREDITED WITH MORE LONGEVITY THAN HE ACTUALLY HAD. ONLY A PARTIAL WAIVER WAS GRANTED UNDER 10 U.S.C. 2774. BECAUSE THE VIEW WAS TAKEN THAT WHEN THE ERRONEOUS PAY ENTRY BASE DATE WAS CORRECTED ON HIS LEAVE AND EARNINGS STATEMENT (LES) HE SHOULD HAVE BEEN AWARE OF THE OVERPAYMENT EVEN THOUGH HE CONTINUED TO RECEIVE THE SAME AMOUNT OF MONEY AFTER THE CORRECTION.

B-202808.OM, SEP 1, 1981

SUBJECT: WAIVER OF INDEBTEDNESS OF CAPTAIN VINCENT L. LEMBO, USAF - Z-2826640 B-202808-O.M. DIGEST: MEMBER SHOULD NOT BE CONSIDERED AT FAULT IN ACCEPTING OVERPAYMENTS RESULTING FROM ERRONEOUS PAY ENTRY BASE DATE WHEN ONLY NOTIFICATION OF OVERPAYMENT IS CHANGE OF DATE ON LEAVE AND EARNINGS STATEMENT AND AMOUNT PAID AND GRADE AND YEARS OF SERVICE REMAIN THE SAME. THUS THE ERRONEOUS PAYMENTS RECEIVED SHOULD BE WAIVED UNDER 10 U.S.C. 2774.

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

RETURNED IS YOUR FILE Z-2826640 INVOLVING THE INDEBTEDNESS TO THE UNITED STATES OF CAPTAIN VINCENT L. LEMBO, USAF, IN THE AMOUNT OF $4,933.58. THE INDEBTEDNESS RESULTED FROM ERRONEOUS PAYMENTS OF PAY AND ALLOWANCES RECEIVED BY CAPTAIN LEMBO FOR THE PERIOD SEPTEMBER 6, 1978, THROUGH APRIL 30, 1980, AND WERE CAUSED BY HIS PAY BEING COMPUTED ON THE BASIS OF AN ERRONEOUS PAY ENTRY BASE DATE WHICH RESULTED IN HIS BEING CREDITED WITH MORE LONGEVITY THAN HE ACTUALLY HAD.

THE CLAIMS GROUP, BY ACTION DATED JANUARY 8, 1981, WAIVED $1,724.66 OF CAPTAIN LEMBO'S INDEBTEDNESS OF $6,658.24 LEAVING A BALANCE DUE OF $4,933.58. ONLY A PARTIAL WAIVER WAS GRANTED UNDER 10 U.S.C. 2774, BECAUSE THE VIEW WAS TAKEN THAT WHEN THE ERRONEOUS PAY ENTRY BASE DATE WAS CORRECTED ON HIS LEAVE AND EARNINGS STATEMENT (LES) HE SHOULD HAVE BEEN AWARE OF THE OVERPAYMENT EVEN THOUGH HE CONTINUED TO RECEIVE THE SAME AMOUNT OF MONEY AFTER THE CORRECTION. WE DISAGREE AND ARE OF THE OPINION THAT WAIVER OF THE TOTAL CLAIMS SHOULD BE GRANTED.

ON AUGUST 27, 1973, CAPTAIN LEMBO WAS APPOINTED AS A SECOND LIEUTENANT IN THE AIR FORCE AND SELECTED TO PARTICIPATE IN THE ARMED FORCES HEALTH PROFESSION SCHOLARSHIP PROGRAM UNDER THE PROVISIONS OF CHAPTER 105 OF TITLE 10, UNITED STATES CODE. DURING THE PERIOD OF HIS TRAINING HE WAS IN AN INACTIVE DUTY STATUS AND NOT ENTITLED TO HAVE THAT TIME CREDITED FOR YEARS OF SERVICE. 10 U.S.C. 2126. HOWEVER, ON COMPLETING HIS TRAINING HE WAS CALLED TO ACTIVE DUTY ON SEPTEMBER 6, 1978, IN THE GRADE OF CAPTAIN 0- 3 AND HIS PAY ENTRY BASE DATE WAS ESTABLISHED AS AUGUST 27, 1973, RESULTING IN HIS BEING PAID AS AN 0-3 WITH OVER 4 YEARS OF SERVICE. THE CORRECT DATE SHOULD HAVE BEEN AUGUST 24, 1978, AND HIS PAY SHOULD HAVE BEEN THAT OF AN 0-3 WITH UNDER 2 YEARS OF SERVICE. THE MONTHLY PAY RATE DIFFERENCE BETWEEN THAT OF AN 0 3 WITH UNDER 2 YEARS OF SERVICE AND THAT OF AN 0-3 WITH OVER 4 YEARS, EFFECTIVE OCTOBER 1978, WAS $329.10 AND EFFECTIVE OCTOBER 1979, WAS $352.20.

PRESUMABLY, THE ERROR OCCURRED BECAUSE CERTAIN MEDICAL PROFESSIONALS RECEIVE CREDIT IN THE COMPUTATION OF THEIR BASIC PAY FOR THEIR PROFESSIONAL TRAINING WHILE OTHER MEMBERS ENROLLED IN THE ARMED FORCES HEALTH PROFESSION SCHOLARSHIP PROGRAM DO NOT.

THE PAY DATE ERROR WAS DISCOVERED AND CORRECTED ON HIS LES IN FEBRUARY 1979 TO SHOW THE CORRECT DATE. HOWEVER, HE CONTINUED TO RECEIVE THE SAME PAY AND THE ONLY CHANGE ON THE LES WAS THE PAY ENTRY BASE DATE. THE REST OF THE LES REMAINED THE SAME INDICATING THAT HE WAS BEING PAID AS AN 0-3 WITH OVER 4 YEARS OF SERVICE AND THE AMOUNT OF HIS ENTITLEMENTS AS SHOWN ON THE LES REMAINED THE SAME. THE OVERPAYMENTS WERE DISCOVERED IN MAY OF 1980.

THE AIR FORCE RECOMMENDED A PARTIAL WAIVER OF THE OVERPAYMENTS COVERING THE PERIOD PRIOR TO THE CORRECTION OF THE PAY ENTRY BASE DATE. THE CLAIMS GROUP CONCURRED, BUT CONSIDERED THE MEMBER AT LEAST PARTIALLY AT FAULT AFTER THE CORRECTION OF THE DATE.

IT IS OUR VIEW THAT NO FAULT MAY BE PLACED ON THE MEMBER IN THIS CASE AND THE BALANCE OF THE CLAIM OF THE UNITED STATES SHOULD BE WAIVED UNDER 10 U.S.C. 2774. THE ONLY NOTIFICATION THE MEMBER HAD THAT HE MIGHT HAVE BEEN OVERPAID PRIOR TO THE ACTUAL DISCOVERY OF THE OVERPAYMENT WAS THE CHANGE OF A DATE ON HIS LES WITH NO EXPLANATION OF THE FACT THAT THIS COULD HAVE AFFECTED HIS PAY. THUS, THE SAME THEORY UPON WHICH THE OVERPAYMENTS WERE WAIVED PRIOR TO THE CORRECTION OF THE DATE SHOULD BE APPLIED TO THE OVERPAYMENTS RECEIVED SUBSEQUENT TO THE CHANGE IN DATE.

ACCORDINGLY, CAPTAIN LEMBO'S DEBT IS WAIVED UNDER 10 U.S.C. 2774 AND HE SHOULD BE INFORMED OF HIS RIGHT TO CLAIM ANY AMOUNTS THAT HE HAS REPAID.