B-243882, October 11, 1991

B-243882: Oct 11, 1991

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Snelling was discharged from the United States Navy on October 1. Due to administrative error he was overpaid two savings allotments of $600 for the months of October and November 1986. Concluding that the member might reasonably have not known of this overpayment and received it in good faith. Finding that he should have questioned this entitlement. He also received it in good faith but was merely "lazy" in failing to notice and question it. Waiver is not permitted if there exists. We have interpreted "fault. We consider fault to exist if in the light of all of the facts it is determined that the member should have known the error existed and taken action to have it corrected. The standard we employ is to determine whether a reasonable person should have been aware that he was receiving payment in excess of his entitlement.

B-243882, October 11, 1991

PRECIS-UNAVAILABLE

Timothy R. Snelling - Request for Waiver:

Timothy R. Snelling appeals our Claims Group's settlement of July 17, 1989, partially denying his request for waiver of erroneous payments made to him by the Navy. We sustain the Claims Group's action.

Mr. Snelling was discharged from the United States Navy on October 1, 1986. Due to administrative error he was overpaid two savings allotments of $600 for the months of October and November 1986. The Navy, recommended partial waiver of $600 for the month of October, concluding that the member might reasonably have not known of this overpayment and received it in good faith. The Claims Group agreed and granted partial waiver. However, they denied waiver of collection of the erroneous November savings allotment, finding that he should have questioned this entitlement. In his appeal the member maintains that collection of the November payment should also be waived, contending that as with the October payment, he also received it in good faith but was merely "lazy" in failing to notice and question it.

The Comptroller General has the authority under 10 U.S.C. Sec. 2774 to waive collection of certain debts to the government where it would be against equity and good conscience and not in the best interest of the United States. However, waiver is not permitted if there exists, in connection with the claim, an indication of fraud, misrepresentation, fault or lack of good faith on the member's part. We have interpreted "fault," as used in 10 U.S.C. Sec. 2774, as something more than a proven overt act or omission by the member. Thus, we consider fault to exist if in the light of all of the facts it is determined that the member should have known the error existed and taken action to have it corrected. The standard we employ is to determine whether a reasonable person should have been aware that he was receiving payment in excess of his entitlement.

It is our view that Mr. Snelling may have received the erroneous November savings allotment innocently, but nevertheless was at fault in failing to question it when it was indicated on his credit union statement. We have held that "fault" is considered to exist if the member should have known that an error existed but failed to take any action to have it corrected. William K. Kelly, B-235936, Nov. 29, 1990. Therefore, since he was at least partially at fault, waiver is precluded and the Claims Group's decision is sustained.