B-244217, Dec 19, 1991

B-244217: Dec 19, 1991

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DIGEST: Member was erroneously overpaid due to incorrect Pay Entry Basic Date. He was notified in 1984 of the debt but did not file request for waiver until 1988. The Claims Group's denial of the waiver was proper. USA: This action is in response to a request from Major Robert D. Sec. 2774 requires that waiver requests be filed within 3 years of the time the debt is discovered. Major Gentile argues that the time limitation should not apply in his case since he claims that he was not provided with the exact amount of his debt until 1987 and therefore could not submit his claim until that time. There is no question that Major Gentile was notified of a specific amount that had been erroneously paid to him and of the error in his PEBD.

B-244217, Dec 19, 1991

DIGEST: Member was erroneously overpaid due to incorrect Pay Entry Basic Date. He was notified in 1984 of the debt but did not file request for waiver until 1988, when collection action began. Since member did not file his request for waiver within the 3 years time limit under 10 U.S.C. Sec. 2774, the Claims Group's denial of the waiver was proper.

Major Robert D. Gentile, USA:

This action is in response to a request from Major Robert D. Gentile for reconsideration of our Claims Group's October 26, 1990, denial of his request for waiver. The debt arose when his finance office erroneously credited him with time spent in the Health Profession Scholarship Program in calculating his Pay Entry Basic Date (PEBD). Our Claims Group denied waiver of the debt since the finance office discovered the debt and advised Major Gentile of it in 1984, more than 3 years prior to his request for waiver. The waiver statute, 10 U.S.C. Sec. 2774 requires that waiver requests be filed within 3 years of the time the debt is discovered.

Major Gentile argues that the time limitation should not apply in his case since he claims that he was not provided with the exact amount of his debt until 1987 and therefore could not submit his claim until that time.

There is no question that Major Gentile was notified of a specific amount that had been erroneously paid to him and of the error in his PEBD. The record shows that by letter dated May 25, 1984, Major Gentile was notified of a debt of $3,345.00, for the time period of October 1, 1982 to May 1984 and how the erroneous payment occurred. The letter also advised that further calculations would be made regarding erroneous payments made prior to October 1982. He was notified at that time of his right to request waiver. The Army failed to initiate a collection action immediately. When this failure was discovered, collection action was begun in 1987. Major Gentile did not file a request for waiver until March 28, l988.

The Army's position is that Major Gentile knew of the debt despite the fact that collection action had not begun. It is unclear why Major Gentile did not file a request for waiver when he was notified of his indebtedness by the May 1984 letter since he had made other requests within the statutory time limit for prior erroneous payments caused by earlier errors. In those cases he obtained a waiver, and therefore he was familiar with the waiver process.

Major Gentile has stated that he does not contend that the payments were not improper but disagrees that he was aware of the overpayments and failed to take appropriate action.

We disagree. It is clear Major Gentile was aware as of May 1984 that the Army considered him indebted for at least $3,345.00 and the reason why. The fact that he chose to take no action regarding the matter for almost 4 years until collection had begun does not affect the application of the statutory time limit in 10 U.S.C. Sec. 2774.

Accordingly, we affirm the denial of waiver. Major Gentile was advised of the debt in 1984 and did not request waiver until 1988, and thus, did not file the request within the 3 year time limitation set forth in 10 U.S.C. Sec. 2774, the waiver statute.