B-244977, Mar 23, 1992

B-244977, Mar 23, 1992

DIGEST. A discharged service member's request for waiver of his debt arising from advance pay made to him upon his reenlistment may not be considered for waiver under 10 U.S.C. Sec. 2774 since only erroneous payments may be considered under that statute. When payments such as advance pay are legal and valid, they are not erroneous for purposes of the waiver statute and subsequent decision by the member to request discharge does not affect the character of the payment.

Steven G. Dodge:

This action is in response to a request from Steven G. Dodge for waiver of a debt that arose from his receipt of advance pay. /1/ Mr. Dodge reenlisted in the Marine Corps and received advance pay upon his reenlistment, which became a debt when he was discharged from the Marine Corps. Since the advance pay was legal and proper at the time it was paid, it is not an erroneous payment and waiver is not appropriate.

Steven G. Dodge reenlisted in the Marine Corps effective May 31, 1989, for 4 years. The Marine Corps reports that he was advanced pay at the time of his reenlistment. The Marine Corps also reports that he was honorably discharged at his request on October 6, 1989. At the time of his discharge, he was indebted to the government $642.12, for unrepaid advance pay. /2/ Mr. Dodge now claims that since he requested discharge due to a recruiting error, the debt for advance pay should be waived. The Marine Corps takes the position that the advance pay was legal and proper when paid and as a result is not an erroneous payment which may be waived under 10 U.S.C. Sec. 2774.

Section 1006 of title 37 provides that a member of the uniformed services may be advanced pay under certain circumstances. Subsection 1006(d) provides in part that if a person to whom an advance of pay is made is separated from the service before liquidation of that advance, the unliquidated amount remains a debt of that person to the United States.

The provisions of 10 U.S.C. Sec. 2774 permit the Comptroller General or in certain circumstances, the Secretary concerned, to waive claims of the United States arising out of erroneous payment of pay and allowances. order to be considered for waiver, a payment must be erroneous at the time it was made. Payments which are valid when made are not erroneous payments for the purposes of waiver under section 2774. This is the case even though a member may be indebted as a result of circumstances occurring later.

We have held that advance payments which are legal and valid when made are not erroneous for purposes of the waiver statute, and thus may not be considered for waiver. Failure to set off the advance payments does not change their character from valid to erroneous. Andrew J. Jossis, B-236270, Jan. 26, 1990. Thus, a valid payment of pay and allowances made on the basis of a reenlistment is not an erroneous payment and is not subject to waiver under 10 U.S.C. Sec. 2774. The only exception is where all or part of any payment made at the time of discharge should have been set off against the debt; in that event, the amount involved is viewed as an erroneous payment and is available for waiver consideration. Barry L. Wells, B-228828, Mar. 23. 1988.

Accordingly, in the absence of a showing that Mr. Dodge received payments at discharge which should have used to liquidate his debt, we conclude that no erroneous payment was made and that the advance payment was legal at the time it was made and may not be considered for waiver under 10 U.S.C. Sec. 2774.

/1/ Mr. Dodge made his request directly to this Office, (through his Congressman) rather than through the Marine Corps. He was informed by the finance office that his debt did not qualify for waiver consideration, but it appears that he never formally requested that the Marine Corps waive the debt. He initially requested compromise of the debt, but did not complete application for compromise.

/2/ As of October 31, 1991, interest and administrative fees had increased the debt to $724.40. B-244977