Matter of: Lieutenant Commander Bernard R. Hess, USN - Reconsideration of waiver request File: B-247264 Date: September 8, 1992

B-247264: Sep 8, 1992

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MILITARY PERSONNEL Pay Overpayments Error detection Debt collection Waiver Member of the Navy who continues to accept housing allowance during pendency of his challenge to a determination he was not entitled to them cannot obtain a waiver of his debt to repay them. When his nonentitlement to them is subsequently confirmed. Member knew or should have known that continued entitlement to allowances was in doubt. DECISION This action is in response to a request for reconsideration from Lieutenant Commander (LCDR) Bernard R. Its change of homeport was effective on March 1. LCDR Hess was apparently told by Navy advisors that if he declined a permanent change of station for himself. He was also apparently under the impression that the Navy would make Bachelor Officer Quarters (BOQ) available to him as accommodations in Philadelphia once the ship became uninhabitable.

Matter of: Lieutenant Commander Bernard R. Hess, USN - Reconsideration of waiver request File: B-247264 Date: September 8, 1992

MILITARY PERSONNEL Pay Overpayments Error detection Debt collection Waiver Member of the Navy who continues to accept housing allowance during pendency of his challenge to a determination he was not entitled to them cannot obtain a waiver of his debt to repay them, when his nonentitlement to them is subsequently confirmed. Member knew or should have known that continued entitlement to allowances was in doubt. Erroneous information initially provided to him by the Navy does not provide a basis to allow waiver. Accordingly, waiver must be denied.

DECISION

This action is in response to a request for reconsideration from Lieutenant Commander (LCDR) Bernard R. Hess for waiver of his debt of $7,982.24. LCDR Hess received erroneous payments of Basic Allowance for Quarters (BAQ) and Variable Housing Allowance (VHA) totalling $10,967.97. Our Claims Group, in its decision dated October 16, 1991 waived $2,985.73 of the debt and denied waiver of the remaining $7,982.24. We affirm that decision.

The Navy ordered LCDR Hess to make a permanent change of station from Harrisburg, Pennsylvania, to the USS Constellation, homeported in San Diego, California, effective April 1989. He moved to San Diego, purchased a condominium, and reported to the USS Constellation for duty on April 29, 1989.

LCDR Hess decided to reside in his condominium, and declined government quarters. This election entitled him to a BAQ and, because of high living costs in San Diego, he also received a VHA. [1] Then, in October 1989, the Navy announced that the USS Constellation would make a homeport change from San Diego to Philadelphia, Pennsylvania, to be overhauled. In February 1990 the Constellation left San Diego for Philadelphia. Its change of homeport was effective on March 1, 1990.

LCDR Hess was apparently told by Navy advisors that if he declined a permanent change of station for himself, and continued to decline government housing in Philadelphia, he could continue to receive a BAQ/VHA at the higher San Diego rate. He was also apparently under the impression that the Navy would make Bachelor Officer Quarters (BOQ) available to him as accommodations in Philadelphia once the ship became uninhabitable. On the basis of this information, LCDR Hess proceeded to decline a change of home port and permanent change of station to Philadelphia, as well as government quarters in Philadelphia. He kept the condominium in California and listed it as his residence.

On or about June 15, 1990, the USS Constellation published a memorandum indicating that single officers taking up residence in BOQ would lose eligibility for BAQ/VHA whether or not Philadelphia was not their home port. LCDR Hess questioned the applicability of this determination in his case. He was initially referred to the Department of Defense Pay and Allowances Manual tables. Believing that Pay and Allowance Manual regulations did not apply in his circumstances, he wrote to the Navy Finance Center via his commanding officer requesting a ruling.

On June 25, 1990, the ship was declared uninhabitable incident to its overhaul. LCDR Hess moved into BOQ at the Naval station in Philadelphia and began paying an $8 per day fee.

LCDR Hess did not receive an answer from the Navy Finance Center to his request. He continued to receive his full San Diego-based BAQ/VHA through the end of 1990 and into 1991. On April 17, 1991, he resubmitted his letter, this time to the Defense Finance and Accounting Service (DFAS). In the meantime, effective April 1, 1991, his BAQ/VHA allowances were terminated.

DFAS replied by memorandum dated May 9, 1991, that BAQ/VHA payments to LCDR Hess at the higher San Diego rate were proper through the end of February 1990, but that beginning on March 1, 1990, (the date of change of homeport for the USS Constellation), he should have been paid at the lower rate of the ship's new home port. The memo went on to state that once LCDR Hess occupied the BOQ, he was no longer eligible for any BAQ/VHA, since the BOQ was considered government quarters for purposes of BAQ. [2] DFAS pointed out that the government, and not LCDR Hess was covering the cost of the BOQ provided to him; the $8 per day fee paid by LCDR Hess, according to DFAS, was not a fee for rent, but a service charge for his use of linen.

The Navy calculated that the debt owed by LCDR Hess covering the period after March 1, 1990, was $10,967.97. LCDR Hess was asked to repay this amount, and he applied for a waiver.

Our Claims Group waived $2,985.73, agreeing with Navy officials forwarding his application to us that LCDR Hess accepted payment of BAQ/VHA from February 28, 1990 through June 15, 1990, in good faith. However, our Claims Group, also in agreement with Navy officials, denied waiver of $7,982.24, the amount he received following the June 15, 1990, announcement by the USS Constellation that single officers taking up residence in BOQ would not be eligible to receive BAQ/VHA. The Claims Group concluded that as of the date of this announcement, LCDR Hess was on notice that he might not be entitled to the housing allowance he was receiving.

In support of his request for reconsideration, LCDR Hess makes a number of assertions. However, none of them provide a basis for us to allow waiver of the debt. While he may have originally been given erroneous information regarding the consequences of his election to decline permanent change of station, he was later given the correct information. In the absence of statutory authority, the government is not liable for the negligent or erroneous acts of its agents. Petty Officer John R. Blayblock, USN, 60 Comp.Gen. 257 (1981).

The facts presented make it clear that LCDR Hess was informed in June 1990 that he was not eligible for the allowance after the ship was homeported in Philadelphia if he should chose to occupy government quarters. Instead of accepting this determination, he chose to challenge its applicability to his situation, and continued accept his allowances during the pendency of his challenge. He elected to occupy government quarters during this period. Although his disbursing office paid those allowances pending a response to LCDR Hess, under the circumstances, LCDR Hess should have been aware that his entitlement was in doubt.

Section 2774 of title 10 of the U.S. Code provides in pertinent part that the Comptroller General may waive a claim against a person arising out of an erroneous payment to or on behalf of a member or former member, if the collection of such debt would be against equity and good conscience and not in the best interest of the United States. The facts of this case do not meet this test. Accordingly, waiver of the additional amount is denied.

Date: To: Director, Claims Group, GGD - Sharon Green From: General Counsel - James F. Hinchman

Subject: Bernard R. Hess

Returned herewith is your file Z-2915862, Bernard R. Hess, and our decision, Lieutenant Commander Bernard R. Hess, USN, dated today, in which we upheld your settlement dated October 16, 1991, allowing in part and denying in part, waiver of his debt.

David L. Lindstrom Director, Waiver Department Finance and Accounting Service Navy Family Allowance Activity Anthony J. Celebrezze Federal Building Cleveland, Ohio 44199-2087

Mr. Mitchell

Ms. Barnes

Ms. Maguire

1. The VHA allowance is payable to members entitled to BAQ. Its purpose is to defray housing costs. The amount of the VHA allowance is based upon the median cost of housing in the area of the member's duty station. For example, members whose permanent duty station is San Diego qualify for a higher VHA allowance than those in Philadelphia because housing costs in San Diego are higher.

2. The $8 fee has been identified by the Navy as a linen and maintenance fee. We have been informally advised that $8 is the current average rate for such fees at a BOQ. In addition we note that under Navy regulations different rates are established for rental of a BOQ room and service charges such as the linen and maintenance fee for the BOQ room. See, Unaccompanied Personnel Housing Management Manual, OPNAVINST 11103.3, June 17, 1982.