Matter of:Daniel E. Stryker--Basic Allowance for Quarters File:B-248537 Date:August 21, 1992

Matter of:Daniel E. Stryker--Basic Allowance for Quarters File:B-248537 Date:August 21, 1992

MILITARY PERSONNEL Pay Basic quarters allowances Rates Determination Dependents MILITARY PERSONNEL Pay Overpayments Error detection Debt collection Waiver Member of the Navy was assigned government quarters. His wife, from whom he was separating, remained in government quarters and remained his dependent. Member applied for and received Basic Allowance for Quarters and Variable Housing Allowance (BAQ/VHA) for this time period. Waiver may not be granted because the member should have known that he was not entitled to BAQ/VHA while his dependent resided in assigned government housing.

DECISION

This action is in response to a request from Daniel E. Stryker for reconsideration of our Claims Group's denial of waiver of a debt of $4,815.83 plus accrued interest. Mr. Stryker received Basic Allowance for Quarters (BAQ) during a time period prior to his divorce when his wife, from whom he was separating, was residing in government quarters. It is our view that he should have been aware that he was not entitled to BAQ at the time and thus is not "without fault" in the matter. The Claims Group's denial is affirmed.

Mr. Stryker, a former member of the United States Navy, was assigned government quarters in August 1980. Shortly thereafter, Mr. Stryker and his wife were legally separated, and Mr. Stryker moved out of the government quarters into private quarters and applied for Basic Allowance for Quarters and Variable Housing Allowance (BAQ/VHA).

He began receiving BAQ/VHA at the "with-dependent" rate. His wife remained in government housing until January 1982. Mr. Stryker was erroneously paid BAQ/VHA from August 1980 until January 1982. He was discharged on February 8, 1982. In March 1982, he and his wife were divorced.

Mr. Stryker states that he was told that he was entitled to BAQ/VHA. He also alleges that he was under court order to move out of the government quarters and the Navy was unable to evict his former wife. It is his position that he was not occupying government quarters and thus payment of the BAQ/VHA was proper. He also states that New Jersey law requires an 18- month separation prior to divorce. Thus, he believes that the government quarters should not have been charged to him for purposes of BAQ/VHA. He also states that his leave and earning statement did not reflect the payment of those allowances, and that he did not know he was being overpaid.

The Navy takes the position that members are aware that the BAQ/VHA allowances are intended for the support of their dependents as well as themselves. They note that Mr. Stryker has acknowledged that he knew that BAQ/VHA allowances are not available to members who are residing in government housing. The Navy also takes the position that Mr. Stryker knew or should have known by the amount of pay he received that he was receiving the allowances.

The Navy denied waiver of the debt on the grounds Mr. Stryker should have known he was not entitled to the allowances and should have questioned the payments and acted upon them. Our Claims Group upheld that denial.

The applicable regulations found in the DODPM allow members to receive BAQ when quarters are not furnished for or assigned to the member or his dependents. See DODPM 30221. Further, paragraph 30232 states that a member's lawful spouse is at all times considered a dependent for BAQ purposes.

New Jersey law allows a "no fault" divorce based on a continual separation of at least 18 months as grounds. However, during the period of separation, the persons remain legally married until the marriage is legally terminated by a conclusive judicial determination that a party is entitled to divorce.

Section 2774 of title 10 United States Code provides that the Comptroller General or the Secretary concerned may not exercise his authority under this section to waive any claim if in his opinion there exists any indication of fault, fraud, misrepresentation or lack of good faith on the part of the member. The word "fault" as used in section 2774 has been interpreted by this Office as including more than a proven overt act or omission by the member. Thus, "fault" is considered to exist if in light of all the facts it is determined that the member should have known that an error existed and taken action to have it corrected.

In the present case, Mr. Stryker knew that his wife was occupying government quarters which were assigned to him. Although he moved into private quarters with the purpose of qualifying for a divorce on the basis of separation, he remained married to his wife and should have known that her occupancy of his assigned quarters, regardless of whether he actually occupied them or not, disqualified him from entitlement to BAQ/VHA. Compare, Quarters Allowances, B-208650, Mar. 21, 1983.

We concur with the conclusion reached by the Navy and our Claims Group, that waiver may not be granted. Accordingly, we affirm the Claims Group's denial of waiver.

The Honorable Bill Bradley United States Senator Post Office Box 1720 Union, New Jersey 07083

Dear Senator Bradley:

This is in response to your request on behalf of Daniel E. Stryker. Mr. Stryker requested reconsideration of waiver of his debt to the government. Enclosed is a copy of our decision, Daniel E. Stryker, B-248537, dated today, in which we upheld our Claims Group's denial of waiver. Since Mr. Stryker was still married to his former wife and was assigned to government quarters at the time he received Basic Allowance for Quarters and Variable Housing Allowance, he was not entitled to those allowances and since he should have been aware of the overpayment, waiver cannot be granted. We regret that we are unable to provide you with a more favorable reply.

Counsel - James F. Hinchman

Subject:Z-2905211

Returned herewith is your file Z-2905211 and our decision, Daniel E. Stryker, Jr., B-248537, dated today, in which we upheld your denial of waiver.