Matter of: Larry Jamerson - Waiver - Erroneous Charge of Annual Leave File: B-248732 Date: July 28, 1992

Matter of: Larry Jamerson - Waiver - Erroneous Charge of Annual Leave File: B-248732 Date: July 28, 1992

MILITARY PERSONNEL Leaves Of Absence Annual leave Leave repurchase Reservists Active duty status An employee called to military active duty to participate in Operation Desert Storm requested to be placed in a leave without pay status. However, the agency erroneously placed him on annual leave and paid him his salary for 80 hours. Upon discovery of the error, the agency gave the employee the option of keeping the payment and the charge to his leave or having the leave reinstated and being billed for the payment. The employee chose to have the leave reinstated. Collection of the resulting debt for the annual leave payment is not against equity and good conscience nor against the best interests of the United States in these circumstances since the employee elected to have the leave restored with the knowledge that this would create a debt. Therefore, the debt is not eligible for waiver under 5 U.S.C. Sec. 5584.

DECISION

Mr. Larry Jamerson, an employee of the United States Department of Agriculture (USDA) appeals his agency's determination that a debt owed the agency by Mr. Jamerson for erroneously charged annual leave may not be waived under 5 U.S.C. Sec. 5584 (1988). For the reasons stated below, the debt is not eligible for waiver.

BACKGROUND

Mr. Jamerson is a reservist who was called to active duty for Operation Desert Storm in 1991. After exhausting his military leave, he requested to be placed on leave-without-pay (LWOP) status effective January 27, 1991. However, the accounting technician who processed his request charged Mr. Jamerson 80 hours of annual leave from his balance of 128 hours. The agency deposited Mr. Jamerson's pay directly into his bank account, and, unaware of the agency's error, Mr. Jamerson's wife continued to withdraw money from the account.

The agency notified Mr. Jamerson of the error in a May 3, 1991, memorandum stating that Mr. Jamerson could keep the annual leave payment or have the agency change the transaction code for the affected pay period (#2) from annual leave to LWOP. The memorandum noted, "You will be billed the amount paid for the 80.0 hours of Annual Leave for PP#2 should you elect to change to LWOP for PP#2."

Mr. Jamerson elected to have the leave restored. Accordingly, on July 7, 1991, the agency notified Mr. Jamerson that it would collect the overpayment by means of salary offset. However, on July 17, 1991, Mr. Jamerson requested that the debt be waived. In a December 27, 1991, letter to Mr. Jamerson, the agency denied the request, citing our decision in B-176020, Aug. 4, 1972, holding that waiver is not available when an employee's leave account is adjusted to correct a previous error and the employee has sufficient leave to cover the adjustment.

ANALYSIS

The applicable waiver statute, 5 U.S.C. Sec. 5584, states, in relevant part:

"(a) A claim of the United States against a person arising out of an erroneous payment of pay or allowances . . . to an employee of an agency, the collection of which would be against equity and good conscience and not in the best interests of the United States, may be waived. . . ."

The term "claim" refers "to an amount of money or property which has been determined by an appropriate agency official to be owed to the United States. . . ." 4 C.F.R. Sec. 101.2(a) (1992).

In the typical waiver case, the erroneous payment creates a claim of the United States because the employee has no legal entitlement to the erroneous payment. Compare Donna J. Williams, B-230366, June 27, 1988, in which the agency overcredited the amount of leave available to an employee, and B-176020, supra, in which the agency authorized administrative leave for an improper purpose and later charged annual leave to correct the error. This is not the case here.

Although the agency erroneously placed Mr. Jamerson on annual leave and paid him for 80 hours rather than placing him on LWOP, he was not obligated to return the payment. Employees in Mr. Jamerson's situation may use annual leave during their reserve duty. See Federal Personnel Manual, Chapter 630-22, Sec. 9-6(c), (Inst. 4, Sept. 30, 1963). Therefore, at this point Mr. Jamerson did not owe any money to his agency.

Mr. Jamerson then exercised his option to have the agency restore to his account the 80 hours of annual leave charged to him for pay period #2. As we noted, this was an informed choice since the agency had advised Mr. Jamerson that he would be billed for the resulting debt. In these circumstances we do not find it "against equity and good conscience" nor contrary to the "best interests of the United States" to require Mr. Jamerson to comply with the terms of his election and make refund. Compare Seymour Zirkin, B-204974, June 24, 1982.

Accordingly, Mr. Jamerson's request for waiver is denied.

The Honorable Howard Coble House of Representatives

Dear Mr. Coble:

This further refers to your letter of March 9, 1992, with enclosures, concerning the claim of the United States against Mr. Larry Jamerson, an employee of the Department of Agriculture.

In our decision, dated today, copy enclosed, we have denied Mr. Jamerson's request to have his debt waived. We are sending copies of the decision to Mr. Jamerson and the agency involved.

We trust this is responsive to your inquiry.

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

Subject: Larry Jamerson, Z-2916859, B-248732.O.M.

We are returning your file, Z-2916859. By our decision, B-248732, dated today, we have denied Mr. Jamerson's request for waiver. A copy of this decision and an appropriate cover letter are being sent to Representative Howard Coble, who expressed interest in this case.