Matter of: Dennis R. Nix-- Reconsideration File: B-249371 Date: November 24, 1992

B-249371: Nov 24, 1992

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MILITARY PERSONNEL Pay Overpayments Error detection Debt collection Waiver Former member of the Army was overpaid for accrued leave at separation from the Army. Since he should have had a reasonable awareness of his leave balance. The member is not without "fault" in the matter and waiver must be denied. The Claims Group's decision is affirmed. DECISION This action is in response to a request from Dennis R. Since the member should have been aware of the overpayment. Waiver is denied. This payment was for various entitlements. Nix received a document informing him that this was a payment made at the local level and if adjustment to the amount paid were necessary upon review of his actual pay records.

Matter of: Dennis R. Nix-- Reconsideration File: B-249371 Date: November 24, 1992

MILITARY PERSONNEL Pay Overpayments Error detection Debt collection Waiver Former member of the Army was overpaid for accrued leave at separation from the Army. Since he should have had a reasonable awareness of his leave balance, and documents received by the member following the payment reflected an inaccurate leave balance, the member is not without "fault" in the matter and waiver must be denied. The Claims Group's decision is affirmed.

DECISION This action is in response to a request from Dennis R. Nix for reconsideration of our Claims Group's denial of his request for waiver of his debt of $4,670.65 representing overpayment for accrued leave. Since the member should have been aware of the overpayment, waiver is denied.

Mr. Nix, a former member of the Army used 61 days of leave just prior to his separation from the service. At the time of his separation he had 26.5 days of accrued leave. He received a casual payment of $29,236.54 in lieu of a final payment at the time of separation from the Army on or near August 30, 1988. This payment was for various entitlements--basic pay, separation pay, accrued leave, etc. Mr. Nix received a document informing him that this was a payment made at the local level and if adjustment to the amount paid were necessary upon review of his actual pay records, he would be notified later by the Finance Center. However, it appears that at that time he did not receive a complete breakdown of how that payment had been calculated.

In March 1989, Mr. Nix received a Leave and Earnings Statement (LES) giving a breakdown of his entitlements and the amount which he had been paid. The March LES indicated that Mr. Nix had accrued and had been paid $4,670.65 for 54.5 days of leave. Since he was only entitled to payment for 26.5 days of leave, this resulted in an overpayment of $2,399.15. In addition, in June 1989 he received another payment for 26.5 days of leave and another LES indicating that the payment was for accrued leave. As a result, he became indebted for an Thus, the total overpayment for accrued leave was $4,670.65.

The Army recommends denial of the waiver request since the records provided to Mr. Nix showed that he had been overpaid and he failed to take corrective action in the matter. Our Claims Group denied waiver, noting that this Office has long held that a member has an obligation to be aware of his approximate leave balance.

Section 2774 of title 10 of the 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.

We have carefully reviewed the file. Correspondence in the file indicates that Mr. Nix did not originally know how the casual payment had been calculated. Additionally, correspondence from Mr. Nix to the Finance Center indicates that he had difficulty obtaining an accurate Form W-2 reflecting the final payments made to him. However, he was aware that the payment received at separation was never intended to be final or accurate and if inaccurate, would be adjusted when his records had been reviewed. In addition, when he did receive the copies of the two Leave and Earnings Statements in March and June, they clearly showed that he had been overpaid for accrued leave. Specifically, as our Claims Group settlement pointed out, Mr. Nix should have been aware that he had a leave balance of 87.5 days before he used 61 days of leave during 1988, which reduced his leave balance to 26.5 days at separation. Therefore, he should have known from the March 1989 LES that he had been overpaid. The same is true for the additional payment he received in June 1984 for another 26.5 days of leave.

As a result, he should have contacted the proper authorities to have the matter resolved. It is our view that he should have at least questioned or pointed out the discrepancies in his leave record and the payment he received.

Accordingly, the Claims Group's denial is affirmed. James F. Hinchman General Counsel

Date:

To: Director, Claims Group/GGD - Sharon Green From: General Counsel - James F. Hinchman Subject:Dennis R. Nix - Reconsideration (Z-2916703)-B-249371,

Returned herewith is your file Z-2916703 and our decision Dennis R. Nix - Reconsideration, B-249371, dated today, in which we affirmed your denial of waiver. A copy of the decision and letter are also being sent to the Honorable William L. Dickinson who has indicated interest in the matter.

Attachments

The Honorable William L. Dickinson Member, United States House of Representatives Federal Building 100 West Troy Street Dothan, Alabama 36303

Dear Mr. Dickinson:

This is in response to your letter of July 1, 1992 regarding the request of your constituent Dennis R. Nix. Mr. Nix, a former member of the Army was overpaid at the time of his discharge, a total of $4,670.65.

When notified of his debt, Mr. Nix requested a waiver. The request was denied by the Defense Finance and Accounting Service (DFAS) in 1991. Our Claims Group, by settlement dated June 25, 1992, upheld the DFAS determination. Mr. Nix has now asked that you obtain a copy of the administrative report from DFAS to our office.

We have reviewed the records and find no reason to reverse the conclusion reached by our Claims Group. Enclosed is a copy of our decision, Dennis R.Nix, B-249371, of today's date and a copy of the administrative report submitted to us by DFAS. We are also enclosing copies of correspondence from Mr. Nix to this Office and to DFAS in which he sets out his argument. Pre leave and earnings statements for the period in question.

We trust this serves the purpose of your inquiry.