Matter of: Major Kenneth C. Krenek, USAF (Retired) File: B-251519 Date: March 18, 1993

B-251519: Mar 18, 1993

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MILITARY PERSONNEL Pay Retirement pay Overpayments Debt collection Waiver Retired member of the Air Force elected participation in Reserve Component Survivor Benefit Plan but deductions from his retired pay were erroneously discontinued after 3 months. Member should have made inquiries about the unexplained rise in retired pay which occurred as a result and since the member is not without "fault. DECISION This action is in response to a request from Major Kenneth C. 191.12 which arose because Survivor Benefit Plan deductions were not made from his retired pay for 6-1/2 years. His children were no longer eligible beneficiaries. The SBP account was established with spouse coverage only. SBP deductions were not made from his retired pay.

Matter of: Major Kenneth C. Krenek, USAF (Retired) File: B-251519 Date: March 18, 1993

MILITARY PERSONNEL Pay Retirement pay Overpayments Debt collection Waiver Retired member of the Air Force elected participation in Reserve Component Survivor Benefit Plan but deductions from his retired pay were erroneously discontinued after 3 months. Member should have made inquiries about the unexplained rise in retired pay which occurred as a result and since the member is not without "fault," waiver may not be granted.

DECISION This action is in response to a request from Major Kenneth C. Krenek, USAF (Retired), for reconsideration of our Claims Group's denial of waiver of his debt of $3,191.12 which arose because Survivor Benefit Plan deductions were not made from his retired pay for 6-1/2 years. We affirm the Claims Group's denial of waiver for the reasons set forth below.

Major Krenek elected spouse and dependent coverage in the Reserve Component Survivor Benefit Plan (SBP) on September 13, 1979. At the time of his retirement in January 1985, his children were no longer eligible beneficiaries, and the SBP account was established with spouse coverage only. In June 1985, the Finance Center erroneously terminated the SBP deductions.

Thus, between May 1985 and October 1991, SBP deductions were not made from his retired pay. The failure to deduct the SBP premium caused an increase in his retired pay from $420.58 to $457.04 in May 1985. In October 1991, Major Krenek wrote to the finance center requesting an audit of his SBP account. At that time the error was discovered, the SBP deduction was reactivated and Major Krenek was notified of the debt of $3,191.12.

The Air Force denied waiver and notified Major Krenek of his right to appeal that determination. Our Claims Group, by settlement dated October 26, 1992, denied waiver, holding that Major Krenek should have questioned the increase in his retired pay. Major Krenek has appealed that decision.

As noted by the Claims Group, 10 U.S.C. Sec. 2774 provides the authority for waiving claims for erroneous payments of pay and allowances made to or on behalf of members or former members of the uniformed services if collection would be against equity and good conscience and not in the best interest of the United States. Generally these criteria are met by a finding that the claim arose from an administrative error with no indication of fraud, fault, misrepresentation or lack of good faith on the part of the member or any other person having an interest in obtaining the waiver.

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.

Major Krenek acknowledges receiving retired pay statements though he states that the pay statements he received were "infrequent and almost cryptic." In this regard, we have held that person is at least partially at fault for his failure to examine an earnings statement furnished him, which, had it been examined would have alerted the recipient to the fact that erroneous payments were being made. See, Petty Officer Richard E. Pittman, USN, B-199119, Dec. 30, 1980. If he had difficulty understanding these retired pay statements, and the unexplained increase in his pay, it was Major Krenek's duty to contact the Finance Center for clarification.

Under circumstances where a member has received an unexplained increase in pay or entitlements, we have long held that a reasonable person would make inquiries regarding the increase and take action to have the matter corrected. When a member fails to take such action, we cannot say he is without "fault" in the matter and waiver may not be allowed. See, Petty Officer First Class Shelby W. Miller, USN, B-203213, Dec. 21, 1981.

In addition we note that once a member has made the election to participate in the SBP, participation is irrevocable and cannot be waived by the member. See, 10 U.S.C. Sec. 1448. Thus, even though due to administrative error deductions were not being made from his retired pay, Major Kreneck benefitted from continued participation in the program. Under similar circumstances, we have held that it is not against equity and good conscience to require an employee to pay for a benefit received or protection provided. See, e.g., 62 Comp.Gen. 608 (1983) and Genevieve O'Leary, B-202213, September 10, 1981.

Since Major Krenek either did not examine his pay statements or did not make inquiries regarding his retired pay explained in those statements, nor did he question the raise in the amount of his retired pay in May 1985, we find that Major Krenek was not without "fault" in the matter and thus waiver may not be granted.