B-252057, March 18, 1993

B-252057: Mar 18, 1993

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MILITARY PERSONNEL Pay Overpayments Error detection Debt collection Waiver The debt of a Navy member who erroneously was paid both a basic allowance for subsistence and separate rations may be waived under 10 U.S.C. 2774. Where the record showed that the member was without fault. There was no indication of fraud. DECISION This is in response to an appeal of a Claims Group determination which denied the waiver request of Petty Officer (PO) Melody L. Waiver is granted. The dining facility where PO Campbell ate in Japan was closed from January through March 14. She was entitled to a basic allowance for subsistence (BAS) instead of separate rations. Her BAS should have terminated when the facility reopened but did not.

B-252057, March 18, 1993

MILITARY PERSONNEL Pay Overpayments Error detection Debt collection Waiver The debt of a Navy member who erroneously was paid both a basic allowance for subsistence and separate rations may be waived under 10 U.S.C. 2774, where the record showed that the member was without fault, and there was no indication of fraud, misrepresentation, or lack of good faith on her part.

DECISION

This is in response to an appeal of a Claims Group determination which denied the waiver request of Petty Officer (PO) Melody L. Campbell, USN. For the reasons presented below, waiver is granted.

The dining facility where PO Campbell ate in Japan was closed from January through March 14, 1988. For that period of time, she was entitled to a basic allowance for subsistence (BAS) instead of separate rations. Her BAS should have terminated when the facility reopened but did not. It appears that she received both BAS and Separate Rations for at least part of the time between March 14, 1988 and June 30, 1989.

Apparently because the Navy originally questioned her entitlement to BAS while the dining facility was closed, a debt of $344.81 appeared on her Leave and Earnings Statement (LES) for April 1988, which she received on May 15, 1988. She contacted her local finance office at that time to question her indebtedness. She contacted the finance office monthly for 6 months and upon receipt of her October 1988 LES requested a complete audit of her pay account. She was told at that time, when both BAS and separate rations appeared on her LES, that her pay was correct. The Navy informed her in September 1989 that she had been overpaid from March 1988 until June 1989. She then requested waiver. The Claims Group denied her request, and she has appealed their denial.

The Comptroller General may waive collection of erroneous payments of pay and allowances under 10 U.S.C. Sec. 2774 if collection would be against equity and good conscience and not in the best interest of the United States. Waiver is precluded if there is a indication of fraud, misrepresentation, fault, or lack of good faith on the part of the claimant.

Applying that statute, we allowed waiver in our decision Petty Officer First Class Dorion J. Elliott, USN, B-238764, April 18, 1991. In that decision the claimant, who received BAS and Separate Rations simultaneously, questioned his pay three times and was told it was correct. The Navy did not discover the error until he requested a complete examination of his pay records. Of importance also was the fact that he did not receive his LES until 6 weeks after he received his pay.

PO Campbell's situation is similar to that in B-238764, supra. She regularly received her LES 6 weeks after payday. She first contacted her finance office when she noticed a debt on her LES that she did not understand. While the debt she pointed out involved the period immedi- ately before the period of overpayment, it involved the same allowance, BAS, which was paid in error. That debt and the subsequent unexplained retroactive payments and deductions of BAS and separate rations should have alerted the personnel in the finance office to a problem in that portion of her LES, if not during her earlier inquiries at least when she asked for a complete audit of her pay records. While entries for both BAS and Separate Rations had not appeared on earlier copies of her LES, they were both listed on her LES for the month when she asked for an audit and was told that her pay was correct.

During the period in question, the numerous unexplained retroactive payments and deductions of BAS and separate rations made PO Campbell's LES difficult to understand. In September 1988, the first month in which both BAS and separate rations appeared, there was an unexplained retroactive payment of $947.07 for BAS but also an unexplained retroactive deduction of $1,005.29 for separate rations. That month PO Campbell received $114 more than her average pay for the preceding 6 months, but she also became an E-5 that month. She contacted the finance office that month.

The next month there was another unexplained retroactive payment of $445.68 for BAS. (There had been a retroactive deduction of almost the same amount for Separate Rations earlier in the year.) PO Campbell's pay was high that month. She had reached 4 years of service that month, and her entitlements had increased. At that time she requested a complete audit of her pay records and was told that her pay was correct, even though both BAS and separate rations appeared on her LES.

To determine fault for purposes of waiver under 10 U.S.C. Sec. 2774, we consider whether the average person should have been aware that he being overpaid. Under the present circumstances, we are unable to conclude that PO Campbell should have been aware of the overpayment in issue.

Accordingly, we conclude that PO Campbell acted properly, in good faith, and without fault. The Claims Group's decision denying waiver of her debt is reversed.