B-252523, August 27, 1993

B-252523: Aug 27, 1993

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AZ 86301 Dear Major Caskey: This is in reference to your letter of February 8. Your pay was not reduced in accordance with the Dual Compensation Act from July 12. You contend that the Dual Compensation Act is an unfair law and should be repealed. Any decision concerning whether this law should be repealed is for determination by the Congress. Where the law was upheld following a challenge by retired regular officers. It is the responsibility of this Office and the military finance centers to apply the law as written. Fault was present because you failed to notify the military finance office of your employment even though you did advise the Veterans Administration of your prior military service.

B-252523, August 27, 1993

MILITARY PERSONNEL Pay Dual compensation restrictions Retired personnel Where retired officer fails to notify military finance office of employment at the Veterans Administration, even though he did notify VA of prior military service, he cannot be said to be without fault under 10 U.S.C. Sec. 2774 so that waiver may be granted of overpayment of retired pay because of the failure to apply the Dual Compensation Act reduction.

Major Robert D. Caskey (Retired) 4869 Hornet Drive Prescott, AZ 86301

Dear Major Caskey:

This is in reference to your letter of February 8, 1993 appealing the settlement of our Claims Group which denied your request for waiver of the debt of $12,811.58 owed to the United States as a result of the failure to reduce your retired pay in accordance with the Dual Compensation Act (5 U.S.C. Sec. 5532).

On July 1, 1982, you retired from the Marine Corps under conditions which entitled you to retired pay. On June 12, 1989, you accepted a position as a vocational rehabilitation specialist at the Veterans Administration Medical Center, Prescott, Arizona. Through an administrative error, your pay was not reduced in accordance with the Dual Compensation Act from July 12, 1989 through September 30, 1991 resulting in the overpayment of $12,811.58.

In your appeal of the settlement of the Claims Group, you contend that the Dual Compensation Act is an unfair law and should be repealed. Any decision concerning whether this law should be repealed is for determination by the Congress. See Puglisi v. United States, 215 Ct. Cl. 86 (1977), where the law was upheld following a challenge by retired regular officers. In the absence of congressional action, it is the responsibility of this Office and the military finance centers to apply the law as written.

Regarding the concept of fault under 10 U.S.C. Sec. 2774 which the Claims Group found existed in denying your request for waiver, fault was present because you failed to notify the military finance office of your employment even though you did advise the Veterans Administration of your prior military service. The fact that the VA did not advise the finance office did not relieve you of your duty to do so in accordance with the Statement of Employment (DD Form-1327).

While you contend that your employment at the Veterans Administration Medical Center is not a "position" under the definition contained at 5 U.S.C. Sec. 5531 (2), it is clear from the personnel records which you sent to our Office that you were appointed to a temporary position with the Veterans Administration, an executive branch agency, on June 12, 1989, which was subsequently converted to an excepted appointment on February 11, 1990. Since Sec. 5531(2) defines "position" to include temporary, part -time or intermittent positions, your employment falls within the coverage of the Dual Compensation Act.

Finally, regarding your contention that the fact that you had been retired for seven years and were unfamiliar with the instructions which you had received at the time of your retirement regarding employment by the federal government, does not furnish a basis to relieve you of your duty to report your employment. In this connection, you signed a Statement of Employment for (DD Form 1327) when you retired which stated that you would file a new Statement of Employment form within 30 days of a change in your employment status.

Accordingly, the action of the Claims Group is sustained.