Matter of: Gladys J. Campbell - Waiver Request File: B-252856 Date: August 30, 1993

B-252856: Aug 30, 1993

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His widow's request for waiver of the resulting debt is denied because she did not make the request within 3 years after the erroneous payments were discovered. DECISION This is in response to an appeal of a Claims Group settlement which denied the waiver request of Mrs. When it was returned to her. She concluded she was entitled to it as the benefit her husband had told her she would receive if he died. Who had told her that he was familiar with government procedures and had notified the proper authorities. Her belief was confirmed when she subsequently received a letter of condolence from the President. Stating that Staff Sergeant Campbell's account was out of balance in the amount of $26.

Matter of: Gladys J. Campbell - Waiver Request File: B-252856 Date: August 30, 1993

MILITARY PERSONNEL Pay Retirement pay Overpayments Debt collection Waiver The Air Force continued to send retired pay to a member's address after his death. His widow's request for waiver of the resulting debt is denied because she did not make the request within 3 years after the erroneous payments were discovered.

DECISION This is in response to an appeal of a Claims Group settlement which denied the waiver request of Mrs. Gladys J. Campbell, widow of Staff Sergeant Alvin Campbell, USAF (Retired). For the reasons presented below, we affirm the Claims Group's denial.

Staff Sergeant Campbell retired from the Air Force in 1960 and died November 27, 1979. The Air Force continued to send retired pay checks to the Campbell residence. Mrs. Campbell states that she attempted to return the first check that arrived after his death, but when it was returned to her, she concluded she was entitled to it as the benefit her husband had told her she would receive if he died. She believed that the Air Force had been notified of her husband's death by the funeral director, who had told her that he was familiar with government procedures and had notified the proper authorities. Her belief was confirmed when she subsequently received a letter of condolence from the President.

After learning of Staff Sergeant Campbell's death in October 1984, the Air Force sent a form to Mrs. Campbell on November 7, 1984, stating that Staff Sergeant Campbell's account was out of balance in the amount of $26,049.28, which was adjusted to $25,718.18 for arrears of pay. In March 1986 the Air Force requested reclamation action through the Treasury Department against Mrs. Campbell's bank, which had allowed Mrs. Campbell to deposit checks made payable to her husband unsigned. In December 1987 the Air Force reclaimed $12,394.70 from the bank, out of funds being transferred to the bank from the Department of Education for reasons unconnected with Mrs. Campbell, and the amount of Mrs. Campbell's debt was reduced accordingly. The bank then sought restitution from her. Mrs. Campbell settled the bank's claim against her, but was forced to sell her house to do so. She was notified by the Air Force on November 17, 1988, that she could request waiver of her debt. After some apparent delay by her attorney, she requested waiver on May 31, 1991. Mrs. Campbell's request was denied by the Air Force on the grounds that it was not made within 3 years of discovery of the debt. Our Claims Group also denied her request, and she has appealed their determination.

Section 2774 of title 10 of the United States Code authorizes waiver of a claim of the United States arising out of an erroneous payment of pay and allowances to or on behalf of a member. Waiver is appropriate if collection would be against equity and good conscience and not in the best interest of the United States and if there is no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the person requesting waiver. Section 2774 prohibits consideration of a waiver request if it is received more than 3 years after the date on which the erroneous payment is discovered.

In 54 Comp.Gen. 133 (1974), we held that the date of discovery must be considered as beginning to run from the date the erroneous payment was discovered by the administrative office responsible for such determination. See also Lieutenant Commander Stephen V. Wilkins, B-182846, November 14, 1975.

In the present situation, the Air Force discovered in October 1984 that erroneous payments had been made to Staff Sergeant Campbell's account. By letter dated November 7, 1984, the Air Force requested repayment of erroneous payments. While collection action by the Air Force was not diligent and Mrs. Campbell may not have been informed of her right to request waiver, the fact remains that neither she nor her attorney requested waiver of the debt caused by the erroneous payments until May 31, 1991. While it is unfortunate that the collection was handled the way it was, this Office has no authority to modify or suspend the 3 year limitation in 10 U.S.C. Sec. 2774. See B-182846, supra.

The Air Force's submission regarding Mrs. Campbell's waiver request cites Claims Group settlement Z-2917209, dated July 14, 1992, as perhaps offering a rationale for waiving Mrs. Campbell's debt. In that settlement, which is without precedential value, the Claims Group waived the debt of a member whose formal waiver request was received more than 3 years after discovery of the debt because the member was unable to request waiver promptly due to hospitalization for drug treatment. However, in the Air Force submission in that case it was noted that the individual involved had requested assistance well within the 3-year period and such request could be construed as a request for waiver. That situation is not comparable to Mrs. Campbell's because there the member made arrangements to settle her debt and asked for assistance within the 3-year period.

While waiver is not appropriate in this case, we note that the Federal Claims Collection Standards, 4 Code of Federal Regulations, chapter II, allow for termination of collection activity in appropriate circumstances. This Office would not object to termination of collection activity against Mrs. Campbell if deemed appropriate by the Air Force.

Accordingly, Mrs. Campbell's waiver request is denied, and the Claims Group's determination is affirmed.