Matter of: Captain Michael A. Corley File: B-253223 Date: October 19, 1993

B-253223: Oct 19, 1993

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Since the member knew of the strict requirements for eligibility for ACIP and should have known that the surgery could affect his entitlement. He is not without fault in the matter and waiver of the debt created by his receipt of erroneous ACIP payments after disqualification is not appropriate. DECISION This action is in response to a request from Captain Michael A. 1991 after he was no longer entitled to Aviation Career Incentive Pay (ACIP). Corley was an aviator working in a non-flying position. His only requirement for eligibility for ACIP was passing his flight physical each year. He was receiving ACIP in March 1990 at which time he received and passed his required flight physical for 1990.

Matter of: Captain Michael A. Corley File: B-253223 Date: October 19, 1993

MILITARY PERSONNEL Pay Overpayments Error detection Debt collection Waiver Member of the uniformed services had surgery involving a biopsy of a cyst on his brain which disqualified him from flight status and Aviation Career Incentive Pay (ACIP) after the 6-month grace period had expired. Since the member knew of the strict requirements for eligibility for ACIP and should have known that the surgery could affect his entitlement, he is not without fault in the matter and waiver of the debt created by his receipt of erroneous ACIP payments after disqualification is not appropriate.

DECISION This action is in response to a request from Captain Michael A. Corley for reconsideration of our Claims Group's denial of waiver of his debt of $5,676.67 which he received from January 9, 1991 through September 30, 1991 after he was no longer entitled to Aviation Career Incentive Pay (ACIP).

Captain Michael A. Corley was an aviator working in a non-flying position. His only requirement for eligibility for ACIP was passing his flight physical each year. He was receiving ACIP in March 1990 at which time he received and passed his required flight physical for 1990. In June 1990 he was diagnosed with a cyst on the brain and in July 1990, a biopsy was done. He was put on convalescent leave for 30 days and then returned to work. He then attempted to see the flight surgeon at his duty station, but was told that only emergency cases were being seen due to preparations being made for Operation Desert Shield/Storm.

In 1991, he called again to arrange for his 1991 flight physical which he did not pass. He was told that he did not qualify for flight pay due to the surgery (biopsy) on his brain that had been done in July 1990. In August 1991, Captain Corley had additional surgery to remove the cyst from his brain and he returned to duty in September 1991. At that time he was told that he had been disqualified from flight status and ACIP entitlement as of January 9, 1991, 6 months after his incapacitation on July 10, 1990, the date of the biopsy on the cyst. Thus, after the 6 month "grace period" for ACIP had ended, he had been receiving erroneous payments of ACIP.

By decision dated January 31, 1992, the Army determined that Captain Corley had been erroneously paid $5676.47 ACIP because he had failed to notify the flight surgeon at his duty station of his surgery. The Army concluded that Captain Corley was aware of the very strict rules for eligibility for ACIP and should have been more persistent in checking on his entitlement after his brain surgery.

Captain Corley appealed that determination to our Claims Group, which by settlement dated November 3, 1992, found that Captain Corley did not notify the appropriate officials of his surgery, although he was aware that his surgery would have some effect on his entitlement to ACIP. Thus, he should have pursued the matter further, and should have retained the erroneous funds for subsequent refund to the government.

Applicable regulations provide that if an officer is medically unfit for flying duty, he or she is disqualified for aviation service. Disqualification begins on the 1st day of the 6th month following the month of medical incapacitation. See Aviation Service of Rated Army Officers, AR 600-105, section 3-9 (1983). Standards for Medical Fitness are found in AR 40-501. Chapter 4 of that regulation sets forth medical fitness standards for flying duty and qualification for aviation service. Section 4-23 lists among the causes of medical unfitness "any penetration of the dura mater or brain substance." Thus, when Captain Corley had the biopsy surgery he became incapacitated and was disqualified for ACIP after January 8, 1991. More importantly, AR 600-105, section 3-6(h) needs as follows:

"h. Responsibility. Aviators are personally responsible to promptly report any treatment by a nonflight surgeon (AR-40-8) or to report any condition that may be cause for suspension from flying duty.

The Army notes that Captain Corley failed to inform the flight surgeon at his duty station of his treatment at Walter Reed and stresses that Captain Corley was aware of the strict rules for drawing ACIP.

Section 2774 of title 10 of the U.S.C. 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.

In the present case, Captain Corley should have been aware that the surgery could have an impact on his entitlement to ACIP, and taken further action to have the matter resolved. While he may have had some difficulty obtaining an appointment with the flight surgeon, he should have made some effort to have the information regarding his brain surgery noted by that office. Thus, we conclude that Captain Corley was not without "fault" in the matter and waiver is not appropriate. Accordingly, the denial of waiver is affirmed.