Matter of: Private John F. Barker, USMC File: B-253557 Date: December 3, 1993

B-253557: Dec 3, 1993

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Action was not taken to implement sentence resulting in erroneous payment. Sec. 2774 since member was aware of erroneous payments at time of receipt. Member's argument that special court-martial sentence was improper because it was not endorsed by commanding officer is without merit since Uniform Code of Military Justice contains no such requirement and time for appeal has passed. The debt arose when the sentence of a special court-martial regarding a reduction in grade and forfeiture of pay was not carried out. The denial of waiver by our Claims Group is affirmed. Lance Corporal John Barker was tried by a special court-martial on July 30. His rank was not reduced and the forfeiture of pay was not executed.

Matter of: Private John F. Barker, USMC File: B-253557 Date: December 3, 1993

MILITARY PERSONNEL Pay Overpayments Error detection Debt collection Waiver Sentence of special court-martial included reduction in rank and loss of portion of pay but due to administrative error, action was not taken to implement sentence resulting in erroneous payment. Resulting debt may not be waived under 10 U.S.C. Sec. 2774 since member was aware of erroneous payments at time of receipt. Moreover, member's argument that special court-martial sentence was improper because it was not endorsed by commanding officer is without merit since Uniform Code of Military Justice contains no such requirement and time for appeal has passed.

DECISION

Lance Corporal John Barker was tried by a special court-martial on July 30, 1986. He received a sentence of 3 months of confinement, reduction in rank to E-1 (Private), and forfeiture of 2/3 of his pay for 6 months. He served the 3 months confinement but, due to administrative error, his rank was not reduced and the forfeiture of pay was not executed.

Private Barker was discharged from the Marine Corps with an entitlement to Disability Severance Pay. At the time of his discharge, he had disability severance credits totalling $2,937.20. This amount was offset against his debt of $3,317.80, leaving a debt of $380.60. However, he has requested waiver of the entire amount of the debt.

Our Claims Group, by settlement certificate dated July 27, 1992, denied his request for waiver stating that since Private Barker was aware of the erroneous payments from the failure to reduce his pay, waiver was not appropriate. Charles A. Ryon, Sr., B-234731, June 19, 1989. Private Barker requested reconsideration of the matter and it was forwarded to this Office.

Private Barker's only basis of appeal is his belief that his court-martial was not legal because his commanding officer did not endorse the findings of the court.

We point out that our Office is without authority to review court-martials and the time for an appeal of Private Barker's court-martial and sentence has long since passed. Article 69 of the Uniform Code of Military Justice (UCMJ) (section 869 of title 10 of the United States Code (U.S.C.)) requires applications for appeals to be filed within 2 years of the approval of the sentence by the convening authority.

Articles 16 and 19 of the UCMJ (10 U.S.C. Secs. 816 and 819) provide authority for special court-martials. After a court-martial sentence has been handed down, Article 60 provides for the findings and sentence of the court-martial to be reported to the convening authority and provides authority for any necessary action if the findings and sentence are not approved by the convening authority. Article 64 (10 U.S.C. Sec. 864) provides for further review by a judge advocate.

Here, the copy of the court-martial order shows that the findings and sentence of the special court-martial were approved by the convening authority and were then reviewed pursuant to Article 64 of the UCMJ. We are unaware of a law or regulation which requires approval of a special court-martial by the commanding officer of the accused.

Section 2774 of title 10, United States Code, 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.

As noted by the Claims Group, Private Barker was aware of the sentence imposing forfeiture of pay and was aware that the forfeiture of pay was not being executed because there was no reduction in his pay. While he attempted to notify the proper authorities, at no time was he led to believe that he was entitled to retain that pay. Thus, it cannot be said that he was without "fault" in the matter, and waiver is therefore not appropriate.

Accordingly, the denial of waiver is affirmed.