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Request for Reconsideration of Waiver Denial

B-198169 Oct 22, 1980
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Highlights

A Navy chief warrant officer requested reconsideration of a Claims Division denial of his application for waiver of the claim of the United States against him resulting from erroneous payments of separate rations made to him while he was concurrently receiving a basic allowance for subsistence as an officer. During 1976 and 1977, he received multiple overseas deployments and, during that time, was informed that he was suspected of being overpaid for a 10 month period, which was later confirmed. The overpayments were the result of his concurrently receiving payments for separate rations and basic allowance for subsistence as an officer. Since he had permanent officer status, he was only entitled to receive basic allowance for subsistence based on a monthly rate, and not separate rations. The member contended that each of the deployments and returns resulted in pay adjustments to his salary and that, therefore, it was not uncommon for his pay to fluctuate each time he received a paycheck. The applicable statute provides that GAO may waive, in whole or in part, a claim of the United States against a member of the uniformed services arising out of an erroneous payment of pay or allowances, if its collection would be against equity and good conscience, and not in the best interest of the United States. It further provides that the claim may not be waived if there exists an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the claimant. In this case, while the member did not regularly receive his leave and earnings statements (LES), the ones he did receive indicated that he was concurrently receiving payment for separate rations and a basic allowance subsistence as an officer. GAO has held that a person is at least partially at fault for his failure to examine the LES furnished to him which, had they been examined, would have alerted the recipient to the fact that erroneous payments were being made. Moreover, considering the member's permanent officer status and the length of his service at the time of the erroneous payments, the member should have known that he was not entitled to receive a basic allowance for subsistence as an officer. The fact that the overpayments were made through administrative error does not relieve an individual of responsibility to determine the true state of affairs in connection with overpayments. The action taken by the Claims Division denying waiver was sustained.

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