B-176889, DEC 21, 1972

B-176889, DEC 21, 1972

CIVILIAN EMPLOYEE - WAIVER OF INDEBTEDNESS - EMPLOYEE RESPONSIBILITY DECISION DENYING WAIVER OF INDEBTEDNESS REPRESENTING A WAGE OVERPAYMENT OF $820 MADE TO FRED NAKAGAWA, A TEACHER AT THE DRAKE MIDDLE SCHOOL, APO SAN FRANCISCO. SINCE THE ERRONEOUS PAYMENT AMOUNTED TO AN INCREASE OF $40 PER PAY PERIOD, CLAIMANT SHOULD HAVE BEEN AWARE OF THE DIFFERENCE BETWEEN THE INCREASED PAY AND THE RATE OF PAY NORMALLY DUE HIM. ACCORDINGLY, CLAIMANT'S FAILURE TO ENSURE THAT THE AMOUNT STATED ON HIS PAYCHECK WAS CORRECT PRECLUDES A WAIVER OF HIS INDEBTEDNESS.

TO MR. FRED NAKAGAWA:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 15, 1972, WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING YOUR REQUEST FOR WAIVER, UNDER THE AUTHORITY OF 5 U.S.C. 5584, AS ADDED BY PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, OF AN ERRONEOUS PAYMENT OF PAY IN THE AMOUNT OF $820 WHILE EMPLOYED AS A TEACHER AT DRAKE MIDDLE SCHOOL, APO SAN FRANCISCO 96299.

THE RECORD INDICATES THAT DURING THE 1969-70 SCHOOL YEAR (AUGUST 18, 1969 -MAY 30, 1970) YOU WERE TO RECEIVE A SALARY OF $8,415 OR $40.07 PER DAY. HOWEVER, DUE TO AN ADMINISTRATIVE ERROR YOU WERE PAID AT A DAILY RATE OF $44.07 (AN OVERPAYMENT OF $4 PER DAY), WHICH RESULTED IN A GROSS OVERPAYMENT OF $820 FOR THE SUBJECT SCHOOL YEAR.

THE RECORD FURTHER SHOWS THAT IN THE PREVIOUS 2 SCHOOL YEARS YOU RECEIVED GROSS SALARY INCREASES OF APPROXIMATELY $600 AND $700 A SCHOOL YEAR WHICH RESULTED IN NET BIWEEKLY PAY INCREASES OF $18.64 AND $14.79, RESPECTIVELY. HOWEVER, IN SCHOOL YEAR 1969-70, YOUR NET BIWEEKLY PAY INCREASED BETWEEN $49.28 AND $52.99 (DUE TO CHANGES IN DEDUCTIONS) WHILE THE GROSS SALARY INCREASE FOR THE SCHOOL YEAR WAS ONLY TO BE $800. ALTHOUGH YOU ALLEGE THAT YOU WERE UNAWARE OF THIS, THE INCREASE IS IN EXCESS OF 100 PERCENT OVER THE DIFFERENCE IN NET PAY FOR THE IMMEDIATELY PRECEDING 2 SCHOOL YEARS.

IT IS APPARENTLY YOUR POSITION THAT YOU WERE TOTALLY UNAWARE THAT AN ERROR HAD BEEN MADE WITH RESPECT TO YOUR PAY ENTITLEMENTS. FURTHERMORE YOU HAVE INDICATED A LACK OF FULL UNDERSTANDING OF THE ENTRIES MADE ON THE LEAVE AND EARNINGS STATEMENTS GIVEN TO YOU WITH EACH PAYCHECK. FINALLY, IT IS YOUR POSITION THAT AS OF THE TIME THAT YOU MADE INQUIRY TO THE CHIEF, CIVILIAN PAY UNIT, AS TO THE CORRECTNESS OF YOUR PAY FOR THE 1970- 71 SCHOOL YEAR, SUCH INDIVIDUAL WAS UNAWARE OF THE ERROR WHICH HAD BEEN MADE.

NOTWITHSTANDING YOUR ASSERTION OF A LACK OF UNDERSTANDING CONCERNING YOUR LEAVE AND EARNINGS STATEMENTS WE NOTE THAT ON AT LEAST TWO OCCASIONS YOU HAVE EVINCED A WORKING KNOWLEDGE OF THE IMPORT OF THE ENTRIES MADE THEREON. FOR EXAMPLE, IN YOUR LETTER TO OUR OFFICE DATED DECEMBER 5, 1971, YOU STATED THAT:

"*** I HAD TO TAKE A PERSONAL LEAVE LAST WEEK TO TAKE MY EARNING AND LEAVE STATEMENT CARD TO THE PERSONNEL OFFICE AT TACHIKAWA AIR BASE BECAUSE I SUDDENLY REALIZED THAT I HAVE BEEN CHARGED 10 1/2 DAYS SICK LEAVE DURING MY 7 1/2 YEARS IN JAPAN. ***"

IN ADDITION WE NOTE THAT YOU STATED IN YOUR APPEAL LETTER OF MAY 15, 1972, AS FOLLOWS:

"MR. BEVIS, CHIEF, CIVILIAN PAY UNIT, 475TH AIR BASE WING, (PACAF), APO SF 96328, WAS NOT AWARE OF THIS ERROR HIMSELF UNTIL I CALLED HIS OFFICE TO INQUIRE WHY MY PAY FOR THE NEW SCHOOL YEAR WAS NOT MUCH DIFFERENT FROM LAST YEAR'S PAY. ***"

IT IS OUR VIEW THAT UNDER THE PARTICULAR CIRCUMSTANCES HERE INVOLVED YOU SHOULD HAVE RECOGNIZED THE ERROR IN YOUR OWN RATE OF PAY. AS A FEDERAL EMPLOYEE WITH AT LEAST 7 1/2 YEARS SERVICE (IN JAPAN ALONE) AS OF THE TIME OF ERROR YOU COULD REASONABLY HAVE BEEN EXPECTED TO BE AWARE OF THE GROSS PAY PER PAY PERIOD PROPERLY DUE YOU. THIS IS ESPECIALLY SO WHERE THE ERROR AMOUNTED TO $40 PER PAY PERIOD, AND CONSIDERING ALSO THAT THE FOLLOWING YEAR WHEN THE DIFFERENCE WAS ONLY $1.40 PER PAY PERIOD YOU BROUGHT THIS TO THE ATTENTION OF THE PAYROLL OFFICE.

IN ADDITION, THE BIWEEKLY RATE OF PAY OF 1968-69, THE SCHOOL YEAR WHICH IMMEDIATELY PRECEDED THE PERIOD IN QUESTION, WHEN COMPARED TO THE ERRONEOUS PAYMENTS RECEIVED IN THE 1969-70 SCHOOL YEAR OUGHT TO HAVE ALERTED YOU TO THE ADVISABILITY OF CHECKING TO ENSURE THAT THE AMOUNT REFLECTED IN YOUR PAYCHECK WAS CORRECT. YOUR FAILURE TO DO SO CONSTITUTES FAULT ON YOUR PART THEREBY PRECLUDING WAIVER OF THE SUBJECT INDEBTEDNESS.

ACCORDINGLY, ON THE BASIS OF THE FOREGOING, THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IS SUSTAINED.