B-176231, FEB 23, 1973

B-176231, FEB 23, 1973

CIVILIAN PERSONNEL - OVERPAYMENT OF COMPENSATION - EMPLOYEE FAULT DECISION AFFIRMING THE PRIOR DENIAL OF THE REQUEST FOR WAIVER OF INDEBTEDNESS OF ROBERT C. WALL RESULTING FROM ERRONEOUS OVERPAYMENTS REPRESENTING HEALTH INSURANCE PREMIUMS NOT DEDUCTED FROM HIS PAY. SINCE CLAIMANT DID NOT MAKE TIMELY INQUIRY CONCERNING THE DEDUCTION FROM HIS PAY, HAVING REGULARLY RECEIVED STATEMENTS OF EARNINGS AND DEDUCTIONS DURING THE PERIOD INVOLVED, IT CANNOT BE SAID THAT HE WAS WITHOUT FAULT IN THE MATTER AND CONSEQUENTLY WAIVER OF THE OVERPAYMENTS IS NOT JUSTIFIED.

TO MR. ROBERT C. WALL:

WE REFER TO YOUR LETTER OF NOVEMBER 20, 1972, FORWARDED HERE BY LETTER DATED NOVEMBER 21, 1972, REFERENCE NCF-123 7420/1-1W, BY THE NAVY ACCOUNTING AND FINANCE CENTER, WASHINGTON, D.C. YOU REQUEST RECONSIDERATION OF OUR DECISION DENYING YOUR REQUEST FOR WAIVER OF INDEBTEDNESS IN THE AMOUNT OF $585.70 UNDER THE AUTHORITY OF 5 U.S.C. 5584. THE INDEBTEDNESS RESULTED FROM ERRONEOUS OVERPAYMENTS REPRESENTING HEALTH INSURANCE PREMIUMS NOT DEDUCTED FROM YOUR PAY DURING THE PERIOD JULY 1, 1969, THROUGH DECEMBER 12, 1970.

YOU AGAIN ASSERT THAT WAIVER OF THE GOVERNMENT'S CLAIM TO OVERPAYMENTS SHOULD BE GRANTED BECAUSE THE ERROR IN QUESTION WAS OF ADMINISTRATIVE ORIGIN AND THAT YOU WERE IN NO WAY AT FAULT. IN SUPPORT OF THIS CONTENTION, YOU STATE IT WAS YOU AND NOT YOUR AGENCY WHO INITIALLY MADE INQUIRY INTO THE CORRECTNESS OF YOUR PAY THAT REVEALED THE PAY DISCREPANCIES IN YOUR FAVOR. YOU FURTHER CLAIM THAT FLUCTUATIONS IN YOUR PAY DURING THE PERIOD, RESULTING FROM TWO FEDERAL PAY RAISES AND A STEP INCREASE, CAUSED YOU TO BE UNAWARE OF PROPER DEDUCTIONS AT ANY GIVEN TIME.

THE CONDITIONS UNDER WHICH WAIVER OF GOVERNMENT CLAIMS ARISING OUT OF ERRONEOUS PAYMENTS MAY BE MADE ARE SET FORTH IN 4 CFR 91.5, WHICH READS IN PERTINENT PART:

"CLAIMS OF THE UNITED STATES ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY MAY BE WAIVED *** WHENEVER:

"(B) COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES. GENERALLY THESE CRITERIA WILL BE MET BY A FINDING THAT THE ERRONEOUS PAYMENT OF PAY OCCURRED THROUGH ADMINISTRATIVE ERROR AND THAT THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF CLAIM. ANY SIGNIFICANT UNEXPLAINED INCREASE IN AN EMPLOYEE'S PAY WHICH WOULD REQUIRE A REASONABLE MAN TO MAKE INQUIRY CONCERNING THE CORRECTNESS OF HIS PAY ORDINARILY WOULD PRECLUDE A WAIVER WHEN THE EMPLOYEE FAILS TO BRING THE MATTER TO THE ATTENTION OF APPROPRIATE OFFICIALS. WAIVER OF OVERPAYMENTS OF PAY UNDER THIS STANDARD NECESSARILY MUST DEPEND UPON THE FACTS EXISTING IN THE PARTICULAR CASE. ***"

IN THE PRESENT CASE THE RECORD INDICATES THAT, THROUGH ADMINISTRATIVE ERROR, DEDUCTIONS FOR YOUR HEALTH INSURANCE PREMIUMS WERE DISCONTINUED. THIS FACT WAS SHOWN ON YOUR STATEMENT OF EARNINGS AND DEDUCTIONS (NAVSANDA FORM 906) COMMENCING IN JULY 1969. IT MUST BE PRESUMED THAT YOU KNEW THE APPROXIMATE AMOUNT OF YOUR HEALTH INSURANCE PREMIUM, WHICH VARIED DURING THE PERIOD FROM $13.31 TO $16.64, SINCE YOU HAD BEEN CONTINUOUSLY ENROLLED IN THIS SAME GOVERNMENT HEALTH INSURANCE PROGRAM FROM JULY 1963. WHEN YOUR EARNINGS STATEMENTS BEGAN TO REFLECT NO DEDUCTIONS IN THE "HEALTH" BLOCK OR NO CONSEQUENTIAL DEDUCTIONS IN THE "OTHER" BLOCK (NEVER MORE THAN $3 DURING THE PERIOD), YOU WERE PLACED ON NOTICE THAT AN ERROR HAD BEEN MADE. ALTHOUGH THERE MAY HAVE BEEN FLUCTUATIONS IN THE AMOUNT OF PAY YOU RECEIVED IN VIEW OF PAY INCREASES DURING THE PERIOD IN QUESTION, THE STATEMENTS OF EARNINGS AND DEDUCTIONS WERE CONSTANT INSOFAR AS THEY INDICATED NO DEDUCTIONS WERE BEING MADE FOR YOUR HEALTH INSURANCE PREMIUM. THE RECORD SHOWS YOU FAILED TO QUESTION THE ACCURACY OF YOUR PAY FOR A PERIOD OF ALMOST 18 MONTHS, DURING WHICH TIME YOU CONTINUED TO RECEIVE STATEMENTS OF YOUR EARNINGS AND DEDUCTIONS ON A BIWEEKLY BASIS SHOWING THAT DEDUCTIONS NEVER EXCEEDED $3 IN THE "OTHER" BLOCK, AND THAT NO DEDUCTIONS WERE BEING MADE IN THE "HEALTH" BLOCK. THE RECORD DISCLOSES THE INQUIRY THAT FINALLY REVEALED YOUR PAY DISCREPANCIES WAS NOT MOTIVATED BY YOUR DESIRE TO ASCERTAIN THE CORRECTNESS OF YOUR PAY, BUT RATHER FROM A QUESTION ABOUT THE EXTENT OF YOUR INSURANCE COVERAGE. THIS CAME TO LIGHT WHEN YOU PRESENTED A CLAIM FOR REIMBURSEMENT OF CERTAIN MEDICAL EXPENSES TO THE INSURANCE COMPANY. IT APPEARS THAT THE MEDICAL CLAIMS INITIATED BY YOU DURING THE PERIOD IN QUESTION WERE PAID.

IN VIEW OF YOUR FAILURE TO MAKE TIMELY INQUIRY CONCERNING THE DEDUCTIONS FROM YOUR PAY, HAVING RECEIVED BIWEEKLY STATEMENTS OF EARNINGS AND DEDUCTIONS DURING THE PERIOD INVOLVED, IT CANNOT BE SAID THAT YOU WERE WITHOUT FAULT IN THE MATTER SO AS TO JUSTIFY WAIVER OF THE OVERPAYMENTS. ACCORDINGLY, WE FIND NO BASIS FOR REVERSING OUR EARLIER DECISION IN REFUSING TO GRANT THE WAIVER YOU REQUESTED.