B-172615, MAY 25, 1971

B-172615, MAY 25, 1971

DEBT DUE THE UNITED STATES - REQUEST FOR WAIVER DECISION DENYING REQUEST FOR WAIVER OF $375 DEBT DUE THE U.S. INCIDENT TO ERRONEOUS DEDUCTIONS OF PAY WHILE CLAIMANT WAS ON ACTIVE DUTY U.S. NAVY. THE WAIVER STATUTE CONTAINED IN 5 U.S.C. 5584 REFERS TO CIVILIAN EMPLOYEES OF THE EXECUTIVE AGENCIES OF THE GOVERNMENT AND THE IMPLEMENTING REGULATIONS CONTAINED IN CHAPTER 1 OF TITLE 4, CODE OF FEDERAL REGULATIONS PROVIDES THAT 5 U.S.C. 5584 DOES NOT APPLY TO MEMBERS OF THE UNIFORMED SERVICE. THEREFORE WAIVER IS DENIED AND THE DEBT SHOULD BE LIQUIDATED AS SOON AS POSSIBLE.

TO MR. CHARLES A. PARDEE, JR.

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 7, 1970, RELATIVE TO YOUR REPORTED INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $375, WHILE ON ACTIVE DUTY AS FTG3, UNITED STATES NAVY.

BY LETTER DATED DECEMBER 3, 1968, YOU WERE ADVISED BY THE NAVY FINANCE CENTER, CLEVELAND, OHIO, THAT AN AUDIT WAS MADE OF YOUR PAY ACCOUNT PERTAINING TO YOUR SERVICE IN THE NAVY. THE AUDIT DISCLOSED THAT MONTHLY DEDUCTIONS SHOULD HAVE BEEN MADE IN THE AMOUNT OF $40.50 FOR THE PURCHASE OF A U.S. SAVINGS NOTE (FREEDOM BOND), FACE VALUE $50, AND $75 FOR THE PURCHASE OF TWO U.S. SAVINGS BOND, FACE VALUE $50 EACH. HOWEVER, THE PAY RECORDS SHOWED DEDUCTIONS WERE MADE EACH MONTH FOR ONE FREEDOM BOND AT $40.50 AND ONE SAVINGS BOND AT $37.50 DURING THE 10-MONTH PERIOD FROM SEPTEMBER 1967 THROUGH JUNE 1968. AS A RESULT, YOU WERE OVERPAID $37.50 PER MONTH OR A TOTAL OF $375.00.

REQUESTS WERE MADE FOR YOU TO LIQUIDATE YOUR INDEBTEDNESS WITHIN A REASONABLE TIME. HOWEVER, AT THAT TIME, YOU SAID YOU WERE GOING TO COLLEGE AND WOULD NOT BE ABLE TO MAKE ANY REPAYMENT UNTIL YOUR GRADUATION, WHICH YOU SAID WOULD BE IN JUNE 1971. THE INDEBTEDNESS WAS LATER REFERRED TO OUR OFFICE FOR COLLECTION ACTION.

IN RESPONSE TO AN INQUIRY FROM OUR CLAIMS DIVISION DATED JANUARY 29, 1970, YOU REPLIED IN LETTER DATED FEBRUARY 13, 1970, THAT YOU WOULD BE FINANCIALLY ABLE TO COMMENCE REPAYMENT OF THE DEBT ON SEPTEMBER 15, 1970. HOWEVER, IN A LETTER DATED JUNE 5, 1970, YOU ENCLOSED A COPY OF AN ARTICLE APPEARING IN THE MAY 1, 1970, ISSUE OF THE GOVERNMENT STANDARD, WHICH REPORTED THAT UNDER THE PROVISIONS OF PUBLIC LAW 90-616 (APPROVED OCTOBER 21, 1968, 82 STAT. 1212), FEDERAL EMPLOYEES WERE NO LONGER REQUIRED TO RETURN MONEY ERRONEOUSLY PAID THEM BY THE GOVERNMENT, AND REQUESTED THE COLLECTION OF YOUR INDEBTEDNESS BE WAIVED BY THE NAVY DEPARTMENT.

BY LETTER DATED SEPTEMBER 22, 1970, YOU WERE ADVISED THAT THE WAIVER STATUTE TO WHICH YOU REFERRED, PRESENTLY CONTAINED IN 5 U.S.C. 5584, AUTHORIZES THE WAIVER OF CLAIMS OF THE UNITED STATES ARISING OUT OF ERRONEOUS PAYMENTS TO CIVILIAN EMPLOYEES OF THE EXECUTIVE AGENCIES OF THE GOVERNMENT ON OR AFTER JULY 1, 1960. YOU WERE ADVISED FURTHER THAT, SINCE YOU HAD NOT BEEN EMPLOYED IN A CIVILIAN CAPACITY AT THE TIME THE OVERPAYMENT IN QUESTION OCCURRED, YOUR INDEBTEDNESS MAY NOT BE WAIVED UNDER THAT STATUTE.

IN YOUR LETTER DATED NOVEMBER 7, 1970, YOU ACKNOWLEDGE THAT YOU DO NOT FIT INTO THE TECHNICAL DEFINITION OF THE TERM "EMPLOYEE" AS USED IN 5 U.S.C. 5584. HOWEVER, YOU CLAIM RELIEF UNDER THE SPIRIT OF THE LAW OF THOSE PROVISIONS, IN THAT YOU WERE, IN EFFECT, AN EMPLOYEE OF THE FEDERAL GOVERNMENT AT THE TIME OF THE ALLEGED OVERPAYMENTS. YOU STATED FURTHER THAT WHILE IN THE SERVICE, THE NAVY FINANCE OFFICER HAD IGNORED YOUR SUGGESTION THAT YOUR PAYMENTS WERE TOO HIGH AND THAT YOU ARE NOW NOT COMPLETELY SURE YOU WERE EVER OVERPAID.

SECTION 5584(A) TITLE 5, U.S.C. PROVIDES IN PERTINENT PART THAT A CLAIM OF THE UNITED STATES AGAINST A PERSON ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY, ON OR AFTER JULY 1, 1960, TO AN EMPLOYEE OF AN EXECUTIVE AGENCY THE COLLECTION OF WHICH WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTEREST OF THE UNITED STATES, MAY BE WAIVED IN WHOLE OR IN PART, UNDER THE CONDITIONS THEREIN SPECIFIED AND IN ACCORDANCE WITH STANDARDS WHICH THE COMPTROLLER GENERAL MAY PRESCRIBE.

IMPLEMENTING REGULATIONS ARE PRESENTLY CONTAINED IN CHAPTER 1 OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS. SECTION 91.3(A) THEREOF PROVIDES THAT THE PROVISIONS OF PUBLIC LAW 90-616, 82 STAT. 1212 (5 U.S.C. 5584), DO NOT APPLY TO MEMBERS OF THE UNIFORMED SERVICES AS DEFINED IN 5 U.S.C. 2101(3), WHICH DEFINITION INCLUDES THE DEPARTMENT OF THE NAVY. SECTION 101(23) OF TITLE 37, UNITED STATES CODE, DEFINES THE TERM "MEMBER" AS A PERSON APPOINTED, ENLISTED IN OR CONSCRIPTED INTO A UNIFORMED SERVICE.

WHILE YOU SAY IN YOUR RECENT LETTER THAT YOU ARE NOT COMPLETELY SURE THAT YOU WERE OVERPAID, YOU INDICATE THAT YOU HAD SUGGESTED TO YOUR FINANCE OFFICER THAT YOUR PAYMENTS WERE TOO HIGH. FURTHERMORE, WE MUST RELY ON THE INFORMATION FURNISHED BY THE NAVY FINANCE CENTER THAT IT HAD DETERMINED ON THE BASIS OF AN AUDIT OF YOUR PAY ACCOUNT THAT THE OVERPAYMENT OF $375 WAS MADE IN THE MATTER REPORTED.

IT IS THEREFORE REQUESTED THAT A CHECK OR MONEY ORDER IN THE AMOUNT OF $375, PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" BE FORWARDED IN THE ENCLOSED SELF-ADDRESSED ENVELOPE. IF PAYMENT IN FULL CANNOT BE MADE, AN INITIAL PAYMENT MAY BE MADE AND A PLAN SUBMITTED FOR REPAYMENT OF THE BALANCE WITHIN A REASONABLE TIME.