B-173565, OCT 27, 1971

B-173565, OCT 27, 1971

CIVILIAN PERSONNEL - OVERPAYMENTS - REQUEST FOR WAIVER SUSTAINING CLAIMS DIVISION DENIAL OF REQUEST FOR WAIVER OF ERRONEOUS OVERPAYMENTS OF PAY WHILE CLAIMANT WAS EMPLOYED AS A FIRE-FIGHTER AT THE ROBINS AFB, GEORGIA. WHERE AN ADMINISTRATIVE ERROR OCCURRED IN THE CODING OF CLAIMANT'S PAYROLL RECORDS RESULTING IN A NET OVERPAYMENT OF $107.53 FOR EACH OF 20 PAY PERIODS, THIS DIFFERENCE WAS AN AMOUNT SIGNIFICANT ENOUGH TO PUT A REASONABLE MAN ON NOTICE OF AN ERROR, NOTWITHSTANDING THE PAYCHECKS WERE MAILED DIRECTLY TO CLAIMANT'S BANK - FOR IT IS ASSUMED THAT EITHER A MONTHLY STATEMENT FROM THE BANK OR A STATEMENT FROM THE AGENCY AS TO THE AMOUNT OF THE PAYCHECK WAS FURNISHED CLAIMANT. THE REQUEST FOR WAIVER UNDER 5 U.S.C. 5584 IS THEREFORE DENIED.

TO MR. ARTHUR S. COOPER:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1971, REQUESTING A REVIEW OF THE ACTION OF OUR CLAIMS DIVISION ON MAY 10, 1971, IN DENYING YOUR REQUEST FOR WAIVER OF ERRONEOUS OVERPAYMENT OF PAY WHICH YOU RECEIVED FROM JULY 1968 TO AND INCLUDING A PART OF MAY 1969 AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE AT ROBINS AIR FORCE BASE, GEORGIA.

THE RECORD SHOWS THAT YOUR POSITION AT THE BASE WAS THAT OF A FIRE FIGHTER (GENERAL) AND THAT ON MARCH 31, 1968, YOU WERE PROMOTED FROM GRADE 4, STEP 10, AT $6,489 PER ANNUM TO GRADE 5, STEP 8, AT $6,867 PER ANNUM. ON JULY 7, 1968, YOUR SALARY WAS RAISED FROM $6,867 TO $7,073 UNDER THE AUTHORITY OF THE FEDERAL SALARY ACT OF 1967. DURING THIS CHANGE AN ADMINISTRATIVE ERROR OCCURRED IN THE CODING OF YOUR PAYROLL RECORDS WHICH RESULTED IN A COMPUTATION OF YOUR PAY ON THE BASIS OF 144 HOURS FOR EACH PAY PERIOD AT THE RATE OF YOUR BASIC HOURLY PAY OF YOUR GRADE INSTEAD OF ON THE BASIS OF 80 HOURS PER PAY PERIOD PLUS PREMIUM PAY AT THE RATE OF 25 PERCENT OF BASIC COMPENSATION ESTABLISHED FOR FIREFIGHTING PERSONNEL IN YOUR CATEGORY.

THE ADMINISTRATIVE OFFICE HAS INDICATED THAT YOU WERE OVERPAID $149.88 ON EACH OF 20 VOUCHERS WITH A NET DIFFERENCE OF $107.53 EACH PAY PERIOD, WHICH AMOUNTS TO A TOTAL OVERPAYMENT OF $2,997.60. THIS OVERPAYMENT WAS DISCOVERED BY A PAYROLL CLERK DURING A ROUTINE AUDIT OF PAYROLL RECORDS AND $568.07 OF THE OVERPAYMENT HAS ALREADY BEEN COLLECTED. THE REQUEST FOR WAIVER OF THE CLAIM OF THE UNITED STATES AGAINST YOU FOR ERRONEOUS OVERPAYMENT OF PAY WAS MADE UNDER 5 U.S.C. 5584 AS ADDED BY PUBLIC LAW 90- 616, APPROVED OCTOBER 21, 1968, ON THE GROUND THAT THERE WAS NO FRAUD INVOLVED ON YOUR PART IN THE RESULTING OVERPAYMENT SINCE YOUR PAYCHECK IS MAILED DIRECTLY TO YOUR BANK AND YOU WERE NOT AWARE OF THE OVERPAYMENT. OUR CLAIMS DIVISION FOUND THAT THE NET DIFFERENCE OF $107.03 PER PAY PERIOD CREDITED TO YOUR ACCOUNT WAS AN AMOUNT SIGNIFICANT ENOUGH TO PUT A REASONABLE MAN ON NOTICE OF AN ERROR IN HIS PAY. FAILURE TO TAKE NOTICE OF THE ERROR WAS VIEWED AS AN INDICATION OF FAULT ON YOUR PART AND WAIVER OF THE CLAIM OF THE UNITED STATES AGAINST YOU WAS DENIED.

YOU APPEAL THE DENIAL OF WAIVER BY OUR CLAIMS DIVISION ON THE SAME GROUND WHICH PROMPTED YOU TO REQUEST THE WAIVER. IN THAT CONNECTION THE FOLLOWING STATEMENT APPEARS IN OUR DECISION OF JUNE 11, 1969, B 165663, WITH REGARD TO THE REQUIREMENT THAT THERE BE NO INDICATION OF FAULT ON THE PART OF THE EMPLOYEE:

"'WHETHER AN EMPLOYEE WHO RECEIVES AN ERRONEOUS PAYMENT IS FREE FROM FAULT IN THE MATTER CAN ONLY BE DETERMINED BY A CAREFUL ANALYSIS OF ALL PERTINENT FACTS, NOT ONLY THOSE GIVING RISE TO THE OVERPAYMENT BUT THOSE INDICATING WHETHER THE EMPLOYEE REASONABLY COULD HAVE BEEN EXPECTED TO HAVE BEEN AWARE THAT AN ERROR HAD BEEN MADE. IF IT IS ADMINISTRATIVELY DETERMINED THAT A REASONABLE MAN, UNDER THE CIRCUMSTANCES INVOLVED, WOULD HAVE MADE INQUIRY AS TO THE CORRECTNESS OF THE PAYMENT AND THE EMPLOYEE INVOLVED DID NOT, THEN, IN OUR OPINION, THE EMPLOYEE COULD NOT BE SAID TO BE FREE FROM FAULT IN THE MATTER AND THE CLAIM AGAINST HIM SHOULD NOT BE WAIVED.'"

IN YOUR CASE IT WAS ASSUMED YOU EITHER RECEIVED A MONTHLY STATEMENT FROM YOUR BANK OR A STATEMENT FROM YOUR AGENCY AS TO THE AMOUNT OF YOUR PAYCHECK AND THAT CONSEQUENTLY A REASONABLE MAN UNDER THE CIRCUMSTANCES WOULD HAVE BEEN ON NOTICE OF THE ERROR.

ACCORDINGLY, THE DENIAL OF WAIVER OF THE CLAIM OF THE UNITED STATES AGAINST YOU FOR ERRONEOUS PAYMENT OF PAY BY OUR CLAIMS DIVISION WAS PROPER AND IT IS HEREBY SUSTAINED.