B-174131, OCT 19, 1971

B-174131, OCT 19, 1971

CIVILIAN PERSONNEL - EXCESS USE OF ANNUAL LEAVE - WAIVER OF INDEBTEDNESS DECISION AFFIRMING DENIAL OF WAIVER OF INDEBTEDNESS ARISING FROM AN OVERPAYMENT DUE TO USE OF ANNUAL LEAVE IN EXCESS OF THAT EARNED. WHILE PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, AUTHORIZES WAIVER OF A CLAIM OF THE GOVERNMENT ARISING AGAINST A PERSON BECAUSE OF ERRONEOUS PAYMENT OF PAY, IT HAS NO APPLICATION TO THE PRESENT CASE ARISING IN 1965; THE SALARY PAYMENTS WERE LEGAL AND PROPER WHEN MADE. FURTHER, $167.80 OF THE $194.64 OWED TO THE GOVERNMENT WAS NEVER ACTUALLY PAID CLAIMANT BUT WAS WITHHELD FROM FINAL PAY. FINALLY, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE COLLECTION WAS AGAINST EQUITY AND GOOD CONSCIENCE, AND NOT IN THE BEST INTERESTS OF THE GOVERNMENT. THE REQUEST FOR WAIVER IS THEREFORE DENIED.

TO MRS. MAXINE R. FRANKLIN:

WE REFER FURTHER TO YOUR LETTER OF JULY 30, 1971, WHEREIN YOU PROTEST THE ACTION TAKEN DENYING YOUR REQUEST FOR WAIVER OF INDEBTEDNESS ARISING FROM AN OVERPAYMENT DUE TO YOUR USE OF ANNUAL LEAVE IN EXCESS OF THAT EARNED.

AS YOU KNOW, YOUR CASE WAS THE SUBJECT OF TWO LETTERS ISSUED BY OUR CLAIMS DIVISION TO THE DEPARTMENT OF THE ARMY ON JANUARY 7 AND JUNE 10, 1971. AS SET FORTH IN THOSE LETTERS, YOU WERE ADVANCED ANNUAL LEAVE IN THE TOTAL AMOUNT ANTICIPATED TO ACCRUE FOR THE 1965 LEAVE YEAR. PRIOR TO YOUR RESIGNATION EFFECTIVE AUGUST 20, 1965 - SHOWN AS JULY 24, 1965, IN OUR LETTERS - YOU HAD USED ANNUAL LEAVE IN EXCESS OF THAT ACTUALLY ACCRUED TO YOUR CREDIT. THE OVERPAYMENT IN THE AMOUNT OF $194.64 WAS REPAID THROUGH SETOFF OF $167.80 DUE YOU AND BY YOUR REFUND OF $26.84.

YOU REQUESTED REPAYMENT OF THE AMOUNT REFUNDED UNDER PUBLIC LAW 90 616, APPROVED OCTOBER 21, 1968, 5 U.S.C. 5584, WHICH UNDER CERTAIN CIRCUMSTANCES AUTHORIZES WAIVER OF A CLAIM OF THE GOVERNMENT ARISING AGAINST A PERSON BECAUSE OF AN ERRONEOUS PAYMENT OF PAY. YOUR REQUEST HAS BEEN DENIED BECAUSE THE SALARY PAYMENTS WERE LEGAL AND PROPER WHEN MADE AND THUS PUBLIC LAW 90-616 HAS NO APPLICABILITY TO YOUR CASE. OUR CLAIMS DIVISION LETTER OF JUNE 10, 1971, IN RESPONSE TO YOUR REQUEST FOR REVIEW AFFIRMED THE DENIAL OF YOUR REQUEST FOR WAIVER. YOU AGAIN URGE THAT THE PRINCIPLE OF B-165989, FEBRUARY 5, 1969 - TO THE EFFECT THAT A PAYMENT BY REASON OF AN ADVANCE OF SICK LEAVE WHICH WAS VALID WHEN MADE IS NOT SUBJECT TO WAIVER - CITED IN OUR LETTERS OF JANUARY 7 AND JUNE 10, 1971, SHOULD NOT APPLY IN YOUR CASE. YOUR VIEW IN THIS RESPECT WAS FULLY CONSIDERED AND ANSWERED IN LETTER OF JUNE 10 AND THEREFORE NEED NOT BE REPEATED HERE.

IF, AS YOU CONTEND, YOUR REQUEST WAS OTHERWISE PROPER FOR CONSIDERATION UNDER THE WAIVER AUTHORITY, THERE IS NOTHING IN THE RECORD TO INDICATE THAT COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE GOVERNMENT - A REQUISITE UNDER THE STATUTE FOR WAIVER OF AN ERRONEOUS PAYMENT OF PAY. OF THE $194.64 WHICH REPRESENTED THE VALUE OF THE UNEARNED ANNUAL LEAVE YOU HAD USED, $167.80 WAS NEVER IN FACT PAID TO YOU AS IT WAS WITHHELD FROM YOUR FINAL PAY WHICH APPARENTLY COVERED AT LEAST A PORTION OF THE PERIOD YOU WERE ON LEAVE. THE BALANCE OF $26.84 AS NOTED ABOVE WAS REPAID BY YOUR PERSONAL CHECK ON THE DATE OF YOUR SEPARATION AS REQUIRED BY THE CIVIL SERVICE REGULATIONS, 5 CFR 630.209. ALL OF THE FOREGOING OCCURRED WITHIN THE PERIOD BEGINNING MAY 29, 1965, WHEN YOU WERE GRANTED SICK LEAVE (MATERNITY) AND ENDING AUGUST 20, 1965, THE EFFECTIVE DATE OF YOUR SEPARATION. IN SUCH CIRCUMSTANCES THE REQUISITES FOR WAIVER CONSIDERATION WERE NOT PRESENT AND, THEREFORE, THERE WOULD BE NO BASIS FOR WAIVER AS REQUESTED BY YOU.

THE DENIAL OF WAIVER IS SUSTAINED.