B-174531, JAN 5, 1972

B-174531, JAN 5, 1972

CIVILIAN EMPLOYEES - OVERPAYMENT - WAIVER REQUESTED DECISION GRANTING WAIVER OF AN ERRONEOUS OVERPAYMENT OF PAY AND ALLOWANCES MADE BY THE DEPARTMENT OF THE ARMY TO OLIVER KENNEDY. SINCE SPECIAL CIRCUMSTANCES EXIST TO SHOW THAT CLAIMANT COULD NOT REASONABLY HAVE BEEN EXPECTED TO BE AWARE OF THE OVERPAYMENT AT THE TIME IT OCCURRED, THE OVERPAYMENT IS WAIVED.

TO MR. OLIVER KENNEDY:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 11, 1971, WITH ENCLOSURES, APPEALING THE ACTION OF OUR CLAIMS DIVISION IN LETTER OF SEPTEMBER 28, 1971, TO THE FINANCE CENTER, U.S. ARMY, DENYING WAIVER, UNDER THE AUTHORITY OF 5 U.S.C. 5584, OF AN ERRONEOUS PAYMENT OF PAY AND ALLOWANCES RECEIVED BY YOU AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY IN KOREA. THE NET OVERPAYMENT WAS REPAID BY YOU TO THE DEPARTMENT OF THE ARMY.

THE RECORD SHOWS THAT YOU WERE REASSIGNED FROM A POSITION IN KOREA TO THE OFFICE OF THE JUDGE ADVOCATE, BAILEY'S CROSS ROADS, VIRGINIA, EFFECTIVE OCTOBER 19, 1969. INCIDENT TO THIS TRANSFER, YOU WERE OVERPAID LIVING QUARTERS ALLOWANCE AND POST DIFFERENTIAL ALLOWANCE TOTALING $112.77. THAT AMOUNT, $80.80 REPRESENTING POST DIFFERENTIAL ALLOWANCE WAS WAIVED. QUARTERS ALLOWANCES ARE NOT "PAY" WITHIN THE MEANING OF THE WAIVER LEGISLATION, AND THEREFORE THE BALANCE WAS NOT PROPER FOR WAIVER CONSIDERATION.

WITH RESPECT TO THE OVERPAYMENT OF SALARY, AND CONCERNING WHICH YOU REQUEST RECONSIDERATION OF THE ACTION OF THIS OFFICE DENYING WAIVER, THE RECORD SHOWS THAT YOU WERE PAID 40 HOURS BASIC SALARY FOR THE PERIOD OCTOBER 19 THROUGH OCTOBER 25, 1969. INASMUCH AS THE EFFECTIVE DATE OF YOUR REASSIGNMENT WAS OCTOBER 19, YOU WERE NOT ENTITLED TO PAY FOR THAT PERIOD FROM YOUR FORMER EMPLOYER. THE OVERPAYMENT WAS IN THE GROSS AMOUNT OF $404 WHICH, AFTER ADJUSTMENT OF RETIREMENT, TAX, HEALTH BENEFITS, AND INSURANCE DEDUCTIONS, AMOUNTS TO A NET OVERPAYMENT OF $270.20.

YOU STATE THAT AT THE TIME OF THE OVERPAYMENT, YOUR SALARY CHECKS WERE BEING MAILED DIRECTLY TO YOUR BANK WHICH FORWARDED DEPOSIT NOTIFICATION TO YOUR ADDRESS IN KOREA. NOTIFICATION WAS THEN FORWARDED TO YOU AT YOUR TEMPORARY ADDRESS IN THE UNITED STATES. IN FURTHER EXPLANATION OF YOUR FAILURE TO NOTE THAT YOU HAD RECEIVED AN OVERPAYMENT, YOU STATE:

"DURING THE PERIOD SEPTEMBER THROUGH NOVEMBER 1969, I WAS LIVING AT MY MOTHER-IN-LAW'S HOUSE, OUT OF SUITCASES, WITH THREE CHILDREN, ONE DOG AND A CAT. AS FOR FINANCES, AND ACCOUNTING, I HAD JUST CHANGED PAYROLL OFFICES WHICH RESULTED IN THE USUAL TIME LAG IN RECEIVING CHECKS FROM THE NEW OFFICE AND THE OVERLAP FROM THE OLD. IN ADDITION, I BOUGHT A CAR, HOUSE, FURNITURE, SCHOOL CLOTHES, ETC., AND OVER A 45 TO 60 DAY PERIOD, I MADE CASH OUTLAYS OF OVER $20,000. I RESPECTFULLY SUBMIT THAT ALTHOUGH IT COULD BE ARGUED THAT THAT ELUSIVE ABOMINATION A 'REASONABLE MAN' SHOULD HAVE MADE INQUIRY ABOUT AN EXTRA DEPOSIT, THE TEST IS NOT FOR APPLICATION BECAUSE ON 17 JANUARY 1970 MY 14 YEAR OLD DAUGHTER WAS MURDERED WHICH MADE ME SLIGHTLY INDIFFERENT TO MATTERS FINANCIAL IN PARTICULAR AND THE WORLD IN GENERAL."

IN VIEW OF THE ADDITIONAL INFORMATION, AS WELL AS THE OTHER FACTS OF RECORD, IT IS NOW OUR OPINION THAT YOU COULD NOT REASONABLY HAVE BEEN EXPECTED TO BE AWARE OF THE OVERPAYMENT AT THE TIME IT OCCURRED. THEREFORE, WE HEREBY WAIVE THE OVERPAYMENT OF BASIC SALARY OF $404.

A COPY OF THIS LETTER IS BEING FURNISHED THE COMMANDING GENERAL, FINANCE CENTER, U.S. ARMY, AUTHORIZING REFUND TO YOU OF THE AMOUNT PREVIOUSLY COLLECTED AS AN OVERPAYMENT OF SALARY.