B-174728, JAN 24, 1972
Highlights
THE STANDARDS UNDER 4 CFR 91-93 ALLOW WAIVER WHERE THE ERRONEOUS PAYMENT OCCURRED THROUGH ADMINISTRATIVE ERROR AND WHERE THERE IS NO INDICATION OF FAULT ON THE PART OF THE EMPLOYEE. CLAIMANT WAS AWARE OF THE OVERPAYMENT AND WAS THEREFORE OBLIGATED TO REFUND THE EXCESS WHEN THE ERROR WAS FINALLY CORRECTED. WOODWORTH: REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 20. THE RECORD INDICATES THAT IN 1967 YOU WERE EMPLOYED BY THE DEPARTMENT OF STATE. YOU WERE TRANSFERRED TO THE ARMY MAP SERVICE IN WASHINGTON. YOU NOW SEEK A WAIVER OF THE REPAYMENT AND REFUND OF THE AMOUNT YOU HAVE REPAID UNDER THE PROVISIONS OF 5 U.S.C. 5584. WAS GRANTED A WAIVER OF REPAYMENT BY THIS OFFICE. NOT ONLY WAS HE COMPLETELY UNAWARE OF THE DUAL PAYMENT PRIOR TO RECEIPT OF HIS BANK STATEMENT BUT ALSO HE COULD NOT DETERMINE FROM SUCH STATEMENT ANY INDICATION THAT AN OVERPAYMENT HAD OCCURRED.
B-174728, JAN 24, 1972
CIVILIAN EMPLOYEE - ERRONEOUS OVERPAYMENT OF PAY - REQUESTED WAIVER SUSTAINING THE DENIAL BY CLAIMS DIVISION OF A REQUEST FOR WAIVER OF OVERPAYMENTS OF PAY TOTALING $2,318.80 TO MR. HERBERT V. WOODWORTH, IN CONNECTION WITH HIS TRANSFER FROM THE AGENCY FOR INTERNATIONAL DEVELOPMENT TO THE ARMY MAP SERVICE. THE STANDARDS UNDER 4 CFR 91-93 ALLOW WAIVER WHERE THE ERRONEOUS PAYMENT OCCURRED THROUGH ADMINISTRATIVE ERROR AND WHERE THERE IS NO INDICATION OF FAULT ON THE PART OF THE EMPLOYEE. IN THE INSTANT CASE, CLAIMANT WAS AWARE OF THE OVERPAYMENT AND WAS THEREFORE OBLIGATED TO REFUND THE EXCESS WHEN THE ERROR WAS FINALLY CORRECTED. ACCORDINGLY, THE PREVIOUS DENIAL OF CLAIMANT'S REQUEST FOR WAIVER MUST BE AFFIRMED.
TO MR. HERBERT V. WOODWORTH:
REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 20, 1970, AND NOVEMBER 12, 1971, WHEREIN YOU ASK FOR RECONSIDERATION OF THE ACTION OF OUR CLAIMS DIVISION WHICH, BY LETTER OF OCTOBER 23, 1970, TO THE DEPARTMENT OF THE ARMY, DENIED YOUR REQUEST FOR WAIVER OF ERRONEOUS PAYMENT OF PAY AND REFUND OF AMOUNTS REPAID.
THE RECORD INDICATES THAT IN 1967 YOU WERE EMPLOYED BY THE DEPARTMENT OF STATE, AGENCY FOR INTERNATIONAL DEVELOPMENT, IN KHARTOUM, SUDAN, BUT AS A RESULT OF EMERGENCY CONDITIONS IN THE MIDDLE EAST, YOU WERE TRANSFERRED TO THE ARMY MAP SERVICE IN WASHINGTON, D.C., ON SEPTEMBER 17, 1967. DUE TO AN ADMINISTRATIVE ERROR, HOWEVER, YOU CONTINUED TO RECEIVE SALARY FROM THE DEPARTMENT OF STATE FROM SEPTEMBER 17, 1967, TO DECEMBER 2, 1967, RESULTING IN A DUPLICATE PAYMENT OF SALARY IN THE GROSS AMOUNT OF $2,318.80. YOU NOW SEEK A WAIVER OF THE REPAYMENT AND REFUND OF THE AMOUNT YOU HAVE REPAID UNDER THE PROVISIONS OF 5 U.S.C. 5584, AS ADDED BY PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968. YOU NOTE THAT MR. WILLIAM N. BURGE, JR., ALSO A DUAL PAYMENT RECIPIENT UNDER FACTS AND CIRCUMSTANCES SIMILAR TO YOURS, WAS GRANTED A WAIVER OF REPAYMENT BY THIS OFFICE.
IN OUR DECISION B-172073, AUGUST 5, 1971, IN WHICH WE WAIVED COLLECTION OF THE ERRONEOUS PAYMENT MADE TO MR. BURGE, NOT ONLY WAS HE COMPLETELY UNAWARE OF THE DUAL PAYMENT PRIOR TO RECEIPT OF HIS BANK STATEMENT BUT ALSO HE COULD NOT DETERMINE FROM SUCH STATEMENT ANY INDICATION THAT AN OVERPAYMENT HAD OCCURRED. YOUR STATEMENT OF APRIL 15, 1970, HOWEVER, INDICATES THAT AFTER YOU WERE TRANSFERRED TO THE ARMY MAP SERVICE AND ASSIGNED TO TEMPORARY DUTY IN IRAN YOU "NOTICED THE DUAL PAYMENT AND ALSO NOTICED THAT THE PAY RECORD CARD COMING OUT OF OMAHA DID NOT REFLECT MY PROPER PAY STATUS." YOU INDICATE THAT AT THAT TIME YOU WROTE MR. ROBERT D. ROWE, THEN CHIEF OF THE GEODETIC SURVEYS BRANCH OF THE ARMY MAP SERVICE, CONCERNING THE OVERPAYMENT.
THE STANDARDS FOR WAIVER OF CLAIMS ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY ARE FOUND IN 4 CFR 91-93, THE IMPLEMENTING REGULATIONS TO PUBLIC LAW 90-616. SECTION 91.5(B) PROVIDES FOR WAIVER WHERE:
"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 *** . WAIVER OF OVERPAYMENTS OF PAY UNDER THIS STANDARD NECESSARILY MUST DEPEND UPON THE FACTS EXISTING IN THE PARTICULAR CASE.
WE HAVE CONSISTENTLY HELD THAT A WAIVER IN CASES WHERE AN EMPLOYEE KNOWS THAT HE IS BEING OVERPAID IS PRECLUDED UNDER THESE STANDARDS SINCE, THOUGH AN EMPLOYEE PROMPTLY NOTIFIES HIS SUPERVISOR OF THE ERROR, IT CANNOT BE SAID THAT HE IS WITHOUT FAULT WHEN HE CONTINUES TO ACCEPT THE ERRONEOUS PAYMENTS. B-174059, OCTOBER 8, 1971; B-173386, OCTOBER 8, 1971; B-171944, MARCH 23, 1971.
FURTHERMORE, AN EMPLOYEE WHO KNOWS THAT HE IS BEING OVERPAID, ALTHOUGH HE IN GOOD FAITH REPORTS THE ERROR, CANNOT REASONABLY EXPECT TO RETAIN THE EXCESS PAY WITHOUT BEING OBLIGATED TO MAKE REFUND THEREOF WHEN THE ERROR IS FINALLY CORRECTED.
ACCORDINGLY, YOUR REQUEST FOR WAIVER WAS PROPERLY DENIED BY OUR CLAIMS DIVISION.