B-176546, SEP 8, 1972

B-176546, SEP 8, 1972

CIVILIAN EMPLOYEE - WAIVER OF OVERPAY - LEAVE AND EARNINGS STATEMENT DENIAL OF REQUEST FOR RECONSIDERATION OF A SETTLEMENT WHICH DENIED A REQUEST BY PAUL DEVERA FOR WAIVER UNDER 5 U.S.C. 5584 OF AN ERRONEOUS PAYMENT OF PAY WHILE EMPLOYED BY THE NAVAL AIR STATION, NORTH ISLAND, CALIF. A WAIVER OF INDEBTEDNESS WILL NOT BE GRANTED WHEN THE RECORD INDICATES THAT THE EMPLOYEE DID NOT VERIFY THE ENTRIES ON HIS BIWEEKLY LEAVE AND EARNINGS STATEMENT. B-165663, JANUARY 30, 1969. ACCORDINGLY, THE PRIOR SETTLEMENT IS AFFIRMED.

TO NAVAL AIR REWORK FACILITY:

THIS REFERS TO YOUR LETTER DATED MAY 23, 1972, REFERENCE 200/RIM:CM, SER- 2431, REQUESTING RECONSIDERATION OF THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING THE REQUEST BY MR. PAUL DEVERA FOR WAIVER, UNDER THE AUTHORITY OF 5 U.S.C. 5584, OF AN ERRONEOUS PAYMENT OF PAY WHILE HE WAS EMPLOYED BY THE NAVAL AIR STATION, NORTH ISLAND, SAN DIEGO, CALIFORNIA.

AS INDICATED BY THE CLAIM SETTLEMENT DATED NOVEMBER 17, 1971, THE RECORD SHOWS THAT MR. DEVERA APPLIED FOR HEALTH INSURANCE UNDER THE SERVICE BENEFIT PLAN, HIGH OPTION, CODE 102, EFFECTIVE APRIL 9, 1967. UPON HIS CONVERSION TO TEMPORARY APPOINTMENT ON JANUARY 16, 1970, HE WAS CHANGED FROM AN AIRFRAMES WORKER AT $4.14 PER HOUR TO A MESSENGER (MOTOR VEHICLE OPERATOR) GS-2, STEP 10, AT $2.72 PER HOUR. DUE TO ADMINISTRATIVE ERROR, MR. DEVERA'S DEDUCTIONS FOR HEALTH INSURANCE COVERAGE WERE DISCONTINUED AT THAT TIME.

THE NONDEDUCTION FOR HEALTH BENEFITS WAS DISCOVERED ON JUNE 30, 1971. A RESULT OF THE ADMINISTRATIVE ERROR, NO DEDUCTIONS WERE MADE FOR THE PERIOD OF FEBRUARY 2, 1970, THROUGH JUNE 26, 1971, FOR A TOTAL OVERPAYMENT OF $501.39.

MR. DEVERA INDICATED THAT HE WAS NOT AWARE OF THE OVERPAYMENT SINCE HE HAD RECEIVED A VERY SUBSTANTIAL DECREASE IN SALARY ON JANUARY 16, 1970. HE ALSO STATED THAT HE HAD NOT REVIEWED HIS STATEMENTS OF EARNINGS TO THE EXTENT THAT HE HAD NOTICED A NONDEDUCTION FOR HEALTH BENEFITS. MR. DEVERA RECEIVED THESE LEAVE AND EARNINGS STATEMENTS WITH HIS BIWEEKLY PAYCHECKS.

IT APPARENTLY IS YOUR POSITION THAT WAIVER OF THE INDEBTEDNESS SHOULD BE GRANTED ON THE BASIS THAT DURING THE PERIOD WHEN THE ERRONEOUS PAYMENTS WERE MADE MR. DEVERA WAS NOT APPRISED OF HIS RESPONSIBILITY TO REVIEW THE BIWEEKLY LEAVE AND EARNINGS STATEMENTS GIVEN TO HIM AT THAT TIME. YOU HAVE FURTHER INDICATED YOUR DOUBT AS TO WHETHER THE "AVERAGE EMPLOYEE" WOULD HAVE AN UNDERSTANDING OF THE ENTRIES MADE THEREON.

IN B-165663, JANUARY 30, 1969; B-173854, SEPTEMBER 17, 1971; B 173977, SEPTEMBER 14, 1971, AND B-172117, MAY 12, 1971, COPIES ENCLOSED, WE RULED THAT A WAIVER OF INDEBTEDNESS TO THE GOVERNMENT WOULD NOT BE GRANTED WHEN THE RECORD INDICATED THAT THE EMPLOYEE DID NOT VERIFY THE ENTRIES ON HIS BIWEEKLY LEAVE AND EARNINGS STATEMENTS. IN SO HOLDING WE INDICATED THAT THE SUBJECT STATEMENTS ARE FURNISHED FOR THE EXPRESS PURPOSE OF PERMITTING AN EMPLOYEE TO VERIFY THE DEDUCTIONS BEING MADE FROM HIS SALARY AND THE FAILURE TO DO SO CONSTITUTES FAULT ON THE PART OF THE EMPLOYEE. THE ABOVE DECISIONS ARE FOR APPLICATION TO MR. DEVERA'S CASE REGARDLESS OF THE FACT THAT HIS AGENCY DID NOT SPECIFICALLY ADVISE HIM TO REVIEW HIS BIWEEKLY STATEMENTS.

IN LIGHT OF THE CIRCUMSTANCES SURROUNDING THE PRESENT CASE, WAIVER OF INDEBTEDNESS IS NOT JUSTIFIED UNDER THE PROVISIONS OF 5 U.S.C. 5584. THEREFORE FIND NO BASIS FOR REVERSING THE DETERMINATION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN REFUSING TO GRANT THE WAIVER MR. DEVERA REQUESTED.