B-181754, JAN 22, 1975

B-181754, JAN 22, 1975

EMPLOYEE WHO RECEIVED TWO SEPARATE STANDARD FORMS 50 STATING THAT AS FORMER EMPLOYEE SHE IS ENTITLED TO SEVERANCE PAY, AND WHO MADE ALL REASONABLE INQUIRIES AS TO ENTITLEMENT TO SUCH CONTINUED PAYMENT UPON BEING EMPLOYED AT ANOTHER GOVERNMENT INSTALLATION, WOULD BE ENTITLED TO WAIVER OF ERRONEOUS PAYMENTS UNDER SUBSECTION 91.5 OF TITLE 4, CODE OF FEDERAL REGULATIONS.

WINNIFRED L. COX - WAIVER OF ERRONEOUS PAYMENT OF SEVERANCE PAY.:

THIS ACTION IS AN APPEAL FROM LETTER OF JANUARY 22, 1973, OF OUR TRANSPORTATION AND CLAIMS DIVISION, WHICH DENIED WAIVER UNDER AUTHORITY OF SECTION 5584 OF TITLE 5, U.S.C. OF A CLAIM OF THE UNITED STATES AGAINST MRS. WINNIFRED L. COX FOR ERRONEOUS PAYMENT OF SEVERANCE PAY.

THE RECORD SHOWS THAT MRS. COX WAS EMPLOYED AS AN AMMUNITION INSPECTOR AT THE LONE STAR ARMY AMMUNITION PLANT, TEXARKANA, TEXAS, UNTIL SHE WAS SEPARATED FROM HER POSITION ON JANUARY 27, 1971, DUE TO A REDUCTION IN FORCE. ON JANUARY 28, 1971, MRS. COX WAS APPOINTED AS A TEMPORARY LABORER AT THE RED RIVER ARMY DEPOT, TEXARKANA, TEXAS, FOR A PERIOD NOT TO EXCEED JUNE 29, 1971. BOTH ACTIONS RESULTED IN THE ISSUANCE OF A STANDARD FORM 50, WHICH CLEARLY ADVISED MRS. COX OF HER RIGHT TO RECEIVE AND RETAIN HER SEVERANCE PAY ENTITLEMENT.

WHILE THE FACTS ARE CLEAR THAT MRS. COX ERRONEOUSLY RECEIVED $724.20, THE RECORD CONTAINS DISCREPANCIES CONCERNING MRS. COX'S INSTRUCTION AS TO HER RIGHT TO SEVERANCE PAY UPON BEING SEPARATED. IT IS UNDISPUTED THAT PRIOR TO SEPARATION FROM HER INITIAL PLACE OF EMPLOYMENT, MRS. COX AND OTHERS SIMILARLY SITUATED, WERE INSTRUCTED AS TO THEIR RIGHT TO SEVERANCE PAY AND UNDER WHAT CONDITIONS SUCH RIGHT WOULD CEASE. HOWEVER, UPON HER TAKING TEMPORARY EMPLOYMENT, SHE WAS INFORMED, THROUGH A STANDARD FORM 50 DATED JANUARY 28, 1971, THAT SHE RETAINED HER RIGHT TO SEVERANCE PAY.

THE STATEMENT CONTAINED IN THE JANUARY 28, 1971 FORM CONCERNING THE ENTITLEMENT TO RETAIN SEVERANCE PAY BENEFITS CAUSED MRS. COX TO WONDER IF THERE HAD BEEN AN ERROR IN THE CONTENTS OF THE FORM.

SHE THEREFORE CONTACTED HER IMMEDIATE SUPERVISOR WHO, SHE CLAIMS, ASSURED HER AFTER INQUIRING ABOUT THE MATTER THAT SHE WAS ENTITLED TO THE SEVERANCE PAY. HER SUPERVISOR, HOWEVER, HAS STATED THAT HE HAS NO SPECIFIC RECOLLECTION ABOUT DISCUSSING SEVERANCE PAY WITH MRS. COX.

AND FINALLY, IN A "REPORT OF INVESTIGATION" DATED APRIL 6, 1972, FROM THE UNITED STATES ARMY MUNITIONS COMMAND, JOLIET, ILLINOIS, IT IS STATED THAT:

"4. THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE OR ANY OTHER PERSONS HAVING AN INTEREST IN OBTAINING A WAIVER OF THIS CLAIM."

SUBSECTION 91.5(C) OF TITLE 4, CODE OF FEDERAL REGULATIONS, PROVIDES IN PART, WITH RESPECT TO CONDITIONS FOR WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF PAY PURSUANT TO 5 U.S.C. SEC. 5584 AS FOLLOWS:

"(C) 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 OR ALLOWANCES 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 OR MEMBER OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF THE CLAIM. ANY SIGNIFICANT UNEXPLAINED INCREASE IN PAY OR ALLOWANCES WHICH WOULD REQUIRE A REASONABLE PERSON TO MAKE INQUIRY CONCERNING THE CORRECTNESS OF HIS PAY OR ALLOWANCES, ORDINARILY WOULD PRECLUDE A WAIVER WHEN THE EMPLOYEE OR MEMBER FAILS TO BRING THE MATTER TO THE ATTENTION OF APPROPRIATE OFFICIALS. ***"

WE FIND NOTHING IN THE RECORD TO SUGGEST THE EXISTENCE OF FRAUD, MISREPRESENTATION, FAULT, OR LACK OF GOOD FAITH ON THE PART OF MRS. COX.

THEREFORE, THE ACTION OF THE TRANSPORTATION AND CLAIMS DIVISION IN DENYING WAIVER IS REVERSED AND THE WAIVER IS GRANTED.