B-181875, DEC 23, 1974

1. WHERE PERSONNEL ACTION AND EARNING AND LEAVE STATEMENT FORMS EMPLOYEE WAS RECEIVING 25 PERCENT INCREASE IN PAY FOR STANDBY DUTY, TO WHICH EMPLOYEE KNEW HE WAS NOT ENTITLED, THE RESULTANT ERRONEOUS PAYMENTS FOR STANDBY DUTY FOR TWENTY-THREE PAY PERIODS CANNOT BE WAIVED, SINCE IT IS INCUMBENT ON EMPLOYEE TO VERIFY HIS PAY AND REPORT SUCH ERRORS PROMPTLY TO PROPER AUTHORITIES.

DAVID A. COLE - REQUEST FOR WAIVER OF ERRONEOUS OVERPAYMENT OF COMPENSATION:

DAVID A COLE REQUESTED RECONSIDERATION OF THE DENIAL OF HIS REQUEST FOR WAIVER OF THE ERRONEOUS PAYMENT OF STANDBY PREMIUM PAY IN THE AMOUNT OF $2,686.40 BY OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT OF APRIL 11, 1974.

MR. COLE, SUPERVISORY MEDICAL RADIOLOGY TECHNICIAN (DIAGNOSIS), GRADE GS- 8 IN THE RADIOLOGY SERVICE, VETERANS ADMINISTRATION HOSPITAL, BRONX, NEW YORK, WAS IMPROPERLY PAID 25 PERCENT STANDBY DUTY PREMIUM PAY FROM JANUARY 9, 1972 THROUGH NOVEMBER 25, 1972 - TWENTY-THREE PAY PERIODS WHILE IN GRADE GS-8.

IN OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED APRIL 11, 1974, TO THE OFFICE OF CONTROLLER, VETERANS ADMINISTRATION, WE STATED:

"THE RECORD SHOWS THAT UPON IMPLEMENTATION OF PUBLIC LAW 92-210 AUTHORIZING SALARY INCREASES FOR FEDERAL EMPLOYEES, A VETERANS ADMINISTRATION FORM 5-4652-3 WAS NECESSARILY COMPLETED FOR THE EMPLOYEE BY REASON OF HIS POSITION BEING CLASSIFIED AS A SHORTAGE POSITION. ON THIS FORM WHICH FURNISHED SALARY INFORMATION TO THE DATA PROCESSING CENTER, AN ERRONEOUS ENTRY WAS MADE INDICATING THAT MR. COLE WAS ENTITLED TO PREMIUM PAY OF 25 PERCENT FOR STANDBY OVERTIME IN ADDITION TO THE STATUTORY INCREASE. THIS ERROR WAS ENCODED ON TO THE MASTER PAYROLL AND RESULTED IN MR. COLE'S BEING OVERPAID IN THE AMOUNT OF $2,686.40 DURING THE PERIOD JANUARY 9, 1972 THROUGH NOVEMBER 25, 1972. THE ERROR WAS ULTIMATELY BROUGHT TO THE ATTENTION OF FISCAL DIVISION BY MR. COLE HIMSELF AFTER THE APPARENT ERROR HAD BEEN POINTED OUT TO HIM BY A FELLOW EMPLOYEE.

"THE REPORT OF INVESTIGATION INTO THE CIRCUMSTANCES GIVING RISE TO THE OVERPAYMENT REVEALED NO INDICATION OF FRAUD OR MISREPRESENTATION ON THE PART OF THE EMPLOYEE OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING WAIVER OF THIS CLAIM. HOWEVER, IT CANNOT BE SAID THAT MR. COLE WAS ENTIRELY WITHOUT FAULT IN THE MATTER.

"THE RECORD DISCLOSES THAT ALTHOUGH ALL EMPLOYEES OF THE VETERANS ADMINISTRATION HOSPITAL, BRONX, NEW YORK, WERE ADVISED BY MEMO DATED JANUARY 6, 1972, FROM THE HOSPITAL DIRECTOR TO EXPECT CHANGES IN THEIR SALARIES, THERE WAS NO SINGLE CHANGE ITEM OR COMBINATION OF ITEMS LISTED THEREIN WHICH COULD HAVE EXPLAINED A BIWEEKLY INCREASE IN SALARY OF THE MAGNITUDE REALIZED BY MR. COLE. FURTHER, ONE OF THE PURPOSES OF FURNISHING LEAVE AND EARNINGS STATEMENTS IS TO GIVE THE EMPLOYEE AN OPPORTUNITY TO VERIFY THE CORRECTNESS OF HIS PAY AND DEDUCTION ITEMS AND TO BRING TO THE ATTENTION OF THE APPROPRIATE OFFICIALS ANY ERRORS NOTED. THE LEAVE AND EARNINGS STATEMENTS FURNISHED MR. COLE DURING THE PERIOD OF HIS OVERPAYMENT CLEARLY IDENTIFIED THE $116.80 INCREASE AS 'STANDBY PREMIUM PAY'. MOREOVER, MR. COLE, IN HIS STATEMENT DATED DECEMBER 17, 1972, ADMITTED KNOWING THAT HE WAS NOT ENTITLED TO STANDBY PREMIUM PAY. ACCORDINGLY, IT IS NOT UNREASONABLE TO EXPECT THAT MR. COLE WOULD HAVE QUESTIONED HIS ENTITLEMENT TO THE INCREASE IN SALARY AND WOULD HAVE MADE INQUIRY OF THE APPROPRIATE OFFICIAL TO VERIFY SUCH ENTITLEMENT. IN VIEW OF THE FOREGOING, IT IS THE OPINION OF THIS OFFICE THAT MR. COLE WAS AT LEAST PARTIALLY AT FAULT IN THE MATTER."

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 5 U.S.C. 5584. SECTION 91.5(B) PROVIDES IN PART 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 AND ALLOWANCES UNDER THIS STANDARD NECESSARILY MUST DEPEND UPON THE FACTS EXISTING IN THE PARTICULAR CASE. ***."

WE STATED IN B-165663, JUNE 11, 1969, IN REGARD TO THE REQUIREMENT THAT THERE BE NO INDICATION OF FAULT ON THE PART OF THE EMPLOYEE THAT:

"WHENEVER AN EMPLOYEE WHO RECEIVES AN ERRONEOUS PAYMENT IS FREE FROM FAULT IN THE MATTER CAN ONLY BE DETERMINED BY A CAREFUL ANALYSIS OF ALL PERTINENT FACTS, NOT ONLY THOSE GIVING RISE TO THE OVERPAYMENT BUT THOSE INDICATING WHETHER THE EMPLOYEE REASONABLY COULD HAVE BEEN EXPECTED TO HAVE BEEN AWARE THAT AN ERROR HAD BEEN MADE. IF IT IS ADMINISTRATIVELY DETERMINED THAT A REASONABLE MAN, UNDER THE CIRCUMSTANCES INVOLVED, WOULD HAVE MADE INQUIRY AS TO THE CORRECTNESS OF THE PAYMENT AND THE EMPLOYEE INVOLVED DID NOT, THEN, IN OUR OPINION, THE EMPLOYEE COULD NOT BE SAID TO BE FREE FROM FAULT IN THE MATTER AND THE CLAIM AGAINST HIM SHOULD NOT BE WAIVED."

THE FACT THAT MR. COLE REGULARLY RECEIVED EARNINGS AND LEAVE STATEMENTS FOR 23 PAY PERIODS INDICATING THE INCLUSION OF STANDBY PREMIUM PAY IN HIS SALARY CHECK TO WHICH HE KNEW HE WAS NOT ENTITLED MILITATES AGAINST A FINDING THAT MR. COLE WAS FREE OF AN "INDICATION OF FAULT" IN THE ERRONEOUS PAYMENTS. MR. COLE ADMITS IN HIS LETTER OF DECEMBER 17, 1972, TO THE ASSISTANT CHIEF, FISCAL DIVISION OF THE VETERANS ADMINISTRATION THAT "I KNEW I SHOULD NOT RECEIVE STANDBY PAY BECAUSE I HAVE NOT TAKEN STANDBY DUTY."

IT WAS INCUMBENT UPON MR. COLE TO DETERMINE THE CORRECTNESS OF HIS BIWEEKLY SALARY FROM THE FORMS PROVIDED. THIS IS THE PURPOSE OF PROVIDING EMPLOYEES WITH THE STATEMENTS AT REGULAR INTERVALS. IN ADDITION, "NOTIFICATION OF PERSONNEL ACTION" ISSUED TO MR. COLE ON HIS LEGISLATIVE PAY ADJUSTMENTS, EFFECTIVE JANUARY 9, 1972 AND HIS STEP RATE CHANGE, EFFECTIVE FEBRUARY 6, 1972, BOTH INCLUDE THE 25 PERCENT STANDBY PREMIUM PAY TO WHICH MR. COLE WAS NOT ENTITLED. THUS THERE IS AN INDICATION OF FAULT ON MR. COLE'S PART IN NOT CALLING ATTENTION TO THE PROPER AUTHORITIES AT THE TIME HE RECEIVED THE FIRST SUCH STATEMENT TO THE INACCURACY OF THE PERSONNEL ACTION.

THEREFORE, THE ACTION OF APRIL 11, 1974, BY OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING THE REQUEST FOR WAIVER IS SUSTAINED.