B-185035, JUL 12, 1976

B-185035, JUL 12, 1976

EMPLOYEE WITH ACCRUED ANNUAL AND SICK LEAVE OF 114 AND 194 HOURS, RESPECTIVELY, WAS ABSENT FOR 11 WEEKS DUE TO WORK INJURY. UPON RETURN TO DUTY HIS PAY SLIP SHOWED ACCRUED ANNUAL AND SICK LEAVE OF 256 AND 1,346 HOURS RESPECTIVELY. EMPLOYEE BECAME INDEBTED TO UNITED STATES FOR USE OF EXCESS LEAVE. WAIVER OF EXCESS PAYMENTS IS DENIED SINCE EMPLOYEE SHOULD HAVE BEEN AWARE THAT THERE WAS ERROR AND REPORTED IT CLEARLY TO APPROPRIATE OFFICIALS INSTEAD OF MERELY INQUIRING AS TO WHETHER HE HAD SUFFICIENT SICK LEAVE.

MANUEL CORTEZ - REQUEST FOR WAIVER OF ERRONEOUS PAYMENT OF PAY:

THIS DECISION IS IN RESPONSE TO AN APPEAL FROM A DENIAL BY OUR TRANSPORTATION AND CLAIMS (NOW CLAIMS) DIVISION OF A REQUEST FOR WAIVER OF ERRONEOUS PAYMENT OF PAY TO MR. MANUEL CORTEZ, A RETIRED EMPLOYEE OF THE DEPARTMENT OF THE NAVY, HUNTERS POINT NAVAL SHIPYARD, SAN FRANCISCO, CALIFORNIA.

MR. CORTEZ HAD ANNUAL AND SICK LEAVE BALANCES OF 114 AND 194 HOURS, RESPECTIVELY, AS OF AUGUST 5, 1972. HE WAS PLACED ON "INJURY COMPENSATION" LEAVE FROM AUGUST 7 THROUGH OCTOBER 18, 1972. THE LEAVE BALANCES ON MR. CORTEZ' PAY SLIP FOR THE PAY PERIOD ENDING OCTOBER 28, 1972, WERE 256 HOURS OF ANNUAL LEAVE AND 1,346 HOURS OF SICK LEAVE, COMPARED TO THE CORRECT BALANCES OF 104 HOURS OF ANNUAL LEAVE AND 197 HOURS OF SICK LEAVE. MR. CORTEZ USED THE ERRONEOUSLY CREDITED SICK LEAVE AND, IN EFFECT, BY OUR COMPUTATION PLACED HIMSELF IN A STATUS OF LEAVE WITHOUT PAY FOR A TOTAL OF 1,183 HOURS. MR. CORTEZ' ANNUAL LEAVE WAS ALSO OVERDRAWN BY OUR COMPUTATION FOR A TOTAL OF 120 HOURS AS OF THE DATE OF HIS RETIREMENT, MARCH 18, 1974. OUR CLAIMS DIVISION FOUND THAT MR. CORTEZ' TOTAL DEBT FOR THE IMPROPERLY USED LEAVE WAS $8,061.53.

OUR CLAIMS DIVISION, IN ITS DENIAL OF WAIVER, DW-Z-2577105-DGD-3, JULY 30, 1975, FOUND THAT MR. CORTEZ KNEW OR REASONABLY SHOULD HAVE KNOWN THAT HE WAS USING SICK LEAVE IN EXCESS OF HIS ENTITLEMENT. IT ALSO FOUND THAT THERE WAS A LACK OF GOOD FAITH ON THE PART OF MR. CORTEZ. IN VIEW OF THESE FINDINGS CLAIMS DIVISION DENIED MR. CORTEZ' REQUEST FOR WAIVER, AND THAT DENIAL IS NOW BEFORE US FOR RECONSIDERATION.

MR. CORTEZ ON THIS APPEAL ALLEGES A MISUNDERSTANDING OF CERTAIN PHRASES CONTAINED IN HIS LETTERS. HE ALSO REITERATES THAT THERE WAS CLERICAL ERROR THROUGH NO FAULT OF HIS OWN. HE ALSO NOTES THAT HE "ALWAYS CHECKED WITH PERSONNEL TO SEE IF AND HOW MUCH SICK LEAVE HE HAD".

WHILE THE AUTHORITY VESTED IN THE COMPTROLLER GENERAL TO WAIVE AN OVERPAYMENT OF PAY OR ALLOWANCES IS BROAD, THE LAW WHICH PROVIDES FOR THAT WAIVER AUTHORITY EXPRESSLY EXCLUDES WAIVER OF A CLAIM AGAINST AN EMPLOYEE WHERE THERE IS A FINDING OF FAULT ON THE EMPLOYEE'S PART. 5 U.S.C. SEC. 5584(B)(1) (SUPP. IV, 1974). AS WE HAVE STATED IN PREVIOUS DECISIONS, WHETHER AN EMPLOYEE IS FREE FROM FAULT IN MATTERS SUCH AS THESE CAN ONLY BE DETERMINED BY CAREFUL ANALYSIS OF ALL PERTINENT FACTS, NOT ONLY THOSE GIVING RISE TO THE ERROR, BUT ALSO THOSE WHICH INDICATE WHETHER THE EMPLOYEE COULD REASONABLY HAVE BEEN EXPECTED TO HAVE BEEN AWARE THAT AN ERROR HAD BEEN MADE. B-174059, OCTOBER 8, 1971.

THE RECORD IN THE PRESENT CASE CLEARLY INDICATES THAT MR. CORTEZ SHOULD HAVE BEEN AWARE OF THE ERROR. PRIOR TO THE TIME HE WENT ON "INJURY COMPENSATION" LEAVE, MR. CORTEZ HAD AN ACCUMULATION OF ONLY 194 HOURS OF SICK LEAVE, THE EQUIVALENT OF SLIGHTLY LESS THAN 5 WEEKS OF ABSENCE DUE TO SICKNESS. AFTER MR. CORTEZ RETURNED FROM "INJURY COMPENSATION" LEAVE HIS SICK LEAVE HAD INCREASED TO AN INDICATED 1,346 HOURS, THE EQUIVALENT OF NEARLY 34 WEEKS OF ABSENCE DUE TO SICKNESS AND AN INCREASE OF 1,152 HOURS OF SICK LEAVE.

IN THIS CONNECTION THE REGULATIONS WHICH GOVERN THE WAIVER OF CLAIMS PROVIDE, AT 4 C.F.R. SEC. 91.5(C) (1975), IN PERTINENT PART:

"*** 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. ***"

IT SHOULD BE NOTED THAT THERE IS NO REQUIREMENT TO SHOW THAT THE EMPLOYEE WAS ACTUALLY AWARE OF THE ERROR TO PRECLUDE WAIVER; WAIVER IS ALSO PRECLUDED WHEN THE EMPLOYEE DOES NOT NOTIFY APPROPRIATE OFFICIALS OF AN UNEXPLAINED INCREASE IN PAY OR ALLOWANCES WHICH WOULD REQUIRE A REASONABLE PERSON TO MAKE INQUIRY. IN THE INSTANT CASE MR. CORTEZ HAD ANNUAL AND SICK LEAVE BALANCES OF 114 AND 194 HOURS, RESPECTIVELY, WHEN HE WAS PLACED ON "INJURY COMPENSATION" LEAVE ON AUGUST 7, 1972. AFTER HE RETURNED TO WORK HIS PAY SLIP FOR THE PERIOD ENDING OCTOBER 28, 1972, SHOWED ANNUAL AND SICK LEAVE BALANCES OF 256 AND 1,346 HOURS, RESPECTIVELY. SUBSEQUENTLY, HE USED 1,089 HOURS OF SICK LEAVE IN CALENDAR YEAR 1973, THE YEAR FOLLOWING THE ERRONEOUS INCREASES IN HIS LEAVE BALANCES. MR. CORTEZ STATES THAT HE ALWAYS CHECKED WITH HIS PERSONNEL OFFICE WHEN HE USED SICK LEAVE AND WAS ASSURED THAT HE HAD SUFFICIENT SICK LEAVE TO ENABLE HIM TO BE ABSENT FOR THE PERIODS COVERED. HOWEVER, THERE IS NO INDICATION IN THE RECORD THAT HE EVER ADVISED ANYONE IN HIS PERSONNEL OFFICE THAT HIS LEAVE BALANCES HAD INCREASED SUBSTANTIALLY FOLLOWING HIS RETURN TO WORK AFTER A PERIOD OF "INJURY COMPENSATION" LEAVE. WE BELIEVE THE UNEXPLAINED INCREASE OF 142 AND 1,152 HOURS IN HIS ANNUAL AND SICK LEAVE BALANCES, AFTER AN ABSENCE OF ABOUT 11 WEEKS DUE TO A WORK INJURY, WAS SUFFICIENT TO PUT A REASONABLE PERSON ON NOTICE THAT AN ERROR HAD BEEN MADE. THEREFORE, MR. CORTEZ HAD A DUTY TO CLEARLY ADVISE HIS PERSONNEL OFFICE OF THE UNEXPLAINED SUBSTANTIAL INCREASES IN HIS LEAVE BALANCES. WE DO NOT BELIEVE INQUIRIES BY MR. CORTEZ AS TO WHETHER HE HAD SUFFICIENT LEAVE IN HIS ACCOUNT TO TAKE THE AMOUNT OF SICK LEAVE SATISFIED THE WAIVER REQUIREMENT THAT THE EMPLOYEE NOTIFY APPROPRIATE OFFICIALS OF AN UNEXPLAINED INCREASE IN PAY OR ALLOWANCES.

CONSIDERING THE CIRCUMSTANCES IN THE PRESENT CASE, WE CANNOT SAY THAT COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE INTEREST OF THE UNITED STATES SO AS TO JUSTIFY WAIVER UNDER THE PROVISIONS OF SECTION 5584 OF TITLE 5, U.S.C. (1970). WE, THEREFORE, FIND THAT THE CLAIMS DIVISION DENIAL OF WAIVER IS CORRECT AND HEREBY AFFIRM SUCH DENIAL.