Appeal of a Waiver Denial

A military member appealed a waiver denial by the Claims Division. The member was separated from his wife when he transferred to Washington, D.C., and she remained in Puerto Rico. The wife obtained a divorce in Puerto Rico in February 1976 without notifying the member. The member learned of the divorce in February 1977, but continued to collect basic allowance for quarters (BAQ) at the dependent rate until August 1977. The Claims Division denied the member's request that his liability for the excessive amount of BAQ paid to him from February 1976 to August 1977 be waived. The basis for this determination was that he had a responsibility to maintain communication with his wife in order to be aware of changes in his marital status and that once he had been advised of his divorce he had a duty to inform the Navy and return any BAQ to which he was not entitled. A claim against a member of the uniformed services arising out of an erroneous payment of pay or allowances may be waived in whole or in part if collection would be against equity and good conscience and not in the best interest of the United States and there is no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the member. However, where a member has some knowledge or suspicion that he may be overpaid, he has a duty and obligation to return the excess sum or set aside the amounts for refund at such time as the error is corrected. On reconsideration, it was apparent that, even after receiving information that his wife had obtained a divorce, the member was unable to confirm that fact through correspondence with her and continued to make mortgage payments for a house in which she was living; thus, the BAQ he was receiving was going for her support and not solely for his own enrichment. Considering these circumstances, it was determined that the member could be considered without fault for the erroneous BAQ paid from February 1976 through February 1977. Therefore, that part of the debt was waived. However, for the period from March 1977 through August 1977, the member had an obligation to have the erroneous BAQ payments stopped or to set aside the money for subsequent refund until the information received by him of the divorce could be confirmed or denied. Accordingly, the denial of waiver for the erroneous payments made during that period was sustained.