B-197625.OM, AUG 29, 1980

B-197625.OM, AUG 29, 1980

SUBJECT: PETTY OFFICER JAMES L. GRAHAM, USN - REQUEST FOR WAIVER - B-197625 O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

RETURNED IS FILE Z-2801037 CONCERNING PETTY OFFICER JAMES L. GRAHAM'S REQUEST FOR RECONSIDERATION OF THE CLAIMS DIVISION'S DENIAL OF HIS APPLICATION FOR WAIVER OF THE CLAIM OF THE UNITED STATES AGAINST HIM FOR $1,653.30. THE DEBT AROSE FROM ERRONEOUS PAYMENTS OF A BASIC ALLOWANCE FOR QUARTERS (BAQ) MADE WHILE HE WAS OCCUPYING GOVERNMENT QUARTERS. VIEW OF THE FACTS PRESENTED, THE DEBT IS WAIVED.

THE RECORD SHOWS THAT MR. GRAHAM WAS TRANSFERRED FROM IDAHO FALLS, IDAHO, TO PEARL HARBOR, HAWAII, WITH ASSIGNMENT TO A SUBMARINE IN THE FALL OF 1975. HIS PAY VARIED GREATLY FROM THE END OF SEPTEMBER 1975 TO DECEMBER 1975 DUE TO RETROACTIVE INCREASES IN HIS PAY AND ALLOWANCES AND THE FINAL LIQUIDATION OF A DEBT RESULTING FROM AN ADVANCE PAYMENT. BY DECEMBER OF 1975 THESE ADJUSTMENTS WERE COMPLETED AND THE MEMBER RECEIVED TWO REGULAR BIMONTHLY PAYCHECKS; THE FIRST WAS FOR $244, THE SECOND FOR $225.15 WHICH WAS THE CORRECT AMOUNT DUE HIM AFTER HE AND HIS WIFE WERE ASSIGNED GOVERNMENT HOUSING ON DECEMBER 3, 1975. THEY REMAINED IN THAT HOUSING FOR THE NEXT YEAR.

BEGINNING IN JANUARY 1976, MR. GRAHAM BEGAN RECEIVING BIMONTHLY PAY IN THE AMOUNT OF $292, RATHER THAN THE CORRECT AMOUNT OF $225.15. THE MEMBER ALLEGES THAT HE THOUGHT THE INCREASE WAS DUE TO A COST-OF-LIVING ALLOWANCE INCREASE; SUBMARINE AND SEA PAY; AND ADJUSTMENTS MADE SINCE HE NO LONGER OWED THE NAVY ANY BACK PAY. THE MEMBER CONTINUED TO RECEIVE PAYCHECKS FOR $292 THROUGHOUT 1976 WHILE HE AND HIS WIFE WERE LIVING IN GOVERNMENT HOUSING.

IN JANUARY OF 1977, THE MEMBER WAS INFORMED BY THE DISBURSING OFFICER THAT HE HAD BEEN ERRONEOUSLY RECEIVING BAQ IN 1976 RESULTING IN A TOTAL OVERPAYMENT OF $1,653.30.

THE MEMBER CONTENDS THAT HE WAS UNAWARE THAT HE WAS BEING OVERPAID SINCE HIS LEAVE AND EARNINGS STATEMENTS (LES) SHOWED NO PAYMENT FOR BAQ DURING 1976 AND IN FACT SHOWED ONLY HIS BASE PAY. HE ALSO SUBMITS THAT HE QUESTIONED THE VARIATIONS IN HIS PAY AND ATTEMPTED ON SEVERAL OCCASIONS TO OBTAIN A CORRECT LES FROM THE DISBURSING OFFICER BUT HE HAD NO SUCCESS AND WAS INSTEAD INFORMED THAT VARIATIONS IN PAY WERE NORMAL UPON A CHANGE IN LOCATION.

"FAULT," WHICH PRECLUDES WAIVER UNDER 10 U.S.C. 2774, IS CONSIDERED TO EXIST IF IT IS DETERMINED THAT THE MEMBER KNEW OR SHOULD HAVE KNOWN THAT AN ERROR EXISTED. SEE B-194171, SEPTEMBER 13, 1979, AND B-193020, DECEMBER 7, 1978. A MEMBER WHOSE' PAY IS IN DOUBT IS GENERALLY BOUND TO PURSUE THE MATTER UNTIL A SATISFACTORY EXPLANATION IS FORTHCOMING. B-193450, FEBRUARY 26, 1979.

HOWEVER, WHERE THE MEMBER'S LES ARE INCOMPLETE AND THE MEMBER REPEATEDLY QUESTIONS THE ACCURACY OF HIS PAYMENTS AND IS ASSURED THAT THEY ARE CORRECT, AS WAS APPARENTLY THE CASE HERE, IT CANNOT REASONABLY BE CONCLUDED THAT HE KNEW OR SHOULD HAVE KNOWN THAT HE WAS BEING OVERPAID. SEE B-197512-O.M., JUNE 4, 1980. THIS IS PARTICULARLY SO IN A CASE SUCH AS THIS WHERE THE MEMBER WAS A RELATIVELY LOW-RANKING INEXPERIENCED SERVICE MEMBER (E-4, LESS THAN 2 YEARS SERVICE) AND HIS PAY WAS IN A STATE OF FLUX FOR VARIOUS REASONS SUCH AS BECOMING ENTITLED TO A COST-OF-LIVING ALLOWANCE, SEA DUTY PAY AND THE COMPLETION OF REPAYMENT OF ADVANCE PAY HE RECEIVED, WHICH TOGETHER COULD FORM A REASONABLE EXPLANATION FOR THE INCREASE IN PAY.

ACCORDINGLY, WE WAIVE THE CLAIM OF THE UNITED STATES AGAINST MR. GRAHAM ON ACCOUNT OF OVERPAYMENTS IN THE TOTAL AMOUNT OF $1,653.30. MR. GRAHAM SHOULD BE ADVISED OF THIS ACTION AND OF HIS RIGHT TO CLAIM THE AMOUNTS WHICH HE HAS REPAID.