B-200658.OM, MAR 30, 1981

B-200658.OM, MAR 30, 1981

DIVISION OF FINANCIAL AND GENERAL MANAGEMENT STUDIES

COMPTROLLER GENERAL:

HEREWITH IS THE FILE OF CHIEF WARRANT OFFICER DANIEL A. ROSS, A RETIRED MEMBER OF THE UNITED STATES NAVY, WHO HAS APPEALED THE NAVY'S DENIAL OF HIS REQUEST FOR WAIVER UNDER THE PROVISIONS OF 10 U.S.C. 2774.

CHIEF WARRANT OFFICER ROSS WAS OVERPAID A TOTAL OF $16,087.21 WHEN HIS MONTHLY RETIRED PAY WAS NOT REDUCED AS REQUIRED UNDER THE DUAL COMPENSATION ACT OF 1964. THE NAVY DENIED THE RETIRED MEMBER'S REQUEST FOR WAIVER ON THE GROUNDS THAT HE DID NOT PROPERLY PURSUE THE QUESTION OF HIS STATUS UNDER THE ACT AT THE TIME HE BEGAN CIVILIAN EMPLOYMENT WITH THE GOVERNMENT.

THE CIRCUMSTANCES GIVING RISE TO THE OVERPAYMENT IN THIS MATTER ARE SIMILAR TO THOSE IN THE CASE OF REAR ADMIRAL HARVEY E. LYON, Z 2816216. WE PREVIOUSLY DENIED REAR ADMIRAL LYON'S REQUEST FOR WAIVER, AND HIS APPEAL IS NOW BEING CONSIDERED IN THE OFFICE OF GENERAL COUNSEL (B-198955). SINCE THESE OVERPAYMENTS AROSE FROM SIMILAR ERRORS, WE ASK THAT THIS CASE BE ASSOCIATED WITH THE LYON FILE AND GUIDANCE BE PROVIDED AS TO WHETHER THE STANDARDS FOR WAIVER HAVE BEEN MET.

INDORSEMENT

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

RETURNED. THE RECORD INDICATES PRIOR TO HIS RETIREMENT IN 1973, CHIEF WARRANT OFFICER DANIEL A. ROSS, USN, RETIRED, CONTACTED AN ACQUAINTANCE, CHIEF WARRANT OFFICER DAVID V. HAUGLAND, WHO WAS STATIONED AT THE U. S. NAVAL TRAINING CENTER, SAN DIEGO, CALIFORNIA, TO FIND OUT WHETHER EMPLOYMENT IN THE FEDERAL CIVIL SERVICE WOULD AFFECT MR. ROSS'RETIRED MILITARY PAY. MR. HAUGLAND CONTACTED THE PERSONNEL AND COMPTROLLER OFFICES AT THE CENTER AND WAS ADVISED BY THE LATTER THAT A TEMPORARY WARRANT OFFICER WOULD NOT BE SUBJECT TO DUAL COMPENSATION. THIS INFORMATION WAS CONVEYED BOTH ORALLY AND IN WRITING TO MR. ROSS, AND HE SUBSEQUENTLY WAS EMPLOYED IN 1974 AS A PIPE FITTER AT THE NAVAL AIR STATION, NORTH ISLAND, SAN DIEGO.

THE ERROR WITH RESPECT TO MR. ROSS WAS NOT DISCOVERED UNTIL OCTOBER 1979, WHEN MR. HAUGLAND WAS CONSIDERING RETIREMENT FROM THE U. S. NAVY AND SUBSEQUENT FEDERAL CIVILIAN EMPLOYMENT. HE RECEIVED THE SAME ERRONEOUS ADVICE FROM THE COMPTROLLER'S OFFICE CONCERNING THE APPLICATION OF DUAL COMPENSATION RESTRICTIONS TO RETIRED WARRANT OFFICERS, BUT SINCE THIS ADVICE CONFLICTED WITH ADVICE HE RECEIVED FROM THE PERSONNEL OFFICE, AN INQUIRY WAS MADE TO THE NAVY REGIONAL FINANCE CENTER, CLEVELAND, OHIO. WHEN WORD WAS RECEIVED FROM THE NAVY REGIONAL FINANCE CENTER THAT DUAL COMPENSATION LAWS APPLIED TO WARRANT OFFICERS, MR. HAUGLAND CONTACTED MR. ROSS WHO SUBSEQUENTLY RESIGNED HIS CIVILIAN EMPLOYMENT.

ALTHOUGH THERE IS NO COPY IN OUR FILES OF THE CORRESPONDENCE MR. ROSS RECEIVED FROM THE COMPTROLLER'S OFFICE, WE BELIEVE THAT IT WAS REASONABLE UNDER THE CIRCUMSTANCES FOR HIM TO RELY UPON THIS INFORMATION AND NOT FURTHER QUESTION THE APPLICATION OF DUAL COMPENSATION RESTRICTIONS TO HIS FEDERAL CIVILIAN EMPLOYMENT. THE CRYPTIC INFORMATION CONTAINED IN MR. ROSS' SF-50 UPON THIS APPOINTMENT WAS NOT SUFFICIENT TO PUT HIM ON NOTICE OF THE POSSIBLE APPLICATION OF DUAL COMPENSATION. FURTHERMORE, THERE IS NO INDICATION IN THE RECORD BEFORE US THAT MR. ROSS ATTEMPTED TO CONCEAL HIS RETIRED MILITARY STATUS FROM HIS CIVILIAN EMPLOYER OR HIS CIVILIAN EMPLOYMENT FROM THE NAVY.

ALTHOUGH THE MATTER IS NOT FREE FROM DOUBT, WE CONCLUDE THAT MR. ROSS DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE APPLICATION OF THE DUAL COMPENSATION PROVISIONS WHICH WOULD INDICATE FRAUD, MISREPRESENTATION, FAULT, OR LACK OF GOOD FAITH ON THE PART OF THE MEMBER. THEREFORE, WE HOLD THAT THE INDEBTEDNESS IN THE AMOUNT OF $16,087.21 MAY BE WAIVED UNDER 10 U.S.C. SEC. 2774.

DIGEST

RETIRED NAVY CHIEF WARRANT OFFICER RELYING ON ADVICE FROM LOCAL NAVY COMPTROLLER'S OFFICE, ACCEPTED CIVILIAN EMPLOYMENT IN BELIEF THAT HE WAS NOT SUBJECT TO DUAL COMPENSATION RESTRICTIONS. SINCE MEMBER REASONABLY RELIED UPON ADVICE FROM AUTHORITATIVE SOURCE AND HAD NO ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF APPLICATION OF DUAL COMPENSATION RESTRICTION TO HIS EMPLOYMENT, HIS INDEBTEDNESS FOR OVERPAYMENTS OF MILITARY RETIRED PAY MAY BE WAIVED WHERE THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT, OR LACK OF GOOD FAITH ON HIS PART. B-200658-O.M.