B-223384, DEC 2, 1986

B-223384, DEC 2, 1986

MILITARY PERSONNEL - PAY - OVERPAYMENTS - ERROR DETECTION - DEBT COLLECTION - WAIVER DIGEST: A FORMER AIR FORCE MEMBER RECEIVED AN ERRONEOUS STANDARD SEMIMONTHLY PAYMENT OF MILITARY PAY AND ALLOWANCES AFTER HIS SEPARATION FROM THE SERVICE, WHICH WAS NEARLY FOUR TIMES THE AMOUNT HE REASONABLY COULD HAVE EXPECTED TO RECEIVE AS HIS FINAL PAYMENT UPON DISCHARGE. IT WOULD NOT BE AGAINST EQUITY AND GOOD CONSCIENCE TO COLLECT THE DEBT FROM HIM SINCE HE EITHER KNEW OR SHOULD HAVE KNOWN THAT THE PAYMENT WAS EXCESSIVE AND IN ERROR, AND HE SHOULD HAVE SET ASIDE THE EXCESS AMOUNT FOR EVENTUAL REFUND. HENCE, HIS APPLICATION TO BE EXCUSED FROM HIS REPAYMENT OBLIGATION CANNOT BE FAVORABLY CONSIDERED UNDER THE WAIVER STATUTE, 10 U.S.C. SEC. 2774, WHICH AUTHORIZES WAIVER OF DEBTS RESULTING FROM OVERPAYMENTS OF MILITARY PAY ONLY IF COLLECTION WOULD BE "AGAINST EQUITY AND GOOD CONSCIENCE."

KEVIN W. REGER:

THIS ACTION IS IN RESPONSE TO A REQUEST FROM KEVIN W. REGER, THROUGH HIS ATTORNEY, FOR RECONSIDERATION OF OUR CLAIMS GROUP'S NOVEMBER 6, 1985 DENIAL OF WAIVER OF HIS DEBT. MR. REGER WAS OVERPAID $329.05 DUE TO AN ERRONEOUS PAYMENT HE RECEIVED AFTER HIS SEPARATION FROM THE SERVICE. IS OUR VIEW THAT SINCE MR. REGER HAD BEEN SEPARATED FROM THE SERVICE, HAD ALREADY RECEIVED HIS LAST REGULARLY SCHEDULED SEMI MONTHLY PAY, AND RECEIVED OVER $300 MORE THAN HE SHOULD HAVE EXPECTED TO RECEIVE, HE SHOULD REASONABLY HAVE KNOWN HE WAS BEING OVERPAID WHEN HE RECEIVED A CHECK FOR $472.60. THUS, THE DISALLOWANCE OF WAIVER IS AFFIRMED.

BACKGROUND

MR. REGER, THEN A MEMBER OF THE U.S. AIR FORCE, EARNED $452.66 FOR THE PERIOD BETWEEN APRIL 16 AND APRIL 29, 1983 (LESS DEDUCTIONS FOR ADVANCE PAY AND ADVANCE EXCESS LEAVE). AT THE END OF APRIL, HE WAS PAID $309.11 PURSUANT TO HIS REGULAR END-OF-THE-MONTH PAY, AND WAS DUE $143.55. APRIL 29, MR. REGER WAS SEPARATED FROM THE AIR FORCE. IN MAY 1983, DUE TO AN ADMINISTRATIVE ERROR OF THE AIR FORCE, MR. REGER WAS ERRONEOUSLY PAID A MID-MONTH PAYMENT OF $472.60, RESULTING IN THE OVERPAYMENT OF $329.05. THE ERROR WAS DISCOVERED AND MR. REGER WAS CONTACTED IN OCTOBER 1983.

THE AIR FORCE POINTS OUT THAT SINCE MR. REGER HAD SEPARATED FROM THE AIR FORCE HE SHOULD HAVE BEEN AWARE THAT HE WAS NOT ENTITLED TO RECEIVE A MID- MONTH PAYMENT WHICH WAS SIMILAR TO THE MID-MONTH PAYMENTS HE HAD BEEN RECEIVING WHILE IN THE SERVICE. THE AIR FORCE DETERMINED THAT MR. REGER SHOULD HAVE KNOWN HE WAS OVERPAID SINCE HE WAS DUE ONLY $143.55; THUS, HE WAS NOT WITHOUT FAULT IN THE MATTER AND RECOMMENDED WAIVER NOT BE GRANTED. BY SETTLEMENT DATED NOVEMBER 6, 1985, OUR CLAIMS GROUP DENIED WAIVER, HOLDING THAT MR. REGER WAS NOT WITHOUT FAULT IN THE MATTER AND THEREFORE WAIVER COULD NOT BE GRANTED.

MR. REGER STATES THAT SINCE THE OVERPAYMENT IS A RESULT OF AN AIR FORCE ERROR AND SINCE HE CONTACTED THE AIR FORCE AND WAS ORIGINALLY TOLD THAT THE PAYMENT WAS CORRECT, HE IS ENTITLED TO RETAIN THE MONEY.

ANALYSIS AND CONCLUSION

THE COMPTROLLER GENERAL IS AUTHORIZED BY 10 U.S.C. SEC. 2774 TO WAIVE CLAIMS OF THE UNITED STATES FOR THE COLLECTION OF OVERPAYMENTS OF MILITARY PAY AND ALLOWANCES, IF COLLECTION "WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTEREST OF THE UNITED STATES." THE WAIVER STATUTE ALSO PROVIDES THAT THIS AUTHORITY MAY NOT BE EXERCISED IF THERE IS AN INDICATION OF "FRAUD, MISREPRESENTATION, FAULT OR LACK OF GOOD FAITH" ON THE PART OF THE SERVICE MEMBER OR FORMER MEMBER CONCERNED, OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF THE CLAIM.

WE INTERPRET THE WORD "FAULT" AS USED IN 10 U.S.C. SEC. 2774 AS INCLUDING SOMETHING MORE THAN A PROVEN OVERT ACT OR OMISSION BY THE SERVICE MEMBER. THUS, WE CONSIDER FAULT TO EXIST IF IN LIGHT OF ALL THE FACTS IT IS DETERMINED THAT THE MEMBER SHOULD HAVE KNOWN THAT AN ERROR EXISTED AND SHOULD HAVE TAKEN ACTION TO HAVE IT CORRECTED. THE STANDARD WE EMPLOY IS WHETHER A REASONABLE PERSON SHOULD HAVE BEEN AWARE THAT HE WAS RECEIVING PAYMENT IN EXCESS OF HIS PROPER ENTITLEMENT. IN THE PRESENT CASE, THERE IS NO EVIDENCE OF FRAUD OR MISREPRESENTATION ON THE PART OF MR. REGER. MR. REGER CLAIMS THAT SINCE HE DID CONTACT THE AIR FORCE AND SUPPOSEDLY WAS TOLD BY SOMEONE THAT THE PAYMENT WAS CORRECT, HE IS ENTITLED TO HAVE COLLECTION OF THE ERRONEOUS PAYMENT WAIVED. HOWEVER, IT APPEARS THAT MR. REGER IS NOT WITHOUT FAULT IN THE MATTER.

SINCE MR. REGER HAD ALREADY SEPARATED FROM THE SERVICE, HE SHOULD REASONABLY HAVE KNOWN THAT WHEN HE RECEIVED PAY IN AN AMOUNT SIMILAR TO THE PAYMENTS HE HAD PREVIOUSLY RECEIVED FOR HIS MILITARY SEMIMONTHLY PAY, WHICH WAS APPROXIMATELY FOUR TIMES THE AMOUNT HE SHOULD HAVE EXPECTED FROM THE AIR FORCE, THAT THE PAYMENT WAS IN ERROR AND HE SHOULD HAVE TAKEN ACTION TO CORRECT THE ERROR. OUR VIEW IS THAT THE CURSORY AND UNDOCUMENTED INQUIRY HE INDICATES HE MADE IS NOT SUFFICIENT TO SHOW THAT HE TOOK APPROPRIATE CORRECTIVE ACTION. RATHER, IT IS OUR VIEW THAT BECAUSE THE PAYMENT WAS OBVIOUSLY EXCESSIVE, A REASONABLY PRUDENT PERSON IN THE CIRCUMSTANCES WOULD HAVE SOUGHT WRITTEN CONFIRMATION OF THE CORRECTNESS OF THE PAYMENT AND WOULD HAVE SET ASIDE THE AMOUNT THAT APPEARED EXCESSIVE FOR POSSIBLE REFUND UNTIL THE MATTER WAS RESOLVED. COMPARE PRICE V. UNITED STATES, 621 F.2D 418 (1980); AND VETERINARY AND OPTOMETRY OFFICERS, 56 COMP.GEN. 943 (1977).

A REQUEST BY A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES FOR WAIVER MUST BE ACCOMPANIED BY CLEAR AND CONVINCING PROOF THAT COLLECTION OF HIS DEBT WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND AGAINST THE BEST INTEREST OF THE UNITED STATES. IT IS OUR VIEW THAT UNDER THE CIRCUMSTANCES PRESENTED, THE APPLICANT HAS NOT MET THAT BURDEN AND THAT COLLECTION OF THE DEBT WOULD NOT BE AGAINST EQUITY AND GOOD CONSCIENCE OR AGAINST THE BEST INTEREST OF THE UNITED STATES. THUS, THE DISALLOWANCE OF THE WAIVER IS SUSTAINED.