B-234163, Mar 8, 1990

B-234163, Mar 8, 1990

MILITARY PERSONNEL - Pay - Overpayments - Waiver - Statutes of limitation DIGEST: The Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app. Sec. 525, does not toll the 3-year limitation period for a member of the uniformed services while on active duty to file an application with the Comptroller General under 10 U.S.C. Sec. 2274 for waiver of an overpayment of pay.

Major Edward A. Koslowski, Jr.:

This action is in response to a request from the Department of the Air Force concerning an application by Major Edward A. Koslowski, Jr., for waiver by the Comptroller General under 10 U.S.C. Sec. 2774 of an overpayment of pay caused by an administrative error. The issue presented is whether the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app. Sec. 525, tolls running of the 3-year period prescribed in the waiver statute during which a service member must apply for waiver.

We conclude that the application period in 10 U.S.C. Sec. 2774 is not tolled by the 1940 law. Accordingly, Major Koslowski's request for waiver, filed after that period had expired, may not be considered.

The Air Force reports that between September 1, 1981, and October 1, 1983, it erroneously overpaid Major Koslowski a total of $824.94 due to a misapplication of law. Major Koslowski was informed of the erroneous payment on January 20, 1984, but did not apply for waiver until April 25, 1988. In the meantime, the amount of the overpayment was deducted from his pay.

Under 10 U.S.C. Sec. 2774, the Comptroller General may waive a debt to the government at the request of a member of the uniformed services provided the request is made within 3 years after the debt is discovered. The Soldiers' and Sailors' Civil Relief Act of 1940 provides that a period of military service shall not be included:

" ... in computing any period now or hereafter to be limited by any law ... for the bringing of any action or proceeding in any ... agency of government by or against any person in military service. ...."

The Air Force questions whether that provision extends the 3-year period during which the Comptroller General is authorized to waive the government's claim.

The 1940 statute does not toll the 3-year period referenced in 10 U.S.C. Sec. 2774. The 3-year period is a limit on the authority of the Comptroller General to waive claims of the government against service members, whereas the Solders' and Sailors' Civil Relief Act operates to toll periods of limitation on rights or privileges that accrue to service members. This means, for example, that under the Soldiers' and Sailors' Civil Relief Act claims of individuals who continue on active duty are not barred by the running of the 6-year statute of limitations prescribed by 31 U.S.C. Sec. 3702(b)(1), which limits the general right of a claimant to submit a claim against the United States to the Comptroller General. See 63 Comp.Gen. 70 (1983); B-210827, Sept. 21, 1983. In contrast, by the terms of 10 U.S.C. Sec. 2774 the Comptroller General may not exercise his waiver authority unless he receives the waiver application within 3 years of the date the erroneous payment is discovered.

Further, the authority given the Comptroller General in 10 U.S.C. Sec. 2774 originated with Pub.L. No. 92-453, 86 Stat. 758 (1972), one of the purposes of which was to correct inequities in the law that made it possible to waive overpayments made to civilian employees but provided no similar authority for military personnel. See S. Rep. No. 1165, 92d Cong., 2d Sess. (1972). It is a basic proposition that a statute must be given a reasonable construction consistent with its legislative purpose. See 28 Comp.Gen. 89 (1948). Inasmuch as the application of 10 U.S.C. Sec. 2774 is limited to military personnel, we do not think it logical to conclude that Congress intended that 50 U.S.C app. Sec. 525 excuse those same people from the 3-year limit for requesting waiver.

Accordingly, Major Koslowski's application for waiver of his debt may not be considered.