B-244478, October 24, 1991

B-244478, October 24, 1991

DIGEST: Where the Navy remitted a portion of erroneous overpayments of Base Allowance for Quarters with Dependents and Variable Housing Allowance with Dependents based upon a member's statements that he supported his wife during the time the payments were made, a request for full waiver is denied where additional evidence of non-support was received from his wife which was not considered when the initial waiver was granted and he has submitted no additional proof of support payments.

CE1 David M. Lehman, USN- Waiver Request:

Construction Electrician (CE1) David M. Lehman, USN, appeals our Claims Group's partial denial of his request for waiver of the United States Navy's claim against him for erroneous payments he received while serving in the Navy. We agree with the Claims Group's action.

From May 1, 1984 through November 21, 1985, CE1 Lehman was paid Basic Allowance for Quarters (BAQ-D) and Variable Housing Allowance (VHA-D) at the with dependent rate, on the basis that he was providing support for his wife. However, during that period he was separated from his wife and they were divorced on October 31, 1985. Based on an allegation of non- support by his wife, the Navy determined he was not entitled to the allowances and as a result he was overpaid $8,614.93. Because CE1 Lehman stated that he had provided for support from May 1, 1974 through July 31, 1985, the Navy remitted that portion of the overpayment amounting to $6,759.56. However, CE1 Lehman remained liable for the remainder because he had not provided any proof of support for that period. Our Claims Group found that of the remaining $1,855.37, $434.30 should be waived pursuant to a recommendation by the Navy because it resulted from a miscalculation of the amount of VHA-D which was paid to him. However, no waiver was granted for the remaining $1,421.07 because of the lack of evidence of support from CE1 Lehman.

CE-1 Lehman has appealed the Claims Group settlement contending that since, in his request for remittance to the agency, he misstated the date of his divorce as July 31 instead of October 31, 1985, that additional 3- month period of receipt of BAQ and VHA should be waived.

He has submitted no additional evidence of support payments. addition, since our Claims Group's settlement of November 30, 1990, the Navy has become aware of additional allegations of non-support by his ex- wife, which were contained in his dependency file but were not available at the time of the Navy's decision to remit the previous portion of the debt.

INITIAL WAIVER BACKGROUND

CE1 David M. Lehman was married in October 1983 and divorced on October 31, 1985. He was paid a Base Allowance for Quarters and Variable Housing Allowance at the with dependent rate from May 1, 1984 through November 21, 1985, on the basis that he was providing support for his wife. When the Navy received information that he had not been supporting his wife it commenced collection action against him for erroneous payment of allowances.

The Navy, in an action endorsed by our Claims Group, granted waiver of $6,759.56 based upon the member's initial waiver application which stated that he had supported his wife up to the date of their divorce, which he mistakenly stated was July rather October 1985. They denied waiver of the remaining debt because he had no evidence of support after July. His appeal of the partial denial states that he supported his wife through October 31, 1985.

The Comptroller General may waive collection of certain debts under 10 U.S.C. Sec. 2774 if collection would be against equity and good conscience and not in the best interests of the United States, provided there is no indication of fraud, misrepresentation, or fault on the part of the recipient.

The record shows that the member was assigned to Guam 2 months after the marriage and that the couple separated thereafter with the member maintaining non-government quarters in the expectation that they would reconcile and resume living together. There is evidence that Mrs. Lehman informed the Navy in September 1984 and October 1985 that the member had not supported her. There is also evidence that she delayed the divorce not to obtain support but to secure return of household goods from the member. The record also shows that the member tried on several occasions to have the dependent allowance terminated but was advised by the Navy that they could not be stopped until he had a final divorce decree. Finally, the record shows that on November 4, 1985 the member requested in writing that the allotment be terminated.

In granting the partial waiver the Navy believed the member's statements that he supported his wife while they were married, even though he could produce only one money order as proof. However, the record now includes non-support allegations by the member's wife which were not available when the initial waiver was granted. Thus, in view of the fact that as early as September 1984 and as recently as October 1985 the member was accused of non-support, we are unable to conclude that the member is entitled to waiver of any other portion of the indebtness and therefore deny his appeal for full waiver.

Based on CE1 Lehman's failure to submit any further evidence of additional support payments and the contents of the dependency file, we sustain the Claims Group's settlement.

Honorable Beverly B. Byron

Chairman, Military Personnel and Compensation Subcommittee Committee on Armed Services House of Representatives

This is in reference to your referral of an appeal of our Claims Group's settlement Z-2904522-025 regarding the waiver of indebtedness of Construction Electrician David M. Lehman, USN.

Enclosed is a copy of our decision of today sustaining the Claims Group's settlement.

To: Director, Claims Group/GGD - Sharon S. Green

From: General Counsel - James F. Hinchman

Subject: CE1 David M. Lehman, USN - Waiver Request (Z-2904522)-- B-2444478

Returned is Claims File No. Z-2904522 and a copy of decision B-244478 of today's date, affirming the Claims Group's action.

Attachments

CE1 David M. Lehman, USN

This is in reference to your appeal of our Claims Group's settlement dated November 30, 1991, regarding your request for waiver of erroneous payments which was forwarded to our Office by the Chairman, Military Personnel and Compensation Subcommittee of the House of Representatives Committee on Armed Services.

Enclosed is a copy of our decision of today sustaining the Claims Group's action.