B-247744, Mar 16, 1992

B-247744, Mar 16, 1992

DIGEST: A former Navy member was erroneously overpaid for 42 days lump sum leave upon separation from the service. The member is not entitled to a waiver of the overpayment because he should have been aware of his approximate leave balance and therefore should have questioned the accuracy of the separation payment.

Mark O'Brien:

Former Navy member Mark O'Brien asked us to reconsider whether the government should waive its claim against him, for funds he erroneously received upon separation from the service to which he was not entitled. On June 9, 1988, Mark O'Brien was discharged from the Navy. He was entitled to $12,273.04, which was for his pay and allowances and disability severance pay. However, he was erroneously paid for 42 days lump sum leave (LSL), so that he received $13,972.82, an overpayment of $1,699.78.

Six months later the Navy realized the error and demanded that Mr. O'Brien repay the LSL payment. Mr. O'Brien requested a waiver of the claim. The Navy denied the waiver, and our Claims Group agreed with that decision.

We affirm the Claims Group decision.

Section 2774(a) of title 10, United States Code authorizes the Comptroller General to waive claims for erroneous payments to members or former members of the uniformed services, for pay and allowances, if collecting the claim would be against equity and good conscience, and not in the best interest of the United States. Further, waiver can only be granted if it is shown that the claim arose because of an administrative error, with no indication of fraud, fault, misrepresentation or lack of good faith by the member or any other person in accepting the overpayment. 10 U.S.C. Sec. 2774(b)(1). In his appeal, Mr. O'Brien argues that he did not attempt in any way to defraud or make misrepresentations to the United States; therefore the claim against him should be waived. However, the Claims Group's decision was based on an indication of fault, not fraud. Fault "exists where a member knew or should have known that an error existed, and should have taken appropriate action." James L. Grahl, B-239274, July 12, 1990.

Mr. O'Brien states that in over 6 years in the Navy, he never questioned his pay or leave balance, and he did not do so upon discharge. However, the general rule is that a member is obliged to be aware of his approximate leave balance. Grahl, supra. Since Mr. O'Brien should have known his approximate leave balance, which was zero, he should have known that an error existed when he received payment for 42 days of leave. This discrepancy should have been apparent particularly because Mr. O'Brien had used 42 days of leave from March 1988 to May 1988, exhausting his entire leave balance shortly before his discharge. Therefore, Mr. O'Brien was at fault. See Grahl, supra; Frederick N. Puglisi; B-231476, July 14, 1988.

Mr. O'Brien also argues that he simply did as he was told; that he merely signed papers, picked up his check, and was told he was discharged.
have allowed overpayments to be waived when the member did not receive
sufficient information to know that the payment was erroneous.
However,
in those cases, in addition to not receiving an itemized statement of pay,
the members had repeatedly and diligently questioned the payment, so they
were not at fault.
James J. Jamiel, B-235158, Feb. 6, 1990; Dorlon J.
Elliott, B-238764, Apr. 18, 1991.
Mr. O'Brien has not presented any
evidence that he questioned or asked for an explanation of the payment.

Accordingly, waiver of the government's claim is denied.

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

From: General Counsel - James F. Hinchman

Subject: Appeal of Mark O'Brien (B-247744)-- Z2904460

We are returning your files on the subject appeal, along with a copy of
our decision of today affirming the Claims Group's decision to deny waiver
of the government's claim against Mr. O'Brien.