B-236856, Dec 15, 1989

B-236856, Dec 15, 1989

CIVILIAN PERSONNEL - Travel - Advances - Overpayments - Debt collection - Waiver DIGEST: A transferred employee was erroneously advanced temporary quarters subsistence expense (TQSE) for her 23-year-old son. Consequently, the agency sought to have the employee pay back $3,250 that had been advanced to her and used for her son's TQSE. Waiver is granted under 5 U.S.C. Sec. 5584, as amended, because the record shows that the employee relied in good faith on the erroneous authorization for TQSE.

Mary F. Lopez - Erroneous Travel Advance:

This decision concerns an appeal from a Claims Group settlement denying a portion of a waiver request submitted by Ms. Mary F. Lopez, a civilian employee of the Navy. Ms. Lopez seeks waiver of $3,250 which erroneously was advanced to her to cover temporary quarters subsistence expenses (TQSE) for her son. For the reasons explained below, we reverse the Claims Group's determination and waive repayment of the travel advance.

BACKGROUND

In 1983, Ms. Lopez transferred from the Naval Air Station in Jacksonville, Florida, to a military facility at Iwakuni, Japan, for a 3- year tour. Ms. Lopez took her son, then 20 years old, and made arrangements to rent out her Jacksonville home during her tour. November 1986, Ms. Lopez requested and was granted a permanent change of station back to Jacksonville. Ms. Lopez received travel orders for herself and her son, then 23 years old.

Upon Ms. Lopez's arrival in Jacksonville, she discovered that her tenants had left her home uninhabitable. She then requested and was granted 60 days' TQSE for herself and her son so that necessary repairs could be made. Ms. Lopez asserts, and the Navy does not dispute, that she discussed her request with a personnel specialist of the Navy and was told that both she and her son were entitled to TQSE. The commanding officer granted her two 30-day extensions of TQSE, making her total TQSE period 120 days. The Navy advanced Ms. Lopez a total of $8,125 for her and her son's TQSE.

The Navy later determined that the two 30-day extensions for Ms. Lopez's TQSE should not have been granted, and that her son should not have been authorized TQSE for any part of the 120-day period because he no longer was Ms. Lopez's dependent. The Navy concluded that Ms. Lopez had been erroneously advanced $5,150 including $1,900 for the last 60 days of her TQSE and $3,250 for her son's TQSE during the entire 120 day period.

Ms. Lopez sought a waiver of her indebtedness, and the Navy recommended against waiver on the basis that she should have but did not review the regulations governing her and her son's eligibility for TQSE. Our Claims Group waived the $1,900 portion of Ms. Lopez's travel advance covering the TQSE extensions for herself but denied waiver of the remaining amounts for her son's TQSE, leaving Ms. Lopez with a debt to the Navy of $3,250. Ms. Lopez appeals from the Claims Group's decision, claiming that she relied in good faith on the erroneous authorization for her son's TQSE.

DISCUSSION

Generally, employees may not claim as dependents children over the age of 21. Joint Travel Regulations (JTR), vol. 2, Appendix D. However, the regulations provide that, when an employee takes a dependent child to an overseas duty station and the child then attains the age of 21, the government will pay for the child's return to the United States. 2 JTR para. C7003-1. Once returned to the United States, however, such a child is no longer considered to be a dependent. Thus, Ms. Lopez's child properly was included in the travel orders from Japan to Jacksonville and erroneously included in her TQSE orders.

The Comptroller General's authority to waive overpayments of travel and transportation expenses is found at 5 U.S.C. Sec. 5584 (Supp. IV 1986). Under this statute, waiver is authorized only where the collection of the overpayment "would be against equity and good conscience and not in the best interests of the United States" and there is no indication of "fraud, misrepresentation, fault, or lack of good faith" on the part of the employee." "Fault" is considered to exist if it is determined that the employee knew or should have known that an error existed but failed to take corrective action. See 4 C.F.R. Sec. 91.5 (1989).

We have held that a travel advance is subject to waiver under the standards discussed above if it was made to cover expenses erroneously authorized and the employee actually spent the advance in reliance on the erroneous travel order. See Major Kenneth M. Deiter, B-226842, June 28, 1988, 67 Comp.Gen. ***; compare Kenneth T. Sands, B-226842, Dec. 5, 1988. As a general rule, we presume that an employee who incurs expenses erroneously authorized by travel orders has done so in reliance on the orders. John B. Osborn III, B-231146, Mar. 10, 1987.

In Ms. Lopez's case, the $3,250 portion of her travel advance which remains outstanding was spent by her for her son's temporary quarters subsistence expenses, based on the erroneous authorization in her travel orders. Ms. Lopez states that she relied in good faith on the erroneous authorization, and that had TQSE not been authorized for her son she would have made noncommercial arrangements for his lodging and meals. Under these circumstances, we believe that Ms. Lopez did rely on the erroneous authorization in incurring her son's expenses.

Furthermore, there is nothing in the record to suggest that Ms. Lopez was at fault in accepting the erroneous TQSE payments. Ms. Lopez states, and the Navy does not dispute, that she took the initiative to discuss her relocation benefits with a personnel specialist who informed her that her son was eligible for TQSE. We do not agree with the Navy's conclusion that even after receiving this advice Ms. Lopez had the responsibility to review the applicable travel regulations to check on her eligibility for TQSE.

For the reasons discussed above, we find that the collection of the overpayment to Ms. Lopez would be against equity and good conscience and not in the best interest of the United States. Accordingly, we waive repayment of the $3,250 which Ms. Lopez owes to the Navy.