Matter of: Jonathan C. Pick File: B-256262 Date: April 25, 1994

Matter of: Jonathan C. Pick File: B-256262 Date: April 25, 1994

CIVILIAN PERSONNEL Compensation Overpayments Error detection Debt collection Waiver A civilian employee who was called to active duty in connection with Operation Desert Shield/Storm and who was not entitled to receive civilian pay during that period, erroneously received his civilian salary for three successive pay periods by direct deposit to his bank account, and seeks waiver of the resulting debt. Although the employee argues lack of knowledge of these deposits the record shows he had the opportunity to retrieve his mail several times monthly. When he did so, he ignored his bank statements. Had he examined his bank statements he would have been alerted to the possibility of error. Since he failed to do so and make inquiry of an appropriate official at his civilian agency, he is considered to be partially at fault, thereby precluding waiver under 5 U.S.C. Sec. 5584 (1988).

DECISION

Mr. Pick is a civilian employee of the Department of the Air Force, stationed at Edwards Air Force Base, California. He is also a member of the United States Air Force Reserve in a flying status. Mr. Pick was ordered to active duty on January 25, 1991, in connection with Operation Desert Shield/Storm and stationed at Norton Air Force Base, California, as an Aircraft Commander with the 729th Airlift Squadron. He was released from that active duty in November 1991, at which time he to his civilian position at Edwards Air Force Base.

During the time Mr. Pick was receiving military pay and allowances, he was not entitled to his civilian pay. However, due to administrative error he received civilian pay for January 25, 1991 (the last workday of the pay period). Also due to administrative error, he received civilian pay for three successive pay periods from May 5 through June 15, 1991, for a total overpayment of $5,170.80.

Our Claims Group waived the overpayment received for January 25 ($166.80), for the reason that he may not have been aware that he was not entitled to erroneously receive salary for that 1 day during that pay period. However, the Claims Group determined that he should have questioned the salary payments ($5,004) deposited to his bank account in May and June. Since he did not do so, waiver of that amount was denied.

Mr. Pick states that he flew as the aircraft commander of C-141's much of the time he was on active duty and that, when he was not actually flying, he was required to live at Norton Air Force Base because his residence in Lancaster, California, was outside the Norton local area. Since he is single and lives alone with no one other than himself to manage his civilian affairs, and his mail was not being forwarded to Norton, he did not have ready access to his bank statements. Further, such pay statements as he was entitled to receive were delivered to his office at his civilian duty station. According to Mr. Pick, the only thing he knew about his finances was his checking account balance and that information was obtained only through his use of automatic teller machines. In addition, since payment of his military pay was so irregular and in varying amounts, he did not know at any given time how much money should be in his checking account.

Waiver of a debt under the provisions of 5 U.S.C. Sec. 5584 (1988) is an equitable remedy. As such, waiver must necessarily depend on the facts in each case, since by statute "an indication of . . . fault . . . on the part of an employee" precludes waiver.[1]

Fault, as used in 5 U.S.C. Sec. 5584, is considered to exist if it is determined that an employee exercising reasonable diligence should have known that an error existed, but failed to take corrective action.[2] The standard employed is whether a reasonable person should have been aware of receiving payment in excess of proper entitlement.[3] Generally, if an employee receives documents which would indicate an improper payment and fails to review those documents for accuracy or otherwise fails to take corrective action, the employee is not without fault and waiver will be denied.[4]

In the present case, Mr. Pick received three payments of $1,668 each by direct deposit to his checking account for three successive pay period in May and June 1991. This was 4 months after his civilian pay was suspended. Although he has argued that his pay statements were delivered to his office at his civilian duty station and, thus, he knew nothing about them, we have been informed by Mr. Pick that he had the opportunity to retrieve his mail several times a month. The primary purpose was to get his bills so he could pay them. In the process he says he ignored his bank statements because he knew he had an adequate balance for check writing. Had he taken the time to look over his bank statements, he would have seen the three extra deposits to his account in ammounts approximately equal to his net biweekly civilian pay. Had he done so, he would have been alerted to the possibility that the deposits were improper, at least sufficiently so to cause him to contact appropriate agency personnel at Edwards Air Force Base question the payments.

Since he failed to take any action regarding his bank statements, he must be deemed partially at fault in the matter. Accordingly, the action taken by our Claims Group denying waiver of the larger part of Mr. Pick's debt is sustained.

The Honorable Barbara Boxer United States Senator 1700 Montgomery Street Suite 240 San Francisco, California 94111

Dear Senator Boxer:

We refer further to your letter dated February 15, 1994, enclosing for our consideration a letter, with attachments from Mr. Jonathan C. Pick, Lancaster, California. Mr. Pick appeals our Claims Group's action Z-2917549, October 16, 1992, denying waiver of a part of his debt to the United States as a result of overpayment of compensation.

By decision B-256262, dated today, copy enclosed, we sustain our Claims Group's ruling. Our reason is that Mr. Pick had the opportunity to make himself aware of the erroneous payments shortly after they occurred and failed to take action to clarify his entitlement to the payments.

We trust this will serve the purpose of your inquiry. A similar reply is being made to the Honorable Howard P. McKeon, House of Representatives.

The Honorable Howard P. McKeon Member, United States House of Representatives 23929 W. Valencia Boulevard Suite 410 Santa Clarita, California 91355

Dear Mr. McKeon:

We refer further to your letter dated January 7, 1994 (your file reference 280124), enclosing for our consideration a letter, with attachments from Mr. Jonathan C. Pick, Lancaster, California. Mr. Pick appeals our Claims Group's action Z-2917549, October 16, 1992, denying waiver of a part of his debt to the United States as a result of overpayment of compensation.

By decision B-256262, dated today, copy enclosed, we sustain our Claims Group's ruling. Our reason is that Mr. Pick had the opportunity to make himself aware of the erroneous payments shortly after they occurred and failed to take action to clarify his entitlement to the payments.

We trust this will serve the purpose of your inquiry. A similar reply is being made to the Honorable Barbara Boxer, United States Senate.

Date: April 25, 1994 To: Director, Claims Group From: Acting General Counsel - Robert P. Murphy Subject: Jonathan C. Pick - Waiver - B-256262-O.M.

We are returning Claim File No. Z-2917549 in the case of Mr. Jonathan C. Pick, involving his appeal from your settlement which denied waiver in part.

By decision B-256262, dated today, copy attached, we have sustained your denial.

1. 5 U.S.C. Sec. 5584(b).

2. 4 C.F.R. Sec. 91.5 (1993).

3. George R. Beecherl, B-192485, Nov. 17, 1978.

4. David J. Rendon, 68 Comp.Gen. 573 (1989), and decisions cited. See also, Frank A. Ryan, B-218722, Dec. 17, 1985; Sheldon H. Avenius, Jr., B-226465, Mar. 23, 1988; and John J. Williams, B-251667, Apr. 2, 1993.