12/14/1999

A retired Air Force officer who holds a civilian position with the Air Force previously received overpayments totaling over $40,000 when his military retired pay was not reduced in accordance with the pay cap limitation in the dual compensation statute, 5 U.S.C. § 5532. Collection of that debt was waived in 1993. His retired pay was not reduced following six raises in civilian pay which he received between October 1994 and January 1998. With the discovery of the earlier debt, the member should have been aware of the pay cap limitation and the calculations necessary to accomplish them. He is at fault in the continuing accrual of the subsequent debt, and that debt cannot be waived under 10 U.S.C. § 2774.

10/29/1999

A member retired from the regular component of the Army (RA) under 10 U.S.C. § 1293 as a chief warrant officer (W3). Early in his military career he had served as a captain in the United States Army Reserve (USAR). Under 10 U.S.C. § 3964, when his active duty time plus his time on the retired list equaled thirty years, he was entitled to be advanced to the highest grade in which he served on active duty. Since there is no authority under 10 U.S.C. § 3964 for the member to be moved from the retired list of the RA to the retired list of the USAR when advanced, he was properly advanced to the rank of captain in the RA. The member became a civilian employee after his military retirement. His military retired pay remained subject to 5 U.S.C. § 5532, the Dual Compensation statute.

09/10/1999

When a member is aware or should be aware that he is receiving payments in excess of his entitlements, he does not acquire title to the excess amounts and has a duty to hold them for eventual repayment. In such a situation, waiver is not appropriate.

08/18/1999

Upon discharge, a member reviewed the worksheet for his final separation payment. He noted that his readjustment pay was not based on his full term of service. He received a partial payment and returned the next day for the balance. He then noted that optional state income tax withholding had been deducted and asked that it be restored. When the deduction for state income tax withholding was deleted, his withholding for federal income tax was also deleted. This caused his final check to be more than 2.5 times the amount it should have been. The member is partly at fault for not questioning his entitlement to that amount and calling it to the attention of the proper authorities. This decision was affirmed by the Deputy General Counsel (Fiscal), Department of Defense, on February 9, 2001.

07/30/1999

Due to an administrative error, a member's retired pay was not reduced by the amount of the compensation he was receiving from the Veterans Administration. The member's waiver request is denied although he requested an accounting of his retired pay but did

07/28/1999

A member of the Commissioned Corps of the United States Public Health Service (USPHS) obtained loans intended partially for home improvements. When he submitted receipts as proof that he had spent the loan proceeds for approved purposes to increase his Variable Housing Allowance (VHA), the USPHS rejected some of the receipts and delayed crediting others to his VHA. VHA at the time in question was governed by the Joint Federal Travel Regulations (JFTR). The USPHS's handling of the receipts had to be in accordance with the JFTR, and we will give deference to the interpretation given to the JFTR by the Per Diem, Travel and Transportation Allowance Committee, the agency with the responsibility to administer the JFTR. This decision was modified by the DoD Deputy General Counsel (Fiscal) on January 10, 2001.

07/26/1999

A service member was paid Basic Allowance for Housing for 11 months while she occupied government quarters. She received Leave and Earnings Statements (LESs) which indicated the error. She did not review the LESs to verify their accuracy and call the error to the attention of the proper authorities. Therefore, she is partially at fault for the accrual of the debt, and waiver is precluded.

6/24/1999

1. A former member of the Air Force received two payments of pay and allowances after entering no-pay status while on appellate leave. The payments were deposited in the same bank account to which the Defense Finance and Accounting Service had been depositing his pay and allowances. It is a long-standing principle that a member has a duty to monitor his bank account for deposits in excess of his entitlements and to report overpayments to the appropriate authorities. The fact that the member states that he had relinquished control of the account to his former spouse does not relieve him of that duty. 2. Premiums for the member's Servicemen's Group Life Insurance continued to be paid on his behalf until his discharge. The total amount of the premiums cannot be considered for waiver because the premium payments were not erroneous payments.

06/09/1999

An Air Force member erroneously continued to receive Basic Allowance for Quarters (BAQ) at the without dependent rate, along with BAQ at the differential rate (BAQ-DIFF) even after he moved into government quarters. He was receiving BAQ-DIFF as a result of a support obligation. The fact that the member was initially misinformed as to his entitlements does not provide a basis for waiver, since a reasonable person who is a major with substantial active duty service would have set the money aside while he sought further clarification from appropriate authorities. When a member is or should be aware that he has received an overpayment, he does not acquire title to the excess amounts, and he has a duty to hold the money for eventual repayment. This decision was affirmed by the Deputy General Counsel (Fiscal), Department of Defense, on February 9, 2001.

04/28/1999

A member was involuntarily separated from the Army following an unjust officer evaluation report, and upon application to the Army Board of Correction of Military Records, he was reinstated on active duty. After reinstatement, finance officials mistakenly paid the member properly accrued back pay and allowances without offset for collection of separation pay and other payments he received at separation, which, upon reinstatement, became erroneous. The waiver of any net indebtedness that the member would have experienced upon offset of the back pay and allowances against payments made to him at separation is proper, but waiver of the value of the back pay and allowances is inappropriate because the member should have known that he cannot receive both the separation payments and his back pay and allowances for the same period of time. The Deputy General Counsel (Fiscal), Department of Defense, reversed this decision on October 3, 2000.

04/27/1999

When at least one of the parties to a marriage becomes a bona fide resident of a foreign country before obtaining a divorce in that country, this Office will generally not question the validity of the divorce. Therefore, we allow reinstatement of the SBP annuity of a military widow who provided documentation that her husband, who became a resident of Panama in 1978, obtained a Panamanian divorce in 1985 before marrying her later that year. She is also entitled to retroactive payment of the annuity from its suspension in 1992.

04/27/1999

1. A service member who knows or should know that he received an erroneous payment is obliged to return that amount to the government when the error is corrected. A service member who retired effective July 31 and received a regular mid-month payment of active duty pay in August, reasonably should know that he is not entitled to such a payment. Waiver is denied. 2. Advance pay is not an erroneous payment and therefore may not be considered for waiver under the waiver statute.

04/20/1999

When a member receives an amount to which he knows or should know that he is not entitled, he does not acquire title to the money. He has a duty to hold the money for eventual repayment. In that situation, waiver under 10 U.S.C. § 2774 is not appropriate. This decision was affirmed by the DOD Deputy General Counsel (Fiscal) on January 25, 2001.

04/19/1999

A member was placed on the Temporary Disability Retired List (TDRL) effective on March 2, 1996, but he was not aware of this action until September 1996. The member received his first disability retired pay payment of $7,009.60 on October 1, 1996, for the period from March 3, 1996, through September 30, 1996. The member had also received $11,233.35 for active duty pay and allowances for the period April 15, 1996, through September 15, 1996. The member was not legally entitled to active duty pay and allowances after March 2, 1996. DOHA correctly waived $4,223.75 to avoid the inequity of placing the member in an indebtedness but denied waiver of $7,009.60 to avoid a windfall. The $7,009.60 that the member is entitled to receive was retired pay, and was subject to offset against compensation granted by the Department of Veterans Affairs (VA).

04/15/1999

When a member is aware that he has received an overpayment, he does not acquire title to the excess amounts, and he has a duty to hold the money for eventual repayment. In such circumstances waiver is not proper under 10 U.S.C. § 2774.

03/29/1999

When a retired colonel subject to the limitations set forth in 5 U.S.C. § 5532 knows that the Defense Finance and Accounting Service has calculated his retired pay using the incorrect base civilian salary and receives an overpayment of retired pay, waiver of the erroneous payment may not be granted.

03/25/1999

When a member is aware that he has received an overpayment, he does not acquire title to the excess amounts, and he has a duty to hold the money for eventual repayment. In such circumstances waiver is not proper under 10 U.S.C. § 2774.

03/24/1999

A service member who was authorized the use of Aero Club aircraft for temporary duty travel (TDY) was charged a checkout fee, including ground and flight instruction and aircraft rental, by the Aero Club for a checkout required as a precondition to using the aircraft for TDY or any other purpose. Such a fee is not specifically provided for as a necessary expense under the Joint Federal Travel Regulations. In the absence of evidence to the contrary, the checkout fee is considered a personal expense and as such is not reimbursable.

03/11/1999

A reserve member believed the active duty payments he received after release from active duty were a result of the pay problems he experienced prior to release, which he had repeatedly attempted to resolve with the Defense Finance and Accounting Service. Upon learning of his debt for the payments received after release, he continued his attempts to reconcile his prior pay problems. Under the waiver statute, the member is considered partially at fault for accepting the payments and not specifically questioning his entitlement to receive regular mid-month and end-of-month active duty pay for 6 months after release. This decision was affirmed by the DoD Deputy General Counsel (Fiscal) on December 28, 2000.

02/18/1999

After discharge, a member erroneously continued to receive active duty pay, but did not receive Leave and Earnings Statements or other documents explaining the payments. The member should have questioned his finance officer to verify the nature and amount of the payments. Not having done so, under the 10 U.S.C. § 2774, the member is considered partially at fault; and, therefore, waiver is not appropriate.

02/10/1999

A member who had been living in government quarters while stationed at Wright-Patterson AFB was allowed to continue living in the quarters while he attended law school nearby under the Excess Leave Legal Education Program. Housing personnel retroactively determined that the member owed rent in the amount of BAQ for a member of his rank for the period when he occupied the quarters while not receiving basic pay. Since the member's debt involves no erroneous payments of pay or allowances, the debt cannot be considered for waiver under 10 U.S.C. § 2774. However, due to uncertainty regarding the debt, we do not believe it should be collected from the member.

01/29/1999

An Air Force member's Overseas Housing Allowance (OHA) ceiling was miscalculated by base housing office personnel when the member arrived at his new duty station. He rented housing based on the information he had received. When he learned that the correct OHA ceiling was lower, he terminated his lease and moved to less expensive housing. He cannot be reimbursed for the amount he spent in excess of his entitlement, and we decline to submit his claim to Congress under the Meritorious Claims Act because it does not contain extraordinary equitable elements which would merit submission .

01/14/1999

If an Air Force member is to be reimbursed for personal procurement of transoceanic airline tickets, Air Force Instruction 65-103 requires that specific authorization to do so be included in his orders. A military member without that authorization in his orders, purchased tickets to Uzbekistan for a temporary duty assignment there. In contravention of paragraph U3120-A of volume I of the Joint Federal Travel Regulations, he purchased the tickets through a commercial travel office which was not under government contract. Therefore, he may not be reimbursed for the tickets.