Thomas S. Miller-Aviator Continuation Pay-Waiver Request

B-271951 Dec 17, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights An Air Force officer who was scheduled to be separated in August 1994 was advised by responsible service personnel in late March that his annual installment of aviation continuation pay. When the payment was made in April. It was for the full annual amount. The day following payment the finance office advised the officer that the excess amount was erroneous and would be collected from him. Collection is not considered to be against equity and good conscience. Sec. 2774 is denied. He was entitled to the full annual installment is in effect a claim. DECISION This is in response to Thomas S. Captain Miller was nonselected for promotion and scheduled to be involuntarily separated from the Air Force on August 31. View Decision Matter of: Thomas S. Miller-Aviator Continuation Pay-Waiver Request File: B-271951 Date: December 17, 1996 An Air Force officer who was scheduled to be separated in August 1994 was advised by responsible service personnel in late March that his annual installment of aviation continuation pay, due in April, would be limited to a prorated amount covering his remaining service time from April to August. However, when the payment was made in April, it was for the full annual amount, but the day following payment the finance office advised the officer that the excess amount was erroneous and would be collected from him. In these circumstances, collection is not considered to be against equity and good conscience, and waiver of the overpayment under 10 U.S.C. Sec. 2774 is denied. The officer's additional assertion that, under his continuation pay agreement, he was entitled to the full annual installment is in effect a claim, and the authority to settle such claims has been transferred from the General Accounting Office to the Department of Defense where he may pursue that matter. DECISION This is in response to Thomas S. Miller's request for waiver of the claim asserted against him by the Defense Finance and Accounting Service (DFAS) for a portion of the aviator continuation pay he received while serving on active duty as a captain in the Air Force. As explained below, we find that the claim does not qualify for waiver under our waiver authority, 10 U.S.C. Sec. 2774. [1] BACKGROUND The record shows that in April 1992, Captain Miller entered into an aviator continuation pay agreement with the Air Force, pursuant to 37 U.S.C. Sec. 301b, whereby he agreed to remain on active duty through December 21, 1995, in consideration for which he became entitled to aviator continuation pay, payable in annual installments. It appears that in early 1994, Captain Miller was nonselected for promotion and scheduled to be involuntarily separated from the Air Force on August 31, 1994. Captain Miller states that on March 30, 1994, he contacted the Air Force office that deals with continuation pay to learn how his separation would affect his future payments. He states he was advised that the amount of his upcoming April annual payment would be prorated to cover the remaining period of his service, i.e., through August 31. He also states that he expressed the belief that under the agreement he had signed, he was entitled to the full annual payment for that year, not a prorated amount. On April 13, 1994, personnel at the Finance Office at Ellsworth Air Force Base, where Captain Miller was then stationed, advised him that it was too late for the Ellsworth office to adjust the payment of his annual installment ($6,527.55), which had been paid to his account in full on April 11, 1994, by the Finance and Accounting Center in Denver, but the amount applicable to the period after his scheduled separation in August was an overpayment which would be collected from him. On April 28, 1994, Captain Miller filed a request for waiver of the overpayment. However, Captain Miller was separated from the Air Force on August 31, 1994, and the amount of the continuation pay installment applicable to the period after that date ($4,152.25) was collected from him by the Air Force, and DFAS forwarded his request for waiver to our office for consideration. As noted above, Captain Miller acknowledges that he was told in March that he was entitled to only a prorated amount of his annual incentive pay installment and that he was advised the day after the full payment was made on April 11 that the amount applicable to the period after his separation date in August would be collected from him. However, it is his position that under the terms of his continuation pay agreement, he was entitled to receive the full annual payment; and, therefore, the payment he received was not erroneous, and the $4,152.25 collected should be refunded to him.