BNUMBER:  B-265874
DATE:  May 22, 1996
TITLE:  John Wessels

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Matter of:John Wessels

File:     B-265874

Date:May 22, 1996

DIGEST

Generally, where an agency promptly notifies an employee of an 
overpayment, the employee is precluded from relying on the accuracy of 
the payment to his detriment and waiver is not appropriate since 
collection of the payment would not be against equity and good 
conscience despite the absence of fault on the part of the employee.  
In this case the agency notified employee within 3 weeks of the error.  
Moreover, employee had notice prior to submitting his voucher that the 
original travel orders were erroneous.  Waiver is denied.

DECISION

The Chief, Travel Division, Defense Finance and Accounting Service 
(DFAS), requests reconsideration of our settlement certificate 
Z-2942616-050, July 28, 1995, which denied the waiver request of Mr. 
John Wessels.  For the reasons stated hereafter, we affirm our denial 
of the waiver request.

BACKGROUND

On January 27, 1994, Mr. Wessels was issued travel orders authorizing 
a permanent change of station move from Kentwood, Michigan, to 
Buffalo, New York.  In connection with his move, Mr. Wessels was 
authorized the shipment and storage of his household goods.  While the 
orders did not indicate the method of shipment, the estimated cost 
shown on the orders is based on the commuted rate.  Mr. Wessels states 
that he was told by his regional personnel office that he would be 
reimbursed shipment of household goods under the commuted rate method.  
Mr. Wessels shipped his household goods on June 30, 1994, choosing to 
ship them himself; his actual expenses were $924.75.

Mr. Wessels' orders were amended on July 1, 1994, to limit the 
shipment of his household goods to his actual expenses, not to exceed 
the cost by government bill of lading (GBL).  He received the amended 
orders on July 6 or 7.  Mr. Wessels submitted his travel voucher on 
July 9, 1994, seeking reimbursement for $4,988.62 under the commuted 
rate.

In mid-September 1994, DFAS reimbursed him $4,988.62 under the 
commuted rate believing it was unable to retroactively modify his 
orders merely to limit reimbursement.  In early October 1994, DFAS 
determined that Mr. Wessels' orders were properly amended to limit his 
reimbursement to his actual expenses, based on the conclusion that the 
failure to conduct a cost comparison at the time the orders were 
issued justified a retroactive modification of the orders.  DFAS 
concluded Mr. Wessels had received $4,063.87 in excess of his proper 
entitlement; he then requested waiver of this amount. 
 
We denied the waiver request on the basis that, for a waiver of an 
erroneous travel advance to be appropriate, it must first be shown 
that the employee spent the amount erroneously paid in reliance on the 
erroneous orders.  DFAS requests reconsideration stating that this 
case does not involve an erroneous travel advance, but instead is an 
instance of an erroneous payment of travel entitlements where the 
requirement that the erroneously paid amount actually be spent does 
not apply.  While DFAS is correct on this point, we deny the waiver on 
other grounds.

ANALYSIS AND CONCLUSION

Title 5 U.S.C.  sec.  5584 (1995) provides authority for the waiver of a 
claim of the United States against a person which arises out of an 
erroneous payment of pay and allowances including travel, 
transportation, and relocation expenses and allowances.  Waiver is 
permitted only when the collection of the claim would be against 
equity and good conscience, and not in the best interest of the United 
States.  In this case, Mr. Wessels' original travel orders were silent 
as to the method of shipment for the household goods.  The Joint 
Travel Regulations (JTR), Vol. 2, Para. C8001-4c(3), amended October 
1, 1990, include a mandatory policy that a cost comparison be made 
between the cost of shipment by the GBL method and by the commuted 
rate method.  Under the regulations, the more economical method will 
be used if the cost difference exceeds $100.  A cost comparison was 
not performed before issuance of Mr. Wessels' original orders.  This 
omission required modification of the travel orders to specify the 
shipment method authorized.  See Steven B. Wirth, B-249337, May 6, 
1993.  The result of the cost comparison identified GBL as the least 
expensive method of shipment.  The reimbursement of $4,988.62 under 
the commuted rate after the cost comparison was made and the orders 
amended was an erroneous payment.

Mr. Wessels was reimbursed $4,988.62 when his actual receipted 
expenses totalled $924.75.  The difference of $4,063.87 may be 
considered for waiver under 5 U.S.C.  sec.  5584 (1995).

We have held that where an agency's prompt notification of an 
overpayment to an employee precludes him from relying on the accuracy 
of the payment to his detriment, waiver is not appropriate since 
collection of the payment would not be against equity and good 
conscience despite the absence of fault on the part of the employee.  
See Richard C. Clough, 68 Comp. Gen. 326 (1989).  In this case the 
agency notified Mr. Wessels within 3 weeks of the error.  Moreover, he 
had notice prior to submitting his voucher that the original travel 
orders authorizing the commuted rate were erroneous.

Accordingly, we affirm our denial of Mr. Wessels' waiver request. 

/s/Seymour Efros
for Robert P. Murphy
General Counsel