Elizabeth Collins
| Citation | 66 Comp.Gen. 260 |
| Decision Date | 17 February 1987 |
| Docket Number | B-222190 |
| Parties | ELIZABETH COLLINS |
| Court | Comptroller General of the United States |
Military personnel - pay - retirement pay - overpayments - personnel death military personnel - pay - survivor benefits - amount determination over a 2-year period the widow of a deceased army sergeant erroneously received recurring monthly payments of military retired pay, amounting to $24, 403.60, which should have ceased at the time of her husband's death. After army officials learned of his death, they stopped the retired pay and calculated the survivor benefit plan annuity payable to the widow. The widow was entitled to a survivor's annuity in an amount equal to 55 percent of her husband's military retired pay. Although the annuity entitlement is retroactive to the date of the retired soldier's death, the widow May not be allowed additional payment for the period for which she received erroneous retired pay. Instead, the amount of her retroactive survivor's annuity entitlement should be applied toward the satisfaction of the debt owed by her as the result of her improper receipt of her husband's military retired pay and the remainder of the debt should be either collected or waived in accordance with applicable law and regulation.
This action is in response to a request for an advance decision from the army regarding the collection of erroneous payments of military retired pay received by Mrs. Elizabeth Collins after the death of her husband, sergeant first class freddie collins.[1] it is our view that the military retired pay erroneously paid to Mrs. Collins May be collected through setoff against the military survivor benefit plan annuity payable to her following sergeant collins' death.
Sergeant first class freddie collins, USA, retired from the army on November 1, 1968. He subsequently elected to provide survivor benefit plan coverage for Mrs. Collins. Under this election Mrs. Collins became eligible for a survivor's annuity payable at the rate of 55 percent of the amount of sergeant collins' retired pay. Sergeant collins died on December 18, 1982, but Mrs. Collins did not notify the army of his death and continued to countersign and deposit the retired pay checks.
Sergeant collins' death was discovered by a special interagency systems match of retired pay accounts, and the army received a copy of his death certificate on December 12, 1984, in reply to a request for verification of his death. During the period between December 31, 1982, and November 30, 1984, Mrs Collins erroneously received and negotiated checks for retired pay totaling $24, 403.60.
Mrs Collins then applied for a survivor benefit plan annuity. The service has established her entitlement from 1982. The question presented by the army is whether the amount of the annuity entitlement under the survivor benefit plan from December 1982 through November 1984 May be applied toward the satisfaction of the debt owed by Mrs. Collins for the same period. The entitlement of $12, 498.42 would be applied against the total debt of $24, 403.60, leaving a remaining debt of $11, 905.18. If this is found to be proper, the army further questions whether the remainder of the debt, $11 905.18, May also be collected through setoff against the continuing annuity payments accruing to Mrs. Collins' credit. If so, the army also questions what procedures should be used, and whether interest charges May be waived.
The disbursing agent also notes that 10 U.S.C. 1450(i) prohibits assignment of the survivor benefit annuity and prevents execution, attachment, garnishment or other legal process against the annuity. Asks whether the provision would affect an administrative offset.
Analysis and conclusion
We have held that in cases where a spouse receives over payments of retired pay due to failure to stop payment of a retired service member's retired pay after his death, and the spouse is entitled to retroactive payment of a military survivor's annuity in a lesser amount for the same period, the amount of the annuity for the same period must be applied toward the satisfaction of the debt.[2] the retired pay received is essentially treated in part as payment to the beneficiary of the survivor benefit plan annuity properly due, and only the excess is treated as an erroneous over payment. Hence, in the present case, the amount of Mrs Collins' survivor benefit plan annuity entitlement for the period from December 1982 through November 1984 should be applied toward the satisfaction of the total debt owed by her.
As to the remaining balance of the debt in this case, Mrs. Collins is eligible to apply for a waiver of collection under the provisions of 10 U.S.C. 2774.[3] that statute generally authorizes the waiver of claims for the collection of overpayments of military pay and allowances, if collection action "would be against equity and good conscience and not in the best interest of the United States, " and there is no indication of "fraud, misrepresentation fault, or lack of good faith" on the part of the person applying for waiver.
Otherwise collection procedures by administrative offset are found in 31 U.S.C. 3716 and 4 C.F.R. Part 102, standards for the administrative collection of claims. Section 102.3 provides that debts May be collected through administrative offset at the discretion of creditor agencies, subject to certain procedural...
To continue reading
Request your trial