B-131423, MAY 2, 1957

B-131423, MAY 2, 1957

TO CAPTAIN NEWELL E. HOUSTON, U.S. ARMY:

REFERENCE IS MADE TO LETTER OF APRIL 10, 1957, WRITTEN ON YOUR BEHALF BY LLOYD L. OUBRE, ATTORNEY AT LAW, REQUESTING REVIEW OF SETTLEMENT OF MARCH 29, 1957, WHICH DISALLOWED YOUR CLAIM FOR THAT PORTION OF AN ENLISTMENT ALLOWANCE PREVIOUSLY PAID TO YOU WHICH YOU HAVE REFUNDED.

IT APPEARS THAT BY LETTER OF DECEMBER 15, 1949, HEADQUARTERS FOURTH ARMY, YOU WERE NOTIFIED THAT YOUR ACTIVE-DUTY STATUS AS AN OFFICER IN THE ARMY OF THE UNITED STATES WOULD BE TERMINATED MARCH 19, 1950, AND THAT SUCH ACTION WAS BEING TAKEN SOLELY BECAUSE OF A REDUCTION IN THE NUMBER OF OFFICERS ON ACTIVE DUTY FOR REASONS OF ECONOMY. THE RECORD SHOWS THAT UPON YOUR RELIEF FROM ACTIVE DUTY AS AN OFFICER YOU ENLISTED IN THE ARMY ON THE FOLLOWING DAY (MARCH 20, 1950) FOR A TERM OF 3 YEARS. BY COMBINING YOUR EARLIER ENLISTED SERVICE WITH YOUR SERVICE AS A COMMISSIONED OFFICER, YOU HAD MORE THAN 30 YEARS' SERVICE AND BY ENLISTING ON MARCH 20, 1950, YOU IMMEDIATELY ACQUIRED A RIGHT TO RETIREMENT UNDER 10 U.S.C. 947, WHICH PROVIDES THAT WHEN "AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS * * * HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST.' THE AMOUNT OF $300 PAID YOU AS AN ENLISTMENT ALLOWANCE IN 1950 WAS COMPUTED UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, AS AUTHORIZED BY THE SAVING PROVISION IN SECTION 207/D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812. IT IS UNDERSTOOD THAT YOU MADE APPLICATION FOR RETIREMENT AND THAT YOU WERE RETIRED ON JUNE 30, 1950.

THE EVIDENT PURPOSE OF THE PROVISIONS OF LAW AUTHORIZING PAYMENT OF AN ENLISTMENT ALLOWANCE WAS TO SECURE THE SERVICES OF THE PERSONS CONCERNED FOR THE PERIODS THEY CONTRACTED TO SERVE UPON ENLISTMENT OR REENLISTMENT. PRIOR TO ENACTMENT ON OCTOBER 26, 1951, OF AN AMENDMENT TO SECTION 207/A) OF THE CAREER COMPENSATION ACT, 65 STAT. 653, WE HAD VIEWED THE MERE COMPLIANCE WITH THE FORMALITY OF ENTERING INTO A CONTRACT OF ENLISTMENT, WITHOUT THE INTENTION OF SERVING UNDER SUCH CONTRACT, AS REPUGNANT TO THE EVIDENT LEGISLATIVE INTENT AND PURPOSE OF THE STATUTE, WHICH CONTEMPLATED THAT ENLISTMENT OR REENLISTMENT BE ENTERED INTO IN GOOD FAITH. SEE 35 COMP. GEN. 664, 665, AND CASES THERE CITED. THE CONGRESS TOOK A STRONGER STAND AGAINST RETENTION OF AN UNEARNED REENLISTMENT BONUS (ELIMINATING THE ELEMENT OF GOOD FAITH) SINCE THE ACT OF OCTOBER 26, 1951, REQUIRES REFUND OF UNEARNED REENLISTMENT BONUS BY ANY PERSON "WHO VOLUNTARILY OR AS THE RESULT OF HIS OWN MISCONDUCT, DOES NOT COMPLETE THE TERM OF ENLISTMENT FOR WHICH THE BONUS WAS PAID.'

WHILE STATEMENTS ARE MADE IN THE LETTER OF APRIL 10, 1957, INDICATING THAT YOU INTENDED TO SERVE THE PERIOD FOR WHICH YOU ENLISTED AND THAT YOUR DECISION TO APPLY FOR RETIREMENT WAS MADE SOLELY ON THE BASIS OF YOUR WIFE'S ILL HEALTH WHICH SEEMED TO BE GETTING WORSE, SUCH STATEMENTS MAY NOT BE ACCEPTED AS FURNISHING A PROPER BASIS FOR PAYING YOU OR PERMITTING YOU TO RETAIN ANY PART OF THE ENLISTMENT ALLOWANCE PAID YOU IN 1950, SINCE HER HOSPITALIZATION FOR A PERIOD OF 2 YEARS MUST HAVE APPRISED YOU OF HER CONDITION AND NEED OF ADDITIONAL CARE AT THE TIME OF YOUR ENLISTMENT AND YOU MADE APPLICATION FOR RETIREMENT SHORTLY THEREAFTER.