B-138786, NOVEMBER 17, 1959, 39 COMP. GEN. 377

B-138786, NOVEMBER 17, 1959, 39 COMP. GEN. 377

MILITARY PERSONNEL - REENLISTMENT BONUS - RECOUPMENT - DEPENDENCY OR HARDSHIP SEPARATION DEPENDENCY OR HARDSHIP SEPARATIONS OF ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO ARE UNABLE TO COMPLETE THEIR TERMS OF ENLISTMENT DO NOT HAVE TO BE REGARDED AS VOLUNTARY UNDER THE REENLISTMENT RECOUPMENT PROVISIONS IN SECTIONS 207 (A) AND 208 (F) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 238, 239, OR THE IMPLEMENTING REGULATIONS, IN VIEW OF THE LEGISLATIVE INTENT THAT RECOUPMENT WOULD NOT BE REQUIRED WHERE THE DISCHARGE IS OCCASIONED BY CIRCUMSTANCES BEYOND THE CONTROL OF THE MEMBER AND SUBJECT TO SUCH REGULATIONS AS MAY BE APPROVED BY THE SECRETARY OF DEFENSE.

TO THE SECRETARY OF DEFENSE, NOVEMBER 17, 1959:

REFERENCE IS MADE TO LETTER OF OCTOBER 1, 1959, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON THE QUESTION (STATED IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 250) WHETHER THE SEPARATION OF AN ENLISTED MEMBER BECAUSE OF DEPENDENCY OR HARDSHIP IS TO BE CONSIDERED AS A VOLUNTARY NONCOMPLETION OF AN ENLISTMENT WITHIN THE MEANING OF SECTION 207 (A) AND SECTION 208 (F) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED (37 U.S.C. 238, 239), SO AS TO REQUIRE RECOUPMENT OF REENLISTMENT BONUS FOR THE PORTION OF THE REENLISTMENT NOT SERVED.

SECTION 207 (A) AND SECTION 208 (F) OF THE CAREER COMPENSATION ACT, AS AMENDED, 37 U.S.C. 238, AND 239, PROVIDE THAT, UNDER SUCH REGULATIONS AS MAY BE APPROVED BY THE SECRETARY OF DEFENSE, ANY PERSON WHO VOLUNTARILY OR AS THE RESULT OF HIS OWN MISCONDUCT DOES NOT COMPLETE THE TERM OF ENLISTMENT FOR WHICH HE WAS PAID A REENLISTMENT BONUS SHALL REFUND SUCH PART OF THE BONUS AS THE UNEXPIRED PART OF THE ENLISTMENT BEARS TO THE TOTAL ENLISTMENT PERIOD FOR WHICH THE BONUS WAS PAID.

REGULATIONS OF THE SECRETARY OF DEFENSE ARE SET FORTH IN DEPARTMENT OF DEFENSE DIRECTIVE 1304.4 DATED DECEMBER 6, 1954, WHICH FURNISH POLICY GUIDANCE TO THE SERVICES. CATEGORIES OF DISCHARGES WHERE RECOUPMENT OF THE BONUS IS TO BE EFFECTED ARE THERE ENUMERATED, BUT NO MENTION IS SPECIFICALLY MADE OF DISCHARGES FOR DEPENDENCY OR HARDSHIP. SECTION III PROVIDES IN PERTINENT PART FOR RECOUPMENT OF THE BONUS AS FOLLOWS:

* * * (B) IN APPLYING THE TERM "WHO VOLUNTARILY OR AS A RESULT OF HIS OWN MISCONDUCT" A PRO RATA PORTION OF THE REENLISTMENT BONUS SHALL BE, UPON A DETERMINATION OF THE SECRETARY CONCERNED, RECOVERED FOR:

(15) SEPARATION DIRECTED BY THE SECRETARY OF THE SERVICE CONCERNED IN INDIVIDUAL CASES.

THIS ENTRY CONCERNS THOSE INDIVIDUALS WHOSE DISCHARGE, OR TRANSFER TO A RESERVE COMPONENT, IF REQUIRED BY LAW, IS DIRECTED FOR THE CONVENIENCE OF THE GOVERNMENT BY AUTHORITY OF THE SECRETARY OF THE SERVICE CONCERNED, UPON APPLICATION AND IN THE INTEREST OF THE INDIVIDUAL, BECAUSE OF SPECIAL OR UNUSUAL CIRCUMSTANCES, INCLUDING DISCHARGES ON ACCOUNT OF ERRONEOUS ENLISTMENT FOR VARIOUS REASONS; TO PERMIT ATTENDANCE AT A CIVILIAN SCHOOL; TO PERMIT ENLISTMENT IN ANOTHER SERVICE, AND TO PERMIT ENLISTMENT OF ALIENS IN THE ARMED FORCES OF THEIR NATIVE COUNTRY. * * *

IT IS STATED IN THE COMMITTEE ACTION THAT ALL THE SERVICE PAY REGULATIONS ARE CONSISTENT IN THAT THERE IS NO SPECIFIC PROVISION REQUIRING RECOUPMENT OF THE REENLISTMENT BONUS UPON DISCHARGE FOR DEPENDENCY OR HARDSHIP, ALTHOUGH THEY CONTAIN A PROVISION IDENTICAL WITH THAT CONTAINED IN SECTION III, CATEGORY 15, OF THE DEPARTMENT OF DEFENSE DIRECTIVE 1304.4, REQUIRING RECOUPMENT WHEN SEPARATION IS DIRECTED BY THE SECRETARY CONCERNED FOR THE CONVENIENCE OF THE GOVERNMENT "UPON THE APPLICATION AND IN THE INTEREST OF THE INDIVIDUAL.' IT IS FURTHER STATED THAT NONE OF THE SERVICES CONSIDER A DISCHARGE FOR DEPENDENCY OR HARDSHIP AS FALLING WITHIN THAT CATEGORY AND THAT, THEREFORE, IT IS NOT THE POLICY OF ANY OF THE SERVICES TO REQUIRE RECOUPMENT OF THE REENLISTMENT BONUS IN SUCH A CASE.

TWO AUDIT NOTICES OF EXCEPTION HAVE BEEN ISSUED IN THE CASES OF TWO FORMER MARINE CORPS MEMBERS SEPARATED FOR HARDSHIP IN ACCORDANCE WITH AUTHORITY CONTAINED IN PARAGRAPH 10273, MARINE CORPS MANUAL. THE COMMITTEE ACTION STATES THAT THE CRITERIA FOR SUCH A DISCHARGE ARE:

A. UNDUE AND GENUINE DEPENDENCY OR HARDSHIP EXISTS;

B. DEPENDENCY OR HARDSHIP IS NOT OF A TEMPORARY NATURE;

C. THE MARINE HAS TRIED TO RELIEVE THE HARDSHIP BY MEANS OF APPLICATION FOR QUARTERS ALLOWANCE AND VOLUNTARY CONTRIBUTIONS;

D. CONDITIONS HAVE ARISEN OR HAVE BEEN AGGRAVATED TO AN EXCESSIVE DEGREE SINCE ENTRY INTO THE MARINE CORPS OR ENTRY ON CURRENT TOUR OF EXTENDED ACTIVE DUTY. * * *

E. DISCHARGE * * * WILL RESULT IN THE ELIMINATION OF, OR WILL MATERIALLY ALLEVIATE THE CONDITION, AND THAT THERE ARE NO MEANS OF ALLEVIATION READILY AVAILABLE OTHER THAN BY SUCH DISCHARGE.

THE RECOUPMENT OF THE REENLISTMENT BONUS WAS FIRST REQUIRED BY THE ACT OF OCTOBER 26, 1951, 65 STAT. 653, 37 U.S.C. 238, WHICH WAS ENACTED PRIMARILY TO PERMIT PAYMENT OF THE REENLISTMENT BONUS TO MEMBERS WHO HAD REENLISTED FOR AN INDEFINITE PERIOD PRIOR TO OCTOBER 1, 1949, FOR WHICH NO PROVISION HAD BEEN MADE IN THE CAREER COMPENSATION ACT. IN HIS REPORT OF JUNE 26, 1951, TO THE CHAIRMAN OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, THE SECRETARY OF THE ARMY STATED ON BEHALF OF THE DEPARTMENT OF DEFENSE:

* * * THE BUREAU OF THE BUDGET BELIEVES THAT A PROVISION SHOULD BE ADDED TO THE BILL WHICH WOULD PROVIDE FOR THE RECOUPMENT OF UNEARNED BONUS MONEY WHEN SEPARATION PRIOR TO COMPLETION OF ENLISTMENT TAKES PLACE IF SUCH SEPARATION IS NOT DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY OR OTHERWISE OCCASIONED BY CIRCUMSTANCES BEYOND THE CONTROL OF THE INDIVIDUAL.

SEE H. REPORT NO. 1078 AND SENATE REPORT NO. 935 ON H.R. 5405, 82D CONGRESS, WHICH BECAME THE ACT OF OCTOBER 26, 1951, AMENDING SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 238. THE LANGUAGE SUGGESTED BY THE DEPARTMENT OF THE ARMY TO CARRY OUT THE SUGGESTION OF THE BUREAU OF THE BUDGET IS SUBSTANTIALLY IDENTICAL WITH THAT ENACTED INTO LAW. SEE PAGE 1921 OF THE HEARINGS OF THE HOUSE COMMITTEE ON ARMED SERVICES ON H.R. 3366, 82D CONGRESS, FOR WHICH A NEW BILL WAS INTRODUCED AS H.R. 5405, 82D CONGRESS.

WITH RESPECT TO A DISCHARGE NOT FOR DISABILITY THAT IS "OTHERWISE OCCASIONED BY CIRCUMSTANCES BEYOND THE CONTROL OF THE INDIVIDUAL," THE COMMITTEE ACTION STATES:

* * * DISCHARGES FOR DEPENDENCY OR HARDSHIP, WHILE APPLIED FOR BY THE MEMBER, MAY NOT BE CONSIDERED TO BE IN HIS OWN PERSONAL INTEREST OR ENTIRELY VOLUNTARY. THIS TYPE OF DISCHARGE IS MOST FREQUENTLY FOR THE BENEFIT OF DEPENDENTS AT HOME. IN MANY CASES, THE MEMBER'S APPLICATION FLOWS FROM THE CONSTRAINT OR MORAL SUASION EXERCISED BY THE DEPENDENT, AMOUNTING TO UNDUE INFLUENCE ON THE MEMBER AND ATTEMPTED PRESSURE UPON THE SERVICE. FREE AGENCY ON THE PART OF THE MEMBER IS DOUBTFUL IN ANY CASE. DISCHARGE IS GRANTED ONLY AFTER SATISFYING CERTAIN PREREQUISITES WITH REGARD TO THE FINANCIAL AND OTHER NEEDS OF THE DEPENDENTS. PERSONAL CONVENIENCE OF THE MEMBER IS NOT MATERIAL. TO REQUIRE RECOUPMENT IN SUCH CASES WOULD BE INCONGRUENT WITH THE FACTS SUPPORTING THE SECRETARY'S APPROVAL OF THE DISCHARGE.

ADMITTEDLY, THE PHRASE "UPON APPLICATION AND IN THE INTEREST OF THE INDIVIDUAL," AS SET FORTH IN DEPARTMENT OF DEFENSE DIRECTIVE 1304.4 OF DECEMBER 6, 1954, SECTION III; CATEGORY 15, IS SUBJECT TO THE INTERPRETATION THAT RECOUPMENT IS REQUIRED IN THE CASE OF A MEMBER DISCHARGED BECAUSE OF HARDSHIP OR DEPENDENCY AS THE MEMBER MUST FORMALLY APPLY FOR SUCH DISCHARGE AND IT IS NORMALLY IN HIS INTEREST TO THE EXTENT THAT THE PRIMARY INTERESTS OF HIS DEPENDENTS ARE TO BE SERVED.

AS IS INDICATED IN THE LAST PARAGRAPH QUOTED ABOVE, CATEGORY 15 OF THE DEPARTMENT OF DEFENSE DIRECTIVE IS READILY SUBJECT TO THE INTERPRETATION THAT RECOUPMENT IS REQUIRED IN A DEPENDENCY OR HARDSHIP DISCHARGE SINCE THE MEMBER MUST APPLY FOR SUCH A DISCHARGE AND IT IS NORMALLY IN HIS INTEREST, AT LEAST TO THE EXTENT THAT IT SERVES THE INTERESTS OF HIS DEPENDENTS FOR WHOM HE IS MORALLY, IF NOT LEGALLY, RESPONSIBLE. HOWEVER, IN VIEW OF THE ENACTMENT OF THE RECOUPMENT PROVISION ON THE PREMISE THAT IT WAS NOT INTENDED THAT RECOUPMENT WOULD BE REQUIRED WHERE THE DISCHARGE "IS OCCASIONED BY CIRCUMSTANCES BEYOND THE CONTROL OF THE MEMBER," IT SEEMS REASONABLY CLEAR THAT THE CONGRESS DID NOT CONTEMPLATE THAT THE TERM "VOLUNTARILY" IN THE STATUTE SHOULD BE GIVEN A STRICT AND INFLEXIBLE MEANING, PARTICULARLY SINCE THE RECOUPMENT WOULD BE MADE "UNDER SUCH REGULATIONS AS MAY BE APPROVED BY THE SECRETARY OF DEFENSE.'

IN CONSIDERING IMPLEMENTATION OF THE RECOUPMENT PROVISION OF SECTION 207 (A), THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, IN COMMITTEE ACTION NO. 13, DATED NOVEMBER 8, 1951, A COPY OF WHICH WAS ENCLOSED WITH COMMITTEE ACTION NO. 250, CONCLUDED THAT REFUND SHOULD NOT BE REQUIRED IF A MEMBER DOES NOT COMPLETE HIS TERM OF ENLISTMENT BECAUSE OF A DISCHARGE FOR REASON OF DEPENDENCY OR HARDSHIP. IT HAS BEEN INFORMALLY REPORTED THAT COMMITTEE ACTION NO. 13 WAS CONSIDERED WHEN DEPARTMENT OF DEFENSE DIRECTIVE 1304.4 WAS PREPARED.

COMMITTEE ACTION NO. 250 ALSO STATES:

THE MILITARY PERSONNEL POLICY SUBCOMMITTEE IN ITS PROJECT REPORT M 8-50 TO THE MILITARY PERSONNEL POLICY COMMITTEE CONCLUDED THAT "IT IS NOT CONSIDERED DESIRABLE TO REQUIRE A MEMBER TO REPAY ALL OR PART OF A REENLISTMENT BONUS WHO IS BEING SEPARATED FROM THE SERVICE BY REASON OF HARDSHIP, DEPENDENCY, * * *. IT IS CONSIDERED THAT A POLICY WHICH WOULD REQUIRE REPAYMENT OF ALL OR PART OF A REENLISTMENT BONUS IN CASES OF DEPENDENCY OR HARDSHIP WOULD ONLY PROVIDE AN ADDITIONAL HARDSHIP AND WOULD BE CONTRARY TO HUMANITARIAN TREATMENT.' THE SUBCOMMITTEE THEREFORE RECOMMENDED THAT NO RECOUPMENT SHOULD BE REQUIRED OF A MEMBER SEPARATED FROM THE SERVICE BY REASON OF DEPENDENCY OR HARDSHIP.

IN VIEW OF THE REPRESENTATIONS MADE, IT IS CONCLUDED THAT THE STATUTE DOES NOT REQUIRE AND THE REGULATIONS CONTAINED IN DEPARTMENT OF DEFENSE DIRECTIVE 1304.4 DO NOT CONTEMPLATE THE RECOUPMENT OF THE REENLISTMENT BONUS IN CASES WHERE THE MEMBER IS DISCHARGED ON ACCOUNT OF DEPENDENCY OR HARDSHIP. THE EXCEPTIONS WILL BE REMOVED.