B-140026, JUN. 21, 1960

B-140026: Jun 21, 1960

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LEGAL AID ATTORNEY: REFERENCE IS MADE TO YOUR LETTER DATED APRIL 15. WERE SET FORTH AND DISCUSSED IN OFFICE LETTER TO YOU DATED APRIL 7. THEY WILL BE SUMMARIZED ONLY BRIEFLY HERE. NO ARMY OFFICIAL WAS AUTHORIZED TO ACCEPT HIS ENLISTMENT FOR AN UNSPECIFIED PERIOD. WITHOUT REGARD TO WHETHER OR NOT SUCH OFFICIAL WAS AWARE OF THAT LIMITATION ON HIS AUTHORITY. WHEN THE ERROR WAS DISCOVERED BY THE PROPER AUTHORITIES. SHARER WAS SO ADVISED AND HE WAS AFFORDED AN OPPORTUNITY TO SELECT ANY ONE OF THE AUTHORIZED ENLISTMENT PERIODS IN LIEU OF THE UNSPECIFIED PERIOD. HE WAS ALSO ADVISED AS TO THE POSSIBLE RECOUPMENT OF THE REENLISTMENT BONUS. AS A VOID ACT CANNOT BE REGARDED AS A VOLUNTARY ACT ON HIS PART AND THAT SUCH ACTION WAS NOT WITHIN THE SCOPE OF SECTION 208 (F).

B-140026, JUN. 21, 1960

TO MR. ROBERT S. MATTHEWS, LEGAL AID ATTORNEY:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 15, 1960, CONCERNING THE INDEBTEDNESS TO THE UNITED STATES OF MR. JAMES A. SHARER IN THE AMOUNT OF $726.60 REPRESENTING THE BALANCE DUE ON THE REFUND OF THE UNEARNED PORTION OF A REENLISTMENT BONUS PAID TO HIM.

THE FACTS IN THIS CASE, TOGETHER WITH APPLICABLE PROVISIONS OF LAW AND REGULATIONS, WERE SET FORTH AND DISCUSSED IN OFFICE LETTER TO YOU DATED APRIL 7, 1960, AND THEY WILL BE SUMMARIZED ONLY BRIEFLY HERE. AT THE TIME MR. SHARER REENLISTED IN THE ARMY FOR AN UNSPECIFIED PERIOD OF TIME ON JUNE 30, 1957, THE GOVERNING REGULATIONS CONTAINED IN PARAGRAPHS 11 AND 12, ARMY REGULATIONS 601-210, CHANGE 2, APRIL 9, 1957, DID NOT PERMIT ENLISTMENTS FOR UNSPECIFIED PERIODS. UNDER SUCH REGULATIONS, NO ARMY OFFICIAL WAS AUTHORIZED TO ACCEPT HIS ENLISTMENT FOR AN UNSPECIFIED PERIOD, WITHOUT REGARD TO WHETHER OR NOT SUCH OFFICIAL WAS AWARE OF THAT LIMITATION ON HIS AUTHORITY. WHEN THE ERROR WAS DISCOVERED BY THE PROPER AUTHORITIES, MR. SHARER WAS SO ADVISED AND HE WAS AFFORDED AN OPPORTUNITY TO SELECT ANY ONE OF THE AUTHORIZED ENLISTMENT PERIODS IN LIEU OF THE UNSPECIFIED PERIOD. HE WAS ALSO ADVISED AS TO THE POSSIBLE RECOUPMENT OF THE REENLISTMENT BONUS. ON SEPTEMBER 3, 1957, HE SIGNED A STATEMENT THAT HE DID NOT DESIRE TO REENLIST FOR A SPECIFIED TIME, RESULTING IN HIS DISCHARGE BEING DIRECTED BY THE SECRETARY OF THE ARMY BY REASON OF ERRONEOUS ENLISTMENT.

YOU CONTEND THAT THE REFUSAL OF MR. SHARER TO REGARD HIS REENLISTMENT OF JUNE 30, 1957, AS A VOID ACT CANNOT BE REGARDED AS A VOLUNTARY ACT ON HIS PART AND THAT SUCH ACTION WAS NOT WITHIN THE SCOPE OF SECTION 208 (F), OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY THE ACT OF JULY 16, 1954, 37 U.S.C. 239, REQUIRING THE REFUND OF THE UNEARNED PORTION OF THE REENLISTMENT BONUS WHEN A MEMBER VOLUNTARILY DOES NOT COMPLETE THE TERM OF ENLISTMENT FOR WHICH THE BONUS WAS PAID.

THIS IS NOT A CASE WHERE THE MEMBER WAS DISCHARGED BECAUSE OF SOME INELIGIBILITY FOR FURTHER ARMY SERVICE, OR DUE TO REDUCTION IN FORCE, OR FOR ANY OTHER REASON WHICH WOULD NECESSITATE HIS INVOLUNTARY SEPARATION FROM THE ARMY, THAT IS, HIS DISCHARGE WAS NOT REQUIRED UNLESS HE HIMSELF DID NOT WISH TO CONTINUE IN ARMY SERVICE. MR. SHARER WAS DISCHARGED BECAUSE HE WOULD NOT AGREE TO THE CORRECTION OF AN ERROR IN THE TERM OF HIS ENLISTMENT PERIOD WHICH CORRECTION WAS REQUIRED IN ORDER TO MAKE HIS ENLISTMENT TERM COMPLY WITH THE GOVERNING REGULATIONS. THE RECORD DOES NOT SHOW WHY HE WOULD NOT CONSENT TO SUCH CORRECTION. IT SEEMS CLEAR, HOWEVER, THAT THE CHOICE BETWEEN SUCH CORRECTION AND REMAINING IN SERVICE OR A DISCHARGE WAS LEFT TO HIM AND THAT HE FREELY AND WITH KNOWLEDGE OF THE POSSIBLE REENLISTMENT BONUS INDEBTEDNESS ELECTED HIS DISCHARGE. THAT SITUATION WE MAY NOT CONCLUDE THAT HIS FAILURE TO COMPLETE THE ENLISTMENT FOR WHICH HE HAD BEEN PAID THE REENLISTMENT BONUS IS TO BE REGARDED AS OTHER THAN VOLUNTARY ON HIS PART FOR PURPOSES OF THE REFUND REQUIREMENTS OF SECTION 208 (F). ACCORDINGLY, WE SEE NO PROPER BASIS FOR DISAGREEING WITH THE DECISION OF THE ARMY AUTHORITIES THAT MR. SHARER IS LIABLE FOR THE UNEARNED PORTION OF THE REENLISTMENT BONUS.

ACCORDINGLY, IT IS REQUESTED THAT HE REMIT THE SUM OF $726.60 WITHIN 30 DAYS FROM THE DATE OF THIS DECISION, OR WITHIN THAT TIME MAKE SUITABLE ARRANGEMENTS FOR ITS LIQUIDATION. SUCH SUM SHOULD BE REMITTED TO US BY CHECK, DRAFT, OR MONEY ORDER PAYABLE TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C. UNLESS SUCH PAYMENT OR SUITABLE ARRANGEMENTS ARE MADE WITHIN THAT TIME, THE MATTER WILL BE REFERRED TO THE PROPER UNITED STATES ATTORNEY FOR APPROPRIATE ACTION.