B-140915, DEC. 17, 1959

B-140915, DEC. 17, 1959

TO THE SECRETARY OF DEFENSE:

A QUESTION HAS COME TO OUR ATTENTION CONCERNING THE COLLECTION OF THE INDEBTEDNESS OF FORMER MEMBERS OF THE UNIFORMED SERVICES REPORTED TO OUR OFFICE BY THE MILITARY DEPARTMENTS BECAUSE THEY WERE SEPARATED PRIOR TO EXPIRATION OF THE ENLISTMENT FOR WHICH A REENLISTMENT BONUS WAS PAID. FROM AN EXAMINATION OF THE RECORDS BEFORE THIS OFFICE, THERE APPEARS TO BE SOME INCONSISTENCY REGARDING THE DETERMINATIONS MADE BY THE DEPARTMENTS IN THE APPLICATION OF STATUTORY DIRECTIVES WHICH REQUIRE RECOUPMENT OF SUCH BONUS IN CASES WHERE THE MEMBER VOLUNTARILY OR BECAUSE OF MISCONDUCT DOES NOT COMPLETE HIS ENLISTMENT. HENCE, THE QUESTION ARISES AS TO WHETHER DEPARTMENTAL REGULATIONS WHICH CONTEMPLATE THE RECOUPMENT OF THE UNEARNED PORTION OF THE REENLISTMENT BONUS ARE ADEQUATE TO EMBRACE THE CLASS OF CASES HERE PRESENTED.

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. ENACTMENT OF THAT REQUIREMENT WAS RECOMMENDED BECAUSE:

"* * * 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.R. REPORT NO. 1078 AND SENATE REPORT NO. 935 ON H.R. 5405, 82ND 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.

AS WE NOTED IN OUR DECISION OF NOVEMBER 17, 1959, B-138786, 39 COMP. GEN. - , 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" AS USED 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.'

IT IS APPARENT THAT RECOUPMENT OF REENLISTMENT BONUS IS NOT REQUIRED UNLESS THE FAILURE TO COMPLETE THE ENLISTMENT FOR WHICH A REENLISTMENT BONUS WAS PAID FALLS WITHIN THE MEANING OF EITHER OF TWO EXCEPTIONS. THE REENLISTMENT BONUS MUST BE RECOVERED FROM ANY PERSON WHO (1) VOLUNTARILY OR (2) AS A RESULT OF HIS OWN MISCONDUCT DOES NOT COMPLETE THE ENLISTMENT FOR WHICH THE BONUS WAS PAID.

ILLUSTRATIVE OF THE PROBLEM UNDER CONSIDERATION ARE THE CASES OF SEVEN FORMER MEMBERS OF THE UNITED STATES ARMY AND THREE FORMER MEMBERS OF THE UNITED STATES AIR FORCE REPORTED TO THIS OFFICE FOR COLLECTION IN VARIOUS AMOUNTS BY THE DEPARTMENTS CONCERNED. AFTER SERVING VARYING PERIODS IN THEIR ENLISTMENTS IN THE UNITED STATES ARMY, FOUR MEMBERS WERE SEPARATED UNDER THE PROVISIONS OF THE DEPARTMENT OF THE ARMY CIRCULAR 635-11, DATED NOVEMBER 4, 1955, WHILE HOLDING GRADES OF CORPORAL (SPECIALIST THIRD CLASS) OR ABOVE. IN EACH CASE THE RECORD INDICATES THAT THE MEMBER REQUESTED DISCHARGE AND THAT THE SEPARATION WAS DETERMINED TO BE VOLUNTARY EXCEPT IN ONE CASE, IN WHICH THE DEPARTMENT STATES THAT THE DEBTOR WAS DISCHARGED BY REASON OF INVOLUNTARY SEPARATION, BUT THAT RECOUPMENT OF THE REENLISTMENT BONUS WAS IN ORDER. A CHARGE FOR THE UNEARNED PORTION OF THE REENLISTMENT BONUS WAS IN ORDER. A CHARGE FOR THE UNEARNED PORTION OF THE REENLISTMENT BONUS RECEIVED WAS RAISED IN THE FINAL PAY ACCOUNT OF EACH MEMBER.

CIRCULAR 635-11 PROVIDED FOR THE INVOLUNTARY SEPARATION OF ENLISTED PERSONNEL BELOW THE THEN CURRENT MINIMUM STANDARDS FOR REENLISTMENT. WAS FURTHER PROVIDED THAT THE RELEASE OF SUCH INDIVIDUALS SERVING IN THE PAY GRADE OF E-4 OR HIGHER WAS NOT MANDATORY BUT PERMISSIVE UPON A MEMBER'S REQUEST FOR SEPARATION AND UPON THE APPROVAL OF SUCH REQUEST UNDER THE PROVISIONS OF THE CIRCULAR. IT IS APPARENT FROM THE TENOR OF THE CIRCULAR THAT THE ARMY DESIRED THE SEPARATION OF SUCH MEMBERS IN THE HIGHER GRADES BUT DID NOT REQUIRE THEIR DISCHARGE.

WHILE LATER REGULATIONS SPECIFICALLY MADE RECOUPMENT OF THE REENLISTMENT BONUS IN SIMILAR CIRCUMSTANCES A PREREQUISITE OF THE APPROVAL OF THE DISCHARGE, CIRCULAR 635-11 CONTAINED NO RECOUPMENT PROVISION. CONTRARY, IN VIEW OF ITS PROVISION THAT "COMMANDERS * * * WILL TAKE NECESSARY ACTIONS TO EFFECT THE SEPARATION OF ENLISTED PERSONNEL * * * WITH EXCEPTIONS.' IT SEEMS PROBABLE THAT INDIVIDUALS IN THE PAY GRADE OF E-4 OR HIGHER (ELIGIBLE FOR RETENTION) WERE URGED TO REQUEST "VOLUNTARY" SEPARATION. ONE FORMER MEMBER STATED THAT HE WANTED TO STAY IN THE ARMY AND WAS INFORMED THAT HE WOULD NOT BE HELD ACCOUNTABLE FOR ANY MONEYS WHICH HAD PREVIOUSLY BEEN PAID TO HIM.

IN GENERAL, THE DIRECTIVE CONTEMPLATED INVOLUNTARY DISCHARGES AND, WHILE IT DID NOT REQUIRE THAT INDIVIDUALS IN PAY GRADE E-4 OR HIGHER BE DISCHARGED, IT CAN BE REASONABLY INFERRED THAT THEIR DISCHARGES WERE EFFECTED AT THE REQUEST OF THE GOVERNMENT. IN SUCH CIRCUMSTANCES IT IS DOUBTFUL THAT THE MERE REQUIREMENT THAT THE MEMBER REQUEST THE DISCHARGE RENDERS THE DISCHARGE VOLUNTARY WITHIN THE PURVIEW OF THE CAREER COMPENSATION ACT. IN THE ABSENCE OF ADDITIONAL FACTS IN SUCH CASES THE RIGHT OF THE GOVERNMENT TO RECOUP THE REENLISTMENT BONUS APPEARS TO BE TOO DOUBTFUL TO WARRANT COLLECTION ACTION BY US WHERE THE MEMBER PROTESTS THAT HIS SEPARATION WAS NOT VOLUNTARY. AFTER LATER REGULATIONS MADE RECOUPMENT OF THE REENLISTMENT BONUS A PREREQUISITE OF THE APPROVAL OF THE DISCHARGE, THAT IS, WHEN THE DISCHARGE OF THE MEMBER WAS EXPRESSLY CONDITIONED UPON HIS REFUNDING THE REENLISTMENT BONUS--- A MATTER ENTIRELY WITHIN HIS CONTROL WHICH PRESUMABLY FREED HIM FROM ANY COERCIVE INFLUENCE BY HIS SUPERIORS, THE CONCLUSION IS WARRANTED THAT THE DISCHARGE WAS VOLUNTARY WITHIN THE MEANING OF THE STATUTE WITHOUT A SHOWING OF ADDITIONAL FACTS.

IN ANOTHER CASE SEPARATION WAS ACCOMPLISHED UNDER THE PROVISIONS OF AR 615-365 BY REASON OF THE MEMBER HAVING A PERCENTILE SCORE OF 14 OR UNDER ON THE ARMED FORCES QUALIFICATION TEST. A CHARGE WAS LIKEWISE RAISED IN HIS PAY ACCOUNT TO RECOUP THE UNEARNED PORTION OF A REENLISTMENT BONUS HE HAD RECEIVED. IN THE COURSE OF COLLECTION ACTION, THE FORMER MEMBER DISAVOWED THE INDEBTEDNESS AND ESPECIALLY QUESTIONED THE VOLUNTARINESS OF SEPARATION ON HIS PART. HE CONTENDS THAT HE SIGNED "SOME PAPER" AND IMPLIES THAT HE WAS UNAWARE OF ITS CONTENTS. A REPORT FROM THE OFFICE OF THE ADJUTANT GENERAL OF THE ARMY STATES THAT NO RECORD CAN BE FOUND OF A REQUEST FOR SEPARATION BUT, SINCE DISCHARGE UNDER THE CIRCUMSTANCES CANNOT BE ACCOMPLISHED WITHOUT SUCH A REQUEST, SEPARATION WAS CONSIDERED VOLUNTARY AND AT HIS OWN REQUEST. UNDER SUCH CIRCUMSTANCES, IT WOULD SEEM PLAUSIBLE THAT, SIMILAR TO THE ABOVE CASES OF DISCHARGES UNDER CIRCULAR 635-11, HE MAY HAVE BEEN SOUGHT OUT BY HIS COMMANDING OFFICER AND INDUCED TO REQUEST A "VOLUNTARY" DISCHARGE. IN THAT EVENT, THE RIGHT OF THE GOVERNMENT TO RECOUP THE REENLISTMENT BONUS WOULD BE DOUBTFUL AND COLLECTION ACTION BY US WOULD NOT BE WARRANTED.

REPRESENTATIVE OF THE ALTERNATIVE ASPECT OF THE PROBLEM ARE THE CASES OF TWO FORMER ENLISTED MEN DISCHARGED UNDER THE PROVISIONS OF AR 635-208 AS UNDESIRABLE, ONE APPARENTLY BY REASON OF HABITS AND TRAIT OF CHARACTER MANIFESTED BY MISCONDUCT, THE OTHER BECAUSE OF ALCOHOLISM AND MISCONDUCT. EACH RECEIVED AN UNDESIRABLE DISCHARGE UPON SEPARATION, BUT UPON APPLICATION THEIR CASES WERE REVIEWED BY AN ARMY DISCHARGE REVIEW BOARD. BASED UPON THE FINDINGS OF THE BOARD THAT THE APPLICANTS WERE NOT PROPERLY DISCHARGED, THE SECRETARY OF THE ARMY DIRECTED THAT THE TYPE OF SEPARATION BE CHANGED FROM UNDESIRABLE TO GENERAL AND THAT THE FORMER MEMBERS BE DISCHARGED UNDER THE PROVISIONS OF AR 635-205 FOR THE CONVENIENCE OF THE GOVERNMENT. THERE IS NO SHOWING THAT THEY WERE EXONERATED OF THE CHARGES OF MISCONDUCT. THE FINDINGS OF THE REVIEW BOARD SHOWED THAT "THE CHANGE IN TYPE OF SEPARATION WAS MADE NOT AS A STATUTORY RIGHT BUT WAS ON THE BASIS OF EQUITY IN THIS PARTICULAR CASE.'

WHILE THE CHANGE FROM AN UNDESIRABLE TO A GENERAL DISCHARGE MAY RELIEVE THE FORMER MEMBERS OF THE DISABILITIES ATTACHING TO UNDESIRABLE DISCHARGES, THE CHANGE DOES NOT DESTROY THE EXISTING FACT THAT THEIR SEPARATION FROM THE SERVICE WAS THE RESULT OF THEIR OWN MISCONDUCT. THERE ARE MANY ACTS OF A MEMBER WHICH MAY BE REGARDED AS MISCONDUCT, BUT WHICH MAY NOT BE CONSIDERED WHEN DETERMINING THE TYPE OF DISCHARGE TO BE ISSUED. WHILE A GENERAL DISCHARGE MAY ABATE WHATEVER DISABILITY FLOWS FROM AN UNDESIRABLE DISCHARGE, IT CANNOT IN THE NATURE OF THINGS ERADICATE THE FACT WHICH WAS THE CAUSE FOR SEPARATION. IT IS OUR VIEW THAT THE FORMER MEMBERS FAILED TO COMPLETE THEIR ENLISTMENTS BECAUSE OF THEIR OWN MISCONDUCT AND FOR THAT REASON FALL SQUARELY WITHIN THE PROVISION OF THE STATUTE WHICH MAKES THEM LIABLE FOR THE UNEARNED PORTION OF REENLISTMENT BONUS RECEIVED. ALTHOUGH THEIR GENERAL DISCHARGES ARE CITED TO BE UNDER THE PROVISIONS OF AR 635-205 FOR THE CONVENIENCE OF THE GOVERNMENT, THE FACTS AND CIRCUMSTANCES ARE CONTROLLING AND THE MODIFICATION OF THE DISCHARGES DOES NOT REMOVE DISABILITIES IMPOSED BY LAW WHICH ARE CONDITIONED ON SUCH FACTS.

THESE CASES ARE MENTIONED BECAUSE WE UNDERSTAND THAT A RECENT OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY (JAGA 1959/5741, DATED SEPTEMBER 2, 1959) CITING DECISIONS OF THIS OFFICE ESPOUSED A DIFFERENT VIEW AND RECOMMENDED THAT ALL SUCH CASES BE DISPOSED OF IN ACCORDANCE WITH THAT VIEW.

IN A SOMEWHAT SIMILAR CATEGORY ARE THE CASES OF TWO FORMER AIRMEN OF THE UNITED STATES AIR FORCE WHO WERE SEPARATED FROM THE SERVICE PURSUANT TO AFR 39-16 AS UNSUITABLE:ONE, BECAUSE OF THE COMMISSION OF A HOMOSEXUAL ACT, AND THE OTHER, FOR REPEATEDLY COMMITTING MINOR OFFENSES MANIFESTED BY MISCONDUCT AND BEHAVIOR AND ATTITUDE NOT CONDUCTIVE TO BEING A GOOD AIRMAN. BOTH FORMER AIRMEN PROTEST THE COLLECTION ACTION INSTITUTED FOR RECOUPMENT OF THE UNEARNED PORTION OF THE REENLISTMENT BONUS APPARENTLY ON THE BASIS THAT THEY WERE DISCHARGED UNDER HONORABLE CONDITIONS (GENERAL) AND, THEREFORE, NOT LIABLE FOR REFUND OF THE REENLISTMENT BONUS. NEVERTHELESS, THE TYPE OF DISCHARGE DOES NOT ALTER THE FACTS OF MISCONDUCT WHICH WAS THE REASON FOR THEIR DISCHARGES. CONSEQUENTLY, RECOUPMENT OF THE UNEARNED PORTION OF THE REENLISTMENT BONUS RECEIVED IS REQUIRED UNDER THE STATUTE.

SOME OF THE APPARENT DIFFICULTIES SEEM TO STEM FROM THE EFFORT TO FIT THE REENLISTMENT BONUS RECOUPMENT REGULATIONS INTO THE FRAMEWORK OF EXISTING BUT UNRELATED REGULATIONS PERTAINING TO DISCHARGE OF ENLISTED MEMBERS. SEEMS TO US THAT SUCH EFFORT, BASED PERHAPS ON NOMENCLATURE RATHER THAN ON THE PRIMARY REASON FOR THE DISCHARGE, RESULTS IN INEQUITY AND CONFUSION. FOR EXAMPLE, CHANGE NO. 25, DATED JANUARY 21, 1957, TO AFM 173-20, PROVIDED IN PARAGRAPH 11444 THAT FOR THE PURPOSE OF RECOUPMENT OF ANY UNEARNED PORTION OF REENLISTMENT BONUS, THE TERM "WHO VOLUNTARILY OR BECAUSE OF HIS OWN MISCONDUCT" WILL INCLUDE AIRMEN DISCHARGED OR SEPARATED FOR ,UNFITNESS OR UNSUITABILITY (EXCEPT WHEN DISCHARGED BECAUSE OF MENTAL OR PHYSICAL DEFECTS) (AFR 39-16--- AFR 39-17.)" AFR 39-16 RELATES TO DISCHARGES FOR UNSUITABILITY. IT INCLUDES DISCHARGES FOR INAPTNESS DUE TO LACK OF GENERAL ADAPTABILITY, WANT OF READINESS OR SKILL, UNHANDINESS OR INABILITY TO LEARN; IT ALSO INCLUDES ALCOHOLISM, HOMOSEXUAL TENDENCIES, AND OTHER ACTIONS THAT SEEM TO CONNOTE MISCONDUCT.

SUCH GENERAL DENOMINATION OF A CAUSE OF DISCHARGE AS UNSUITABILITY AND A CATALOGING OF TYPES OF DISCHARGE BASED UPON NOMENCLATURE OR REGULATION BY NUMBER DOES NOT IN ITSELF AFFORD A PROPER LEGAL BASIS FOR CONCLUDING IN A PARTICULAR CASE THAT A DISCHARGE WAS IN FACT VOLUNTARY OR THAT THE CAUSE FOR DISCHARGE CONSTITUTED MISCONDUCT WITHIN THE MEANING OF THE STATUTE. IF THE FACTS IN A PARTICULAR CASE SHOW THAT THE FAILURE OF THE MEMBER TO COMPLETE HIS ENLISTMENT WAS NOT ACTUALLY VOLUNTARY AND THERE IS NO SHOWING OF MISCONDUCT, THE RIGHT OF THE GOVERNMENT TO RECOVER THE UNEARNED PORTION OF THE REENLISTMENT BONUS IS DOUBTFUL.

IN A CASE WHERE AN AIRMAN WAS DISCHARGED BECAUSE HE WAS REPORTED TO BE UNABLE TO LEARN OR ABSORB SKILLS NECESSARY TO MAKE HIM AN EFFECTIVE AIRMAN, WAS IRRESPONSIBLE, WASHED OUT OF TECHNICAL SCHOOL, AND CONTINUALLY FAILED IN EACH JOB HE PERFORMED, WE CONCLUDED THAT, WHILE THE MATTER WAS NOT FREE FROM DOUBT, THE AIRMAN'S FAILURE TO COMPLETE HIS ENLISTMENT WAS NOT SHOWN TO BE DUE TO HIS OWN MISCONDUCT AND, IN THE ABSENCE OF A SHOWING OF MISCONDUCT, THE RIGHT OF THE GOVERNMENT TO RECOUP THE REENLISTMENT BONUS WAS TOO DOUBTFUL TO WARRANT FURTHER COLLECTION ACTION AGAINST HIM BY THIS OFFICE. WHETHER THE SEPARATION OF A MEMBER IS TO BE CONSIDERED AS A VOLUNTARY NONCOMPLETION OF AN ENLISTMENT WITHIN THE MEANING OF SECTIONS 207 (A) AND 208 (F) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, MUST BE DECIDED FROM THE FACTS AND CIRCUMSTANCES SURROUNDING EACH CASE. IN CASES WHERE IT APPEARS THAT A DISCHARGE OR RELEASE HAS BEEN INVITED, OR WHERE IT HAS BEEN OFFERED, OR WHERE IT IS MORE IN THE INTEREST OF THE GOVERNMENT THAN THE MEMBER, WITHOUT THE MEMBER BEING CLEARLY INFORMED THAT HIS DISCHARGE WILL RESULT IN RECOUPMENT OF THE REENLISTMENT BONUS AND HIS REMAINING IN THE SERVICE WOULD NOT OTHERWISE BE PREJUDICIAL TO HIM, THE RIGHT OF THE GOVERNMENT TO RECOVER THE UNEARNED PORTION OF THE REENLISTMENT BONUS IN MANY CASES WOULD NOT SEEM WARRANTED. ALSO, WHETHER AN EARLY DISCHARGE IS DEEMED TO BE AS A RESULT OF MISCONDUCT MUST BE DETERMINED FROM THE FACTUAL CIRCUMSTANCES IN EACH CASE AND CANNOT BE DECIDED FROM THE TYPE OR NATURE OF THE DISCHARGE CERTIFICATE ISSUED.

IN VIEW OF THE DIFFERENCES IN THE UNDERSTANDING OF THE SERVICES, AS WELL AS OF THIS OFFICE, CONCERNING THE LIABILITY FOR REFUND OF UNEARNED REENLISTMENT BONUS, IT APPEARS ADVISABLE THAT CONSIDERATION BE GIVEN TO CLARIFICATION OF THE REGULATORY REQUIREMENTS FOR RECOUPMENT OF REENLISTMENT BONUS TO INSURE THE UNIFORM HANDLING OF SUCH CASES. IN ANY EVENT, AN EXPRESSION OF YOUR VIEWS IN THE MATTER WILL BE APPRECIATED.