B-141305, FEB. 19, 1960

B-141305, FEB. 19, 1960

TO MR. CHARLES W. WHITLOCK:

REFERENCE IS MADE TO YOUR SEVERAL LETTERS DATED OCTOBER 16, 1959, NOVEMBER 28, 1959, AND DECEMBER 7, 1959, ADDRESSED TO OUR OFFICE, AND TO YOUR LETTER OF DECEMBER 7, 1959, ADDRESSED TO THE DEPARTMENT OF JUSTICE, WHICH WAS REFERRED HERE FOR REPLY, CONCERNING THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $956.05.

IT APPEARS THAT UPON YOUR REENLISTMENT IN THE AIR FORCE ON JUNE 24, 1955, YOU WERE CREDITED WITH A REENLISTMENT BONUS IN THE AMOUNT OF $959.40, COMPUTED BY MULTIPLYING THE MONTHLY RATE OF PAY OF AN AIRMAN FIRST CLASS ($159.90) BY THE NUMBER OF YEARS IN THE ENLISTMENT CONTRACT (SIX). YOU WERE DISCHARGED UNDER HONORABLE CONDITIONS ON MARCH 27, 1956, PURSUANT TO AFR 39-16 (UNSUITABILITY) AFTER SERVING ONLY 8 MONTHS AND 4 DAYS (GOOD TIME) OF THE SIX-YEAR ENLISTMENT, AND IT IS REPORTED THAT THE RECORDS SHOW THAT SEPARATION WAS BECAUSE OF CERTAIN BEHAVIOR CHARACTERISTICS, INCLUDING APATHY AND DEFECTIVE ATTITUDES. UNDER PARAGRAPH 11444I OF AFM 173-20, RECOUPMENT OF UNEARNED REENLISTMENT BONUS IN SUCH CASES IS REQUIRED, AND IT WAS DETERMINED THAT YOU HAD NOT EARNED $851 OF THE REENLISTMENT BONUS. IN ADDITION, AT THE TIME OF YOUR DISCHARGE IT WAS ASCERTAINED THAT YOU HAD USED 22 DAYS OF EXCESS LEAVE, FOR WHICH YOU HAD BEEN CREDITED VARIOUS ITEMS OF PAY, CLOTHING, AND LEAVE RATIONS, TOTALING $143.64. ACTUAL COLLECTION AGAINST THIS OVERPAYMENT WAS MADE IN THE AMOUNT OF $49.71 ON YOUR FINAL MILITARY PAY RECORD, LEAVING A BALANCE DUE THE UNITED STATES FOR THIS ITEM OF EXCESS LEAVE OF $93.93. IT WAS FURTHER DISCOVERED, IN REEXAMINING YOUR PAY AND LEAVE RECORDS THAT YOU HAD BEEN CREDITED WITH LEAVE RATIONS AT $1.10 A DAY FOR 19 DAYS IN WHICH YOU WERE NOT ON AUTHORIZED LEAVE, RESULTING IN A FURTHER INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $20.90.

YOUR TOTAL INDEBTEDNESS BY REASON OF OVERPAYMENTS WAS $965.83 ($851 PLUS $93.93 PLUS $20.90). IN THE AUDIT OF YOUR PAY RECORDS IT WAS DISCOVERED THAT YOU HAD BEEN UNDERCREDITED $9.78 FOR CLOTHING ALLOWANCES. THIS AMOUNT WAS OFFSET AGAINST YOUR INDEBTEDNESS, LEAVING A NET AMOUNT DUE THE UNITED STATES OF $956.05. UNSUCCESSFUL DEMANDS FOR PAYMENT WERE MADE UPON YOU BY THE DEPARTMENT OF THE AIR FORCE AND THE MATTER WAS REFERRED TO OUR CLAIMS DIVISION FOR COLLECTION. THE REPEATED DEMANDS BY OUR CLAIMS DIVISION HAVE ALSO BEEN UNSUCCESSFUL, AND IT HAS BEEN INDICATED THAT THE MATTER WOULD BE TRANSMITTED TO THE DEPARTMENT OF JUSTICE FOR FURTHER COLLECTION PROCEEDINGS. SUCH ACTION HAS NOT, HOWEVER, BEEN TAKEN.

IN YOUR LETTER OF OCTOBER 16, 1959, YOU REQUEST THAT THE MATTER BE REVIEWED, AND UPON COMPLETION OF THE REVIEW THAT YOU BE (1) PROSECUTED, (2) EXONERATED, OR (3) THAT YOU BE RESTORED TO ACTIVE DUTY TO COMPLETE YOUR ENLISTMENT.

IT APPEARS FROM YOUR FIRST TWO SUGGESTIONS THAT YOU BELIEVE YOU ARE BEING CHARGED WITH THE COMMISSION OF AN OFFENSE AGAINST THE GOVERNMENT. SUCH IS NOT THE CASE. THE PROPOSED REFERENCE OF THE MATTER TO THE DEPARTMENT OF JUSTICE WOULD BE FOR THE PURPOSE OF COLLECTION ACTION, A CIVIL PROCEEDING, FOR THE RECOVERY OF THE MONEY DUE THE UNITED STATES. THERE IS NO CRIMINAL ELEMENT INVOLVED, HENCE, THERE IS NO BASIS FOR A PROSECUTION FOR OR EXONERATION OF UNLAWFUL ACTS.

THE ENTIRE MATTER HAS BEEN REVIEWED AND THE DETERMINATION AND COMPUTATION OF INDEBTEDNESS MADE BY THE DEPARTMENT OF THE AIR FORCE ARE FOUND TO BE CORRECT, AND IN ACCORD WITH THE LAW AND REGULATIONS. SINCE IT APPEARS, HOWEVER, THAT YOU ARE PRESENTLY UNABLE TO LIQUIDATE THE INDEBTEDNESS SHOULD JUDGMENT BE OBTAINED, NO USEFUL PURPOSE WOULD BE SERVED BY REFERRAL OF THE MATTER TO THE DEPARTMENT OF JUSTICE FOR FURTHER COLLECTION ACTION, AND SUCH REFERRAL WILL NOT BE MADE AT THIS TIME.

WITH REGARD TO YOUR SUGGESTION THAT YOU BE RESTORED TO ACTIVE DUTY, YOU MAY BE ADVISED THAT SUCH ACTION IS BEYOND THE JURISDICTION OF OUR OFFICE.

ACCORDINGLY, AS INDICATED ABOVE, WE HAVE FOUND THAT THE STATEMENT OF YOUR INDEBTEDNESS IS CORRECT, BUT, IN VIEW OF YOUR FINANCIAL CONDITION, NO FURTHER COLLECTION ACTION WILL BE TAKEN AT THIS TIME.