B-141575, MAR. 14, 1960

B-141575, MAR. 14, 1960

TO MR. DAVID BOOTH:

REFERENCE IS MADE TO THE AFFIDAVIT OF FINANCIAL STATUS, DATED NOVEMBER 30, 1959, WHICH YOU HAVE SUBMITTED IN CONNECTION WITH YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $364.88, AND TO THE ACCOMPANYING STATEMENT IN WHICH YOU QUESTION THE RIGHT OF THE UNITED STATES TO RECOVER $360 OF THAT AMOUNT REPRESENTING ERRONEOUS PAYMENT OF A REENLISTMENT BONUS INCIDENT TO YOUR MILITARY SERVICE. YOU STATE THAT YOUR RECEIPT OF THE REENLISTMENT BONUS WAS JUSTIFIED ON THE GROUND THAT YOU FULFILLED YOUR OBLIGATION TO THE GOVERNMENT AND THE ARMY. YOUR PROTEST WILL BE TREATED AS A REQUEST FOR RECONSIDERATION OF THE MATTER OF YOUR INDEBTEDNESS.

IT APPEARS FROM A REPORT FROM THE DEPARTMENT OF THE ARMY THAT YOU WERE INDUCTED INTO THE MILITARY SERVICE ON AUGUST 30, 1944, AT BOSTON, MASSACHUSETTS, AND REPORTED FOR ACTIVE DUTY THE SAME DATE; THAT YOU WERE HONORABLY DISCHARGED ON OCTOBER 22, 1945, TO ENLIST IN THE REGULAR ARMY AND THAT YOU ENLISTED IN THE REGULAR ARMY ON OCTOBER 23, 1945. IT IS FURTHER REPORTED THAT YOU WERE HONORABLY DISCHARGED ON OCTOBER 22, 1948, AT FORT BANKS, MASSACHUSETTS, BY REASON OF EXPIRATION OF TERM OF SERVICE, AND THAT YOU ENLISTED IN THE ENLISTED RESERVE CORPS ON MARCH 11, 1949, AT BOSTON, MASSACHUSETTS.

THE REPORT FROM THE DEPARTMENT OF THE ARMY DOES NOT DISCLOSE FURTHER EXTENDED ACTIVE DUTY UNTIL SEPTEMBER 15, 1950, WHEN YOU WERE CALLED TO ACTIVE DUTY FROM BOSTON, MASSACHUSETTS (HOME OF RECORD). ON MAY 17, 1951, YOU WERE HONORABLY DISCHARGED AT CAMP EDWARDS, MASSACHUSETTS, TO ENLIST IN THE REGULAR ARMY AND ENLISTED IN THE REGULAR ARMY THE FOLLOWING DAY FOR A 6-YEAR PERIOD. YOU WERE HONORABLY DISCHARGED ON MAY 17, 1957, AT FORT DEVENS, MASSACHUSETTS, BY REASON OF EXPIRATION OF TERM OF SERVICE.

AT THE TIME OF YOUR ENLISTMENT IN THE REGULAR ARMY ON MAY 18, 1951, YOU WERE PAID A REENLISTMENT BONUS OF $360, THE AMOUNT AUTHORIZED IN SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, 37 U.S.C. 238 (S) TO MEMBERS WHO REENLIST WITHIN THREE MONTHS FROM DATE OF DISCHARGE FOR A 6-YEAR PERIOD. SECTION 207 (B) OF THAT ACT DEFINES A REENLISTMENT, FOR REENLISTMENT BONUS PURPOSES, AS AN "ENLISTMENT IN ONE OF THE REGULAR SERVICES FOLLOWING (1) COMPULSORY OR VOLUNTARY ACTIVE DUTY IN SUCH SERVICE, OR (2) EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE IN A RESERVE COMPONENT OF SUCH SERVICE.'

IN THE AUDIT OF YOUR MILITARY PAY ACCOUNT, SUBSEQUENT TO YOUR DISCHARGE ON MAY 17, 1957, THE ARMY FINANCE CENTER DISCOVERED THAT THE REENLISTMENT BONUS WAS PAID CONTRARY TO THE EXPRESS PROVISIONS OF THE STATUTE BECAUSE YOU HAD NOT COMPLETED ONE YEAR OF ACTIVE DUTY PRIOR TO YOUR ENLISTMENT IN THE REGULAR ARMY ON MAY 18, 1951. (SEPTEMBER 15, 1950, TO MAY 17, 1951, EQUALS ONLY 8 MONTHS AND 3 DAYS).

IN AN UNDATED LETTER, UNDER COVER POSTMARKED NOVEMBER 3, 1959, YOU STATED THAT YOU SERVED ON EXTENDED ACTIVE DUTY WHILE IN THE ENLISTED RESERVE CORPS FROM ABOUT MARCH 9, 1949, TO JULY 9 OR AUGUST 9 OF THE SAME YEAR. IT APPEARS TO BE YOUR CONTENTION THAT SUCH SERVICE ADDED TO EXTENDED ACTIVE DUTY OF 8 MONTHS AND 3 DAYS PERFORMED AFTER SEPTEMBER 15, 1950, CONSTITUTES THE REQUISITE ONE YEAR OR MORE OF EXTENDED ACTIVE DUTY IN A RESERVE STATUS TO ENTITLE YOU TO RETAIN THE PAYMENT OF REENLISTMENT BONUS YOU RECEIVED UPON ENLISTMENT IN THE REGULAR ARMY ON MAY 18, 1951.

THE DEPARTMENT OF THE ARMY REPORT RESPECTING YOUR SERVICE DOES NOT SHOW THE EXTENDED ACTIVE RESERVE DUTY IN 1949 THAT YOU MENTION, BUT EVEN IF THE RECORD SHOWED THAT YOU PERFORMED SUCH DUTY IT WOULD NOT ESTABLISH A RIGHT TO THE REENLISTMENT BONUS PAYMENT SINCE, TO MEET THE REQUIREMENT OF AT LEAST ONE YEAR OF EXTENDED ACTIVE DUTY IN A RESERVE COMPONENT, IT IS NOT PERMISSIBLE TO COMBINE TWO PERIODS OF EXTENDED ACTIVE DUTY THAT WERE INTERRUPTED BY AN INTERVENING PERIOD OF MORE THAN 90 DAYS. THIS SPECIFIC PROBLEM WAS CONSIDERED IN OUR DECISION TO THE SECRETARY OF DEFENSE REPORTED IN 37 COMP. GEN. 80.

IN 37 COMP. GEN. 80, THE QUESTION WAS RAISED WHETHER THE PHRASE "EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE" AS USED IN SECTION 207 (B) (2) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, MEANT ACTIVE DUTY OF ONE YEAR OR MORE WITHOUT REGARD TO THE LENGTH OF ANY INTERRUPTIONS BETWEEN PERIODS OF ACTIVE DUTY. THAT QUESTION WAS ANSWERED IN THE NEGATIVE ON THE BASIS THAT THE PHRASE "EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE" DID NOT PRESCRIBE THAT SUCH DUTY MUST BE CONTINUOUS, BUT THAT IT COULD INCLUDE PERIODS OF ACTIVE DUTY WHICH MAY HAVE BEEN INTERRUPTED FOR A PERIOD OR PERIODS OF NOT MORE THAN 90 DAYS EACH. THUS, ASSUMING THAT YOU SERVED ON ACTIVE DUTY IN 1949 AS YOU STATE, IT WILL BE SEEN THAT SUCH SERVICE MAY NOT BE COMBINED WITH YOUR RESERVE SERVICE COMMENCING SEPTEMBER 15, 1950, SO AS TO QUALIFY FOR THE BONUS PAYMENT SINCE THE TWO PERIODS WERE INTERRUPTED BY A PERIOD IN EXCESS OF 90 DAYS. THEREFORE, SINCE THE PERIOD THAT YOU SERVED IN A RESERVE STATUS IMMEDIATELY PRECEDING YOUR ENLISTMENT IN THE REGULAR ARMY DOES NOT MEET THE REQUIREMENTS OF SECTION 207 (B) OF THE ACT, IT FOLLOWS THAT YOU ARE NOT ENTITLED TO RETAIN THE ERRONEOUS PAYMENT OF REENLISTMENT BONUS MADE AT THE TIME OF YOUR ENLISTMENT IN THE REGULAR ARMY ON MAY 18, 1951, AND THE FACT THAT YOU COMPLETED THE ENLISTMENT HAS NO BEARING ON THE MATTER.

AS IT WAS ALSO DISCOVERED IN THE AUDIT OF YOUR MILITARY PAY ACCOUNT THAT YOU WERE OVERPAID LEAVE RATIONS OF $1.10 FOR JULY 18, 1955, BECAUSE YOU WERE NOT ON AUTHORIZED LEAVE FOR THAT DAY, AND THAT YOU WERE OVERPAID TRAVEL ALLOWANCE ON DISCHARGE ON MAY 17, 1957, IN THE AMOUNT OF $3.78, THE TOTAL OVERPAYMENT INCIDENT TO YOUR SERVICE IN THE ARMY AMOUNTS TO $364.88. IN THE CIRCUMSTANCES, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE FINDING THAT YOU ARE INDEBTED TO THE UNITED STATES IN THAT AMOUNT.

THIS OFFICE IS REQUIRED BY LAW TO TAKE THE NECESSARY ACTION TO COLLECT SUMS DUE THE GOVERNMENT AND, THEREFORE, THE FULL AMOUNT OF YOUR DEBT SHOULD BE PAID PROMPTLY. IF YOU ARE UNABLE TO DO THIS, ARRANGEMENTS FOR PAYMENT IN INSTALLMENTS MAY BE MADE IF YOU WILL SUBMIT AN INITIAL PAYMENT TOGETHER WITH A DEFINITE PLAN FOR PAYMENT OF THE BALANCE IN A REASONABLE PERIOD.