B-159915, NOV. 16, 1966

B-159915: Nov 16, 1966

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JONES: FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR MONETARY BENEFITS BELIEVED TO BE DUE BY REASON OF CORRECTION OF YOUR NAVAL RECORDS. YOU WERE CONVICTED BY GENERAL COURT MARTIAL OF SOLICITING ANOTHER MEMBER TO PURCHASE THE QUESTIONS TO THE FEBRUARY 1962 NAVY-WIDE EXAMINATION FOR ADVANCEMENT TO AKL. YOU WERE SENTENCED TO FORFEIT $100 PER MONTH FOR 2 MONTHS AND TO BE REDUCED FROM PN1 TO PN2. WAS NOT ACCOMPLISHED UNTIL JULY OR AUGUST 1963. YOU WERE SO DISCHARGED ON AUGUST 13. UPON YOUR REENLISTMENT YOUR ACCOUNT WAS CREDITED WITH A $640 REENLISTMENT BONUS. SINCE YOU DID NOT COMPLETE THE ENLISTMENT BUT WERE GIVEN AN UNDESIRABLE DISCHARGE ON JANUARY 3. YOU WERE OVERPAID REENLISTMENT ALLOWANCE OF $577.78.

B-159915, NOV. 16, 1966

TO MR. TONY G. JONES:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR MONETARY BENEFITS BELIEVED TO BE DUE BY REASON OF CORRECTION OF YOUR NAVAL RECORDS.

ON JUNE 1, 1962, YOU WERE CONVICTED BY GENERAL COURT MARTIAL OF SOLICITING ANOTHER MEMBER TO PURCHASE THE QUESTIONS TO THE FEBRUARY 1962 NAVY-WIDE EXAMINATION FOR ADVANCEMENT TO AKL. YOU WERE SENTENCED TO FORFEIT $100 PER MONTH FOR 2 MONTHS AND TO BE REDUCED FROM PN1 TO PN2. AUGUST 1, 1962, THE CONVENING AUTHORITY, COMSERVLANT, AT NORFOLK, VIRGINIA, APPROVED THE GENERAL COURT MARTIAL SENTENCE AND ORDERED IT EXECUTED AFFECTIVE THAT DATE. DUE TO ADMINISTRATIVE DELAYS THE SENTENCE OF JUNE 1, 1962, WAS NOT ACCOMPLISHED UNTIL JULY OR AUGUST 1963, EFFECTIVE AUGUST 1, 1962. THIS DELAYED ACTION PLACED YOU IN DEBT TO THE UNITED STATES.

ALTHOUGH YOUR CONVICTION RENDERED YOU INELIGIBLE FOR HONORABLE DISCHARGE AND REENLISTMENT, YOU WERE SO DISCHARGED ON AUGUST 13, 1963, AND REENLISTED THE NEXT DAY FOR 4 YEARS. UPON YOUR REENLISTMENT YOUR ACCOUNT WAS CREDITED WITH A $640 REENLISTMENT BONUS. SINCE YOU DID NOT COMPLETE THE ENLISTMENT BUT WERE GIVEN AN UNDESIRABLE DISCHARGE ON JANUARY 3, 1964, YOU WERE OVERPAID REENLISTMENT ALLOWANCE OF $577.78. ALSO, YOU WERE OVERPAID $241.87 FOR LEAVE USED IN EXCESS OF LEAVE EARNED. IN ADDITION, BECAUSE OF CHARGES FOR AN EXCESS PAYMENT IN THE SETTLEMENT OF YOUR CLAIM FOR LOSS OF PERSONAL EFFECTS, DIFFERENCE IN PAY AUGUST 1, 1962, THROUGH JUNE 30, 1963, AND DIFFERENCE IN BASIC ALLOWANCE FOR QUARTERS FOR MAY 8 THROUGH JUNE 30, 1963, TOTALING $412.50, OF WHICH BUT $328 HAD BEEN LIQUIDATED BY CHARGES AGAINST YOUR PAY RECORD, YOU HAD A FURTHER INDEBTEDNESS OF $84.50, OR A TOTAL INDEBTEDNESS OF $904.15. PAY CREDITS DUE AT TIME OF DISCHARGE ($31.52) REDUCED THIS TO $872.53.

THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $872.63 WAS REPORTED TO THIS OFFICE FOR COLLECTION. NO COLLECTION ACTION WAS TAKEN, HOWEVER, FOR THE REASON THAT YOU FILED A PETITION IN BANKRUPTCY IN THE U.S. DISTRICT COURT, DISTRICT OF ARIZONA, PHOENIX, ARIZONA, AND WERE DISCHARGED THEREUNDER ON FEBRUARY 25, 1965.

ON APRIL 16, 1966, THE SECRETARY OF THE NAVY APPROVED THE RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS UNDER AUTHORITY OF 10 U.S.C. 1552 AND DIRECTED THAT YOUR RECORDS BE CORRECTED TO SHOW (1) THAT THE PORTION OF THE GENERAL COURT MARTIAL SENTENCE OF JUNE 1, 1962, RELATING TO REDUCTION IN RATE WAS EXECUTED EFFECTIVE AUGUST 1, 1963, INSTEAD OF AUGUST 1, 1962, AND (2) THAT ON JANUARY 3, 1964, YOU RECEIVED A GENERAL DISCHARGE BY REASON OF UNFITNESS INSTEAD OF THE UNDESIRABLE DISCHARGE YOU ACTUALLY RECEIVED ON SUCH DATE.

UPON THE CORRECTION OF YOUR RECORDS UNDER 10 U.S.C. 1552, YOU BECAME ENTITLED TO ALL THE BENEFITS DUE ON THE BASIS OF THE FACTS AS CORRECTED. YOUR RIGHTS ARE DETERMINED UNDER APPLICABLE LAW IN THE SAME MANNER AS IF YOUR ORIGINAL RECORDS HAD SHOWN THE INFORMATION CONTAINED IN THE CORRECTED RECORDS.

UPON THE BASIS OF THE CORRECTION OF YOUR RECORDS YOU NOW CLAIM DIFFERENCE IN PAY FROM AUGUST 1, 1962, TO MAY 7, 1963, 9 MONTHS AND 7 DAYS AT $25 PER MONTH ($230.83), FROM MAY 8 TO JULY 31, 1963, 2 MONTHS AND 23 DAYS AT $15 MONTH ($41.50), DIFFERENCE IN BASIC ALLOWANCE FOR QUARTERS FROM JANUARY 1 TO JULY 31, 1963 AT $5.10 PER MONTH ($35.70), AND RECOUPMENT OF REENLISTMENT BONUS ($577.78), OR A TOTAL OF $885.81.

AS A RESULT OF THE CORRECTION REDUCING YOUR RATE ON AUGUST 1, 1963, INSTEAD OF AUGUST 1, 1962, YOU ARE ENTITLED TO BENEFITS AS TO PAY AND QUARTERS ALLOWANCES COMPUTED ON THE BASIS OF SUCH CORRECTED RECORD. HOWEVER, WITH RESPECT TO YOUR CLAIM FOR RECOUPMENT OF REENLISTMENT BONUS, 37 U.S.C. 308 (E) PROVIDES THAT A MEMBER WHO VOLUNTARILY, OR BECAUSE OF MISCONDUCT, DOES NOT COMPLETE THE TERM OF ENLISTMENT FOR WHICH A BONUS WAS PAID TO HIM SHALL REFUND THAT PERCENTAGE OF THE BONUS THAT THE UNEXPIRED PART OF HIS ENLISTMENT IS OF THE TOTAL PERIOD FOR WHICH THE BONUS WAS PAID. CONSEQUENTLY, WHERE THE EARLY SEPARATION WAS IN FACT DUE TO THE MEMBER'S OWN MISCONDUCT AND THAT FACT REMAINS UNCHANGED BY THE BOARD'S ACTION HE MUST BE CHARGED WITH THE UNEARNED REENLISTMENT BONUS. SEE 40 COMP. GEN. 491, COPY ENCLOSED. SINCE YOUR SEPARATION PRIOR TO EXPIRATION OF ENLISTMENT, ON THE BASIS OF THE RECORD AS CORRECTED, WAS THE RESULT OF YOUR OWN MISCONDUCT, YOU ARE NOT ENTITLED TO RECOUPMENT OF REENLISTMENT BONUS AS A RESULT OF THE ACTION OF THE CORRECTION OF YOUR NAVAL RECORDS.

THUS, AT THE TIME OF YOUR DISCHARGE THE OVERPAYMENTS MADE TO YOU EXCEEDED ANY AMOUNTS DUE YOU ON THE RECORD AS CORRECTED. IN SUCH CIRCUMSTANCES, WHILE YOUR DISCHARGE IN BANKRUPTCY PRECLUDES FURTHER COLLECTION ACTION AGAINST YOU, IT MAY NOT BE APPLIED AS AUTHORIZING ANY FURTHER OVERPAYMENTS TO YOU. ACCORDINGLY, YOUR CLAIM IS DISALLOWED.