[Questions Concerning Entitlement of Former Military Member to Retirement and Disability Pay]

B-214983: Jan 14, 1985

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A decision was requested concerning whether, if fraud were waived and reenlistment validated in the case of an individual who fraudulently reenlisted after being dishonorably discharged and subsequently was retired for disability, it would be appropriate to include the member's service under the first enlistment in his own name to recompute his retired pay entitlement. Furthermore, GAO was asked whether, if the fraud were not waived, there was a basis for disability retirement. Finally, the record was unclear as to whether the survivor the member named under his Survivor Benefit Plan was the member's spouse or his sister-in-law. GAO has held that, although an enlistment is fraudulent, a member may retain pay and allowances received for his services if such payments were otherwise proper. In this case, the fraudulent enlistment was not discovered until the member had been released from active duty and retired on disability. GAO found that a member who, due to fraudulent enlistment, did not attain a military status would not be eligible for retirement disability. However, the government has the option in such cases of accepting such service by waiving the fraud. This would validate the enlistment and the disability. If a waiver is granted, the member should be credited with the service he performed under his own name and would be entitled to compensation and retired pay recomputed on the basis of his earlier service. If the fraud is waived, it would also be necessary to identify the individual listed as survivor under the member's Survivor Benefit Plan. If she is not his spouse, the amounts deducted under the plan should be refunded to the individual since he was not eligible to participate in the Plan. If the waiver is not granted, the enlistment was void and the individual never attained a military status from which he could be retired. Without waiver, the member may retain any pay and allowances he received; however, he is not entitled to any additional payments.