MARCH 28, 1924, 3 COMP. GEN. 691

MARCH 28, 1924, 3 COMP. GEN. 691

WAR RISK COMPENSATION AND INSURANCE - CONCEALMENT OF FACTS UPON ENLISTMENT THE FRAUDULENT CONCEALMENT UPON ENLISTMENT IN THE ARMY OF THE EXISTENCE OF DEPENDENTS DOES NOT RENDER THE ENLISTMENT VOID OR VOIDABLE, ALTHOUGH DISCHARGED BECAUSE OF THE FRAUDULENT CONCEALMENT, AS THE SERVICE RENDERED WAS LAWFUL WITHIN THE MEANING OF THE WAR RISK INSURANCE ACT AND ENTITLES THE ENLISTED MAN TO THE BENEFITS OF DISABILITY COMPENSATION AND INSURANCE. THE DISCHARGE OF AN ENLISTED MAN FROM THE ARMY FOR FRAUDULENT CONCEALMENT OF THE FACT THAT HE WAS A MINOR VOIDS THE CONTRACT OF ENLISTMENT AB INITIO, THERE HAVING BEEN FRAUD IN ITS INCEPTION. THE SERVICE RENDERED, BEING UNLAWFUL, DOES NOT ENTITLE THE MINOR TO THE BENEFITS OF DISABILITY COMPENSATION OR INSURANCE UNDER THE WAR RISK INSURANCE ACT. THE ENLISTMENT IN THE ARMY OF A MAN WHO HAS BEEN CONVICTED OF A FELONY IS PROHIBITED BY LAW. SERVICE RENDERED UNDER SUCH AN ENLISTMENT, FROM WHICH A DISCHARGE WAS GIVEN FOR FRAUDULENT CONCEALMENT OF THE FACT THAT THE PERSON ENLISTING WAS A FELON, GIVES NO RIGHT TO THE BENEFITS OF DISABILITY COMPENSATION OR INSURANCE UNDER THE WAR RISK INSURANCE ACT.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, MARCH 28, 1924:

I HAVE YOUR LETTER OF FEBRUARY 21, 1924, AS FOLLOWS:

ON JANUARY 18, 1924, YOU RENDERED A DECISION IN THE CASE OF ZEB PENNINGTON, C-409,471, WITH REFERENCE TO THE EFFECT ON COMPENSATION AND INSURANCE OF A DISCHARGE BECAUSE OF THE FRAUDULENT CONCEALMENT OF FACTS WHICH, IF DISCLOSED, WOULD HAVE PRECLUDED THE CLAIMANT'S ACCEPTANCE FOR MILITARY SERVICE. THE QUESTIONS PRESENTED IN THAT CASE WERE WHETHER THE GOVERNMENT INSURANCE, ISSUED IN THE ENLISTMENT FROM WHICH THE CLAIMANT WAS DISCHARGED BECAUSE OF THE FRAUDULENT CONCEALMENT OF A DISABILITY, WAS VALID, AND WHETHER THE CHARACTER OF THE FACT CONCEALED AFFECTED THE ANSWER.

WHILE YOU RULED ON THE FIRST QUESTION PRESENTED, YOU STATED THAT THE QUESTION CONCERNING THE EFFECT OF THE DIFFERENCE IN THE STATE OF FACTS CONCEALED WAS TOO INDEFINITE WITHOUT MORE DATA TO FORM A BASIS FOR AN AUTHORITATIVE DECISION. IN ORDER THAT THIS QUESTION MAY BE ENTIRELY CLARIFIED I AM SUBMITTING TO YOU THREE SPECIFIC CASES, WITH THE REQUEST THAT DECISIONS BE RENDERED THEREIN.

1. "A" ENLISTS IN THE ARMY AND STATES AT THE TIME OF ENLISTMENT THAT HE HAS NO DEPENDENTS. AFTER SERVING SEVERAL MONTHS HE IS DISCHARGED BY REASON OF THE FRAUDULENT CONCEALMENT OF THE FACT THAT HE HAS DEPENDENTS. DURING HIS ENLISTMENT HE RECEIVED AN INJURY FOR WHICH HE IS ENTITLED TO COMPENSATION, PROVIDED HIS DISCHARGE BY REASON OF THE FRAUDULENT CONCEALMENT OF DEPENDENTS DOES NOT BAR HIM. WITHIN THE TIME LIMIT PRESCRIBED BY THE ACT THE INSURED MADE AN APPLICATION FOR WAR RISK INSURANCE UPON WHICH PREMIUMS WERE PAID TO DATE OF DISCHARGE.

2. "B" ENLISTS IN THE ARMY AND CONCEALS THE FACT THAT HE IS A MINOR. IS WOUNDED IN ACTION IN LINE OF DUTY WHILE SERVING IN THE A.E.F. HE IS RETURNED TO THIS COUNTRY AS AN INVALID, WHEN IT IS DISCOVERED THAT HE IS A MINOR. HE IS DISCHARGED BY REASON OF THE FRAUDULENT CONCEALMENT OF HIS MINORITY. HIS DISABILITY WHICH HE RECEIVED IN THE SERVICE IS COMPENSABLE, PROVIDED HE IS NOT BARRED FROM RECEIVING COMPENSATION BY THE CHARACTER OF HIS DISCHARGE. WITHIN THE TIME LIMIT PRESCRIBED BY THE ACT THE INSURED MADE AN APPLICATION FOR WAR RISK INSURANCE UPON WHICH PREMIUMS WERE PAID TO DATE OF DISCHARGE.

3. "C" ENLISTS IN THE ARMY AND SERVES HONORABLY OVERSEAS, WHERE HE IS WOUNDED. HE IS RETURNED TO THIS COUNTRY AS AN INVALID, WHEN IT IS DISCOVERED THAT HE COMMITTED, PRIOR TO ENTERING THE SERVICE, THE CRIME OF BURGLARY. HE IS DISCHARGED FROM THE ARMY BY REASON OF HIS FRAUDULENT CONCEALMENT OF THE FACT THAT HE IS AN ESCAPED CRIMINAL. HE IS ENTITLED TO COMPENSATION FOR HIS DISABILITY, SERVICE INCURRED, PROVIDED HE IS NOT BARRED BY REASON OF HIS DISCHARGE. WITHIN THE TIME LIMIT PRESCRIBED BY THE ACT THE INSURED MADE AN APPLICATION FOR WAR RISK INSURANCE UPON WHICH PREMIUMS WERE PAID TO DATE OF DISCHARGE.

IT IS REQUESTED THAT YOU RENDER A DECISION IN EACH OF THESE CASES AS TO WHETHER COMPENSATION IS PAYABLE FOR THE INJURIES SUSTAINED IN THE SERVICE DURING THE ENLISTMENT FROM WHICH THE CLAIMANT WAS DISCHARGED BY REASON OF THE FRAUDULENT CONCEALMENT OF THE FACTS SET OUT. ALSO, IS THE INSURANCE GRANTED DURING SUCH ENLISTMENT VALID INSURANCE?

SECTION 29 OF THE WAR RISK INSURANCE ACT, AS AMENDED BY SECTION 1 OF THE ACT OF MARCH 4, 1923, 42 STAT., 1521, AND SECTION 308, AS AMENDED BY SECTION 6 OF THE ACT OF MARCH 4, 1923, 42 STAT., 1525, SPECIFY CERTAIN CLASSES OF DISCHARGES OR SEPARATIONS FROM THE MILITARY OR NAVAL FORCES THAT BAR ALL RIGHTS TO RECEIVE BENEFITS OF DISABILITY COMPENSATION OR INSURANCE UNDER THE WAR RISK INSURANCE ACT. THE DECISION OF OCTOBER 22, 1923, 3 COMP. GEN., 238, AS MODIFIED BY DECISION OF FEBRUARY 2, 1924, 3 COMP. GEN. 465, DEALT WITH THESE STATUTORY PROVISIONS IN SO FAR AS THEY RELATED TO DESERTION. DECISION OF DECEMBER 27, 1923, 3 COMP. GEN., 398, AND DECISION OF JANUARY 18, 1924, 3 COMP. GEN., 431, DEALT WITH FRAUDULENT CONCEALMENT OF DISABILITY UPON ENTRANCE INTO THE SERVICE, NOT UNDER THE CITED STATUTES, BUT BASED ON THE GENERAL PRINCIPLE OF LAW THAT FRAUD IS A BAR TO ANY STATUTORY RIGHT. IN THOSE CASES THE FACT FRAUDULENTLY CONCEALED UPON ENTRANCE INTO THE SERVICE WENT TO THE VERY ESSENCE OF THE RIGHT OR BENEFIT BESTOWED BY THE STATUTE, AND FOR THAT REASON WAS HELD TO BAR SUCH STATUTORY RIGHTS.

IN THE PRESENT CASES, ASSUMING THAT THERE WERE NO COURT-MARTIAL PROCEEDINGS INVOLVED, THE FACTS FRAUDULENTLY CONCEALED ARE FOR CONSIDERATION IN DETERMINING WHETHER "SERVICE" HAS BEEN RENDERED WITHIN THE MEANING OF THE WAR RISK INSURANCE ACT.

BOTH SECTION 300, 40 STAT., 405, AND SECTION 400, 40 STAT., 409, OF THE WAR RISK INSURANCE ACT PROVIDE THAT COMPENSATION AND INSURANCE BENEFITS, RESPECTIVELY, ARE CONFERRED UPON THE CLASSES OF PERSONS THERE ENUMERATED "WHEN EMPLOYED IN ACTIVE SERVICE UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT.' THE "SERVICE" CONTEMPLATED IS LAWFUL SERVICE. ANY SERVICE WHICH IS VOID IN ITS INCEPTION IS UNLAWFUL AND ANY SERVICE WHICH IS VOIDABLE ON THE PART OF THE GOVERNMENT, AND THE GOVERNMENT BEFORE TERMINATION OF THE ENLISTMENT TAKES ACTION TO AVOID THE CONTRACT OF SERVICE, SUCH AS A DISCHARGE BECAUSE OF FRAUD IN THE INCEPTION, IS UNLAWFUL AB INITIO. 1 COMP. GEN., 511; ID. 668, AND CASES THEREIN CITED. SEE ALSO 3 COMP. GEN., 61, RELATIVE TO CASES IN WHICH THE FRAUD IS NOT DISCOVERED BY THE GOVERNMENT UNTIL AFTER DISCHARGE.

AS THE CASES YOU SUBMIT ARE ARMY CASES, THE STATUTES AND DECISIONS RELATIVE THERETO ARE FOR CONSIDERATION.

SECTION 1116, REVISED STATUTES, PROVIDES AS FOLLOWS:

RECRUITS ENLISTING IN THE ARMY MUST BE EFFECTIVE AND ABLE-BODIED MEN, AND BETWEEN THE AGES OF SIXTEEN AND THIRTY-FIVE YEARS, AT THE TIME OF THEIR ENLISTMENT. THIS LIMITATION AS TO AGE SHALL NOT APPLY TO SOLDIERS REENLISTING.

SECTION 4 OF THE ACT OF MARCH 2, 1899, 30 STAT., 978, PROVIDES:

* * * THAT THE LIMITS OF AGE FOR ORIGINAL ENLISTMENTS IN THE ARMY SHALL BE EIGHTEEN AND THIRTY-FIVE YEARS.

SECTION 37, ACT OF JUNE 3, 1916, 39 STAT., 186, SUPERSEDING SECTION 1117, REVISED STATUTES, PROVIDES AS FOLLOWS:

* * * PROVIDED FURTHER, THAT NO PERSON UNDER THE AGE OF EIGHTEEN YEARS SHALL BE ENLISTED OR MUSTERED INTO THE MILITARY SERVICE OF THE UNITED STATES WITHOUT THE WRITTEN CONSENT OF HIS PARENTS OR GUARDIANS, PROVIDED THAT SUCH MINOR HAS SUCH PARENTS OR GUARDIANS ENTITLED TO HIS CUSTODY AND CONTROL; * * *.

SECTION 1118, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1877, 19 STAT., 242, PROVIDES AS FOLLOWS:

NO MINOR UNDER THE AGE OF SIXTEEN YEARS, NO INSANE OR INTOXICATED PERSON, NO DESERTER FROM THE MILITARY SERVICE OF THE UNITED STATES, AND NO PERSON WHO HAS BEEN CONVICTED OF A FELONY SHALL BE ENLISTED OR MUSTERED INTO THE MILITARY SERVICE.

WHETHER ENLISTMENTS OF MINORS OF THE AGE OF DISCRETION UNDER SIXTEEN YEARS OF AGE ARE ABSOLUTELY VOID OR VOIDABLE APPEARS TO BE A MOOTED QUESTION. ENLISTMENTS BY MINORS SIXTEEN YEARS OR OVER WITHOUT THE CONSENT OF THEIR PARENTS WHEN REQUIRED BY STATUTE ARE NOT VOID BUT VOIDABLE BY THE GOVERNMENT. IN RE HEARN, 32 FED.REP., 141; IN RE LAWLER, 40 FED.REP., 233; HOSKINS V. PELL, 239 FED.REP., 279; EX PARTE DOSTAL, 243 FED.REP., 664; EX PARTE RUSE, 246 FED.REP., 172; EX PARTE BEAVER, 271 FED.REP., 493. THE LAST-CITED CASE DISCUSSES THE VARIOUS STATUTES PLACING LIMITATIONS AS TO AGE UPON ENLISTMENTS IN THE ARMY.

IN THE CITED CASE, 1 COMP. GEN., 511, 512, IT WAS STATED AS FOLLOWS:

IT HAS BEEN HELD UNIFORMLY IN THE CASE OF A SOLDIER WHO ON ENTRY INTO THE SERVICE FRAUDULENTLY CONCEALED OR MISREPRESENTED A MATERIAL FACT DISQUALIFYING HIM FOR ENLISTMENT, AND WHO IS DISCHARGED UPON DISCOVERY BY THE GOVERNMENT OF THE FRAUD; THAT HIS DISCHARGE CONSTITUTES AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT; AND THE MAN IS NOT ENTITLED TO PAY OR ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT; HE IS, HOWEVER, PERMITTED TO RETAIN THE PAY PAID HIM CONCURRENTLY WHILE SERVING. 4 COMP. DEC., 151; 5 ID., 543; 8 ID., 679; 12 ID., 326 AND 633; 17 ID., 122; 22 ID., 538. AND IT HAS BEEN SAID, 8 COMP. DEC., 655, 657---

"ANDREW MOONERT WAS DISCHARGED FOR A CAUSE (MINORITY CONCEALED AT ENLISTMENT) INVOLVING FRAUD ON HIS PART IN THE ENLISTMENT. THE SERVICE FROM WHICH HE WAS SO DISCHARGED ENTITLED TO NO PAY, TRAVELING ALLOWANCES, OR OTHER ALLOWANCES, IS WHOLLY ILLEGAL, AND IS NOT TO BE CONSIDERED SERVICE FOR ANY PURPOSE. (SEE DIGEST SECOND COMP. DEC., VOL. 3, SECTIONS 308 AND 981.)"

THIS IS THE SOUND AND THE CORRECT VIEW. A CONTRACT OF ENLISTMENT OF THIS CHARACTER IS VOIDABLE, AND WHEN AVOIDED BY THE GOVERNMENT IS VOID AB INITIO. IT MUST FOLLOW THAT THE SERVICES IN SUCH AN ENLISTMENT MAY NOT BE COUNTED EITHER FOR LONGEVITY INCREASE OF PAY OR FOR RETIREMENT, AS NO LAWFUL SERVICE WAS RENDERED. IT IS HARDLY NECESSARY TO SUGGEST THAT THE ENLISTMENT BEING VOIDABLE THE CASE IS OTHERWISE IF THE GOVERNMENT UPON DISCOVERY OF THE FRAUD ELECTS TO HOLD THE OFFENDER TO THE CONTRACT OF ENLISTMENT. THE SERVICE IS THEREBY VALIDATED. IN RE GRIMLEY, 137 U.S., 147; IN RE MORRISEY, ID., 157.

YOUR QUESTIONS ARE ANSWERED AS FOLLOWS:

1. THERE IS NO LAW PROHIBITING THE ENLISTMENT OF A MAN WITH DEPENDENTS. THEREFORE, THE CONCEALMENT OF THE FACT AS TO DEPENDENTS DOES NOT RENDER THE ENLISTMENT CONTRACT EITHER VOID OR VOIDABLE. SECTION 29 OF THE ACT OF JUNE 3, 1916, 39 STAT., 187, AS AMENDED BY SECTION 29 OF THE ACT OF JUNE 4, 1920, 41 STAT., 775, AND THE ACT OF MAY 18, 1917, 40 STAT., 81, AUTHORIZES THE DISCHARGE OF A MAN WHO HAS DEPENDENTS, BUT AS STATED BY THE COURT IN THE CASE OF EX PARTE DOSTAL, 243 FED.REP., 675,"DEPENDENCY OF RELATIVES IS NOT MADE A GROUND OF DISABILITY TO ENLISTMENT, AS IS THE CASE OF INFANCY, OVER AGE, OR ALIENAGE.' ACCORDINGLY IN CASE OF "A" THERE WAS LAWFUL SERVICE TO WHICH ATTACHED THE RIGHT TO THE BENEFITS OF DISABILITY COMPENSATION AND INSURANCE UNDER THE WAR RISK INSURANCE ACT.

2. IN THE CASE OF "B," THE ENLISTMENT WAS EITHER ABSOLUTELY VOID OR WAS SO RENDERED AB INITIO BY THE ACTION OF THE GOVERNMENT IN DISCHARGING HIM FOR FRAUD IN THE INCEPTION. CONSEQUENTLY NO LAWFUL SERVICE WAS RENDERED WITHIN THE MEANING OF THE WAR RISK INSURANCE ACT AND NO RIGHTS TO DISABILITY COMPENSATION OR INSURANCE BENEFITS ATTACHED TO SUCH UNLAWFUL SERVICE.

3. IN THE CASE OF "C," ASSUMING THAT HE HAD BEEN CONVICTED OF THE CRIME OF BURGLARY AND THAT SAID CRIME WAS A FELONY IN THE JURISDICTION IN WHICH IT WAS COMMITTED, HIS ENLISTMENT WAS PROHIBITED BY LAW; AND HIS DISCHARGE FOR THE FRAUDULENT CONCEALMENT OF THE FACT WHICH, IF DISCLOSED, WOULD HAVE MADE HIS ENLISTMENT UNLAWFUL OPERATED TO RENDER THE ENLISTMENT VOID AB INITIO. ACCORDINGLY THERE WAS NO LAWFUL SERVICE WITHIN THE MEANING OF THE WAR RISK INSURANCE ACT, AND NO RIGHTS TO DISABILITY COMPENSATION OR INSURANCE BENEFITS ATTACH THERETO.