B-153882, MAY 25, 1964

B-153882, MAY 25, 1964

TO MR. JAMES M. RANDALL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1964, WITH ENCLOSURE, RELATIVE TO THE CLAIM OF THE UNITED STATES AGAINST YOU IN THE AMOUNT OF $880.12, RESULTING FROM YOUR DISCHARGE FROM THE AIR FORCE ON DECEMBER 5, 1957, PRIOR TO THE EXPIRATION OF THE ENLISTMENT FOR WHICH YOU WERE PAID A REENLISTMENT BONUS OF $1,092.

THE RECORD SHOWS THAT YOU REENLISTED IN THE AIR FORCE ON DECEMBER 12, 1956, FOR A PERIOD OF 6 YEARS AND THAT YOU WERE PAID A REENLISTMENT BONUS OF $1,092. ON OCTOBER 25, 1957, YOU SUBMITTED AN APPLICATION FOR DISCHARGE IN LIEU OF BOARD ACTION PURSUANT TO AIR FORCE REGULATION 35-66. YOUR APPLICATION WAS APPROVED ON NOVEMBER 22, 1957, AND AN UNDESIRABLE DISCHARGE DIRECTED UNDER THIS REGULATION WAS EFFECTED ON DECEMBER 5, 1957.

SECTION 308 (E) OF TITLE 37, U.S.C. (FORMERLY 37 U.S.C. 239 (F) ( PROVIDES THAT UNDER REGULATIONS APPROVED BY THE SECRETARY OF DEFENSE, A MEMBER WHO VOLUNTARILY, OR BECAUSE OF HIS OWN MISCONDUCT, DOES NOT COMPLETE THE TERM OF ENLISTMENT FOR WHICH A BONUS WAS PAID TO HIM UNDER THAT SECTION SHALL REFUND THAT PERCENTAGE OF THE BONUS THAT THE UNEXPIRED PART OF HIS ENLISTMENT IS OF THE TOTAL ENLISTMENT PERIOD FOR WHICH THE BONUS WAS PAID. PARAGRAPH 11444 OF THE AIR FORCE MANUAL 173 20 (CHANGE 34, MAY 14, 1957), PROVIDED THAT FOR PURPOSES OF RECOUPMENT OF ANY UNEARNED PORTION OF REENLISTMENT BONUS, THE TERM "WHO VOLUNTARILY OR BECAUSE OF HIS OWN MISCONDUCT" WILL INCLUDE AIRMEN DISCHARGED OR SEPARATED UNDER AIR FORCE REGULATION 35-66. SINCE YOU REENLISTED ON DECEMBER 12, 1956, AND YOU WERE DISCHARGED ON DECEMBER 5, 1957, YOU COMPLETED 0 YEARS, 11 MONTHS AND 24 DAYS OF THE ENLISTMENT PERIOD. THEREFORE, YOU WERE OVERPAID $913.03 FOR THE 5 YEARS, 0 MONTHS AND 6 DAYS OF THE REENLISTMENT PERIOD YOU DID NOT SERVE. THE $32.91 AVAILABLE IN YOUR PAY ACCOUNT AT THE TIME OF YOUR DISCHARGE WAS DEDUCTED FROM THIS INDEBTEDNESS, LEAVING A BALANCE OF $880.12 DUE THE UNITED STATES.

YOU CONTEND THAT THE DISCHARGE ACTION OF DECEMBER 5, 1957, WAS THE RESULT OF INFORMATION OBTAINED THROUGH FALSE ASSURANCE AND MISLEADING INFORMATION IN THAT YOU WERE GIVEN TO UNDERSTAND THAT THE UNEARNED PORTION OF THE REENLISTMENT BONUS WAS NOT RECOVERABLE. YOU SAY THIS IS AN APPARENT VIOLATION OF ARTICLE 31 OF THE UNIFORM CODE OF MILITARY JUSTICE, AND YOU REQUEST THAT THIS MATTER BE REVIEWED BY APPLICABLE AUTHORITY THAT INSURES FAIR AND EQUITABLE APPLICATION OF THE UNIFORM CODE OF MILITARY JUSTICE. IN THIS CONNECTION, ANY ALLEGED VIOLATION OF THE PROVISIONS OF THE UNIFORM CODE OF MILITARY JUSTICE--- SUCH AS ARTICLE 31, 10 U.S.C. 831--- IS A MATTER PRIMARILY FOR CONSIDERATION BY THE JUDGE ADVOCATE GENERAL OF THE ARMED FORCE OF THE MEMBER CONCERNED, IN YOUR CASE, THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE. SEE, GENERALLY, 10 U.S.C. 806.

THE ESTABLISHMENT AND ADMINISTRATION OF STANDARDS GOVERNING DISCHARGES FROM THE ARMED FORCES HAVE BEEN CONSIDERED PECULIARLY MILITARY. RESPECTING THIS, THE COURTS HERETOFORE HAVE BEEN SCRUPULOUSLY CAREFUL NOT TO INTERFERE WITH, OR INTERVENE IN, AUTHORIZED AND LEGITIMATE SERVICE MATTERS AND HAVE HELD THAT THE DISCHARGE OF A SOLDIER WAS A DISCRETIONARY ACT NOT SUBJECT TO REVIEW BY THE COURTS. NORDMANN V. WOODRING, 28 F.SUPP. 573; SCHUSTACK V. HERREN, ET AL., 234 F.2D 134; BERNSTEIN, ET AL. V. HERREN, 141 F.SUPP. 78, AFFIRMED 234 F.2D 434, CERTIORARI DENIED, 352 U.S. 840. SEE ALSO MARSHALL V. WYMAN, ET AL., 132 F.SUPP. 169; DAVIS V. WOODRING, 111 F.2D 523. THUS, ANY REVIEW OF THE DISCHARGE ACTION IN YOUR CASE MUST BE MADE BY THE DEPARTMENT OF THE AIR FORCE. THE AIR FORCE REPORTED THAT YOU WERE ADVISED IN DECEMBER 1960 THAT A REQUEST FOR REVIEW OF YOUR DISCHARGE SHOULD BE SUBMITTED TO THE DIRECTOR OF MILITARY PERSONNEL, HEADQUARTERS USAF, ATTENTION: PROMOTIONS AND SEPARATIONS DIVISION, WASHINGTON, D.C., BUT THAT AS OF DECEMBER 30, 1963, THERE WAS NO RECORD OF A REQUEST FOR SUCH REVIEW. WHILE IT APPEARS FROM THE ENCLOSURE WITH YOUR LETTER OF MARCH 17, 1964, THAT YOU REQUESTED A REVIEW OF YOUR DISCHARGE ACTION BY THAT OFFICE, ANY FURTHER INQUIRIES IN THE MATTER SHOULD BE ADDRESSED TO THAT OFFICE.

WITH RESPECT TO THE ABOVE-MENTIONED RECOUPMENT PROVISIONS OF THE LAW, IN A CASE WHERE A MEMBER IS SEPARATED FROM THE SERVICE AS A RESULT OF HIS OWN MISCONDUCT AND HIS UNDESIRABLE DISCHARGE IS SUBSEQUENTLY CHANGED TO A GENERAL OR HONORABLE DISCHARGE BY A DISCHARGE REVIEW BOARD ESTABLISHED UNDER 10 U.S.C. 1553; WE SAID, IN OUR DECISION OF MARCH 6, 1961, B-144407, 40 COMP. GEN. 591, COPY ENCLOSED, THAT (QUOTING FROM THE SECOND SYLLABUS):

"THE CHANGE OF AN UNDESIRABLE DISCHARGE TO A GENERAL OR HONORABLE DISCHARGE OF A MEMBER OF THE UNIFORMED SERVICES WHO WAS ORIGINALLY SEPARATED FROM THE SERVICE AS A RESULT OF MISCONDUCT DOES NOT AFFECT THE MEMBER'S LIABILITY FOR REFUND OF THE UNEARNED REENLISTMENT BONUS REQUIRED UNDER 37 U.S.C. 238 AND 239.'

ACCORDINGLY, ON THE RECORD BEFORE US, YOU ARE INDEBTED TO THE UNITED STATES AND YOU ARE REQUESTED TO REMIT WITHOUT FURTHER DELAY THE SUM OF $880.12 BY CHECK OR MONEY ORDER MADE PAYABLE TO THE U.S. GENERAL ACCOUNTING OFFICE, TO THE FOLLOWING ADDRESS, U.S. GENERAL ACCOUNTING OFFICE, P.O. BOX 2610, WASHINGTON, D.C., 20013. IF YOU ARE UNABLE TO PAY THE FULL AMOUNT AT THIS TIME, CONSIDERATION WILL BE GIVEN TO A PROPOSAL TO LIQUIDATE THE DEBT BY MONTHLY INSTALLMENT PAYMENTS PROVIDED THE INSTALLMENTS ARE IN AN AMOUNT SUFFICIENT TO LIQUIDATE THE DEBT WITHIN A REASONABLE PERIOD OF TIME.