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B-163443, OCT 18, 1974, 54 COMP GEN 291

B-163443 Oct 18, 1974
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ETC. - CONTRACTUAL AN ENLISTMENT IS MORE THAN A CONTRACT. IT EFFECTS A CHANGE OF STATUS AND ONCE THAT STATUS IS ACHIEVED THE MEMBER IS ENTITLED TO HIS MILITARY PAY AND ALLOWANCES AND SUCH PAY AND ALLOWANCES ARE NOT DEPENDENT UPON THE DUTIES HE PERFORMS BUT. ETC THE ENLISTMENT OF AN INDIVIDUAL BELOW THE MINIMUM STATUTORY AGE FOR ENLISTMENT IS VOID. ENLISTMENTS - VOID - MEDICALLY UNFIT AND MINORITY THE ENLISTMENTS OF INDIVIDUALS ENLISTED BELOW THE MINIMUM STATUTORY AGE WHO ARE STILL BELOW THAT AGE WHEN THAT FACT IS DISCOVERED AND THE ENLISTMENTS OF INDIVIDUALS WHO ARE INSANE ARE VOID AND UPON A DEFINITE DETERMINATION OF SUCH FACTS THE INDIVIDUAL'S PAY AND ALLOWANCES ARE TO BE STOPPED AND HE SHOULD BE RELEASED FROM MILITARY CONTROL.

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B-163443, OCT 18, 1974, 54 COMP GEN 291

ENLISTMENTS - PAY RIGHTS, ETC. - CONTRACTUAL AN ENLISTMENT IS MORE THAN A CONTRACT; IT EFFECTS A CHANGE OF STATUS AND ONCE THAT STATUS IS ACHIEVED THE MEMBER IS ENTITLED TO HIS MILITARY PAY AND ALLOWANCES AND SUCH PAY AND ALLOWANCES ARE NOT DEPENDENT UPON THE DUTIES HE PERFORMS BUT, RATHER, UPON THE STATUS HE OCCUPIES. ENLISTMENTS - MINORITY - PAY RIGHTS, ETC THE ENLISTMENT OF AN INDIVIDUAL BELOW THE MINIMUM STATUTORY AGE FOR ENLISTMENT IS VOID; HOWEVER, IF SUCH INDIVIDUAL CONTINUES IN A MILITARY STATUS AFTER REACHING THE MINIMUM AGE HE ENTERS A VOIDABLE MILITARY STATUS WHICH ENLISTMENT MAY BE AVOIDED AT THE OPTION OF THE GOVERNMENT. ENLISTMENTS - VOID - MEDICALLY UNFIT AND MINORITY THE ENLISTMENTS OF INDIVIDUALS ENLISTED BELOW THE MINIMUM STATUTORY AGE WHO ARE STILL BELOW THAT AGE WHEN THAT FACT IS DISCOVERED AND THE ENLISTMENTS OF INDIVIDUALS WHO ARE INSANE ARE VOID AND UPON A DEFINITE DETERMINATION OF SUCH FACTS THE INDIVIDUAL'S PAY AND ALLOWANCES ARE TO BE STOPPED AND HE SHOULD BE RELEASED FROM MILITARY CONTROL. ENLISTMENTS - FRAUDULENT - PAY RIGHTS, ETC MEMBERS WHO FRAUDULENTLY ENLIST (VOIDABLE ENLISTMENTS) ARE ENTITLED TO RECEIVE PAY AND ALLOWANCES UNTIL THE FACT OF THE FRAUD IS DEFINITELY DETERMINED AT WHICH TIME EITHER THE FRAUD SHOULD BE WAIVED AND THE MEMBER CONTINUED IN THE SERVICE WITH PAY AND ALLOWANCES, OR THE ENLISTMENT SHOULD BE AVOIDED BY THE GOVERNMENT AND THE MEMBER RELEASED FROM MILITARY CONTROL WITH NO ENTITLEMENT TO PAY AND ALLOWANCES BEYOND THE DATE OF DETERMINATION OF THE FRAUD. ENLISTMENTS - FRAUDULENT - DETERMINATION - WAIVER OF FRAUD V. AVOIDANCE OF ENLISTMENT THE DATE OF DETERMINATION OF THE FRAUD AND THE DATE OF THE DECISION TO EITHER WAIVE THE FRAUD OR AVOID THE ENLISTMENT AND RELEASE THE INDIVIDUAL FROM MILITARY CONTROL SHOULD BE CONTEMPORANEOUS OR AS CLOSE TO CONTEMPORANEOUS AS POSSIBLE SO AS TO AVOID RETAINING CONTROL OVER AN INDIVIDUAL WHOSE STATUS AS A MILITARY MEMBER IS VOID. REGULATIONS MAY BE CHANGED IN LINE WITH 47 COMP. GEN. 671 TO PLACE THE AUTHORITY TO WAIVE FRAUD IN ENLISTMENT ON THE SAME LEVEL AS THE AUTHRITY TO DETERMINE THE FACT OF A FRAUDULENT ENLISTMENT. ENLISTMENTS - MINORITY DISCHARGE - WITHIN 90 DAYS OF ENLISTMENT UNDER 10 U.S.C. 1170 A MEMBER ENLISTED BETWEEN THE AGES OF 17 AND 18 YEARS AND WHO IS DISCHARGED UPON APPLICATION OF PARENT OR GUARDIAN MADE WITHIN 90 DAYS OF ENLISTMENT IS ENTITLED TO PAY AND ALLOWANCES THROUGH THE DATE OF DISCHARGE. ENLISTMENTS - PAY RIGHTS, ETC. - DISCHARGE BEFORE EXPIRATION OF ENLISTMENT - MEDICALLY UNFIT MEMBERS WHO SUBSEQUENT TO ENLISTMENT ARE DETERMINED TO HAVE BEEN MEDICALLY UNFIT AT THE TIME OF ENLISTMENT MAY BE PAID PAY AND ALLOWANCES THROUGH THE DATE OF DISCHARGE SINCE THE DETERMINATION OF MEDICAL FITNESS IS PRIMARILY A FUNCTION OF THE SERVICE AND NO STATUTE AFFIRMATIVELY PROHIBITS THEIR ENLISTMENT, SUCH AS IN THE CASE OF INSANE PERSONS (10 U.S.C. 504).

IN THE MATTER OF FRAUDULENT ENLISTMENTS, OCTOBER 18, 1974:

THIS ACTION IS IN RESPONSE TO LETTER FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION ON A QUESTION PRESENTED IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 495, ENCLOSED WITH THE LETTER.

THE QUESTION PRESENTED IN THE COMMITTEE ACTION IS:

MAY SERVICE REGULATIONS BE CHANGED TO AUTHORIZE PAYMENT OF PAY AND ALLOWANCES TO A MEMBER THROUGH DATE OF SEPARATION WHEN HE IS BEING SEPARATED FROM THE SERVICE FOR FRAUDULENTLY CONCEALING OR MISREPRESENTING A MATERIAL FACT WHICH DISQUALIFIED HIM FOR ENLISTMENT?

THE COMMITTEE ACTION DISCUSSION STATES THAT PRESENTLY SERVICE REGULATIONS, AS SUPPORTED BY VARIOUS DECISIONS BY THIS OFFICE, OPERATE TO DENY PAYMENT OF MILITARY PAY AND ALLOWANCES FOR SPECIFIED PERIODS TO AN INDIVIDUAL WHO HAS ENLISTED IN ONE OF THE ARMED SERVICES OF THE UNITED STATES, UNDER VARIOUS CONDITIONS WHICH REQUIRE A DETERMINATION THAT HIS ENLISTMENT IS VOID, OR IF NOT VOID, IS VOIDABLE AT THE OPTION OF THE GOVERNMENT. THE DISCUSSION ALSO INDICATES THAT UNDER CERTAIN SIMILAR, BUT DIFFERENT, CIRCUMSTANCES PAY AND ALLOWANCES MAY ACCRUE AND BE PAID THROUGH THE DATE OF THE MEMBER'S RELEASE FROM MILITARY CONTROL.

WITH REGARD TO THE ABOVE, THE DISCUSSION INCLUDES SEVERAL EXAMPLES OF CIRCUMSTANCES WHICH, UNDER CURRENT REGULATIONS - DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM) - LEAD TO VARYING RESULTS. THOSE EXAMPLES ARE AS FOLLOWS:

A. WHEN AN INDIVIDUAL ENLISTS WITHOUT PARENTS' CONSENT AFTER ATTAINING THE MINIMUM STATUTORY ENLISTMENT AGE OF 17 AND, UPON DISCOVERY OF THAT FACT THE GOVERNMENT VOIDS THE ENLISTMENT, PAY AND ALLOWANCES MAY NOT BE PAID AFTER THE DATE THE DISBURSING OFFICER IS NOTIFIED OF THE FRAUD. RULE 3, TABLE 1-4-1, DODPM. CONVERSELY, IF THE SAME INDIVIDUAL HAD BEEN DISCHARGED, NOT AS A RESULT OF THE GOVERNMENT HAVING DETECTED THE FRAUD BUT, INSTEAD, UPON APPLICATION OF THE PARENT OR GUARDIAN, PAY AND ALLOWANCES WOULD HAVE ACCRUED THROUGH THE DATE OF DISCHARGE OR RELEASE. RULE 6, TABLE 1-4-1, DODPM; 39 COMP. GEN. 860. THUS, IT MAY BE RATIONALIZED THAT ENTITLEMENT TO PAY AND ALLOWANCES IN THE LATTER INSTANCE DID NOT HINGE ON THE VALIDITY OF THE INDIVIDUAL'S ENLISTMENT BUT, RATHER ON THE INTERVENTION OF A PARENT OR GUARDIAN.

B. AN INDIVIDUAL COULD ENLIST BEFORE ATTAINING 17 YEARS OF AGE; HIS TRUE AGE IS DISCOVERED AFTER HE BECOMES 17. IN THIS SITUATION, PAY AND ALLOWANCES ARE SUSPENDED UNTIL A DETERMINATION IS MADE BY THE COMMANDER HAVING GENERAL COURTS-MARTIAL JURISDICTION TO VOID THE ENLISTMENT, OR TO RECOMMEND TO HIGHER HEADQUARTERS THAT IT BE ALLOWED TO STAND. IF THE ENLISTMENT IS VOIDED, PAY AND ALLOWANCES WHICH ACCRUED FROM THE TIME THE FRAUD WAS DETERMINED UNTIL SEPARATION ARE NOT PAID. IF THE ENLISTMENT IS ALLOWED TO STAND THE MEMBER IS PAID FOR THE ENTIRE PERIOD. RULES 2, 3, 4, TABLE 1-4-1, DODPM; 31 COMP. GEN. 562, 11 COMP. DEC. 710, 9 COMP. GEN. 26, 39 COMP. GEN. 860, 10 U.S.C. 505.

C. IN ANOTHER INSTANCE, THE DISCOVERY OF FRAUD IS MADE BEFORE THE INDIVIDUAL ATTAINS AGE 17. IN THIS CASE, THE ENLISTMENT IS VOID AND PAY AND ALLOWANCES ARE STOPPED UPON DISCOVERY OF THE FRAUD. AGAIN, SEVERAL DAYS OR WEEKS MAY ELAPSE BEFORE THE INDIVIDUAL IS SEPARATED, DURING WHICH TIME HE NORMALLY PERFORMS MILITARY DUTIES, BUT RECEIVES NO PAY OR ALLOWANCES. RULE 5, TABLE 1-4-1, DODPM; 39 COMP. GEN. 860.

D. WHEN AN INDIVIDUAL IS DETERMINED TO BE SERVING UNDER A FRAUDULENT ENLISTMENT AND THE GOVERNMENT WAIVES THE FRAUD AND RETAINS HIM IN THE SERVICE, HE SUFFERS NO LOSS OF PAY AND ALLOWANCES. RULE 4, TABLE 1-4 1, DODPM. CONVERSELY, IF THE GOVERNMENT VOIDS AN ENLISTMENT OBTAINED UNDER LIKE CIRCUMSTANCES, PAY AND ALLOWANCES MAY NOT BE PAID TO THE MEMBER FROM THE DATE THE DISBURSING OFFICER WAS NOTIFIED OF THE FRAUD THROUGH THE DATE OF SEPARATION, NOTWITHSTANDING THE FACT THAT THE MEMBER'S ENLISTMENT WAS NO MORE, OR NO LESS, INVALID THAN THAT OF A MEMBER WHOSE FRAUD WAS WAIVED.

E. WHEN AN INDIVIDUAL IS DISCOVERED BY SERVICE MEDICAL AUTHORITIES TO HAVE BEEN MEDICALLY UNFIT FOR ENLISTMENT AT THE TIME OF ENTRY AND IS RELEASED FROM MILITARY CONTROL, PAY AND ALLOWANCES ACCRUE FROM THE DATE OF ENTRY ON ACTIVE DUTY THROUGH THE DATE OF RELEASE FROM MILITARY CONTROL. RULE 10, TABLE 1-4-1, DODPM; 48 COMP. GEN. 377. CONVERSELY, IF AN ENLISTEE WHO, AT THE TIME OF ENLISTMENT, MISREPRESENTED A MATERIAL FACT WHICH WOULD HAVE BEEN A BAR TO HIS ENLISTMENT; E.G., HIS AGE, PAY AND ALLOWANCES MAY NOT BE PAID AFTER THE DATE THE DISBURSING OFFICER WAS NOTIFIED OF THE FRAUD. IF THE ENLISTMENT IS VOIDED, NO FURTHER PAYMENTS ARE AUTHORIZED. IN SOME CASES IT CAN BE CONJECTURED THAT THE MEDICALLY UNFIT HAD AN AWARENESS OF HIS DISQUALIFYING CONDITION JUST AS THE MINOR HAD AN AWARENESS OF HIS DISQUALIFYING AGE.

F. IN THE CASE OF A MEMBER WHO WITHHOLDS INFORMATION WHICH WOULD HAVE BEEN A BAR TO ENLISTMENT, E.G., TO DISCLOSE A FELONY, PAY AND ALLOWANCES ARE TERMINATED AT THE TIME THE DETERMINATION OF FRAUD IS MADE. IN SUCH CASES, THE GOVERNMENT MAY EITHER WAIVE THE FRAUD OR VOID THE ENLISTMENT. A DECISION TO WAIVE THE FRAUD MUST BE MADE AT SERVICE HEADQUARTERS LEVEL, AND NOT BY AN INSTALLATION OR MAJOR COMMANDER. DURING THE ADMINISTRATIVE PROCESSING TIME, THE MEMBER PERFORMS FULL MILITARY DUTIES WITHOUT PAY OR ALLOWANCES. RULE 1, TABLE 1-4-1, DODPM; 31 COMP. GEN. 562.

THE DISCUSSION FURTHER INDICATES THAT THE ADMINISTRATIVE PROCESSING TIME REQUIRED TO EFFECT A SEPARATION IS INFLUENCED BY CIRCUMSTANCES PECULIAR TO EACH INDIVIDUAL CASE, SUCH AS THE LOCATION OF THE MEMBER, E.G., IN THE UNITED STATES OR OVERSEAS, WITH ONE SERVICE REPORTING THAT IN SOME CASES 30 TO 45 DAYS MIGHT ELAPSE BEFORE SEPARATION IS FINALLY EFFECTED DURING WHICH TIME THE INDIVIDUAL INVOLVED PERFORMS FULL MILITARY DUTY BUT IS NOT ENTITLED TO PAY. IT IS STATED THAT A MEMBER OF CONGRESS IN A LETTER TO THE SECRETARY OF DEFENSE EXPRESSED THE VIEW THAT SUCH A POLICY IS INCOMPREHENSIBLE AND REQUESTED THAT THE REGULATIONS BE AMENDED "IN SUCH A WAY THAT NO MAN OR WOMAN IS RESTRICTED TO A BASE NOR REQUIRED TO RENDER SERVICE TO ANY OF THE ARMED FORCES WITHOUT BENEFIT OF COMPENSATION FOR THE REASON OF DETERMINATION OF FRAUDULENT ENLISTMENT BEFORE NECESSARY PROCESSING IS COMPLETED TO EITHER RELEASE THE INDIVIDUAL FROM ACTIVE DUTY OR TO RE-ENLIST HIM THROUGH LEGAL CHANNELS."

IN THE ANALYSIS OF THE PROBLEMS ASSOCIATED WITH VOID AND VOIDABLE ENLISTMENTS CONTAINED IN THE DISCUSSION IT IS CORRECTLY POINTED OUT THAT IT HAS LONG BEEN THE RULE IN THE CASE OF AN ENLISTED PERSON WHO ON ENTRY INTO THE SERVICE FRAUDULENTLY CONCEALED OR MISREPRESENTED A MATERIAL FACT DISQUALIFYING HIM FROM ENLISTMENT, AND WHO IS DISCHARGED UPON DISCOVERY BY THE GOVERNMENT OF THE FRAUD, THAT HIS DISCHARGE CONSTITUTES AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT. UPON SUCH AVOIDANCE THE PERSON IS NOT ENTITLED TO PAY OR ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT EXCEPT AS MAY BE SPECIFICALLY AUTHORIZED BY STATUTE. SEE 8 COMP. DEC. 655 (1902), 1 COMP. GEN. 511 (1922), 9 ID. 436 (1930), 31 ID. 562 (1952), 36 ID. 439 (1956), AND 47 ID. 671 (1968). HOWEVER, BY ANALOGY TO THE RULE APPLICABLE IN THE CASE OF A DE FACTO OFFICER, HE IS PERMITTED TO RETAIN THE PAY PAID TO HIM CURRENTLY WHILE SERVING, IF THE PAYMENTS WERE OTHERWISE PROPER. SEE 31 COMP. GEN. 562, SUPRA, AND DECISIONS CITED.

THE DISCUSSION ALSO CORRECTLY NOTES THAT THIS OFFICE HAS LONG RECOGNIZED AS DE JURE SERVICE CONSTRUCTIVE ENLISTMENTS WHERE PERSONS OTHERWISE QUALIFIED TO ENLIST, ENTER UPON, AND RENDER FULL MILITARY DUTY AND THE GOVERNMENT ACCEPTS SUCH SERVICES WITHOUT CONDITION. SEE 24 COMP. GEN. 175 (1944), 33 ID. 34 (1953), AND 45 ID. 218 (1965). FURTHER, WHILE A DEFINITE DISTINCTION CAN BE DRAWN BETWEEN THE CONSTRUCTIVE ENLISTMENT OF A PERSON "OTHERWISE QUALIFIED" TO ENLIST AND AN ENLISTMENT WHICH IS OBTAINED THROUGH FRAUD, A SIMILAR DISTINCTION IS NOT SO APPARENT WITH REGARD TO PERFORMANCE OF MILITARY DUTIES PRIOR TO DISCHARGE FROM EITHER STATUS. THE DISCUSSION SUGGESTS THAT SUCH A BASIS MAY SERVE AS REASONABLE GROUNDS TO PERMIT A CHANGE IN THE REGULATIONS TO PROVIDE THAT ENTITLEMENT TO PAY AND ALLOWANCES IS CONTINGENT UPON THE PERFORMANCE OF ASSIGNED MILITARY DUTIES RATHER THAN THE MERE VOIDABILITY OF A CONTRACT OF ENLISTMENT.

AT THE OUTSET, IT MUST BE STATED THAT IT IS WELL SETTLED THAT AN ENLISTMENT IS MORE THAN A CONTRACT, IT EFFECTS A CHANGE OF STATUS. UNITED STATES V. WILLIAMS, 302 U.S. 46, 49 (1937). COMMON-LAW RULES GOVERNING PRIVATE CONTRACTS HAVE NO PLACE IN THE AREA OF MILITARY PAY. A SOLDIER'S ENTITLEMENT TO PAY IS DEPENDENT UPON A STATUTORY RIGHT AND GENERALLY HE IS ENTITLED TO THE STATUTORY PAY AND ALLOWANCES OF HIS GRADE AND STATUS, HOWEVER IGNOBLE A SOLDIER HE MAY BE. BELL. V. UNITED STATES, 366 U.S. 393, 401-402 (1961). SUCH PAY IS NOT GENERALLY DEPENDENT UPON THE DUTIES HE PERFORMS BUT UPON THE STATUS HE OCCUPIES. SEE WARD V. UNITED STATES, 158 F.2D 499 (1947), CITED IN BELL, SUPRA, PAGE 404, NOTE 14.

THEREFORE, IN DETERMINING WHETHER AN INDIVIDUAL IS ENTITLED TO THE PAY AND ALLOWANCES OF A MEMBER OF THE ARMED FORCES, IT IS FIRST NECESSARY TO DETERMINE WHETHER HE HAS ACHIEVED A MILITARY STATUS.

SECTION 505(A) OF TITLE 10, U.S. CODE, AS AMENDED BY THE ACT OF MAY 24, 1974, PUBLIC LAW 93-290, 88 STAT. 173, PROVIDES GENERALLY THAT THE SECRETARY CONCERNED MAY ACCEPT ORIGINAL ENLISTMENTS IN THE REGULAR COMPONENTS OF THE ARMED FORCES "OF QUALIFIED, EFFECTIVE, AND ABLE BODIED PERSONS WHO ARE NOT LESS THAN SEVENTEEN YEARS OF AGE, NOR MORE THAN THIRTY -FIVE YEARS OF AGE." SECTION 505(A) ALSO PROVIDES THAT "NO PERSON UNDER EIGHTEEN YEARS OF AGE MAY BE ORIGINALLY ENLISTED WITHOUT THE WRITTEN CONSENT OF HIS PARENT OR GUARDIAN, IF HE HAS A PARENT OR GUARDIAN ENTITLED TO HIS CUSTODY AND CONTROL."

IN THE DECISION AT 39 COMP. GEN. 860 (1960), IT WAS STATED THAT WHERE THE MINIMUM STATUORY AGE FOR ENLISTMENT IS 17 YEARS AND PARENTAL CONSENT IS REQUIRED FOR ENLISTMENT OF A PERSON 17 YEARS OF AGE, ENLISTMENT PRIOR TO ATTAINING THAT AGE CREATES NO MILITARY STATUS. HOWEVER, IF AN INDIVIDUAL WHO FRAUDULENTLY ENLISTED BEFORE ATTAINING THE AGE OF 17 CONTINUES TO PERFORM MILITARY DUTIES AFTER REACHING THAT AGE, HE IS REGARDED AS ENTERING A VOIDABLE MILITARY STATUS ON HIS SEVENTEENTH BIRTHDAY, NO PARENTAL CONSENT BEING SHOWN. IN SO HOLDING, PARTICULAR CONSIDERATION WAS GIVEN TO THE CASES OF UNITED STATES V. BLANTON, 23 C.M.R. 128 (1957), AND HOSKINS V. PELL, 239 F.279 (1917).

IN THE BLANTON CASE IT WAS HELD THAT A MINOR BELOW THE STATUTORY AGE WHEN HE ENLISTED COULD NOT ACHIEVE MILITARY STATUS AS A MEMBER OF THE ARMY AND NOT HAVING THAT STATUS COULD NOT, WHILE STILL BELOW THAT AGE, BE COURT- MARTIALED FOR DESERTION. IN SO HOLDING, THE COURT SAID THAT AN ENLISTMENT IS PREDOMINANTLY A MATTER OF STATUS AND NOT OF CONTRACT AND THAT CONGRESS HAVING SET A MINIMUM AGE LIMIT FOR ENLISTMENT, NO ONE COULD ACHIEVE THE STATUS OF ARMY MEMBERSHIP WHO WAS BELOW THAT AGE AND THAT SUCH ENLISTMENT WOULD BE VOID AND OF NO EFFECT. SEE ALSO IN RE GRIMLEY, 137 U.S. 147 (1890), IN RE MORRISSEY, 137 U.S. 157 (1890), UNITED STATES V. WILLIAMS, SUPRA, UNITED STATES V. GRAVES, 39 C.M.R. 438 (1968), AND UNITED STATES V. WILLIAMS, 39 C.M.R. 471 (1968).

IN HOSKINS V. PELL, SUPRA, THE COURT CONCLUDED THAT A MINOR WHO PURPORTEDLY ENLISTED AND DESERTED PRIOR TO ATTAINING THE MINIMUM STATUTORY ENLISTMENT AGE WAS NOT SUBJECT TO THE JURISDICTION OF A COURT MARTIAL SINCE HE WAS NOT COMPETENT TO ENLIST. THE COURT STATED, HOWEVER, THAT IT IS NOT DENIED THAT SUCH AN ENLISTMENT MAY BE VALIDATED BY THE MINOR'S CONTINUANCE IN THE SERVICE UNTIL HE REACHES THE AGE WHICH QUALIFIED HIM FOR ENLISTMENT. SEE ALSO IN THIS REGARD IN RE GRIMLEY, SUPRA, EX PARTE RUSH, 246 F.172 (1917), BARRETT V. LOONEY, 158 F.SUPP. 224 (1957), 23 COMP. GEN. 755, 761 (1944), AND 37 ID. 406 (1957).

A DISTINCTION IS, THEREFORE, CLEARLY DRAWN BETWEEN AN ABSOLUTELY VOID ENLISTMENT AND ONE WHICH IS MERELY VOIDABLE AT THE OPTION OF THE GOVERNMENT. THE PURPORTED ENLISTMENT OF ONE WHO IS BELOW THE MINIMUM STATUTORY AGE OF 17 YEARS (10 U.S.C. 505(A)) OR WHO HAS BEEN JUDICIALLY DECLARED INSANE (10 U.S.C. 504) WOULD APPEAR TO BE ABSOLUTELY VOID SINCE SUCH AN INDIVIDUAL WOULD NOT HAVE THE LEGAL CAPACITY TO ACQUIRE A MILITARY STATUS. SEE IN RE GRIMLEY, SUPRA, PAGES 152-153. NORMALLY, SUCH AN INDIVIDUAL WOULD NOT BE ENTITLED TO PAY AND ALLOWANCES UNDER SUCH A VOID ENLISTMENT, EXCEPT THAT BY ANALOGY TO A DE FACTO OFFICER HE MAY RETAIN PAYMENTS RECEIVED PRIOR TO THE DETERMINATION THAT HIS ENLISTMENT IS VOID AND THE DISBURSING OFFICER SO NOTIFIED (SEE 39 COMP. GEN. 742 (1960) (ANSWERS TO QUESTIONS 1, 2, AND 3) AND 39 ID. 860 (1960) (ANSWER TO QUESTION 3)), AND UPON A DEFINITE DETERMINATION BY AN APPROPRIATE OFFICIAL THAT THE ENLISTMENT IS VOID, PAYMENTS OF PAY AND ALLOWANCES TO THE INDIVIDUAL TERMINATED. IN THIS REGARD, THE RETENTION OF SUCH AN INDIVIDUAL IN A MILITARY DUTY STATUS FOR A SIGNIFICANT PERIOD OF TIME (30 TO 45 DAYS) WOULD APPEAR INAPPROPRIATE, PARTICULARLY IN THE CASE OF A MINOR BELOW THE AGE OF 17 YEARS IN VIEW OF THE COURT'S DECISION IN THE BLANTON CASE HOLDING THAT A MINOR BELOW THE STATUTORY AGE OF ENLISTMENT IS NOT SUBJECT TO MILITARY LAW. IN THE CASES OF THE ENLISTMENT OF MINORS UNDER THE MINIMUM STATUTORY AGE OF 17 YEARS WHO SERVE BEYOND THE MINIMUM STATUTORY AGE AND THUS ENTER A VOIDABLE MILITARY STATUS (39 COMP. GEN. 860, 863, SUPRA), OR ENLISTMENTS INVOLVING OTHER TYPES OF FRAUD WHICH RESULT IN VOIDABLE ENLISTMENTS AT THE OPTION OF THE GOVERNMENT, IT HAS BEEN HELD THAT WHEN AVOIDED BY THE GOVERNMENT SUCH AN ENLISTMENT IS VOID FROM THE BEGINNING. NEVERTHELESS, UNTIL THE CONTRACT IS AVOIDED UPON DISCOVERY OF THE FRAUD, THE INDIVIDUAL REMAINS AN ENLISTED MEMBER OF THE SERVICE INVOLVED AND PRIMA FACIE ENTITLED TO THE BENEFITS AND SUBJECT TO THE DISABILITIES OF THAT STATUS. SEE 11 COMP. DEC. 710 (1905), 9 COMP. GEN. 26 (1929), AND 31 ID. 562 (1952).

IN 47 COMP. GEN. 671 (1968), FAVORABLE CONSIDERATION WAS GIVEN TO A PROPOSED AMENDMENT TO ARMY REGULATIONS WHICH AMENDMENT HAD THE EFFECT OF AUTHORIZING CONTINUATION OF PAY AND ALLOWANCES TO MEMBERS WHO FRAUDULENTLY ENTER THE SERVICE UNTIL THE COMMANDER EXERCISING GENERAL COURT-MARTIAL AUTHORITY MAKES A DETERMINATION AS TO WHETHER THE FACT OF FRAUDULENT ENTRY HAS BEEN COMPLETELY VERIFIED OR PROVEN. IT WAS STATED IN THAT DECISION THAT IN THE ARMY, THE MEMBER'S UNIT COMMANDER, AFTER VERIFYING THE FACT OF FRAUDULENT ENTRY, SUBMITS A RECOMMENDATION EITHER FOR DISCHARGE BY REASON OF FRAUDULENT ENTRY OR FOR RETENTION THROUGH INTERMEDIATE COMMANDERS TO THE COMMANDER EXERCISING GENERAL COURT MARTIAL AUTHORITY. IT WAS INDICATED THAT SINCE THE FINAL DETERMINATION OF RETENTION OR DISCHARGE MUST BE MADE BY THE GENERAL COURT-MARTIAL AUTHROITY, THERE ARE OFTEN DELAYS OF 30 DAYS OR MORE WHILE CASES ARE ADMINISTRATIVELY PROCESSED THROUGH CHANNELS, DURING WHICH TIME THE INDIVIDUAL IS PERFORMING DUTY FOR THE ARMY. THE AUTHORIZATION OF PAYMENTS UNDER THAT PROPOSED CHANGE IN REGULATIONS WAS BASED ON THE RECOGNITION THAT DURING THE PERIOD BETWEEN THE SUBMISSION OF THE UNIT COMMANDER'S RECOMMENDATION AND THE FINAL ACTION TAKEN BY THE COMMANDER EXERCISING GENERAL COURT-MARTIAL AUTHORIITY, THE MEMBER IS, IN FACT, PERFORMING DUTY, AND THERE IS NO AUTHORITY TO AVOID THE CONTRACT OF ENLISTMENT UNTIL SUCH COMMANDER HAS DETERMINED THAT THE MEMBER'S ENTRY INTO THE SERVICE ACTUALLY WAS FRAUDULENT. THAT DECISION DID NOT AUTHORIZE PAYMENTS OF PAY AND ALLOWANCES BEYOND THE DATE OF THE COMMANDER'S DETERMINATION OF FRAUDULENT ENTRY. IT WOULD APPEAR, HOWEVER, THAT ONCE SUCH A DETERMINATION IS MADE, THE FRAUD SHOULD BE WAIVED OR THE INDIVIDUAL SHOULD BE PROMPTLY RELEASED FROM MILITARY CONTROL UNLESS, OF COURSE, HE IS TO BE HELD FOR COURT-MARTIAL PROCEEDINGS. SEE IN THIS CONNECTION, ARTICLE 83 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 883.

APPLYING THE RULES DISCUSSED ABOVE TO THE EXAMPLES GIVEN IN THE COMMITTEE ACTION DISCUSSION THE FOLLOWING RESULTS APPEAR.

IN EXAMPLE "A," THE INDIVIDUAL WHO ENLISTED BETWEEN THE AGES OF 17 AND 18 YEARS WITHOUT PARENTAL CONSENT AS REQUIRED BY 10 U.S.C. 505 AND PRESUMABLY WITHOUT GIVING HIS TRUE AGE AT THE TIME OF THE ENLISTMENT, IS CONSIDERED AS HAVING FRAUDULENTLY ENLISTED BY CONCEALING A MATERIAL FACT, WHICH ENLISTMENT IS VOIDABLE. IF THE FRAUD IS DISCOVERED BY THE GOVERNMENT AND IT IS DETERMINED BY PROPER AUTHORITY TO AVOID THE CONTRACT, THE INDIVIDUAL IS ENTITLED TO PAY AND ALLOWANCES ONLY THROUGH THE DATE OF SUCH DETERMINATION. HOWEVER, HIS RELEASE SHOULD BE CONTEMPORANEOUS WITH THAT DETERMINATION OR IF CONTEMPORANEOUS RELEASE IS NOT POSSIBLE, IT SHOULD OCCUR AS SOON AS POSSIBLE AFTER THE DETERMINATION IS MADE. SEE 47 COMP. GEN. 671, SUPRA.

BY STATUTE (10 U.S.C. 1170) IF SUCH AN INDIVIDUAL IS DISCHARGED UPON APPLICATION OF HIS PARENTS OR GUARDIAN MADE WITHIN 90 DAYS OF HIS ENLISTMENT, HE IS ENTITLED TO BE PAID THROUGH THE DATE OF DISCHARGE. SEE 39 COMP. GEN. 860, 867 (ANSWER TO QUESTION 4).

IN EXAMBPLE "B," THE INDIVIDUAL ENLISTED BEFORE HE ATTAINED THE STATUTORY MINIMUM AGE (AN ABSOLUTELY VOID ENLISTMENT) BUT SERVED BEYOND THE MINIMUM AGE BEFORE THE FACT OF HIS UNDERAGE ENLISTMENT WAS DISCOVERED, THUS, MAKING THE ENLISTMENT VOIDABLE. AS WAS PREVIOUSLY STATED IN 47 COMP. GEN. 671, ARMY REGULATIONS WERE AUTHORIZED TO BE AMENDED SO THAT PAY AND ALLOWANCES OF AN INDIVIDUAL SERVING IN A VOIDABLE ENLISTMENT STATUS MAY BE PAID UNTIL THE COMMANDER HAVING GENERAL COURT-MARTIAL JURISDICTION MAKES HIS DETERMINATION AS TO THE EXISTENCE OF FRAUD IN CONNECTION WITH THE ENLISTMENT. IF AT THAT TIME OR AT A LATER DATE IT IS ALSO DECIDED THAT THE FRAUD SHOULD BE WAIVED, PAY AND ALLOWANCES, OF COURSE CONTINUE. HOWEVER, IF IT IS DECIDED THAT THE CONTRACT OF ENLISTMENT SHOULD BE AVOIDED, PAY AND ALLOWANCES MUST CEASE UPON DETERMINATION THAT FRAUD EXISTED AND THE INDIVIDUAL SHOULD BE PROMPTLY RELEASED FROM MILITARY CONTROL.

IN EXAMPLE "C," THE INDIVIDUAL ENLISTED BEFORE REACHING THE MINIMUM STATUTORY AGE AND THAT FACT IS DISCOVERED BEFORE HE REACHES THE MINIMUM AGE. SUCH ENLISTMENT IS ABSOLUTELY VOID AS THE INDIVIDUAL NEVER WAS CAPABLE OF ENTERING A MILITARY STATUS. ACCORDINGLY, HIS PAY AND ALLOWANCES MUST BE STOPPED UPON A DEFINITE DETERMINATION OF THAT FACT AND IT WOULD APPEAR THAT HE SHOULD BE RELEASED FROM MILITARY CONTROL AS QUICKLY AS PRACTICABLE.

EXAMPLE "D" REFERS TO AN INDIVIDUAL WHO IS DETERMINED TO BE SERVING IN A FRAUDULENT ENLISTMENT WHICH, AS IS STATED ABOVE, IS VOIDABLE AT THE OPTION OF THE GOVERNMENT. UPON DETERMINATION OF THE FRAUD IF THE GOVERNMENT ELECTS TO WAIVE THE FRAUD, THE INDIVIDUAL CONTINUES TO SERVE AND IS ENTITLED TO FULL PAY AND ALLOWANCES. IF, HOWEVER, THE GOVERNMENT ELECTS TO AVOID THE CONTRACT OF ENLISTMENT AND DISCHARGE THE INDIVIDUAL, THE ENLISTMENT IS VOID FROM THE BEGINNING AND THE INDIVIDUAL IS ENTITLED TO NO FURTHER PAY AND ALLOWANCES, EXCEPT AS MAY BE SPECIFICALLY AUTHORIZED BY LAW. 47 COMP. GEN. 671, SUPRA, AND 31 ID. 562, SUPRA. IN SUCH CASE, HOWEVER, AS IS NOTED ABOVE, IT IS CONTEMPLATED THAT THE DETERMINATION OF FRAUD AND THE DECISION TO AVOID THE CONTRACT AND DISCHARGE THE INDIVIDUAL WILL BE, IF NOT ONE AND THE SAME, AT LEAST AS CONTEMPORANEOUS AS POSSIBLE, THUS PREVENTING AN INDIVIDUAL FROM REMAINING UNDER MILITARY CONTROL WITHOUT ENTITLEMENT TO PAY AND ALLOWANCES FOR ANY SIGNIFICANT PERIOD OF TIME. 47 COMP. GEN. 671, SUPRA.

EXAMPLE "E" NOTES THAT AN INDIVIDUAL WHO, SUBSEQUENT TO ENLISTMENT, IS DISCOVERED BY SERVICE MEDICAL AUTHORITIES TO HAVE BEEN MEDICALLY UNFIT FOR ENLISTMENT AT THE TIME OF ENTRY AND WHO IS RELEASED FROM MILITARY CONTROL IS ENTITLED TO PAY AND ALLOWANCES THROUGH THE DATE OF RELEASE, WHILE AN INDIVIDUAL WHO FRAUDULENTLY ENLISTS BY MISREPRESENTING A MATERIAL FACT MAY NOT BE PAID AFTER THE DISBURSING OFFICER IS NOTIFIED OF THE FRAUD.

IN 48 COMP. GEN. 377 (1968), THE ENTITLEMENT TO PAY AND ALLOWANCES OF MEDICALLY UNFIT MEMBERS INDUCTED INTO THE ARMED SERVICES WAS CONSIDERED IN DEPTH. THERE IT WAS POINTED OUT THAT NO STATUTE WAS FOUND WHICH AFFIRMATIVELY PROHIBITS THE INDUCTION INTO THE ARMED FORCES OF PERSONS NOT PHYSICALLY AND MENTALLY QUALIFIED IN ALL RESPECTS AND THE DETERMINATION OF SUCH PHYSICAL FITNESS IS PRIMARILY A FUNCTION OF THE GOVERNMENT AND NOT THE INDIVIDUAL. THUS, IT WAS HELD THAT THE ADMINISTRATIVE FAILURE TO DISCOVER THAT THE MENTAL OR PHYSICAL CONDITION OF A PERSON INDUCTED INTO THE SERVICE WAS SUCH AS WOULD WARRANT REJECTION FOR MILITARY SERVICE DOES NOT DEPRIVE HIM OF THE RIGHT TO MILITARY PAY AND ALLOWANCES.

THAT REASONING WOULD ALSO APPEAR TO APPLY IN CASES OF ENLISTMENTS, EXCEPT IN THE CASE OF ONE WHO HAD BEEN LEGALLY DECLARED MENTALLY INCOMPETENT AND, THEREFORE, AS NOTED PREVIOUSLY, BY STATUTE (10 U.S.C. 504), COULD NOT ACHIEVE MILITARY STATUS, 39 COMP. GEN. 742, SUPRA.

CLEARLY, THE INDIVIDUAL WHO FRAUDULENTLY ENLISTS BY MISREPRESENTING HIMSELF OR CONCEALING A MATERIAL FACT WHICH IT IS HIS DUTY TO REVEAL MUST ACCEPT THE CONSEQUENCES OF THE FRAUD HE HAS COMMITTED, NOT THE GOVERNMENT.

IN EXAMPLE "F," IT IS INDICATED THAT IN THE CASE OF A FRAUDULENT ENLISTMENT, WHICH IS VOIDABLE, PAY AND ALLOWANCES ARE TERMINATED AT THE TIME THE FRAUD IS DETERMINED UNTIL A DECISION IS MADE AT SERVICE HEADQUARTERS TO WAIVE THE FRAUD OR DISCHARGE THE INDIVIDUAL CONCERNED, DURING WHICH TIME THE INDIVIDUAL PERFORMS MILITARY DUTIES WITHOUT PAY OR ALLOWANCES. AS WAS INDICATED PREVIOUSLY, THIS APPEARS TO BE PRIMARILY AN ADMINISTRATIVE PROBLEM WHICH IT WOULD APPEAR COULD BE DEALT WITH BY PLACING THE AUTHORITY TO DEFINITELY DETERMINE THE FACT OF THE FRAUD AND THE AUTHORITY TO MAKE THE DECISION TO WAIVE THE FRAUD OR RELEASE THE INDIVIDUAL AT THE SAME DECISION-MAKING LEVEL. SEE 47 COMP. GEN. 671, SUPRA. AS WAS ALSO STATED ABOVE, IT IS NOT CONTEMPLATED THAT INDIVIDUALS FRAUDULENTLY ENLISTED WOULD BE RETAINED UNDER MILITARY CONTROL FOR LONG PERIODS OF TIME WITHOUT PAY AND ALLOWANCES.

ACCORDINGLY, UPON REVIEW OF PREVIOUS DECISIONS, THE RULES DISCUSSED ABOVE REMAIN FOR APPLICATION. HOWEVER, IT WOULD APPEAR THAT REVISION OF REGULATIONS IN LINE WITH 47 COMP. GEN. 671 WOULD ALLEVIATE THE PRIMARY PROBLEM DISCUSSED IN THE COMMITTEE ACTION. ANY FURTHER CHANGES IN SUCH RULES TO AUTHORIZE MILITARY PAY AND ALLOWANCE PAYMENTS TO INDIVIDUALS WHO IT HAS BEEN DEFINITELY DETERMINED HAVE NO MILITARY STATUS, APPEAR TO BE MATTERS FOR PRESENTATION TO THE CONGRESS FOR CONSIDERATION. THE QUESTION IS ANSWERED ACCORDINGLY.

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