B-142383, MAY 4, 1960, 39 COMP. GEN. 742

B-142383, MAY 4, 1960, 39 COMP. GEN. 742

MILITARY PERSONNEL - INSANE AND INCOMPETENT PERSONS - PAY AND ALLOWANCES - OTHER BENEFITS ALTHOUGH THERE IS NO PROHIBITION AGAINST THE INDUCTION OF INSANE PERSONS INTO THE MILITARY SERVICE SIMILAR TO THE PROHIBITION AGAINST ENLISTMENT OF INSANE PERSONS (10 U.S.C. 3253; ID. 5532), INDUCTEES SHOULD BE TREATED IN THE SAME MANNER AS ENLISTEES WHO DO NOT ACQUIRE ANY RIGHT TO PAY AND ALLOWANCES WHEN AN EXISTING JUDICIAL ADJUDICATION OF MENTAL INCOMPETENCE IS NOT DISCOVERED UNTIL AFTER ENLISTMENT; THEREFORE, PERSONS ENLISTED OR INDUCTED WHO, AFTER HAVING PERFORMED ACTIVE DUTY FOR SOME TIME, ARE DISCOVERED TO HAVE BEEN DECLARED MENTALLY INCOMPETENT BY A COURT PRIOR TO ENTRANCE INTO THE MILITARY SERVICE ARE NOT ENTITLED TO PAY AND ALLOWANCES THROUGH THE DATE DETERMINATION OF MENTAL COMPETENCY IS MADE OR UNTIL RELEASE FROM MILITARY CONTROL OR TO ANY UNPAID PAY AND ALLOWANCES FOR SUCH PERIODS. PERSONS ENLISTED OR INDUCTED INTO THE UNIFORMED SERVICES WHO, AFTER HAVING RECEIVED ACTIVE DUTY PAY AND ALLOWANCES, ARE DISCOVERED TO HAVE BEEN DECLARED MENTALLY INCOMPETENT BY A COURT PRIOR TO ENTRANCE INTO THE MILITARY SERVICE ARE ENTITLED TO RETAIN THE PAY AND ALLOWANCES RECEIVED UNDER THE RULE THAT A PERSON WHO CAN ESTABLISH THAT HE RECEIVED PAY AND ALLOWANCES IN A DE FACTO STATUS MAY RETAIN THE PAY AND ALLOWANCES RECEIVED IF THE PAYMENTS ARE OTHERWISE PROPER. PERSONS WHO WERE JUDICIALLY DETERMINED TO BE INSANE PRIOR TO ENLISTMENT OR INDUCTION INTO THE UNIFORMED SERVICES MAY NOT BE REGARDED AS HAVING A MILITARY STATUS WHICH MAY BE TERMINATED ON THE GROUNDS OF FRAUD TO BE ENTITLED TO A DONATION NOT IN EXCESS OF $25 UPON RELEASE FROM MILITARY CONTROL. PERSONS WHO WERE ENLISTED OR INDUCTED INTO THE UNIFORMED SERVICES PRIOR TO THE DISCOVERY OF A PRIOR EXISTING JUDICIAL DETERMINATION OF INSANITY MAY BE REGARDED AS "REJECTED APPLICANTS" WITHIN THE MEANING OF TRAVEL AND TRANSPORTATION PROVISIONS OF SECTION 303 (E) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (E), TO BE ENTITLED TO TRANSPORTATION IN KIND UPON RELEASE FROM MILITARY CONTROL. IN THE DETERMINATION OF THE LIABILITY FOR INDEBTEDNESS DUE THE UNITED STATES BY PERSONS WHO ARE RELEASED FROM MILITARY CONTROL AS THE RESULT OF THE DISCOVERY THAT AT THE TIME OF ENLISTMENT OR INDUCTION THERE WAS AN EXISTING JUDICIAL DETERMINATION OF INSANITY, THE QUESTION OF BENEFIT TO THE INSANE PERSON IS FOR CONSIDERATION SO THAT IF THE DEBT AROSE AS THE RESULT OF A TRANSACTION OR PAYMENT FROM WHICH THE INSANE PERSON ACTUALLY BENEFITED HE IS LIABLE FOR THE PAYMENT; ALSO, IF DEBT AROSE AS THE RESULT OF FAILURE OF THE GOVERNMENT TO DEDUCT AN AMOUNT FROM HIS PAY FOR A CLASS Q ALLOTMENT, THE PERSON WOULD BE LIABLE FOR THE PAYMENT FOR THE ADDITIONAL REASON THAT HE IS OBLIGATED TO SUPPORT HIS FAMILY. PERSONS WHO, AFTER INDUCTION OR ENLISTMENT IN THE UNIFORMED SERVICES, ARE FOUND BY QUALIFIED MEDICAL DOCTORS TO HAVE BEEN MENTALLY INCOMPETENT ON THE DATE OF ENLISTMENT OR INDUCTION MAY NOT BE REGARDED AS INSANE PERSONS THE SAME AS PERSONS WHO HAVE BEEN JUDICIALLY DETERMINED BY A COURT TO BE INSANE PRIOR TO ENLISTMENT OR INDUCTION; THEREFORE, SUCH PERSONS ARE REGARDED AS MEMBERS OF THE UNIFORMED SERVICES UNTIL THE DATE OF RELEASE FROM MILITARY CONTROL AND ENTITLED TO PAY AND ALLOWANCES, PAID AND UNPAID, AND TO TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED FOR MEMBERS WHO ARE DISCHARGED ON ACCOUNT OF A MENTAL CONDITION; ALSO, SUCH MEMBERS ARE LIABLE FOR DEBTS DUE THE UNITED STATES AT THE TIME OF RELEASE.

TO THE SECRETARY OF DEFENSE, MAY 4, 1960:

REFERENCE IS MADE TO LETTER OF MARCH 24, 1960, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS CONCERNING ENTITLEMENT TO PAY AND ALLOWANCES OF PERSONS ENLISTED OR INDUCTED INTO THE ARMED FORCES WHO, AFTER HAVING PERFORMED "ACTIVE DUTY" FOR SOME TIME, ARE DISCOVERED TO HAVE BEEN DECLARED MENTALLY INCOMPETENT BY A COURT PRIOR TO THE TIME OF ENTRANCE INTO THE ARMED FORCES. THE QUESTIONS FOR DECISION ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 261, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IT IS STATED IN COMMITTEE ACTION NO. 261 THAT THE ALLEGED MEMBERS CONCERNED HAVE EITHER ENLISTED OR HAVE BEEN INDUCTED UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 62 STAT. 604, AS AMENDED, 50 U.S.C. APP. 451, AND THAT IN EACH CASE IT WAS LATER DETERMINED THAT THEY SHOULD NOT HAVE BEEN ENLISTED OR INDUCTED AS THEY HAD BEEN LEGALLY DECLARED TO BE MENTALLY INCOMPETENT PRIOR TO THE TIME OF ENTRY INTO THE SERVICE. IT IS POINTED OUT THAT ARMY POLICY PRESENTLY DIRECTS THAT INDIVIDUALS WHO WERE LEGALLY DETERMINED TO BE MENTALLY INCOMPETENT AT THE TIME OF ENLISTMENT OR INDUCTION BE RELEASED FROM MILITARY CONTROL AND DROPPED FROM THE ROLLS, AND THAT NO DISCHARGE CERTIFICATE, CERTIFICATE OF SERVICE, OR DD FORM 214 BE ISSUED. THESE FACTORS, COMMITTEE ACTION NO. 261 STATES, SEEM TO WARRANT A DETERMINATION THAT SUCH PERSONS HAVE NO ENTITLEMENT TO PAY, ALLOWANCES, DONATIONS, OR TRANSPORTATION IN KIND, SINCE THEY WERE NEVER MEMBERS OF THE MILITARY SERVICE UNDER ANY LAW. BECAUSE OF INCOMPETENCY, IT IS STATED, THEY SHOULD BE CONSIDERED INCAPABLE OF ENTERING INTO A FRAUDULENT ENLISTMENT OR FURNISHING FRAUDULENT INFORMATION IN CONNECTION WITH THEIR INDUCTION.

COMMITTEE ACTION NO. 261 ALSO STATES WITH RESPECT TO PERSONS WHO, IN THE OPINION OF QUALIFIED MEDICAL DOCTORS, ARE DEEMED TO BE MENTALLY INCOMPETENT BUT A LEGAL ADJUDICATION OF INSANITY HAS NOT BEEN MADE, THAT THE ARMY MAKES A DISTINCTION BETWEEN THOSE INDIVIDUALS WHO ARE DETERMINED TO BE ABLE TO DISTINGUISH BETWEEN RIGHT AND WRONG AND ADHERE TO THE RIGHT AND THOSE WHO CANNOT. THE FORMER ARE DISCHARGED FOR A FRAUDULENT ENLISTMENT FOR CONCEALING MEDICAL DEFECTS AND THE LATTER ARE DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT. IT IS REPORTED THAT THE DEPARTMENT OF AIR FORCE POLICY IS THE SAME EVEN IN CASES WHERE A LEGAL DETERMINATION OF INSANITY HAS BEEN MADE. IT IS STATED THAT NEITHER THE NAVY NOR THE MARINE CORPS HAS EXPERIENCE FACTORS INVOLVING INDIVIDUALS WHO WERE LEGALLY DETERMINED TO BE INCOMPETENT AT THE TIME OF ENLISTMENT, AND THAT SUCH INDIVIDUALS CURRENTLY DISCOVERED IN THE NAVY WOULD BE TREATED AS REJECTED APPLICANTS AND SUCH INDIVIDUALS IN THE MARINE CORPS WOULD BE PROCESSED IN ACCORDANCE WITH A MEDICAL SURVEY AND SEPARATED FOR DISABILITY.

NO PERSON WHO IS INSANE MAY BE ENLISTED OR MUSTERED INTO THE ARMY OR AIR FORCE. SEE SECTIONS 3253 AND 8253 OF TITLE 10, U.S.C. THE ENLISTMENT OF SUCH PERSONS IN THE NAVY OR MARINE CORPS IS PROHIBITED BY SECTION 5532 OF TITLE 10. NO PERSON MAY BE INDUCTED INTO THE ARMED FORCES UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT UNLESS HIS ACCEPTABILITY IN ALL RESPECTS, INCLUDING HIS PHYSICAL AND MENTAL FITNESS, HAS BEEN SATISFACTORILY DETERMINED UNDER STANDARDS PRESCRIBED BY THE SECRETARY OF DEFENSE. SEE 50 U.S.C. APP. 454 (A). ALSO, 50 U.S.C. APP. 456 (H) AUTHORIZES THE PRESIDENT, UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE, TO PROVIDE FOR THE DEFERMENT FROM TRAINING AND SERVICE IN THE ARMED FORCES "* * * (2) OF ANY OR ALL CATEGORIES OF THOSE PERSONS FOUND TO BE PHYSICALLY, MENTALLY, OR MORALLY DEFICIENT OR DEFECTIVE.' SEE ALSO SECTION XXII, ARMY REGULATIONS 40-503, MAY 9, 1956.

THE QUESTIONS PRESENTED ARE SEPARATELY QUOTED AND ANSWERED BELOW.

QUESTION 1

ARE THEY (PERSONS DESCRIBED IN FIRST PARAGRAPH) ENTITLED TO RECEIVE FULL PAY AND ALLOWANCES THROUGH THE DATE THE DETERMINATION REGARDING THEIR MENTAL COMPETENCY IS MADE, OR THROUGH THE DATE THEY ARE IN FACT RELEASED FROM MILITARY CONTROL?

THE PERSONS CONCERNED WERE JUDICIALLY DECLARED MENTALLY INCOMPETENT PRIOR TO THEIR ENTRY ON ACTIVE DUTY. A RIGHT TO PAY AND ALLOWANCES IS CONTINGENT UPON A PERSON FIRST HAVING MET THE PRESCRIBED QUALIFICATIONS FOR ENLISTMENT OR INDUCTION. WHILE IT MAY BE POSSIBLE FOR QUALIFIED MEDICAL DOCTORS IN THE MILITARY SERVICE, IN CERTAIN CASES, NOT TO RECOGNIZE A CONDITION OF INSANITY OR MENTAL INCOMPETENCY IN A PERSON AT THE TIME HE IS EXAMINED AND PROCESSED FOR SERVICE, THE FACT THAT A THEN EXISTING JUDICIAL ADJUDICATION OF MENTAL INCOMPETENCE WAS NOT KNOWN AND THAT A SUBSEQUENT ADMINISTRATIVE DETERMINATION OF INCOMPETENCY IS MADE AFTER THE PERSON HAS PERFORMED ACTIVE DUTY AFFORDS NO BASIS FOR AUTHORIZING PAY AND ALLOWANCES TO THE DATE THE DETERMINATION WAS MADE OR THE DATE HE WAS RELEASED FROM MILITARY CONTROL. THE LAW CLEARLY PRECLUDES THE ENLISTMENT OF INSANE PERSONS. WITH RESPECT TO 10 U.S.C. 5532, IT IS STATED ON PAGE 380, SENATE REPORT NO. 2484, OF THE COMMITTEE ON THE JUDICIARY, TO ACCOMPANY H.R. 7049 (ENACTED INTO LAW AS THE REVISION OF TITLES 10 AND 32, U.S. CODE), THAT THIS SECTION "IS WRITTEN TO ESTABLISH THE TYPES OF ENLISTMENT THAT ARE VOID, AS THE PROVISIONS CODIFIED ARE SO INTERPRETED.' WHILE THERE APPEARS TO BE NO STATUTORY PROVISION WHICH SPECIFICALLY BARS THE INDUCTION OF INSANE PERSONS, THE ABOVE-CITED PROVISIONS OF LAW EVIDENCE A LEGISLATIVE INTENT AGAINST SUCH ACTION AND SINCE THE LAW DOES NOT APPEAR TO CONTEMPLATE THE PAYMENT OF PAY AND ALLOWANCES TO PERSONS WHO ARE INSANE AT THE TIME OF ENLISTMENT, WE FEEL THAT INSANE INDUCTEES HAVE NO GREATER RIGHTS. IT FOLLOWS THAT NO RIGHT TO PAY AND ALLOWANCES ACCRUES TO SUCH INSANE PERSONS FOR ANY PART OF THE PERIOD INVOLVED. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE.

QUESTION 2

ARE THEY ENTITLED TO BE PAID ANY UNPAID PAY AND ALLOWANCES WHICH ACCRUED PRIOR TO THE DATE OF DETERMINATION OF MENTAL INCOMPETENCY OR RELEASE FROM MILITARY CONTROL, BUT ARE NOT CLAIMED UNTIL LATER?

FOR THE REASONS STATED IN THE ANSWER TO QUESTION 1, QUESTION 2 IS ANSWERED IN THE NEGATIVE.

QUESTION 3

IF THE ANSWERS TO QUESTIONS 1 AND 2 ARE IN THE NEGATIVE, ARE THEY ENTITLED TO RETAIN PAY AND ALLOWANCES RECEIVED PRIOR TO THE DATE THE DETERMINATION WAS MADE THAT THEY WERE MENTALLY INCOMPETENT AT TIME OF ENTRANCE ON ACTIVE DUTY?

IT LONG HAS BEEN THE RULE THAT A PERSON WHO CAN ESTABLISH THAT HE RECEIVED PAY AND ALLOWANCES IN A DE FACTO STATUS MAY RETAIN SUCH PAY AND ALLOWANCES CURRENTLY PAID TO HIM IF THE PAYMENTS OTHERWISE WERE PROPER. SEE 30 COMP. GEN. 195, 198. BY ANALOGY TO THAT RULE, IT HAS BEEN HELD THAT WHEN THE GOVERNMENT HAS AVOIDED AN ENLISTMENT CONTRACT ON THE GROUND OF FRAUD, THE PERSON CONCERNED MAY RETAIN THE PAY HE RECEIVED BEFORE SUCH ACTION WAS TAKEN. 31 COMP. GEN. 562, 563. IT IS OUR VIEW THAT SINCE THE ENLISTMENT OR INDUCTION OF THE PERSONS HERE INVOLVED WOULD HAVE BEEN AVOIDED HAD THE JUDICIAL DETERMINATION AS TO THEIR MENTAL CONDITION BEEN KNOWN BEFORE BEING ACCEPTED FOR MILITARY SERVICE, AND SINCE IT IS STATED THAT THEY PERFORMED ACTIVE DUTY AT LEAST UNTIL THE DETERMINATION REGARDING THEIR MENTAL COMPETENCY WAS MADE, IT IS BELIEVED PROPER TO APPLY TO SIMILAR RULE HERE. HENCE, QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 4

IF THE ANSWERS TO QUESTIONS 1 AND 2 ARE ANSWERED IN THE NEGATIVE, MAY THESE PERSONS BE GIVEN A DONATION, NOT EXCEEDING $25.00 UPON RELEASE FROM MILITARY CONTROL?

UNDER THE PROVISIONS OF SECTION 607 OF THE CURRENT DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1960, 73 STAT. 379-- - THE SAME AUTHORITY WAS GRANTED IN PRIOR APPROPRIATION ACTS -- A DONATION OF NOT TO EXCEED $25 IS AUTHORIZED TO BE PAID "TO EACH PERSON DISCHARGED FOR FRADULENT ENLISTMENT.' UNLIKE A FRAUDULENT ENLISTMENT WHICH IS VOIDABLE ONLY (31 COMP. GEN. 562), THE ENLISTMENT OF AN INSANE PERSON IS VOID FROM ITS INCEPTION. HENCE, IT IS CONCLUDED THAT PERSONS WHO WERE JUDICIALLY DETERMINED TO BE INSANE BEFORE THE DATE OF ENLISTMENT DO NOT FALL IN THE CATEGORY OF PERSONS WHO FRAUDULENTLY ENLIST SO AS TO ENTITLE THEM TO THE $25 DONATION. THE U.S. COURT OF MILITARY APPEALS IN UNITED STATES V. JENKINS, 7 USCMA 261, 22 CMR 51, HELD THAT AN INDUCTEE MAY NOT BE FOUND GUILTY OF FRAUDULENT ENLISTMENT AND WE ARE OF THE OPINION THAT AN INDUCTEE DOES NOT HAVE A STATUS WHICH IS SUBJECT TO TERMINATION ON THE GROUNDS OF FRAUDULENT ENLISTMENT. ACCORDINGLY, QUESTION 4 IS ANSWERED IN THE NEGATIVE.

QUESTION 5

MAY TRANSPORTATION IN KIND BE FURNISHED TO THEM UPON RELEASE FROM MILITARY CONTROL?

SECTION 303 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 815, 37 U.S.C. 253 (E), AUTHORIZES THE PROMULGATION OF REGULATIONS GOVERNING THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO APPLICANTS AND "REJECTED APPLICANTS" FOR ENLISTMENT, WITHIN THE LIMITATIONS THERE MENTIONED. REGULATIONS ISSUED UNDER SUCH STATUTORY AUTHORITY ARE CONTAINED IN PARAGRAPH 5050 OF THE JOINT TRAVEL REGULATIONS. IT IS OBVIOUS THAT THE MILITARY SERVICES WOULD HAVE REJECTED THE PERSONS HERE CONSIDERED HAD THEIR MENTAL CONDITION BEEN DISCOVERED AT THE TIME OF ENLISTMENT OR INDUCTION, AND THERE APPEARS TO BE NO SOUND REASON WHY A PERSON JUDICIALLY DETERMINED TO BE INCOMPETENT WHO ENTERS INTO AN ENLISTMENT MAY NOT BE CONSIDERED AS A "REJECTED APPLICANT" WITHIN THE MEANING OF SECTION 303 (E) OF THE 1949 ACT SO AS TO BE ENTITLED TO THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED UNDER PARAGRAPH 5050. THE REJECTION WAS DELAYED IN SUCH CASES UNTIL THE MENTAL CONDITION WAS DISCOVERED. PARAGRAPH 10E, ARMY REGULATIONS 601-270, MARCH 11, 1960, PROVIDES THAT REGISTRANTS ORDERED TO REPORT FOR INDUCTION--- AT ARMED FORCES INDUCTION STATIONS, OPERATED BY THE DEPARTMENT OF THE ARMY AS AGENT FOR THE DEPARTMENT OF DEFENSE--- "IF REJECTED, WILL BE FURNISHED TRANSPORTATION, MEALS, AND LODGING BY THE ARMY, WHILE EN ROUTE FROM INDUCTION STATIONS TO SELECTIVE SERVICE LOCAL BOARDS.' FOR THE REASONS STATED ABOVE WITH RESPECT TO REJECTED APPLICANTS FOR ENLISTMENT, IT IS BELIEVED THAT INSANE INDUCTEES SUCH AS ARE HERE INVOLVED MAY BE REGARDED AS REJECTED REGISTRANTS WITHIN THE MEANING OF THE CITED ARMY REGULATIONS. ACCORDINGLY, QUESTION 5 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 6

ARE THEY LEGALLY LIABLE FOR ANY INDEBTEDNESS DUE THE UNITED STATES AT THE TIME OF RELEASE FROM MILITARY CONTROL?

THE GENERAL RULE IS THAT AN INSANE PERSON MAY BE HELD LIABLE TO CONTRACTS IMPLIED OR CREATED BY LAW, TO THE EXTENT OF THE ACTUAL VALUE OF THE BENEFIT CONFERRED. 44 C.J.S. 274, SECTION 114. ALSO, AN INSANE PERSON IS LIABLE, UNDER AN OBLIGATION IMPOSED BY LAW, FOR NECESSARIES FURNISHED TO HIM OR TO MEMBERS OF HIS FAMILY WHOM HE IS OBLIGATED TO SUPPORT, PROVIDED THERE WAS AN INTENT TO CHARGE THEREFOR AND CREDIT WAS EXTENDED TO HIM. QUESTION 6 IS GENERAL AND COULD INCLUDE ANY TYPE OF INDEBTEDNESS DUE THE UNITED STATES INCIDENT TO THE INDIVIDUAL'S STATUS WHILE UNDER MILITARY CONTROL. IF THE INDEBTEDNESS AROSE AS THE RESULT OF A TRANSACTION OR PAYMENT FROM WHICH THE INSANE PERSON ACTUALLY BENEFITED--- SUCH AS AN OVERPAYMENT OF PAY OTHERWISE PAYABLE IF HE HAD NOT BEEN INSANE--- HE IS LIABLE FOR THE AMOUNT INVOLVED. SUCH PERSON WOULD BE LIABLE FOR THE AMOUNT OF A CLASS Q ALLOTMENT NOT DEDUCTED FROM HIS PAY FOR THE ADDITIONAL REASON THAT HE IS OBLIGATED TO SUPPORT HIS FAMILY. THE PROVISIONS OF 10 U.S.C. 4837 (E) AND 9837 (E) RELATING TO COLLECTION FOR DAMAGES OR COST OF REPAIRS TO ARMS OR EQUIPMENT ARE NOT FOR APPLICATION HERE. QUESTION 6 IS ANSWERED ACCORDINGLY.

QUESTION 7

IN THE FOREGOING QUESTIONS WOULD THE ANSWER BE THE SAME IF THE INDIVIDUAL, IN THE OPINION OF QUALIFIED MEDICAL DOCTORS, IS MENTALLY INCOMPETENT BUT A LEGAL ADJUDICATION OF INSANITY HAS NOT BEEN MADE?

IT IS OUR UNDERSTANDING THAT QUESTION 7 HAS REFERENCE TO A PERSON WHO WAS NOT JUDICIALLY DECLARED MENTALLY INCOMPETENT PRIOR TO ENTRANCE INTO THE THE SERVICE BUT LATER WAS FOUND BY QUALIFIED MEDICAL DOCTORS OF THE INDIVIDUAL SERVICE TO HAVE BEEN MENTALLY INCOMPETENT ON THE DATE OF ENLISTMENT OR INDUCTION. IT IS OUR VIEW THAT IN THE ABSENCE OF SUCH JUDICIAL ACTION, AND WHERE THERE WAS AN ADMINISTRATIVE FAILURE TO DISCOVER, PRIOR TO ENLISTMENT OR INDUCTION, THAT A PERSON'S MENTAL CONDITION WAS SUCH AS WOULD WARRANT HIS REJECTION FOR MILITARY SERVICE, THERE IS NO SUBSTANTIAL BASIS FOR REGARDING HIM AS AN INSANE PERSON WITHIN THE MEANING OF THE ABOVE-CITED PROVISIONS OF LAW, AND THAT THE INDIVIDUAL MENTIONED IN QUESTION 7 MUST BE CONSIDERED TO BE A MEMBER OF THE UNIFORMED SERVICES UNTIL THE DATE OF HIS RELEASE FROM MILITARY CONTROL. AS SUCH, HE ACQUIRED A RIGHT TO PAY AND ALLOWANCES FROM THE TIME OF HIS ENLISTMENT OR INDUCTION TO THE DATE OF HIS DISCHARGE. WE DOUBT THE LEGALITY OF A CONCLUSION THAT A LATER DETERMINATION (OPINION) BY QUALIFIED MEDICAL DOCTORS OF THE SERVICE--- THAT SUCH INDIVIDUAL WAS MENTALLY INCOMPETENT FROM THE DATE OF INDUCTION OR ENLISTMENT--- COULD OPERATE RETROACTIVELY OR PROSPECTIVELY TO CANCEL SUCH RIGHTS. CONSEQUENTLY, THE ANSWERS TO THE ABOVE SIX QUESTIONS WOULD NOT BE THE SAME FOR THE PERSONS CONTEMPLATED BY THE SEVENTH QUESTION. QUESTIONS 1 AND 2, THEREFORE, INSOFAR AS THEY PERTAIN TO THE PERSON DESCRIBED IN QUESTION 7, AS ANSWERED BY SAYING THAT SUCH PERSON WOULD BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES, INCLUDING UNPAID PAY AND ALLOWANCES, THROUGH THE DATE OF RELEASE FROM MILITARY CONTROL. SEE IN THIS CONNECTION, THE ACT OF JUNE 21, 1950, AS AMENDED, 37 U.S.C. 352, WITH RESPECT TO PAYMENTS DUE MENTALLY INCOMPETENT MEMBERS. SINCE THE ANSWERS TO QUESTIONS 1 AND 2 ARE IN THE AFFIRMATIVE, INSOFAR AS THEY CONCERN THE PERSONS CONTEMPLATED BY QUESTION 7, NO ANSWER IS REQUIRED FOR QUESTIONS 3 AND 4 WITH RESPECT TO SUCH PERSONS. QUESTION 5 (IN RELATION TO QUESTION 7) IS ANSWERED BY SAYING THAT THE INDIVIDUAL CONCERNED HAS THE SAME RIGHTS TO TRAVEL AND TRANSPORTATION ALLOWANCES INCIDENT TO HIS SEPARATION FROM THE SERVICE AS OTHER MEMBERS OF THE ARMED FORCES WHO ARE DISCHARGED FOR THE REASON THAT THEIR MENTAL CONDITION WARRANTS SUCH ACTION. QUESTION 6 (INSOFAR AS IT RELATES TO QUESTION 7) IS ANSWERED BY SAYING THAT THE INDIVIDUAL CONCERNED IS LEGALLY LIABLE FOR ANY INDEBTEDNESS DUE THE UNITED STATES AT THE TIME OF HIS RELEASE FROM MILITARY CONTROL.