B-163443, MAY 22, 1968, 47 COMP. GEN. 671

B-163443, MAY 22, 1968, 47 COMP. GEN. 671

ENLISTMENTS - FRAUDULENT - PAY AND ALLOWANCE CLAIM - PERIOD OF FRAUDULENT ENTRY DETERMINATION UNDER A PROPOSED REVISION TO ARMY REGULATION 635-206 TRANSFERRING FROM A UNIT COMMANDER TO THE COMMANDER EXERCISING GENERAL COURT-MARTIAL AUTHORITY THE RESPONSIBILITY FOR DETERMINING WHETHER OR NOT AN ENLISTMENT INTO THE MILITARY SERVICE WAS FRAUDULENT, AN ENLISTED MAN WHO CONTINUES TO PERFORM DUTY BETWEEN THE TIME THE UNIT COMMANDER RECOMMENDS AN INVESTIGATION OF HIS ENLISTMENT UNTIL HIS FRAUDULENT ENTRY INTO THE SERVICE IS ESTABLISHED IS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD AS THERE IS NO AUTHORITY TO AVOID THE CONTRACT OF ENLISTMENT UNTIL THE COMMANDER EXERCISING THE COURT-MARTIAL AUTHORITY DETERMINES THE MEMBER'S ENTRY INTO THE SERVICE WAS FRAUDULENT.

TO THE SECRETARY OF THE ARMY, MAY 22, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 25, 1968, WITH ENCLOSURE,FROM THE ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT), REQUESTING A DECISION WHETHER WE WOULD BE REQUIRED TO TAKE EXCEPTION TO PAYMENTS OF PAY AND ALLOWANCES MADE BY A DISBURSING OFFICER TO AN ARMY MEMBER UNDER A PROPOSED REVISION TO ARMY REGULATION 635-206 WHEN THE UNCONTROVERTED FACTS CLEARLY ESTABLISH THE MEMBER'S FRAUDULENT ENTRY INTO THE MILITARY SERVICE. THE REQUEST HAS BEEN ALLOCATED NUMBER SS-A-980 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE ASSISTANT SECRETARY STATES THAT RULE 1 OF TABLE 1-4-1, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM), WHICH PROVIDES THAT WHEN AN INDIVIDUAL IS UNDER INVESTIGATION FOR A FRAUDULENT ENLISTMENT HIS PAY AND ALLOWANCES MAY CONTINUE TO BE PAID UNTIL A DETERMINATION OF FRAUD IS MADE, IS BASED ON 31 COMP. GEN. 562. PARAGRAPH 10404 OF THE SAME MANUAL PROVIDES THAT A DISBURSING OFFICER IS ENTITLED TO CREDIT FOR PROPER PAYMENTS TO A MEMBER WHO FRAUDULENTLY ENLISTED IF PAYMENTS WERE MADE WITHOUT THE KNOWLEDGE OF THE FRAUD AND BEFORE THE GOVERNMENT RESCINDED THE CONTRACT. IT IS STATED THAT THIS PROVISION IS BASED ON THE DECISION REPORTED IN 11 COMP. DEC. 710.

IT IS REPORTED THAT THE CITED DECISIONS PRESUME THERE IS A SHORT LAPSE OF TIME BETWEEN THE DISCOVERY OF THE FRAUD AND THE DECISION TO VOID THE ENLISTMENT OR TO ALLOW IT TO STAND. IT IS POINTED OUT THAT UNDER THE CURRENT PROVISIONS OF PARAGRAPH 17, ARMY REGULATION 635-206 DATED JULY 15, 1966, THE UNIT COMMANDER, AFTER COMPLETE VERIFICATION OF A FRAUDULENT ENLISTMENT, IS REQUIRED TO SUBMIT A RECOMMENDATION FOR DISCHARGE BY REASON OF FRAUDULENT ENTRY, OR FOR RETENTION, THROUGH INTERMEDIATE COMMANDERS TO THE COMMANDER EXERCISING GENERAL COURT MARTIAL AUTHORITY. AT THE TIME THE UNIT COMMANDER SUBMITS HIS RECOMMENDATION, IT IS STATED, THE PAY AND ALLOWANCES OF THE MEMBER ARE SUSPENDED.

THE ASSISTANT SECRETARY ADDS THAT SUSPENDING THE PAY AND ALLOWANCES AT THAT TIME SEEMS UNFAIR TO THE INDIVIDUAL CONCERNED FOR THE REASONS (1) THAT DURING THE PROCESSING OF THE RECOMMENDATION, INTERMEDIATE COMMANDERS OR EVEN THE GENERAL COURT-MARTIAL AUTHORITY MAY CONSIDER THAT THE FACT OF FRAUDULENT ENTRY HAS NOT BEEN COMPLETELY VERIFIED, AND (2) THAT SINCE THE FINAL DETERMINATION OF RETENTION OR DISCHARGE MUST BE MADE BY THE GENERAL COURT-MARTIAL AUTHORITY, THERE ARE OFTEN DELAYS OF 30 DAYS OR MORE WHILE CASES ARE ADMINISTRATIVELY PROCESSED THROUGH CHANNELS. IT IS STATED THAT DURING THIS PERIOD OF TIME THE INDIVIDUAL IS, IN FACT, PERFORMING DUTY FOR THE ARMY BUT HE IS NOT RECEIVING ANY PAY.

TO ALLEVIATE THIS SITUATION, IT IS PROPOSED TO REVISE THE ARMY POLICY TO PROVIDE THAT VERIFICATION OF FRAUDULENT ENTRY WILL NOT BE MADE BY THE UNIT COMMANDER BUT WILL BE MADE BY THE COMMANDER EXERCISING GENERAL COURT- MARTIAL AUTHORITY WHO IS RESPONSIBLE FOR MAKING A DETERMINATION AS TO WHETHER THE FACT OF FRAUDULENT ENTRY HAS BEEN COMPLETELY VERIFIED AND PROVEN. TO CARRY OUT THIS POLICY, IT IS PROPOSED TO REVISE PARAGRAPHS 17 AND 19, ARMY REGULATION 635-206, AS FOLLOWS:

17. UPON DISCOVERY OF INFORMATION WHICH CREATES A SUSPICION THAT THERE MAY HAVE BEEN A DELIBERATE MISREPRESENTATION, OMISSION, OR CONCEALMENT OF FACTS OR CONDITIONS WHICH, IF KNOWN AT THE TIME, MIGHT HAVE RESULTED IN REJECTION, THE UNIT COMMANDER WILL COMMUNICATE HIS SUSPICION THROUGH INTERMEDIATE COMMANDERS TO THE COMMANDER EXERCISING GENERAL COURT-MARTIAL AUTHORITY. HE WILL ALSO SUBMIT A RECOMMENDATION FOR DISCHARGE OR RETENTION IN THE EVENT THE COMMANDER EXERCISING GENERAL COURT-MARTIAL JURISDICTION SHOULD DETERMINE THE FACT OF FRAUDULENT ENTRY. THE COMMANDING OFFICER'S COMMUNICATION WILL BE IN LETTER FORM AND WILL INCLUDE THE FOLLOWING INFORMATION:

A. NAME, GRADE, SERVICE NUMBER, AGE, DATE AND TERM OF ENLISTMENT AND PRIOR SERVICE.

B. STATEMENT INDICATING WHETHER THE INDIVIDUAL HAS A RESERVE COMMISSION OR WARRANT. (IF AFFIRMATIVE, SHOW SERVICE NUMBER, GRADE, AND DATE OF APPOINTMENT.)

C. JUSTIFICATION AS TO REASON FOR ACTION RECOMMENDED.

D. CONDUCT AND EFFICIENCY RATINGS.

E. RECORD OF TRIALS BY COURTS-MARTIAL.

F. RECORD OF OTHER DISCIPLINARY ACTION, INCLUDING NONJUDICIAL PUNISHMENT.

G. REPORT OF MEDICAL EVALUATION.

H. A STATEMENT BY THE INDIVIDUAL INDICATING THAT HE HAS BEEN ADVISED OF HIS RIGHTS (PARA 5).

I. ANY OTHER PERTINENT INFORMATION.

19. ACTION BY GENERAL COURT-MARTIAL AUTHORITY. A. UPON RECEIPT OF THE RECOMMENDED ACTION, THE COMMANDER EXERCISING GENERAL COURT-MARTIAL JURISDICTION WILL MAKE A DETERMINATION AS TO WHETHER THE FACT OF FRAUDULENT ENTRY HAS BEEN COMPLETELY VERIFIED AND PROVEN. IF NOT, FURTHER SUBSTANTIATING FACTS AND EVIDENCE WILL BE OBTAINED. IF THE FRAUDULENT ENTRY IS VERIFIED, ACTION WILL BE TAKEN TO SUSPEND THE INDIVIDUAL'S PAY AND ALLOWANCES IN ACCORDANCE WITH PART ONE, CHAPTER 4, DOD MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL. THE COMMANDER WILL ALSO---

(1) DISAPPROVE A RECOMMENDATION FOR DISCHARGE AND DIRECT RETENTION (RETENTION CONSTITUTES WAIVER OF FRAUDULENT ENTRY); OR

(2) APPROVE A RECOMMENDATION FOR RETENTION; OR

(3) CONVENE A BOARD OF OFFICERS TO DETERMINE WHETHER THE INDIVIDUAL SHOULD BE SEPARATED; OR

(4) WHEN THE BOARD HEARING HAS BEEN PROPERLY WAIVED, DIRECT SEPARATION OF THE INDIVIDUAL; OR

(5) WHEN THE BOARD HEARING HAS BEEN PROPERLY WAIVED, APPROVE SEPARATION AND SUSPEND EXECUTION OF THE SEPARATION (PARA 13).

IT LONG HAS 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 MAN IS NOT ENTITLED TO PAY OR ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT EXCEPT AS MAY BE SPECIFICALLY AUTHORIZED BY STATUTE. SEE 1 COMP. GEN. 511; 9 ID. 436; 31 ID. 562, AND 36 ID. 439.

IN 31 COMP. GEN. 562 THERE WAS INVOLVED THE QUESTION WHETHER AN ENLISTED MEMBER MAY BE PAID SAVINGS OR SOLDIER'S DEPOSITS PLUS INTEREST THEREON WHEN DISCHARGED BY REASON OF FRAUDULENT ENLISTMENT. IN HOLDING THAT THE ENLISTED MAN WAS ENTITLED TO THE PAYMENT IN QUESTION, WE SAID THAT:

WHILE A FRAUDULENT CONTRACT OF ENLISTMENT IS VOIDABLE AND WHEN AVOIDED BY THE GOVERNMENT IS VOID FROM THE BEGINNING, NEVERTHELESS, UNTIL THE CONTRACT IS AVOIDED UPON DISCOVERY OF THE FRAUD, THE PERSON IS AN ENLISTED MEMBER OF THE SERVICE INVOLVED AND PRIMA FACIE ENTITLED TO THE BENEFITS AND SUBJECT TO THE DISABILITIES OF THAT STATUS.

IN 11 COMP. DEC. 710 IT IS STATED THAT AT THE TIME THE NAVY PAYMASTER PAID THE ENLISTED MEN THERE MENTIONED A CLOTHING ALLOWANCE HE HAD NO KNOWLEDGE THAT THEIR ENLISTMENTS WERE FRAUDULENT. HENCE, THE PAYMENTS WERE CONSIDERED AS BEING LEGAL WHEN MADE SO AS TO ENTITLE THE PAYMASTER TO CREDIT IN HIS ACCOUNT.

AS WE UNDERSTAND THE PROPOSED REVISION TO THE ARMY REGULATION, THE UNIT COMMANDER NO LONGER WOULD BE CHARGED WITH THE RESPONSIBILITY OF COMPLETELY VERIFYING ANY FACT OR FACTS THAT MIGHT CONSTITUTE A FRAUDULENT ENTRY IN THE ARMY, AND THUS THE PROPOSED REGULATION WOULD PRECLUDE THE SUSPENSION OF THE INDIVIDUAL'S PAY AND ALLOWANCES AT THE TIME THE UNIT COMMANDER SUBMITS HIS RECOMMENDATION. THE COMMANDER EXERCISING GENERAL COURT- MARTIAL JURISDICTION, HOWEVER, WOULD BE REQUIRED TO DETERMINE WHETHER THE FACT OF FRAUDULENT ENTRY INTO THE SERVICE HAS BEEN PROVEN. DETERMINATION OF FRAUDULENT ENTRY IS SO MADE, THE INDIVIDUAL'S PAY AND ALLOWANCES WILL BE SUSPENDED AS PROVIDED IN THE REVISION TO PARAGRAPH 19.

SINCE DURING THE PERIOD BETWEEN THE SUBMISSION OF THE UNIT COMMANDER'S RECOMMENDATION AND THE FINAL ACTION TAKEN BY THE COMMANDER EXERCISING GENERAL COURT-MARTIAL AUTHORITY, THE MEMBER IS, IN FACT, PERFORMING DUTY, AND SINCE THERE IS NO AUTHORITY TO AVOID THE CONTRACT OF ENLISTMENT UNTIL THE COMMANDER EXERCISING THE GENERAL COURT-MARTIAL AUTHORITY HAS DETERMINED THAT THE MEMBER'S ENTRY INTO THE SERVICE ACTUALLY WAS FRAUDULENT, WE WOULD NOT BE REQUIRED TO TAKE EXCEPTION TO PAYMENTS MADE DURING THIS INTERIM PERIOD IF THE PROPOSED REVISION TO THE REGULATION IS PROMULGATED. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.