B-107157, AUG. 15, 1960

B-107157, AUG. 15, 1960

TO MR. HUGH D. KIDD:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1960, RELATIVE TO YOUR CLAIM FOR PAY BELIEVED TO BE DUE YOU AT THE DATE OF YOUR DISCHARGE, SEPTEMBER 15, 1949, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN, UNITED STATES ARMY.

YOUR CLAIM WAS DISALLOWED FEBRUARY 20, 1951, FOR THE REASON THAT THE ARMY RECORDS DISCLOSED THAT YOU WERE DISCHARGED ON ACCOUNT OF FRAUDULENT ENLISTMENT (CONCEALMENT OF DEPENDENTS AT TIME OF ENLISTMENT), AND UNDER APPLICABLE ARMY REGULATIONS AN INDIVIDUAL SO DISCHARGED IS NOT ENTITLED TO PAY OR ALLOWANCES OF ANY KIND. IN OUR DECISIONS DATED FEBRUARY 4, 1952, AND JUNE 18, 1952, ADDRESSED TO YOU, WE EXPLAINED THAT THE NONPAYMENT OF PAY AND ALLOWANCES AT THE TIME OF YOUR DISCHARGE WAS NOT PREDICATED ON THE FACT THAT YOU WERE DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS, BUT WAS BECAUSE YOUR ENLISTMENT WAS FRAUDULENT AND WAS TERMINATED BECAUSE OF FRAUD AND, HENCE, THAT THE SUBSEQUENT CHANGING OF THE CHARACTER OR TYPE OF YOUR DISCHARGE BY THE DISCHARGE REVIEW BOARD WOULD NOT CHANGE THE CHARACTER OF YOUR ENLISTMENT. YOU WERE FURTHER ADVISED IN THE SAID DECISIONS THAT WHERE A SOLDIER, UPON ENTRY INTO THE SERVICE, FRAUDULENTLY CONCEALS OR MISREPRESENTS A MATERIAL FACT DISQUALIFYING HIM FOR ENLISTMENT, AND IS DISCHARGED UPON DISCOVERY BY THE GOVERNMENT OF THE FRAUD, SUCH DISCHARGE CONSTITUTES AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT AND THE MAN IS NOT ENTITLED TO PAY AND ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT. HENCE, WE MAY NOT RECOGNIZE THAT YOU WERE ON ACTIVE DUTY SO AS TO BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES. ACCORDINGLY, THIS OFFICE HAS NO ALTERNATIVE BUT TO AFFIRM THE DECISIONS OF FEBRUARY 4, 1952, AND JUNE 18, 1952, DENYING YOUR CLAIM.

OUR STATEMENTS ARE NOT INTENDED TO IMPUTE ANY INTENTIONAL WRONGDOING ON YOUR PART IN THIS MATTER, BUT ARE INTENDED TO BE AN EXPLANATION TO YOU OF THE LEGAL EFFECT OF THE ACTION TAKEN BY THE ARMY IN ANNULLING YOUR CONTRACT OF ENLISTMENT. UNDER SUCH CIRCUMSTANCES WE MAY NOT UNDERTAKE TO AUTHORIZE THE PAYMENT OF ANY AMOUNT TO YOU.

IN YOUR CORRESPONDENCE WITH THIS OFFICE YOU INDICATE THAT THERE WAS NO CONCEALMENT OF DEPENDENTS AT THE TIME OF YOUR ENLISTMENT, BUT THAT THE RECRUITING SERGEANT WAS AWARE OF YOUR DEPENDENTS AND ENCOURAGED YOU TO ENLIST IN ORDER TO BETTER PROVIDE FOR THEM. IN THE ABSENCE OF A CORRECTION OF YOUR MILITARY RECORD BY THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS SHOWING THAT YOUR ENLISTMENT CONTRACT WAS NOT CANCELLED BECAUSE OF FRAUDULENT ENLISTMENT, HOWEVER, THERE IS NO LEGAL BASIS FOR US TO PAY YOUR CLAIM.