B-129163, OCT. 18, 1956

B-129163, OCT. 18, 1956

TO MR. FRED NASH:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 28 AND 29, 1956, WITH ENCLOSURES, IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR PAY BELIEVED TO BE DUE BY REASON OF THE CHANGE OF YOUR DISHONORABLE DISCHARGE TO A DISCHARGE UNDER HONORABLE CONDITIONS PURSUANT TO ACTION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS ESTABLISHED UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 837.

BY SETTLEMENT DATED JULY 23, 1956, YOUR CLAIM FOR PAY WAS DISALLOWED ON THE BASIS THAT YOUR ACCEPTANCE OF SETTLEMENT REPRESENTING THE DIFFERENCE BETWEEN TRAVEL PAY AND THE VALUE OF TRANSPORTATION IN KIND FURNISHED AT DATE OF YOUR DISCHARGE CONSTITUTED A RELEASE OF ANY FURTHER CLAIM AGAINST THE UNITED STATES BY REASON OF CORRECTION OF YOUR RECORD. YOU HAVE RETURNED THE CHECK REPRESENTING THE DIFFERENCE AND NOW ASK WHAT EFFECT THE CORRECTION OF RECORDS HAS IF IT DID NOT GIVE A RIGHT TO PAY WHICH HAD BEEN FORFEITED BY A GENERAL COURT MARTIAL. THERE ALSO APPEARS TO BE SOME CONFUSION IN YOUR MIND AS TO THE ACTION TAKEN UPON YOUR CLAIMS, SINCE THEY INVOLVED TWO DIFFERENT PERIODS OF ENLISTMENT.

YOU STATE THAT IT IS YOUR BELIEF THAT ALL AMOUNTS WITHHELD DURING YOUR SECOND ENLISTMENT WERE PAYABLE TO YOU UPON BEING ISSUED AN HONORABLE DISCHARGE.

IT APPEARS FROM INFORMATION FURNISHED US THAT YOU ENTERED THE NAVAL SERVICE IN MARCH 1917 UNDER A THREE YEAR ENLISTMENT, WHICH WAS EXTENDED FOR ONE YEAR, AND THAT BY A GENERAL COURT MARTIAL CONVENED ON BOARD THE USS PITTSBURGH, ON APRIL 22, 1920, YOU WERE FOUND GUILTY OF THE CHARGE OF DRUNKENNESS ON DUTY AND SENTENCED TO REDUCTION IN RATING TO APPRENTICE SEAMAN, CONFINEMENT FOR ONE YEAR, DISHONORABLE DISCHARGE AND TOTAL FORFEITURE OF PAY. THE SENTENCE WAS REDUCED TO CONFINEMENT FOR SIX MONTHS, LOSS OF PAY TO $144, AND THE DISHONORABLE DISCHARGE WAS REMITTED ON PROBATION DURING YOUR PERIOD OF CONFINEMENT. AS MITIGATED YOUR SENTENCE WAS EXECUTED AND, ON NOVEMBER 10, 1920, YOU WERE GIVEN A "GOOD DISCHARGE," WHICH WAS CHANGED TO "HONORABLE" ON NOVEMBER 12, 1920, THE "GOOD DISCHARGE" HAVING BEEN ISSUED IN ERROR. ON NOVEMBER 13, 1920, YOU AGAIN ENLISTED IN THE NAVY FOR A PERIOD OF FOUR YEARS. BY A GENERAL COURT MARTIAL CONVENED ON BOARD THE USS FLORIDA ON OCTOBER 10, 1922, YOU WERE FOUND GUILTY OF ASSAULT WITH A DEADLY WEAPON, USING THREATENING LANGUAGE TOWARD YOUR SUPERIOR OFFICER, AND DRUNKENNESS, AND SENTENCED TO CONFINEMENT FOR TWO AND ONE-HALF YEARS, DISHONORABLE DISCHARGE AND TOTAL FORFEITURE OF PAY. THE PERIOD OF CONFINEMENT WAS REDUCED TO ONE YEAR, AND AS REDUCED, THE SENTENCE WAS EXECUTED, AND ON JUNE 17, 1923, WITH TIME OFF, APPARENTLY FOR GOOD BEHAVIOR, YOU WERE DISHONORABLY DISCHARGED FROM THE SERVICE. THEREAFTER, THE BOARD FOR CORRECTION OF NAVAL RECORDS, PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, CONSIDERED YOUR REQUEST FOR CORRECTION OF YOUR NAVAL RECORD, AND ON JUNE 13, 1949, CONCLUDED THAT A CORRECTION OF YOUR NAVAL RECORD WAS WARRANTED, STATING THAT:

"THE BOARD CAREFULLY CONSIDERED THE TESTIMONY WITH REGARD TO ASSAULT WITH A DEADLY WEAPON, AND IT WAS THE OPINION THAT THERE WAS NO ACTUAL ASSAULT, INASMUCH AS THE ALLEGED VICTIM ADMITTED THAT HE "BELIEVED THE GUN WAS NOT LOADED.' THE BOARD TOOK INTO CONSIDERATION THE LENGTH OF PETITIONER'S GOOD SERVICE, INCLUDING SEA DUTY FOR FIFTY-TWO MONTHS, AND ALSO THE FACT THAT HE ATTAINED THE RATING OF GUNNER'S MATE SECOND CLASS. IN VIEW OF THESE FACTORS AND IN VIEW OF THE FACT THAT HE WAS CONFINED FOR EIGHT MONTHS, AND IN VIEW OF THE FACT THAT HIS REENLISTMENT WAS AUTHORIZED IN 1942, AND IN VIEW OF THE FACT THAT HE HAS SUFFERED WITH A DISHONORABLE DISCHARGE FOR TWENTY-SIX YEARS, IT WAS THE DECISION OF THE BOARD THAT A CHANGE IN THE TYPE OF DISCHARGE WAS WARRANTED.'

THE DECISION OF THE BOARD WAS THAT YOUR NAVAL RECORD BE CHANGED AS FOLLOWS:

"THAT THE CHARACTER OF PETITIONER'S DISHONORABLE DISCHARGE BE CHANGED TO ONE UNDER HONORABLE CONDITIONS AND THAT THE CHIEF OF NAVAL PERSONNEL BE DIRECTED TO MAKE THIS CHANGE, BY ISSUING PETITIONER A CERTIFICATE OF UNDER HONORABLE CONDITIONS DISCHARGE BY REASON OF BUPERS MANUAL, ART. C-10306, IN LIEU OF THE CERTIFICATE PREVIOUSLY ISSUED.'

IT IS READILY APPARENT THAT THE SOLE CHANGE IN YOUR ENTIRE NAVAL RECORD MADE BY THE BOARD WAS THE CHANGING OF THE TYPE OF DISCHARGE ISSUED TO YOU ON JUNE 17, 1923. THE FORFEITURE PROVISIONS OF THE GENERAL COURT-MARTIAL SENTENCES WHICH HAD BEEN FULLY EXECUTED REMAINED UNCHANGED. THE BOARD DID NOT ATTEMPT TO SET ASIDE THE GENERAL COURT MARTIAL SENTENCES, OR TO RESTORE ANY PAY REQUIRED TO BE FORFEITED UNDER THE TERMS OF THOSE SENTENCES, BUT MERELY CORRECTED YOUR RECORD AS INDICATED. WE HAVE HELD THAT A DISHONORABLY DISCHARGED ENLISTED MAN WHOSE MILITARY RECORDS WERE CORRECTED TO SHOW HONORABLE DISCHARGE, BUT NO CORRECTED TO DELETE PAY FORFEITURE PROVISONS OF A COURT-MARTIAL SENTENCE, IS ENTITLED TO TRAVEL ALLOWANCE WHICH IS INCIDENT TO HONORABLE DISCHARGE. 34 COMP. GEN. 95. THE CHECK IN THE AMOUNT OF $8.03 WHICH WAS FORWARDED TO YOU WAS FOR TRAVEL PAY WHICH BECAME DUE BY REASON OF THE CORRECTED DISCHARGE. NO BASIS IS APPARENT FOR AN ALLOWANCE OF ANY FURTHER AMOUNT.

ACCORDINGLY, IT IS DETERMINED THAT YOU ARE ENTITLED ONLY TO THE $8.03 ALLOWED TO YOU BY THE DEPARTMENT OF THE NAVY, AND THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL AMOUNTS IS SUSTAINED.

THE CHECK IN THE AMOUNT OF $8.03, TOGETHER WITH THE PAPERS YOU REQUESTED TO BE RETURNED, ARE ENCLOSED HEREWITH.