B-124855, OCT. 25, 1955

B-124855, OCT. 25, 1955

TO MR. CLIFFORD W. ASTON:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1955, AND TO YOUR TELEGRAM OF AUGUST 31, 1955, REQUESTING REVIEW OF OUR SETTLEMENTS DATED MAY 27, 1955, ONE DISALLOWING YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE YOU FOR THE PERIOD OF JULY 1, 1953, TO JUNE 30, 1954, INCIDENT TO YOUR SERVICE IN THE UNITED STATES AIR FORCE, AND THE OTHER DISALLOWING THE CLAIM OF YOUR WIFE, MRS. VIRGINIA ASTON, FOR CLASS Q ALLOTMENT FOR THE SAME PERIOD.

THE RECORDS SHOW THAT YOU WERE ENLISTED IN THE UNITED STATES AIR FORCE ON DECEMBER 12, 1950, AT ABILENE, TEXAS, FOR FOUR YEARS AND THAT YOU WERE DISCHARGED ON JULY 25, 1953, AT SHEPPARD AIR FORCE BASE,TEXAS, WITH A GENERAL DISCHARGE UNDER THE PROVISIONS OF AFR 39-21 (FRAUDULENT ENTRY - CONCEALMENT OF DEPENDENTS). YOU APPLIED FOR REVIEW OF YOUR DISCHARGE UNDER THE PROVISIONS OF SECTION 301 OF THE ACT OF JUNE 22, 1944, 58 STAT. 286, AND ON APRIL 22, 1954, YOU WERE ADVISED THAT THE EVIDENCE SUBMITTED WAS INSUFFICIENT TO WARRANT A CHANGE IN THE TYPE OR NATURE OF YOUR DISCHARGE AND THAT THE SECRETARY OF THE AIR FORCE DIRECTED THAT YOUR APPLICATION BE DENIED.

IN A MEMORANDUM DATED JUNE 8, 1954, SIGNED BY THE CHIEF, MILITARY AFFAIRS DIVISION, OFFICE OF THE JUDGE ADVOCATE GENERAL, UNITED STATES AIR FORCE, IT WAS CONCLUDED THAT YOUR DISCHARGE ON JULY 25, 1953, WAS UNAUTHORIZED BECAUSE YOUR ENLISTMENT WAS NOT FRAUDULENT. YOU WERE ADVISED, BY LETTER OF JUNE 14, 1954, THAT ALTHOUGH WHEN YOU ENLISTED ON DECEMBER 12, 1950, YOU CONCEALED THE FACT THAT YOU HAD TWO DEPENDENTS, YOUR FAILURE TO DISCLOSE YOUR DEPENDENCY STATUS COULD NOT BE CONSTRUED AS A FRAUDULENT ENLISTMENT FOR THE REASON THAT UNDER THE THEN APPLICABLE REGULATIONS YOU WOULD HAVE BEEN ELIGIBLE FOR ENLISTMENT HAD YOU MADE KNOWN YOUR TRUE STATUS. YOU WERE ADVISED, FURTHER, THAT YOUR ENLISTMENT WAS CONSIDERED LAWFUL; THAT YOUR DISCHARGE ON JULY 25, 1953, WAS UNAUTHORIZED AND VOID; AND THAT YOU WERE STILL A MEMBER OF THE ACTIVE SERVICE. YOU WERE GIVEN THE OPTION OF RETURNING TO DUTY IN AN HONORABLE DUTY STATUS OR OF OBTAINING AN HONORABLE DISCHARGE FOR THE CONVENIENCE OF THE GOVERNMENT, EFFECTIVE AS OF THE DATE ON WHICH "IT WILL ACTUALLY BE ACCOMPLISHED.' THE VIEW WAS EXPRESSED THAT YOU WOULD BE IN A DUTY STATUS FROM JULY 26, 1953, TO THE DATE OF RESTORATION TO DUTY OR TO THE DATE OF ACCOMPLISHMENT OF THE NEW DISCHARGE AND THAT YOU WOULD BE ENTITLED TO PAY AND ALLOWANCES FROM THE DAY FOLLOWING THE DATE OF YOUR ERRONEOUS DISCHARGE TO THE DATE OF RESTORATION TO DUTY OR TO THE DATE OF ACCOMPLISHMENT OF THE NEW DISCHARGE, PLUS ANY AMOUNT WHICH WAS FORFEITED BY REASON OF YOUR DISCHARGE ON JULY 25, 1953, FOR FRAUDULENT ENLISTMENT. YOU WERE INFORMED THAT IF YOU ELECTED TO RETURN TO DUTY IN AN HONORABLE STATUS YOU SHOULD TAKE UP THE MATTER OF PAY AND ALLOWANCES WITH THE FINANCE OFFICER AT THE BASE AT WHICH YOU REPORTED AND THAT IF YOU ELECTED TO OBTAIN A DISCHARGE INSTEAD OF RETURNING TO DUTY, YOU SHOULD SUBMIT A CLAIM TO THIS OFFICE FOR ANY MONEYS DUE. YOU ELECTED TO REQUEST DISCHARGE AND RETURNED YOUR GENERAL DISCHARGE CERTIFICATE FOR CANCELLATION. WITH A LETTER DATED JUNE 30, 1954, THERE WERE FORWARDED TO YOU AN HONORABLE DISCHARGE CERTIFICATE, ALSO DATED JUNE 30, 1954, AND A REPORT OF SEPARATION FROM THE ARMED FORCES OF THE UNITED STATES, EFFECTING YOUR DISCHARGE FROM THE UNITED STATES AIR FORCE, AS OF THAT DATE, FOR THE CONVENIENCE OF THE GOVERNMENT. YOUR CLAIM AND THE CLAIM OF YOUR WIFE ARE BASED ON THE ACTION OF THE CHIEF, MILITARY, AFFAIRS DIVISION, IN DECLARING YOUR DISCHARGE OF JULY 25, 1953, TO BE UNAUTHORIZED.

SECTION 301 OF THE ACT OF JUNE 22, 1944, MENTIONED ABOVE, AUTHORIZES THE ESTABLISHMENT OF BOARDS OF REVIEW FOR THE SPECIFIC PURPOSE OF REVIEWING THE TYPE AND NATURE OF DISCHARGES AND DISMISSALS EXCEPT A DISCHARGE OR DISMISSAL BY REASON OF A SENTENCE OF A GENERAL COURT MARTIAL. SUCH BOARDS ARE GIVEN AUTHORITY BY SPECIFIC PROVISION OF LAW "TO CHANGE, CORRECT, OR MODIFY ANY DISCHARGE OR DISMISSAL, AND TO ISSUE A NEW DISCHARGE IN ACCORD WITH THE FACTS PRESENTED TO THE BOARD.' THE STATUTE ALSO PROVIDES THAT THE FINDINGS OF SUCH BOARDS OF REVIEW ARE "FINAL SUBJECT ONLY TO REVIEW" BY THE SECRETARY OF THE DEPARTMENT CONCERNED. IT WAS PURSUANT TO THE PROVISIONS OF THAT STATUTE THAT THE REVIEW BOARD FOUND THAT, ON THE EVIDENCE PRESENTED TO IT, YOUR DISCHARGE ON JULY 25, 1953, WAS PROPER. THAT FINDING WAS SUBJECT TO REVIEW ONLY BY THE SECRETARY OF THE AIR FORCE AND HE APPROVED THE BOARD'S ACTION. IT IS, THEREFORE, DOUBTFUL INDEED THAT THE CHIEF, MILITARY AFFAIRS WAS UNAUTHORIZED. THE EFFECT OF HIS ACTION WOULD BE TO OVERRULE THE FINDINGS OF THE REVIEW BOARD AND THE APPROVAL OF THOSE FINDINGS BY THE SECRETARY OF THE AIR FORCE. ESPECIALLY SINCE THE AUTHORITY TO REVIEW THE TYPE AND NATURE OF A DISCHARGE IS VESTED BY SPECIFIC STATUTE IN A REVIEW BOARD, IT WOULD APPEAR THAT THE BOARD HAD JURISDICTION TO CONSIDER SUCH MATTERS TO THE EXCLUSION OF OTHER ADMINISTRATIVE BODIES OR OFFICIALS. HENCE, ON THE BASIS OF THE PRESENT RECORD, THE ACTION OF THE CHIEF, MILITARY AFFAIRS DIVISION, DECLARING YOUR DISCHARGE UNAUTHORIZED AND VOID MAY NOT BE RECOGNIZED AS CHANGING YOUR RIGHTS TO PAY AND ALLOWANCES INCIDENT TO YOUR MILITARY SERVICE.

THE DISCHARGE OF AN ENLISTED MAN EFFECTIVELY AND ABSOLUTELY TERMINATES ANY CONTRACTUAL RELATIONSHIP--- PREVIOUSLY EXISTING BY VIRTUE OF SUCH ENLISTMENT--- BETWEEN SUCH ENLISTED MAN AND THE GOVERNMENT. SEE UNITED STATES V. SMITH, 67 F.2D 412, AFFIRMED 292 U.S. 337, 78 L.ED. 1295, AND PALMER V. UNITED STATES, 72 C.CLS. 401. SINCE THE RECORD SHOWS THAT YOU WERE DISCHARGED ON JULY 25, 1953, IT IS APPARENT THAT YOU WERE NOT IN THE SERVICE OF THE UNITED STATES AIR FORCE DURING THE PERIOD FROM JULY 26, 1953, TO JUNE 30, 1954, AND SINCE THAT DISCHARGE WAS BECAUSE OF A FRAUDULENT ENLISTMENT, NO RIGHT TO UNPAID PAY AND ALLOWANCES MAY BE RECOGNIZED. SEE 9 COMP. GEN. 436.

ACCORDINGLY, THE TWO DISALLOWANCES OF MAY 27, 1955, APPEAR TO HAVE BEEN PROPER AND SUCH ACTION IS SUSTAINED.