B-124855, JAN. 29, 1957

B-124855, JAN. 29, 1957

TO MR. CLIFFORD W. ASTON:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 10, 1956, AND JANUARY 6, 1957, REFERRING TO OUR DECISION OF OCTOBER 25, 1955, B-124855, AND REQUESTING THAT WE OBTAIN AN ADDITIONAL REPORT FROM THE DEPARTMENT OF THE AIR FORCE AND THEN GIVE FURTHER CONSIDERATION TO YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE YOU FOR THE PERIOD FROM JULY 1, 1953, TO JUNE 30, 1954, AS AN ENLISTED MEMBER OF THE UNITED STATES AIR FORCE.

THE RECORDS SHOW THAT YOU WERE ENLISTED IN THE REGULAR AIR FORCE ON DECEMBER 12, 1950, FOR FOUR YEARS, UNASSIGNED, UNDER AUTHORITY OF AFR 39- 9, DATED SEPTEMBER 6, 1950, AND THAT UPON ENLISTMENT YOU REPRESENTED THAT YOU WERE SINGLE. PARAGRAPH 9 OF THOSE REGULATIONS PROVIDED THAT MALE APPLICANTS FROM CIVILIAN LIFE HAVING DEPENDENTS WOULD BE ENLISTED IN THE AIR FORCE ONLY IF THEY WERE ELIGIBLE TO ENLIST IN GRADE E-7, E 6, OR E-5, EXCEPT THAT APPLICANTS WHO QUALIFIED FOR GRADE E-4 MIGHT BE ENLISTED IF THEY HAD COMPLETED MORE THAN SEVEN YEARS OF SERVICE FOR PAY PURPOSES. APPEARS THAT SOON AFTER YOUR ENLISTMENT YOU ADVISED THE AIR FORCE AUTHORITIES OF YOUR MARITAL STATUS; THAT THEREAFTER A CLASS Q ALLOTMENT WAS AUTHORIZED ON BEHALF OF YOUR WIFE, EFFECTIVE JANUARY 1, 1951; AND THAT SUBSEQUENTLY A CLASS Q ALLOTMENT WAS AUTHORIZED FOR YOUR DAUGHTER RETROACTIVE TO THAT DATE. IT FURTHER APPEARS THAT YOU WERE ORDERED DISCHARGED BY THE COMMANDER AT SHEPPARD AIR FORCE BASE, TEXAS, AND THAT YOU RECEIVED A GENERAL DISCHARGE FROM THE SERVICE ON JULY 25, 1953, 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 MARCH 19, 1954, THE AIR FORCE DISCHARGE REVIEW BOARD MET AT WASHINGTON, D.C., TO CONSIDER YOUR CASE. IN THE REPORT OF PROCEEDINGS IT IS STATED THAT AFTER CAREFUL CONSIDERATION OF THE EVIDENCE OF RECORD IN THE CASE, INCLUDING THE 201 FILE, THE BOARD FOUND: (A) THAT YOUR DISCHARGE UNDER THE PROVISIONS OF AFR 39-21 WAS IN ACCORDANCE WITH THE REGULATIONS IN FORCE AT THAT TIME; (B) THAT THE CHARACTER OF THE DISCHARGE WAS AMPLY SUPPORTED BY THE EVIDENCE OF RECORD; AND (C) THAT NO ADDITIONAL EVIDENCE OF SUFFICIENT WEIGHT AND CREDIBILITY AS TO WARRANT REVERSAL OF THE PRIOR ACTION IN THE CASE HAD BEEN ADDUCED BEFORE THE AIR FORCE DISCHARGE REVIEW BOARD. IN CONCLUSION, THE BOARD RECOMMENDED THAT NO CHANGE BE MADE IN THE DISCHARGE CERTIFICATE THEN IN EFFECT. AS INDICATED IN A MEMORANDUM DATED APRIL 15, 1954, SIGNED BY COLONEL J. L. O-NEILL, USAF, EXECUTIVE, THE RECOMMENDATION OF THE BOARD WAS APPROVED BY THE SECRETARY OF THE AIR FORCE.

IN A MEMORANDUM DATED MAY 28, 1954, SIGNED BY THE CHIEF, SEPARATIONS BRANCH, PROMOTION AND SEPARATIONS DIVISION, DIRECTORATE OF MILITARY PERSONNEL, AND IN A LETTER TO YOU DATED JUNE 14, 1954, IT IS STATED THAT MESSAGE NO. 41042, DATED NOVEMBER 20, 1950, WAS DISPATCHED TO ALL FIELD COMMANDERS, AMENDING AFR 39-9 AND PROVIDING THAT "EFFECTIVE IMMEDIATELY MALE APPLICANTS FROM CIVILIAN LIFE, INCLUDING THOSE WITH PRIOR SERVICE, MAY BE ENLISTED IN GRADES E-1, E-2 OR E-3, IF THEY HAVE NO MORE THAN 2 DEPENDENTS.' ON THE BASIS OF SUCH STATEMENT, IN A MEMORANDUM DATED JUNE 8, 1954, SIGNED BY THE CHIEF, MILITARY AFFAIRS DIVISION, OFFICE OF THE JUDGE ADVOCATE GENERAL, IT WAS CONCLUDED THAT YOUR FAILURE TO (DELIBERATELY) DISCLOSE THAT YOU HAD TWO DEPENDENTS ON DECEMBER 12, 1950, WAS NOT THAT KIND OF DISQUALIFICATION PRESCRIBED BY LAW OR REGULATION, WHICH, HAD IT BEEN MADE KNOWN, WOULD HAVE RENDERED YOU INELIGIBLE FORENLISTMENT AND THAT, HENCE, YOUR ENLISTMENT WAS LAWFUL AND YOUR DISCHARGE ON JULY 25, 1953, WAS UNAUTHORIZED AND VOID. YOU WERE SO ADVISED IN THE LETTER DATED JUNE 14, 1954, AND 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.' YOU ELECTED TO REQUEST DISCHARGE AND RETURNED YOUR GENERAL DISCHARGE CERTIFICATE FOR CANCELLATION AND WERE GIVEN AN HONORABLE DISCHARGE CERTIFICATE DATED JUNE 30, 1954, AND A REPORT OF SEPARATION FROM THE ARMED FORCES OF THE UNITED STATES, AS OF THAT DATE, FOR THE CONVENIENCE OF THE GOVERNMENT.

IN OUR DECISION OF OCTOBER 25, 1955, WE HELD THAT ON THE BASIS OF THE RECORD THEN AVAILABLE, THE ACTION OF THE CHIEF, MILITARY AFFAIRS DIVISION, OFFICE OF THE JUDGE ADVOCATE GENERAL, DECLARING YOUR DISCHARGE UNAUTHORIZED AND VOID MAY NOT BE RECOGNIZED AS CHANGING YOUR RIGHTS TO PAY AND ALLOWANCES INCIDENT TO YOUR MILITARY SERVICE. WE HELD ALSO THAT SINCE YOU WERE DISCHARGED ON JULY 25, 1953, FOR FRAUDULENT ENLISTMENT, NO RIGHT TO UNPAID PAY AND ALLOWANCES MAY BE RECOGNIZED.

A COPY OF YOUR LETTER OF OCTOBER 10, 1956, WAS FORWARDED TO THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, WITH A REQUEST THAT WE BE FURNISHED AN ADDITIONAL REPORT. WE RECEIVED SUCH REPORT FROM THAT OFFICE WITH A LETTER DATED DECEMBER 28, 1956. THE OPINION IS EXPRESSED--- APPARENTLY BASED PRINCIPALLY ON THE MESSAGE STATED TO HAVE BEEN SENT TO ALL FIELD COMMANDERS ON NOVEMBER 20, 1950--- THAT YOUR ENLISTMENT ON DECEMBER 12, 1950, WAS NOT FRAUDULENT AS THE FACT CONCEALED BY YOU WAS NOT MATERIAL AND THAT, THEREFORE, THE PERSON WHO ISSUED THE DISCHARGE WAS NOT ACTING WITHIN THE SCOPE OF DELEGATED AUTHORITY AND THAT THE DISCHARGE WAS NULL AND VOID. THE REPORT IS TO THE EFFECT THAT AS THE DISCHARGE WAS NOT VALID THERE WAS NOTHING FOR THE AIR FORCE DISCHARGE REVIEW BOARD TO CONSIDER OR CORRECT. IT IS STATED ALSO THAT NEITHER YOU NOR THE COMMANDER WHO ORDERED YOUR DISCHARGE ON JULY 25, 1953, WAS AWARE AT THE TIME OF THE DISCHARGE THAT THERE WAS NO FRAUDULENT ENLISTMENT INVOLVED IN THE CASE AND, ALSO, THAT AT THE TIME THE AIR FORCE DISCHARGE REVIEW BOARD DENIED YOUR APPEAL, THAT BOARD WAS UNAWARE THAT YOU HAD NOT BEEN GUILTY OF FRAUDULENT ENLISTMENT AND THAT THE DISCHARGE WAS INVALID. IT WOULD APPEAR FROM SUCH STATEMENT THAT NONE OF THOSE MENTIONED HAD KNOWLEDGE OF THE MESSAGE STATED TO HAVE BEEN SENT TO ALL FIELD COMMANDERS ON NOVEMBER 20, 1950.

AFR 39-9, DATED SEPTEMBER 6, 1950, WAS AMENDED BY AFR 39-9A, DATED MARCH 22, 1951. THAT AMENDMENT PROVIDED FOR CHANGES IN ONLY PARAGRAPHS 11 AND 12 AND CONTAINED NO REFERENCE TO PARAGRAPH 9 OR TO A MESSAGE DISPATCHED ON NOVEMBER 20, 1950, WHICH, IT IS ALLEGED, HAD THE EFFECT OF CHANGING THE REQUIREMENTS OF PARAGRAPH 9 OF THAT REGULATION. ON JULY 25, 1953, THE DATE OF YOUR DISCHARGE, PARAGRAPH 9 OF AFR 39-10, DATED SEPTEMBER 21, 1949, WITH EXCEPTIONS NOT HERE MATERIAL, DELEGATED AUTHORITY TO ORDER THE DISCHARGE OR RELEASE FROM ACTIVE DUTY OF ENLISTED PERSONNEL PRIOR TO EXPIRATION OF THEIR TERM OF SERVICE TO "COMMANDERS OF ALL UNITS OR INSTALLATIONS, COMMANDED BY OR THE NORMAL COMMAND OF GENERAL OFFICERS, COMMANDING OFFICERS OF PERSONNEL CENTERS, TRAINING CENTERS, OVERSEA REPLACEMENT DEPOTS, PORTS OF AERIAL EMBARKATION, AND ALL ACTIVE AIR FORCE INSTALLATIONS HAVING AN AUTHORIZED MILITARY STRENGTH OF 4,000 OR MORE MEN * * *.' YOUR DISCHARGE ON JULY 25, 1953, APPEARS TO HAVE BEEN ISSUED BY A PERSON WHO HAD GENERAL AUTHORITY TO DISCHARGE ENLISTED PERSONNEL PRIOR TO THE EXPIRATION OF THEIR PERIOD OF ENLISTMENT. EVEN IF IT COULD BE ASSUMED, ON THE PRESENT SHOWING, THAT THE REASON FOR THE DISCHARGE WAS ERRONEOUS, THERE IS NO DOUBT THAT THE DISCHARGE WAS ISSUED FOR THE PURPOSE OF TERMINATING YOUR MILITARY STATUS AND THAT THE PERSON WHO ISSUED IT HAD AUTHORITY TO TERMINATE THAT STATUS BY DISCHARGE.

IT IS AN ESTABLISHED RULE THAT A VALID DISCHARGE FROM THE MILITARY SERVICE, ONCE ISSUED BY COMPETENT AUTHORITY, LEGALLY MAY NOT BE REVOKED UNLESS IT WAS PROCURED THROUGH FRAUD OR MISREPRESENTATION. 27 COMP. GEN. 495. THERE IS NO SUGGESTION THAT THERE WAS ANY FRAUD OR MISREPRESENTATION IN CONNECTION WITH THE DISCHARGE HERE INVOLVED AND IT MAY NOT BE CONSIDERED INVALID MERELY BECAUSE THE OFFICER WHO EFFECTED IT MAY NOT HAVE BEEN AWARE, AT THE TIME, OF THE INSTRUCTIONS REPORTED TO HAVE BEEN CONTAINED IN THE MESSAGE OF NOVEMBER 20, 1950, WHICH, HAD HE KNOWN OF THEM, MIGHT HAVE CAUSED THE ISSUANCE OF THE DISCHARGE ON OTHER GROUNDS. FURTHERMORE, AS INDICATED ABOVE AND IN OUR PRIOR DECISION TO YOU, IT APPEARS THAT THE DISCHARGE IN QUESTION WAS CONSIDERED BY THE AIR FORCE DISCHARGE REVIEW BOARD, A STATUTORY BOARD EXPRESSLY AUTHORIZED TO CORRECT DISCHARGES. THAT BOARD FOUND, AMONG OTHER THINGS, THAT THE DISCHARGE WAS IN ACCORDANCE WITH THE REGULATIONS IN FORCE AT THE TIME. THE BOARD RECOMMENDED THAT NO CHANGE BE MADE IN THE DISCHARGE CERTIFICATE AND THE RECOMMENDATION WAS APPROVED BY THE SECRETARY OF THE AIR FORCE. THAT FINAL ACTION IS NOT SUBJECT TO REVIEW BY THE CHIEF, MILITARY AFFAIRS DIVISION, WHO FOUND THAT YOUR DISCHARGE WAS UNAUTHORIZED AND HENCE, WE MUST CONCLUDE THAT YOUR MILITARY SERVICE TERMINATED ON JULY 25, 1953.

ACCORDINGLY, WE FIND NO PROPER GROUND FOR A CONCLUSION DIFFERENT FROM THAT REACHED IN OUR DECISION OF OCTOBER 25, 1955.