A-13095, APRIL 24, 1926, 5 COMP. GEN. 857

A-13095: Apr 24, 1926

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VETERANS' BUREAU - DISABILITY COMPENSATION THE RIGHT TO WAR RISK DISABILITY COMPENSATION OTHERWISE PAYABLE IS NOT BARRED IF THE ACTUAL DISCHARGE. IS BY DEATH OR FOR A REASON OTHER THAN ON THE GROUND THAT HE WAS GUILTY OF ONE OF SUCH CRIMES OR OFFENSES. THE FACTS IN THREE SPECIFIC CASES ILLUSTRATING THE QUESTIONS OF WHICH DECISION IS REQUESTED ARE PRESENTED AS FOLLOWS: THE CASE OF SHELBY HISLE. 056) IS TYPICAL OF THE CASES WHERE CLAIM IS MADE BY DEPENDENTS FOR COMPENSATION ON ACCOUNT OF THE DEATH OF SUCH PERSON. REMAINED ABSENT IN DESERTION UNTIL HE WAS ARRESTED BY THE CIVIL AUTHORITIES ON MAY 8. THEREAFTER HE WAS TRIED BY GENERAL COURT- MARTIAL. THE SENTENCE WAS DULY APPROVED BUT THE EXECUTION OF THAT PORTION PROVIDING DISHONORABLE DISCHARGE WAS SUSPENDED UNTIL THE SOLDIER'S RELEASE FROM CONFINEMENT.

A-13095, APRIL 24, 1926, 5 COMP. GEN. 857

VETERANS' BUREAU - DISABILITY COMPENSATION THE RIGHT TO WAR RISK DISABILITY COMPENSATION OTHERWISE PAYABLE IS NOT BARRED IF THE ACTUAL DISCHARGE, DISMISSAL, OR SEPARATION OF AN ENLISTED MAN FROM THE MILITARY OR NAVAL FORCES, SUBSEQUENT TO CONVICTION OR PASSING OF SENTENCE FOR ONE OF THE CRIMES OR OFFENSES SPECIFIED IN SECTION 23 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1303, IS BY DEATH OR FOR A REASON OTHER THAN ON THE GROUND THAT HE WAS GUILTY OF ONE OF SUCH CRIMES OR OFFENSES.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 24, 1926:

THE DIRECTOR, UNITED STATES VETERANS' BUREAU, BY LETTER OF FEBRUARY 10, 1926, HAS REQUESTED DECISION WHETHER WAR-RISK COMPENSATION MAY BE PAID TO DEPENDENTS OF PERSONS WHO DIE PRIOR TO FINAL DISCHARGE FROM THE ARMY OR NAVY WHILE SERVING A TERM OF CONFINEMENT PURSUANT TO SENTENCE OF COURT MARTIAL AFTER CONVICTION FOR DESERTION, AND TO PERSONS INCURRING DISABILITY WHILE SERVING A TERM OF CONFINEMENT PURSUANT TO SENTENCE OF COURT MARTIAL UPON CONVICTION FOR DESERTION OR UPON CONVICTION FOR AN OFFENSE INVOLVING MORAL TURPITUDE, THE UNEXECUTED PORTION OF THE SENTENCE TO CONFINEMENT HAVING BEEN REMITTED BY PROPER AUTHORITY AND THE MEN DISCHARGED FROM THE SERVICE ON ACCOUNT OF THEIR DISABILITIES.

THE FACTS IN THREE SPECIFIC CASES ILLUSTRATING THE QUESTIONS OF WHICH DECISION IS REQUESTED ARE PRESENTED AS FOLLOWS:

THE CASE OF SHELBY HISLE, (C-28,056) IS TYPICAL OF THE CASES WHERE CLAIM IS MADE BY DEPENDENTS FOR COMPENSATION ON ACCOUNT OF THE DEATH OF SUCH PERSON. THAT CASE DISCLOSES THE FOLLOWING FACTS: HISLE ENTERED MILITARY SERVICE ON SEPTEMBER 21, 1917; DESERTED THE SERVICE ON DECEMBER 20, 1917, AND REMAINED ABSENT IN DESERTION UNTIL HE WAS ARRESTED BY THE CIVIL AUTHORITIES ON MAY 8, 1918. THEREAFTER HE WAS TRIED BY GENERAL COURT- MARTIAL, FOUND GUILTY OF VIOLATION OF THE 58TH ARTICLE OF WAR, AND SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE AND TO BE CONFINED IN SUCH PLACE AS THE REVIEWING AUTHORITIES MIGHT DIRECT FOR TWENTY-FIVE YEARS. THE SENTENCE WAS DULY APPROVED BUT THE EXECUTION OF THAT PORTION PROVIDING DISHONORABLE DISCHARGE WAS SUSPENDED UNTIL THE SOLDIER'S RELEASE FROM CONFINEMENT, UNLESS SOONER ORDERED BY COMPETENT AUTHORITY. THE MAN WAS TAKEN TO THE UNITED STATES DISCIPLINARY BARRACKS AT FT. LEAVENWORTH, KANSAS, AND SOON AFTER HIS ARRIVAL THERE ON JULY 29, 1918, WAS KILLED BY A NUMBER OF OTHER PRISONERS IN CONFINEMENT THERE AT THE TIME. THE REPORT OF THE ADJUTANT GENERAL WAS THAT HIS DEATH WAS IN LINE OF DUTY AND NOT THE RESULT OF HIS OWN MISCONDUCT.

THE SITUATION ARISING IN CONNECTION WITH CLAIMS FOR DISABILITY COMPENSATION IS SOMEWHAT SIMILAR, AND THE CASES OF ROBERT J. POUNDS (C 1,286,559) AND JOHN F. MAPES (C-362,554) MAY BE CITED AS TYPICAL.

IN THE POUNDS CASE THE INJURY COMPLAINED OF WAS RECEIVED WHILE POUNDS WAS ATTEMPTING TO BOARD A TRUCK, OCCASIONED BY AN ACT OF DUTY IN WHICH HE WAS THEN ENGAGED AND WAS NOT DUE TO MISCONDUCT. HOWEVER, THE INJURY WAS OCCASIONED DURING IMPRISONMENT UNDER SENTENCE OF GENERAL COURT-MARTIAL WHICH CARRIED WITH IT A PENALTY OF A DISHONORABLE DISCHARGE. THE CIRCUMSTANCES OF THE MAN'S CONVICTION, SENTENCE, AND DISCHARGE SUBSEQUENT TO THE INJURY ARE AS FOLLOWS:

WHILE IN DESERTION FROM THE NAVY, POUNDS ENLISTED IN THE ARMY ON AUGUST 24, 1920, UNDER THE NAME OF JAMES A. CALLAHAN, AND DESERTED FROM THE ARMY ON AUGUST 30, 1920. HE WAS THEREAFTER APPREHENDED AND BROUGHT TO TRIAL BY THE NAVY ON DECEMBER 20, 1920, ON ACCOUNT OF DESERTION AND WAS SENTENCED TO CONFINEMENT FOR THIRTY MONTHS WITH DISHONORABLE DISCHARGE AND ACCESSORIES. ON MAY 31, 1920, SUBSEQUENT TO THE DATE OF THE INJURY HEREINBEFORE DESCRIBED, AND AS A RESULT THEREOF, THE UNEXECUTED PORTION OF THE COURT-MARTIAL SENTENCE WAS REMITTED AND IT WAS DIRECTED THAT HE BE DISCHARGED FROM THE NAVAL SERVICE AS SOON AS PRACTICAL WITH A MEDICAL DISCHARGE. THEREFORE, TO ALL INTENTS AND PURPOSES, IT APPEARS ON THE FACE OF THE RECORD THAT THE CLAIMANT WAS DISCHARGED BECAUSE OF PHYSICAL CONDITION, NOTWITHSTANDING THE DISCHARGE FROM PHYSICAL CONDITION WAS REALLY BROUGHT ABOUT BECAUSE OF THE OFFENSE FOR WHICH THE MAN WAS CONVICTED AND SENTENCED, AND WAS ACCELERATED BECAUSE OF THE MAN'S PHYSICAL CONDITION WHICH WOULD MAKE IT ALMOST IMPOSSIBLE FOR HIM TO BE CONTINUED IN CONFINEMENT UNDER THE COURT-MARTIAL SENTENCE.

IN THE MAPES CASE THE RECORDS OF THIS BUREAU SHOW THAT MAPES WAS TRIED UNDER THE 93RD ARTICLE OF WAR FOR THE EMBEZZLEMENT OF $29.25 (DID THE 93RD ARTICLE OF WAR FOR THE EMBEZZLEMENT OF $29.25 (DID FRAUDULENTLY CONVERT TO HIS OWN USE AND BENEFIT CASE MONEY INTRUSTED TO HIM FOR THE PURPOSE OF BUYING TOBACCO, CANDY, AND MONEY ORDERS, THE PROPERTY OF OTHER MEN); THAT HE WAS TRIED BY GENERAL COURT-MARTIAL IN DECEMBER, 1918, AND WAS SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, AND TO BE CONFINED AT HARD LABOR AT SUCH PLACE AS THE REVIEWING AUTHORITY MAY DIRECT FOR FIVE YEARS. THE SENTENCE WAS APPROVED AND THAT PORTION ADJUDGING DISHONORABLE DISCHARGE WAS SUSPENDED UNTIL THE SOLDIER'S RELEASE FROM CONFINEMENT. IN FEBRUARY, 1919, HIS SISTER WROTE THE ADJUTANT GENERAL REQUESTING CLEMENCY ON BEHALF OF HER BROTHER IN VIEW OF THE FACT THAT HE WAS TUBERCULAR. THE REPORT OF THE DEPARTMENT OF PSYCHIATRY AND SOCIOLOGY, FT. LEAVENWORTH, DATED MARCH 6, 1919, DID NOT CONTAIN ANY INFORMATION RELATIVE TO THE DISABILITY TUBERCULOSIS. ON MAY 3, 1919, THE UNEXECUTED PORTION OF THE SENTENCE TO CONFINEMENT WAS REMITTED BY DIRECTION OF THE PRESIDENT AND MAPES WAS DISCHARGED UNDER THE PROVISIONS OF PARAGRAPH 139 (1), ARMY REGULATIONS, AND FURNISHED WITH THE FORM OF DISCHARGE CERTIFICATE PROVIDED BY PARAGRAPH 150 (3), ARMY REGULATIONS (BLUE DISCHARGE), WHICH IS NOT A DISHONORABLE DISCHARGE. THE OFFENSE FOR WHICH MAPES WAS TRIED AND CONVICTED IS DEEMED BY THIS BUREAU TO HAVE BEEN ONE INVOLVING MORAL TURPITUDE, AND, THEREFORE, WITHIN SECTION 29 OF THE WAR-RISK INSURANCE ACT AND SECTION 23 OF THE WORLD WAR VETERANS' ACT.

SECTION 23 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1303, PROVIDES, IN SO FAR AS HERE MATERIAL, AS FOLLOWS:

THE DISCHARGE OR DISMISSAL OF ANY PERSON FROM THE MILITARY OR NAVAL FORCES ON THE GROUND THAT HE WAS GUILTY OF MUTINY, TREASON, SPYING, OR ANY OFFENSE INVOLVING MORAL TURPITUDE OR WILLFUL AND PERSISTENT MISCONDUCT, OF WHICH HE WAS FOUND GUILTY BY A COURT-MARTIAL, OR THAT HE WAS AN ALIEN, CONSCIENTIOUS OBJECTOR WHO REFUSED TO PERFORM MILITARY DUTY OR REFUSED TO WEAR THE UNIFORM, OR A DESERTER, SHALL BAR ALL RIGHTS TO ANY COMPENSATION UNDER TITLE II, * * * PROVIDED FURTHER, THAT THIS SECTION SHALL BE DEEMED TO BE IN EFFECT AS OF APRIL 6, 1917 * * *.

THE CHANGES IN THIS PROVISION AS ORIGINALLY ENACTED MAY BE TRACED BY REFERENCE TO SECTION 29 OF THE WAR-RISK INSURANCE ACT AS ORIGINALLY APPEARING IN THE AMENDATORY ACT OF JUNE 25, 1918, 40 STAT. 609, AND AS AMENDED BY THE ACTS OF AUGUST 9, 1921, 42 STAT. 152, MARCH 4, 1923, 42 STAT. 1521, AND THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 613.

THE STATUTE EXPRESSLY PROVIDES THAT THE DISCHARGE OR DISMISSAL, THAT IS TO SAY, THE SEPARATION FROM THE SERVICE, MUST BE "ON THE GROUND THAT HE WAS GUILTY" OF ONE OF THE CRIMES OR OFFENSES ENUMERATED, OR "ON THE GROUND" THAT HE WAS A DESERTER, ETC. THE ISSUANCE OF A FORMAL CERTIFICATE OF DISCHARGE OR DISMISSAL IS NOT NECESSARILY A PREREQUISITE TO BAR RIGHTS IF THE ACTUAL SEPARATION FROM THE SERVICE IS IN FACT BECAUSE OF ONE OF THE GROUNDS MENTIONED IN THE STATUTE--- AS IN THE CASE OF AN UNAPPREHENDED DESERTER CONSIDERED IN 3 COMP. GEN. 465--- BUT WHEN A DISCHARGE HAS IN FACT BEEN ISSUED THE CHARACTER OF THE DISCHARGE IS FOR CONSIDERATION AND A CONVICTION AND/OR SENTENCE BY COURT-MARTIAL OR OTHERWISE, NOT FOLLOWED BY A DISCHARGE IN FACT BECAUSE OF SUCH CRIME OR OFFENSE DOES NOT ALONE NECESSARILY BAR RIGHTS TO WAR-RISK DISABILITY COMPENSATION. IF THE ACTUAL DISCHARGE, DISMISSAL, OR SEPARATION FROM THE SERVICE, SUBSEQUENT TO CONVICTION OR PASSING OF SENTENCE FOR ONE OF THE SPECIFIED CRIMES OR OFFENSES, IS FOR A REASON OTHER THAN ONE OF THE GROUNDS MENTIONED IN THE STATUTE, THE RIGHTS TO DISABILITY COMPENSATION WOULD NOT APPARENTLY BE BARRED. THE PRESENT CASES SUBMITTED APPEAR TO BE WITHIN THE LATTER SITUATION.

IN THE CASE OF SHELBY HISLE, SEPARATION FROM THE SERVICE WAS BY DEATH PRIOR TO FINAL DISCHARGE. IN THE CASE OF ROBERT J. POUNDS DISCHARGE WAS FOR DISABILITY FOLLOWING REMISSION OF UNEXECUTED PORTION OF COURT-MARTIAL SENTENCE. IN THE CASE OF JOHN F. MAPES DISCHARGE WAS NOT ON ACCOUNT OF THE CRIME FOR WHICH HE HAD BEEN CONVICTED AND SENTENCED BUT APPARENTLY BECAUSE OF ILL HEALTH FOLLOWING REMISSION OF UNEXECUTED PORTION OF THE COURT-MARTIAL SENTENCE.

IN NONE OF THE THREE CASES PRESENTED IS THERE SHOWN TO HAVE BEEN SUCH A DISCHARGE OR DISMISSAL FROM THE MILITARY OR NAVAL FORCES AS WOULD BAR RIGHTS TO WAR-RISK DISABILITY COMPENSATION ORDER THE PROVISION HEREINBEFORE QUOTED.