A-16206, DECEMBER 9, 1926, 6 COMP. GEN. 393

A-16206: Dec 9, 1926

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WHEREIN WAS DISALLOWED HIS CLAIM FOR THE $60 DIRECTED TO BE PAID BY SECTION 1406 OF THE . WAS DISCHARGED AUGUST 15. FRAUDULENT ENLISTMENT IS A CRIMINAL OFFENSE. A DISCHARGE THEREFROM ON DISCOVERY OF THE FRAUD IS NOT UNDER HONORABLE CONDITIONS. THE PERSON GUILTY OF THE OFFENSE IS NOT ENTITLED TO PAY. BUCHANAN HAS APPLIED FOR REVIEW WAS DISALLOWED ACCORDINGLY. IT IS HIS CONTENTION THAT HE IS ENTITLED TO THE WAR-SERVICE ALLOWANCE UNDER PROVISIONS CONTAINED IN THE ACT OF MARCH 16. "AN ACT FOR THE RELIEF OF SOLDIERS WHO WERE DISCHARGED FROM THE ARMY DURING THE WORLD WAR BECAUSE OF MISREPRESENTATION OF AGE. A SOLDIER WHO WAS ENLISTED BETWEEN APRIL 6. WHO WAS DISCHARGED FOR FRAUDULENT ENLISTMENT ON ACCOUNT OF MISREPRESENTATION OF HIS AGE.

A-16206, DECEMBER 9, 1926, 6 COMP. GEN. 393

GRATUITIES, $60 WAR-SERVICE PAYMENT - UNDERAGE DISCHARGE FROM ARMY THE PROVISO CONTAINED IN THE ACT OF MARCH 16, 1926, 44 STAT. 208, THAT "NO BACK PAY OR ALLOWANCES SHALL ACCRUE" BY REASON OF ITS PASSAGE, PROHIBITS THE ALLOWANCE OF THE $60 WAR SERVICE PAYMENT AUTHORIZED IN THE REVENUE ACT OF FEBRUARY 24, 1919, 40 STAT. 1151, TO A FORMER SOLDIER OF THE ARMY WHO HAD BEEN DISCHARGED DURING THE WORLD WAR FOR MISREPRESENTATION OF HIS AGE AT ENLISTMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 9, 1926:

JAMES GAIL BUCHANAN APPLIED JULY 2, 1926, FOR REVIEW OF SETTLEMENT NO. 089783, DATED JUNE 25, 1925, WHEREIN WAS DISALLOWED HIS CLAIM FOR THE $60 DIRECTED TO BE PAID BY SECTION 1406 OF THE ,REVENUE ACT OF 1918," 40 STAT. 1057, 1151, IN THE CASE OF ENLISTED PERSONNEL, TO ALL THOSE SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES "DURING THE PRESENT WAR" WHO HAD SINCE APRIL 6, 1917, BEEN DISCHARGED UNDER HONORABLE CONDITIONS, OR WHO AT ANY TIME THEREAFTER (BUT NOT LATER THAN THE TERMINATION OF THE CURRENT ENLISTMENT OR TERM OF SERVICE) MIGHT BE DISCHARGED UNDER HONORABLE CONDITIONS.

THE ADJUTANT GENERAL OF THE ARMY BY HIS FIRST INDORSEMENT, DATED APRIL 21, 1925, HAS REPORTED WITH RESPECT TO CLAIMANT'S SERVICE AS FOLLOWS:

THE RECORDS OF THIS OFFICE SHOW JAMES G. BUCHANAN, ARMY SERIAL NO. 3082854, FORMERLY A PRIVATE, 9TH COMPANY, 1ST ROAD REGIMENT, CAMP JOSEPH E. JOHNSTON, FLORIDA, ENLISTED JUNE 21, 1918, AND WAS DISCHARGED AUGUST 15, 1918, BY REASON OF FRAUDULENT ENLISTMENT ON ACCOUNT OF MINORITY CONCEALED.

FRAUDULENT ENLISTMENT IS A CRIMINAL OFFENSE, SEE THE 54TH ARTICLE OF WAR, 41 STAT. 800; A DISCHARGE THEREFROM ON DISCOVERY OF THE FRAUD IS NOT UNDER HONORABLE CONDITIONS, AND THE PERSON GUILTY OF THE OFFENSE IS NOT ENTITLED TO PAY, TRAVEL PAY, OR OTHER ALLOWANCES. 8 COMP. DEC. 655. THE CLAIM OF WHICH MR. BUCHANAN HAS APPLIED FOR REVIEW WAS DISALLOWED ACCORDINGLY.

HOWEVER, IT IS HIS CONTENTION THAT HE IS ENTITLED TO THE WAR-SERVICE ALLOWANCE UNDER PROVISIONS CONTAINED IN THE ACT OF MARCH 16, 1926. STAT. 208, ENTITLED,"AN ACT FOR THE RELIEF OF SOLDIERS WHO WERE DISCHARGED FROM THE ARMY DURING THE WORLD WAR BECAUSE OF MISREPRESENTATION OF AGE," AS FOLLOWS:

THAT IN THE ADMINISTRATION OF ANY LAWS CONFERRING RIGHTS, PRIVILEGES OR BENEFITS UPON HONORABLY DISCHARGED SOLDIERS OF THE UNITED STATES ARMY, THEIR WIDOWS AND DEPENDENT CHILDREN, A SOLDIER WHO WAS ENLISTED BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, BOTH DATES INCLUSIVE, AND WHO WAS DISCHARGED FOR FRAUDULENT ENLISTMENT ON ACCOUNT OF MISREPRESENTATION OF HIS AGE, SHALL HEREAFTER BE HELD AND CONSIDERED TO HAVE BEEN DISCHARGED HONORABLY FROM THE MILITARY SERVICE ON THE DATE OF HIS ACTUAL SEPARATION THEREFROM, IF HIS SERVICE OTHERWISE WAS SUCH AS WOULD HAVE ENTITLED HIM TO AN HONORABLE DISCHARGE: PROVIDED, THAT NO BACK PAY OR ALLOWANCES SHALL ACCRUE BY REASON OF THE PASSAGE OF THIS ACT: PROVIDED FURTHER, THAT IN ALL CASES THE WAR DEPARTMENT SHALL, UPON REQUEST, GRANT TO SUCH MEN OR THEIR WIDOWS A DISCHARGE CERTIFICATE SHOWING THAT THE SOLDIERS ARE HELD AND CONSIDERED TO HAVE BEEN HONORABLY DISCHARGED UNDER THE PROVISIONS OF THIS ACT.

THE ACT BY ITS TERMS EXPRESSLY PROHIBITS THE PAYMENT OF "BACK PAY OR ALLOWANCES" TO THOSE COMING WITHIN ITS TERMS. WHILE THE LAW PERMITS REMOVAL OF THE STIGMA OF DISHONORABLE DISCHARGE FROM THE RECORD OF THE MEN DESIGNATED, THE PROVISO THAT NO BACK PAY OR ALLOWANCES SHALL ACCRUE BY BY REASON OF THE PASSAGE OF THE ACT WAS CLEARLY INTENDED TO DENY TO THEM ANY MONETARY BENEFITS WHICH THEREFORE WOULD HAVE ACCRUED TO THEM AS HONORABLY DISCHARGED SOLDIERS. THE RIGHT TO THE $60 WAR-SERVICE ALLOWANCE VESTED IN A SOLDIER AT DATE OF DISCHARGE, IF UNDER HONORABLE CONDITIONS, AND WAS REQUIRED TO BE PAID (1) TO THOSE DISCHARGED PRIOR TO FEBRUARY 24, 1919, AT THE EARLIEST PRACTICABLE DATE THEREAFTER, AND (2) TO THOSE SUBSEQUENTLY DISCHARGED, ON THE DATE OF THEIR DISCHARGE. 26 COMP. DEC. 158; 1 MS. COMP. GEN. 639; 10 ID. 2370. THERE CAN BE NO DOUBT ITS PAYMENT IS PROHIBITED BY THE PROVISO RELATING TO "BACK PAY AND ALLOWANCES" AND THE DISALLOWANCE OF THE CLAIM MUST BE SUSTAINED. IN THIS CONNECTION SEE 13 OP.ATTY.GEN. 188, 199; UNITED STATES V. LANDERS, 92 U.S. 77, 23 FED.REP. 603; BOWMAN V. UNITED STATES, 10 CT.CLS. 408; COLE V. UNITED STATES, 34 ID. 446; 7 A.L.R. 1636; 13 ID. 587, 594; 15 ID. 1359.