A-3374, AUGUST 12, 1924, 4 COMP. GEN. 171

A-3374: Aug 12, 1924

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WAR RISK DISABILITY COMPENSATION - DESERTERS A VETERAN OF THE WORLD WAR IS NOT BARRED. WHERE IT IS SHOWN THAT THE MILITARY AUTHORITIES HELD THE VETERAN TO HIS WORLD WAR ENLISTMENT WITH KNOWLEDGE OF HIS PRIOR DESERTION. 1924: I HAVE YOUR LETTER WITHOUT DATE RECEIVED AUGUST 1. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENTS OF WAR RISK DISABILITY COMPENSATION TO BRYAN J. ROBERTS WHOSE MILITARY RECORD IS REPORTED BY THE ADJUTANT GENERAL OF THE ARMY TO BE AS FOLLOWS: 1.THE RECORDS ON FILE IN THIS OFFICE SHOW THAT BRYAN J. THAT HE WAS REPORTED AS HAVING DESERTED THE SERVICE AT HACHITA. THAT HE WAS TRIED FOR DESERTION AND FOUND GUILTY OF ABSENCE WITHOUT LEAVE ONLY. THAT HE WAS LATER REPORTED AS HAVING DESERTED ON THE LAST MENTIONED DATE. 2.

A-3374, AUGUST 12, 1924, 4 COMP. GEN. 171

WAR RISK DISABILITY COMPENSATION - DESERTERS A VETERAN OF THE WORLD WAR IS NOT BARRED, UNDER THE PROVISIONS OF SECTION 29 OF THE WAR RISK INSURANCE ACT, AS AMENDED, FROM RECEIPT OF DISABILITY COMPENSATION FOR A DISABILITY INCURRED IN AN ENLISTMENT SERVED DURING THE WORLD WAR FROM WHICH HONORABLY DISCHARGED, BY REASON OF A DESERTION PRIOR TO THE WORLD WAR, WHERE IT IS SHOWN THAT THE MILITARY AUTHORITIES HELD THE VETERAN TO HIS WORLD WAR ENLISTMENT WITH KNOWLEDGE OF HIS PRIOR DESERTION, SAID ACTION CONSTITUTING A CONDONATION OF THE PRIOR DESERTION.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, AUGUST 12, 1924:

I HAVE YOUR LETTER WITHOUT DATE RECEIVED AUGUST 1, 1924, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENTS OF WAR RISK DISABILITY COMPENSATION TO BRYAN J. ROBERTS WHOSE MILITARY RECORD IS REPORTED BY THE ADJUTANT GENERAL OF THE ARMY TO BE AS FOLLOWS:

1.THE RECORDS ON FILE IN THIS OFFICE SHOW THAT BRYAN J. ROBERTS ENLISTED IN THE REGULAR ARMY AT VANCOUVER BARRACKS, WASHINGTON, DECEMBER 24, 1913; THAT HE WAS REPORTED AS HAVING DESERTED THE SERVICE AT HACHITA, N.M., MAY 30, 1914, A PRIVATE, COMPANY I, SIGNAL CORPS; THAT HE SURRENDERED TO THE MILITARY AUTHORITIES AT PRESIDIO OF SAN FRANCISCO, CALIFORNIA, DECEMBER 14, 1914; THAT HE WAS TRIED FOR DESERTION AND FOUND GUILTY OF ABSENCE WITHOUT LEAVE ONLY, AND SENTENCED TO PERFORM HARD LABOR FOR THREE MONTHS AND TO FORFEIT TWO THIRDS PAY PER MONTH FOR A LIKE PERIOD (G.C.M.O. NO. 192, HQ., WESTERN DEPT., DATED APRIL 2, 1915); THAT WHILE SERVING SENTENCE AS PROMULGATED IN THE ABOVE GENERAL COURT-MARTIAL ORDER, AT FORT MASON, CALIFORNIA, MAY 6, 1915, HE ABSENTED HIMSELF WITHOUT LEAVE; AND THAT HE WAS LATER REPORTED AS HAVING DESERTED ON THE LAST MENTIONED DATE.

2. WHILE SO ABSENT HE AGAIN ENLISTED IN THE NATIONAL ARMY, JANUARY 21, 1918, AT FORT MCDOWELL, CALIFORNIA, AND ABOUT FEBRUARY 19, 1918, CONFESSED TO THE MILITARY AUTHORITIES THAT HE ENLISTED WITHOUT A DISCHARGE FROM HIS PRIOR ENLISTMENT. UPON THE ADVICE OF HIS COMMANDING OFFICER, HE APPLIED TO THIS OFFICE FOR RESTORATION TO DUTY AND UNDER DATE OF MARCH 5, 1918, THE COMMANDING GENERAL, SOUTHERN DEPARTMENT, WAS INSTRUCTED BY THE WAR DEPARTMENT TO HOLD PRIVATE ROBERTS TO SERVICE UNDER HIS ENLISTMENT OF JANUARY 21, 1918. HE WAS LATER HONORABLY DISCHARGED ON AUGUST 28, 1918, FROM HIS ENLISTMENT OF JANUARY 21, 1918, BY REASON OF PHYSICAL DISABILITY.

3. SINCE HIS SURRENDER, ABOUT FEBRUARY 19, 1918, THE WAR DEPARTMENT HAS NOT CONSIDERED PRIVATE ROBERTS AS A DESERTER AT LARGE FROM HIS ENLISTMENT OF DECEMBER 24, 1913. HE WAS FURNISHED WITH A DISCHARGE CERTIFICATE APRIL 24, 1924, BY REASON OF DESERTION IN ORDER TO COMPLETE THE RECORDS OF HIS FIRST ENLISTMENT. THIS DISCHARGE IN NO WAY AFFECTS HIS ENLISTMENT OF JANUARY 21, 1918, WHICH WAS TERMINATED BY HONORABLE DISCHARGE BECAUSE OF PHYSICAL DISABILITY.

IT IS UNDERSTOOD THAT PAYMENTS OF COMPENSATION HAVE BEEN HERETOFORE DISALLOWED IN THIS CASE BY APPLICATION OF DECISION OF THIS OFFICE DATED FEBRUARY 2, 1924, 3 COMP. GEN. 465, WHICH INVOLVED THE CASE OF DANIEL F. PLUMMER, WHOSE MILITARY RECORD SHOWED A MARK OF DESERTION FROM AN ENLISTMENT ENTERED INTO SUBSEQUENT TO A WORLD WAR ENLISTMENT IN WHICH THE DISABILITY WAS INCURRED FOR WHICH COMPENSATION WAS CLAIMED. THE MARK OF DESERTION HAD NEVER BEEN REMOVED, AND THE CLAIMANT WAS CARRIED AS AN UNAPPREHENDED DESERTER AT LARGE. IT WAS DETERMINED THAT UNDER THE SPECIFIC LANGUAGE OF SECTION 29 OF THE WAR RISK INSURANCE ACT AS FIRST ENACTED JUNE 25, 1918, AND AS LATER AMENDED AUGUST 9, 1921, AND MARCH 4, 1923, 42 STAT. 1521,"THE DISCHARGE OR DISMISSAL OF A PERSON FROM ANY ENLISTMENT IN THE MILITARY OR NAVAL FORCES ON THE GROUND THAT HE IS A DESERTER BARS ALL RIGHT TO ANY COMPENSATION ON ACCOUNT OF SERVICE IN SAID ENLISTMENT OR ANY OTHER ENLISTMENT PRIOR OR SUBSEQUENT THERETO," AND THAT IT IS THE ACT OF DESERTION RATHER THAN ANY FORMAL CERTIFICATE OR ORDER OF DISCHARGE OR DISMISSAL THAT IS THE BAR TO RECEIPT OF COMPENSATION.

IN THE PRESENT CASE THE DESERTION WAS FROM A SERVICE PRIOR TO THE WORLD WAR; THAT IS, PRIOR TO APRIL 6, 1917. ON ITS DISCLOSURE BY HIM IT WAS SPECIFICALLY DIRECTED THAT THE SOLDIER BE HELD TO HIS WORLD WAR ENLISTMENT, AND HE WAS GIVEN AN HONORABLE DISCHARGE THEREFROM. THE FORMAL DISCHARGE FOR DESERTION FROM THE PRIOR ENLISTMENT WAS GIVEN SUBSEQUENT TO THE WORLD WAR SERVICE MAINLY FOR THE PURPOSE OF COMPLETING THE RECORD OF THE PRIOR ENLISTMENT, SO THAT THE SOLDIER IN THIS CASE IS NOT CARRIED AS A DESERTER AT LARGE.

THE ACCEPTED EFFECT OF HOLDING OF SOLDIER TO SUBSEQUENT ENLISTMENT WITH KNOWLEDGE OF PRIOR DESERTION IS A CONDONATION OF THE DESERTION AND NO DISABILITIES ARISE THEREFROM. SUCH RULE IS PROPERLY FOLLOWED IN THE PRESENT CASE, THE RECORD SHOWING HONORABLE SERVICE UNDER THE WORLD WAR ENLISTMENT. SEE 19 COMP. DEC. 490.

YOU ARE ADVISED THAT BRYAN J. ROBERTS IS NOT BARRED FROM THE RECEIPT OF DISABILITY COMPENSATION BY REASON OF THE REPORTED DESERTION.