A-40324, JANUARY 26, 1932, 11 COMP. GEN. 284

A-40324: Jan 26, 1932

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SPECIFICALLY CERTIFIES THAT AN EX SERVICE MAN WAS "DISCHARGED NOT UNDER HONORABLE CONDITIONS. " THERE CAN BE NO ADMINISTRATIVE FINDING BY THE SECRETARY OF THE NAVY THAT THE INDIVIDUAL WAS A "VETERAN" SUCH AS WOULD BE BINDING ON THE VETERANS' ADMINISTRATION AND THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 305 AND 310 OF THE WORLD WAR ADJUSTED COMPENSATION ACT AS AMENDED BY THE ACT OF JULY 3. THE QUESTION ARISES WHETHER THE EX-SERVICE MAN WAS A VETERAN OR WHETHER THERE HAS BEEN A FINDING TO THAT EFFECT BY THE SECRETARY OF THE NAVY UNDER THE TERMS OF THE WORLD WAR ADJUSTED COMPENSATION ACT. THE RECORDS OF THE BUREAU SHOW THAT THE ABOVE-NAMED MAN WAS TRIED BY GENERAL COURT-MARTIAL. " AND WAS SENTENCED TO BE CONFINED FOR A PERIOD OF TWO (2) YEARS.

A-40324, JANUARY 26, 1932, 11 COMP. GEN. 284

VETERANS' ADMINISTRATION - ADJUSTED COMPENSATION - FINDINGS BY SECRETARY OF THE NAVY AS THE DEFINITION OF THE TERM "VETERAN" APPEARING IN SECTION 2 OF THE WORLD WAR ADJUSTED COMPENSATION ACT DATED MAY 19, 1924, 43 STAT. 121, EXPRESSLY EXCLUDES INDIVIDUALS SEPARATED FROM THE MILITARY OR NAVAL FORCES "UNDER OTHER THAN HONORABLE CONDITIONS," WHERE THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, SPECIFICALLY CERTIFIES THAT AN EX SERVICE MAN WAS "DISCHARGED NOT UNDER HONORABLE CONDITIONS," THERE CAN BE NO ADMINISTRATIVE FINDING BY THE SECRETARY OF THE NAVY THAT THE INDIVIDUAL WAS A "VETERAN" SUCH AS WOULD BE BINDING ON THE VETERANS' ADMINISTRATION AND THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 305 AND 310 OF THE WORLD WAR ADJUSTED COMPENSATION ACT AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 828, AND THE DEPENDENTS OF SUCH AN EX-SERVICE MAN WOULD BE ENTITLED TO NO BENEFITS UNDER THE STATUTE.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JANUARY 26, 1932:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR PREAUDIT ADMINISTRATIVELY APPROVED AWARD OF THE ADJUSTED SERVICE CREDIT OF JOHN ANDREW PORTER, DECEASED, XC-799,265, IN THE TOTAL AMOUNT OF $625, PAYABLE IN 10 QUARTERLY INSTALLMENTS IN FAVOR OF MRS. MARY LOUISE PORTER, WIDOW. THE QUESTION ARISES WHETHER THE EX-SERVICE MAN WAS A VETERAN OR WHETHER THERE HAS BEEN A FINDING TO THAT EFFECT BY THE SECRETARY OF THE NAVY UNDER THE TERMS OF THE WORLD WAR ADJUSTED COMPENSATION ACT.

THE RECORD DISCLOSES THAT UNDER DATE OF JUNE 12, 1931, THE CHIEF OF THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, REPORTED TO THE VETERANS' ADMINISTRATION THE MILITARY HISTORY OF JOHN ANDREW PORTER AS FOLLOWS:

1. THE RECORDS OF THE BUREAU SHOW THAT THE ABOVE-NAMED MAN WAS TRIED BY GENERAL COURT-MARTIAL, FOUND GUILTY OF "THEFT," AND WAS SENTENCED TO BE CONFINED FOR A PERIOD OF TWO (2) YEARS, THEN TO BE DISHONORABLY DISCHARGED FROM THE NAVAL SERVICE. HOWEVER, SO MUCH OF THE UNEXECUTED PORTION OF THE SENTENCE OF THE GENERAL COURT-MARTIAL AS RELATED TO CONFINEMENT WAS REMITTED AND HE WAS DISCHARGED 24 DECEMBER 18, WITH AN UNDESIRABLE DISCHARGE (NOT UNDER HONORABLE CONDITIONS).

THIS INFORMATION APPARENTLY CREATED A DOUBT WHETHER THE EX-SERVICE MAN WAS TO BE CLASSED AS A VETERAN WITHIN THE MEANING OF THE CONTROLLING STATUTE, AND BY LETTER DATED OCTOBER 3, 1931, THE VETERANS' ADMINISTRATION REQUESTED FURTHER REPORT IN THE CASE, WHICH WAS MADE BY THE CHIEF OF THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, UNDER DATE OF OCTOBER 15, 1931, AS FOLLOWS:

1. THE BUREAU CONSIDERS THE ABOVE-NAMED MAN TO HAVE BEEN DISCHARGED NOT UNDER HONORABLE CONDITIONS.

2. HOWEVER, IT IS THE BUREAU'S POLICY TO CREDIT AND CERTIFY TO THE VETERANS' ADMINISTRATION ALL SERVICE EXCEPT IN CASES WHERE A MAN IS DISCHARGED IN ACCORDANCE WITH A SUMMARY OR GENERAL COURT-MARTIAL.

SECTION 2 OF THE WORLD WAR ADJUSTED COMPENSATION ACT OF MAY 19, 1924, 43 STAT. 121, CONTAINS THE FOLLOWING PROVISION:

AS USED IN THIS ACT---

(A) THE TERM "VETERAN" INCLUDES ANY INDIVIDUAL, A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES AT ANY TIME AFTER APRIL 5, 1917, AND BEFORE NOVEMBER 12, 1918; BUT DOES NOT INCLUDE (1) ANY INDIVIDUAL AT ANY TIME DURING SUCH PERIOD OR THEREAFTER SEPARATED FROM SUCH FORCES UNDER OTHER THAN HONORABLE CONDITIONS. * * *

SECTION 305 OF THE SAME ACT PROVIDES AS FOLLOWS:

STATISTICS

IMMEDIATELY UPON THE ENACTMENT OF THIS ACT THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY SHALL ASCERTAIN THE INDIVIDUALS WHO ARE VETERANS AS DEFINED IN SECTION 2, AND, AS TO EACH VETERAN, THE NUMBER OF DAYS OF OVERSEA SERVICE AND OF HOME SERVICE, AS DEFINED IN SECTION 2, FOR WHICH HE IS ENTITLED TO RECEIVE ADJUSTED SERVICE CREDIT, AND THEIR FINDINGS SHALL NOT BE SUBJECT TO REVIEW BY THE GENERAL ACCOUNTING OFFICE, AND PAYMENTS MADE BY DISBURSING OFFICERS OF THE UNITED STATES VETERAN'S BUREAU MADE IN ACCORDANCE WITH SUCH FINDINGS SHALL BE PASSED TO THEIR CREDIT.

SECTION 310, ADDED BY THE AMENDATORY ACT OF JULY 3, 1926, 44 STAT. 828, PROVIDES AS FOLLOWS:

THE DECISIONS OF THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, AND THE DIRECTOR, ON ALL MATTERS WITHIN THEIR RESPECTIVE JURISDICTIONS UNDER THE PROVISIONS OF THIS ACT (EXCEPT THE DUTIES VESTED IN THEM BY TITLE VII) SHALL BE FINAL AND CONCLUSIVE.

THE STATUTE CLEARLY AND DEFINITELY EXCEPTS THOSE WHO WERE DISCHARGED FROM THE MILITARY OR NAVAL SERVICE UNDER OTHER THAN HONORABLE CONDITIONS FROM THE BENEFITS OF THE STATUTE. THERE HAS BEEN NO FINDING BY THE SECRETARY OF THE NAVY IN THE INSTANT CASE THAT THIS EX-SERVICE MAN WAS A "VETERAN" WITHIN THE MEANING OF THE STATUTE SUCH AS WOULD BE CONCLUSIVE ON THE VETERANS' ADMINISTRATION OR THIS OFFICE. IN FACT, THE FINDING OF THE NAVY DEPARTMENT IS EXPRESSLY THAT THE EX-SERVICE MAN WAS "DISCHARGED NOT UNDER HONORABLE CONDITIONS" WHICH EXCLUDES HIS DEPENDENTS FROM ALL BENEFITS OF THE STATUTE. THE STATED POLICY OF THE BUREAU OF NAVIGATION TO "CREDIT AND CERTIFY TO THE VETERANS' ADMINISTRATION ALL SERVICE EXCEPT IN CASES WHERE A MAN IS DISCHARGED IN ACCORDANCE WITH A SUMMARY OR GENERAL COURT- MARTIAL," IS NOT A FINDING THAT THE EX-SERVICE MAN WAS A "VETERAN.' FURTHERMORE, SUCH A FINDING IN THIS CASE WOULD BE INCONSISTENT WITH THE SPECIFIC ADMINISTRATIVE FINDING THAT THE MAN WAS "DISCHARGED NOT UNDER HONORABLE CONDITIONS.'

IN VIEW OF THE RECORD, THE ADMINISTRATIVELY APPROVED AWARD AND THE VOUCHER FOR THE FIRST INSTALLMENT PAYMENT OF $62.50 WILL NOT BE CERTIFIED FOR PAYMENT.