A-6992, JANUARY 21, 1925, 4 COMP. GEN. 624

A-6992: Jan 21, 1925

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IS NOT A DISCHARGE FROM THE SERVICE UNDER HONORABLE CONDITIONS AND PAY CONDITIONALLY WITHHELD UNDER ARTICLE 1877 (D). 1925: THERE IS FOR SETTLEMENT THE CLAIM OF CLETIS PERRY STONE FOR REFUND OF ONE -HALF OF LOSS OF PAY IN THE AMOUNT OF $108 SUSTAINED BY SUMMARY COURT- MARTIAL APPROVED AUGUST 7. IT IS PROVIDED BY THE ACT OF MARCH 3. THAT WHEN IT IS FOUND UPON EVIDENCE SATISFACTORY TO THE NAVY DEPARTMENT THAT A RECRUIT HAS SWORN FALSELY AS TO HIS AGE AND IS UNDER 18 YEARS OF AGE AT THE TIME OF ENLISTMENT. RECRUITS WHO HAVE ENLISTED BY FRAUDULENTLY MISREPRESENTING THEIR AGE AND ARE RELEASED FROM SUCH ENLISTMENT ARE ENTITLED TO BE PAID UNPAID PAY ACCRUED TO DATE OF RELEASE OR DISCHARGE. HIS DISCHARGE ON DISCOVERY OF THE FRAUD IS NOT A DISCHARGE FROM THE NAVY UNDER HONORABLE CONDITIONS.

A-6992, JANUARY 21, 1925, 4 COMP. GEN. 624

NAVY PAY, COURT-MARTIAL CHECK AGES - MINORITY ENLISTMENTS AN UNDER-AGE DISCHARGE FROM THE NAVY, RESULTING FROM AN ENLISTMENT MADE POSSIBLE ONLY BY THE FRAUD OF THE MAN AND TERMINATED UPON DISCOVERY OF THE FRAUD, IS NOT A DISCHARGE FROM THE SERVICE UNDER HONORABLE CONDITIONS AND PAY CONDITIONALLY WITHHELD UNDER ARTICLE 1877 (D), NAVY REGULATIONS, 1920, MAY NOT LAWFULLY BE REFUNDED ON SEPARATION FROM THE SERVICE BY SUCH DISCHARGE.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 21, 1925:

THERE IS FOR SETTLEMENT THE CLAIM OF CLETIS PERRY STONE FOR REFUND OF ONE -HALF OF LOSS OF PAY IN THE AMOUNT OF $108 SUSTAINED BY SUMMARY COURT- MARTIAL APPROVED AUGUST 7, 1923, BUT CONDITIONALLY REMITTED UNDER THE PROVISIONS OF ARTICLE 1877 (D), NAVY REGULATIONS, 1920, ALLEGED TO BE DUE UPON HIS RELEASE FROM SERVICE IN THE NAVY OCTOBER 4, 1924, BY REASON OF HIS UNDER-AGE ENLISTMENT OF FEBRUARY 1, 1923.

IT IS PROVIDED BY THE ACT OF MARCH 3, 1915, 38 STAT. 931, THAT WHEN IT IS FOUND UPON EVIDENCE SATISFACTORY TO THE NAVY DEPARTMENT THAT A RECRUIT HAS SWORN FALSELY AS TO HIS AGE AND IS UNDER 18 YEARS OF AGE AT THE TIME OF ENLISTMENT, HE SHALL, UPON REQUEST OF EITHER PARENT OR LEGAL GUARDIAN, BE "RELEASED" FROM SERVICE IN THE NAVY UPON PAYMENT OF FULL COST OF FIRST OUTFIT, UNLESS IN ANY GIVEN CASE THE SECRETARY IN HIS DISCRETION SHALL RELIEVE THE RECRUIT OF SUCH PAYMENT.

IT HAS BEEN HELD THAT, UNDER THIS ACT, RECRUITS WHO HAVE ENLISTED BY FRAUDULENTLY MISREPRESENTING THEIR AGE AND ARE RELEASED FROM SUCH ENLISTMENT ARE ENTITLED TO BE PAID UNPAID PAY ACCRUED TO DATE OF RELEASE OR DISCHARGE, 26 COMP. DEC. 587. BUT THE STATUTE DOES NOT CHANGE THE CHARACTER OF THE ENLISTMENT, CONSUMMATED ONLY AS A RESULT OF THE FRAUDULENT REPRESENTATION OF THE MAN AS TO HIS AGE, AND HIS DISCHARGE ON DISCOVERY OF THE FRAUD IS NOT A DISCHARGE FROM THE NAVY UNDER HONORABLE CONDITIONS.

THE TRAVEL PAY LAW OF SEPTEMBER 22, 1922, 42 STAT. 1021, RECOGNIZES THAT SUCH RECRUITS ARE IN A SEPARATE CLASSIFICATION BY AUTHORIZING TRANSPORTATION ONLY AND NOT TRAVEL PAY, PROBABLY ON THE BROAD GROUND OF PUBLIC POLICY THAT A MINOR RELEASED BUT NOT RETURNED TO THE PLACE WHENCE THE NAVY GOT HIM WOULD IN MANY CASES BE A BURDEN TO THE PARENTS, OR GUARDIAN, WHO HAD REQUESTED HIS DISCHARGE.

TO ENTITLE TO A REFUND OF ONE-HALF OF LOSS OF PAY ADJUDGED BY COURTS- MARTIAL UNDER ARTICLE 1877 (D), NAVY REGULATIONS, 1920, IT IS NECESSARY THAT THE SEPARATION FROM THE SERVICE SHALL BE UNDER HONORABLE CONDITIONS. AN UNDER-AGE DISCHARGE RESULTING FROM AN ENLISTMENT MADE POSSIBLE ONLY BY THE FRAUD OF THE MAN, AND TERMINATED UPON DISCOVERY OF THE FRAUD IS NOT A DISCHARGE FROM THE SERVICE UNDER HONORABLE CONDITIONS AND PAY CONDITIONALLY WITHHELD UNDER SUCH ARTICLE MAY NOT LAWFULLY BE REFUNDED ON SEPARATION FROM THE SERVICE BY SUCH DISCHARGE.

CHANGE NO. 5 TO NAVY REGULATIONS, 1920, DATED JUNE 15, 1923, EFFECTIVE IMMEDIATELY UPON ITS RECEIPT, AMENDED ARTICLE 1877 SO AS TO MAKE NO PROVISION FOR CONDITIONAL REMISSION OF LOSS OF PAY ADJUSTED BY COURTS- MARTIAL. WHETHER THE REMISSION AS CONTAINED IN THE COURT MARTIAL SENTENCE IN CLAIMANT'S CASE, APPROVED AUGUST 7, 1923, WAS EFFECTIVE, NEED NOT BE DETERMINED IN VIEW OF WHAT HAS BEEN STATED.