B-117002, DEC 10, 1953

B-117002: Dec 10, 1953

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SINCE A SIMILAR CLAIM WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE OF SETTLEMENT DATED JUNE 19. YOUR CLAIM WILL BE CONSIDERED A REQUEST FOR REVIEW OF THAT ACTION. INVESTIGATION ESTABLISHED CLAIMANT'S TRUE DATE OF BIRTH TO BE 17 JANUARY 1926 WHICH WAS SUBSTANTIATED BY BIRTH. SHE WAS DISCHARGED FROM THE NAVAL SERVICE ON 22 JUNE 1944 WITH AN INDIFFERENT DISCHARGE. BY REASON OF UNDER AUTHORIZED AGE OF ENLISTMENT. ***" IT UNIFORMLY HAS BEEN HELD THAT AN ENLISTMENT CONTRACT ENTERED INTO UNDER CIRCUMSTANCES INVOLVING THE CONCEALMENT OR MISREPRESENTATION BY THE ENLISTED PERSON OF MATERIAL FACTS OR INFORMATION WHICH IF ORIGINALLY REVEALED WOULD HAVE DISQUALIFIED HIM FOR ENLISTMENT IS VOIDABLE AT THE OPTION OF THE GOVERNMENT AND THAT THE PERSON'S DISCHARGE CONSTITUTES AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT.

B-117002, DEC 10, 1953

PRECIS-UNAVAILABLE

MRS. CLEMENTINE B. GRAHAM:

THERE HAS BEEN TRANSMITTED TO THIS OFFICE BY HONORABLE FREDERIC R. COUDERT, JR., YOUR CLAIM FOR ACTIVE DUTY PAY FOR THE PERIOD MARCH 23 TO JUNE 22, 1944, AS AN ENLISTED MEMBER OF THE WOMEN'S RESERVE, UNITED STATES NAVAL RESERVE.

SINCE A SIMILAR CLAIM WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE OF SETTLEMENT DATED JUNE 19, 1947, YOUR CLAIM WILL BE CONSIDERED A REQUEST FOR REVIEW OF THAT ACTION.

IN RESPONSE TO AN INQUIRY FROM THIS OFFICE THE BUREAU OF NAVAL PERSONNEL, DISCHARGED NAVAL PERSONNEL RECORDS BRANCH, GARDEN CITY, NEW YORK, IN A REPORT DATED NOVEMBER 3, 1953, STATED THAT ON FEBRUARY 24, 1944, YOU ENLISTED IN THE UNITED STATES NAVAL RESERVE AT BOSTON, MASSACHUSETTS, AT WHICH TIME YOU GAVE YOUR DATE OF BIRTH AS JANUARY 17, 1924. THE SAID REPORT CONCLUDED AS FOLLOWS:

"3. INVESTIGATION ESTABLISHED CLAIMANT'S TRUE DATE OF BIRTH TO BE 17 JANUARY 1926 WHICH WAS SUBSTANTIATED BY BIRTH, SCHOOL AND CENSUS RECORDS. ACCORDINGLY, SHE WAS DISCHARGED FROM THE NAVAL SERVICE ON 22 JUNE 1944 WITH AN INDIFFERENT DISCHARGE, UNDER HONORABLE CONDITIONS, BY REASON OF UNDER AUTHORIZED AGE OF ENLISTMENT. ***"

IT UNIFORMLY HAS BEEN HELD THAT AN ENLISTMENT CONTRACT ENTERED INTO UNDER CIRCUMSTANCES INVOLVING THE CONCEALMENT OR MISREPRESENTATION BY THE ENLISTED PERSON OF MATERIAL FACTS OR INFORMATION WHICH IF ORIGINALLY REVEALED WOULD HAVE DISQUALIFIED HIM FOR ENLISTMENT IS VOIDABLE AT THE OPTION OF THE GOVERNMENT AND THAT THE PERSON'S DISCHARGE CONSTITUTES AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT. SUCH A DISCHARGED PERSON GENERALLY IS NOT ENTITLED TO PAY AND ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT. 9 COMP. GEN. 463; 30 ID. 18.

PRIOR TO JULY 1, 1944, NO AUTHORITY EXISTED FOR THE PAYMENT OF PAY AND ALLOWANCE UNPAID ON DATE OF DISCHARGE TO ENLISTED PERSONNEL DISCHARGED WHILE UNDER THE MINIMUM STATUTORY OR ADMINISTRATIVE AGE LIMIT BY REASON OF FALSE STATEMENT OF AGE ON APPLICATION FOR ENLISTMENT. WHILE PROVISION WAS MADE IN THE ACT OF JULY 1, 1944, 58 STAT. 672, AND IN THE ACT OF SEPTEMBER 24, 1945, 59 STAT. 536, FOR THE PAYMENT OF PAY AND ALLOWANCES TO ENLISTED PERSONNEL WHOSE ENLISTMENT CONTRACT IS TERMINATED BY CANCELLATION OR DISCHARGE BY REASON OF MISREPRESENTATION ON ENLISTMENT AS TO AGE, SUCH ACTS ARE CONCERNED ONLY WITH DISCHARGES OR RELEASES EFFECTED ON OR AFTER THEIR RESPECTIVE ENACTMENT DATES AND CONSEQUENTLY HAVE NO APPLICATION IN A CASE SUCH AS YOURS WHERE DISCHARGE WAS EFFECTED ON THE GROUNDS OF MISREPRESENTATION OF AGE PRIOR TO THE DATE OF SUCH ACTS. IN VIEW OF THE CIRCUMSTANCES OF YOUR DISCHARGE OF JUNE 22, 1944, IT MUST BE CONCLUDED THAT NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF PAY AND ALLOWANCES FOR THE PERIOD IN QUESTION.

ACCORDINGLY, THE SETTLEMENT OF JUNE 19, 1947, IS SUSTAINED.