B-122422, JUN. 9, 1955

B-122422: Jun 9, 1955

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RODGERS: REFERENCE IS MADE TO LETTER DATED APRIL 25. IS TO BE GIVEN FULL EFFECT IN VACATING YOUR COURT-MARTIAL SENTENCE OF APRIL 25. IT MUST OF NECESSITY BE CONSIDERED TO HAVE VACATED THE DISHONORABLE DISCHARGE PROVIDED FOR IN SUCH SENTENCE AND THAT. IT WOULD APPEAR YOU REENLISTED AT A TIME WHEN YOU ALREADY WERE AN ENLISTED MAN OF THE ARMY. UNDER THE MISTAKEN THEORY HELD BY ALL PARTIES THAT SUCH WAS YOUR ONLY COURSE OF ACTION. THAT YOUR DISHONORABLE DISCHARGE WAS WRONGFUL. THAT THERE HAD BEEN NO DISHONORABLE DISCHARGE THERE WOULD HAVE BEEN NO REENLISTMENT. THE FACT IS. THAT YOU WERE SEPARATED FROM THE SERVICE BY DISCHARGE ON MARCH 9. THE VACATION OF THE COURT MARTIAL SENTENCE COULD NOT REASONABLY BE CONSIDERED TO HAVE CANCELED OR REMOVED THE FACT OF SUCH SEPARATION OR THE FACT THAT YOU CONTINUED TO BE AN ENLISTED MAN AFTER MARCH 9.

B-122422, JUN. 9, 1955

TO MR. PAUL P. RODGERS:

REFERENCE IS MADE TO LETTER DATED APRIL 25, 1955, WRITTEN IN YOUR BEHALF BY MR. MEREDITH B. TURNER, REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN DECISION DATED APRIL 22, 1955, WHICH SUSTAINED GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JUNE 1, 1954, DISALLOWING YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF TECHNICIAN THIRD GRADE AND THE PAY OF THE GRADES ACTUALLY HELD BY YOU DURING THE PERIOD MARCH 10, 1947, TO NOVEMBER 3, 1949.

MR. TURNER STATES THAT IF GENERAL COURT-MARTIAL ORDER NO. 42, DEPARTMENT OF THE ARMY, DATED JUNE 22, 1953, IS TO BE GIVEN FULL EFFECT IN VACATING YOUR COURT-MARTIAL SENTENCE OF APRIL 25, 1946, IT MUST OF NECESSITY BE CONSIDERED TO HAVE VACATED THE DISHONORABLE DISCHARGE PROVIDED FOR IN SUCH SENTENCE AND THAT, THEREFORE, IT WOULD APPEAR YOU REENLISTED AT A TIME WHEN YOU ALREADY WERE AN ENLISTED MAN OF THE ARMY. HE FURTHER SAYS THAT YOU REENLISTED ON MARCH 10, 1947, UNDER THE MISTAKEN THEORY HELD BY ALL PARTIES THAT SUCH WAS YOUR ONLY COURSE OF ACTION; THAT YOUR DISHONORABLE DISCHARGE WAS WRONGFUL; AND THAT THERE HAD BEEN NO DISHONORABLE DISCHARGE THERE WOULD HAVE BEEN NO REENLISTMENT. THE FACT IS, HOWEVER, THAT YOU WERE SEPARATED FROM THE SERVICE BY DISCHARGE ON MARCH 9, 1947, AND THE VACATION OF THE COURT MARTIAL SENTENCE COULD NOT REASONABLY BE CONSIDERED TO HAVE CANCELED OR REMOVED THE FACT OF SUCH SEPARATION OR THE FACT THAT YOU CONTINUED TO BE AN ENLISTED MAN AFTER MARCH 9, 1947, ONLY BECAUSE YOU REENLISTED ON MARCH 10, 1947.

AS INDICATED IN THE DECISION OF APRIL 22, 1955, YOU BECAME A PRIVATE ON MARCH 10, 1947, AS A RESULT OF YOUR VOLUNTARY ACTION OF REENLISTING IN THAT GRADE AND NOT AS A RESULT OF A COURT-MARTIAL SENTENCE OCCURRING DURING A PRIOR ENLISTMENT. AS STATED IN THE DECISION, IT IS WELL SETTLED THAT AN ENLISTED MAN IS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF THE GRADE ACTUALLY HELD BY HIM. 15 COMP. GEN. 935. IT WAS FURTHER POINTED OUT THAT YOU WERE NOT A TECHNICIAN THIRD GRADE DURING ANY PART OF THE PERIOD SUBSEQUENT TO MARCH 9, 1947, AND THAT NO ACTION TAKEN BY THE SECRETARY OF THE ARMY OR THE JUDGE ADVOCATE GENERAL SINCE THAT DATE HAS HAD THE EFFECT OF CHANGING, OR HAS PURPORTED TO CHANGE, THAT SITUATION. IT WAS CONCLUDED THAT SINCE THE SECRETARY OF THE ARMY, ACTING THROUGH THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, REFUSED TO "DISTURB" YOUR PERIOD OF SERVICE FROM MARCH 10, 1947, TO NOVEMBER 3, 1949, DURING THAT PERIOD YOU WERE ENTITLED ONLY TO THE PAY AND ALLOWANCES OF THE GRADE ACTUALLY HELD BY YOU.

MR. TURNER'S LETTER STATES NO RELEVANT FACTS NOT PREVIOUSLY CONSIDERED AND HENCE DOES NOT WARRANT ANY MODIFICATION OR RECONSIDERATION OF THE PRIOR ACTION IN THE MATTER.

CONCERNING HIS REQUEST FOR INFORMATION AS TO WHETHER THERE IS ANY PROVISION FOR APPEAL WITH RESPECT TO OUR DECISIONS, YOU ARE ADVISED THAT OUR ACTION ON CLAIMS AGAINST THE UNITED STATES IS FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. INDEPENDENTLY OF SUCH ACTION, HOWEVER, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES. SEE 28 U.S.C. 1491 AND 2501.