B-122440, JUN. 8, 1955

B-122440: Jun 8, 1955

Additional Materials:

Contact:

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

 

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

JR.: REFERENCE IS MADE TO YOUR UNSIGNED AND UNDATED LETTER RECEIVED NOVEMBER 29. IN REGARD TO WHETHER YOU ARE ENTITLED TO PAY AS AN ENLISTED MAN OF THE ARMY FOR THE PERIOD MAY 1 TO AUGUST 19. IT APPEARS THAT YOU WERE INDUCTED INTO THE ARMY ON OCTOBER 21. THAT YOU WERE GIVEN AN UNDESIRABLE DISCHARGE ON AUGUST 19. THAT YOU WERE LAST PAID THROUGH APRIL 30. YOU WERE GIVEN AN HONORABLE DISCHARGE ON MAY 2. WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED JULY 16. THE GROUND FOR THE DISALLOWANCE WAS THAT A MAN DISCHARGED BECAUSE OF FRAUDULENT ENTRY IN THE ARMY HAS NO RIGHT TO PAY AND ALLOWANCES. THAT THE CHANGING OF A DISCHARGE FROM UNDESIRABLE TO HONORABLE DOES NOT CHANGE THE FACT THAT AN ENLISTMENT WAS TERMINATED BECAUSE OF FRAUD.

B-122440, JUN. 8, 1955

TO MR. JESSE J. METCALF, JR.:

REFERENCE IS MADE TO YOUR UNSIGNED AND UNDATED LETTER RECEIVED NOVEMBER 29, 1954, IN REGARD TO WHETHER YOU ARE ENTITLED TO PAY AS AN ENLISTED MAN OF THE ARMY FOR THE PERIOD MAY 1 TO AUGUST 19, 1949, AND TO PAYMENT FOR 19 DAYS' ACCRUED LEAVE.

IT APPEARS THAT YOU WERE INDUCTED INTO THE ARMY ON OCTOBER 21, 1948; THAT YOU WERE GIVEN AN UNDESIRABLE DISCHARGE ON AUGUST 19, 1949, BY REASON OF FRAUDULENT ENLISTMENT; AND THAT YOU WERE LAST PAID THROUGH APRIL 30, 1949. IT FURTHER APPEARS THAT BY REASON OF THE ACTION OF A BOARD ESTABLISHED UNDER THE PROVISIONS OF SECTION 301 OF THE ACT OF JUNE 22, 1944, 58 STAT. 286, YOU WERE GIVEN AN HONORABLE DISCHARGE ON MAY 2, 1951.

YOUR CLAIM FOR PAY FOR THE PERIOD MAY 1 TO AUGUST 19, 1949, WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED JULY 16, 1953. THE GROUND FOR THE DISALLOWANCE WAS THAT A MAN DISCHARGED BECAUSE OF FRAUDULENT ENTRY IN THE ARMY HAS NO RIGHT TO PAY AND ALLOWANCES, SINCE THE DISCHARGE CONSTITUTES AN AVOIDANCE OF THE ENLISTMENT CONTRACT; AND THAT THE CHANGING OF A DISCHARGE FROM UNDESIRABLE TO HONORABLE DOES NOT CHANGE THE FACT THAT AN ENLISTMENT WAS TERMINATED BECAUSE OF FRAUD.

YOU NOW STATE THAT IN JANUARY 1952 THE ARMY PAID YOU $60.80 FOR 19 DAYS' LEAVE. YOU STATE THAT THE ARMY'S ACTION AND OUR ACTION DO NOT SEEM TO BE CONSISTENT.

THE NONPAYMENT OF PAY TO YOU AT THE TIME OF YOUR DISCHARGE WAS NOT BECAUSE YOU WERE DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS, BUT BECAUSE YOUR ENTRY IN THE ARMY WAS FRAUDULENT AND WAS TERMINATED BECAUSE OF FRAUD. HENCE, EVEN IF IT HAD BEEN POSSIBLE TO HAVE GIVEN YOU AN HONORABLE DISCHARGE AT THE TIME OF YOUR SEPARATION FROM THE SERVICE, YOU WOULD NOT HAVE BEEN ENTITLED TO THE PAY IN QUESTION, SINCE THE TYPE OF DISCHARGE WOULD NOT HAVE CHANGED THE CHARACTER OF YOUR ENLISTMENT. FOLLOWS THAT THE SUBSEQUENT CHANGING OF THE CHARACTER OR TYPE OF YOUR DISCHARGE DID NOT CHANGE THE CHARACTER OF YOUR ENLISTMENT.

IT IS WELL ESTABLISHED THAT WHEN A SOLDIER, ON ENTRY INTO THE SERVICE, FRAUDULENTLY CONCEALS OR MISREPRESENTS A MATERIAL FACT DISQUALIFYING HIM FOR ENLISTMENT AND HE IS DISCHARGED UPON DISCOVERY BY THE GOVERNMENT OF THE FRAUD, SUCH DISCHARGE CONSTITUTES AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT AND THE MAN IS NOT ENTITLED TO PAY AND ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT. 30 COMP. GEN. 18, B- 101970, JUNE 4, 1951; B-107936, OCTOBER 20, 1954. HE IS, HOWEVER, PERMITTED TO RETAIN THE PAY PAID HIM CURRENTLY WHILE SERVING. 22 COMP. DEC. 538; B-107963, OCTOBER 20, 1954.

ALSO, IT HAS BEEN HELD THAT PAYMENT TO AN ENLISTED MAN FOR ACCUMULATED LEAVE IS AN ALLOWANCE PAYABLE SOLELY ON ACCOUNT OF MILITARY SERVICE. COMP. GEN. 95. IT FOLLOWS THAT THE ISSUANCE TO YOU OF AN HONORABLE DISCHARGE DID NOT ENTITLE YOU TO ANY PAYMENT FOR ACCRUED LEAVE AND THAT THE LEAVE PAYMENT MADE TO YOU BY THE DEPARTMENT OF THE ARMY WAS ERRONEOUS.