B-123874, SEP. 1, 1955

B-123874: Sep 1, 1955

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PAULSON: REFERENCE IS MADE TO A LETTER DATED APRIL 12. THE RECORD SHOWS THAT YOU WERE DISCHARGED UNDER CONDITIONS OTHER THAN HONORABLE UNDER THE PROVISIONS OF SECTION I. YOUR DISCHARGE WAS REVIEWED BY THE ARMY DISCHARGE REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 301 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944. THE HONORABLE DISCHARGE CERTIFICATE WAS ISSUED TO YOU ON JUNE 17. YOUR CLAIM FOR ACCRUED PAY WAS DISALLOWED FOR THE REASON THAT THERE IS NO ENTITLEMENT TO PAY FOR ANY PERIOD SERVED UNDER A FRAUDULENT ENLISTMENT WHEN THE ENLISTMENT IS TERMINATED BECAUSE OF THE FRAUD. ATTACHED TO YOUR AFFIDAVIT IS A CERTIFIED COPY OF AN AFFIDAVIT EXECUTED MAY 8. TO THE EFFECT THAT HE WAS THE RECRUITING OFFICER AT THE TIME OF YOUR ENLISTMENT AND THAT YOUR ENLISTMENT PAPERS AND A POLICE CLEARANCE WERE FORWARDED BY HIM TO THE PROCESSING STATION.

B-123874, SEP. 1, 1955

TO MR. GEORGE J. PAULSON:

REFERENCE IS MADE TO A LETTER DATED APRIL 12, 1955, WRITTEN ON YOUR BEHALF BY MR. B. J. LLOYD, JR., ENCLOSING YOUR AFFIDAVIT EXECUTED FEBRUARY 23, 1955, CONCERNING YOUR CLAIM FOR PAY BELIEVED TO BE DUE AT THE TIME OF YOUR DISCHARGE FROM THE ARMY ON FEBRUARY 23, 1950.

THE RECORD SHOWS THAT YOU WERE DISCHARGED UNDER CONDITIONS OTHER THAN HONORABLE UNDER THE PROVISIONS OF SECTION I, ARMY REGULATIONS 615 366, BY REASON OF FRAUDULENT ENLISTMENT, AN INVESTIGATION HAVING DISCLOSED YOUR CONCEALMENT OF A CRIMINAL RECORD. YOUR DISCHARGE WAS REVIEWED BY THE ARMY DISCHARGE REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 301 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 286, AND BASED ON THE FINDINGS AND RECOMMENDATIONS OF THE BOARD, THE SECRETARY OF THE ARMY DIRECTED THAT YOU BE ISSUED AN HONORABLE DISCHARGE CERTIFICATE. THE HONORABLE DISCHARGE CERTIFICATE WAS ISSUED TO YOU ON JUNE 17, 1953. OUR SETTLEMENT DATED OCTOBER 20, 1954, YOUR CLAIM FOR ACCRUED PAY WAS DISALLOWED FOR THE REASON THAT THERE IS NO ENTITLEMENT TO PAY FOR ANY PERIOD SERVED UNDER A FRAUDULENT ENLISTMENT WHEN THE ENLISTMENT IS TERMINATED BECAUSE OF THE FRAUD.

IN THE AFFIDAVIT EXECUTED FEBRUARY 23, 1955, YOU AVER THAT YOU DID NOT CONCEAL OR MISREPRESENT A MATERIAL FACT, OR DO ANYTHING DISQUALIFYING YOU FOR LEGAL ENLISTMENT. ATTACHED TO YOUR AFFIDAVIT IS A CERTIFIED COPY OF AN AFFIDAVIT EXECUTED MAY 8, 1953, BY MASTER SERGEANT ROBERT A. CLARK, UNITED STATES AIR FORCE, TO THE EFFECT THAT HE WAS THE RECRUITING OFFICER AT THE TIME OF YOUR ENLISTMENT AND THAT YOUR ENLISTMENT PAPERS AND A POLICE CLEARANCE WERE FORWARDED BY HIM TO THE PROCESSING STATION.

IN OUR DECISION OF OCTOBER 24, 1946, 26 COMP. GEN. 265, IT WAS STATED THAT THE APPARENT PURPOSE OF THE PROVISIONS OF LAW REFERRED TO ABOVE PROVIDING FOR THE REVIEW OF DISCHARGES WAS TO CORRECT INJUSTICES DONE AT THE TIME OF DISCHARGE AND THAT IT WOULD APPEAR THAT THE INTENT OF CONGRESS IN THAT RESPECT COULD BE GIVEN COMPLETE EFFECT ONLY BY RECOGNIZING THE RIGHT OF A FORMER OFFICER OR ENLISTED PERSON TO THE BENEFITS HE WOULD HAVE BEEN ENTITLED TO RECEIVE ON DISCHARGE HAD HE ORIGINALLY RECEIVED THE TYPE OF DISCHARGE WHICH THE STATUTORY REVIEW BOARD FINDS HE SHOULD HAVE RECEIVED.

IN YOUR CASE, THE DISALLOWANCE OF YOUR CLAIM FOR THE PAY WHICH REMAINED UNPAID AT THE TIME OF YOUR DISCHARGE WAS PREDICATED NOT ON THE FACT THAT YOU WERE DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS BUT ON THE FACT THAT YOUR ENLISTMENT WAS FRAUDULENT AND WAS TERMINATED BECAUSE OF THE FRAUD. HENCE, EVEN HAD IT BEEN POSSIBLE TO HAVE GIVEN YOU AN HONORABLE DISCHARGE AT THE TIME OF YOUR SEPARATION FROM THE SERVICE ON FEBRUARY 23, 1950, YOU WOULD NOT HAVE BEEN ENTITLED TO THE PAY DUE 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 BY THE DISCHARGE REVIEW BOARD DID NOT CHANGE THE CHARACTER OF YOUR ENLISTMENT.

WHILE YOU HAVE SUBMITTED ADDITIONAL INFORMATION IN SUPPORT OF YOUR VIEW THAT YOUR ENLISTMENT WAS NOT FRAUDULENT, SUCH INFORMATION MAY NOT BE CONSIDERED AS OVERCOMING THE ADMINISTRATIVE REPORTS IN YOUR CASE WHICH CLEARLY SHOW THAT IN THE OPINION OF THE ADJUTANT GENERAL OF THE ARMY YOUR ENLISTMENT WAS FRAUDULENT. THE ADMINISTRATIVE REPORTS ARE BASED UPON EXTENSIVE INVESTIGATION AND MUST BE ACCEPTED IN DETERMINING YOUR RIGHTS TO PAY IN THE ABSENCE OF CLEAR EVIDENCE THAT THEY ARE ERRONEOUS.

WHEN YOU WERE DISCHARGED UPON DISCOVERY BY THE GOVERNMENT OF THE CHARACTER OF YOUR ENLISTMENT, THAT DISCHARGE CONSTITUTED AN AVOIDANCE OF YOUR CONTRACT OF ENLISTMENT AND YOU ARE NOT ENTITLED TO PAY AND ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT. 30 COMP. GEN. 18. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT OF OCTOBER 20, 1954, WAS CORRECT, AND IS SUSTAINED.