B-131928, AUG. 22, 1957

B-131928, AUG. 22, 1957

TO CAPTAIN V. E. KIRKMAN, F.C., FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 9, 1957, WITH ENCLOSURES, TRANSMITTED HERE BY SECOND ENDORSEMENT DATED MAY 17, 1957, OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, REQUESTING DECISION AS TO WHETHER PRIVATE FRANK J. MARCHESE, UNITED STATES ARMY, IS ENTITLED TO (1) MUSTERING OUT PAY; (2) PAYMENT FOR ACCRUED LEAVE OR OPTION TO CARRY LEAVE FORWARD; (3) TRAVEL PAY FROM POINT OF DISCHARGE OR SEPARATION TO HOME OF RECORD OR PLACE OF INDUCTION; AND (4) REENLISTMENT BONUS, UNDER THE CIRCUMSTANCES APPEARING IN THE CASE.

IT APPEARS THAT THE ENLISTED MAN WAS INDUCTED INTO THE ARMY ON MAY 11, 1954, TO SERVE FOR A PERIOD OF TWO YEARS. ALTHOUGH THE OBLIGATED PERIOD OF SERVICE WAS COMPLETED ON MAY 10, 1956, HE WAS RETAINED IN THE SERVICE FROM MAY 11, 1956, THROUGH OCTOBER 21, 1956 (NOT IN CONFINEMENT) UNDER INVESTIGATION AND/OR WITH CHARGES PENDING AGAINST HIM. ON OCTOBER 22, 1956, THE ENLISTED MAN WAS TRIED AND FOUND GUILTY BY A GENERAL COURT- MARTIAL AND SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE CONFINED AT HARD LABOR FOR THREE YEARS. ON DECEMBER 4, 1956, THE CONVENING AUTHORITY APPROVED ONLY SO MUCH OF THE SENTENCE AS PROVIDED FOR DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES, AND CONFINEMENT AT HARD LABOR FOR ONE YEAR, BUT SUSPENDED THE EXECUTION OF THE DISHONORABLE DISCHARGE UNTIL THE PRISONER'S RELEASE FROM CONFINEMENT OR UNTIL COMPLETION OF APPELLATE REVIEW, WHICHEVER WAS LATER. THE FORFEITURES WERE TO APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER DECEMBER 4, 1956.

IT FURTHER APPEARS FROM GENERAL COURT-MARTIAL ORDER NO. 167, DATED MARCH 19, 1957, HEADQUARTERS 5TH INFANTRY DIVISION, FORT ORD, CALIFORNIA, THAT THE COURT-MARTIAL SENTENCE AS APPROVED BY THE CONVENING AUTHORITY WAS AFFIRMED BY A BOARD OF REVIEW, AND THE SENTENCE WAS ORDERED EXECUTED, BUT THE EXECUTION OF THE DISHONORABLE DISCHARGE WAS SUSPENDED UNTIL THE ENLISTED MAN'S RELEASE FROM CONFINEMENT, AT WHICH TIME THE SENTENCE TO DISHONORABLE DISCHARGE WAS TO BE REMITTED WITHOUT FURTHER ACTION. ADDITION THIS ORDER REMITTED THE UNEXECUTED PORTION OF THE SENTENCE PERTAINING TO CONFINEMENT AND ALSO PROVIDED THAT THE PORTION OF THE SENTENCE PERTAINING TO "FORFEITURES AND ALLOWANCES" WOULD BE INAPPLICABLE ON AND AFTER MARCH 19, 1957.

SPECIAL ORDERS NO. 56, DATED MARCH 19, 1957, HEADQUARTERS BRANCH UNITED STATES ARMY DISCIPLINARY BARRACKS, LOMPOC, CALIFORNIA, PURSUANT TO THE ORDERS OF MARCH 19, 1957, DIRECTED THE PRISONER'S RELEASE FROM CONFINEMENT AND RESTORED HIM TO DUTY IN THE GRADE OF PRIVATE-1, EFFECTIVE MARCH 20, 1957. BY PARAGRAPH 17 OF SPECIAL ORDERS NO. 57, DATED MARCH 20, 1957, ISSUED AT THE SAME STATION, THE ENLISTED MAN WAS ORDERED RELEASED FROM ASSIGNMENT AND DISCHARGED FROM THE SERVICE ON MARCH 21, 1957. THE ORDER ALSO PROVIDED THAT HE WOULD BE REENLISTED ON MARCH 23, 1957, FOR A PERIOD OF THREE YEARS. IT IS STATED THAT THE REMISSION OF THE UNEXECUTED PORTION OF THE AFFIRMED SENTENCE WAS EFFECTED MARCH 19, 1957; ON WHICH DATE THE ENLISTED MAN WAS RELEASED FROM CONFINEMENT; THAT ON MARCH 21, 1957, HE WAS GRANTED AN HONORABLE DISCHARGE; AND THAT ON MARCH 22, 1957, HE WAS ENLISTED IN THE REGULAR ARMY FOR A PERIOD OF THREE YEARS.

IT IS INDICATED THAT YOU HAVE SOME DOUBT WHETHER THE ENLISTED MAN MAY BE CONSIDERED TO HAVE BEEN "DISCHARGED UNDER HONORABLE CONDITIONS" ON MARCH 21, 1957, FOR THE PURPOSES OF THE LAWS AND REGULATIONS PERTAINING TO MUSTERING-OUT PAY, ACCRUED LEAVE PAYMENT OR OPTION TO CARRY LEAVE FORWARD, AND TRAVEL PAY. YOU ALSO SUGGEST THAT SINCE PARAGRAPH 3C, AR 600-332 INDICATES THAT THE MEMBER MUST ENLIST OR REENLIST BEFORE THE HONORABLE DISCHARGE IS GIVEN, THERE IS SOME DOUBT WHETHER THERE WAS A COMPLETE SEPARATION FOR THE PURPOSES OF PAYING TRAVEL PAY AND ACCRUED LEAVE AND WHETHER THERE WAS A VOLUNTARY REENLISTMENT WITHIN THE CONTEMPLATION OF THE REGULATIONS RELATING TO THE PAYMENT OF REENLISTMENT BONUS.

PARAGRAPH 3C AND 3D, AR 600-332, JANUARY 4, 1951, PROVIDE IN PART AS FOLLOWS:

"C. IN THE CASES OF PRISONERS INDUCTED UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 (PL 783, 76TH CONG.; WD BUL. 25, 1940; 54 STAT. 885; 50 U.S.C. APP. 301 ET SEQ) AS AMENDED, OR IN WHICH THE OBLIGATION TO SERVE WAS COMPLETED PRIOR TO THE PROMULGATION OF THE ORDER DIRECTING EXECUTION OF THE SENTENCE, THE PRISONER WILL, UPON WRITTEN APPLICATION AND ACCEPTANCE THEREOF, BE ENLISTED IN THE REGULAR ARMY FOR SUCH PERIOD AS HE MAY ELECT WITHIN THE PROVISIONS OF SR 615 SERIES. PRISONERS IN THESE CATEGORIES WITH SUSPENDED DISHONORABLE OR BAD CONDUCT DISCHARGES WILL HAVE SUCH DISCHARGES REMITTED AND WILL BE FURNISHED UNDESIRABLE DISCHARGES FROM THEIR CURRENT SERVICE UPON ENLISTMENT FOR A NEW TERM OF SERVICE. APPLICATIONS FOR WAIVERS OF DISHONORABLE OR BAD CONDUCT DISCHARGES OR UNDESIRABLE DISCHARGES ISSUED IN LIEU OF DISHONORABLE OR BAD CONDUCT DISCHARGES AS BARS TO ENLISTMENT AND FOR RESTORATION TO DUTY BY ENLISTMENT IN THE REGULAR ARMY, TOGETHER WITH APPROPRIATE RECOMMENDATIONS, WILL BE FORWARDED TO THE ADJUTANT GENERAL FOR ACTION IN ALL CASES.

"D. WHEN A PRISONER IS RESTORED TO DUTY TO COMPLETE HIS FORMER ENLISTMENT OR OBLIGATION TO SERVE FOLLOWING EXECUTION OF HIS DISHONORABLE DISCHARGE OR BAD CONDUCT DISCHARGE, OR WHEN HE IS FURNISHED AN UNDESIRABLE DISCHARGE AND ENLISTED OR REENLISTED IN THE REGULAR ARMY BECAUSE HE FALLS WITHIN ONE OF THE CATEGORIES DESCRIBED IN C ABOVE, A NEW SERVICE RECORD WILL BE OPENED. SUCH PRISONERS WILL BE INFORMED THAT RESTORATION TO DUTY IN THIS MANNER DOES NOT CONSTITUTE A REVIVIFICATION OF THE FORMER ENLISTMENT OR OBLIGATION OF SERVICE FROM WHICH THEY HAVE BEEN DISCHARGED, BUT IS IN EFFECT A NEW TERM OF SERVICE EQUAL TO THE UNSERVED PORTION OF THE PRIOR ENLISTMENT OR OBLIGATION OF SERVICE OR THE TERM OF THE NEW ENLISTMENT, AS THE CASE MAY BE. * * *"

UNDER THE CIRCUMSTANCES HERE CONSIDERED AND IN VIEW OF THE QUOTED REGULATIONS, WE CANNOT CONCLUDE THAT THE DISCHARGE WAS OBTAINED FOR THE PURPOSE OF REENLISTMENT. RATHER, IT APPEARS THAT THE TERM OF SERVICE HAD BEEN CONCLUDED; THAT THE ENLISTED MAN WAS TO BE DISCHARGED, ALBEIT DISHONORABLY, UPON COMPLETION OF HIS SENTENCE OF CONFINEMENT, AND THAT THE REQUEST TO BE PERMITTED TO REENLIST WAS FOR THE PURPOSE OF AVOIDING A DISHONORABLE DISCHARGE AND TO OBTAIN AN HONORABLE DISCHARGE. THE ENLISTED MEMBER COMPLETED HIS OBLIGATORY PERIOD OF SERVICE UNDER THE SELECTIVE SERVICE AND TRAINING ACT, WAS RESTORED TO DUTY IN THE GRADE OF PRIVATE, HONORABLY DISCHARGED ON MARCH 21, 1957, AND REENLISTED IN THE REGULAR ARMY ON MARCH 22, 1957. UNDER SUCH CIRCUMSTANCES, EACH OF YOUR QUESTIONS IS ANSWERED IN THE AFFIRMATIVE, AND PAYMENT MAY BE MADE TO HIM, IF OTHERWISE CORRECT. THE MILITARY PAY ORDER SUBMITTED WITH YOUR LETTER IS RETURNED, IT BEING NOTED THAT THE ENLISTED MAN HAS REQUESTED THAT HIS ACCRUED LEAVE BE CARRIED FORWARD.