B-140287, AUGUST 25, 1959, 39 COMP. GEN. 129

B-140287, AUGUST 25, 1959, 39 COMP. GEN. 129

MILITARY PERSONNEL - RETIRED ENLISTED MEMBERS - DISCHARGE EFFECT AN UNDESIRABLE DISCHARGE ISSUED TO A RETIRED ENLISTED MEMBER OF THE REGULAR MARINE CORPS UNDER AUTHORITY IN SECTION 6 OF THE NAVAL RESERVE ACT OF 1938, WHICH WAS SUBSEQUENTLY DETERMINED TO BE INAPPLICABLE TO ENLISTED MEN ON THE RETIRED LIST OF THE REGULAR MARINE CORPS, IS AN INVALID DISCHARGE ISSUED WITHOUT AUTHORITY OF LAW AND UNLIKE A VALID UNDESIRABLE DISCHARGE DOES NOT TERMINATE THE MEMBER'S STATUS; THEREFORE, RETIRED PAY IS PAYABLE TO THE MEMBER AFTER ISSUANCE OF SUCH A DISCHARGE.

TO CAPTAIN JOHN A. RAPP, UNITED STATES MARINE CORPS, AUGUST 25, 1959:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 6, 1959, WITH ENCLOSURES, FORWARDED HERE BY ENDORSEMENT DATED JULY 15, 1959, AND LETTER DATED JULY 23, 1959, OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING DECISION WHETHER PAYMENT OF RETIRED PAY MAY BE MADE TO TECHNICAL SERGEANT CLARENCE R. ETHERIDGE, UNITED STATES MARINE CORPS, RETIRED, FROM OCTOBER 11, 1950. THE REQUEST HAS BEEN ALLOCATED SUBMISSION NO. DO-MC-434 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT ETHERIDGE WAS TRANSFERRED FROM THE UNITED STATES MARINE CORPS TO THE FLEET MARINE CORPS RESERVE ON JULY 9, 1947, AS A TECHNICAL SERGEANT, AND ON AUGUST 1, 1947, HE WAS TRANSFERRED TO THE RETIRED LIST OF ENLISTED MEN OF THE REGULAR MARINE CORPS BY REASON OF PHYSICAL DISABILITY. ON OCTOBER 11, 1950, HE WAS DISCHARGED AS UNDESIRABLE BY REASON OF MISCONDUCT (CONVENTION BY CIVIL AUTHORITIES OF A CRIMINAL OFFENSE), PURSUANT TO THE STATED AUTHORITY GRANTED THE SECRETARY OF THE NAVY UNDER SECTION 6 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 34 U.S.C. 853D (REPEALED IN 1952). ETHERIDGE HAD BEEN CONVICTED ON DECEMBER 29, 1947, OF SECOND DEGREE MURDER.

IT FURTHER APPEARS THAT ETHERIDGE ADDRESSED THE BOARD FOR CORRECTION OF NAVAL RECORDS REQUESTING THAT HIS OFFICIAL RECORD BE CORRECTED SO AS TO RESULT IN HIS RESTORATION TO THE RETIRED LIST OF ENLISTED MEN OF THE REGULAR MARINE CORPS, AS OF THE DATE OF HIS DISCHARGE, OCTOBER 11, 1950. THE BOARD REQUESTED AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY AS TO THE LEGALITY OF THE DISCHARGE. THE JUDGE ADVOCATE GENERAL ON MARCH 30, 1959, RENDERED AN OPINION TO THE EFFECT THAT ETHERIDGE WAS NOT LEGALLY DISCHARGED FROM THE SERVICE, SINCE THE CITED AUTHORITY, SECTION 6 OF THE NAVAL RESERVE ACT OF 1938, DOES NOT RELATE TO RETIRED ENLISTED MEN WHO ARE CARRIED ON THE RETIRED LIST OF ENLISTED MEN OF THE REGULAR SERVICE, AND THAT NO OTHER AUTHORITY FOR SUCH A DISCHARGE EXISTS. PURSUANT TO THE REQUEST OF THE BOARD THE UNDESIRABLE DISCHARGE WAS CANCELED, AND THE ENLISTED MAN WAS RESTORED TO THE RETIRED LIST OF ENLISTED MEN OF THE MARINE CORPS BY REASON OF PHYSICAL DISABILITY EFFECTIVE OCTOBER 11, 1950.

YOU STATE THAT YOUR DOUBT AS TO THE PROPRIETY OF PAYMENT IN THE PRESENT MATTER ARISES FROM THE SEEMING CONFLICT BETWEEN OUR VIEWS, AS EXPRESSED IN OUR DECISION OF JANUARY 29, 1959, B-138082, 38 COMP. GEN. 523, AND THE VIEWS OF THE JUDGE ADVOCATE GENERAL EXPRESSED IN HIS OPINION TO THE BOARD FOR CORRECTION OF NAVAL RECORDS.

IN OUR DECISION OF JANUARY 29, 1959, 38 COMP. GEN. 523, WE HELD THAT:

SINCE A DISCHARGE OF AN ENLISTED MAN ON THE RETIRED LIST OF THE REGULAR NAVY TERMINATES THE STATUS ON WHICH HIS RETIRED PAY DEPENDS, THE DISCHARGE CERTIFICATES EVIDENCING SEPARATION FROM THE NAVAL SERVICE, ISSUED TO THE ENLISTED MEN HERE INVOLVED, TERMINATED THEIR RIGHT TO DISABILITY RETIRED PAY AS OF THE DAY THE CERTIFICATES WERE ISSUED AND THE MEN WERE NOT ENTITLED TO RETIRED PAY SUBSEQUENT TO THEIR DISCHARGE. THE FACT THAT THE CHARACTER OF THE DISCHARGE OF ONE ENLISTED MAN WAS SUBSEQUENTLY CHANGED, DID NOT AFFECT HIS STATUS INSOFAR AS SEPARATION FROM THE SERVICE IS CONCERNED.

IN HIS LETTER OF JULY 23, 1959, FORWARDING YOUR REQUEST FOR ADVANCE DECISION HERE, THE JUDGE ADVOCATE GENERAL OF THE NAVY STATED THAT IN OUR DECISION OF JANUARY 29, 1959 "THERE WAS NO QUESTION AS TO THE VALIDITY OF THE DISCHARGES ISSUED TO THE THREE RETIRED ENLISTED PERSONS WITH WHOM THE DECISION WAS CONCERNED. TWO DISCHARGES WERE ISSUED UPON WRITTEN REQUEST OF THE MEMBERS TO ESCAPE TRIAL BY GENERAL COURT MARTIAL. THE OTHER DISCHARGE WAS EFFECTED PURSUANT TO THE SENTENCE OF A SUMMARY COURT- MARTIAL.'

AS STATED IN JUDGE ADVOCATE GENERAL'S OPINION TO THE BOARD FOR CORRECTION OF NAVAL RECORDS, THERE APPEARS NO AUTHORITY FOR THE ISSUANCE OF AN ADMINISTRATIVE UNDESIRABLE DISCHARGE TO AN ENLISTED MAN ON THE RETIRED LIST OF THE REGULAR MARINE CORPS. HENCE, THE JUDGE ADVOCATE GENERAL'S ANALYSIS OF OUR DECISION 38 COMP. GEN. 523, IN ITS APPLICATION TO THE PRESENT MATTER, IS CORRECT, AND THAT DECISION AFFORDS NO BASIS FOR DENYING THE PRESENT CLAIMANT HIS RETIRED PAY FROM OCTOBER 11, 1950.

ACCORDINGLY, PAYMENT OF RETIRED PAY IS AUTHORIZED FOR THE PERIOD AFTER OCTOBER 11, 1950, IF OTHERWISE PROPER.