B-140512, DEC. 9, 1959

B-140512, DEC. 9, 1959

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO FC USA FORM 0-1232, DATED JULY 14, 1959, RECEIVED FROM THE SETTLEMENTS OPERATIONS BRANCH, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS 49, INDIANA, TRANSMITTING TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT THE CLAIM OF ANTHONY PADUANO, US 51 323 120, FORMER ENLISTED MAN OF THE ARMY OF THE UNITED STATES, FOR MONETARY BENEFITS RESULTING FROM THE CORRECTION OF HIS MILITARY RECORDS UNDER AUTHORITY OF 10 U.S.C. 1552. THE CLAIM WAS FORWARDED HERE FOR SETTLEMENT BECAUSE OF DOUBT AS TO THE LEGALITY OF PAYMENT IN VIEW OF THE DIRECTION OF THE CHIEF OF FINANCE THAT THE SETTLEMENTS OPERATIONS BRANCH NOT "MAKE SETTLEMENT OF PUBLIC LAW 220 CASES WHERE THE SECRETARY OF THE ARMY DIRECTS NO MONEY IS TO BE PAID BY THE DEPARTMENT OF THE ARMY AS A RESULT OF THE CORRECTION OF THE RECORDS.'

THE CORRECTION OF RECORDS STATUTE (10 U.S.C. 1552) CONTEMPLATES THAT PAYMENT OF AMOUNTS FOUND DUE PURSUANT TO THE CORRECTION OF A MILITARY OR NAVAL RECORD THEREUNDER WILL BE MADE, GENERALLY, BY THE DEPARTMENT CONCERNED RATHER THAN ON THE BASIS OF SETTLEMENTS ISSUED BY OUR OFFICE. HENCE, AS STATED IN DECISION OF JULY 30, 1952, 32 COMP. GEN. 61, 63, "IN ANY CASE IN WHICH DOUBT EXISTS AS TO THE LEGALITY OF A PROPOSED PAYMENT, IT WOULD APPEAR THAT SUCH CASE SHOULD BE SUBMITTED HERE FOR ADVANCE DECISION RATHER THAN TRANSMITTED FOR SETTLEMENT AS A CLAIM.' COMPARE 34 COMP. GEN. 7. ACCORDINGLY, THE INSTANT MATTER WILL BE CONSIDERED AS A REQUEST FOR AN ADVANCE DECISION.

IT APPEARS THAT ANTHONY PADUANO WAS INDUCTED INTO THE ARMY OF THE UNITED STATES ON JULY 29, 1954, FOR A TERM OF 24 MONTHS. HE WAS BROUGHT TO TRIAL BY GENERAL COURT MARTIAL ON APRIL 11, 1955, AND CONVICTED OF VIOLATION OF ARTICLE 113 OF THE UNIFORM CODE OF MILITARY JUSTICE. THE SENTENCE, AS APPROVED ON APRIL 26, 1955, WAS THAT MR. PADUANO BE DISHONORABLY DISCHARGED FROM THE SERVICE, FORFEIT ALL PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THE DATE OF THE APPROVAL OF THE SENTENCE AND BE CONFINED AT HARD LABOR FOR ONE YEAR, BUT EXECUTION OF THE DISHONORABLE DISCHARGE WAS SUSPENDED UNTIL HIS RELEASE FROM CONFINEMENT OR UNTIL COMPLETION OF APPELLATE REVIEW, WHICHEVER WAS LATER. HE WAS RELEASED FROM CONFINEMENT AND DISHONORABLY DISCHARGED ON FEBRUARY 1, 1956.

IT FURTHER APPEARS THAT ON JUNE 24, 1957, HIS MILITARY RECORDS WERE DIRECTED TO BE CORRECTED, UNDER AUTHORITY OF 10 U.S.C. 1552, PURSUANT TO A MEMORANDUM SIGNED BY THE ASSISTANT SECRETARY OF THE ARMY WHICH IS, IN PART, AS FOLLOWS:

"1. THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF ANTHONY J. PADUANO BE CORRECTED TO SHOW HIM TO HAVE BEEN SEPARATED ON A CERTIFICATE OF GENERAL DISCHARGE FROM THE ARMY OF THE UNITED STATES, DATED 1 FEBRUARY 1956.

"2. THAT THE DEPARTMENT OF THE ARMY ISSUE TO ANTHONY J. PADUANO A CERTIFICATE OF GENERAL DISCHARGE FROM THE ARMY OF THE UNITED STATES, DATED 1 FEBRUARY 1956, IN LIEU OF THE DISHONORABLE DISCHARGE OF THE SAME DATE NOW HELD BY HIM.

"3. THAT NO MONEY AS A RESULT OF PAST LOSS OF PAY, ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER PECUNIARY BENEFITS BE PAID, NOR SHALL REPAYMENT OF ANY FINE OR FORFEITURE IMPOSED BE MADE, BY THE DEPARTMENT OF THE ARMY, AS A RESULT OF THE FOREGOING CORRECTION OF RECORDS.

"4. THAT TIME SHOWN AS LOST UNDER APPENDIX 2B, SECTION 6 (A), MANUAL FOR COURTS-MARTIAL, 1951, REMAIN UNCHANGED.'

IN A DECISION OF NOVEMBER 19, 1952, 32 COMP. GEN. 242, IT WAS STATED THAT THE AMOUNT TO BE PAID UNDER SUBSECTION 207 (B) OF THE LEGISLATIVE REORGANIZATION ACT, AS AMENDED, PURSUANT TO A CORRECTION OF RECORDS UNDER SUBSECTION 207 (A) OF SUCH ACT (NOW 10 U.S.C. 1552) DEPENDS ON A PROPER APPLICATION OF THE PAY STATUTES TO THE FACTS IN THE CASE A "AND THE CLAIMANT'S STATUS AS FIXED BY HIS CORRECTED RECORDS.' SEE, ALSO, 34 COMP. GEN. 7.

UNDER THE TERMS OF MR. PADUANO'S COURT-MARTIAL SENTENCE, DECREEING FORFEITURE OF ALL PAY AND ALLOWANCES BECOMING DUE ON OR AFTER THE DATE OF APPROVAL BY THE CONVENING AUTHORITY, CONFINEMENT FOR ONE YEAR AND DISHONORABLE DISCHARGE, HE WAS ENTITLED TO NO PAY AFTER SUCH DATE OF APPROVAL OF THE SENTENCE. IN HIS CASE, THE ACTION TAKEN BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS WENT NO FURTHER THAN TO REVIEW HIS DISHONORABLE DISCHARGE AND CHANGE IT TO THE DISCHARGE UNDER HONORABLE CONDITIONS (GENERAL DISCHARGE). THE BOARD DID NOT ATTEMPT TO SET ASIDE HIS GENERAL COURT-MARTIAL SENTENCE, OR TO RESTORE ANY PAY AND ALLOWANCES REQUIRED TO BE FORFEITED UNDER THE TERMS THEREOF, BUT MERELY CORRECTED HIS RECORD AS INDICATED.

IN THE DECISION OF AUGUST 23, 1954, 34 COMP. GEN. 95, IT WAS HELD THAT A DISHONORABLY DISCHARGED ENLISTED MAN WHOSE MILITARY RECORDS WERE CORRECTED TO SHOW HONORABLY DISCHARGE, BUT NOT CORRECTED TO DELETE PAY AND ALLOWANCE FORFEITURE PROVISIONS OF HIS COURT-MARTIAL SENTENCE, IS ENTITLED TO TRAVEL ALLOWANCE AND MUSTERING-OUT PAY WHICH ARE INCIDENT TO A DISCHARGE UNDER HONORABLE CONDITIONS. ACCORDINGLY, PAYMENT MAY BE MADE, ON A PROPERLY PREPARED VOUCHER, OF MUSTERING-OUT PAY AND TRAVEL ALLOWANCE ON DISCHARGE, LESS ANY AMOUNT PREVIOUSLY PAID TO MR. PADUANO IN LIEU OF TRAVEL ALLOWANCE UPON HIS DISHONORABLE DISCHARGE FROM THE ARMY ON FEBRUARY 1, 1956, AND DONATION ON RELEASE FROM CONFINEMENT. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER UPON WHICH PAYMENT IS MADE.