B-142953, JUN. 17, 1960

B-142953, JUN. 17, 1960

TO MR. ISAAC TURMAN:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 11, 1960, IN WHICH YOU INDICATE THAT WHEN YOU WERE DISCHARGED FROM THE ARMY ON DECEMBER 8, 1944, YOU RECEIVED A DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS AND THAT YOU HAVE BEEN DENIED CERTAIN VETERANS' BENEFITS, ETC., TO WHICH YOU WOULD HAVE BEEN ENTITLED IF YOU HAD RECEIVED AN HONORABLE DISCHARGE. WHILE YOU DO NOT SPECIFICALLY SO STATE, IT APPEARS THAT YOU WISH US TO REVIEW AND CHANGE THE TYPE AND NATURE OF YOUR DISCHARGE SO THAT YOU WILL BE ELIGIBLE TO RECEIVE SUCH BENEFITS, ETC.

YOU ARE ADVISED THAT OUR OFFICE HAS NO JURISDICTION TO REVIEW THE NATURE AND TYPE OF A DISCHARGE GIVEN TO ANY ARMY ENLISTED MAN. THE APPLICABLE STATUTORY PROVISIONS RELATING TO CORRECTION OF MILITARY RECORDS ARE CONTAINED IN SECTIONS 1552 AND 1553 OF TITLE 10 OF THE UNITED STATES CODE. SECTION 1552 IS, IN PERTINENT PART, AS FOLLOWS:

"/A) THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF CIVILIANS OF THE CONSECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. * * * EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.'

SECTION 1553 IS, IN PERTINENT PART, AS FOLLOWS:

"/A) THERE IS IN EACH MILITARY DEPARTMENT, AND IN THE COAST GUARD WHEN IT IS NOT OPERATING AS A SERVICE IN THE NAVY, A BOARD OF REVIEW ESTABLISHED BY THE SECRETARY OF THAT DEPARTMENT AFTER CONFERENCE WITH THE ADMINISTRATOR OF VETERANS' AFFAIRS. EACH SUCH BOARD HAS FIVE MEMBERS, AND SHALL REVIEW, ON ITS OWN MOTION, UPON THE REQUEST OF ANY FORMER MEMBER OF AN ARMED FORCE * * * THE TYPE AND NATURE OF THE DISCHARGE OR DISMISSAL OF SUCH MEMBER OR FORMER MEMBER, UNLESS SUCH DISCHARGE OR DISMISSAL RESULTED FROM THE SENTENCE OF A GENERAL COURT MARTIAL. SUCH REVIEW SHALL BE BASED UPON ALL AVAILABLE RECORDS OF THE MILITARY DEPARTMENT CONCERNED, OR THE COAST GUARD, RELATING TO THE MEMBER OR FORMER MEMBER, AND SUCH OTHER EVIDENCE AS MAY BE PRESENTED. WITNESSES SHALL BE PERMITTED TO PRESENT TESTIMONY EITHER IN PERSON OR BY AFFIDAVIT, AND THE PERSON REQUESTING REVIEW SHALL BE ALLOWED TO APPEAR BEFORE SUCH BOARD IN PERSON OR BY COUNSEL.

"/B) EACH BOARD SHALL HAVE AUTHORITY, EXCEPT IN THE CASE OF A DISCHARGE OR DISMISSAL RESULTING FROM THE SENTENCE OF A GENERAL COURT MARTIAL, TO CHANGE, CORRECT, OR MODIFY ANY DISCHARGE OR DISMISSAL, AND TO ISSUE A NEW DISCHARGE IN ACCORD WITH THE FACTS PRESENTED TO THE BOARD. THE FINDINGS OF EACH BOARD SHALL BE SUBJECT TO REVIEW ONLY BY THE SECRETARY CONCERNED.'

THUS, ANY REVIEW OF THE TYPE AND NATURE OF YOUR DISCHARGE MAY BE MADE ONLY BY THE SECRETARY OF THE ARMY AND THE BOARDS CONSTITUTED PURSUANT TO THE QUOTED STATUTORY PROVISIONS. IT APPEARS FROM THE EVIDENCE OF RECORD THAT NO FAVORABLE ACTION HAS BEEN TAKEN ON YOUR CASE UNDER THOSE STATUTORY PROVISIONS.

OUR RECORDS SHOW THAT ON MARCH 16, 1960, THERE WAS RECEIVED IN OUR OFFICE A COMMUNICATION FROM YOU WHICH WAS CONSIDERED BY US AS A CLAIM FOR PAY AND ALLOWANCES BELIEVED DUE YOU AS OF DECEMBER 8, 1944, THE DATE OF YOUR DISCHARGE FROM THE ARMY. OUR CLAIMS DIVISION, ON THE BASIS OF THE PRESENT RECORD, CORRECTLY ADVISED YOU IN LETTER DATED APRIL 26, 1960, AS TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AND THAT, UNDER SUCH PROVISIONS, WE ARE PRECLUDED FROM CONSIDERING SUCH CLAIM, SINCE IT WAS NOT RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED.