B-148502, APRIL 26, 1962, 41 COMP. GEN. 703

B-148502, APRIL 26, 1962, 41 COMP. GEN. 703

MILITARY PERSONNEL - RECORD CORRECTION - DISCHARGE CHANGE EFFECT ON REDUCTION IN GRADE--- ENLISTMENTS - REENLISTMENTS - FORMER GRADE ENTITLEMENT THE CHANGE OF AN UNDESIRABLE DISCHARGE TO GENERAL UNDER HONORABLE CONDITIONS UNDER 10 U.S.C. 1553 FOR AN ARMY ENLISTED MEMBER WHO AT THE SAME TIME HAD BEEN REDUCED IN GRADE FROM MASTER SERGEANT TO PRIVATE, FIRST CLASS, PURSUANT TO THE MANDATORY PROVISIONS IN THE REGULATIONS APPLICABLE TO UNDESIRABLE DISCHARGES, REMOVES THE GROUND FOR THE REDUCTION IN GRADE AND MAKES THE REDUCTION A NULLITY SO THAT RESTORATION TO THE GRADE OF MASTER SERGEANT IS REQUIRED; THEREFORE, PAYMENT OF PAY AND ALLOWANCES AND ACCRUED UNUSED LEAVE AT THE TIME OF DISCHARGE SHOULD BE MADE ON THE BASIS OF THE MASTER SERGEANT GRADE--- THE GRADE IN WHICH THE MEMBER WAS SERVING AT THE TIME OF DISCHARGE. THE CHANGE OF AN UNDESIRABLE DISCHARGE TO GENERAL UNDER HONORABLE CONDITIONS PURSUANT TO 10 U.S.C. 1553, FOR A FORMER ARMY ENLISTED MEMBER WHO REENLISTED IN THE GRADE OF PRIVATE, E-2, FOUR YEARS AFTER THE UNDESIRABLE DISCHARGE AND MANDATORY REDUCTION IN GRADE FROM MASTER SERGEANT TO PRIVATE, FIRST CLASS, DOES NOT BRING THE REENLISTMENT WITHIN TIME LIMITATION TO ENTITLE THE MEMBER TO BE REENLISTED IN THE HIGHER GRADE; THEREFORE, THE REENLISTMENT BEING A VOLUNTARY CONTRACT TO SERVE IN THE GRADE OF PRIVATE, E-2, DOES NOT ENTITLE THE MEMBER TO PAY AND ALLOWANCES OF A HIGHER GRADE.

TO COLONEL WEBSTER MILLS, DEPARTMENT OF THE ARMY, APRIL 26, 1962:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1962, WITH ATTACHED VOUCHER, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE DO NO. A-640, REQUESTING AN ADVANCE DECISION AS TO THE GRADE ON WHICH PAY AND ALLOWANCES AND LUMP-SUM LEAVE SHOULD BE COMPUTED IN THE CASE OF FRANCIS F. ORCHARD, RA 20,117,479, INCIDENT TO DISCHARGE ON MARCH 14, 1955, AND FOR THE PERIOD FROM JUNE 9, 1959, TO MAY 2, 1960, FOLLOWING REENLISTMENT ON JUNE 9, 1959.

THE RECORD SHOWS THAT FRANCIS F. ORCHARD HAD HELD THE GRADE OF MASTER SERGEANT SINCE JUNE 3, 1947, UNTIL HE WAS DISCHARGED WITH AN UNDESIRABLE DISCHARGE ON MARCH 14, 1955, IN THE GRADE OF PRIVATE E-1. FOLLOWING THE CHANGE IN THE CHARACTER OF HIS DISCHARGE FROM " UNDESIRABLE" TO " GENERAL UNDER HONORABLE CONDITIONS" MADE ON MAY 8, 1959, BY THE ARMY DISCHARGE REVIEW BOARD ACTING UNDER AUTHORITY OF 10 U.S.C. 1553, HE WAS PAID FOR 25 DAYS OF LEAVE ACCRUED AND UNUSED AT THE DATE OF HIS DISCHARGE IN 1955 AND HE WAS REENLISTED ON JUNE 9, 1959, IN THE GRADE OF PRIVATE E-2. HE WAS PROMOTED TO THE GRADE OF PRIVATE, FIRST CLASS, E-3, ON AUGUST 10, 1959, AND ON MAY 3, 1960, HE WAS RESTORED TO HIS FORMER GRADE OF MASTER SERGEANT. THE QUESTIONS PRESENTED BY YOU ARE AS OLLOWS:

A. IS THE MEMBER ENTITLED TO THE DIFFERENCE IN THE 25 DAYS ACCRUED LEAVE, RELATIVE TO HIS DISCHARGE ON 14 MARCH 1955, BETWEEN AN E-7 WITH DEPENDENT AND AN E-1?

B. IS HE ENTITLED TO THE DIFFERENCES IN PAY AND ALLOWANCES BETWEEN AN E-7 AND E-1 FOR 14 MARCH 1955?

C. IS HE ENTITLED TO THE DIFFERENCES IN PAY AND ALLOWANCES BETWEEN AN E-7 AND E-2 AND E-3 FOR THE RESPECTIVE PERIODS CITED IN PARAGRAPH 3 ABOVE ( SUBSEQUENT TO REENLISTMENT ON JUNE 9, 1959/?

YOU HAVE NOT CITED THE AUTHORITY UNDER WHICH SERGEANT ORCHARD WAS REDUCED TO THE GRADE OF PRIVATE ON MARCH 14, 1955. IF THE REDUCTION IN GRADE WAS ACCOMPLISHED PURSUANT TO THE SENTENCE OF A COURT-MARTIAL, THE ACTION OF THE ARMY DISCHARGE REVIEW BOARD COULD HAVE NO EFFECT ON SUCH REDUCTION. ASSUMING, HOWEVER, THAT THE REDUCTION IN GRADE WAS MADE PURSUANT TO THE MANDATORY PROVISIONS OF THE ARMY REGULATIONS REQUIRING SUCH ACTION IN THE CASE OF A MEMBER TO BE SEPARATED WITH AN UNDESIRABLE DISCHARGE (SEE PAR. 25 OF AR 615-366, FEBRUARY 5, 1954; PAR. 4.1 OF AR 615-368, C-1, MAY 17, 1949; AND PAR. 11 OF AR 635-89, JANUARY 21, 1955, IN EFFECT AT THE TIME OF SERGEANT ORCHARD'S DISCHARGE), THE CHANGE IN THE CHARACTER OF HIS DISCHARGE FROM " UNDESIRABLE" TO " GENERAL UNDER HONORABLE CONDITIONS" REMOVED THE GROUND FOR THE REDUCTION, RENDERED THAT REDUCTION A NULLITY AND REQUIRED RESTORATION TO THE GRADE FROM WHICH HE HAD BEEN ERRONEOUSLY REDUCED. SEE 26 COMP. GEN. 265. IN THE LATTER EVENT, THERE WOULD BE NO AUTHORITY FOR COMPUTING HIS PAY AND ALLOWANCES FOR MARCH 14, 1955, AND FOR THE UNUSED LEAVE STANDING TO HIS CREDIT AT THAT TIME ON ANY GRADE OTHER THAN THAT IN WHICH HE WAS ACTUALLY SERVING, MASTER SERGEANT E-7. QUESTIONS A AND B ARE ANSWERED ACCORDINGLY.

PRESUMABLY SERGEANT ORCHARD'S DISCHARGE CAME WITHIN ONE OF THE CLASSIFICATIONS LISTED IN AR 615-120, DATED MARCH 31, 1954, MAKING HIM INELIGIBLE TO REENLIST, AND THE CHANGE IN THE CHARACTER OF HIS DISCHARGE FROM " UNDESIRABLE" TO " GENERAL UNDER HONORABLE CONDITIONS," APPROVED BY THE ARMY DISCHARGE REVIEW BOARD ON MAY 8, 1959, REMOVED THE ABOVE RESTRICTION. HE REENLISTED IN THE REGULAR ARMY ON JUNE 9, 1959, IN THE GRADE OF PRIVATE E-2.

AUTHORITY FOR ENLISTMENTS AND REENLISTMENTS IN THE REGULAR ARMY IS CONTAINED IN 10 U.S.C. 3256, WHICH INCLUDES THE FOLLOWING PROVISIONS RELATIVE TO THE GRADE IN WHICH A PERSON SHALL BE ENLISTED:

(D) SUBJECT TO SUBSECTION (E), A PERSON IS ENLISTED IN THE REGULAR ARMY IN THE GRADE PRESCRIBED BY THE SECRETARY.

(E) A PERSON WHO, UPON HIS DISCHARGE FROM THE REGULAR ARMY, IS RECOMMENDED FOR REENLISTMENT IS ENTITLED TO BE REENLISTED IN THE GRADE HELD BY HIM WHEN DISCHARGED, IF HE APPLIES THEREFOR WITHIN A PERIOD TO BE SPECIFIED BY THE SECRETARY, BUT NOT LATER THAN THREE MONTHS AFTER HIS DISCHARGE. HOWEVER, A PERSON WHO HAS BEEN DISCHARGED FROM THE REGULAR ARMY BECAUSE OF THE ACCEPTANCE OF HIS RESIGNATION IS NOT ENTITLED, UPON REENLISTMENT, TO THE GRADE HELD BY HIM WHEN DISCHARGED.

THE PERIOD SPECIFIED BY THE SECRETARY WITHIN WHICH A PERSON MUST REENLIST IN ORDER TO BE REENLISTED IN THE GRADE HELD BY HIM AT TIME OF DISCHARGE (E -7) IS 90 DAYS. SEE PAR. 20C OF AR 601-210, APRIL 27, 1959. THIS REGULATION PROVIDES THAT THE GRADE IN WHICH A PERSON SHALL BE REENLISTED IS E-2, REGARDLESS OF THE GRADE IN WHICH HE WAS PREVIOUSLY SEPARATED, IF HIS REENLISTMENT OCCURS MORE THAN 24 MONTHS AFTER HIS LAST DISCHARGE.

THE STATUTORY AUTHORITY UNDER WHICH THE ARMY DISCHARGE REVIEW BOARD ACTED IS CONTAINED IN 10 U.S.C. 1553, WHICH PROVIDES THAT A BOARD SET UP THEREUNDER SHALL REVIEW, AT THE REQUEST OF THE FORMER MEMBER OR ON ITS OWN MOTION, THE TYPE AND NATURE OF THE DISCHARGE OR DISMISSAL OF SUCH FORMER MEMBER, UNLESS THE DISCHARGE OR DISMISSAL RESULTED FROM THE SENTENCE OF A GENERAL COURT-MARTIAL. THAT BOARD IS AUTHORIZED TO CHANGE, CORRECT, OR MODIFY ANY DISCHARGE OR DISMISSAL COMING BEFORE IT FOR REVIEW AND TO ISSUE A NEW DISCHARGE IN ACCORDANCE WITH THE FACTS PRESENTED. THE BOARD, BEING LIMITED IN AUTHORITY TO ACTING UPON THE TYPE OR NATURE OF THE DISCHARGE OR DISMISSAL, HAS NO POWER TO REVOKE A DISCHARGE OR CHANGE THE EFFECTIVE DATE THEREOF. THE CHANGE IN CHARACTER OF SERGEANT ORCHARD'S 1955 DISCHARGE FROM " UNDESIRABLE" TO " GENERAL UNDER HONORABLE CONDITIONS" BY THE ARMY DISCHARGE REVIEW BOARD IN 1959, THEREFORE, COULD NOT OPERATE TO BRING HIS REENLISTMENT ON JUNE 9, 1959, WITHIN 90 DAYS OF HIS PREVIOUS DISCHARGE SO AS TO ENTITLE HIM TO BE REENLISTED IN THE GRADE OF MASTER SERGEANT E-7.

THE REENLISTMENT OF THE FORMER MEMBER ON JUNE 9, 1959, IN THE GRADE OF PRIVATE E-2 WAS A VOLUNTARY CONTRACT ENTERED INTO BETWEEN HIM AND THE UNITED STATES BY WHICH HE AGREED TO SERVE IN AND RECEIVE THE PAY OF THAT GRADE UNTIL SUCH TIME AS HE WOULD RECEIVE A PROMOTION (OR DEMOTION) TO A DIFFERENT GRADE. IT IS WELL SETTLED THAT AN ENLISTED MAN IS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF THE GRADE ACTUALLY HELD BY HIM. SEE 15 COMP. GEN. 935. QUESTION C, THEREFORE, IS ANSWERED IN THE NEGATIVE.

SINCE PAYMENT ON THE VOUCHER, AS PRESENTED, IS NOT AUTHORIZED, THE VOUCHER IS RETAINED HERE.