B-150738, FEB. 15, 1963

B-150738: Feb 15, 1963

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WE HAVE BEEN INFORMED THAT YOU ENLISTED IN THE UNITED STATES ARMY ON SEPTEMBER 22. THAT YOU WERE DISCHARGED OTHER THAN HONORABLY ON AUGUST 19. THAT YOU WERE LAST PAID IN AUGUST 1920 FOR JULY 1920. DIRECTED THAT ALL DEPARTMENT OF THE ARMY RECORDS BE CORRECTED TO SHOW THAT YOU WERE SEPARATED ON AND ISSUED A CERTIFICATE OF HONORABLE DISCHARGE ON AUGUST 19. YOU WERE NOT ELIGIBLE FOR ENLISTMENT IN THE UNITED STATES ARMY AND HAVING CONCEALED SUCH FACT AT THE TIME YOU WERE ACCEPTED FOR SERVICE. YOUR ENLISTMENT CONTRACT WAS VOIDABLE ON THE PART OF THE UNITED STATES FOR THE ENTIRE PERIOD COVERED BY THAT CONTRACT. SINCE THERE WAS NO LONGER A CONTRACT UNDER WHICH A RIGHT TO PAY COULD ACCRUE. THERE WAS NO AUTHORITY FOR ANY FURTHER PAYMENTS UNDER THAT CONTRACT.

B-150738, FEB. 15, 1963

TO MR. SAMUEL ROSEN:

YOUR LETTER OF JANUARY 21, 1963, REQUESTS REVIEW OF SETTLEMENT DATED JANUARY 18, 1963, WHICH DISALLOWED YOUR CLAIM FOR MONETARY BENEFITS DUE BECAUSE OF THE CHANGE IN THE TYPE OF YOUR DISCHARGE FROM THE UNITED STATES ARMY.

WE HAVE BEEN INFORMED THAT YOU ENLISTED IN THE UNITED STATES ARMY ON SEPTEMBER 22, 1919, AT FORT WAYNE, MICHIGAN; THAT YOU WERE DISCHARGED OTHER THAN HONORABLY ON AUGUST 19, 1920, AT CHICAGO, ILLINOIS, BY REASON OF FRAUDULENT ENLISTMENT DUE TO CONCEALMENT OF MINORITY; AND THAT YOU WERE LAST PAID IN AUGUST 1920 FOR JULY 1920. AFTER CONSIDERATION OF THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, UNDER THE PROVISIONS OF 10 U.S.C. 1552, THE UNDER SECRETARY OF THE ARMY ON AUGUST 3, 1961, DIRECTED THAT ALL DEPARTMENT OF THE ARMY RECORDS BE CORRECTED TO SHOW THAT YOU WERE SEPARATED ON AND ISSUED A CERTIFICATE OF HONORABLE DISCHARGE ON AUGUST 19, 1920, IN LIEU OF THE OTHER THAN HONORABLE DISCHARGE OF THE SAME DATE HELD BY YOU.

NOT HAVING ATTAINED THE MINIMUM AGE FOR SERVICE IN THE UNITED STATES ARMY ON SEPTEMBER 22, 1919, YOU WERE NOT ELIGIBLE FOR ENLISTMENT IN THE UNITED STATES ARMY AND HAVING CONCEALED SUCH FACT AT THE TIME YOU WERE ACCEPTED FOR SERVICE, YOUR ENLISTMENT CONTRACT WAS VOIDABLE ON THE PART OF THE UNITED STATES FOR THE ENTIRE PERIOD COVERED BY THAT CONTRACT. THE TERMINATION OF YOUR ENLISTMENT ON AUGUST 19, 1920, UPON DISCOVERY OF THE FRAUDULENT CONCEALMENT OF YOUR CORRECT AGE CONSTITUTED AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT FROM ITS INCEPTION. SINCE THERE WAS NO LONGER A CONTRACT UNDER WHICH A RIGHT TO PAY COULD ACCRUE, THERE WAS NO AUTHORITY FOR ANY FURTHER PAYMENTS UNDER THAT CONTRACT, IRRESPECTIVE OF THE CHARACTER OF DISCHARGE ISSUED YOU AT THAT TIME. EVEN IF YOU HAD BEEN GIVEN AN HONORABLE DISCHARGE AT THE TIME OF YOUR SEPARATION FROM THE SERVICE, YOU WOULD NOT HAVE BEEN ENTITLED TO ANY FURTHER PAY.

WHILE YOU STATE THAT YOU HAVE BEEN TOLD THAT THE HONORABLE DISCHARGE YOU HAVE RECEIVED "WIPED THE SLATE CLEAN," YOUR ATTENTION IS INVITED TO THE FACT THAT THE CORRECTION OF YOUR RECORD TO SHOW THAT YOU WERE ISSUED A CERTIFICATE OF HONORABLE DISCHARGE ON AUGUST 19, 1920, DID NOT CHANGE THE CHARACTER OF YOUR ENLISTMENT, WHICH WAS FRAUDULENT AND WAS TERMINATED BECAUSE OF THE FRAUD, BUT ONLY CHANGED THE TYPE OR CHARACTER OF YOUR SEPARATION TO AN HONORABLE DISCHARGE. YOUR ENLISTMENT WAS UNLAWFUL AND THE FACT THAT THE RECORD HAS BEEN CHANGED TO SHOW YOU WERE HONORABLY SEPARATED FROM THE SERVICE DOES NOT VALIDATE YOUR ENLISTMENT NOR SUPPLY THE DEFICIENCY--- LACK OF SUFFICIENT AGE--- NECESSARY TO MAKE SUCH ENLISTMENT LEGAL AND PROPER. CONSEQUENTLY, THE CORRECTION OF YOUR RECORD GAVE YOU NO GREATER RIGHTS TO PAY THAN YOU HAD UNDER THE OTHER THAN HONORABLE DISCHARGE GIVEN YOU ON AUGUST 19, 1920.

CONCERNING YOUR COMMENT THAT YOU WERE NOT EVEN FURNISHED TRANSPORTATION TO YOUR HOME, YOU ARE ADVISED THAT WE KNOW OF NO PROVISION OF LAW IN EFFECT IN 1920 WHICH REQUIRED THE FURNISHING OF TRANSPORTATION TO THE HOME IN CIRCUMSTANCES SUCH AS ARE HERE INVOLVED.