B-151364, JUNE 20, 1963, 42 COMP. GEN. 715

B-151364: Jun 20, 1963

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ETC. - AUTHORITY OF SECRETARY A CHANGE BY THE SECRETARY OF A MILITARY DEPARTMENT OF AN UNDESIRABLE DISCHARGE TO A GENERAL DISCHARGE ON REVIEW OF A MILITARY DISCHARGE REVIEW BOARD FINDING THAT NO CHANGE SHOULD BE MADE TO THE UNDESIRABLE DISCHARGE ISSUED TO AN ENLISTED MEMBER IS WITHIN THE PURVIEW OF 10 U.S.C. 1553 (B) AUTHORIZING THE SECRETARIES TO REVIEW THE ACTIONS OF THE BOARDS AND. THE SUBSTITUTION BY THE SECRETARY OF THE TREASURY OF HIS FINDINGS AND DECISION THAT A COAST GUARD MEMBER SHOULD HAVE A GENERAL DISCHARGE WHEN THE REVIEW BOARD HAD CONCLUDED THAT THE UNDESIRABLE DISCHARGE SHOULD NOT BE CHANGED IS PROPER AND PAYMENTS TO THE INDIVIDUAL RESULTING FROM THE DISCHARGE CHANGE ARE PROPER.

B-151364, JUNE 20, 1963, 42 COMP. GEN. 715

DISCHARGES AND DISMISSALS - MILITARY PERSONNEL - OTHER THAN HONORABLE - CHANGES, REVOCATIONS, ETC. - AUTHORITY OF SECRETARY A CHANGE BY THE SECRETARY OF A MILITARY DEPARTMENT OF AN UNDESIRABLE DISCHARGE TO A GENERAL DISCHARGE ON REVIEW OF A MILITARY DISCHARGE REVIEW BOARD FINDING THAT NO CHANGE SHOULD BE MADE TO THE UNDESIRABLE DISCHARGE ISSUED TO AN ENLISTED MEMBER IS WITHIN THE PURVIEW OF 10 U.S.C. 1553 (B) AUTHORIZING THE SECRETARIES TO REVIEW THE ACTIONS OF THE BOARDS AND, THEREFORE, THE SUBSTITUTION BY THE SECRETARY OF THE TREASURY OF HIS FINDINGS AND DECISION THAT A COAST GUARD MEMBER SHOULD HAVE A GENERAL DISCHARGE WHEN THE REVIEW BOARD HAD CONCLUDED THAT THE UNDESIRABLE DISCHARGE SHOULD NOT BE CHANGED IS PROPER AND PAYMENTS TO THE INDIVIDUAL RESULTING FROM THE DISCHARGE CHANGE ARE PROPER.

TO T. C. CRABE, UNITED STATES COAST GUARD, JUNE 20, 1963:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 22, 1963, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER PAYMENT IS PROPER ON THE ENCLOSED VOUCHER IN THE AMOUNT OF $24.36 IN FAVOR OF ROBERT D. MULLIGAN, A FORMER MEMBER OF THE U.S. COAST GUARD, BEING CLAIMED IN CONNECTION WITH A CHANGE IN THE TYPE OF HIS DISCHARGE.

IT IS STATED THAT THE FORMER ENLISTED MEMBER ENLISTED IN THE COAST GUARD ON SEPTEMBER 25, 1957, AND WAS DISCHARGED ON DECEMBER 5, 1958, WITH AN UNDESIRABLE DISCHARGE FOR UNFITNESS AS THE RESULT OF A BOARD OF INVESTIGATION FOR DESIRABILITY OF RETENTION IN SERVICE; THAT HE MADE APPLICATION TO THE COAST GUARD BOARD OF REVIEW OF DISCHARGES AND DISMISSALS TO HAVE THE DISCHARGE CHANGED FROM UNDESIRABLE TO A GENERAL DISCHARGE; AND THAT THE BOARD OF REVIEW OF DISCHARGES AND DISMISSALS CONCLUDED AND DECIDED THAT NO CHANGE, CORRECTION OR MODIFICATION SHOULD BE MADE TO THE UNDESIRABLE DISCHARGE. IT IS FURTHER STATED THAT THE FINDINGS OF THE BOARD WERE REVIEWED BY THE SECRETARY OF THE TREASURY PURSUANT TO 10 U.S.C. 1553 (B); THAT THE SECRETARY OF THE TREASURY DID NOT APPROVE THE PROCEEDINGS, FINDINGS, CONCLUSION AND DECISION OF THE BOARD; AND THAT HE DIRECTED THAT THE FORMER MEMBER BE ISSUED A GENERAL DISCHARGE FOR UNFITNESS IN LIEU OF THE UNDESIRABLE DISCHARGE PREVIOUSLY ISSUED.

YOU INVITE ATTENTION TO THE FACT THAT THE CHANGE IN TYPE OF DISCHARGE AND THE CLAIM IN CONNECTION THEREWITH ARE NOT THE RESULT OF THE PROCEEDINGS, FINDINGS, CONCLUSION AND DECISION OF THE COAST GUARD BOARD OF REVIEW OF DISCHARGES AND DISMISSALS, BUT INSTEAD ARE THE RESULT OF AN ACTION TAKEN BY THE SECRETARY OF THE TREASURY. THE LEGALITY OF THE PAYMENT OF THE VOUCHER IS QUESTIONED BECAUSE OF A DOUBT AS TO WHETHER THE TYPE DISCHARGE WAS CHANGED PURSUANT TO AUTHORITY CONTAINED IN 10 U.S.C. 1553 (B).

SECTION 1553 (B) OF TITLE 10 U.S.C. AT THE TIME OF THE EVENTS CONSIDERED HERE, PROVIDED AS FOLLOWS:

(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.

SECTION 301 OR THE SERVICEMEN'S READJUSTMENT ACT OF 1944, CH. 268, 58 STAT. 286, U.S.C. 693H, FROM WHICH SECTION 1553 OF TITLE 10, UNITED STATES CODE IS DERIVED, AUTHORIZED THE ESTABLISHMENT OF BOARDS OF REVIEW FOR THE PURPOSE OF REVIEWING THE TYPE AND NATURE OF DISCHARGES AND DISMISSALS EXCEPT A DISCHARGE OR DISMISSAL BY REASON OF A SENTENCE OF A GENERAL COURT -MARTIAL. SUCH BOARDS WERE GIVEN AUTHORITY BY SPECIFIC PROVISION OF LAW "TO CHANGE, CORRECT, OR MODIFY ANY DISCHARGE OR DISMISSAL, AND TO ISSUE A NEW DISCHARGE IN ACCORD WITH FACTS PRESENTED TO THE BOARD.' THE STATUTE ALSO PROVIDED THAT THE FINDINGS OF SUCH BOARDS OF REVIEW WERE "FINAL SUBJECT ONLY TO REVIEW" BY THE SECRETARY OF THE DEPARTMENT CONCERNED.

THERE APPEARS TO BE NO SOUND REASON FOR VIEWING THE AUTHORITY OF THE SEVERAL SECRETARIES TO REVIEW THE ACTION OF THE BOARDS OF REVIEW ESTABLISHED BY THEM AS BEING SO RESTRICTED AS TO PRECLUDE THE SECRETARIAL ACTION TAKEN IN THIS CASE. TO SO CONCLUDE WOULD LIMIT HIS AUTHORITY TO THAT OF A MERE VETO AND IT IS DOUBTFUL THAT THE CONGRESS INTENDED SUCH A LIMITATION.

ACCORDINGLY, IT IS CONCLUDED THAT THE SECRETARY OF THE TREASURY WAS AUTHORIZED TO SUBSTITUTE HIS FINDINGS AND DECISION FOR THAT OF THE BOARD OF REVIEW OF DISCHARGES AND DISMISSALS, WHICH CONSIDERED THIS MATTER UNDER 10 U.S.C. 1553, AND THAT AS A CONSEQUENCE, PAYMENT OF THE ENCLOSED VOUCHER IN FAVOR OF ROBERT D. MULLIGAN, IS PROPER, IF OTHERWISE CORRECT.