B-154940, SEPTEMBER 15, 1964, 44 COMP. GEN. 143

B-154940, SEPTEMBER 15, 1964, 44 COMP. GEN. 143

MILITARY PERSONNEL - RECORDS CORRECTION - DISCHARGE CHANGE AS ENTITLEMENT TO PAY, ETC. MILITARY PERSONNEL - RECORDS CORRECTION - DISCHARGE AS ENTITLEMENTS TO PAY, ETC. UPON THE CORRECTION OF THE MILITARY RECORDS OF AN OFFICER OF THE UNITED STATES ARMY UNDER 10 U.S.C. 1552 TO REFLECT THE WITHDRAWAL OF THE COURT SENTENCE IMPOSED ON HIM FOR VIOLATING 10 U.S.C. 202, THE OFFICER BECAME ENTITLED TO THE READJUSTMENT PAY AUTHORIZED PURSUANT TO 50 U.S.C. 1016, HIS MILITARY RECORDS NOW SHOWING THAT HE HAD BEEN HONORABLY DISCHARGED, THAT SUCH DISCHARGE MUST BE PRESUMED TO BE NOT BECAUSE OF MORAL OR PROFESSIONAL DERELICTION, AND THAT HIS RELEASE FROM ACTIVE DUTY AFTER HAVING COMPLETED AT LEAST 5 YEARS OF CONTINUOUS ACTIVE DUTY WAS INVOLUNTARY, AND THE OFFICER BY REASON OF THE CORRECTION OF HIS MILITARY RECORDS HAVING BECOME ENTITLED TO ALL THE BENEFITS DUE ON THE BASIS OF THE CORRECTED RECORD, HIS RIGHTS UNDER 50 U.S.C. 1016 ARE FOR DETERMINATION AS THOUGH HIS ORIGINAL RECORDS HAD SHOWN THE INFORMATION CONTAINED IN THE CORRECTED RECORDS. ALTHOUGH AN OFFICER OF THE UNITED STATES ARMY CONTINUED ON ACTIVE DUTY FOR 2 MONTHS SUBSEQUENT TO THE IMPOSITION OF A COURT SENTENCE FOR VIOLATION OF 18 U.S.C. 202, THE CORRECTION OF HIS MILITARY RECORDS TO SHOW THE RESCISSION OF THE COURT SENTENCE NOT REFLECTING THE ACTIVE SERVICE, NEITHER THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS NOR THE SECRETARY OF THE ARMY RECOGNIZING THE EXISTENCE OF A DE FACTO STATUS FOR THE PERIOD, THE OFFICER IS NOT ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES CLAIMED, NOR DID HE EARN OR ACCRUE ADDITIONAL LEAVE IN THE PERIOD, AND IN THE ABSENCE OF FRAUD, THE AUTHORIZED CORRECTION OF THE RECORDS MADE IS FINAL AND CONCLUSIVE UNDER 10 U.S.C. 1552 (A) ON ALL OFFICERS OF THE UNITED STATES.

TO COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, SEPTEMBER 15, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 17, 1964, FORWARDED HERE BY FIRST INDORSEMENT DATED AUGUST 10, 1964, OF THE OFFICE OF THE CHIEF OF FINANCE, REQUESTING AN ADVANCE DECISION AS TO THE ENTITLEMENT OF FIRST LIEUTENANT JAMES L. HAMLIN, 01 935 246, TO PAYMENT OF THE AMOUNT OF $2,722.84 CLAIMED AS THE RESULT OF THE CORRECTION OF HIS MILITARY RECORDS UNDER THE PROVISIONS OF 10 U.S.C. 1552. YOUR REQUEST WAS FORWARDED UNDER NO. DO-A-792, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS REPORTED THAT WHILE LIEUTENANT HAMLIN WAS SERVING ON ACTIVE DUTY AT FORT LEONARD WOOD, MISSOURI, HE, ON JULY 6, 1958, TOGETHER WITH TWO OTHER MEMBERS OF THE ARMY, WAS ARRAIGNED IN THE UNITED STATES DISTRICT COURT FOR WESTERN MISSOURI ON A CHARGE OF VIOLATION OF 18 U.S.C. 202. ON JULY 11, 1958, THE COURT SENTENCED HIM TO A FINE OF $500 AND PROBATION FOR 3 YEARS. ON SEPTEMBER 8, 1958, THE JUDGE ADVOCATE GENERAL EXPRESSED THE VIEW THAT JUDGMENT HAVING BEEN ENTERED ON JULY 11, 1958, FOLLOWING A PLEA OF GUILTY, LIEUTENANT HAMLIN CEASED TO BE AN OFFICER OF THE ARMY ON THAT DATE BY OPERATION OF LAW UNDER THE PROVISIONS OF 18 U.S.C. 202.

IN A SUBSEQUENT TRIAL CERTAIN CIVILIANS INVOLVED IN THE MATTER IN WHICH LIEUTENANT HAMLIN HAD BEEN CHARGED THE COURT DISMISSED THE INDICTMENT AND ON MARCH 17, 1961, THE SENTENCE IMPOSED ON JULY 11, 1958, WAS RESCINDED AND SET ASIDE, THE PLEAS OF GUILTY WERE WITHDRAWN, AND THE INFORMATION FILED AGAINST HIM AND HIS CO-DEFENDANTS WAS DISMISSED.

UPON APPLICATION TO THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS FOR RELIEF THAT BOARD ON MAY 29, 1963, RECOMMENDED THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF JAMES L. HAMLIN BE CORRECTED TO SHOW THAT ON JULY 11, 1958, HE WAS DISCHARGED FROM THE ARMY OF THE UNITED STATES AND FROM THE RESERVE OF THE UNITED STATES ON A CERTIFICATE OF GENERAL DISCHARGE AND THAT THE DEPARTMENT OF THE ARMY ISSUED TO HIM A CERTIFICATE OF GENERAL DISCHARGE DATED JULY 11, 1958. ON OCTOBER 16, 1963, THE SECRETARY OF THE ARMY DIRECTED THE RECOMMENDED CORRECTION EXCEPT THAT THE CHARACTER OF THE DISCHARGE WAS CHANGED TO A CERTIFICATE OF HONORABLE DISCHARGE.

BASED ON THE RECORD AS CORRECTED A CLAIM CERTIFICATE WAS ISSUED AND FORWARDED TO LIEUTENANT HAMLIN COVERING HIS ACCOUNT THROUGH JULY 11, 1958, DATE OF DISCHARGE, WHICH SHOWED HIM OWING THE UNITED STATES THE AMOUNT OF $34.43. HE REFUSED TO SIGN THE CERTIFICATE ON THE GROUND THAT HE IS DUE PAY THROUGH SEPTEMBER 11, 1958, LAST DAY OF ACTIVE DUTY, ADDITIONAL ACCRUED LEAVE, AND READJUSTMENT PAY. IN VIEW OF THE DOUBT AS TO ENTITLEMENT TO THE ITEMS CLAIMED, YOU FORWARDED THE CLAIM FOR AN ADVANCE DECISION.

SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952 AS ADDED BY THE ACT OF JULY 9, 1956, CH. 534, 70 STAT. 517, 50 U.S.C. 1016, PROVIDES IN PART AS FOLLOWS:

(A) A MEMBER OF A RESERVE COMPONENT WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER THE ENACTMENT OF THIS SECTION AND AFTER HAVING COMPLETED IMMEDIATELY PRIOR TO SUCH RELEASE AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY, EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN THIRTY DAYS, AS EITHER AN OFFICER, WARRANT OFFICER, OR ENLISTED PERSON, IS ENTITLED TO A LUMP-SUM READJUSTMENT PAYMENT COMPUTED ON THE BASIS OF ONE-HALF OF ONE MONTH'S BASIC PAY IN THE GRADE IN WHICH HE IS SERVING AT THE TIME OF RELEASE FROM ACTIVE DUTY FOR EACH YEAR OF ACTIVE SERVICE ENDING AT THE CLOSE OF THE EIGHTEENTH YEAR. * * *.

(B) THE FOLLOWING PERSONS ARE NOT ENTITLED TO ANY PAYMENTS UNDER THIS SECTION:

(3) UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE, OR BY THE SECRETARY OF THE TREASURY WITH RESPECT TO MEMBERS OF THE COAST GUARD WHEN THE COAST GUARD IS NOT OPERATING AS A SERVICE IN THE NAVY, A PERSON WHO IS RELEASED FROM ACTIVE DUTY BECAUSE OF MORAL OR PROFESSIONAL DERELICTION.

THE REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE FOR THE PURPOSES OF SUBSECTION (B) (3), 50 U.S.C. 1016 (B) (3), CONTAINED IN DEPARTMENT OF DEFENSE DIRECTIVE NO. 1240.4 DATED NOVEMBER 29, 1956, PROVIDE THAT RELEASE FROM ACTIVE DUTY WILL BE CONCLUSIVELY PRESUMED TO BE BECAUSE OF MORAL OR PROFESSIONAL DERELICTION WHERE (1) RELEASE IS PART OF THE EXECUTION OF ANY COURT-MARTIAL SENTENCE WHICH INCLUDES DISCHARGE OR DISMISSAL, (2) A RESERVE IS DROPPED FROM THE ROLLS PURSUANT TO 10 U.S.C. 1163 (B) AND (3) THAT DISCHARGE IS CHARACTERIZED AS BEING UNDER CONDITIONS OTHER THAN HONORABLE, PURSUANT TO 10 U.S.C. 1163 (C). THE DIRECTIVE FURTHER PROVIDES THAT RELEASE FROM ACTIVE DUTY UNDER CONDITIONS OTHER THAN THE FOREGOING WILL BE PRESUMED NOT BECAUSE OF MORAL OR PROFESSIONAL DERELICTION UNLESS A DETERMINATION TO THAT EFFECT HAS BEEN MADE UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES OF THE MILITARY DEPARTMENTS AND THAT THE MAKING OF SUCH DETERMINATION WILL FOLLOW CONSIDERATION OF THE FINDINGS AND RECOMMENDATIONS OF A BOARD OF OFFICERS.

UPON CORRECTION OF A MEMBER'S RECORDS UNDER 10 U.S.C. 1552, HE BECOMES ENTITLED TO ALL THE BENEFITS DUE ON THE BASIS OF THE FACTS AS SHOWN BY THE RECORD AS CORRECTED. HIS RIGHTS ARE DETERMINED UNDER THE APPLICABLE LAW IN THE SAME MANNER AS IF HIS ORIGINAL RECORDS HAD SHOWN THE INFORMATION CONTAINED IN THE CORRECTED RECORDS. SEE 40 COMP. GEN. 502 AND 42 ID. 582. SINCE THE RECORDS NOW SHOW THAT LIEUTENANT HAMLIN, A MEMBER OF THE U.S. ARMY RESERVE, WAS HONORABLY DISCHARGED ON JULY 11, 1958, THAT SUCH DISCHARGE MUST BE PRESUMED TO BE NOT BECAUSE OF MORAL OR PROFESSIONAL DERELICTION, AND THAT HIS RELEASE FROM ACTIVE DUTY AFTER HAVING COMPLETED AT LEAST 5 YEARS OF CONTINUOUS ACTIVE DUTY WAS INVOLUNTARY, HE IS ENTITLED TO READJUSTMENT PAY COMPUTED ON HIS SERVICE TO INCLUDE JULY 11, 1958.

A MINORITY DISSENTING OPINION OF TWO MEMBERS OF THE BOARD FOR CORRECTION OF RECORDS EXPRESSED THE VIEW THAT LIEUTENANT HAMLIN CONTINUED TO SERVE IN A DE FACTO STATUS UNTIL SEPTEMBER 1958 AND RECOMMENDED CORRECTION OF THE RECORDS TO SHOW THAT HE CONTINUED IN THE ACTIVE MILITARY SERVICE UNTIL SEPTEMBER 15, 1958. ALTHOUGH THE FACTS WITH RESPECT TO A DE FACTOSTATUS HAD BEEN CONSIDERED, NEITHER THE MAJORITY OF THE BOARD NOR THE SECRETARY OF THE ARMY RECOGNIZED THE EXISTENCE OF SUCH STATUS AS A BASIS FOR CORRECTING LIEUTENANT HAMLIN'S RECORDS. THIS OFFICE IS WITHOUT AUTHORITY TO QUESTION THE RECOMMENDATION OF THE BOARD OR THE SECRETARY'S DETERMINATION, SINCE, IN THE ABSENCE OF FRAUD, AN AUTHORIZED CORRECTION ACTUALLY MADE IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES. SEE 10 U.S.C. 1552 (A). THUS THERE IS NO BASIS FOR ALLOWANCE OF THE CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JULY 12 TO SEPTEMBER 11, 1958, NOR CAN IT BE SAID THAT ANY ADDITIONAL LEAVE WAS EARNED OR ACCRUED IN THAT PERIOD.

ACCORDINGLY, A NEW CLAIM CERTIFICATE, INCLUDING READJUSTMENT PAY, SHOULD BE PREPARED AND FORWARDED TO THE OFFICER WITH A COPY OF THIS DECISION.