B-159505, SEP. 16, 1966

B-159505, SEP. 16, 1966

TO MR. SAM MCCOY:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 23, 1966, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 27, 1966, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE ON THE DATE OF YOUR DISCHARGE, FEBRUARY 2, 1954, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN, REGULAR ARMY. WE ARE ALSO IN RECEIPT OF A LETTER FROM THE CLAIMS DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, DATED JULY 25, 1966, TRANSMITTING A COPY OF YOUR LETTER OF JUNE 24, 1966, REQUESTING CONGRESSMAN ADAM CLAYTON POWELL TO ASSIST YOU IN THE MATTER, TOGETHER WITH ADDITIONAL INFORMATION PERTAINING TO THE ACTION OF THE ARMY DISCHARGE REVIEW BOARD ON AUGUST 25, 1965.

THE RECORD INDICATES THAT YOU ENLISTED IN THE REGULAR ARMY ON JANUARY 31, 1952, AT WHICH TIME YOU CONCEALED CERTAIN EVIDENCE PERTAINING TO YOUR PRIOR SERVICE WHICH DISQUALIFIED YOU FOR ENLISTMENT OR REENLISTMENT. FEBRUARY 2, 1954, YOU RECEIVED AN UNDESIRABLE DISCHARGE BY REASON OF FRAUDULENT ENLISTMENT UNDER THE PROVISIONS OF SECTION 1, ARMY REGULATIONS 615-366. AT A REHEARING BEFORE THE ARMY DISCHARGE REVIEW BOARD, IT WAS DETERMINED BY THE BOARD ON AUGUST 25, 1965, THAT YOU HAD NOT BEEN PROPERLY DISCHARGED AND THAT YOU SHOULD RECEIVE AN HONORABLE DISCHARGE BECAUSE "FRAUD DID NOT EXIST BECAUSE OF WAIVER, 11 JUNE 1952.'

PARAGRAPH 2, ARMY REGULATIONS 615-366, IN EFFECT AT THE TIME OF YOUR SERVICE PROVIDED THAT UPON DISCOVERY OF CONCEALMENT BY AN INDIVIDUAL OF HIS PRIOR SEPARATION FROM ANY OF THE ARMED FORCES OF THE UNITED STATES, UNDER CONDITIONS BARRING REENTRY INTO THE ARMY, THE INDIVIDUAL NORMALLY WILL BE DISCHARGED. HOWEVER, IF THE INDIVIDUAL'S GENERAL QUALIFICATIONS ARE SUCH THAT HE IS AN ASSET TO THE SERVICE, THE COMMANDER HAVING THE AUTHORITY, MAY, UPON REQUEST OF HIS UNIT COMMANDER, WAIVE THE RIGHT TO DISCHARGE HIM FOR HIS FRAUDULENT ENTRY INTO THE SERVICE. PARAGRAPH 3 THEREOF, PROVIDES THAT WHEN A DECISION HAS BEEN MADE TO RETAIN AN INDIVIDUAL IN THE SERVICE, A NOTATION WILL BE MADE IN HIS SERVICE RECORD INDICATING THAT THE RIGHT TO DISCHARGE HIM BECAUSE OF FRAUDULENT ENTRY INTO THE SERVICE HAS BEEN WAIVED. AFTER SUCH WAIVER, NO FURTHER COGNIZANCE OF, OR ACTION WITH RESPECT TO, THE FRAUDULENT ENTRY WILL BE TAKEN AT ANY TIME DURING IS CURRENT SERVICE. WHEN THE FRAUD HAS BEEN WAIVED, SERVICE IS THE SAME AS PERFORMED UNDER A NORMAL CONTRACT OF ENLISTMENT. 3 COMP. GEN. 61; 9 ID. 26.

IN VIEW OF THE DETERMINATION BY THE ARMY DISCHARGE REVIEW BOARD THAT FRAUD DID NOT EXIST, AS THE CONCEALMENT OF PRIOR SERVICE HAD BEEN CONSIDERED AND A WAIVER GRANTED ON JUNE 11, 1952, AND INASMUCH AS YOUR DISCHARGE WAS CHANGED TO HONORABLE, IT IS CONCLUDED THAT THERE IS NO FURTHER IMPEDIMENT TO YOUR RIGHT TO PAY AND ALLOWANCES WHICH MAY BE DUE AS A RESULT OF YOUR SEPARATION FROM THE SERVICE FEBRUARY 2, 1954. ACCORDINGLY, WE ARE INSTRUCTING OUR CLAIMS DIVISION TO OBTAIN THE NECESSARY RECORDS FOR A DETERMINATION AS TO THE AMOUNT DUE YOU AND TO ISSUE A SETTLEMENT IN YOUR FAVOR FOR THAT AMOUNT.