B-170286, AUG. 11, 1970

B-170286, AUG. 11, 1970

FRAUDULENT ENLISTMENT -- UNDESIRABLE DISCHARGE CHANGED TO DISCHARGE UNDER HONORABLE CONDITIONS DECISION TO A FORMER SERVICE MEMBER SUSTAINING SETTLEMENT, WHICH ALLOWED CLAIM FOR PAY AND ALLOWANCES DUE BECAUSE OF A CHANGE IN DISCHARGE FROM UNDESIRABLE, BECAUSE OF A PRIOR FRAUDULENT ENLISTMENT, TO A DISCHARGE UNDER HONORABLE CONDITIONS. FORMER SERVICE MEMBER WHO HAD COMPLETED A TOUR OF DUTY UNDER FRAUDULENT ENLISTMENT UNDER ANOTHER NAME AND THEN LATER REENLISTED USING HIS CORRECT NAME WHICH RESULTED IN THE DISCOVERY OF THE FRAUDULENT ENLISTMENT AND HIS SEPARATION FROM THE SERVICE WITH AN UNDESIRABLE DISCHARGE MAY NOT UPON SUBSEQUENT CHANGE OF DISCHARGE TO HONORABLE HAVE CONSIDERED CHANGED FOR PAY DENIED UPON SEPARATION, SINCE THE FRAUDULENT ENLISTMENT CONSTITUTES AN AVOIDANCE OF CONTRACT OF ENLISTMENT FROM THE BEGINNING AND DOES NOT ENTITLE MEMBER TO PAY AND ALLOWANCES FOR ANY PERIOD OTHER THAN PAY THERETOFORE RECEIVED. THEREFORE, PAY WHICH WOULD HAVE ACCRUED DURING THE SECOND PERIOD OF SERVICE AND ALLOWANCE PAYABLE UPON SEPARATION WERE PROPERLY DENIED BECAUSE OF THE CHARACTER OF THE ENLISTMENT AND NOT BECAUSE OF THE TYPE OF DISCHARGE RECEIVED.

TO MR. CLIFFORD J. SIEGFRIED:

YOUR UNDATED LETTER RECEIVED MAY 4, 1970, IN EFFECT REQUESTS REVIEW OF SETTLEMENT OF APRIL 27, 1970, WHICH DISALLOWED YOUR CLAIM FOR AMOUNTS BELIEVED OWED YOU BY THE GOVERNMENT BECAUSE OF A CHANGE IN THE CHARACTER OF YOUR DISCHARGE OF FEBRUARY 10, 1949, FROM THE UNITED STATES ARMY.

YOUR MILITARY RECORD SHOWS THAT YOU SERVED IN THE UNITED STATES ARMY UNDER THE NAME OF RAYMOND H. GARDNER, ASN 6 576 599, FROM APRIL 12, 1939, TO MAY 12, 1942. YOU ENLISTED IN THE ARMY AT NEW ORLEANS, LOUISIANA, ON MARCH 25, 1948, AS CLIFFORD J. SIEGFRIED AND SERVED UNTIL FEBRUARY 10, 1949, WHEN YOU WERE SEPARATED FROM THE SERVICE AT LETTERMAN GENERAL HOSPITAL, SAN FRANCISCO, CALIFORNIA, WITH AN UNDESIRABLE DISCHARGE, BECAUSE OF FRAUDULENT ENLISTMENT. AS A RESULT OF REVIEW BY THE ARMY DISCHARGE REVIEW BOARD OF THE FACTS PERTAINING TO YOUR DISCHARGE YOU WERE INFORMED ON JANUARY 12, 1968, THAT YOU WERE ENTITLED TO A DISCHARGE UNDER HONORABLE CONDITIONS, AND YOU WERE FURNISHED WITH A GENERAL DISCHARGE CERTIFICATE, DD FORM 257A, AND TRANSCRIPT OF MILITARY RECORD, DA FORM 1569.

YOU INDICATE THAT YOU WROTE TO THE FINANCE CENTER, UNITED STATES ARMY, ON MARCH 19, 1969, AND MADE CLAIM FOR PAY AND ALLOWANCES DUE YOU BECAUSE OF THE CHANGE IN THE CHARACTER OF DISCHARGE FOR YOUR LAST PERIOD OF SERVICE. YOU RECEIVED PAYMENT FOR EIGHT DAYS' ACCRUED LEAVE AND BY LETTER OF JUNE 13, 1969, YOU CLAIMED ALL OTHER PAY AND ALLOWANCES DUE YOU. YOUR CLAIM WAS FORWARDED BY THE FINANCE CENTER, UNITED STATES ARMY, AND WAS RECEIVED ON FEBRUARY 12, 1970, AND DISALLOWED BY CLAIMS DIVISION SETTLEMENT OF APRIL 27, 1970.

YOU ARE OF THE OPINION THAT RECEIPT OF A DISCHARGE UNDER HONORABLE CONDITIONS ENTITLES YOU TO RECEIVE ALL PAY AND ALLOWANCES WHICH HAD NOT BEEN PAID YOU UPON DISCHARGE FROM YOUR SECOND PERIOD OF SERVICE. YOU CONTEND THAT YOU ARE ENTITLED TO RECEIVE AN ALLOWANCE FOR TRAVEL FROM THE PLACE OF YOUR DISCHARGE, LETTERMAN GENERAL HOSPITAL, SAN FRANCISCO, CALIFORNIA, TO THE PLACE OF YOUR ENTRY INTO SERVICE, NEW ORLEANS, LOUISIANA. YOU SAY THAT YOU WERE INFORMED BY THE FINANCE CENTER, UNITED STATES ARMY, THAT YOUR CLAIM FOR TRAVEL ALLOWANCE HAD BEEN APPROVED BUT THAT YOU HAVE NOT RECEIVED PAYMENT. ALSO, YOU BELIEVE THAT YOU SHOULD RECEIVE PAY FOR THE PERIOD FROM JANUARY 1, 1949, TO FEBRUARY 10, 1949, AS WELL AS ANY OTHER MONEYS THAT WERE DUE YOU BUT UNPAID UPON DISCHARGE FROM THE UNITED STATES ARMY ON FEBRUARY 10, 1949.

PARAGRAPH 5, ARMY REGULATIONS 615-366, DECEMBER 17, 1948, IN EFFECT AT THE TIME OF YOUR DISCHARGE, PROVIDED THAT,

"INDIVIDUALS DISCHARGED ON ACCOUNT OF FRAUDULENT ENLISTMENT OR INDUCTION ARE NOT ENTITLED TO PAY OR ALLOWANCES OF ANY KIND INCLUDING THOSE FOR TRAVEL, EXCEPT THAT THEY MAY, UNDER SUCH REGULATIONS AS THE SECRETARY OF THE ARMY MAY PRESCRIBE, UPON DISCHARGE, BE ALLOWED AND PAID, IN THOSE CASES IN WHICH SUCH PERSONS WOULD OTHERWISE BE WITHOUT FUNDS TO MEET THEIR IMMEDIATE NEEDS, A SUM NOT EXCEEDING $10 AND BE FURNISHED TRANSPORTATION IN KIND FROM THE PLACE OF DISCHARGE TO THEIR HOME, OR ELSEWHERE AS THEY MAY ELECT, THE COST IN EACH CASE NOT TO BE GREATER THAN TO THE PLACE OF LAST ENLISTMENT *** ."

ARMY REGULATIONS 35-4810, JUNE 1, 1948, IN EFFECT AT THE TIME OF YOUR DISCHARGE, PROVIDED AT ITEM 11, PARAGRAPH 55 (TABLE OF TRAVEL ALLOWANCES) THAT WHERE THE REASON FOR SEPARATION WAS FRAUDULENT ENTRY INTO THE ARMY, THE TOTAL ALLOWANCE WOULD CONSIST OF TRANSPORTATION IN KIND WHETHER THE PERSON RECEIVED AN HONORABLE DISCHARGE OR AN UNDESIRABLE DISCHARGE.

IT HAS LONG BEEN THE RULE THAT WHERE AN ENLISTED PERSON UPON ENTRY INTO THE SERVICE FRAUDULENTLY CONCEALS OR MISREPRESENTS A MATERIAL FACT DISQUALIFYING HIM FOR ENLISTMENT AND IS DISCHARGED UPON DISCOVERY BY THE GOVERNMENT OF THE FRAUD, SUCH DISCHARGE CONSTITUTES AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT FROM THE BEGINNING AND THE PERSON IS NOT ENTITLED TO PAY AND ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT. HOWEVER, SUCH PERSON IS PERMITTED TO RETAIN THE PAY THERETOFORE RECEIVED IF THE PAYMENTS WERE OTHERWISE PROPER. SEE 31 COMP. GEN. 357 (1952), COPY ENCLOSED.

THE CHANGE OF YOUR UNDESIRABLE DISCHARGE TO A DISCHARGE UNDER HONORABLE CONDITIONS DID NOT ALTER THE CHARACTER OF YOUR ENLISTMENT. SUCH CHANGE DID NOT REMOVE OR WAIVE ANY FRAUD THAT MAY HAVE EXISTED AT THE TIME OF THE ENLISTMENT; IT CHANGED ONLY THE CHARACTER OF YOUR DISCHARGE. THE ARMY, BECAUSE OF CIRCUMSTANCES FOUND TO BE FRAUD, APPARENTLY CHOSE TO AVOID THE ENLISTMENT CONTRACT UPON DISCOVERY OF THE CIRCUMSTANCES, AND THEREFORE, THE ENLISTMENT MUST BE CONSIDERED AS HAVING BEEN VOID FROM THE BEGINNING. PAY WHICH NORMALLY WOULD HAVE ACCRUED DURING THIS PERIOD OF SERVICE AND ALLOWANCES NORMALLY PAYABLE UPON SEPARATION WERE DENIED BECAUSE OF THE CHARACTER OF YOUR ENLISTMENT AND NOT BECAUSE OF THE TYPE OF DISCHARGE YOU RECEIVED.

IN VIEW OF THE CHARACTER OF YOUR ENLISTMENT ON MARCH 25, 1948, YOU MAY NOT NOW BE PAID PAY WHICH YOU DID NOT RECEIVE FOR THE PERIOD FROM JANUARY 1, 1949, UNTIL YOUR DISCHARGE ON FEBRUARY 10, 1949. YOU ARE NOT ENTITLED TO A TRANSPORTATION ALLOWANCE OF 5 CENTS PER MILE FROM THE PLACE OF YOUR DISCHARGE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, ORDINARILY PAID TO SEPARATED ENLISTED PERSONNEL, NOR FOR THE DIFFERENCE BETWEEN THE VALUE OF TRANSPORTATION IN KIND APPARENTLY FURNISHED YOU, AND SUCH ALLOWANCE. PREVIOUSLY INDICATED, NO PAY OR ALLOWANCES MAY NOW BE PAID.

UPON REVIEW, OFFICE SETTLEMENT OF APRIL 27, 1970, WHICH DISALLOWED YOUR CLAIM, IS SUSTAINED.