B-20920, NOVEMBER 13, 1941, 21 COMP. GEN. 450

B-20920, NOVEMBER 13, 1941, 21 COMP. GEN. 450

PAY - FRAUDULENT CONCEALMENT OF DESERTION STATUS WHERE AN INDUCTEE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 FRAUDULENTLY CONCEALED THE FACT THAT HE HAD DESERTED FROM THE ARMY UNDER A PRIOR ENLISTMENT, AND, BUT FOR THE FRAUD, HE WOULD NOT HAVE BEEN INDUCTED, HE IS NOT ENTITLED TO PAY UNDER HIS FRAUDULENT INDUCTION.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJ. J. HARRIS, U.S. ARMY, NOVEMBER 13, 1941:

THERE HAS BEEN RECEIVED BY FIRST INDORSEMENT DATED SEPTEMBER 29, 1941, YOUR REQUEST FOR DECISION DATED AUGUST 15, 1941, AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF FRED W. TRIPLETT, ARMY SERIAL NO. 6933806, PRIVATE, COMPANY L, 137TH INFANTRY, U.S. ARMY, COVERING THE DIFFERENCE BETWEEN BASE PAY AT $21 PER MONTH AND BASE PAY AT $30 PER MONTH FOR THE PERIOD FEBRUARY 18, 1941, TO APRIL 30, 1941.

THE ROLL SHOWS THAT TRIPLETT ENLISTED IN THE ARMY ON SEPTEMBER 27, 1939; THAT HE DESERTED ON DECEMBER 5, 1939; THAT HE WAS INDUCTED INTO THE MILITARY SERVICE ON FEBRUARY 18, 1941, UNDER THE SELECTIVE TRAINING AND SERVICE ACT, AT WHICH TIME HE CONCEALED HIS STATUS AS A DESERTER FROM THE SERVICE AND THAT HE WAS DISCHARGED "WITHOUT HONOR DESERTION AND PHYSICAL UNFITNESS, SECTION VII, AR 615-360 AND 4TH IND. HQS, 7TH CORPS AREA DATED JULY 2, 1941.' THE 4TH INDORSEMENT, HEADQUARTERS 7TH CORPS AREA, DATED JULY 2, 1941, STATES IN PART: "2. SOLDIER WILL BE DISCHARGED UNDER PROVISIONS OF PARAGRAPH 49 B (1), AR 615-360.' THIS PARAGRAPH OF THE REGULATIONS PROVIDES:

THE CORPS AREA COMMANDER MAY ORDER THE DISCHARGE WITHOUT TRIAL, BECAUSE OF DESERTION ADMITTED AND PHYSICAL UNFITNESS, AFTER RETURN TO MILITARY CONTROL, OF A DESERTER WHO ADMITS DESERTION AND IS FOUND PHYSICALLY UNFIT FOR SERVICE, AND WHOSE TRIAL IS NOT BARRED BY THE THIRTY-NINTH ARTICLE OF WAR. HE MAY APPLY TO THE ADJUTANT GENERAL FOR AUTHORITY TO DISCHARGE, BECAUSE OF DESERTION ADMITTED, AFTER RETURN TO MILITARY CONTROL, A DESERTER WHO ADMITS DESERTION AND IS FOUND PHYSICALLY FIT FOR SERVICE BUT WHOSE TRIAL IS DEEMED INADVISABLE.

THERE IS ALSO FURNISHED WITH THE VOUCHER A COPY OF A 3D INDORSEMENT DATED JUNE 27, 1941, FROM THE ADJUTANT GENERAL OF THE ARMY TO THE COMMANDING GENERAL, 7TH CORPS AREA, THE FOURTH PARAGRAPH OF WHICH IS AS FOLLOWS:

4. THIS MAN WILL BE DROPPED FROM ALL RECORDS SHOWING HIM TO HAVE BEEN INDUCTED UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 (PARAGRAPH 35, A.R. 345-125). PARAGRAPH 35, ARMY REGULATIONS 345-125, PROVIDES:

A. AN ENLISTED MAN DISCOVERED TO BE SERVING IN A FRAUDULENT ENLISTMENT BY REASON OF CONCEALMENT OF DESERTION FROM UNTERMINATED ENLISTMENT OR ENLISTMENTS TO WHICH THE STATUTE OF LIMITATIONS IS NOT APPLICABLE AND WHOSE TRIAL FOR DESERTION IS NOT BARRED BY THE THIRTY NINTH ARTICLE OF WAR WILL, UNLESS OTHERWISE DIRECTED BY THE WAR DEPARTMENT, BE SEPARATED FROM SERVICE OR BE HELD TO SERVICE UNDER HIS FIRST UNTERMINATED ENLISTMENT AS OF THE NAME AND DATE OF ENLISTMENT UNDER WHICH HE SERVED THEREIN, AND HIS NAME WILL BE DROPPED FROM THE RECORDS OF ALL SUBSEQUENT UNTERMINATED ENLISTMENTS. * * *

B. AN ENLISTED MAN SERVING IN A FRAUDULENT ENLISTMENT, WHO HAS ONE OR MORE DESERTIONS FROM UNTERMINATED ENLISTMENTS, REVERTS TO THE FIRST UNTERMINATED ENLISTMENT FROM DATE OF SURRENDER OR FROM DATE OF RECEIPT, AT THE PLACE WHERE HE IS HELD, OF THE NOTIFICATION FROM THE WAR DEPARTMENT OF HIS IDENTITY, AND HIS ACCOUNTS WILL BE ADJUSTED ACCORDINGLY.

THE ROLL SHOWS THAT TRIPLETT WAS "APPREHENDED IN FRAUDULENT INDUCTION MAY 13, 1941" AND THEREFORE IT APPEARS THAT HIS IDENTITY WAS NOT KNOWN UNTIL THAT DATE. UNDER PARAGRAPH 35B OF THE REGULATIONS, QUOTED ABOVE, HE APPEARS TO HAVE REVERTED TO HIS UNTERMINATED ENLISTMENT FROM THAT DATE. OBVIOUSLY, HIS CONCEALMENT OF HIS PRIOR MILITARY SERVICE AND DESERTION WAS A WITHHOLDING OF MATERIAL FACTS AMOUNTING TO FRAUD AND IN VIEW OF HIS SUBSEQUENT DISCHARGE WHEN THE TRUE FACTS WERE LEARNED, IT IS EVIDENT THAT HAD IT NOT BEEN FOR HIS CONCEALMENT OF FACTS HE WOULD NOT HAVE BEEN INDUCTED. SUCH A SHOWING CANNOT GIVE RISE TO A CLAIM AGAINST THE GOVERNMENT FOR PAY DURING THE PERIOD HE SERVED AS A SELECTEE, THE STATUS GIVEN HIM BECAUSE OF HIS FRAUD. EVEN THOUGH THE MAN RETURNED TO MILITARY CONTROL DURING THE PERIOD OF HIS ENLISTMENT IN A DIFFERENT STATUS--- THAT OF SELECTEE--- HE CANNOT BENEFIT BY HIS FRAUD AND IS ENTITLED TO NO PAY UNDER HIS FRAUDULENT INDUCTION. ACCORDINGLY, YOU ARE ADVISED THAT YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER WHICH WILL BE RETAINED IN THIS OFFICE.