B-39671, FEBRUARY 19, 1944, 23 COMP. GEN. 606

B-39671: Feb 19, 1944

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FRAUDULENTLY OBTAINED COMMISSIONS - PAY AND ALLOWANCES ENTITLEMENT WHERE A NAVAL RESERVE OFFICER'S COMMISSION WAS REVOKED DUE TO THE FACT THAT HE FALSELY STATED IN HIS APPLICATION FOR A COMMISSION THAT HE WAS A GRADUATE OF A CERTAIN COLLEGE AND PRESENTED A FORGED DOCUMENT PURPORTING TO BE A TRANSCRIPT OF HIS GRADES. IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD ENDING JANUARY 17. GOODWIN WAS COMMISSIONED AN ENSIGN IN THE NAVAL RESERVE IS NOT SHOWN. IT IS REPORTED THAT IN HIS APPLICATION FOR APPOINTMENT HE STATED HE WAS A GRADUATE OF CORNELL UNIVERSITY. THAT LATER IT WAS FOUND THAT HIS STATEMENT WAS FALSE AND THAT SUCH DOCUMENT WAS A FORGERY. YOU WILL REPORT IMMEDIATELY FOR EXAMINATION TO THE MEDICAL OFFICER IN COMMAND OF NAVAL DISPENSARY.

B-39671, FEBRUARY 19, 1944, 23 COMP. GEN. 606

FRAUDULENTLY OBTAINED COMMISSIONS - PAY AND ALLOWANCES ENTITLEMENT WHERE A NAVAL RESERVE OFFICER'S COMMISSION WAS REVOKED DUE TO THE FACT THAT HE FALSELY STATED IN HIS APPLICATION FOR A COMMISSION THAT HE WAS A GRADUATE OF A CERTAIN COLLEGE AND PRESENTED A FORGED DOCUMENT PURPORTING TO BE A TRANSCRIPT OF HIS GRADES, THE STATUS RESULTING FROM HIS MISREPRESENTATION FORMS NO BASIS FOR A LEGAL PAYMENT OF PAY AND ALLOWANCES NOT ALREADY RECEIVED BY HIM.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY, 19, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 25, 1944, REQUESTING DECISION WHETHER, UNDER THE CIRCUMSTANCES HEREINAFTER DISCLOSED, LEROY L. GOODWIN, FORMERLY ENSIGN, E-V/S), USNR, IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD ENDING JANUARY 17, 1944.

THE DATE ON WHICH THE SAID LEROY L. GOODWIN WAS COMMISSIONED AN ENSIGN IN THE NAVAL RESERVE IS NOT SHOWN, BUT IT IS REPORTED THAT IN HIS APPLICATION FOR APPOINTMENT HE STATED HE WAS A GRADUATE OF CORNELL UNIVERSITY; THAT HE FURNISHED A DOCUMENT WHICH PURPORTED TO BE A TRANSCRIPT OF HIS GRADES WHILE ATTENDING THAT INSTITUTION; AND THAT LATER IT WAS FOUND THAT HIS STATEMENT WAS FALSE AND THAT SUCH DOCUMENT WAS A FORGERY. UPON DISCOVERY OF THE FRAUDULENT CHARACTER OF HIS APPLICATION AND THE STATEMENTS MADE IN CONNECTION THEREWITH, THE SECRETARY OF THE NAVY, BY ORDERS DATED JANUARY 11, 1944, NOTIFIED GOODWIN OF THE REVOCATION OF HIS COMMISSION IN THE NAVAL RESERVE. SAID ORDERS READ:

1. YOU WILL REPORT IMMEDIATELY FOR EXAMINATION TO THE MEDICAL OFFICER IN COMMAND OF NAVAL DISPENSARY, NAVY DEPARTMENT, ARLINGTON ANNEX, ARLINGTON, VA., TO DETERMINE YOUR PHYSICAL FITNESS FOR SEPARATION FROM THE U.S. NAVAL RESERVE. IF FOUND NOT PHYSICALLY QUALIFIED, THE REMAINDER OF THESE ORDERS IS SUSPENDED UNTIL YOU ARE OTHERWISE INFORMED, BY THE BUREAU OF NAVAL PERSONNEL, AND THE EXAMINING MEDICAL OFFICER SHALL IMMEDIATELY ADVISE THE BUREAU OF NAVAL PERSONNEL WITH RECOMMENDATION REGARDING YOUR DISPOSITION. IF FOUND PHYSICALLY QUALIFIED, YOU WILL REGARD YOURSELF DETACHED; PROCEED TO YOUR HOME.

2. TRAVEL EXPENSE UNDER THESE ORDERS WILL BE CHARGEABLE AGAINST APPROPRIATION," PAY, SUBSISTENCE AND TRANSPORTATION OF NAVAL PERSONNEL.'

3. YOUR COMMISSION AS AN ENSIGN, E-V/S), IN THE U.S. NAVAL RESERVE IS HEREBY REVOKED EFFECTIVE UPON THE FIFTH DAY FOLLOWING YOUR DETACHMENT, PURSUANT TO PARAGRAPH ONE HEREOF, AND YOU ARE HEREBY DISCHARGED FROM THE U.S. NAVAL RESERVE EFFECTIVE THAT DATE. THIS ACTION IS TAKEN BECAUSE OF YOUR PRESENTATION AT THE TIME OF YOUR APPOINTMENT OF FRAUDULENT CREDENTIALS, BUT IS NOT CONSIDERED TO BE PREJUDICIAL TO YOUR ENLISTMENT IN THE NAVAL SERVICE.

6. THE RECORDS OF THE BUREAU INDICATE THAT YOUR OFFICIAL RESIDENCE AT THE TIME YOU WERE ORDERED TO ACTIVE DUTY WAS:

PHILADELPHIA, PENNSYLVANIA.

NOTATIONS APPEARING ON SAID ORDERS SHOW THAT THE OFFICER WAS DETACHED ON JANUARY 12, 1944.

IT IS INDICATED THAT THE ACTION TAKEN BY THE SECRETARY OF THE NAVY IN THAT RESPECT WAS PURSUANT TO SECTION 14 (A) OF THE ACT OF JUNE 23, 1938, 52 STAT. 951, WHICH PROVIDES:

THE SECRETARY OF THE NAVY, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, MAY HEREAFTER REVOKE THE COMMISSION OF ANY OFFICER ON THE ACTIVE LIST, INITIALLY COMMISSIONED AFTER THE DATE OF THIS ACT, WHO, AT THE DATE OF SAID REVOCATION HAS HAD LESS THAN SEVEN YEARS OF CONTINUOUS SERVICE AS A COMMISSIONED OFFICER OF THE LINE OF THE NAVY OR OF THE MARINE CORPS, AND EACH OFFICER WHOSE COMMISSION IS SO REVOKED SHALL BE DISCHARGED FROM THE NAVAL SERVICE * * *.

THE PROVISIONS OF THE SAID SECTION 14 (A) ARE MADE APPLICABLE TO OFFICERS OF THE NAVAL RESERVE BY SECTION 6 OF THE ACT OF JUNE 25, 1938, 52 STAT. 1176, WHICH PROVIDES THAT OFFICERS OF THE NAVAL RESERVE ON ACTIVE DUTY SHALL BE SUBJECT TO SEPARATION THEREFROM IN THE SAME MANNER AS MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE SEPARATION OF OFFICERS OF THE REGULAR NAVY. PARAGRAPH 1 (A), NAVY DEPARTMENT GENERAL ORDER NO. 117, DATED JUNE 12, 1939, CONTAINING REGULATIONS ISSUED PURSUANT TO THE PROVISIONS OF THE SAID SECTION 14 (A) OF THE ACT OF JUNE 23, 1938, PROVIDES:

IN THE CASE OF OFFICERS SERVING UNDER REVOCABLE COMMISSIONS AS PROVIDED IN THE ACT OF CONGRESS APPROVED JUNE 23, 1938, THE SECRETARY OF THE NAVY MAY REVOKE THE COMMISSION OF ANY OFFICER WHOSE CONDUCT OR PERFORMANCE OF DUTY IS SUCH AS NOT TO JUSTIFY HIS RETENTION AS AN OFFICER OF THE LINE OF THE NAVY OR MARINE CORPS; OR WHOSE RETENTION AS AN OFFICER OF THE NAVY OR THE MARINE CORPS IS NOT JUSTIFIED FOROTHER GOOD AND SUFFICIENT REASONS APPEARING TO THE SATISFACTION OF THE SECRETARY OF THE NAVY.

WHILE NO REGULATIONS OR SPECIFIC STATUTORY PROVISIONS HAVE BEEN FOUND WHICH AFFECT THE PAY RIGHTS OF AN OFFICER OF THE NAVAL RESERVE WHO OBTAINS HIS COMMISSION BY FRAUD, IN BOTH THE ARMY AND THE NAVY A FRAUDULENT CONTRACT OF ENLISTMENT UNLESS ABSOLUTELY VOID, IS VOIDABLE AT THE OPTION OF THE GOVERNMENT AND, IF, BECAUSE OF HIS FRAUD, THE GOVERNMENT VOIDS THE CONTRACT, THE ENLISTED MAN IS ENTITLED TO NO PAY AND ALLOWANCES EXCEPT THOSE ALREADY RECEIVED BY HIM OR SPECIFICALLY PROVIDED TO BE PAID IN SUCH CASES. SEE ARMY REGULATIONS 35-1460 AND ARTICLE 2143-5 (C), BUREAU OF SUPPLIES AND ACCOUNTS MANUAL. THAT CONSTRUCTION OF FRAUDULENT CONTRACTS OF ENLISTMENT HAS BEEN THE ACCEPTED RULE FOR MANY YEARS (SEE 12 COMP. DEC. 445 AND DECISIONS THEREIN CITED) AND THERE IS NO APPARENT DIFFERENCE BETWEEN THE LEGAL INSUFFICIENCY OF SUCH A CONTRACT WHEN VOIDED BY THE GOVERNMENT AND AN AGREEMENT BETWEEN THE GOVERNMENT AND AN OFFICER WHO OBTAINS HIS COMMISSION BY FRAUD. CF. 15 COMP. GEN. 587; 16 ID. 775; DECISION A 77307, JULY 22, 1936.

THE FACTS DISCLOSED IN THE INSTANT CASE INDICATE THAT THE FALSE STATEMENT MADE BY THE FORMER OFFICER AND THE FORGED WRITING FURNISHED BY HIM WERE KNOWN BY HIM TO HAVE BEEN FALSE AND THAT THEY WERE MATERIAL MISREPRESENTATIONS OF THE TRUE FACTS WITH RESPECT TO HIS QUALIFICATIONS FOR THE POSITION TO WHICH APPOINTMENT WAS SOUGHT. THE ACTION TAKEN BY THE NAVY DEPARTMENT--- THE REVOCATION OF HIS COMMISSION--- INDICATES THAT HAD THE TRUE FACTS BEEN KNOWN, NO COMMISSION WOULD HAVE BEEN ISSUED TO HIM. UNDER SUCH CIRCUMSTANCES, THE STATUS RESULTING FROM HIS MISREPRESENTATION FORMS NO BASIS FOR A LEGAL PAYMENT OF PAY AND ALLOWANCES NOT ALREADY RECEIVED BY HIM. ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT OF ANY ARREARS OF PAY AND ALLOWANCES TO THE FORMER OFFICER IS NOT AUTHORIZED.