B-41208, MAY 4, 1944, 23 COMP. GEN. 839

B-41208: May 4, 1944

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REQUESTING DECISION ON THE SPECIFIC QUESTION "WHETHER AN ENLISTED MAN IS ENTITLED UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942 (37 U.S.C. TO HAVE COUNTED FOR PAY PURPOSES SERVICE PERFORMED UNDER A CONTRACT OF ENLISTMENT WHICH WAS TERMINATED FOR MISREPRESENTATION OF AGE AND LATER REISSUED AN HONORABLE DISCHARGE (MINORITY).'. WAS DISCHARGED APRIL 15. THAT HE IS AT PRESENT A CHIEF PHARMACIST'S MATE IN THE LATTER ORGANIZATION. WHO WAS DISCHARGED FOR FRAUDULENT ENLISTMENT ON ACCOUNT OF MINORITY OR MISREPRESENTATION OF AGE. SHALL HEREAFTER BE HELD AND CONSIDERED TO HAVE BEEN DISCHARGED HONORABLY FROM THE MILITARY SERVICE ON THE DATE OF HIS ACTUAL SEPARATION THEREFROM IF HIS SERVICE OTHERWISE WAS SUCH AS WOULD HAVE ENTITLED HIM TO AN HONORABLE DISCHARGE: PROVIDED.

B-41208, MAY 4, 1944, 23 COMP. GEN. 839

PAY - LONGEVITY - SERVICE CREDITS - FRAUDULENT ENLISTMENT AND SUBSEQUENT HONORABLE DISCHARGE THE PROVISION OF SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, AUTHORIZING THE COUNTING OF ACTIVE FEDERAL SERVICE IN COMPUTING LONGEVITY PAY, CONTEMPLATES THE COUNTING OF ONLY LAWFUL AND VALID SERVICE, AND, THEREFORE, THE ISSUANCE OF AN HONORABLE DISCHARGE UNDER THE ACT OF MARCH 3, 1936, OR SIMILAR PRIOR ACTS, TO AN ENLISTED MAN PREVIOUSLY DISCHARGE ON ACCOUNT OF FRAUDULENT ENLISTMENT--- CONCEALMENT OF AGE--- DOES NO CHANGE THE CHARACTER OF SUCH REPUDIATED SERVICE TO LEGAL SERVICE SO AS TO AUTHORIZE THE COUNTING OF SUCH SERVICE FOR LONGEVITY PAY PURPOSES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE ACTING SECRETARY OF THE NAVY, MAY 4, 1944:

THERE HAS BEEN CONSIDERED THE LETTER OF APRIL 3, TRANSMITTING A LETTER DATED MARCH 21, 1944, FROM THE COMMANDANT, U.S. COAST GUARD, RELATIVE TO THE CASE OF THEODORE DECARRICO, CPHM, U.S.C.G., AND REQUESTING DECISION ON THE SPECIFIC QUESTION "WHETHER AN ENLISTED MAN IS ENTITLED UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942 (37 U.S.C. SUPP. II, 109), TO HAVE COUNTED FOR PAY PURPOSES SERVICE PERFORMED UNDER A CONTRACT OF ENLISTMENT WHICH WAS TERMINATED FOR MISREPRESENTATION OF AGE AND LATER REISSUED AN HONORABLE DISCHARGE (MINORITY).'

IT APPEARS THAT DECARRICO ENLISTED IN THE ARMY APRIL 21, 1917, AND WAS DISCHARGED APRIL 15, 1918, ON ACCOUNT OF FRAUDULENT ENLISTMENT (AGE CONCEALED); THAT SUBSEQUENT TO APRIL 15, 1918, HE HAS HAD SERVICE AS AN ENLISTED MAN IN THE ARMY, THE NAVY, AND THE COAST GUARD; AND THAT HE IS AT PRESENT A CHIEF PHARMACIST'S MATE IN THE LATTER ORGANIZATION. ALSO, IT APPEARS THAT DECARRICO HAS BEEN ISSUED, PRESUMABLY UNDER ONE OF THE THREE STATUTES HEREINAFTER REFERRED TO, AN HONORABLE DISCHARGE (MINORITY) FOR THE PERIOD OF HIS ARMY SERVICE, APRIL 21, 1917, TO APRIL 15, 1918.

THE ACT OF MARCH 3, 1936, 49 STAT. 1159, PROVIDES:

THAT IN THE ADMINISTRATION OF ANY LAWS CONFERRING RIGHTS, PRIVILEGES, OR BENEFITS UPON HONORABLY DISCHARGED SOLDIERS OF THE UNITED STATES ARMY, THEIR WIDOWS AND DEPENDENT CHILDREN, A SOLDIER WHO SERVED AS AN ENLISTED MAN BETWEEN APRIL 6, 1917 AND NOVEMBER 11, 1918, BOTH DATES INCLUSIVE, AND WHO WAS DISCHARGED FOR FRAUDULENT ENLISTMENT ON ACCOUNT OF MINORITY OR MISREPRESENTATION OF AGE, SHALL HEREAFTER BE HELD AND CONSIDERED TO HAVE BEEN DISCHARGED HONORABLY FROM THE MILITARY SERVICE ON THE DATE OF HIS ACTUAL SEPARATION THEREFROM IF HIS SERVICE OTHERWISE WAS SUCH AS WOULD HAVE ENTITLED HIM TO AN HONORABLE DISCHARGE: PROVIDED, THAT NO BACK PAY OR ALLOWANCE SHALL ACCRUE BY REASON OF THE PASSAGE OF THIS ACT: PROVIDED FURTHER, THAT IN ALL SUCH CASES THE WAR DEPARTMENT SHALL, UPON REQUEST, GRANT TO SUCH MEN, OR THEIR WIDOWS, A DISCHARGE CERTIFICATE SHOWING THAT THE SOLDIER IS HELD AND CONSIDERED TO HAVE BEEN HONORABLY DISCHARGED UNDER THE PROVISIONS OF THIS ACT.

THE ABOVE STATUTE REENACTS, WITHOUT ANY CHANGE HERE MATERIAL, THE ACTS OF MARCH 16, 1926, 44 STAT. 208, AND OF MARCH 2, 1929, 45 STAT. 1505. EACH OF THE THREE ACTS REFERS TO RIGHTS CONFERRED UPON "HONORABLY DISCHARGED SOLDIERS OF THE UNITED STATES ARMY, THEIR WIDOWS AND DEPENDENT ILDREN," AND EACH CONTAINS A PROVISO TO THE EFFECT THAT NO BACK PAY OR ALLOWANCES SHALL ACCRUE BY REASON OF THE PASSAGE OF SAID ACT.

IN DECISION OF THIS OFFICE, 1 COMP. GEN. 511, DATED MARCH 15, 1922, PRIOR TO THE ENACTMENT OF ANY OF THE LEGISLATION HERE CONCERNED, IT WAS SAID, PAGES 512, 513:

IT HAS BEEN HELD UNIFORMLY IN THE CASE OF A SOLDIER WHO ON ENTRY INTO THE SERVICE FRAUDULENTLY CONCEALED OR MISREPRESENTED A MATERIAL FACT DISQUALIFYING HIM FOR ENLISTMENT, AND WHO IS DISCHARGED UPON DISCOVERY BY THE GOVERNMENT OF THE FRAUD, THAT HIS DISCHARGE CONSTITUTES AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT; AND THE MAN IS NOT ENTITLED TO PAY OR ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT; HE IS, HOWEVER, PERMITTED TO RETAIN THE PAY PAID HIM CURRENTLY WHILE SERVING. COMP. DEC., 151; 5 ID., 543; 8 ID., 679; 12 ID., 326 AND 622; 17 ID., 122; 22 ID., 538. AND IT HAS BEEN SAID, 8 COMP. DEC. 655, 657--- " ANDREW MOONERT WAS DISCHARGED FOR A CAUSE (MINORITY CONCEALED AT ENLISTMENT) INVOLVING FRAUD ON HIS PART IN THE ENLISTMENT. THE SERVICE FROM WHICH HE WAS SO DISCHARGED ENTITLED TO NO PAY, TRAVELING ALLOWANCES, OR OTHER ALLOWANCES, IS WHOLLY ILLEGAL, AND IS NOT TO BE CONSIDERED SERVICE FOR ANY PURPOSE.'

THIS IS THE SOUND AND THE CORRECT VIEW. A CONTRACT OF ENLISTMENT OF THIS CHARACTER IS VOIDABLE AND WHEN AVOIDED BY THE GOVERNMENT IS VOID AB INITIO. IT MUST FOLLOW THAT THE SERVICES IN SUCH AN ENLISTMENT MAY NOT BE COUNTED EITHER FOR LONGEVITY INCREASE OF PAY OR FOR RETIREMENT, AS NO LAWFUL SERVICE WAS RENDERED. * * *

IT WAS HELD IN 33 OP. ATTY. GEN. 404 THAT IN COMPUTING THE 30 YEARS' SERVICE REQUIRED FOR RETIREMENT OF AN ENLISTED MAN UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, 34 STAT. 1217, CREDIT SHOULD NOT BE ALLOWED FOR SERVICE UNDER A FRAUDULENT ENLISTMENT WHERE SUCH SERVICE WAS TERMINATED BY A DISHONORABLE DISCHARGE ON ACCOUNT OF SAID FRAUDULENT ENLISTMENT. THAT OPINION IT WAS STATED (P. 408):

WHEN A SOLDIER IS DISCHARGED ON ACCOUNT OF HIS FRAUDULENT ENLISTMENT, THE UNITED STATES THEREWITH INDICATES ITS UNWILLINGNESS TO RECOGNIZE THE SERVICE AS VALID. I BELIEVE THAT THE RETIREMENT ACTS WERE INTENDED TO REWARD ONLY VALID SERVICE. SERVICE CAN SCARCELY BE CONSIDERED VALID WHERE THE UNITED STATES WITH FULL KNOWLEDGE OF THE FACTS HAS CHOSEN TO REPUDIATE IT.

SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, PROVIDES IN PERTINENT PART AS FOLLOWS:

EVERY ENLISTED MAN PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS GRADE FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS. SUCH SERVICE SHALL BE ACTIVE FEDERAL SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT OR RESERVE COMPONENTS THEREOF; SERVICE IN THE ACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA; AND SERVICE IN THE ENLISTED RESERVE CORPS OF THE ARMY, THE NAVAL RESERVE, THE MARINE CORPS RESERVE, AND THE COAST GUARD RESERVE.

THE SERVICE CONTEMPLATED BY SAID SECTION 9 IS LAWFUL AND VALID SERVICE AND DOES NOT COMPREHEND OR INCLUDE THE TIME WHICH EXPRESSLY HAS BEEN RESCINDED BY DISCHARGE OF THE MAN UPON DISCOVERY BY THE GOVERNMENT OF THE FRAUD. INSOFAR AS THE ISSUANCE OF AN HONORABLE DISCHARGE UNDER THE PROVISIONS OF THE ACT OF MARCH 3, 1936, SUPRA, OR THE PRIOR ACTS, IS CONCERNED, IT APPEARS EVIDENT THAT SUCH ADMINISTRATIVE ACTION, LONG AFTER THE EVENT, DOES NOT CHANGE THE CHARACTER OF THE REPUDIATED SERVICE TO LEGAL SERVICE UNDER THE PROVISIONS OF SAID SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942.

ACCORDINGLY, I HAVE TO ADVISE THAT ISSUANCE OF AN HONORABLE DISCHARGE UNDER THE ACT OF MARCH 3, 1936, CONFERS NO RIGHT TO LONGEVITY CREDIT FOR SERVICE UNDER FRAUDULENT CONTRACTS OF ENLISTMENTS WHICH HAVE BEEN RESCINDED UPON DISCOVERY OF THE FRAUD.