B-48750, SEP 12, 1952

B-48750, SEP 12, 1952

PRECIS-UNAVAILABLE

MR. FRANCIS W. OSWALD:

REFERENCE IS MADE TO YOUR COMMUNICATION OF AUGUST 6, 1952, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE YOU INCIDENT TO YOUR TWO PERIODS OF SERVICE AS AN ENLISTED MAN IN THE UNITED STATES ARMY. ALSO, THERE HAS BEEN RECEIVED A LETTER FROM HONORABLE JOSEPH R. MCCARTHY, DATED AUGUST 11, 1952, AND ENCLOSURE, FURTHER CONCERNING YOUR CLAIM. IT APPEARS THAT THE BASIS FOR YOUR PRESENT REQUEST IS THAT THE ARMY DISCHARGE REVIEW BOARD CHANGED YOUR TWO DISCHARGES FROM "NOT HONORABLE" AND "UNDESIRABLE," RESPECTIVELY, TO HONORABLE DISCHARGES.

THE RECORD SHOWS THAT YOU ENLISTED IN THE UNITED STATES ARMY AT PEORIA, ILLINOIS, ON JUNE 17, 1940; THAT YOU WERE IN DESERTION FOR A PERIOD OF 122 DAYS FROM SEPTEMBER 14, 1940, TO JANUARY 13, 1941, INCLUSIVE; THAT YOU WERE RETURNED TO MILITARY CONTROL ON JANUARY 14, 1941, AND THAT YOU WERE DISCHARGED, NOT HONORABLY, ON FEBRUARY 12, 1941, AT FORT MCCLELLAN, ALABAMA, ON ACCOUNT OF DESERTION AND PHYSICAL UNFITNESS. ALSO, THE RECORD SHOWS THAT YOU ENLISTED IN THE UNITED STATES ARMY AT FORT SHERIDAN, ILLINOIS, ON DECEMBER 18, 1947; THAT YOU RECEIVED AN UNDESIRABLE DISCHARGE AS A PRIVATE UNDER CONDITIONS OTHER THAN HONORABLE ON FEBRUARY 10, 1948, AT FORT KNOX, KENTUCKY, BY REASON OF FRAUDULENT ENLISTMENT; AND THAT UPON SUCH DISCHARGE YOU WERE PAID $10 AS A DONATION. IT NOW APPEARS THAT UPON YOUR APPLICATION, THE ARMY DISCHARGE REVIEW BOARD, ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 301 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 286, REVIEWED THE FACTS CONNECTED WITH YOUR TWO DISCHARGES, AND THAT ON THE BASIS OF SUCH REVIEW THE SECRETARY OF THE ARMY, ON NOVEMBER 28, 1951, DIRECTED THAT YOU BE ISSUED HONORABLE DISCHARGE CERTIFICATES FOR YOUR TWO PERIODS OF SERVICE. 17, 1944, YOU WERE ALLOWED THE NET BALANCE DUE YOU AS PAY AT DATE OF DISCHARGE ON FEBRUARY 12, 1941, BUT SINCE YOUR DISCHARGE WAS NOT UNDER HONORABLE CONDITIONS YOU WERE NOT ALLOWED TRAVEL ALLOWANCE UPON SUCH DISCHARGE. SINCE YOU WERE SUBSEQUENTLY ISSUED AN HONORABLE DISCHARGE YOU ARE ENTITLED, UNDER THE PROVISIONS OF SECTION 126 OF THE NATIONAL DEFENSE ACT, 39 STAT. 217, AS AMENDED BY SECTION 3 OF THE ACT OF FEBRUARY 28, 1919, 40 STAT. 1203, AND THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, TO TRAVEL ALLOWANCE AT 5 CENTS PER MILE FOR THE DISTANCE FROM FORT MCCLELLAN, ALABAMA, PLACE OF DISCHARGE, TO PEORIA, ILLINOIS, PLACE OF ENLISTMENT. IN THAT CONNECTION, THE RULE IS WELL ESTABLISHED THAT ON THE BASIS OF LAW AND PUBLIC POLICY AN AMOUNT DUE A SOLDIER ON DISCHARGE AS A TRAVEL ALLOWANCE IS NOT FOR SET-OFF AGAINST ANY INDEBTEDNESS OF SUCH SOLDIER TO THE UNITED STATES. 20 COMP. GEN. 707; 8 COMP. GEN. 233.

SECTION 1 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 56 STAT. 8, PROVIDES IN PERTINENT PART AS FOLLOWS:

"THAT (A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE BEEN ENGAGED IN ACTIVE SERVICE IN THE PRESENT WAR, AND WHO IS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS ON OR AFTER DECEMBER 7, 1941, SHALL BE ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENT."

SINCE YOU WERE DISCHARGED FROM YOUR FIRST ENLISTMENT ON FEBRUARY 12, 1941, PRIOR TO DECEMBER 7, 1941, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR MUSTERING-OUT PAYMENT INCIDENT TO SUCH DISCHARGE, NOTWITHSTANDING THE FACT THAT YOU HAVE BEEN ISSUED A DISCHARGE UNDER HONORABLE CONDITIONS.

WITH RESPECT TO YOUR CLAIM FOR PAY AND ALLOWANCES INCIDENT TO YOUR DISCHARGE ON FEBRUARY 10, 1948, YOU ARE ADVISED THAT THE NON-PAYMENT OF THE PAY AND ALLOWANCES WHICH REMAINED UNPAID AT THE TIME OF SUCH DISCHARGE WAS PREDICATED, NOT ON THE FACT THAT YOU WERE DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS, BUT ON THE FACT THAT YOUR ENLISTMENT WAS FRAUDULENT AND WAS TERMINATED BECAUSE OF FRAUD. HENCE, EVEN HAD IT BEEN POSSIBLE TO GIVE YOU AN HONORABLE DISCHARGE AT THE TIME OF YOUR SEPARATION FROM SERVICE, YOU WOULD NOT HAVE BEEN ENTITLED TO THE PAY AND ALLOWANCES IN QUESTION INCIDENT TO YOUR SECOND ENLISTMENT, SINCE THE TYPE OF DISCHARGE WOULD NOT HAVE CHANGED THE CHARACTER OF YOUR ENLISTMENT. IT FOLLOWS THAT THE SUBSEQUENT CHANGING OF THE CHARACTER OR TYPE OF YOUR DISCHARGE BY THE ARMY DISCHARGE REVIEW BOARD DID NOT CHANGE THE CHARACTER OF YOUR ENLISTMENT. IT HAS BEEN HELD UNIFORMLY IN THE CASE OF A SOLDIER WHO UPON ENTRY INTO THE SERVICE FRAUDULENTLY CONCEALED OR MISREPRESENTED A MATERIAL FACT WHICH DISQUALIFIED 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 AND ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT. 30 COMP. GEN. 18. ACCORDINGLY, YOU ARE NOT ENTITLED TO ANY PAY AND ALLOWANCES CLAIMED INCIDENT TO YOUR SECOND PERIOD OF ENLISTMENT IN THE UNITED STATES ARMY.

WITH RESPECT TO YOUR RIGHT TO MUSTERING-OUT PAYMENT INCIDENT TO YOUR DISCHARGE ON FEBRUARY 10, 1948, IT APPEARS THAT YOU ENLISTED ON DECEMBER 18, 1947, AND, IN THAT CONNECTION, SECTION 1(B) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED BY SECTION 6 OF THE ACT OF JUNE 28, 1947, 61 STAT. 192, PROVIDES, AMONG OTHER THINGS, THAT NO MUSTERING-OUT PAYMENT SHALL BE MADE TO ANY PERSON ENTERING UPON ACTIVE SERVICE, OR ENLISTING, ON OR AFTER JULY 1, 1947. HENCE, SINCE YOU ENLISTED ON DECEMBER 18, 1947, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR MUSTERING-OUT PAYMENT INCIDENT TO YOUR DISCHARGE ON FEBRUARY 10, 1948.

IN VIEW OF THE FOREGOING, YOU ARE ENTITLED TO TRAVEL ALLOWANCE AS HEREINABOVE EXPLAINED FROM FORT MCCLELLAN, ALABAMA, TO PEORIA, ILLINOIS, INCIDENT TO YOUR DISCHARGE ON FEBRUARY 12, 1941, AND A SETTLEMENT FOR THE AMOUNT FOUND TO BE DUE ON SUCH BASIS WILL BE ISSUED IN DUE COURSE.