B-60854, OCTOBER 24, 1946, 26 COMP. GEN. 265

B-60854, OCTOBER 24, 1946, 26 COMP. GEN. 265

TRAVEL ALLOWANCE - ENTITLEMENT UPON SUBSEQUENT CHANGE OF TYPE OF DISCHARGE WHERE THE BAD CONDUCT DISCHARGE OF A FORMER NAVY ENLISTED MAN WAS CHANGED TO A DISCHARGE UNDER HONORABLE CONDITIONS FOR THE CONVENIENCE OF THE GOVERNMENT BY THE DEPARTMENTAL BOARD OF REVIEW, DISCHARGES AND DISMISSALS, WITH THE APPROVAL OF THE SECRETARY OF THE NAVY, PURSUANT TO SECTION 301 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, SUCH FORMER ENLISTED MAN IS ENTITLED TO THE TRAVEL ALLOWANCE PROVIDED BY SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED, FROM THE PLACE OF DISCHARGE, THE SAME AS THOUGH HE ORIGINALLY HAD BEEN DISCHARGED UNDER HONORABLE CONDITIONS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 24, 1946:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 20, 1946, REQUESTING DECISION ON A QUESTION SET FORTH IN A LETTER FROM THE ASSISTANT CHIEF OF NAVAL PERSONNEL DATED SEPTEMBER 13, 1946, AS FOLLOWS:

1. THE RECORDS OF THE BUREAU SHOW THAT TREZZA WAS FIRST ACCEPTED FOR ENLISTMENT AND ENLISTED AT THE U.S. NAVAL RESERVE AVIATION BASE, FLOYD BENNETT FIELD, BROOKLYN, N.Y. 29 JULY 1941 AS SEAMAN 2C, V-5, USNR. DUE TO FAILURE IN ELIMINATION FLIGHT TRAINING HE WAS RELEASED FROM ACTIVE DUTY AT THE NAVAL RESERVE AVIATION BASE, BOSTON ( SQUANTUM), MASS. 27 DECEMBER 1941. HE WAS DISCHARGED FROM THE NAVAL RESERVE FORCE WITH A "GOOD" DISCHARGE BY THE THIRD NAVAL DISTRICT 6 FEBRUARY 1942.

2. TREZZA WAS INDUCTED BY SELECTIVE SERVICE AT L.B. NO. 175 BROOKLYN, N.Y. 11 SEPTEMBER 1943, AND HE THEN VOLUNTARILY ENLISTED IN CLASS V-6, USNR AT NEW YORK, N.Y. 11 SEPTEMBER 1943, AS APPRENTICE SEAMAN. HE WAS DISCHARGED AT THE NAVAL TECHNICAL TRAINING CENTER, JACKSONVILLE, FLA. 28 APRIL 1944, WITH THE " BAD CONDUCT DISCHARGE" BY REASON OF SENTENCE OF SUMMARY COURT MARTIAL, AND WAS PAID NO TRAVEL ALLOWANCE ON THIS OCCASION.

3. UPON REQUEST OF THE SUBJECT MAN, THE BAD CONDUCT DISCHARGE GIVEN ON 28 APRIL 1944, WAS REVIEWED BY THE BOARD OF REVIEW, DISCHARGES AND DISMISSALS, NAVY DEPARTMENT. THIS BOARD, ON 26 OCTOBER 1945, WITH APPROVAL OF THE SECRETARY OF THE NAVY, AUTHORIZED THE BUREAU OF NAVAL PERSONNEL TO CHANGE THE CHARACTER OF DISCHARGE TO A DISCHARGE UNDER HONORABLE CONDITIONS FOR THE CONVENIENCE OF THE GOVERNMENT. THIS WAS DONE AND A NEW DISCHARGE CERTIFICATE OF THIS CHARACTER DATED 28 APRIL 1944, WAS MAILED TO TREZZA ON 6 NOVEMBER 1945.

4. IT IS RECOMMENDED THAT THE ENCLOSURE BE FORWARDED TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR DECISION AS TO WHETHER THE CHANGE IN THE CHARACTER OF DISCHARGE, ACTUALLY MADE SUBSEQUENT TO ACTUAL DATE OF DISCHARGE, AUTOMATICALLY OPERATES TO ENTITLE THE HOLDER TO TRAVEL ALLOWANCE OF FIVE CENTS PER MILE FROM JACKSONVILLE, FLA., TO BROOKLYN, N.Y., LOCATION OF THE LOCAL BOARD TO WHICH HE FIRST REPORTED FOR DELIVERY TO AN INDUCTION STATION.

THE QUESTION SUBMITTED INVOLVES A DETERMINATION OF THE EFFECT OF THE ACTION TAKEN BY THE BOARD OF REVIEW, DISCHARGES AND DISMISSALS, NAVY DEPARTMENT, WITH THE APPROVAL OF THE SECRETARY OF THE NAVY, ON OCTOBER 26, 1945, IN CHANGING THE CHARACTER OF THE " BAD CONDUCT DISCHARGE"--- GIVEN MR. TREZZA ON APRIL 28, 1944, BY REASON OF SUMMARY COURT MARTIAL- - TO A DISCHARGE UNDER HONORABLE CONDITIONS FOR THE CONVENIENCE OF THE GOVERNMENT. FROM THE FACTS STATED, IT APPEARS THAT THE ACTION TAKEN BY SAID BOARD WAS PURSUANT TO AUTHORITY CONTAINED IN SECTION 301 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 286, AS FOLLOWS:

SEC. 301. THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY, AFTER CONFERENCE WITH THE ADMINISTRATOR OF VETERANS' AFFAIRS, ARE AUTHORIZED AND DIRECTED TO ESTABLISH IN THE WAR AND NAVY DEPARTMENTS, RESPECTIVELY, BOARDS OF REVIEW COMPOSED OF FIVE MEMBERS EACH, WHOSE DUTIES SHALL BE TO REVIEW, ON THEIR OWN MOTION OR UPON THE REQUEST OF A FORMER OFFICER OR ENLISTED MAN OR WOMAN OR, IF DECEASED, BY THE SURVIVING SPOUSE, NEXT OF KIN, OR LEGAL REPRESENTATIVE, THE TYPE AND NATURE OF HIS DISCHARGE OR DISMISSAL, EXCEPT A DISCHARGE OR DISMISSAL BY REASON OF THE SENTENCE OF A GENERAL COURT MARTIAL. SUCH REVIEW SHALL BE BASED UPON ALL AVAILABLE RECORDS OF THE SERVICE DEPARTMENT RELATING TO THE PERSON REQUESTING SUCH REVIEW, AND SUCH OTHER EVIDENCE AS MAY BE PRESENTED BY SUCH PERSON. WITNESSES SHALL BE PERMITTED TO PRESENT TESTIMONY EITHER IN PERSON OR BY AFFIDAVIT AND THE PERSON REQUESTING REVIEW SHALL BE ALLOWED TO APPEAR BEFORE SUCH BOARD IN PERSON OR BY COUNSEL: PROVIDED, THAT THE TERM "COUNSEL" AS USED IN THIS SECTION SHALL BE CONSTRUED TO INCLUDE, AMONG OTHERS, ACCREDITED REPRESENTATIVES OF VETERANS' ORGANIZATIONS RECOGNIZED BY THE VETERANS' ADMINISTRATION UNDER SECTION 200 OF THE ACT OF JUNE 29, 1936 ( PUBLIC LAW NUMBERED 844, SEVENTY-FOURTH CONGRESS). SUCH BOARD SHALL HAVE AUTHORITY, EXCEPT IN THE CASE OF A DISCHARGE OR DISMISSAL BY REASON OF THE SENTENCE OF A GENERAL COURT MARTIAL, TO CHANGE, CORRECT, OR MODIFY ANY DISCHARGE OR DISMISSAL, AND TO ISSUE A NEW DISCHARGE IN ACCORD WITH THE FACTS PRESENTED TO THE BOARD. THE ARTICLES OF WAR AND THE ARTICLES FOR THE GOVERNMENT OF THE NAVY ARE HEREBY AMENDED TO AUTHORIZE THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY TO ESTABLISH SUCH BOARDS OF REVIEW, THE FINDINGS THEREOF TO BE FINAL SUBJECT ONLY TO REVIEW BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, RESPECTIVELY: PROVIDED, THAT NO REQUEST FOR REVIEW BY SUCH BOARD OF A DISCHARGE OR DISMISSAL UNDER THE PROVISIONS OF THIS SECTION SHALL BE VALID UNLESS FILED WITHIN FIFTEEN YEARS AFTER SUCH DISCHARGE OR DISMISSAL OR WITHIN FIFTEEN YEARS AFTER THE EFFECTIVE DATE OF THIS ACT, WHICHEVER BE THE LATER.

THE APPARENT PURPOSE OF THE ABOVE-QUOTED PROVISION OF LAW IS TO CORRECT INJUSTICES DONE AT THE TIME OF DISCHARGE, AND THE INTENT OF THE CONGRESS IN THAT RESPECT CAN BE GIVEN EFFECT ONLY BY RECOGNIZING THAT THE FORMER OFFICER OR ENLISTED MAN IS ENTITLED TO THE BENEFITS HE WOULD HAVE BEEN ENTITLED TO RECEIVE ON DISCHARGE HAD HE ORIGINALLY RECEIVED THE TYPE OF DISCHARGE WHICH THE STATUTORY REVIEW BOARD FINDS HE SHOULD HAVE RECEIVED. MR. TREZZA RECEIVED A CERTIFICATE OF DISCHARGE UNDER HONORABLE CONDITIONS FOR THE CONVENIENCE OF THE GOVERNMENT UPON THE REVIEW OF HIS CASE BY SUCH BOARD. HE THEREBY BECAME ENTITLED TO THE BENEFITS--- INCLUDING TRAVEL ALLOWANCE AUTHORIZED UNDER SECTION 126 OF THE NATIONAL DEFENSE ACT, 39 STAT. 217, AS AMENDED, 34 U.S.C. 895, SUPP. III--- WHICH HE SHOULD HAVE BEEN ENTITLED TO RECEIVE HAD A CERTIFICATE OF DISCHARGE UNDER HONORABLE CONDITIONS BEEN ISSUED TO HIM AT THE TIME OF HIS SEPARATION FROM THE SERVICE. ACCORDINGLY, HE NOW IS ENTITLED TO TRAVEL ALLOWANCE BASED ON THE DISTANCE FROM PLACE OF DISCHARGE TO THE LOCATION OF THE LOCAL BOARD AT WHICH HE FIRST REPORTED FOR DELIVERY TO AN INDUCTION STATION AS PROVIDED IN SAID SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED. THE VOUCHER ENCLOSED WITH YOUR LETTER IS RETURNED HEREWITH.