B-95399, JULY 17, 1950, 30 COMP. GEN. 18

B-95399, JULY 17, 1950, 30 COMP. GEN. 18

PAY AND ALLOWANCES - FRAUDULENT ENLISTMENT - DISCHARGE CHANGED TO HONORABLE BY REVIEW BOARD AN ENLISTED MEMBER OF THE ARMY WHO ON ENTRY INTO THE SERVICE FRAUDULENTLY CONCEALED A CRIMINAL RECORD WHICH DISQUALIFIED HIM FOR ENLISTMENT, AND WHO WAS DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS UPON DISCOVERY OF THE FRAUD, IS NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT, EVEN THOUGH THE DISCHARGE WAS REVIEWED BY AN ARMY DISCHARGE REVIEW BOARD AND CHANGED TO A DISCHARGE UNDER HONORABLE CONDITIONS.

DECISION BY ASSISTANT COMPTROLLER GENERAL YATES, JULY 17, 1950:

REFERENCE IS MADE TO LETTER DATED APRIL 4, 1950, RECEIVED BY REFERENCE FROM THE DEPARTMENT OF THE ARMY, CONCERNING A CLAIM FOR SAVINGS BONDS AND TWO MONTHS' BACK PAY. CLAIMANT STATES THAT HIS DISCHARGE HAS NOW BEEN REVIEWED AND DECLARED TO BE HONORABLE BY THE OFFICE OF THE ADJUTANT GENERAL.

THE RECORDS SHOW THAT THE CLAIM FOR ARREARS OF PAY BELIEVED TO BE DUE FOR THE PERIOD MARCH 1 TO MAY 6, 1949, INCIDENT TO SERVICE IN THE UNITED STATES ARMY WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE DATED MARCH 2, 1950, FOR THE REASON THAT THE RECORDS SHOW CLAIMANT WAS DISCHARGED FOR FRAUDULENT ENLISTMENT DUE TO CONCEALMENT OF A CRIMINAL RECORD, AND UNDER APPLICABLE ARMY REGULATIONS AN INDIVIDUAL SO DISCHARGED IS NOT ENTITLED TO PAY OR TO AN ALLOWANCE OF ANY KIND.

IT APPEARS FROM CLAIMANT'S STATEMENT THAT AN HONORABLE DISCHARGE WAS ISSUED IN HIS CASE AFTER A REVIEW OF THE FACTS CONNECTED WITH HIS DISCHARGE PRESUMABLY BY THE ARMY DISCHARGE REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 301 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 286.

IN DECISION OF THIS OFFICE DATED OCTOBER 24, 1946, 26 COMP. GEN. 265, IT WAS STATED THAT THE APPARENT PURPOSE OF THE PROVISIONS OF LAW REFERRED TO ABOVE WAS TO CORRECT INJUSTICES DONE AT THE TIME OF DISCHARGE AND THAT IT WOULD APPEAR THAT THE INTENT OF CONGRESS IN THAT RESPECT COULD BE GIVEN COMPLETE EFFECT ONLY BY RECOGNIZING THE RIGHT OF A FORMER OFFICER OR ENLISTED PERSON 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.

IN THIS CASE, THE NONPAYMENT TO CLAIMANT OF THE PAY AND ALLOWANCES WHICH REMAINED UNPAID AT THE TIME OF HIS DISCHARGE WAS PREDICATED NOT ON THE FACT THAT HE WAS DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS BUT ON THE FACT THAT HIS ENLISTMENT WAS FRAUDULENT AND WAS TERMINATED BECAUSE OF FRAUD. HENCE, EVEN HAD IT BEEN POSSIBLE TO HAVE GIVEN HIM AN HONORABLE DISCHARGE AT THE TIME OF HIS SEPARATION FROM THE SERVICE HE WOULD NOT HAVE BEEN ENTITLED TO THE PAY AND ALLOWANCES IN QUESTION, SINCE THE TYPE OF DISCHARGE WOULD NOT HAVE CHANGED THE CHARACTER OF HIS ENLISTMENT. FOLLOWS THAT THE SUBSEQUENT CHANGING OF THE CHARACTER OR TYPE OF DISCHARGE BY THE DISCHARGE REVIEW BOARD DID NOT CHANGE THE CHARACTER OF THE ENLISTMENT. SO FAR AS THE RECORD BEFORE THIS OFFICE DISCLOSES, THE ENLISTMENT WAS FRAUDULENT IN ITS INCEPTION. 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 AND ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT. AND, SINCE CLAIMANT WAS NOT ENTITLED TO ANY PAY AND ALLOWANCES DURING THE PERIOD IN QUESTION, THERE WAS NO MONEY AVAILABLE FOR THE PURCHASE OF BONDS FOR WHICH HE HAD AN ALLOTMENT IN EFFECT. ACCORDINGLY, THE DISALLOWANCE OF HIS CLAIM WAS CORRECT, AND IS SUSTAINED.