B-139265, FEB. 11, 1960

B-139265, FEB. 11, 1960

TO MR. RAY D. WILSON:

REFERENCE IS MADE TO LETTER OF NOVEMBER 20, 1959, WRITTEN ON YOUR BEHALF BY MR. SMULYAN CONCERNING THE PAY TO WHICH YOU WERE ENTITLED DURING THE PERIOD JULY 7, 1958, TO DATE OF DISCHARGE INCIDENT TO YOUR SERVICE IN THE ARMY.

THE FACTS IN THE CASE ARE RECITED IN DECISION OF JULY 20, 1959, B 139265, 39 COMP. GEN. 42, COPY ENCLOSED. IN ADDITION TO THE FACTS THERE RECITED, MR. SMULYAN STATES THAT THE ARMY BOARD OF REVIEW RENDERED A DECISION DATED AUGUST 15, 1958, WHICH FOUND CORRECT IN LAW AND FACT THE APPROVED FINDINGS OF GUILTY AND THE SENTENCE IN YOUR CASE, BUT APPROVED ONLY SO MUCH OF THE SENTENCE AS PROVIDED FOR CONFINEMENT AT HARD LABOR FOR TWO YEARS AND FORFEITURE OF $70 A MONTH FOR 6 MONTHS. HE FURTHER STATES THAT COURT- MARTIAL ORDER DATED JANUARY 21, 1959, PROVIDED THAT THE APPLICATION OF THE FORFEITURES SHOULD APPLY ONLY TO PAY BECOMING DUE AFTER THE DATE OF THAT ORDER. IT APPEARS THAT HE THINKS YOU WERE NOT REDUCED TO THE GRADE OF PRIVATE ON JULY 7, 1958, AND THAT THEREFORE A RECOMPUTATION OF YOUR PAY IS IN ORDER.

UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 10652, JANUARY 10, 1956, QUOTED IN OUR DECISION OF JULY 20, 1959, THE REDUCTION TO THE LOWEST PAY GRADE IS AUTOMATICALLY EFFECTED ON THE DATE OF APPROVAL BY THE CONVENING AUTHORITY OF A SENTENCE INCLUDING CONFINEMENT. YOUR REDUCTION IN GRADE UNDER THOSE PROVISIONS DOES NOT APPEAR TO BE AFFECTED BY SUBSEQUENT ACTION IN THE CASE, SINCE THE SENTENCE AS FINALLY APPROVED INCLUDED CONFINEMENT.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD THE MATTERS REFERRED TO IN MR. SMULYAN'S LETTER DO NOT REQUIRE ANY CHANGE IN THE CONCLUSIONS REACHED IN OUR DECISION OF JULY 20, 1959.