B-101861, JUNE 27, 1951, 30 COMP. GEN. 528

B-101861, JUNE 27, 1951, 30 COMP. GEN. 528

PAY AND ALLOWANCES - FRAUDULENT ENLISTMENT - DISHONORABLE DISCHARGE CHANGED TO HONORABLE BY REVIEW BOARD AN ENLISTED MEMBER OF THE ARMY WHO FRAUDULENTLY CONCEALED A PRIOR DISHONORABLE DISCHARGE UPON ENLISTMENT AND WHO WAS GIVEN A DISHONORABLE DISCHARGE AFTER DISCOVERY OF THE FRAUD IS NOT ENTITLED TO PAY AND ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT UPON RECEIVING AN HONORABLE DISCHARGE AS RESULT OF ACTION TAKEN BY AN ARMY DISCHARGE REVIEW BOARD, EVEN THOUGH HE MAY HAVE BEEN TEMPORARILY RESTORED TO DUTY FOR SEVERAL DAYS PRIOR TO THE DATE OF THE DISHONORABLE DISCHARGE.

ASSISTANT COMPTROLLER GENERAL YATES TO WILLIAM H. DE ROSIER, JUNE 27, 1951:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 24, WITH ENCLOSURES AND MAY 2, 1951, IN EFFECT REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED FEBRUARY 20, 1951, WHICH DISALLOWED YOUR CLAIM FOR ARREARS OF PAY BELIEVED TO BE DUE YOU AT THE RATE OF YOUR DISCHARGE, SEPTEMBER 29, 1948, INCIDENT TO YOUR SERVICE AS A RECRUIT, REGULAR ARMY. THE SAID CLAIM WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT THE RECORDS SHOW YOU WERE DISCHARGED FOR FRAUDULENT ENLISTMENT DUE TO CONCEALMENT OF A PRIOR DISHONORABLE DISCHARGE, AND UNDER APPLICABLE ARMY REGULATIONS AN INDIVIDUAL SO DISCHARGED IS NOT ENTITLED TO PAY OR TO AN ALLOWANCE OF ANY KIND.

IT APPEARS FROM THE RECORDS THAT YOU ENLISTED IN THE ARMY AT PHILADELPHIA, PENNSYLVANIA, ON JANUARY 10, 1948; THAT BY GENERAL COURT MARTIAL YOU WERE TRIED AND FOUND GUILTY FOR VIOLATION OF THE 54TH ARTICLE OF WAR (FRAUDULENT ENLISTMENT) AND SENTENCE WAS ADJUDGED JUNE 22, 1948, BY WHICH YOU WERE TO BE CONFINED AT HARD LABOR FOR FOUR MONTHS AND TO FORFEIT $50 PER MONTH FOR A LIKE PERIOD; AND THAT YOU WERE GIVEN AN UNDESIRABLE DISCHARGE AT FORT DIX, NEW JERSEY, ON SEPTEMBER 29, 1948, BY REASON OF YOUR FRAUDULENT ENLISTMENT.

THE ENCLOSURES SUBMITTED WITH YOUR LETTER OF FEBRUARY 24, 1951 INDICATE THAT YOU WERE ISSUED A DISCHARGE UNDER HONORABLE CONDITIONS AFTER A REVIEW OF THE FACTS CONNECTED WITH YOUR DISCHARGE BY THE ARMY DISCHARGE REVIEW BOARD ESTABLISHED UNDER THE PROVISIONS OF SECTION 301 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 286. IN THE SAID LETTER OF FEBRUARY 24, 1951, YOU CONTEND THAT YOU WERE ILLEGALLY DISCHARGED FOR FRAUDULENT ENLISTMENT AFTER BEING TRIED BY A GENERAL COURT MARTIAL WHICH SUBSEQUENTLY RETURNED YOU TO DUTY; THAT YOU HAVE IN EFFECT PROVED TO THE DISCHARGE REVIEW BOARD THAT THE ARMY WAS GUILTY OF A DOUBLE JEOPARDY, AND AS A RESULT THEREOF YOU RECEIVED A DISCHARGE UNDER HONORABLE CONDITIONS WHICH YOU NOW BELIEVE ENTITLES YOU TO ARREARS OF PAY.

PARAGRAPH 6, ARMY REGULATIONS 35-1460, APRIL 8, 1947, PROVIDES, IN MATERIAL PART, AS FOLLOWS:

AN ENLISTED PERSON WHOSE FRAUDULENT ENLISTMENT HAS BEEN REPUDIATED BY THE GOVERNMENT HAS NEVER ACQUIRED TITLE TO ANY PAY UNDER SUCH ENLISTMENT. IS NOT A CASE OF FORFEITURE OF PAY AND ALLOWANCES EARNED, BUT RATHER A CASE OF FAILURE TO EARN PAY AND ALLOWANCES. * * *

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 YOUR CASE, THE NONPAYMENT TO YOU OF THE PAY AND ALLOWANCES WHICH REMAINED UNPAID AT THE TIME OF YOUR 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 HAVE GIVEN YOU AN HONORABLE DISCHARGE AT THE TIME OF YOUR SEPARATION FROM THE SERVICE YOU WOULD NOT HAVE BEEN ENTITLED TO THE PAY AND ALLOWANCES IN QUESTION, SINCE THE TYPE OF DISCHARGE WOULD NOT HAVE CHANGED THE CHARACTER OF YOUR ENLISTMENT. FOLLOWS THAT THE SUBSEQUENT CHANGING OF THE CHARACTER OR TYPE OF YOUR DISCHARGE BY THE DISCHARGE REVIEW BOARD DID NOT CHANGE THE CHARACTER OF YOUR ENLISTMENT. SO FAR AS THE RECORD BEFORE THIS OFFICE DISCLOSES, YOUR 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.

FURTHERMORE, THE FACT, IF IT BE A FACT, THAT YOU MAY HAVE BEEN TEMPORARILY RESTORED TO DUTY FOR SEVERAL DAYS FOLLOWING YOUR RELEASE FROM CONFINEMENT TO THE DATE OF YOUR DISCHARGE, AS STATED BY YOU, DOES NOT WARRANT PAYMENT OF YOUR CLAIM CONTRARY TO APPLICABLE ARMY REGULATIONS AND THE DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT, SINCE THE SERVICE RENDERED UNDER SUCH CIRCUMSTANCES WOULD NOT APPEAR TO CONSTITUTE LAWFUL SERVICE. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT, AND IS SUSTAINED.

YOUR GENERAL DISCHARGE CERTIFICATE (AGO FORM 0457A) IS RETURNED HEREWITH, AS REQUESTED.