B-109847, JAN 22, 1953

B-109847, JAN 22, 1953

PRECIS-UNAVAILABLE

SHERMAN WILLIAMS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 22, 1952, IN EFFECT REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JUNE 6, 1950, WHICH DISALLOWED YOUR CLAIM FOR MUSTERING-OUT PAY IN THE AMOUNT OF $100.00 BELIEVED TO BE DUE YOU AT THE DATE OF YOUR DISCHARGE JUNE 22, 1943, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN, UNITED STATES NAVY. WITH YOUR LETTER YOU ENCLOSED A LETTER DATED APRIL 18, 1952, FROM THE BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, CLEVELAND, OHIO, ADVISING YOU TO REQUEST THIS OFFICE TO GIVE FURTHER CONSIDERATION ON YOUR CLAIM.

THE SAID CLAIM WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT EVEN THOUGH YOUR ORIGINAL UNDESIRABLE DISCHARGE, ON ACCOUNT OF FRAUDULENT ENLISTMENT, WAS SUBSEQUENTLY CHANGED TO A DISCHARGE UNDER HONORABLE CONDITIONS BY THE DISCHARGE REVIEW BOARD, SUCH CHANGING OF THE CHARACTER OF DISCHARGE DOES NOT ALTER THE CHARACTER OF THE ENLISTMENT.

IN RESPONSE TO AN INQUIRY FROM THIS OFFICE, THE BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, WASHINGTON 25, D.C., IN A LETTER DATED OCTOBER 10, 1952, REPORTED THAT FOLLOWING YOUR INDUCTION IN THE UNITED STATES NAVY YOU VOLUNTARILY ENLISTED ON MAY 3, 1943, IN THE NAVAL RESERVE FOR A PERIOD OF TWO YEARS, AND THAT YOU WERE DISCHARGED THEREFROM ON JUNE 22, 1943, WITH AN UNDESIRABLE DISCHARGE BY REASON OF FRAUDULENT ENLISTMENT, DUE TO HAVING A PREVIOUS POLICE RECORD. THE REPORT FURTHER STATES THAT YOUR CASE WAS REVIEWED BY THE BOARD OF REVIEW DISCHARGES AND DISMISSALS, AND ON FEBRUARY 1, 1950, THE CHARACTER OF YOUR DISCHARGE WAS CHANGED TO UNDER HONORABLE CONDITIONS.

THE MUSTERING-OUT PAY AUTHORIZED BY THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, IS TO BE PAID TO EACH MEMBER OF THE ARMED FORCES, WITH EXCEPTIONS NOT HERE MATERIAL, "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," AND SECTION 3 OF THE SAID SET PROVIDES THAT THE RIGHT TO SUCH PAY ACCRUES "AS OF THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR OF ULTIMATE RELIEF FROM ACTIVE SERVICE." UNDER SUCH PROVISIONS MUSTERING-OUT PAY MUST BE CONSIDERED AS PAY AND ALLOWANCES ACCRUING ON THE DATE OF TERMINATION OF THE ENLISTMENT CONTRACT UNDER HONORABLE CONDITIONS. A FRAUDULENT CONTRACT OF ENLISTMENT, UNLESS ABSOLUTELY VOID, IS VOIDABLE AT THE OPTION OF THE GOVERNMENT. THE OPTION OF AVOIDING THE ENLISTMENT CONTRACT LIES WITH THE GOVERNMENT AND SUCH ENLISTMENT IS TERMINABLE BY THE GOVERNMENT AT ANY TIME PRIOR TO THE NORMAL EXPIRATION OF THE TERM OF SERVICE FOR WHICH THE SOLDIER ENLISTED (REID V UNITED STATES (S.D.N.Y. 1908) 161 F. 469). UPON DISCOVERY OF THE FRAUD THE GOVERNMENT MAY, ON THE GROUND OF FRAUDULENT ENLISTMENT, DISCHARGE THE INDIVIDUAL WHO HAS SO ENLISTED. WHETHER SUCH A DISCHARGE IS TO BE ISSUED IS A MATTER FOR DETERMINATION BY THE ADMINISTRATIVE DEPARTMENT CONCERNED, IN YOUR CASE, THE DEPARTMENT OF THE NAVY, BUT ONCE A DISCHARGE IS EXECUTED IT CONSTITUTES AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT AND RENDERES IT VOID FROM THE BEGINNING. IT HAS BEEN HELD UNIFORMLY BY THIS OFFICE AND FORMER ACCOUNTING OFFICERS OF THE GOVERNMENT THAT WHERE A SOLDIER UPON ENTRY INTO SERVICE FRAUDULENTLY CONCEALS OR MISREPRESENTS A MATERIAL FACT DISQUALIFYING HIM FOR ENLISTMENT, AND IS DISCHARGED UPON DISCOVERY BY THE GOVERNMENT OF THE FRAUD, SUCH DISCHARGE CONSTITUTES AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT, AND THE MAN IS NOT ENTITLED TO PAY AND AN ALLOWANCES FOR ANY PERIOD SERVED UNDER THE FRAUDULENT ENLISTMENT. 1 COMP. GEN. 511, 9 ID. 436. HENCE, IT MUST BE CONCLUDED THAT YOUR RIGHTS WITH RESPECT TO MUSTERING-OUT PAY ARE GOVERNED BY THE SAID GENERAL RULE, THAT NO UNPAID ITEMS OF PAY AND ALLOWANCES ARE DUE UNDER A FRAUDULENT ENLISTMENT WHICH HAS BEEN TERMINATED BY THE GOVERNMENT BECAUSE OF THE FRAUD. CF. B-96575, APRIL 5, 1951. FOR THE REASONS STATED HEREIN, THE SETTLEMENT OF JUNE 6, 1950, IS SUSTAINED.