B-116219, SEP 21, 1953

B-116219, SEP 21, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE ARMY:

BY LETTER DATED MAY 26, 1953 (REFERENCE FINKR-B 201 BRAUNSTEIN, ABRAHAM, ASN 32 070 403), THE CHIEF, RETAINED ACCOUNTS DIVISION, FINANCE CENTER, UNITED STATES ARMY, ST. LOUIS 20, MISSOURI, FORWARDED TO THE CLAIMS DIVISION OF THIS OFFICE FOR PAYMENT THE CLAIM OF MRS. MINNIE BRAUNSTEIN, MOTHER OF ABRAHAM BRAUNSTEIN, A MENTALLY INCOMPETENT DISCHARGED MEMBER OF THE ARMY, SERVICE NO. 32 070 403, FOR CERTAIN PAY BELIEVED TO BE DUE HER SON PRIOR TO JANUARY 14, 1943, UNDER THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 812, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655.

IT APPEARS FROM THE RECORD THAT BY GENERAL COURT-MARTIAL APRIL 22, 1942, THE FORMER ENLISTED MAN, WHILE SERVING AS PRIVATE, WAS FOUND GUILTY OF VIOLATION OF THE 65TH AND 86TH ARTICLES OF WAR AND WAS SENTENCED TO BE DISHONORABLY DISCHARGED THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, AND TO BE CONFINED AT HARD LABOR FOR FIVE YEARS. THE SAID SENTENCE WAS APPROVED AND ORDERED TO BE EXECUTED BY GENERAL COURT- MARTIAL ORDER NO. 91, HEADQUARTERS 4TH MOTORIZED DIVISION, OFFICE OF THE DIVISION COMMANDER, CAMP GORDON, GEORGIA, DATED MAY 3, 1942, WITH THE EXECUTION OF THAT PORTION OF THE SENTENCE ADJUDGING DISHONORABLE DISCHARGE BEING SUSPENDED UNTIL THE RELEASE OF THE SOLDIER FROM CONFINEMENT. SEPTEMBER 3, 1942, SO MUCH OF THE UNEXECUTED PORTION OF THE SENTENCE TO CONFINEMENT IN EXCESS OF TWO AND ONE-HALF YEARS WAS, BY DIRECTION OF THE PRESIDENT, REMITTED.

IT FURTHER APPEARS THAT BY GENERAL COURT-MARTIAL OCTOBER 2, 1942, BRAUNSTEIN WAS FOUND GUILTY OF VIOLATION OF THE 93D ARTICLE OF WAR AND WAS SENTENCED TO BE DISHONORABLY DISCHARGED THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCE DUE OR TO BECOME DUE, AND TO BE CONFINED AT HARD LABOR FOR FIVE YEARS. THE SAID SENTENCE WAS APPROVED AND ORDERED TO BE EXECUTED BY GENERAL COURT-MARTIAL ORDERS NO. 696, HEADQUARTERS SEVENTH SERVICE COMMAND, SERVICES OF SUPPLY, OMAHA, NEBRASKA, DATED NOVEMBER 15, 1942. THE ENLISTED MAN WAS DISHONORABLY DISCHARGED THE SERVICE AT FORT LEAVENWORTH, KANSAS, ON JANUARY 14, 1943.

SUBSEQUENTLY, ON NOVEMBER 13, 1952, THE SECRETARY OF THE ARMY, HAVING RECEIVED AND CONSIDERED THE RECOMMENDATIONS OF THE ARMY BOARD ON CORRECTION OF MILITARY RECORDS IN THE CASE OF BRAUNSTEIN, AND UNDER THE AUTHORITY VESTED IN SAID SECTION 207, AS AMENDED, ISSUED A MEMORANDUM TO THE ADJUTANT GENERAL OF THE ARMY, DIRECTING:-

"1. THAT ALL DEPARTMENT OF THE ARMY RECORDS OF ABRAHAM BRAUNSTEIN, 32 070 403, BE CORRECTED BY ENTRY OF THE NOTATION THEREON THAT THE DISHONORABLE DISCHARGE EXECUTED ON 14 JANUARY 1943 SHALL BE HELD AND CONSIDERED TO BE UNJUST AND OF NO FORCE OR EFFECT.

"2. THAT ALL DEPARTMENT OF THE ARMY RECORDS OF ABRAHAM BRAUNSTEIN, 32 070 403, BE CORRECTED BY ENTRY OF THE NOTATION THEREON THAT HE SHALL BE HELD AND CONSIDERED TO HAVE BEEN SPPARATED ON A CERTIFICATE OF UNDESIRABLE DISCHARGE FROM THE ARMY OF THE UNITED STATES DATED 14 JANUARY 1943, BY REASON OF CERTIFICATE OF DISABILITY FOR DISCHARGE BECAUSE OF SCHIZOID PERSONALITY.

"3. THAT THE DEPARTMENT OF THE ARMY ISSUE TO MRS. MINNIE BRAUNSTEIN, MOTHER OF ABRAHAM BRAUNSTEIN, 32 070 403, MENTALLY INCOMPETENT, A CERTIFICATE OF UNDESIRABLE DISCHARGE FROM THE ARMY OF THE UNITED STATES, DATED 14 JANUARY 1943.

"4. THAT NO PAY OR ALLOWANCES SHALL ACCRUE, EXCEPT SUCH AS MAY BE DUE TO SERVICE PRIOR TO 14 JANUARY 1943, AS A RESULT OF THE FOREGOING CORRECTION OF THE MILITARY RECORD OF ABRAHAM BRAUNSTEIN, 32 070 403."

IN 32 COMP. GEN. 61, IT WAS STATED THAT SINCE THE SAID SECTION 207, AS AMENDED, PROVIDES THAT THE "DEPARTMENT CONCERNED IS AUTHORIZED TO PAY," IT PRESUMABLY WAS CONTEMPLATED THAT, GENERALLY, PAYMENTS MADE PURSUANT THERETO WOULD BE MADE BY THE DEPARTMENT CONCERNED RATHER THAN ON THE BASIS OF SETTLEMENTS ISSUED BY THIS OFFICE, AND THAT IN ANY CASE IN WHICH DOUBT EXISTS AS TO THE LEGALITY OF A PROPOSED PAYMENT, SUCH CASE SHOULD BE SUBMITTED HERE FOR ADVANCE DECISION RATHER THAN TRANSMITTED FOR SETTLEMENT AS A CLAIM.

WHETHER THE DOUBT AS TO THE PROPRIETY OF PAYMENT IN THE INSTANT CASE AROSE BY VIRTUE OF THE ALLEGED GUARDIANSHIP OF THE MOTHER OVER HER SON OR BECAUSE OF THE MORE SUBSTANTIAL QUESTION CONCERNING THE AMOUNT, IF ANY, WHICH MIGHT BE DUE INCIDENT TO THE SAID CORRECTION OF MILITARY RECORDS, IS NOT MANIFEST, NOR IS IT CLEAR THAT TRANSMITTAL OF THE PAPERS BY THE CHIEF, RETAINED ACCOUNTS DIVISION, FINANCE CENTER AT ST. LOUIS, MISSOURI, WAS ANYTHING MORE THAN AN OVERSIGHT OF 32 COMP. GEN. 61. ANYHOW, AN AUTHORITATIVE DECISION BY THIS OFFICE ON THE QUESTION DOES NOT APPEAR APPROPRIATE AT THIS TIME IN THE CASE AS SUBMITTED. HOWEVER, IN VIEW OF THE SAID LETTER OF MAY 15, 1953, TO MRS. MINNIE BRAUNSTEIN, IN WHICH IT IS STATED THAT $368.66 IS DUE HER SON FOR SERVICES PRIOR TO JANUARY 14, 1943, IT SEEMS APPROPRIATE TO POINT OUT THAT THE SAID MEMORANDUM OF NOVEMBER 13, 1952, DID NOT DIRECT ANY CORRECTION OR CHANGE IN THE MILITARY RECORD OF BRAUNSTEIN, RELATING TO THE FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE. HENCE, IT WOULD APPEAR THAT HIS MILITARY RECORD, INSOFAR AS THE FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE IS CONCERNED, HAS NOT BEEN CORRECTED OR CHANGED, BUT REMAINS THE SAME. SUCH CONNECTION, THERE IS ENCLOSED FOR YOUR INFORMATION COPY OF OFFICE DECISION DATED AUGUST 17, 1953 (B-92585) IN THE CASE OF ANTHONY T. BANDES, WHERE A SUBSTANTIALLY SIMILAR QUESTION, AMONG OTHERS, WAS CAREFULLY CONSIDERED AND THE CONCLUSION REQUIRED THAT THE CLAIMANT WAS NOT UNDER THE LAW AND FACTS OF THE CASE, ENTITLED TO THE PAY CLAIMED.

AS A MATTER OF FACT, IT IS TO BE NOTED THAT IN THE BANDES CASE THE SECRETARY OF THE ARMY IN APPROVING THE RECOMMENDATIONS OF THE BOARD, AUTHORIZED THAT ALL REFERENCES TO TIME LOST UNDER ARTICLE OF WAR 107 BE STRUCK FROM THE RECORDS, A DIRECTIVE NOT CONTAINED IN THE BRAUNSTEIN CASE, BUT EVEN SO THE COURT MARTIAL SENTENCE OF LOSS OF PAY DUE OR TO BECOME DUE, EFFECTUALLY PRECLUDED FAVORABLE CONSIDERATION. THE CLAIM FOLDER TRANSMITTED WITH THE LETTER OF MAY 26, 1953, IS ENCLOSED FOR APPROPRIATE ACTION. CF. 32 COMP. GEN. 242; ID. 294.