B-149106, AUGUST 2, 1963, 43 COMP. GEN. 115

B-149106, AUGUST 2, 1963, 43 COMP. GEN. 115

DISCHARGES AND DISMISSALS - MILITARY PERSONNEL - CHANGES, REVOCATIONS, ETC. - PAYMENT BASIS THE HOLDING IN CLACKUM V. UNITED STATES, CT.CL. NO. 246-56, DECIDED JANUARY 20, 1960, THAT A DISCHARGE ISSUED TO A MEMBER OF THE UNIFORMED SERVICES WERE INVALID AND DID NOT TERMINATE HER MILITARY STATUS SO AS TO ENTITLE THE MEMBER TO PAY AND ALLOWANCES UNTIL THE END OF THE ENLISTMENT TERM WAS BASED ON THE PARTICULAR FACTS IN THAT CASE AND DOES NOT ESTABLISH ANY PRECEDENT TO ENTITLE ANOTHER MEMBER TO PAY AND ALLOWANCES UNTIL THE END OF HIS ENLISTMENT TERM ON THE BASIS OF A CHANGE OF A DISCHARGE FROM UNDESIRABLE TO HONORABLE WHICH DISCHARGE WAS ISSUED SEVERAL YEARS BEFORE THE TERMINATION OF THE MEMBER'S ENLISTMENT.

TO FRED W. SHIELDS, AUGUST 2, 1963:

REFERENCE IS MADE TO YOUR LETTER OF MAY 22, 1963, REGARDING ADDITIONAL AMOUNTS ALLEGED TO BE DUE IN THE CASE OF GEORGE E. NELSON, JR., FORMERLY A SEAMAN, UNITED STATES NAVAL RESERVE, WHO WAS DISCHARGED ON JANUARY 23, 1959, AT NORFOLK, VIRGINIA.

IN YOUR LETTER OF AUGUST 9, 1961, YOU MADE CLAIM FOR THE ACTIVE DUTY PAY AND ALLOWANCES "WHICH WOULD HAVE BEEN RECEIVED BY THE CLAIMANT HAD HE BEEN PERMITTED BY THE NAVY TO SERVE THE NORMAL TERM OF OBLIGATED SERVICE IN THE UNITED STATES RESERVE" AND YOU THERE INDICATED YOU BELIEVED FAVORABLE CONSIDERATION OF SUCH CLAIM WAS WARRANTED ON THE BASIS OF THE HOLDING OF THE COURT OF CLAIMS IN THE CASE OF CLACKUM V. UNITED STATES, CT.CL. NO. 246-56, DECIDED JANUARY 20, 1960. WE ADVISED YOU IN LETTER OF AUGUST 24, 1962, THAT JUDGMENT HAD NOT BEEN ENTERED IN THE CLACKUM CASE AND THAT, SINCE IT WAS NOT KNOWN WHAT METHOD WOULD BE USED IN DETERMINING THE AMOUNT DUE OR THE PERIOD WHICH WOULD BE COVERED BY THE JUDGMENT, SUCH CASE FURNISHED NO BASIS FOR THE SETTLEMENT OF MR. NELSON'S CLAIM AT THAT TIME. YOU SAY IN YOUR LETTER OF MAY 22, 1963, THAT IN VIEW OF THE FACT THAT THE COURT OF CLAIMS HAS ENTERED A JUDGMENT IN THE CLACKUM CASE YOU TRUST WE WILL GIVE FURTHER CONSIDERATION TO THE SETTLEMENT OF MR. NELSON'S CLAIM ON THE BASIS OF THE DECISION AND JUDGMENT OF THE COURT IN THAT CASE.

THE RECORDS SHOW THAT GEORGE E. NELSON, JR., ENLISTED IN THE UNITED STATES NAVAL RESERVE ON APRIL 18, 1956, FOR 6 YEARS, AND THAT HE REPORTED FOR EXTENDED ACTIVE DUTY ON AUGUST 30, 1957. ON JANUARY 16, 1959, THE CHIEF OF NAVAL PERSONNEL DIRECTED THAT HE BE DISCHARGED AND THAT HIS SERVICE WOULD BE CHARACTERIZED AS UNDESIRABLE BY REASON OF UNFITNESS. JANUARY 23, 1959, HE WAS ISSUED AN UNDESIRABLE DISCHARGE. UPON THE REQUEST OF MR. NELSON, THE NAVY DISCHARGE REVIEW BOARD, ACTING UNDER THE PROVISIONS OF 10 U.S.C. 1553, REVIEWED THE TYPE AND NATURE OF HIS DISCHARGE. IN ACCORDANCE WITH THE DECISION REACHED BY THAT BOARD, THE OFFICIAL RECORDS WERE CHANGED TO SHOW THAT MR. NELSON WAS DISCHARGED ON JANUARY 23, 1959, WITH AN HONORABLE DISCHARGE.

THE FACTS IN THE CLACKUM CASE SHOW THAT THE PLAINTIFF IN THAT CASE WAS SEPARATED FROM THE UNITED STATES AIR FORCE ON JANUARY 22, 1952, WITH A DISCHARGE "UNDER CONDITIONS OTHER THAN HONORABLE.' AFTER HER DISCHARGE, SHE APPEALED TO THE AIR FORCE DISCHARGE REVIEW BOARD AND THAT BOARD DECIDED THAT NO CHANGE SHOULD BE MADE IN THE TYPE OF DISCHARGE CERTIFICATE WHICH HAD BEEN GIVEN HER. THE COURT OF CLAIMS, IN AN OPINION DATED JANUARY 20, 1960, HELD THAT THE HEARING BEFORE THE AIR FORCE DISCHARGE REVIEW BOARD WAS A MEANINGLESS FORMALITY AND CONCLUDED THAT THE DISCHARGE GIVEN THE PLAINTIFF ON JANUARY 22, 1952, BY THE UNITED STATES AIR FORCE WAS INVALID AND DID NOT EFFECT THE PLAINTIFF'S SEPARATION FROM THE AIR FORCE. IN THE OPINION DATED MARCH 6, 1963, IN THAT CASE, THE COURT STATED THAT AS THE PLAINTIFF, UNDER THE TERMS OF HER 3-YEAR ENLISTMENT CONTRACT, WOULD HAVE REMAINED SUBJECT TO "THE MILITARY" UNTIL MARCH 17, 1953, SHE WAS ENTITLED TO RECOVER ACTIVE DUTY PAY TO THAT DATE. IT THEN SPECIFIED THAT FOR THE PERIOD FROM JANUARY 23, 1952, THE DAY FOLLOWING HER "ILLEGAL" DISCHARGE, TO MARCH 17, 1953, SHE WAS ENTITLED TO RECOVER "HER PAY, ALLOWANCE FOR CLOTHING, QUARTERS, RATIONS, MUSTERING-OUT PAY, TRAVEL, AND AMOUNTS ATTRIBUTABLE TO LEAVE," THE TOTAL OF WHICH, ACCORDING TO STIPULATION, AMOUNTED TO $3,198.15. CITING THE CASE OF EGAN V. UNITED STATES, 141 CT.CL. 1, THE COURT SPECIFIED FURTHER, HOWEVER, THAT THERE WAS TO BE SET OFF AGAINST SUCH AMOUNT THE AMOUNT OF $1,373.67, THE STIPULATED GROSS INCOME PLAINTIFF RECEIVED FROM HER CIVILIAN EMPLOYMENT DURING THE PERIOD INVOLVED.

THE ESTABLISHMENT AND ADMINISTRATION OF STANDARDS GOVERNING DISCHARGES FROM THE ARMED FORCES HAVE BEEN CONSIDERED PECULIARLY MILITARY. RESPECTING THIS, THE COURTS HERETOFORE HAVE BEEN SCRUPULOUSLY CAREFUL NOT TO INTERFERE WITH, OR TO INTERVENE IN, AUTHORIZED AND LEGITIMATE SERVICE MATTERS AND HAVE HELD THAT THE DISCHARGE OF A MEMBER OF THE ARMED FORCES IS A DISCRETIONARY ACT WHICH IS NOT SUBJECT TO REVIEW BY THE COURTS. NORDMANN V. WOODRING, 28 F.SUPP. 573 (1939); MARSHALL V. WYMAN, 132 F.SUPP. 169 (1955); SCHUSTACK V. HERREN, 234 F.2D 134 (1956); BERNSTEIN V. HERREN, 141 F.SUPP. 78, AFFIRMED 234 F.2D 434, CERTIORARI DENIED, 352 U.S. 840 (1956); AND REED V. FRANKE, 187 F.SUPP. 905 (1960).

THE CLACKUM CASE WAS DECIDED ON THE BASIS OF THE PARTICULAR FACTS THERE PRESENTED WHICH RESULTED IN THE JUDICIAL FINDING THAT THE DISCHARGE ISSUED IN THAT CASE WAS INVALID AND DID NOT TERMINATE HER MILITARY STATUS. THAT CASE FIXES NO BASIS FOR A DETERMINATION BY THIS OFFICE THAT A DISCHARGE IS INVALID NOR DOES IT PERMIT US, IN THE ABSENCE OF A JUDICIAL DETERMINATION THAT A PARTICULAR DISCHARGE IS INVALID, TO AUTHORIZE ALLOWANCE OF ACTIVE DUTY PAY AND ALLOWANCES AFTER THE DATE OF DISCHARGE. ACCORDINGLY, WE MUST ADVISE YOU THAT THE CLACKUM CASE ESTABLISHED NO PRECEDENT WHICH WE MAY FOLLOW IN THE CONSIDERATION OF THE PRESENT CLAIM.