B-160170, OCT. 11, 1966

B-160170, OCT. 11, 1966

TO MR. EDWARD R. DAVIES:

REFERENCE IS MADE TO YOUR CLAIM FOR PAY AND ALLOWANCES FORFEITED PURSUANT TO A COURT-MARTIAL SENTENCE WHILE SERVING IN THE ARMY.

THE PAPERS IN OUR FILE INDICATE THAT PURSUANT TO A COURT-MARTIAL SENTENCE PROMULGATED BY A GENERAL COURT-MARTIAL ORDER DATED JULY 29, 1952, YOU WERE SENTENCED TO TOTAL FORFEITURES AND A BAD CONDUCT DISCHARGE. ON JANUARY 19, 1961, UNDER THE PROVISIONS OF 10 U.S.C. 1552, THE ASSISTANT SECRETARY OF THE ARMY, ACTING UPON THE RECOMMENDATION OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, DIRECTED THAT YOUR MILITARY RECORD BE CORRECTED TO SHOW THAT YOU WERE HONORABLY DISCHARGED FROM THE ARMY EFFECTIVE FEBRUARY 26, 1953, RATHER THAN SEPARATED ON THAT DATE WITH A BAD CONDUCT DISCHARGE. IT IS CLEAR, HOWEVER, THAT THE BOARD DID NOT RECOMMEND AND THE ASSISTANT SECRETARY DID NOT DIRECT A CORRECTION OF YOUR MILITARY RECORD WITH RESPECT TO FORFEITURE OF PAY.

SECTION 1552 OF TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART THAT:

"/A) THE SECRETARY OF A MILITARY DEPARTMENT, * * * ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. * * * EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.

"/C) THE DEPARTMENT CONCERNED MAY PAY * * * A CLAIM FOR THE LOSS OF PAY, ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER PECUNIARY BENEFITS, OR FOR THE REPAYMENT OF A FINE OR FORFEITURE, IF, AS A RESULT OF CORRECTING A RECORD UNDER THIS SECTION, THE AMOUNT IS FOUND TO BE DUE THE CLAIMANT ON ACCOUNT OF HIS * * * SERVICE IN THE ARMY * * *.'

THAT PROVISION OF LAW AUTHORIZES THE SECRETARY CONCERNED TO MAKE CORRECTIONS IN A SERVICE MEMBER'S RECORD WHERE, IN THE SECRETARY'S DISCRETION, SUCH ACTION IS DEEMED NECESSARY IN ORDER TO REMOVE AN INJUSTICE OR CORRECT AN ERROR. NO SIMILAR CORRECTION AUTHORITY IS VESTED IN THE COMPTROLLER GENERAL AND IT WOULD NOT BE APPROPRIATE FOR THIS OFFICE TO SUGGEST TO THE SECRETARY OF A MILITARY DEPARTMENT HOW HE SHOULD EXERCISE HIS DISCRETIONARY CORRECTION AUTHORITY. IN DECISION OF JULY 7, 1954, B-117367, 34 COMP. GEN. 7 (COPY ENCLOSED), WE HELD THAT THE SECRETARIES OF THE ARMY, NAVY, AIR FORCE, AND TREASURY ARE NOT VESTED WITH ANY DISCRETIONARY POWER TO MAKE DETERMINATIONS OF THE SPECIFIC AMOUNTS TO BE PAID AS A RESULT OF THE CORRECTION OF MILITARY OR NAVAL RECORDS PURSUANT TO THE ABOVE-QUOTED PROVISION OF LAW, BUT THAT THE AMOUNTS AUTHORIZED TO BE PAID DEPEND SOLELY UPON A PROPER APPLICATION OF THE STATUTES TO THE FACTS AS SHOWN BY THE CORRECTED RECORD IN EACH PARTICULAR CASE.

IN DECISION OF AUGUST 23, 1954, B-119423, 34 COMP. GEN. 93 (COPY ENCLOSED), WE THEREFORE HELD THAT A FORMER ARMY ENLISTED MAN WHOSE MILITARY RECORD WAS CORRECTED TO SHOW MEDICAL DISCHARGE IN LIEU OF DISHONORABLE DISCHARGE WAS NOT ENTITLED TO FORFEITED PAY AND ALLOWANCES NOTWITHSTANDING AN ADMINISTRATIVE DIRECTION TO PAY SUCH PAY AND ALLOWANCES. THE BASIS FOR THAT CONCLUSION WAS THAT THE MEMBER'S RECORD HAD NOT BEEN CORRECTED TO DELETE OR MODIFY THE PAY FORFEITURES PROVISIONS OF HIS COURT-MARTIAL SENTENCES. LIKEWISE, IN ANOTHER DECISION OF THE SAME DATE, B-119488, 34 COMP. GEN. 95 (COPY ENCLOSED), WE HELD THAT A DISHONORABLY DISCHARGED ENLISTED MAN WHOSE MILITARY RECORD HAD BEEN CORRECTED TO SHOW HONORABLE DISCHARGE, BUT NOT CORRECTED TO DELETE THE PAY FORFEITURE PROVISION OF A COURT-MARTIAL SENTENCE, MAY NOT BE PAID FOR ANY UNUSED LEAVE, WHICH IS PART OF THE MEMBER'S COMPENSATION FOR ACTIVE MILITARY SERVICE AND WAS FORFEITED BY THE COURT-MARTIAL SENTENCE.

IN VIEW OF THE FACT THAT THE CORRECTION OF YOUR MILITARY RECORD DID NOT DELETE, OR PURPORT TO AFFECT IN ANY WAY, THAT PART OF YOUR COURT MARTIAL SENTENCE WHICH EFFECTED A TOTAL FORFEITURE OF PAY, THERE IS NO AUTHORITY OF LAW FOR PAYING YOU THE AMOUNT OF SUCH FORFEITURE. ACCORDINGLY, ON THE PRESENT RECORD, WE MAY NOT GIVE FAVORABLE CONSIDERATION TO YOUR CLAIM.