fecting the Naval and Military Establishments, 81st Cong, 1st Sess, Book I, pp 2065, 2067, 2081.) JAGA 1954/4656. 28 May 1954.

§ 33.11. Re-enlistment on termination of commissioned or warrant officer service.

Officers or warrant officers receiving general discharges under honorable conditions may not be denied the right to re-enlist in the permanent enlisted grade held by them at the time of acceptance of their commissions or warrants as provided, respectively by the act of 14 July 1939 (53 Stat 1001, 10 USC 631a) and sec 3 of the act of 21 August 1941 (55 Stat 652, 10 USC 591a). However, such members who are re-enlisted in their former grades need not be retained in such grades if they are found to be unfit therefor under pertinent Army Regulations providing for the reduction and elimination of Regular Army enlisted members. (Citing CSJAGA 1949/8388, 20 Dec 1949; JAGA 1951/4111, 16 Jul 1951 and the cases cited therein; par 7, AR 615-360, 24 Jun 1953; par 12d, SR 615-120-2, 31 Mar 1954.) JAGA 1954/8534. 27 October 1954.

III. PROMOTIONS AND REDUCTIONS

§ 39. Promotions, Generally

§ 39.5. Persons under court-martial sentence.

Generally, an enlisted man under court-martial sentence which includes forfeitures not remitted or suspended does not regain promotable status until the day following the pay day on which sufficient pay has accrued to his pay account from which his forfeiture may be satisfied. (Citing pars 4, 14, AR 35-1820, 2 July 1952; par 7b, SR 615-25-40; JAGA 1953/2055, 2 Mar 1953, 3 Dig Ops No. 1, EM § 39; JAGA 1953/7287, 28 Sept 1953, 3 Dig Ops No. 3, SENT & PUN § 33.5; JAGA 1953/7489, 28 Sept 1953.) JAGA 1954/3993. 30 April 1954.

§ 45. Reductions

§ 45.19. Misconduct or inefficiency as ground.

An appropriate reduction authority may reduce a corporal (E-4) to the grade of private (E-1) for inefficiency pursuant to par 16, SR 615-25-55, 2 May 1951, without referring the case to a classification board. (Citing JAGA 1954/3903, 9 Apr 1954.) JAGA 1954/6906. 16 August 1954.

IV. SEPARATION FROM SERVICE

B. DISCHARGES

§ 57. In General

$57.45. Discharge certificates, generally.

An enlisted man was placed on the temporary disability retired list and while on such list he was convicted of a felony in a civil court. While in prison he was determined to be physically fit and his name was removed from the retired list. When he was put on

the temporary disability retired list he was issued a Certificate of Service and the question arose as to what type of discharge could be issued upon his removal from the retired list. Held: Section IV, Army Regulations 615-366, 5 Feb 1954, providing for an undesirable discharge for persons convicted by a civil court during their term of service is not applicable to a person on the temporary disability retired list at the time of his civil conviction. When such a person is removed from the temporary disability retired list and administratively discharged it is mandatory that he be issued either an honorable or a general discharge as provided in Table I, Special Regulations 615-360-1, 24 June 1953, as changed by Change 1, 14 June 1954. As these regulations are in implementation of statute they are not subject to waiver in an individual case. (Citing JAGA 1952/3741, 7 Aug 1952; JAGA 1954/1460, 23 Jan 1954, Conf; JAGA 1948/431, 16 Aug 1948, Conf.) JAGA 1954/8076. 22 September

1954.

§ 61. Minority

§ 61.1. Generally.

Strict construction of statutes relating to discharge of minors at parents request, see JAGA 1954/7839, CRT-M § 45.11.

§ 69. Convenience of the Government

§ 69.3. For re-enlistment.

An enlisted man was discharged for the purpose of re-enlistment. The day following his discharge he re-enlisted but the next day a psychiatric examination disclosed he was mentally deficient and would be disqualified for re-enlistment and orders were issued purporting to revoke his discharge and re-enlistment, thereby restoring him to his AUS status. Held: Unless the discharge was obtained by fraud the purported revocation thereof was legally ineffective. Furthermore, if the man had sufficient mental capacity to comprehend the nature of his act of enlistment the purported revocation thereof was also legally ineffective. (Citing par 14, AR 615–360, 24 Jun 1953; JAGA 1954/7869, 30 Sep 1954 and cases cited therein; JAGA 1946/6570, 29 Aug 1946; JAGA 1953/2743, 27 Mar 1953; JAGA 1953/4552, 10 June 1953, 3 Dig Ops EM § 21.9 and cases cited therein; JAGA 1953/3561, 29 Apr 1953.) JAGA 1954/8384. 29 October 1954.

§ 73.1. Generally.

§ 73. Conviction by Civil Courts

An airman was discharged under AFR 39–22, 19 July 1949, due to conviction by a civil court. He pleaded guilty in a court in the State of Wyoming to an offense. A parole order showed that the passing of sentence upon the plea of guilty was delayed and deferred until subsequent order of the court, and the airman was permitted to go at large upon his own recognizance upon certain terms and conditions, one of which provided for parole for not less than one and not more than five years. The parole order stated that at any time

after the expiration of one year the court in its discretion might terminate the parole and finally discharge the defendant and annul the plea of guilty. The foregoing follows section 10-1803 of the Wyoming Compiled Statutes, 1945, Annotated, Official Edition. Subsequently the airman was advised by the Department of Probation and Parole that he was discharged from probation and his plea of guilty annulled. Section 10-1901 of the Wyoming Compiled Statutes, 1945, provides in pertinent part that after conviction or plea of guilty for any offense, except crimes punishable by death or life imprisonment, the court may suspend the imposition or the execution of sentence and may also place the defendant on probation or may impose a fine applicable to the offense and also place the defendant on probation. Held: The airman was not subject to discharge under the provisions of AFR 39-22. The Wyoming statute distinguishes between the suspension of the imposition of the sentence and the suspension of the execution of the sentence. Under similar statutes it has generally been held that if the imposition of the sentence is suspended there is no final judgment from which an appeal may be taken while on the other hand if the sentence is imposed but the execution thereof is suspended, the suspension of the execution of the sentence does not affect the finality of the sentence or judgment and the defendant may appeal (see 126 ALR 1210). Thus, where the defendant is ordered on probation by suspending the imposition of the sentence no judgment of conviction is rendered. (Citing In re Phillips, 109 P2d 344.) Op JAGAF 1954/10. 30 March 1954.

Enlisted man on temporary disability retired list at time of civil conviction as not subject to undesirable discharge under Section IV, AR 615-366, see JAGA 1954/8076, supra § 57.45.

§ 75.35. Boards.

§ 75. Unfitness

In proceedings pertaining to the separation of substandard enlisted personnel it is legally unobjectionable for a board of officers convened under the provisions of AR 615-368, 27 October 1948, as changed by Changes No. 3, 7 September 1954, to receive and consider evidence of convictions of the members concerned for offenses committed during prior enlistments, if such convictions are relevant and material to the issues before the board. Moreover, no statute of limitations limits the period during which previous convictions may be considered. In this connection, however, the relevance thereof and the weight to be given such evidence must be determined in the light of all the circumstances of the particular case involved and the issues to be resolved by the board. (Citing par 10, SR 15-20-1, 13 Aug 1953; CSJAGA 1949/6151, 15 Sep 1949; CSJAGA 1949/438, 5 Oct 1949, Conf; JAGA 1951/3706, 6 Jun 1951; JAGA 1952/2974, 27 Mar 1952, Conf; JAGA 1952/270, 12 May 1952, Conf.) JAGA 1954/8572. 29 October 1954.

§ 77. Inaptitude or Unsuitability

§ 77.43. Action by convening authority on board's recommendation. If a board of officers, convened pursuant to AR 615-369, 15 November 1951, as changed, has recommended retention of the member concerned in the Army, the convening authority may not appoint a second board to consider the case, in the absence of newly discovered substantial evidence or subsequent conduct by the member indicating new proceedings should be instituted. (Citing JAGA 1948/256, 2 May 1948 (Conf.); JAGA 1949/1264, 2 March 1949.) JAGA 1954/ 2429. 8 March 1954.

An aptitude board recommended the discharge of a certain Marine by reason of unsuitability. However, the commanding general's approval of the board's recommendation was required to effect such a discharge (Bu Med Circular Letter No. 49-19, 24 Feb 1949). A post special order was issued over the signature of the assistant post adjutant directing the discharge of a number of men, including the enlisted man involved herein and in reliance thereon, the entire discharge procedure was completed and the enlisted man was presented with a duly executed discharge certificate. Later it was discovered that the commanding general had not approved the discharge and a new order was issued directing cancellation of the prior order to the extent it related to this enlisted man. He was picked up and returned to headquarters where his discharge papers were taken from him and destroyed. The enlisted man applied for a writ of habeas corpus to secure his release from the service. Held: Such enlisted man is still a member of the Marine Corps and is not illegally detained in the service since his discharge was legally ineffective. Approval of the aptitude board's recommendations by the commanding general was a mandatory requirement, and without such approval the order directing the discharge was a nullity and void ab initio regardless of whether the enlisted man himself and subordinate officers and personnel relied and acted upon that order as being valid. (Distinguishing U. S. ex rel Roberson v. Keating (DC Ill 1949) F Supp

- Neary v. Greenough (DC Maine 1954) 120 F Supp 933.

§ 85. Correction, Review, Reconsideration

§ 85.1. Generally.

On 17 October 1952, an enlisted man received a sentence which included confinement at hard labor for a period of three months and a bad conduct discharge. On 18 November 1952 the convening authority approved the sentence as adjudged but suspended execution of the bad conduct discharge until release from confinement or until completion of appellate review whichever should occur later. On 27 February 1953 the man was inadvertently given an administrative discharge at the expiration of his involuntary extension of enlistment. He was issued a general discharge certificate and was paid $100 mustering-out pay. He applied for the additional mustering-out payment to which his discharge certificate showed him to be entitled and advice was requested as to the proper character of his separation, if an attempt should be made to recall his

discharge certificate, or whether he should receive the additional mustering-out pay. Held: The three-month period of confinement began to run from 17 October 1952, the date of sentence, and expired on 16 January 1953. Necessarily therefore, and enlisted man must have been released from confinement several weeks before his administrative discharge on 27 February 1953. Thus, at the time of his administrative discharge he was under a suspended sentence to a bad conduct discharge, but he was not in confinement under the sentence. In such a situation, unless the discharge was illegal and therefore invalid, the suspended portion of the sentence, that is, the bad conduct discharge, would have been remitted pursuant to par 97a, MCM, 1951. There are no provisions of law that would absolutely prohibit the administrative discharge upon expiration of an enlistment of a man under an unexecuted sentence to a punitive discharge. The discharge, therefore, cannot be held illegal and substitution of another less favorable form of discharge is not authorized. In view of the foregoing he must be paid the remaining portions of his musteringout pay to which his general discharge certificate shows him to be entitled. Op JAGN 1954/232. 12 August 1954.

An enlisted man in the Regular Coast Guard at the termination of his enlistment was transferred to the Coast Guard Reserve for a service obligation under sec 4(d)(1) of the Universal Military Training and Service Act. He was denied reenlistment in the Regular Coast Guard because of his proficiency in rating mark. He applied to the Board of Review of Discharges and Dismissals for corrective action with respect to his PIR mark in order to reenter the Regular Coast Guard. Held: The Board of Review of Discharges and Dismissals has no jurisdiction since the man was never discharged or dismissed; he was merely transferred to the reserve. Moreover, he does not ask that a discharge be corrected but that his PIR mark be corrected. Such a course is more properly a matter for consideration by a Board for Correction of Military Records. Furthermore, his separation was stated to be honorable and even if the Board of Review of Discharges and Dismissals had jurisdiction it could make no change in this case since he already had an honorable separation. Op CCCG 1954/28. 7 June 1954.