pretation of the phrase in question, it is obvious that the Congress. intended to set a final date after which re-enlistment would not entitle the person concerned to payment of the bonus, and that the words in question should be interpreted as meaning "not later than" such date, thus bringing the man in question within the terms of the reenlistment bonus provision. JAGA 1953/1362, 12 February 1953.

There is no legal objection to limiting to twenty-four hours the time within which an individual upon his honorable discharge on expiration of enlistment pursuant to law, may reenlist to fill his own vacancy, provided such limitation does not curtail such an individual's right otherwise to reenlist in grade under the provisions of Public Law 128, 80th Congress (10 USC 628 et seq.). Op JAGAF 1953/20. 11 June 1953.

Clerical errors as not rendering reenlistment contract invalid, see NCM 303, Smith, COURTS-MARTIAL § 55.1.

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

officer service.

Paragraph 7, Special Regulations 605-225-1, 7 June 1949, merely indicates that enlistment is not authorized in a grade formerly held as an enlisted man solely by virtue of any prior enlisted service in the Regular Army, where service as a Regular Army warrant officer intervened between the enlisted service and service on active duty as a Reserve officer, and does not bar enlistment in the Regular Army of a member who has been honorably relieved from extended active duty as a Reserve officer, even though such active duty was entered into from a Regular Army warrant officer status. Such a member might be enlisted in the grades prescribed in subpar 16a, Special Regulations 615-105-1, 6 June 1952, or par 3, Special Regulations 615-120–8, 24 May 1950, if he meets all the conditions prescribed by those regulations. (Citing SPJGA 1943/9834, 3 Jul 1943.) JAGA 1953/7063. 11 September 1953.

III. PROMOTIONS AND REDUCTIONS

§ 39. Promotions, Generally

§ 39.5. Persons under court-martial sentence.

An enlisted man serving a court-martial sentence, which includes a forfeiture of pay not suspended or remitted, does not regain his promotable status until the day following the pay day on which his forfeiture has been collected in full. (Citing JAGA 1952/4392, 2 June 1952.) JAGA 1953/2055. 2 March 1953.

§ 45. Reductions

§ 45.19. Misconduct or inefficiency as ground.

A sergeant in an infantry division under the Army Command was tried by summary court-martial for being disorderly in station, and was convicted and sentenced to forfeit $50.00 for one month. An Army Circular provided that when a noncommissioned officer is tried by court-martial and convicted, but the sentence does not include

reduction, the value of such individual as a leader is so impaired that his continuance as a noncommissioned officer is inadvisable, and that it was appropriate to take further action with a view to reduction for conduct inappropriate and unacceptable in a noncommissioned officer. Subsequent to the sergeant's court-martial conviction, his company commander addressed a letter to the Division Commander requesting that the sergeant be reduced one grade, pursuant to the provisions of the Army Circular, inasmuch as the enlisted man had been tried by summary court-martial and he lacked the qualities required to retain his rank as a sergeant. The enlisted man was reduced to corporal as recommended by his company commander. In a subsequent investigation, the company commander stated as justification for the request for reduction that the performance of duty assigned to the sergeant prior to his court-martial was not satisfactory and that he had a prior court-martial conviction, but also stated that he felt the sentence of the second court-martial was insufficient.

Held that:

a noncommissioned officer may not be reduced simply because he has been convicted by a court-martial and sentenced to undergo a punishment which does not include reduction. However, some types of "misconduct" (which result in court-martial proceedings) are also indicia of inefficiency; and when it appears that a reduction is not intended as punishment but rather is due to a determination by the reducing authority that the soldier concerned lacks the qualities of character and leadership required of a noncommissioned officer, the prior conviction is not a bar to an administrative reduction to further the efficiency of the command, even though, in effecting the reduction, the reducing authority has taken into consideration the misconduct which prompted the court-martial conviction.

the circular in question was legally objectionable insofar as it implies that the failure of a court-martial to reduce for a specific offense requires an administrative reduction for inefficiency. Rather, an administrative reduction for inefficiency must be based upon the exercise of sound discretion by commanders in each particular case based upon the soldier's entire record; the circular was also objectionable insofar as it might be construed as establishing "conduct inappropriate and unacceptable in a noncommissioned officer" as additional authority for reduction.

the reduction of the enlisted man in question was legally unobjectionable, as it appears to have been based on a consideration of his past record of inefficiency. (Citing JAGA 1951/6993, 26 November 1951; JAGA 1947/2732, 2 May 1947; JAGA 1948/1722, 13 February 1948; SPJGA 1945/3187, 9 April 1945; MCM, 1951, par 88a; JAGS 1950/3458, 15 June 1950; JAGJ 1952/7267, 16 September 1952.) JAGA 1953/5532. 10 August 1953.

IV. SEPARATION FROM SERVICE

A. IN GENERAL

§ 55. Resignation

§ 55.15. In lieu of trial by court-martial.

On 29 August 1952 an enlisted man tendered a resignation in lieu of trial by court-martial under the provisions of par 6, AR 615-367, dated 13 September 1948. He was tried by general court-martial on 12 September 1952 and convicted and sentenced to confinement at hard labor for 6 months and forfeiture of $65 per month for a like period. The sentence was approved and ordered executed by the convening authority on 23 September 1952 and was approved in the Office of The Judge Advocate General pursuant to UCMJ, Art 69, on 7 October 1952. The resignation was forwarded to the Office of The Adjutant General and it was directed that the enlisted man be discharged with an undesirable discharge. The unexecuted portion of the sentence was remitted on 7 November 1952. The Office of The Adjutant General requested an opinion relative to the propriety of now discharging the enlisted man under the provisions of par 6, AR 615-367, dated 13 September 1948. Held: The Adjutant General could accept a tender of resignation under par 6, AR 615-367, dated 13 September 1948, at any time until appellate review is completed, i.e., until the sentence is final and conclusive pursuant to the Uniform Code of Military Justice. If, however, the Army elects to try the accused by court-martial despite his tender of resignation and does not accept his resignation prior to the completion of appellate review, it has breached the condition precedent that the accused not be tried by court-martial and would be estopped from then accepting the resignation. In the present case the accused's sentence by general court-martial was finally approved as legally sufficient on 7 October 1952. The foregoing action, taken under UCMJ, Art 69, completed the mandatory review procedure prescribed by the Uniform Code of Military Justice. The findings and sentence were thereafter final and conclusive and at that point there no longer exists either a condition precedent or an alternative. (JAGA 1947/6371, 31 July 1947, distinguished.) JAGJ, CM 356916. 28 January 1953.

An enlisted member was granted twenty-nine days' terminal leave, effective 3 December 1946, by a special order issued at a separation center, but such order erroneously listed the date of his discharge as 31 January 1947 instead of 31 December 1946, the date on which the twenty-nine days' terminal leave granted expired. His pay voucher shows that he was paid through 31 December 1946 only, and shows such date as his date of discharge. However, photostatic copies of his original discharge certificate shows that it was issued effective

31 January 1947, and morning reports of the separation center indicate discharge on this later date. Regulations provide that the discharge of an enlisted member takes effect on the date of notice to him of such discharge, and notice in this respect may be either actual or constructive (par 5, AR 615-360, 20 Jul 1944, as changed (C7 22 Apr 1946); CSJAGA 1949/67, 17 Jan 1949). Held: As the member in question had notice that his discharge was to be effective on 31 January 1947, by the special order granting the terminal leave, and as there was no showing that he received notice to the contrary, and as other evidence, except for pay records, indicate that he was, in fact, discharged on 31 January 1947, it is concluded that his discharge was accomplished on the date mentioned in his orders, 31 January 1947; and alteration of Army records to show that he was discharged on a date other than 31 January 1947 would be legally objectionable. (Citing CSJAGA 1949/7717, 10 Nov 1949; JAGA 1947/ 3927, 8 May 1947; JAGA 1947/6436, 1 Aug 1947; JAGA 1947/9544, 15 Dec 1947; SPJGA 1944/9465, 22 Aug 1944; SPJGA 1945/2784, 13 Mar 1945; SPJGA 1945/9459, 31 Aug 1945; JAGA 1947/2632, 4 June 1947; JAGA 1947/8646, 18 Nov 1947; JAGA 1948/4306, 3 Jun 1948; CSJAGA 1948/9142, 10 Jan 1949; CSJAGA 1949/5273, 2 Aug 1949; JAGA 1948/6027, 23 Aug 1948; CSJAGA 1948/8716, 20 Dec 1948.) JAGA 1952/9593. 31 December 1952.

In February 1952 an enlisted man was convicted of an offense in a civil court, fined $250, and on 14 February 1952 was serving the fine in a county jail at the rate of $2 per day. On 22 April 1952 his service record and allied papers were forwarded to the proper authorities "for appropriate action under the provisions of section IV, AR 615-366." He was confined in the Fort Knox post stockade on 23 May 1952. Section 25 (Report of Separation) of his service record discloses that he was discharged on 3 June 1952 at Fort Knox, after having been dropped from the rolls at that station on 4 February 1952 for desertion commencing on 17 November 1951. DD Form 214 (Report of Separation from the Armed Forces of the United States) also discloses that he was discharged on 3 June 1952 at Fort Knox, Kentucky, for "Conviction by Civil Court Section IV AR 615-366." The signature block of that form reads "EM not available for signature." A special court-martial order dated 19 June 1952, shows that he was convicted by a special court-martial on 9 June 1952 and sentenced to confinement for six months and pay forfeitures for six months. He was released from confinement to duty on 8 November 1952 and on 22 November 1952 went absent without leave. Held: There is nothing to indicate affirmatively that the subject enlisted man received notice, either actual or constructive, of the purported discharge of 3 June 1952. Accordingly, he has not been discharged from the service. The purported discharge on 3 June 1952 appears to have been authorized (subpar 15, AR 615-366, 26 Oct 1949). However, the effectiveness of the purported discharge rests upon the question whether he was notified thereof. The effective date of his purported discharge is governed by subpars 13a (2) and (3), AR 615-360, 23 Jan 1952, as changed by C2, 14 May 1952. The submitted evidence does not show that the cer

tificate of discharge was delivered to him (par 17, AR 615–366, supra, as changed by C2, 8 May 1951), nor does it show that he received notice of his purported discharge by any other means. The submitted evidence points to the conclusion that he received no actual notice of his purported discharge prior to the date of his conviction by special court-martial. Since the actual delivery of the discharge certificate was not prevented by his "absence" as contemplated by subpar 13a (3) (b), AR 615-360, as changed, supra, he should not be considered to have received constructive notice of his purported discharge. (Citing JAGA 1947/2089, 20 Mar 1947; JAGA 1948/3914, 14 May 1948; SPJGA 1943/365, 12 Jan 1943; SPJGA 1943/9543, 23 Jul 1943; SPJGA 1943/9606, 24 Jun 1943). JAGA 1952/9573. 31 December 1952.

§ 73. 1. Generally.

§ 73. Conviction by Civil Courts

Discharge to enlisted man adjudged a ward of a juvenile court as null and void in view of a provision of AFR 39-22 that an individual adjudged a youthful offender or a juvenile delinquent, and not considered convicted of a crime thereby, will not be discharged because of conviction by a civil court, see ACM 8288, Reid, COURTS-MARTIAL § 49.1.

§ 85. Correction, Review, Reconsideration

§ 85.1. Generally.

An enlisted man was convicted of desertion by general court-martial and was sentenced to confinement and to be dishonorably discharged from the naval service. The Board for Correction of Naval Records reviewed the case and changed the character of dishonorable discharge to an undesirable discharge by reason of unfitness, and this action was approved by the Secretary of the Navy. The enlisted man applied to the Board of Review, Discharges and Dismissals for a change in character of his undesirable discharge to a discharge under honorable conditions. The board notified him that it had no authority to review a discharge resulting from general court-martial. Later he reapplied to the same board for a review of his undesirable discharge requesting "permission for reenlistment," but no new evidence was submitted. Held that:

- the Board of Review, Discharges and Dismissals, has jurisdiction under sec 301 of the Servicemen's Readjustment Act of 1944, as amended (58 Stat 286, 38 USC 693h), to review the undesirable discharge with or without additional evidence. Such statute was not repealed by the enactment of sec 207 of the Legislative Reorganization Act of 1946 (60 Stat 837). (Citing 32 CFR 724.1(a) (b); 32 CFR 724.3(a)(5) (iv); Bolger v. Marshall, 193 F2d 37 (DC Cir 1951).)

— furthermore, the discharge which the enlisted man has requested the board to review was not a discharge "by reason of the sentence of a general court-martial" over which the Board of Review, Discharges and Dismissals, has no jurisdiction under the pro