DEPOSITED BY THE

UNITED STATES OF AMERICA

28'48

APR

COURT-MARTIAL ORDER NO. 2-1948 FEBRUARY 1948

CORRECTION

Court-Martial Order No. 1, 1943, page 152, line 13, change the word "initiated" to "initialed."

Board for the Correction of Naval Records: jurisdiction to change character of dismissal.

The comment of the Judge Advocate General was requested on a case involving a change by the Board for the Correction of Naval Records in the character of the dismissal of an officer of the Navy pursuant to the sentence of a general court martial.

The record in this case showed that ex-Lieutenant A was dismissed pursuant to a general court-martial sentence and that the Board for the Correction of Naval Records found that under applicable standards of naval law, administration, and practice, an injustice had been done the officer. Based upon this finding, the Board decided that ex-Lieutenant A's naval record should be corrected to change his dismissal to "separation under honorable conditions" and that he receive a certificate of satisfactory service.

The Congress, by Section 131 of the Legislative Reorganization Act of 1946 (60 Stat. 831), has provided that:

* * *

"No private bill or resolution authorizing or directing * * * the correction of a military or naval record, shall

be received or considered in either the Senate or the House of

Representatives."

To take the place of the procedure thus abolished, the Congress has provided for the administrative correction of military and naval records by Section 207 of this same Act (60 Stat. 837), i. e.:

"The Secretary of War, the Secretary of the Navy, and the Secretary of the Treasury with respect to the Coast Guard, respectively, under procedures set up by them, and acting through boards of civilian officers or employees of their respective departments, are authorized to correct any military or naval record where in

their judgment such action is necessary to correct an error or to remove an injustice."

In a joint letter dated 23 December 1946, the Secretary of the Army and the Secretary of the Navy requested the opinion of the Attorney General as to whether "entries in naval and military records resulting from the actions of general courts-martial

come within the purview of Section 207, above quoted. In his reply dated 24 February 1947, he held that Sections 131 and 207 above quoted must be read together and that:

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* * if section 207 of the Legislative Reorganization Act is to be given substantial effect as a substitute for the correction of military and naval records by private acts it must be held applicable to cases in which former servicemen have received discharges or dismissals by reason of a sentence of a general court martial.” By way of explanation the Attorney General in this opinion further held that:

"If, for example, one is given a dishonorable discharge and it is later established that he should have been given an honorable discharge he has suffered an injustice. To change the record so as to show that (as now determined) he should have been given an honorable discharge can well come within the meaning of the words 'to correct any * * record' and 'to correct an error

or to remove an injustice." " On the point as to whether a new discharge may be issued in conformity with the correction of the record, he held that:

"The statute does not provide in terms that a new discharge shall be issued in conformity with the correction. I feel, however, that the power to do so must be implied. * * * a new discharge would seem necessary to insure that the correction is efficacious."

As to the extent of the relief which may be granted under Section 207 in general court-martial cases, the Attorney General held that "Section 207 is a remedial provision and, therefore, to be liberally construed with a view to effecting the intended purpose. As a substitute for a disapproved system (relief by private acts) it should be so construed, if possible, as to make unnecessary further resort to the old method." By way of conclusion he further held that:

"For the foregoing reasons it is my opinion that entries in naval and military records resulting from the actions of general courts martial come within the purview of section 207 of the Legislative Reorganization Act, at least to the extent hereinbefore indicated." It is of course understood that the opinion of the Attorney General is controlling and conclusive for the guidance of other officers of the Government and may not be treated as nugatory or ineffective (25 Op. Atty. Gen. 301, 303; 38 Op. Atty. Gen. 176, 179; 14 Comp. Gen. 648,