20 CFR 404.116(b) and 404.1307
P served on active duty in the Armed Forces of the United States from January 14, 1941 through August 16, 1947, when he was dishonorably discharged following a conviction by court-martial of a military offense. On June 9, 1966, he was granted a full and unconditional presidential pardon. In December 1966, P filed application for a period of disability and for disability insurance benefits. However, P does not have disability insured status without credit for his period of military service.
Sections 217(a) of the Social Security Act provides in pertinent part as follows:
Section 217(d)(1) of the Act defines the World War II period as beginning September 16, 1940, and ending with the close of July 24, 1947. Section 217(d)(2) further provides in part that:
Section 217(e)(1) of the Act provides for military service wage credits of $160 per month for post-World War II service. Section 217(e)(4) of the Act defines the term "veteran," under this subsection, as any individual who served in the active military or naval service of the United States at any time on or after July 25, 1947, and prior to January 1, 1957, and who, if discharged or released therefrom, was released or discharged under conditions other than dishonorable after active service of 90 days or more.
The issue to be decided is whether by reason of the presidential pardon with respect to the worker's conviction of a military offense he may be considered to have been discharged from active military service "under conditions other than dishonorable," as required for the crediting of military service wage credits under section 217.
There is statutory authority (section 1552 of title 10, United States Code) for a military service department to correct any military record of that department when necessary to correct an error or to remove an injustice. Where a military record is so corrected, it replaces the original record as of the date the correction was made effective. See SSR 62-13, C.B. 1962, p. 90. In the case of presidential pardons, administrative proceedings with respect to a pardon are conducted by the Department of Justice, rather than by a military service department. While generally such pardons are granted with respect to convictions of ciminal offenses in Federal civil courts, they are also granted with respect to convictions by military courts-martial. The pardon attorney, in the Department of Justice, is empowered to recommend that a presidential pardon should be granted. This recommendation is based upon such factors as an appeal by the defendant, completion of his sentence, his character, and whether there has been any subsequent conviction since discharge. While a presidential pardon may be considered to relieve the individual of certain consequences of the conviction for the particular offense, the fact of conviction remains on the record. See People ex rel Prisament v. Brophy, 287, N.Y. 132, 38 N.E. 2d 468 (1941), cert. den. 63 S.Ct. 62, 317 U.S. 625 (1942). The pardon does not change the character of discharge initially issued to the veteran.
Moreover, there is no real basis for concluding that the presidential pardon, of itself, would relieve the veteran of the condition in section 217 of the Act that a discharge be "under conditions other than dishonorable" in order that military service be creditable for social security purposes. First, it is not the conviction of the military offense itself (upon which the pardon acts) which precludes the crediting of military service terminated by dishonorable discharge. Rather, it is the concomitant dishonorable discharge, the character of which is not changed by the pardon, which precludes that crediting. Also, section 217 of the Act contains no provision that a pardon relieves the person concerned of the requirement of a discharge "under conditions other than dishonorable." In this respect it differs from section 202(u) of the Act (which concerns the effect of a conviction for subversive activities) which has a provision that a presidential pardon will relieve the person of the penalty imposed under that section.
While the military record of the veteran is not affected by the granting of a pardon by itself, such pardon may constitute evidence on which to base a request for correction of his record. The Board for Correction of Military Records is empowered by the Secretary of the Service Department to change military records. The authority granted under title 10, United States Code, section 1552 extends to changing the type of discharge from military service received by an individual. Thus, an application for this change by the Board must be made with the service department involved. After the testimony has been heard and the evidence weighed by the Board, a decision is then made. If the Board decides that the military record i.e., discharge, should be corrected to "remove an injustice" or to "correct an error," the changed record i.e., changed discharge, will replace the original discharge ab initio. However, no such action has been initiated by P in this case.
Accordingly, it is held that military wage credits may not now be granted to P because his discharge was not "under conditions other than dishonorable;" therefore, lacking disability insured status, P is not entitled to the social security benefits for which he applied.
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