SSR 68-11: SECTIONS 217(a), 217(d), and 217(e). -- VETERANS -- MILITARY SERVICE WAGE CREDITS -- PRESIDENTIAL PARDON AFTER DISHONORABLE DISCHARGE

20 CFR 404.116(b) and 404.1307

SSR 68-11

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.

n 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.

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.

ct 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.