dissenting:
I believe the majority opinion completely misconstrues the purport and meaning of the statute.
It seems very clear that section 12 of the act of May 5,1950, cited in the footnote on the first page of the opinion, fully authorizes The Judge Advocate General to vacate a sentence, *111restore rights, privileges, and property affected by such sentence, and substitute an honorable discharge for a previous dishonorable or bad-conduct discharge.
It is equally clear in the instant case that the order of The Judge Advocate General restoring all rights, privileges, and property “affected” by such sentence was meant to cover a claim such as that presented by the plaintiff. Certainly plaintiff’s pay for the balance of his enlistment period was affected by the sentence. If the court-martial sentence had not been entered he would have been entitled to finish his enlistment period. No other reasonable conclusion can be reached. Since the pay was stopped by virtue of the court-martial sentence it certainly was affected by that sentence.
The upshot of the reasoning of the majority is that since plaintiff was given a dishonorable discharge from the Army on May 19,1950, he could not after that date draw a soldier’s pay because he was no longer in the Army.
The fact that the court-martial sentence on which the discharge was based was vacated and the statute says that any rights, privileges, and property affected may be restored and that the order of The Judge Advocate General vacating the court-martial proceedings restored “aZZ” rights, privileges, and property “affected” by such sentence are matters that are wholly disregarded.
He was out of the Army. Ergo, he cannot be paid.
If that were true anyone who is wrongfully discharged from Government employment could not draw any pay. How could he since he is out of the service % Of course this court has repeatedly held that he may draw his pay even though he was out of the service. We have held in numerous cases that he can recover the amount of his pay because that pay was affected by the wrongful discharge. This court cannot restore him to the service, but it has the power to give him judgment measured by what he would have received but for the wrongful discharge. Does anyone doubt for a moment that the amount of plaintiff’s pay was affected by the wrongful discharge ?3
*112However, the plaintiff is entitled to recover only the pay from the time of the original court-martial conviction, July 20, 1949, to the time when his enlistment period would have expired on November 19,1951.
Plaintiff served nearly two years in prison after the date on which his enlistment would have expired. We have no authority, however, under the act and the order issued pursuant thereto to permit recovery beyond his contract period of enlistment.
Whether or not The Judge Advocate General had the power to predate the honorable discharge, which was substituted for the dishonorable discharge at the end of the judicial process, the fact remains that the language restoring all rights, privileges, and property affected by the original sentence remained in the substitute order.
The only way to reach the conclusion sought by the defendant is to read out of the substitute order completely the express language of restoration. This I am unwilling to do. Even if we give full and overriding effect to the predating of the substitute order, the fact still remains, big as life, that the original order actually affected the plaintiff’s pay and but for that order his pay would not have been thus affected.
The plaintiff spent three years in military prison even though he was out of the Army. He was wrongfully deprived of his pay on account of a vacated order, but because forsooth the honorable discharge from the Army was dated back he must go away empty-handed.
What a strange philosophy.
As a matter of fact shining through the entire record is almost complete basis for the conclusion that The Judge Advocate General undertook to date the honorable discharge back so as to remove any possible stigma that might have attached to an unwarranted conviction rather than with any thought of depriving plaintiff of any rights and privileges.
*113I am persuaded to believe this rather than, to think he deliberately sought to deprive a soldier, who had been improperly incarcerated, of the small amount of pay he would have otherwise received.
Since the defendant has asserted and plaintiff has not denied that the reduction from private first class to the status of recruit was made prior to the events which led up to the court-martial conviction, and was in no way related to the facts connected with that conviction, the right of recovery should be limited to the pay for the period indicated at the rate of pay of a recruit in the Army.
Fahy, Circuit Judge, sitting by designation, joins in the foregoing dissenting opinion.By the terms of section 239 of Title II of the act amending the Articles of War approved June 24, 1948, amended Art. 108 to read as follows:
“Art. 108. SOLDIERS — Separation from the service. — No enlisted person, lawfully inducted into the military service of the United *112States, shall be discharged from said service without a certificate of discharge, and no enlisted person shall be discharged from said service before his term of service has expired, except in the manner prescribed by the Secretary of the Department of the Army, or by sentence of a general or special court-martial.”
Our attention has not been called to any regulation which authorizes the Department of the Army to end a contract of enlistment without cause.