(dissenting).
I respectfully dissent for these reasons: The Judge Advocate General had the discretionary authority to grant a new trial or to vacate a sentence, restore rights, privileges or property affected by the sentence, and to substitute for dishonorable discharge a form of discharge authorized for administrative issuance. Section 12 of the Act of May 5, 1950, 64 Stat. 107, 147. This the Judge Advocate General did; i. e., he ordered an honorable discharge substituted in lieu of dismissal.
The majority opinion holds that the Judge Advocate General did not have authority to back date the discharge. The fallacy of this is that unless the Judge Advocate General was acting under his authority, he did not have the right to order any discharge. Plaintiff was a Regular Air Force officer and as such could not be discharged from his commission except for cause. Thus the Judge Advocate General necessarily had to recognize the court-martial in order to order any discharge. Plaintiff, in the light of the majority opinion, is still in the Army.
I believe the Judge Advocate General acted lawfully when he substituted the honorable discharge. Substitute merely means one put in place of another. Here the Judge Advocate General put the honorable discharge in place of the dishonorable dismissal, which necessarily would require him to date the substituted honorable discharge the same as the dishonorable dismissal. Thus, looking at the situation from any angle, plaintiff was out of the Army initially when he was dismissed. He never re-entered the service by reason of the substituted honorable discharge, and until reappointed in some manner would not be entitled to receive the pay of an officer.
Furthermore, the action of the Judge Advocate General was a part of the court-martial proceedings. Article 76 of the Uniform Code of Military Justice, 64 Stat. 107, 132,** gives finality to all proceedings in courts-martial and makes the action binding upon all departments, courts, agencies, and officers of the United States. Thus, this court is without authority to review and hold erroneous the back dating of plaintiff’s honorable discharge.
Now 10 U.S.C.A. § 876.