Whitaker, Judge,
delivered the opinion of the court:
Plaintiff seeks to recover the pay of his appropriate rank and grade from the date of his confinement as the result of a conviction and sentence by a general court-martial on July 20, 1949, on a charge of unpremeditated murder, to January 21, 1954, the date on which the sentence of conviction was vacated by The Judge Advocate General under authority of section 12 of the act of May 5, 1950.1 This section, in substance, provides that upon application of an accused person for good cause shown The Judge Advocate General may grant a new trial or vacate a sentence, restore rights, privileges, and property affected by such sentence and substitute for a dismissal, dishonorable discharge or bad-conduct discharge previously executed, another form of discharge.
The facts as they appear from the pleadings and papers in the case are substantially as follows: On November 19, 1947, the plaintiff enlisted for a four-year period of service in the United States Army in the grade of private first class, but sometime prior to the events which led up to the instant [106]*106court-martial proceedings he was reduced to the status of recruit.
On July 20, 1949, while serving in the grade of recruit, plaintiff was tried by a general court-martial and found guilty of unpremeditated murder, in violation of the 92nd Article of War. He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances to "become due after the date of the order, and to be confined at hard labor for 30 years, which sentence was reduced to 20 years by the convening authority. The dishonorable discharge was executed on May 19,1950.
An application for a new trial and for relief under section 12, supra, was made to The Judge Advocate General of the Army on August 9, 1951. On January 8, 1954, the then Judge Advocate General issued an order which is entitled “Action upon Petition for Belief under Section 12 of the Act of 5 May 1950”. In that order it was recited that plaintiff and another recruit by the name of Lawrence 2 were convicted by general court-martial at Karlsruhe, Germany, on July 20, 1949, of unpremeditated murder in violation of the 92nd Article of War; that they were convicted upon circumstantial evidence, and that in the light of information available to the court-martial at that time it appeared that the court was justified in its findings. However, the order continued, information obtained by subsequent investigation impels the conclusion that had such information been known to the members of the court they probably would not have believed that guilt beyond a reasonable doubt was ■established. The Judge Advocate General’s order concluded with the following:
Pursuant to the authority granted by section 12 of an act of 5 May 1950 (50 U. S. C. 140), the sentences are vacated; all rights, privileges, and property affected by such sentences will be restored; and honorable discharges from the Army will be substituted, as of 19 May 1950 in the case of each accused, in lieu of the dishonorable discharges previously executed.
In the meantime the plaintiff remained in confinement from May 19, 1950, to September 25,1953, on which date he was released from confinement and placed on parole.
[107]*107Plaintiff asserts that he is entitled to the difference in pay of a private first class and that of a recruit from the time he was reduced in grade to the date of the execution of the dishonorable discharge on May 19,1950, and to the full pay of a private first class from the date of the dishonorable discharge to January 21, 1954, the date of the order vacating the sentence and substituting an honorable discharge for a dishonorable one.
The defendant contends that since the honorable discharge was made effective as of May 19, 1950, the plaintiff is not entitled to recover and the case should be dismissed. Defendant further urges that in any event any pay that might be allowed pursuant to The Judge Advocate General’s order should not extend beyond November 19,1951, the date of the expiration of his regular enlistment period. It asserts that in the event any recovery is allowed it should be at the pay of a recruit in the United States Army, since the reduction in grade was made pursuant to a previous order that was entered before the events leading up to the court-martial proceeding had occurred.
Both parties discuss the case of Boruski v. United States, 140 C. Cls. 1, in which a somewhat similar statement of facts was presented and a somewhat similar order was issued in respect to an Army officer who had been court-martialed and whose sentence was later vacated.
In that case the order vacating the original sentence stated that the facts surrounding the air crash in which plaintiff was involved “do not prove negligence sufficiently culpable to justify the conviction of manslaughter,” and that “after careful consideration of all the evidence, I am convinced that it does not establish guilt legally or sufficiently, * * * [consequently, I find that an injustice has resulted from the findings and sentence and that there is good cause for granting the relief sought.”
It was further ordered in that case that “the findings of guilty and the sentence are vacated, all rights, privileges, and property of which petitioner has been deprived by virtue of the findings and sentence so vacated will be restored, and an honorable discharge certificate will be substituted in lieu of the dismissal previously executed.”
[108]*108Thus it will be seen that the circumstances and the orders in the two cases were very much alike. However, in the Boruski case, while the order for an honorable discharge was-substituted for the previous dishonorable discharge, it did not specifically state that the honorable discharge should be issued as of the date of the previous dishonorable discharge, but the honorable discharge actually issued was dated back to the date of the original discharge issued pursuant to the verdict of the court-martial.
Boruski sued, inter alia, for his pay from the date of his conviction to the date the verdict of the court-martial was set aside. We held that he was entitled to recover. We said the postdating of the honorable discharge was not authorized by the order of The Judge Advocate General, and that any discharge issued pursuant thereto should have borne the same date as the order. From this it followed that, since The Judge Advocate General had set aside the sentence of the court martial, the discharge then issued was a nullity, and plaintiff was entitled to recover his pay until the date of an effective discharge, which we said should have borne the date of the order of The Judge Advocate General. We held plaintiff was entitled to recover his pay in the interim.
The case now before us differs from the Boruski case in this decisive respect. In this case The Judge Advocate General ordered that the honorable discharge to be issued in lieu of the dishonorable one should be issued as of the effective date of the dishonorable discharge, whereas in the Boruski case we said it should have been dated as of the date of the order setting aside the court martial sentence.
In the Boruski
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Whitaker, Judge,
delivered the opinion of the court:
Plaintiff seeks to recover the pay of his appropriate rank and grade from the date of his confinement as the result of a conviction and sentence by a general court-martial on July 20, 1949, on a charge of unpremeditated murder, to January 21, 1954, the date on which the sentence of conviction was vacated by The Judge Advocate General under authority of section 12 of the act of May 5, 1950.1 This section, in substance, provides that upon application of an accused person for good cause shown The Judge Advocate General may grant a new trial or vacate a sentence, restore rights, privileges, and property affected by such sentence and substitute for a dismissal, dishonorable discharge or bad-conduct discharge previously executed, another form of discharge.
The facts as they appear from the pleadings and papers in the case are substantially as follows: On November 19, 1947, the plaintiff enlisted for a four-year period of service in the United States Army in the grade of private first class, but sometime prior to the events which led up to the instant [106]*106court-martial proceedings he was reduced to the status of recruit.
On July 20, 1949, while serving in the grade of recruit, plaintiff was tried by a general court-martial and found guilty of unpremeditated murder, in violation of the 92nd Article of War. He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances to "become due after the date of the order, and to be confined at hard labor for 30 years, which sentence was reduced to 20 years by the convening authority. The dishonorable discharge was executed on May 19,1950.
An application for a new trial and for relief under section 12, supra, was made to The Judge Advocate General of the Army on August 9, 1951. On January 8, 1954, the then Judge Advocate General issued an order which is entitled “Action upon Petition for Belief under Section 12 of the Act of 5 May 1950”. In that order it was recited that plaintiff and another recruit by the name of Lawrence 2 were convicted by general court-martial at Karlsruhe, Germany, on July 20, 1949, of unpremeditated murder in violation of the 92nd Article of War; that they were convicted upon circumstantial evidence, and that in the light of information available to the court-martial at that time it appeared that the court was justified in its findings. However, the order continued, information obtained by subsequent investigation impels the conclusion that had such information been known to the members of the court they probably would not have believed that guilt beyond a reasonable doubt was ■established. The Judge Advocate General’s order concluded with the following:
Pursuant to the authority granted by section 12 of an act of 5 May 1950 (50 U. S. C. 140), the sentences are vacated; all rights, privileges, and property affected by such sentences will be restored; and honorable discharges from the Army will be substituted, as of 19 May 1950 in the case of each accused, in lieu of the dishonorable discharges previously executed.
In the meantime the plaintiff remained in confinement from May 19, 1950, to September 25,1953, on which date he was released from confinement and placed on parole.
[107]*107Plaintiff asserts that he is entitled to the difference in pay of a private first class and that of a recruit from the time he was reduced in grade to the date of the execution of the dishonorable discharge on May 19,1950, and to the full pay of a private first class from the date of the dishonorable discharge to January 21, 1954, the date of the order vacating the sentence and substituting an honorable discharge for a dishonorable one.
The defendant contends that since the honorable discharge was made effective as of May 19, 1950, the plaintiff is not entitled to recover and the case should be dismissed. Defendant further urges that in any event any pay that might be allowed pursuant to The Judge Advocate General’s order should not extend beyond November 19,1951, the date of the expiration of his regular enlistment period. It asserts that in the event any recovery is allowed it should be at the pay of a recruit in the United States Army, since the reduction in grade was made pursuant to a previous order that was entered before the events leading up to the court-martial proceeding had occurred.
Both parties discuss the case of Boruski v. United States, 140 C. Cls. 1, in which a somewhat similar statement of facts was presented and a somewhat similar order was issued in respect to an Army officer who had been court-martialed and whose sentence was later vacated.
In that case the order vacating the original sentence stated that the facts surrounding the air crash in which plaintiff was involved “do not prove negligence sufficiently culpable to justify the conviction of manslaughter,” and that “after careful consideration of all the evidence, I am convinced that it does not establish guilt legally or sufficiently, * * * [consequently, I find that an injustice has resulted from the findings and sentence and that there is good cause for granting the relief sought.”
It was further ordered in that case that “the findings of guilty and the sentence are vacated, all rights, privileges, and property of which petitioner has been deprived by virtue of the findings and sentence so vacated will be restored, and an honorable discharge certificate will be substituted in lieu of the dismissal previously executed.”
[108]*108Thus it will be seen that the circumstances and the orders in the two cases were very much alike. However, in the Boruski case, while the order for an honorable discharge was-substituted for the previous dishonorable discharge, it did not specifically state that the honorable discharge should be issued as of the date of the previous dishonorable discharge, but the honorable discharge actually issued was dated back to the date of the original discharge issued pursuant to the verdict of the court-martial.
Boruski sued, inter alia, for his pay from the date of his conviction to the date the verdict of the court-martial was set aside. We held that he was entitled to recover. We said the postdating of the honorable discharge was not authorized by the order of The Judge Advocate General, and that any discharge issued pursuant thereto should have borne the same date as the order. From this it followed that, since The Judge Advocate General had set aside the sentence of the court martial, the discharge then issued was a nullity, and plaintiff was entitled to recover his pay until the date of an effective discharge, which we said should have borne the date of the order of The Judge Advocate General. We held plaintiff was entitled to recover his pay in the interim.
The case now before us differs from the Boruski case in this decisive respect. In this case The Judge Advocate General ordered that the honorable discharge to be issued in lieu of the dishonorable one should be issued as of the effective date of the dishonorable discharge, whereas in the Boruski case we said it should have been dated as of the date of the order setting aside the court martial sentence.
In the Boruski case, the plaintiff was not validly discharged, we held, until the date of the order vacating the verdict of the court-martial. Hence, he was still in the Army until that date, and therefore entitled to draw his pay. Here, under the discretion granted him by the Act of May 5,1950, supra, The Judge Advocate General decided that the honorable discharge he ordered to be substituted for the dishonorable one should bear the same date as the dishonorable discharge. Hence, plaintiff was discharged as of that date. Thereafter, he was no longer in the Army, no [109]*109longer on the payroll, and was no longer entitled to Army pay.
The Judge Advocate General’s vacation of the sentence of the court-martial did not have the effect of restoring plaintiff to the payroll. He was discharged from the Army by the court-martial, dishonorably; The Judge Advocate General did not set aside the discharge; he merely changed the character of it, from dishonorable to honorable. Plaintiff was discharged from the Army as of May 19, 1950, both by the court-martial and by The Judge Advocate General. Having been discharged as of that date, he cannot draw pay thereafter.
While the basis for our decision in the BorusM case was that the postdating of the discharge ordered by The Judge Advocate General was by way of administrative narrowing of a judicial determination, and not required by The Judge Advocate General’s determination, we went on to say: “In any event, we do not think The Judge Advocate General had the authority to backdate the honorable discharge.” This statement was dictum and, being an unnecessary predicate for the decision rendered, it did not receive as careful consideration as would have been given it had the decision rested upon it. The Act of May 5, 1950, quoted in part, supra, conferred broad discretion on The Judge Advocate General. He might grant a new trial, or he might vacate the sentence, and “substitute for a dismissal, dishonorable discharge, or bad-conduct discharge, previously executed, a form of discharge authorized for administrative issuance * * The power to substitute one form of discharge for another certainly carries with it the power to substitute it as of the date of the one for which it is substituted.
The recital in the order of The Judge Advocate General that “all rights, privileges and property affected by such •sentences will be restored” could not have been intended to include pay after the date of his discharge as a soldier. After his discharge, plaintiff was not entitled to wear the uniform, draw the pay, or exercise any other privileges of a soldier.
[110]*110It is true plaintiff was incarcerated for quite some time as the result of a wrongful conviction, and it would seem that he is due reparation, but this is not the question presented to us by plaintiff’s petition. He sues, not for reparation for a wrongful conviction, but for his pay, as if he had continued to be a soldier and entitled to the pay of one, notwithstanding his conviction and his discharge from the Army.
Unfortunately, innocent men are occasionally convicted of crimes they did not commit. They are due reparation therefor. Congress recognized this in the passage of the Act of May 24, 1938 (52 Stat. 438), enabling such a person to recover, if he is able to satisfy the conditions laid down in the Act. But plaintiff does not sue under this Act, probably because he cannot meet the conditions therein prescribed. Except for this Act, there is no right of recovery for wrongful conviction. Eegrettable though it is that an innocent man should be thrown in prison, the sovereign is not liable therefor, except to the extent and on the conditions that it voluntarily subjects itself to liability.
Plaintiff’s claim for the difference in pay between that of a private first class and that of a recruit was the result of an order issued prior to the court-martial proceedings, and was not affected by the order of The Judge Advocate General setting aside the verdict of the court-martial. The reason for that demotion is not disclosed, nor any grounds from which we can conclude that it was invalid.
Plaintiff’s motion is overruled; defendant’s motion is granted and plaintiff’s petition will be dismissed.
It is so ordered.
LaRAMOee, Judge, and Maddei-i, Judge, concur.