A-10140, AUGUST 26, 1925, 5 COMP. GEN. 145

A-10140: Aug 26, 1925

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FIXING THE MAXIMUM NUMBER OF DRILLS TO BE ATTENDED BY MEMBERS OF THE NATIONAL GUARD IN ONE YEAR FOR WHICH PAYMENT IS AUTHORIZED. IT IS ADVANTAGEOUS TO USE THE FISCAL YEAR RATHER THAN THE CALENDAR YEAR AS A BASIS IN COMPUTING THE NUMBER OF DRILLS DURING ANY ONE YEAR. THE JUDGE ADVOCATE GENERAL IS OF THE OPINION THAT BY REGULATIONS MADE IN PURSUANCE OF THE STATUTE THE FISCAL YEAR RATHER THAN THE CALENDAR YEAR MAY BE MADE THE PERIOD WITHIN WHICH THE MINIMUM NUMBER OF DRILLS REQUIRED BY STATUTE MUST BE HELD. YOUR ATTENTION IS INVITED TO THE INCLOSED COPY OF THE OPINION OF THE JUDGE ADVOCATE GENERAL UPON THE QUESTION. INASMUCH AS THE MATTER IS ONE IN WHICH YOU MAY BE INTERESTED. THIS SECTION WAS AMENDED BY THE ACT OF JUNE 3.

A-10140, AUGUST 26, 1925, 5 COMP. GEN. 145

NATIONAL GUARD DRILL PAY SECTIONS 109 AND 110 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 209, AS AMENDED, FIXING THE MAXIMUM NUMBER OF DRILLS TO BE ATTENDED BY MEMBERS OF THE NATIONAL GUARD IN ONE YEAR FOR WHICH PAYMENT IS AUTHORIZED, REFER TO THE CALENDAR YEAR, AND NOT THE FISCAL YEAR.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, AUGUST 26, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 16, 1925, AS FOLLOWS:

SECTION 92 OF THE ACT OF JUNE 4, 1920, AS AMENDED BY THE ACT OF JUNE 3, 1924, REQUIRES THAT UNITS OF THE NATIONAL GUARD SHALL ASSEMBLE FOR DRILL AND INSTRUCTION NOT LESS THAN 48 TIMES EACH YEAR. FOR PURPOSES OF ADMINISTRATION, AND ESPECIALLY FOR PURPOSES OF CONTROL OF FUNDS FOR DRILL PAY, IT IS ADVANTAGEOUS TO USE THE FISCAL YEAR RATHER THAN THE CALENDAR YEAR AS A BASIS IN COMPUTING THE NUMBER OF DRILLS DURING ANY ONE YEAR. THE CHIEF OF FINANCE AND THE BUDGET OFFICER FOR THE WAR DEPARTMENT CONCUR WITH ME IN THE ADVISABILITY OF SUCH A CONSTRUCTION OF THE STATUTE, AND THE JUDGE ADVOCATE GENERAL IS OF THE OPINION THAT BY REGULATIONS MADE IN PURSUANCE OF THE STATUTE THE FISCAL YEAR RATHER THAN THE CALENDAR YEAR MAY BE MADE THE PERIOD WITHIN WHICH THE MINIMUM NUMBER OF DRILLS REQUIRED BY STATUTE MUST BE HELD.

YOUR ATTENTION IS INVITED TO THE INCLOSED COPY OF THE OPINION OF THE JUDGE ADVOCATE GENERAL UPON THE QUESTION. THAT OPINION CONTAINS APPOSITE QUOTATIONS AND CITATIONS OF LAW AND A STATEMENT OF THE JUDGE ADVOCATE GENERAL'S CONCLUSIONS.

INASMUCH AS THE MATTER IS ONE IN WHICH YOU MAY BE INTERESTED, I SHOULD APPRECIATE YOUR ADVANCE DECISION IN THE PREMISES.

SECTION 92 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 206, PROVIDED THAT EACH COMPANY, TROOP, BATTERY, AND DETACHMENT IN THE NATIONAL GUARD SHALL ASSEMBLE FOR DRILL AND INSTRUCTION, INCLUDING INDOOR TARGET PRACTICE,"NOT LESS THAN FORTY-EIGHT TIMES EACH YEAR.'

THIS SECTION WAS AMENDED BY THE ACT OF JUNE 3, 1924, 43 STAT. 364, BUT NO CHANGE WAS MADE THEREBY IN REGARD TO THE MINIMUM NUMBER OF ASSEMBLIES FOR DRILL AND INSTRUCTION REQUIRED EACH YEAR. NO COMPENSATION FOR THE NATIONAL GUARD IS PROVIDED THEREIN AND IT IS ADDRESSED PRIMARILY TO THE ADMINISTRATIVE AUTHORITIES.

THE PROVISIONS IN REGARD TO COMPENSATION FOR THE NATIONAL GUARD ARE FOUND IN SECTIONS 109 AND 110 OF THE SAID NATIONAL DEFENSE ACT AS AMENDED, AND IT IS ASSUMED THAT YOUR QUESTION RELATES TO WHETHER THE WORD YEAR AS THEREIN USED REFERS TO THE CALENDAR OR FISCAL YEAR.

SAID SECTION 109, 39 STAT. 209, PRESCRIBES MAXIMUM ANNUAL RATES OF PAY FOR NATIONAL GUARD OFFICERS.

SAID SECTION 110, 39 STAT. 209, PROVIDES PAY FOR NATIONAL GUARD ENLISTED MEN AS FOLLOWS:

EACH ENLISTED MAN ON THE ACTIVE LIST BELONGING TO AN ORGANIZATION OF THE NATIONAL GUARD OF A STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA, PARTICIPATING IN THE APPORTIONMENT OF THE ANNUAL APPROPRIATION FOR THE SUPPORT OF THE NATIONAL GUARD, SHALL RECEIVE COMPENSATION FOR HIS SERVICES, EXCEPT DURING PERIODS OF SERVICE FOR WHICH HE MAY BECOME LAWFULLY ENTITLED TO THE SAME PAY AS AN ENLISTED MAN OF CORRESPONDING GRADE IN THE REGULAR ARMY, AT A RATE EQUAL TO TWENTY-FIVE PERCENTUM OF THE INITIAL PAY NOW PROVIDED BY LAW FOR ENLISTED MEN OF CORRESPONDING GRADES OF THE REGULAR ARMY:PROVIDED, THAT SUCH ENLISTED MAN SHALL RECEIVE THE COMPENSATION HEREIN PROVIDED IF HE SHALL HAVE ATTENDED NOT LESS THAN FORTY -EIGHT REGULAR DRILLS DURING ANY ONE YEAR, AND A PROPORTIONATE AMOUNT FOR ATTENDANCE UPON A LESSER NUMBER OF SUCH DRILLS, NOT LESS THAN TWENTY-FOUR; AND NO SUCH ENLISTED MAN SHALL RECEIVE ANY PART OF SAID COMPENSATION EXCEPT AS AUTHORIZED BY THIS PROVISO AND THE THREE PROVISOS NEXT FOLLOWING: PROVIDED FURTHER, THAT THE COMPENSATION PROVIDED HEREIN SHALL BE COMPUTED FOR SEMIANNUAL PERIODS, BEGINNING THE FIRST DAY OF JANUARY AND THE FIRST DAY OF JULY OF EACH YEAR, IN PROPORTION TO THE NUMBER OF DRILLS ATTENDED; AND NO COMPENSATION SHALL BE PAID TO ANY ENLISTED MAN FOR THE FIRST SEMIANNUAL PERIOD OF ANY YEAR UNLESS HE SHALL HAVE ATTENDED DURING SAID PERIOD AT LEAST TWENTY-FOUR DRILLS, BUT ANY LESSER NUMBER OF DRILLS ATTENDED DURING SAID PERIOD SHALL BE RECKONED WITH THE DRILLS ATTENDED DURING THE SECOND SEMIANNUAL PERIOD IN COMPUTING THE COMPENSATION, IF ANY, DUE HIM FOR THAT YEAR: PROVIDED FURTHER, THAT WHEN ANY MAN ENTERS INTO AN ENLISTMENT OTHER THAN AN IMMEDIATE REENLISTMENT HE SHALL BE ENTITLED TO PROPORTIONAL COMPENSATION FOR THAT YEAR IF DURING THE REMAINDER OF THE YEAR HE SHALL ATTEND A NUMBER OF DRILLS WHOSE RATIO TO TWENTY-FOUR IS NOT LESS THAN THE RATIO OF THE PART OF THE YEAR SO SERVED TO THE WHOLE YEAR; AND WHEN ANY MAN'S ENLISTMENT SHALL EXPIRE THE COMPENSATION, IF ANY, TO WHICH HE MAY BE ENTITLED SHALL BE DETERMINED IN LIKE MANNER * * *.

SAID SECTION 109 WAS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 783, IN WHICH IT WAS PROVIDED THAT CAPTAINS AND LIEUTENANTS BELONGING TO ORGANIZATIONS OF THE NATIONAL GUARD SHALL RECEIVE COMPENSATION AT THE RATE OF ONE-THIRTIETH OF THE MONTHLY BASE PAY OF THEIR GRADES FOR EACH REGULAR DRILL OR OTHER PERIOD OF INSTRUCTION ATTENDED, NOT EXCEEDING FIVE IN ANY ONE CALENDAR MONTH. SAID SECTION 109 WAS FURTHER AMENDED BY THE ACT OF JUNE 3, 1924, 43 STAT. 364, IN WHICH PAY WAS AUTHORIZED FOR EACH DRILL ATTENDED "NOT EXCEEDING EIGHT IN ANY ONE CALENDAR MONTH AND NOT EXCEEDING SIXTY IN ONE YEAR.'

THE FIRST PARAGRAPH OF SAID SECTION 110 WAS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 784, WHICH, IN SO FAR AS MATERIAL, PROVIDES:

EACH ENLISTED MAN BELONGING TO AN ORGANIZATION OF THE NATIONAL GUARD SHALL RECEIVE COMPENSATION AT THE RATE OF ONE-THIRTIETH OF THE INITIAL MONTHLY PAY OF HIS GRADE IN THE REGULAR ARMY FOR EACH DRILL ORDERED FOR HIS ORGANIZATION WHERE HE IS OFFICIALLY PRESENT AND IN WHICH HE PARTICIPATES FOR NOT LESS THAN ONE AND ONE-HALF HOURS, NOT EXCEEDING EIGHT IN ANY ONE CALENDAR MONTH, AND NOT EXCEEDING SIXTY DRILLS IN ONE YEAR * *

THIS SECTION AS AMENDED WAS FURTHER AMENDED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1035, THE FIRST PARAGRAPH OF WHICH AMENDMENT WAS AMENDED BY THE ACT OF JUNE 6, 1924, 43 STAT. 471, NO CHANGE, HOWEVER, BEING MADE IN EITHER AMENDMENT AS TO THE PROVISIONS FIXING THE MAXIMUM NUMBER OF DRILLS FOR WHICH PAYMENT MAY BE MADE,"NOT EXCEEDING EIGHT IN ANY ONE CALENDAR MONTH AND NOT EXCEEDING SIXTY DRILLS IN ONE YEAR.'

IT WILL BE OBSERVED THAT SAID SECTION 110 OF THE ACT OF JUNE 3, 1916, MADE THE PAYMENT OF THE FULL COMPENSATION THEREIN PROVIDED DEPENDENT UPON THE ENLISTED MAN ATTENDING NOT LESS THAN 48 REGULAR DRILLS DURING ANY ONE YEAR, AND AUTHORIZED A PROPORTIONATE AMOUNT FOR ATTENDANCE UPON A LESSER NUMBER OF SUCH DRILLS, NOT LESS THAN 24. FOR THE PURPOSE OF COMPUTATION THE YEAR WAS DIVIDED INTO TWO SEMIANNUAL PERIODS, BEGINNING THE 1ST DAY OF JANUARY AND THE 1ST DAY OF JULY OF EACH YEAR, THE PERIOD BEGINNING THE 1ST DAY OF JANUARY BEING DESIGNATED THE FIRST SEMIANNUAL PERIOD AND THE PERIOD BEGINNING THE 1ST DAY OF JULY BEING DESIGNATED AS THE SECOND SEMIANNUAL PERIOD.

IT THUS CLEARLY APPEARS THAT THE WORD YEAR AS USED IN SAID SECTION REFERS TO AND MEANS CALENDAR YEAR.

WHILE THE BASIS OF COMPENSATION AS PROVIDED IN SAID SECTION 110 WAS CHANGED BY THE AMENDMENT IN THE ACT OF JUNE 4, 1920, PAYMENT TO BE MADE FOR NOT EXCEEDING 60 DRILLS IN ONE YEAR, THERE IS NOTHING IN SAID AMENDMENT OR SUBSEQUENT AMENDMENTS OF SAID SECTION 110 OR IN THE AMENDMENTS OF SAID SECTION 109 TO INDICATE THAT THE WORD YEAR AS USED IN THE PHRASE "NOT EXCEEDING SIXTY DRILLS IN ONE YEAR" WAS USED IN ANY DIFFERENT SENSE THAN USED IN SAID SECTION 110 OF THE ACT OF JUNE 3, 1916.

THE WORD "YEAR" AS USED IN SAID SECTION 110 AND AS USED IN SAID SECTIONS 109 AND 110 AS AMENDED HAS BEEN UNIFORMLY CONSTRUED AND APPLIED AS MEANING THE CALENDAR YEAR, AND PAYMENTS OF DRILL PAY HAVE BEEN COMPUTED ACCORDINGLY. SEE 24 COMP. DEC. 1, 68; 27 ID. 200, 1075; PAR. 920 (F), NATIONAL GUARD REGULATIONS, 1922.

IT WOULD SEEM THAT IF IT IS NOW DESIRABLE TO CHANGE FROM A CALENDAR TO A FISCAL YEAR BASIS IN DETERMINING THE NUMBER OF DRILLS ATTENDED BY AN ENLISTED MAN IN ONE YEAR, AUTHORITY THEREFOR SHOULD BE OBTAINED FROM CONGRESS.

FOR THE PURPOSE OF THE LIMITATION FOR PAY TO "NOT EXCEEDING SIXTY DRILLS IN ONE YEAR" THIS OFFICE IN THE SETTLEMENT OF ACCOUNTS MUST CONTINUE TO CALCULATE THE DRILLS ON THE CALENDAR-YEAR BASIS, THE BASIS CLEARLY ESTABLISHED BY THE NATIONAL DEFENSE ACT.