A-14397, JUNE 11, 1926, 5 COMP. GEN. 971

A-14397: Jun 11, 1926

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NATIONAL GUARD PAY - ADMINISTRATIVE DUTY AN OFFICER OF THE NATIONAL GUARD PLACED IN COMMAND OF A COMPANY DUE TO THE TEMPORARY ABSENCE OF ALL THE OFFICERS OF THE COMPANY IS NOT ENTITLED TO ADMINISTRATIVE PAY. TRANSMITTED HEREWITH FOR YOUR CONSIDERATION AND ADVANCE DECISION AS TO AUTHORITY FOR PAYMENT IS SUPPLEMENTARY PAY ROLL FIELD AND STAFF. THIS PARAGRAPH 3 STATES THAT MAJOR HAZEN IS PLACED IN COMMAND OF TROOP " 109TH CAVALRY. FOR WHICH OFFICE THE UNDERSIGNED IS THE DISBURSING OFFICER. 2. ATTENTION IS ALSO INVITED TO THE ENCLOSED FILE OF CORRESPONDENCE. PARTICULAR ATTENTION IS INVITED TO THE 10TH INDORSEMENT OF THIS OFFICE. HE WAS PAID FOR 11 DRILLS. NO CLAIM FOR ADMINISTRATIVE PAY FOR COMMANDING TROOP "A" WAS MADE ON THIS PAY ROLL.

A-14397, JUNE 11, 1926, 5 COMP. GEN. 971

NATIONAL GUARD PAY - ADMINISTRATIVE DUTY AN OFFICER OF THE NATIONAL GUARD PLACED IN COMMAND OF A COMPANY DUE TO THE TEMPORARY ABSENCE OF ALL THE OFFICERS OF THE COMPANY IS NOT ENTITLED TO ADMINISTRATIVE PAY, NOTWITHSTANDING HE CONTINUED IN COMMAND AFTER THE APPOINTMENT AND REPORTING OF A FIRST LIEUTENANT OF THE COMPANY WHO THEN BECAME ITS LEGAL COMMANDER, ALTHOUGH HE HAD NOT BEEN FEDERALLY RECOGNIZED.

COMPTROLLER GENERAL MCCARL TO MAJ. F. J. BAKER, UNITED STATES ARMY, JUNE 11, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 12, 1926, AS FOLLOWS:

1. TRANSMITTED HEREWITH FOR YOUR CONSIDERATION AND ADVANCE DECISION AS TO AUTHORITY FOR PAYMENT IS SUPPLEMENTARY PAY ROLL FIELD AND STAFF, 109TH CAVALRY TENN. N.G., CHATTANOOGA, TENN., PERIOD OCTOBER 1 TO DECEMBER 31, 1925, LISTING THE NAME OF MAJOR THOMAS F. HAZEN, JR., ONLY, CLAIMING ADMINISTRATIVE PAY FOR COMMANDING TROOP "A," 109TH CAVALRY, TENN. N.G., FOR THE PERIOD OCT. 7 TO DECEMBER 31, 1925, HE HAVING BEEN PLACED IN COMMAND OF THIS ORGANIZATION PER PAR. 3, SPECIAL ORDER NO. 101, ADJUTANT GENERAL, TENNESSEE, OCT. 7, 1925, TRUE COPIES ATTACHED TO THE SUPPLEMENTARY PAY ROLL. THIS PARAGRAPH 3 STATES THAT MAJOR HAZEN IS PLACED IN COMMAND OF TROOP " 109TH CAVALRY, DUE TO THE UNAVOIDABLE ABSENCE OF ALL THE OFFICERS OF TROOP "A," 109TH CAVALRY. THIS SUPPLEMENTARY PAY ROLL HAS BEEN SUBMITTED TO THIS OFFICE FOR PAYMENT, FOR WHICH OFFICE THE UNDERSIGNED IS THE DISBURSING OFFICER.

2. ATTENTION IS ALSO INVITED TO THE ENCLOSED FILE OF CORRESPONDENCE, WHICH CONSISTS OF BASIC COMMUNICATION AND THIRTEEN INDORSEMENTS. PARTICULAR ATTENTION IS INVITED TO THE 10TH INDORSEMENT OF THIS OFFICE, DATED APRIL 30, 1926. MAJOR HAZEN'S NAME APPEARED ON THE ORIGINAL PAY ROLL OF THE FIELD AND STAFF, 109TH CAVALRY, PERIOD REFERRED TO, VOUCHER 233, FEB., 1926, ACCOUNTS C. M. EXLEY, MAJOR, F.D., AND HE WAS PAID FOR 11 DRILLS. NO CLAIM FOR ADMINISTRATIVE PAY FOR COMMANDING TROOP "A" WAS MADE ON THIS PAY ROLL, NEITHER WAS HE SHOWN AS HAVING BEEN PLACED IN COMMAND OF THAT ORGANIZATION. MAJOR HAZEN'S NAME ALSO APPEARED ON THE PAY ROLL OF TROOP "A," 109TH CAVALRY, TENN. N.G., OCT. 1ST TO DEC. 31, 1925, VOUCHER 1026, JAN., 1926, ACCOUNTS C. M. EXLEY, CAPT., F.D. HE WAS SHOWN AS ATTENDING NO DRILLS WITH THAT ORGANIZATION, BUT CLAIM WAS MADE FOR ADMINISTRATIVE PAY FOR COMMANDING THE ORGANIZATION OCT. 7 TO DECEMBER 31, 1925. MAJOR HAZEN WAS NOT PAID ADMINISTRATIVE PAY BY THIS OFFICE.

3. PAY ROLL TROOP "A," 109TH CAVALRY, TENN. N.G., PERIOD OCT. 1ST TO DEC. 31, 1925, SHOWED THE FOLLOWING WITH REGARD TO THE REGULARLY ASSIGNED OFFICERS OF THE ORGANIZATION:

A. CAPT. CHARLES G. MYNATT: ABSENT, SICK, FT. OGLETHORPE, GA., AND NOT FEDERALLY RECOGNIZED AS CAPTAIN.

B. 1ST LT. ALONZO W. KENNEDY: SHOWN AS HONORABLY DISCHARGED AS 1ST. SGT. TROOP A, 109TH CAV., DEC. 4, 1925, TO ACCEPT APPOINTMENT AS 1ST LIEUTENANT AND AS NOT YET FEDERALLY RECOGNIZED. SHOWN AS DUE PAY FOR 3 DRILLS OCT., 4 DRILLS NOV., AND 1 DRILL DEC. AS 1ST SGT. SHOWN AS ATTENDING 3 DRILLS OCTOBER, 4 DRILLS NOV., AND 4 DRILLS DEC. LT. KENNEDY'S STATE APPOINTMENT IS APPARENTLY OF DEC. 4, 1925, AS STATED IN PAR. 3 OF 5TH INDORSEMENT, ENCLOSED.

C. 2ND LT. CHRISTOPHER VANDENENTER, III: SHOWN AS APPOINTED 2ND LIEUT. PER S.O. 116, PAR. 7, DEC. 4, 1925, AGO; NOT YET FEDERALLY RECOGNIZED. SHOWN AS ATTENDING 3 DRILLS IN DEC.

D. 2ND LT. AXEL V. BOLDT: SHOWN AS RELIEVED FROM COMMAND OF TROOP OCT. 7, 1925; RESIGNATION ACCEPTED DEC. 4, 1925, PER S.O. 116, AGO, DEC. 4, 1925. SHOWN AS COMMANDING TROOP AS 2ND LIEUT. OCT. 1ST TO OCT. 6, 1925, AND DUE ADMINISTRATIVE PAY, CLASS A, 6/360 OF $240.00, FOR WHICH HE WAS PAID $4.00.

4. PAR. 14, N.G.R. NO. 35, DATED MAY 1, 1925, PROVIDES AS FOLLOWS:

"14. ABSENCE OR DISABILITY OF ALL OFFICERS OF A UNIT.--- IN THE EVENT OF THE DEATH, DISABILITY, OR ABSENCE OF ALL THE OFFICERS OF A UNIT, THE REGIMENTAL OR OTHER COMMANDER WILL ASSIGN AN OFFICER, PREFERABLY FROM THE ORGANIZATION TO WHICH THE UNIT BELONGS, TO ITS COMMAND.'

5. 1ST LT. ALONZO W. KENNEDY HAVING RECEIVED HIS STATE APPOINTMENT AS OF DEC. 4, 1925, WAS PROPERLY IN COMMAND OF THE TROOP DEC. 4 TO 31, 1925, THIS IN ACCORDANCE WITH DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES, DATED APRIL 18, 1924 (A-809), IN WHICH IT WAS HELD THAT---

"WHILE A PERSON APPOINTED BY THE GOVERNOR OF A STATE TO FILL A VACANCY OF CAPTAIN IN A COMPANY OF INFANTRY OF THE NATIONAL GUARD IS NOT ENTITLED TO FEDERAL PAY UNTIL HE IS FEDERALLY RECOGNIZED, HE IS, HOWEVER, VESTED WITH ADMINISTRATIVE COMMAND OF THE COMPANY BY HIS APPOINTMENT BY THE STATE AUTHORITIES AND IS ENTITLED TO EXECUTE THE CERTIFICATE ON THE FACE OF THE PAY ROLL OF THE ORGANIZATION AS TO THE CORRECTNESS OF THE ROLL, QUALIFICATION OF MEMBERS, FEDERAL RECOGNITION OF ORGANIZATION, ETC., AND HIS CERTIFICATE MAY BE ACCEPTED WHEN THE ROLL IS ALSO CERTIFIED BY THE REGULAR ARMY OFFICER ASSIGNED AS INSTRUCTOR OF THE PORTION OF THE NATIONAL GUARD OF WHICH THE UNIT IS A PART.'

6. WHILE MAJOR HAZEN MAY HAVE ACTUALLY PERFORMED THE ADMINISTRATIVE FUNCTIONS OF THE TROOP, PERIOD DEC. 4 TO 31, 1925, AND WHILE LT. KENNEDY COULD NOT HAVE DRAWN ANY ADMINISTRATIVE PAY FOR BEING PLACED IN COMMAND, HE NOT HAVING BEEN FEDERALLY RECOGNIZED, IT IS THE OPINION OF THIS OFFICE THAT, UNDER THE DECISION ABOVE REFERRED TO, LT. KENNEDY SHOULD HAVE BEEN GIVEN COMMAND OF THE ORGANIZATION ON DEC. 4, 1925, AND IT IS NOT BELIEVED THAT PAYMENT COULD PROPERLY BE MADE TO MAJOR HAZEN OF ADMINISTRATIVE PAY, PERIOD DEC. 4 TO 31, 1925. THIS OFFICE IS OF THE OPINION THAT MAJOR HAZEN IS PROPERLY ENTITLED TO ADMINISTRATIVE PAY OCTOBER 7 TO AND INCLUDING DEC. 3, 1925, UNDER THE PROVISIONS OF PAR. 14, N.G.R. NO. 35, DATED MAY 1, 1925, ABOVE REFERRED TO.

7. IT WILL BE NOTED FROM THE 12TH INDORSEMENT ON THE ATTACHED CORRESPONDENCE THAT MAJOR HAZEN DESIRES TO MAKE CLAIM FOR ADMINISTRATIVE PAY FOR THE FULL PERIOD OCTOBER 7 TO DECEMBER 31, 1925, AND THEREFORE THIS SUPPLEMENTARY PAY ROLL IS FORWARDED TO YOUR OFFICE FOR ADVANCE DECISION AS TO AUTHORITY FOR PAYMENT. PROPER EXTENSION HAS BEEN MADE AS TO THE AMOUNT WHICH WOULD BE DUE FOR THE FULL PERIOD OCTOBER 7 TO DECEMBER 31, 1925, $56.00. MAJOR HAZEN HAS BEEN ADVISED OF THIS REFERENCE.

PARAGRAPH 3 OF SPECIAL ORDER NO. 101, DATED OCTOBER 7, 1925, TO WHICH YOU REFER, IS AS FOLLOWS:

3. MAJOR THOS. F. HAZEN, JR., 109TH CAVALRY, TENNESSEE NATIONAL GUARD, IS HEREBY PLACED IN COMMAND OF TROOP A, 109TH CAVALRY, TENNESSEE NATIONAL GUARD, DUE TO THE UNAVOIDABLE TEMPORARY ABSENCE OF ALL OFFICERS OF TROOP A, 109TH CAVALRY.

PARAGRAPH 928 (D) (2), NATIONAL GUARD REGULATIONS, 1922, AS AMENDED BY CHANGES NO. 16, JUNE 21, 1924, PROVIDES:

(2) A FIELD OFFICER, CAPTAIN, OR LIEUTENANT BELONGING TO OR ATTACHED TO, OR TEMPORARILY ASSIGNED TO, AN ORGANIZATION OF LESS THAN A BRIGADE HAVING ADMINISTRATIVE FUNCTIONS, WHO SUCCEEDS TO THE COMMAND OF SUCH ADMINISTRATIVE UNIT DURING THE ABSENCE OF ITS PROPER COMMANDER, WHETHER BY VIRTUE OF HIS RANK IN THE ORGANIZATION OR OF ASSIGNMENT TO SUCH COMMAND BY SUPERIOR AUTHORITY, IS ENTITLED TO RECEIVE FOR THE PERIOD DURING WHICH HE EXERCISES SUCH COMMAND AND FAITHFULLY PERFORMS THE ADMINISTRATIVE FUNCTIONS IN CONNECTION THEREWITH, ADDITIONAL PAY AT THE RATE HEREIN PROVIDED FOR THE COMMANDING OFFICER OF SUCH ADMINISTRATIVE UNIT.

APPARENTLY MAJOR HAZEN WAS PLACED IN COMMAND OF TROOP A UNDER THE AUTHORITY OF PARAGRAPH 14, NATIONAL GUARD REGULATIONS, MAY 1, 1925, QUOTED BY YOU. THAT REGULATION, HOWEVER, CONTEMPLATES THAT SUCH ASSIGNMENT SHALL CONTINUE ONLY DURING THE ABSENCE OF ALL THE OFFICERS OF THE UNIT. WHEN FIRST LIEUTENANT KENNEDY WAS APPOINTED FIRST LIEUTENANT OF TROOP A ON DECEMBER 4, 1925, HE SUCCEEDED TO THE COMMAND OF SAID ORGANIZATION BY REASON OF HIS RANK AND THE ABSENCE OF THE REGULAR COMMANDING OFFICER. THE REQUIREMENT OF FEDERAL RECOGNITION TO BE ENTITLED TO THE PAY AUTHORIZED BY THE NATIONAL DEFENSE ACT, AS AMENDED, FOR MEMBERS OF THE NATIONAL GUARD NOT IN FEDERAL SERVICE DOES NOT AFFECT THE AUTHORITY OF THE GOVERNOR OF A STATE TO MAKE APPOINTMENTS IN THE NATIONAL GUARD OF THE STATE, NOR THE AUTHORITY OF SUCH APPOINTEES UNDER THE GOVERNOR'S APPOINTMENT; IF THE APPOINTMENT IS LEGAL UNDER THE LAWS OF THE STATE THEY ARE DE JURE OFFICERS OF THE NATIONAL GUARD OF THE STATE, ALTHOUGH NOT ENTITLED TO FEDERAL PAY UNDER THE NATIONAL DEFENSE ACT. AS MAJOR HAZEN WAS NOT PROPERLY IN COMMAND OF TROOP A FROM DECEMBER 4 TO 31, 1925, HE IS NOT ENTITLED TO ADMINISTRATIVE PAY FOR THAT PERIOD.

THE PAPERS TRANSMITTED BY YOU ARE HEREWITH RETURNED. WITH A VIEW TO PROPER ACCOUNTING, PAYMENT FOR THE PERIOD OCTOBER 7 TO DECEMBER 3, 1925, SHOULD BE MADE ON A SUPPLEMENTAL ROLL FOR TROOP A, ONE HUNDRED AND NINTH CAVALRY, TENNESSEE NATIONAL GUARD, THE ORGANIZATION IN WHICH THE ADMINISTRATIVE PAY WAS EARNED, WITH APPROPRIATE REFERENCES TO PAYMENT OF ARMORY DRILL PAY ON THE ROLL FOR THE FIELD AND STAFF OF THE REGIMENT FOR THAT QUARTER.