A-18670, JUNE 10, 1927, 6 COMP. GEN. 819

A-18670: Jun 10, 1927

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IS NOT ENTITLED TO PAY FOR PARTICIPATING IN DRILLS AFTER THE EXPIRATION OF HIS ENLISTMENT. REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY SAME. HELD "SINCE THERE IS NO PROVISION IN THE NATIONAL DEFENSE ACT REQUIRING DESERTERS FROM THE NATIONAL GUARD TO MAKE GOOD TIME LOST. I AM OF THE OPINION THAT THEY CAN NOT BE REQUIRED SO TO DO WHEN THEY ARE NOT IN FEDERAL SERVICE.' 3. ALTHOUGH THERE IS NO FEDERAL STATUTE REQUIRING ENLISTED MEN OF THE NATIONAL GUARD TO MAKE GOOD TIME LOST. IS EFFECTIVE. " AND IS ENTITLED TO THE PAY PRESCRIBED THEREIN. 4. GEN. 681 IT WAS HELD THAT WHERE A STATE LAW AUTOMATICALLY EXTENDS ENLISTMENTS IN ITS NATIONAL GUARD TO MAKE GOOD TIME LOST ON ACCOUNT OF ABSENCE WITHOUT LEAVE THE ENLISTED MEN ARE ENTITLED TO PAY FOR DRILLS ATTENDED DURING SUCH EXTENDED ENLISTMENTS.

A-18670, JUNE 10, 1927, 6 COMP. GEN. 819

PAY - ARMORY DRILL - ENLISTED MAN OF THE NATIONAL GUARD AN ENLISTED MAN OF THE NATIONAL GUARD HELD, BY ORDER OF A SUMMARY COURT- MARTIAL, AFTER THE EXPIRATION OF HIS ENLISTMENT TO MAKE GOOD TIME LOST ON ACCOUNT OF BEING ABSENT WITHOUT LEAVE, IS NOT ENTITLED TO PAY FOR PARTICIPATING IN DRILLS AFTER THE EXPIRATION OF HIS ENLISTMENT, WHERE THE LAWS OF THE STATE DO NOT PROVIDE THAT ENLISTED MEN OF ITS NATIONAL GUARD SHALL MAKE GOOD TIME LOST ON ACCOUNT OF ABSENCE WITHOUT LEAVE. 4 COMP. GEN. 681, DISTINGUISHED.

COMPTROLLER GENERAL MCCARL TO MAJ. E. DWORAK, UNITED STATES ARMY, JUNE 10, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 19, 1927, TRANSMITTING SUPPLEMENTAL PAY ROLL OF COMPANY E, ONE HUNDRED AND FOURTH ENGINEERS, NEW JERSEY NATIONAL GUARD, COVERING CLAIM OF PRIVATE WILLIAM A. RYAN FOR PAY FOR ATTENDING NINE DRILLS, JANUARY 1 TO MARCH 31, 1927, AND REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY SAME. IT APPEARS FROM THE PAY ROLL THAT RYAN ENLISTED DECEMBER 4, 1925, FOR ONE YEAR. THE FOLLOWING REMARKS APPEAR THEREON:

HELD AFTER EXPIRATION DATE TO SERVE TIME LOST A.W.O.L. 120 DAYS BY ORDER OF SUMMARY COURT, LT.COL. WM. F. FIRTH, PRESIDING, CHARGE SHEET NO. 423.

YOU STATE:

2. THE JUDGE ADVOCATE GENERAL OF THE ARMY, DEC. 13, 1926, HELD "SINCE THERE IS NO PROVISION IN THE NATIONAL DEFENSE ACT REQUIRING DESERTERS FROM THE NATIONAL GUARD TO MAKE GOOD TIME LOST, AND SINCE THE LAWS OF THE REGULAR ARMY APPLY TO THE NATIONAL GUARD ONLY WHEN IN THE SERVICE OF THE U.S. (SEC. 101 N.D.A.) I AM OF THE OPINION THAT THEY CAN NOT BE REQUIRED SO TO DO WHEN THEY ARE NOT IN FEDERAL SERVICE.'

3. IN FEBRUARY, 1922, (J.A.G. 251.23), THE SAME AUTHORITY EXPRESSED HIS OPINION THAT, ALTHOUGH THERE IS NO FEDERAL STATUTE REQUIRING ENLISTED MEN OF THE NATIONAL GUARD TO MAKE GOOD TIME LOST, A STATE LAW SO REQUIRING, NOT BEING IN CONFLICT WITH A FEDERAL STATUTE, IS EFFECTIVE, AND THAT THE MAN BY VIRTUE OF STATE LAW BEING A MEMBER OF ITS NATIONAL GUARD IN THE LANGUAGE OF SEC. 110 OF THE ACT OF JUNE 3, 1916, AS AMENDED, 42 STAT. 1035 BELONGS "TO AN ORGANIZATION OF THE NATIONAL ARD," AND IS ENTITLED TO THE PAY PRESCRIBED THEREIN.

4. THE MILITARY LAW OF THE STATE OF NEW JERSEY, CHAPTER 46, LAWS 1925 (REVISION OF 1925), APPROVED MARCH 10, 1925, DOES NOT APPEAR TO PROVIDE FOR THE RETENTION OF A SOLDIER OF THE NATIONAL GUARD IN THE SERVICE AFTER EXPIRATION OF HIS TERM OF SERVICE TO SERVE TIME LOST ON ACCOUNT OF ABSENCE WITHOUT LEAVE, AND A SENTENCE TO THAT EFFECT WOULD APPEAR TO BE ILLEGAL.

IN 4 COMP. GEN. 681 IT WAS HELD THAT WHERE A STATE LAW AUTOMATICALLY EXTENDS ENLISTMENTS IN ITS NATIONAL GUARD TO MAKE GOOD TIME LOST ON ACCOUNT OF ABSENCE WITHOUT LEAVE THE ENLISTED MEN ARE ENTITLED TO PAY FOR DRILLS ATTENDED DURING SUCH EXTENDED ENLISTMENTS.

THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 208, 209, PROVIDES:

SEC. 102. SYSTEM OF COURTS-MARTIAL FOR NATIONAL GUARD.--- EXCEPT IN ORGANIZATIONS IN THE SERVICE OF THE UNITED STATES, COURT-MARTIAL IN THE NATIONAL GUARD SHALL BE OF THREE KINDS, NAMELY, GENERAL COURTS MARTIAL, SPECIAL COURTS-MARTIAL, AND SUMMARY COURTS-MARTIAL. THEY SHALL BE CONSTITUTED LIKE, AND HAVE COGNIZANCE OF THE SAME SUBJECTS, AND POSSESS LIKE POWERS, EXCEPT AS TO PUNISHMENTS, AS SIMILAR COURTS PROVIDED FOR BY THE LAWS AND REGULATIONS GOVERNING THE ARMY OF THE UNITED STATES, AND THE PROCEEDINGS OF COURTS-MARTIAL OF THE NATIONAL GUARD SHALL FOLLOW THE FORMS AND MODES OF PROCEDURE PRESCRIBED FOR SAID SIMILAR COURTS.

SEC. 105. IN THE NATIONAL GUARD, NOT IN THE SERVICE OF THE UNITED STATES, THE COMMANDING OFFICER OF EACH GARRISON, FORT, POST, OR OTHER PLACE, REGIMENT OR CORPS, DETACHED BATTALION, COMPANY, OR OTHER DETACHMENT OF THE NATIONAL GUARD MAY APPOINT FOR SUCH PLACE OR COMMAND A SUMMARY COURT TO CONSIST OF ONE OFFICER, WHO SHALL HAVE POWER TO ADMINISTER OATHS AND TO TRY THE ENLISTED MEN OF SUCH PLACE OR COMMAND FOR BREACHES OF DISCIPLINE AND VIOLATIONS OF LAWS GOVERNING SUCH ORGANIZATIONS; AND SAID COURT, WHEN SATISFIED OF THE GUILT OF SUCH SOLDIER, MAY IMPOSE FINES NOT EXCEEDING $25 FOR ANY SINGLE OFFENSE; MAY SENTENCE NONCOMMISSIONED OFFICER TO REDUCTION TO THE RANKS; MAY SENTENCE TO FORFEITURE OF PAY AND ALLOWANCES. THE PROCEEDINGS OF SUCH COURT SHALL BE INFORMAL, AND THE MINUTES THEREOF SHALL BE THE SAME AS PRESCRIBED FOR SUMMARY COURTS OF THE ARMY OF THE UNITED STATES.

SEC. 106. ALL COURTS-MARTIAL OF THE NATIONAL GUARD, NOT IN THE SERVICE OF THE UNITED STATES, INCLUDING SUMMARY COURTS, SHALL HAVE POWER TO SENTENCE TO CONFINEMENT IN LIEU OF FINES AUTHORIZED TO BE IMPOSED: PROVIDED, THAT SUCH SENTENCES OF CONFINEMENT SHALL NOT EXCEED ONE DAY FOR EACH DOLLAR OF FINE AUTHORIZED.

IF, AS STATED BY YOU, THE LAWS OF NEW JERSEY DO NOT PROVIDE THAT ENLISTED MEN OF ITS NATIONAL GUARD SHALL MAKE GOOD TIME LOST ON ACCOUNT OF ABSENCE WITHOUT LEAVE, THE RETENTION OF RYAN FOR THAT PURPOSE WAS UNAUTHORIZED BY LAW, AND IF THE ORDER OF THE SUMMARY COURT REFERRED TO WAS AS A PUNISHMENT FOR THE OFFENSE OF ABSENCE WITHOUT LEAVE, INDEPENDENT OF ANY STATE LAW REQUIRING THE ENLISTED MAN TO MAKE GOOD TIME SO LOST, THE COURT EXCEEDED THE POWERS CONFERRED UPON IT BY THE NATIONAL DEFENSE ACT, AND THE AWARD OF SUCH PUNISHMENT WAS INVALID.