A-8298, APRIL 18, 1925, 4 COMP. GEN. 872

A-8298: Apr 18, 1925

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NATIONAL-GUARD PAY - FEDERAL SERVICE A NATIONAL GUARDSMAN WHO HAS MET THE CONDITIONS PRECEDENT TO FEDERAL RECOGNITION AS SUCH AND WHO REPORTS AT THE RENDEZVOUS OF HIS ORGANIZATION IN RESPONSE TO THE CALL OF THE PRESIDENT IS ENTITLED TO PAY FROM DATE OF SO REPORTING TO THE DATE OF DISCHARGE NOTWITHSTANDING HIS DISCHARGE WAS DUE TO SURGEON'S CERTIFICATE OF DISABILITY. 3 COMP. HE CLAIMS THAT HE SHOULD HAVE PAY FROM THAT DATE TO DATE OF DISCHARGE. WAS CALLED INTO THE SERVICE OF THE UNITED STATES ON JULY 25. THAT HE WAS ASSIGNED TO COMPANY D. THE QUESTION IS WHETHER UNDER THE LAW MEMBERS OF THE NATIONAL GUARD ARE ENTITLED TO PAY FROM THE GOVERNMENT UPON BEING CALLED INTO THE SERVICE OF THE UNITED STATES FROM DATE OF THEIR APPEARING AT THE PLACE OF COMPANY RENDEZVOUS.

A-8298, APRIL 18, 1925, 4 COMP. GEN. 872

NATIONAL-GUARD PAY - FEDERAL SERVICE A NATIONAL GUARDSMAN WHO HAS MET THE CONDITIONS PRECEDENT TO FEDERAL RECOGNITION AS SUCH AND WHO REPORTS AT THE RENDEZVOUS OF HIS ORGANIZATION IN RESPONSE TO THE CALL OF THE PRESIDENT IS ENTITLED TO PAY FROM DATE OF SO REPORTING TO THE DATE OF DISCHARGE NOTWITHSTANDING HIS DISCHARGE WAS DUE TO SURGEON'S CERTIFICATE OF DISABILITY. 3 COMP. GEN. 258, DISTINGUISHED.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 18, 1925:

THERE HAS BEEN RECEIVED REQUEST FOR REVIEW OF SETTLEMENT NO. 048779, DATED OCTOBER 10, 1924, ALLOWING OAKES W. HENRY, FORMER NATIONAL GUARD MAN, PAY FROM JULY 25, TO 31, 1917. HIS DISCHARGE SHOWS THAT HE ENLISTED JUNE 20, 1917, AND HE CLAIMS THAT HE SHOULD HAVE PAY FROM THAT DATE TO DATE OF DISCHARGE, JULY 31, 1917.

UNDER CALL OF THE PRESIDENT HIS ORGANIZATION, THE TENNESSEE NATIONAL GUARD, WAS CALLED INTO THE SERVICE OF THE UNITED STATES ON JULY 25, 1917. THE ADJUTANT GENERAL OF THE ARMY REPORTS THAT CLAIMANT ENLISTED JUNE 20, 1917, AT CROSSVILLE, TENN.; THAT HE REPORTED AT THAT PLACE JULY 25, 1917, THE DATE CALLED TO SERVICE UNDER THE PRESIDENT'S ORDER DATED JULY 3, 1917; THAT HE WAS ASSIGNED TO COMPANY D, SECOND REGIMENT, INFANTRY, AND HONORABLY DISCHARGED FROM THAT ORGANIZATION JULY 31, 1917, BY REASON OF SURGEON'S CERTIFICATE OF DISABILITY. THAT REPORT HAS BEEN VERIFIED.

THE QUESTION IS WHETHER UNDER THE LAW MEMBERS OF THE NATIONAL GUARD ARE ENTITLED TO PAY FROM THE GOVERNMENT UPON BEING CALLED INTO THE SERVICE OF THE UNITED STATES FROM DATE OF THEIR APPEARING AT THE PLACE OF COMPANY RENDEZVOUS.

SECTION 3 OF THE ACT OF JUNE 2, 1795, 1 STAT. 408, PROVIDED IN PART AS FOLLOWS:

THAT WHENEVER THE MILITIA SHALL BE CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES, THEIR PAY SHALL BE DEEMED TO COMMENCE FROM THE DAY OF THEIR APPEARING AT THE PLACES OF BATTALION, REGIMENTAL OR BRIGADE RENDEZVOUS; *

THE IDENTICAL LANGUAGE APPEARS IN SECTION 1651, REVISED STATUTES, WHICH WAS REPEALED BY THE ACT OF JANUARY 21, 1903, 32 STAT. 780, SECTION 25, AND REENACTED IN SECTION 11 THEREOF, 32 STAT. 776, WHICH PROVIDED:

THAT WHEN THE MILITIA IS CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES, OR ANY PORTION OF THE MILITIA IS ACCEPTED UNDER THE PROVISIONS OF THIS ACT, THEIR PAY SHALL COMMENCE FROM THE DAY OF THEIR APPEARING AT THE PLACE OF COMPANY RENDEZVOUS.

THE PROVISION SUBSEQUENTLY APPEARS IN SECTION 7 OF THE ACT OF MAY 27, 1908, 35 STAT. 401, AMENDING THE ACT OF JANUARY 21, 1903. THE NEXT GENERAL LEGISLATION AFFECTING THE MILITIA OR NATIONAL GUARD APPEARS IN THE ACT OF JUNE 3, 1916, 39 STAT. 197-217, WHICH IS IN THE NATURE OF AN AMENDMENT AND REPEALS ONLY SUCH LAWS AND PARTS OF LAWS AS ARE INCONSISTENT THEREWITH. SEE SECTION 128, 39 STAT. 217, AND SECTION 52 OF THE ACT OF JUNE 4, 1920, 41 STAT. 787. THE ACT OF JUNE 3, 1916, IN SECTION 70 THEREOF, PROVIDES THAT BEFORE MEMBERS OF THE NATIONAL GUARD OF THE SEVERAL STATES CAN BE FEDERALLY RECOGNIZED AS SUCH THEY MUST HAVE SIGNED A FEDERAL ENLISTMENT CONTRACT AND HAVE SUBSCRIBED TO OATH OF ENLISTMENT AS PRESCRIBED THEREIN. ALSO, IN SECTION 115 THEREOF, IT IS PROVIDED THAT---

EVERY OFFICER AND ENLISTED MAN * * * WHO SHALL BE CALLED INTO THE SERVICE OF THE UNITED STATES AS SUCH SHALL BE EXAMINED AS TO HIS PHYSICAL FITNESS UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE WITHOUT FURTHER COMMISSION OR ENLISTMENT.

NO EXPRESS REFERENCE IS MADE IN SAID ACT TO WHEN PAY OF ENLISTED MEMBERS OF THE NATIONAL GUARD SHALL COMMENCE UPON REPORTING WHEN CALLED INTO ACTUAL SERVICE OF THE UNITED STATES.

THE ACT OF JANUARY 21, 1903, 32 STAT. 776 (SECTION 7), PROVIDED FOR PHYSICAL AND FITNESS EXAMINATION BEFORE BEING MUSTERED OR ACCEPTED INTO THE UNITED STATES SERVICE. THE PROVISION IN SECTION 7 OF THE ACT OF MAY 27, 1908, 35 STAT. 401, THAT FEDERAL PAY SHALL COMMENCE FROM DATE OF REPORTING AT ORGANIZATION RENDEZVOUS DOES NOT SEEM TO BE BASED ON ANY CONDITION AS TO FINAL QUALIFICATION FOR MUSTER. IT WAS NOT REPEALED BY THE ACT OF JUNE 3, 1916, NOR WAS IT MODIFIED BY THE PROVISIONS THEREIN AS TO PHYSICAL AND FITNESS EXAMINATION, BEFORE BEING MUSTERED, AND THEREFORE IS STILL IN EFFECT.

IN DECISION DATED OCTOBER 26, 1923, 3 COMP. GEN. 258, IT WAS HELD THAT A MEMBER OF THE NATIONAL GUARD WHO REPORTED TO THE RENDEZVOUS OF THE ORGANIZATION IN RESPONSE TO THE CALL OF THE PRESIDENT, BUT WHO REFUSED TO TAKE AND SUBSCRIBE TO THE OATH REQUIRED BY SECTION 70 OF THE ACT OF JUNE 3, 1916, 39 STAT. 201, AND WAS DROPPED FROM THE ROLLS OF HIS ORGANIZATION, IS NOT ENTITLED TO PAY FROM FEDERAL FUNDS FOR THE TIME SPENT AT THE ORGANIZATION RENDEZVOUS. THAT CONCLUSION WAS BASED ON THE GROUND THAT ONLY RECOGNIZED MEMBERS OF THE NATIONAL GUARD AS PROVIDED IN SECTION 70 OF THE ACT OF JUNE 3, 1916, COULD BE MUSTERED, AND THE MAN IN QUESTION, HAVING REFUSED TO TAKE THE OATH NECESSARY TO RECOGNITION, THE FACT THAT HE REPORTED AT THE ORGANIZATION RENDEZVOUS COULD GIVE HIM NO RIGHT TO PAY, SINCE HE WAS NOT A MEMBER OF THE NATIONAL GUARD. IT WAS STATED IN SAID DECISION THAT "IF A NATIONAL GUARDSMAN WAS FOUND MORALLY, MENTALLY, AND PHYSICALLY QUALIFIED AND WAS MUSTERED, HE IS, BY RELATION, ENTITLED TO PAY FROM THE DATE HE REPORTED FOR DUTY. IF HE DID NOT MEET THE CONDITIONS PRECEDENT AND WAS NOT MUSTERED HE IS NOT ENTITLED TO PAY, BECAUSE HE NEITHER FORMALLY NOR CONSTRUCTIVELY ENTERED INTO THE "ACTUAL SERVICE" OF THE UNITED STATES.' IN SUBSEQUENT CASES THAT DECISION HAS BEEN CITED AS AUTHORITY FOR DENYING PAY FROM DATE OF REPORTING AT RENDEZVOUS IF DISCHARGED BY REASON OF FAILURE TO PHYSICALLY QUALIFY FOR MUSTER.

IN THAT CASE THE MAN WAS NOT MUSTERED NOT BECAUSE OF FAILURE TO PASS THE PHYSICAL AND FITNESS EXAMINATIONS BUT BECAUSE OF HIS REFUSAL TO QUALIFY AS A MEMBER OF THE NATIONAL GUARD BY SUBSCRIBING TO THE REQUIRED OATH. WAS NOT BY REASON OF HIS FAILURE TO MEET THE CONDITIONS PRECEDENT TO MUSTER BUT BECAUSE OF FAILURE TO MEET THE CONDITIONS PRECEDENT TO MEMBERSHIP IN THE NATIONAL GUARD, THAT PAY WHILE AT THE ORGANIZATION RENDEZVOUS WAS DENIED THE MAN. A NATIONAL GUARD MAN WHO HAS MET THE CONDITIONS PRECEDENT TO RECOGNITION AS SUCH AND WHO REPORTS AT THE RENDEZVOUS OF HIS ORGANIZATION IN RESPONSE TO THE CALL OF THE PRESIDENT IS ENTITLED TO PAY FROM DATE OF SO REPORTING.

THE DECISION OF OCTOBER 26, 1923, 3 COMP. GEN. 258, SHOULD BE GIVEN NO FURTHER APPLICATION THAN TO THE CONDITION OF FAILURE TO TAKE AND SUBSCRIBE TO THE OATH.