A-9112, MAY 23, 1925, 4 COMP. GEN. 987

A-9112: May 23, 1925

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ARE ENTITLED TO THE PAY ACCRUING TO MEMBERS OF THE NATIONAL GUARD PURSUANT TO SECTIONS 94. ARE NOT ENTITLED TO RETIRED PAY FROM THE DATE SO CALLED OR DRAFTED INTO THE ACTUAL SERVICE OF THE UNITED STATES. TO RETIRED WARRANT OFFICERS AND RETIRED ENLISTED MEN OF THE REGULAR ARMY WHO ARE MEMBERS OF THE NATIONAL GUARD. AS FOLLOWS: IS A RETIRED WARRANT OFFICER OF THE REGULAR ARMY ENTITLED TO SUCH PAY WHEN HE IS AN OFFICER IN THE NATIONAL GUARD? WHEN HE IS A WARRANT OFFICER IN THE NATIONAL GUARD? IS A RETIRED ENLISTED MAN OF THE REGULAR ARMY ENTITLED TO SUCH PAY WHEN HE IS AN OFFICER IN THE NATIONAL GUARD? WHEN HE IS A WARRANT OFFICER IN THE NATIONAL GUARD? WHEN HE IS AN ENLISTED MAN IN THE NATIONAL GUARD?

A-9112, MAY 23, 1925, 4 COMP. GEN. 987

NATIONAL GUARD PAY - RETIRED WARRANT OFFICERS AND ENLISTED MEN OF THE ARMY RETIRED WARRANT OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, WHEN DULY APPOINTED OR ENLISTED AND FEDERALLY RECOGNIZED AS OFFICERS, WARRANT OFFICERS, OR ENLISTED MEN OF THE NATIONAL GUARD, ARE ENTITLED TO THE PAY ACCRUING TO MEMBERS OF THE NATIONAL GUARD PURSUANT TO SECTIONS 94, 97, 99, 109, AND 110 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 166, AS AMENDED, IN ADDITION TO THEIR RETIRED PAY. RETIRED OFFICERS, WARRANT OFFICERS, OR ENLISTED MEN OF THE REGULAR ARMY APPOINTED OR ENLISTED IN THE NATIONAL GUARD, WHEN CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES WITH THEIR ORGANIZATION OR DRAFTED INTO THE ARMY UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT AND ENTITLED TO THE FULL PAY AND ALLOWANCES OF THE NATIONAL GUARD RANK OR GRADE, ARE NOT ENTITLED TO RETIRED PAY FROM THE DATE SO CALLED OR DRAFTED INTO THE ACTUAL SERVICE OF THE UNITED STATES.

ACTING COMPTROLLER GENERAL GINN TO THE SECRETARY OF WAR, MAY 23, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 11, 1924, WITH RESPECT TO PAY UNDER THE PROVISIONS OF SECTIONS 92, 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 177, AS AMENDED, TO RETIRED WARRANT OFFICERS AND RETIRED ENLISTED MEN OF THE REGULAR ARMY WHO ARE MEMBERS OF THE NATIONAL GUARD, AND SPECIFICALLY YOU REQUEST DECISION OF THREE QUESTIONS, AS FOLLOWS:

IS A RETIRED WARRANT OFFICER OF THE REGULAR ARMY ENTITLED TO SUCH PAY WHEN HE IS AN OFFICER IN THE NATIONAL GUARD? WHEN HE IS A WARRANT OFFICER IN THE NATIONAL GUARD?

IS A RETIRED ENLISTED MAN OF THE REGULAR ARMY ENTITLED TO SUCH PAY WHEN HE IS AN OFFICER IN THE NATIONAL GUARD? WHEN HE IS A WARRANT OFFICER IN THE NATIONAL GUARD? WHEN HE IS AN ENLISTED MAN IN THE NATIONAL GUARD?

IF YOUR ANSWER TO ANY OF THESE QUESTIONS IS IN THE AFFIRMATIVE, THEN YOUR DECISION IS ALSO REQUESTED ON THE QUESTION OF WHETHER THE RETIRED PAY OF THE WARRANT OFFICER OR ENLISTED MAN WOULD BE AFFECTED.

SECTION 92 MAKES NO PROVISION FOR PAY; IT PRESCRIBED CERTAIN TRAINING, INCLUDING ARMORY DRILLS FOR THE NATIONAL GUARD. IT IS ASSUMED THAT THIS PORTION OF THE QUESTION RELATES TO ARMORY DRILL PAY PROVIDED BY SECTIONS 109 AND 110 OF THE NATIONAL DEFENSE ACT, AS AMENDED, INCLUDING THE PAY PRESCRIBED FOR WARRANT OFFICERS NOT BELONGING TO ORGANIZATIONS (IN VIEW OF THE AMENDMENT OF SECTION 109 OF THE ACT OF JUNE 3, 1924, 43 STAT. 364), AND THE PAY OF ENLISTED MEN OF THE SIXTH AND SEVENTH GRADES CONTAINED IN SECTION 14 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AND THE QUESTION WILL BE ANSWERED ON THIS BASIS.

WARRANT OFFICERS IN THE ARMY WERE AUTHORIZED BY SECTION 4A OF THE NATIONAL DEFENSE ACT, AS AMENDED JUNE 4, 1920, 41 STAT. 761, AND THAT ACT PROVIDES THAT THEY SHALL BE ENTITLED "TO RETIREMENT UNDER THE SAME CONDITIONS AS COMMISSIONED OFFICERS; AND SHALL TAKE RANK NEXT BELOW SECOND LIEUTENANTS AND AMONG THEMSELVES ACCORDING TO THE DATES OF THEIR RESPECTIVE WARRANTS.' WHILE THEIR TENURE OF OFFICE IS NOT OTHERWISE INDICATED IT IS APPARENTLY CONTEMPLATED THAT IT SHALL BE AS FIXED AS THAT OF COMMISSIONED OFFICERS. SECTION 2 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 41 STAT. 759, PROVIDES THAT THE REGULAR ARMY SHALL CONSIST OF, AMONG OTHER MPONENTS,"OFFICERS AND ENLISTED MEN OF THE RETIRED LIST.' THE TERM "OFFICERS," AS USED IN THIS LATTER PROVISION, MAY BE CONSIDERED AS INCLUDING RETIRED WARRANT OFFICERS.

THE NATIONAL GUARD--- I.E., THE MILITIA--- IS A MILITARY FORCE OF THE RESPECTIVE STATES, RECOGNIZED AND PROVIDED FOR BY THE CONSTITUTION, WHICH MAY BE UTILIZED FOR CERTAIN SPECIFIED FEDERAL PURPOSES. IN ADDITION, BY SECTION 111 OF THE NATIONAL DEFENSE ACT AS AMENDED, MEMBERS OF THE NATIONAL GUARD ARE SUBJECT TO DRAFT AS INDIVIDUALS IN THE ARMY OF THE UNITED STATES UNDER THE CONDITIONS THEREIN PRESCRIBED. THE QUESTION PRESENTED BY YOUR SUBMISSION ARISES BY REASON OF THE DUAL STATUS WHICH RETIRED WARRANT OFFICERS AND RETIRED ENLISTED MEN HAVE WHEN THEY BECOME MEMBERS OF THIS STATE MILITARY FORCE.

SECTION 100 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT.208, AUTHORIZES THE DETAIL OF OFFICERS ON THE ACTIVE LIST OF THE ARMY TO DUTY WITH THE NATIONAL GUARD OF ANY STATE, AND ROVIDES:

* * * OFFICERS SO DETAILED MAY ACCEPT COMMISSIONS IN THE NATIONAL GUARD, WITH THE PERMISSION OF THE PRESIDENT AND TERMINABLE IN HIS DISCRETION, WITHOUT VACATING THEIR COMMISSIONS IN THE REGULAR ARMY OR BEING PREJUDICED IN THEIR RELATIVE OR LINEAL STANDING THEREIN. * * * BUT NOTHING IN THIS SECTION SHALL BE SO CONSTRUED AS TO PREVENT THE DETAIL OF RETIRED OFFICERS AS NOW PROVIDED BY LAW.

SECTION 74 OF THE NATIONAL DEFENSE ACT AS AMENDED, 41 STAT. 781, PROVIDES:

PERSONS HEREAFTER COMMISSIONED AS OFFICERS OF THE NATIONAL GUARD SHALL NOT BE RECOGNIZED AS SUCH UNDER ANY OF THE PROVISIONS OF THIS ACT UNLESS THEY SHALL HAVE BEEN SELECTED FROM THE FOLLOWING CLASSES, AND SHALL HAVE TAKEN AND SUBSCRIBED TO THE OATH OF OFFICE PRESCRIBED IN THE PRECEDING SECTION OF THIS ACT; OFFICERS OR ENLISTED MEN OF THE NATIONAL GUARD; OFFICERS, ACTIVE OR RETIRED, RESERVE OFFICERS, AND FORMER OFFICERS OF THE ARMY, NAVY, MARINE CORPS, ENLISTED MEN AND FORMER ENLISTED MEN OF THE ARMY, NAVY, OR MARINE CORPS WHO HAVE RECEIVED AN HONORABLE DISCHARGE THEREFROM * * *.

THERE IS NO PROVISION FIXING THE QUALIFICATIONS FOR APPOINTMENT AS WARRANT OFFICER IN THE NATIONAL GUARD, NOR IS A SPECIAL OATH PROVIDED FOR WARRANT OFFICERS, ALTHOUGH A FORM OF OATH IS PRESCRIBED BOTH FOR ENLISTED MEN AND FOR COMMISSIONED OFFICERS. THE AGE OF OFFICERS AND WARRANT OFFICERS IN THE NATIONAL GUARD IS FIXED AT FROM 21 TO 64 YEARS BY THE AMENDMENT OF SECTION 58 OF THE NATIONAL DEFENSE ACT, FEBRUARY 28, 1925. BY INCLUDING WARRANT OFFICERS IN THE TERM FFICERS," AS USED IN THE PHRASE FIXING ELIGIBILITY OF "OFFICERS, ACTIVE OR RETIRED * * * OF THE ARMY, NAVY, OR MARINE CORPS," THERE IS SPECIFIC PROVISION FOR THE APPOINTMENT OF WARRANT OFFICERS AS COMMISSIONED OFFICERS IN THE NATIONAL GUARD.

THE QUALIFICATIONS FOR ENLISTMENT IN THE NATIONAL GUARD ARE BY SECTIONS 57 AND 58 OF THE NATIONAL DEFENSE ACT FIXED AS ABLE-BODIED MALES OF THE REGULARLY ENLISTED MILITIA BETWEEN THE AGES OF 18 AND 45, WITH PROVISION FOR REENLISTMENT BETWEEN THE AGES OF 45 AND 64 IN SECTION 58 AS AMENDED BY THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1075. AMONG THE PERSONS ELIGIBLE FOR APPOINTMENT AS OFFICERS OF THE NATIONAL GUARD, AS DESCRIBED IN SECTION 74, ARE "ENLISTED MEN AND FORMER ENLISTED MEN OF THE ARMY, NAVY, OR MARINE CORPS WHO HAVE RECEIVED AN HONORABLE DISCHARGE THEREFROM.' THE PHRASE "WHO HAVE RECEIVED AN HONORABLE DISCHARGE THEREFROM" CAN ONLY HAVE APPLICATION TO "FORMER ENLISTED MEN" AND THE ELIGIBILITY OF ENLISTED MEN OF THE ARMY FOR APPOINTMENT AS OFFICERS IS THEREFROM PROVIDED BY LAW. RETIRED ENLISTED MEN ARE INCLUDED IN THE COMPOSITION OF THE REGULAR ARMY AND COME WITHIN THE TERM AS USED IN SECTION 74 OF "ENLISTED MEN * * * OF THE ARMY.' IF THE APPOINTMENT OF ENLISTED MEN ON THE ACTIVE LIST IS PROVIDED FOR, THE APPOINTMENT OF RETIRED ENLISTED MEN IS EQUALLY WITHIN THE REASON OF THE LAW. THE ELIGIBILITY OF RETIRED ENLISTED MEN FOR APPOINTMENT AS OFFICERS IN THE NATIONAL GUARD IS, IT WOULD SEEM, ESTABLISHED BY LAW. WHAT WAS SAID IN 23 COMP. DEC. 649, RESPECTING THE OBJECTION TO PAYMENT OF ARMORY DRILL PAY TO A RETIRED ENLISTED MAN SERVING AS A COMMISSIONED OFFICER OF THE NATIONAL GUARD WAS BASED ON SECTION 74 AS IT APPEARED IN THE ACT OF JUNE 3, 1916; NO PROVISION HAVING BEEN MADE THEREIN FOR THE APPOINTMENT OF ENLISTED MEN OF THE REGULAR ARMY AS OFFICERS OF THE NATIONAL GUARD. THE AMENDMENT TO THIS SECTION, JUNE 4, 1920, HAS SPECIFICALLY PROVIDED FOR THE ELIGIBILITY OF ENLISTED MEN AS HEREIN SHOWN.

AS HAS BEEN STATED, NO PROVISION FIXES THE QUALIFICATIONS FOR APPOINTMENT AS WARRANT OFFICERS IN THE NATIONAL GUARD. THIS IS PERHAPS DUE TO THE FACT THAT WARRANT OFFICERS WERE ESTABLISHED IN THE ARMY SO RECENTLY AND THE EXTENT OF THE USE OF THAT FORM OF APPOINTMENT IN THE NATIONAL GUARD HAD NOT BEEN FORESEEN. UNTIL JUNE 4, 1920, THE ARMY WAS (WITH THE EXCEPTION OF CADETS, NURSES, AND FIELD CLERKS) COMPOSED OF TWO DISTINCT CLASSES--- OFFICERS AND ENLISTED MEN. INDIVIDUALS OF BOTH CLASSES WERE BY LAW RECOGNIZED AS ELIGIBLE FOR APPOINTMENT AS OFFICERS IN THE NATIONAL GUARD. IT IS EVIDENT IT WAS CONTEMPLATED BY THE LEGISLATION THAT THE RETIRED PERSONNEL OF THE REGULAR ARMY SHOULD BE AVAILABLE FOR SERVICE IN THE NATIONAL GUARD. APPOINTMENT OF RETIRED WARRANT OFFICERS OR RETIRED ENLISTED MEN OF THE ARMY AS WARRANT OFFICERS IN THE NATIONAL GUARD IS THEREFORE WITHIN THE POLICY OF THE LAW AND NOT CONTRARY TO THE INTENT OR PURPOSE OF ANY PROVISION OF THE NATIONAL DEFENSE ACT.

SO FAR AS ENLISTMENT IN THE NATIONAL GUARD OR RETIRED ENLISTED MEN OF THE ARMY IS CONCERNED, THERE IS NO LEGAL OBJECTION THERETO PROVIDED THE ORIGINAL OR FIRST ENLISTMENT IN THE NATIONAL GUARD IS ENTERED INTO BEFORE THE ENLISTED MAN IS 45 YEARS OF AGE, REQUIRED BY SECTION 58 OF THE NATIONAL DEFENSE ACT, AS AMENDED.

THE APPOINTMENT OF RETIRED WARRANT OFFICERS AND RETIRED ENLISTED MEN OF THE REGULAR ARMY AS COMMISSIONED OFFICERS, WARRANT OFFICERS, OR THE ENLISTMENT OF SUCH RETIRED PERSONS IN THE NATIONAL GUARD BEING WITHIN THE LAW; THAT FORCE WHEN NOT IN THE ACTUAL SERVICE OF THE UNITED STATES BEING A STATE FORCE, AND THE PROVISION FOR PAY FOR CERTAIN FORMS OF TRAINING OF THE NATIONAL GUARD BEING INDIRECTLY A CONTRIBUTION FROM THE FEDERAL GOVERNMENT TO THE STATES FOR THE PROPER TRAINING OF THE MILITIA, SUCH RETIRED WARRANT OFFICERS AND RETIRED ENLISTED MEN ARE ENTITLED TO ANY PAY PROPERLY ACCRUING UNDER THEIR APPOINTMENT OR ENLISTMENT IN THE NATIONAL GUARD WHEN NOT IN FEDERAL SERVICE AND SUCH PAYMENTS WILL NOT AFFECT THEIR RETIRED PAY. 23 COMP. DEC. 444 AND 649; 27 ID. 995. WHERE, HOWEVER, ORGANIZATIONS OF THE NATIONAL GUARD OF WHICH RETIRED OFFICERS, WARRANT OFFICERS, OR ENLISTED MEN OF THE ARMY ARE MEMBERS ARE CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES OR ARE DRAFTED INTO THE ARMY OF THE UNITED STATES UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT AND BECOME ENTITLED TO RECEIVE BY REASON OF SUCH ENTRY INTO THE FEDERAL SERVICE, THE FULL PAY AND ALLOWANCES PRESCRIBED BY LAW FOR THEIR RANK OR GRADE IN THE NATIONAL GUARD IN THE ACTUAL SERVICE OF THE UNITED STATES, THEY WILL NOT BE ENTITLED TO THEIR RETIRED PAY. 23 COMP. DEC. 344. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.