B-104509, MARCH 26, 1952, 31 COMP. GEN. 482

B-104509: Mar 26, 1952

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- IS ENTITLED TO PAY FOR ARMORY DRILLS AND FIELD TRAINING ACTUALLY ATTENDED WHILE IN A FEDERALLY RECOGNIZED STATUS. EVEN THOUGH THE OFFICER MAY NOT HAVE HELD A COMMISSION AS A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES DURING THE PERIOD INVOLVED. IN THE DELAWARE NATIONAL GUARD WAS LATER RECEIVED. MAJOR NAYLOR'S APPOINTMENT AS AN OFFICER OF THE DELAWARE NATIONAL GUARD WAS TERMINATED. THAT HIS FEDERAL RECOGNITION WAS TERMINATED BY THE NATIONAL GUARD BUREAU UNDER DATE OF SEPTEMBER 14. HE IS NOT ENTITLED TO FEDERAL PAY OR ALLOWANCES FOR DRILLS ATTENDED AND FIELD TRAINING PERFORMED AS AN OFFICER OF THE DELAWARE NATIONAL GUARD IN A FEDERALLY RECOGNIZED STATUS DURING THE PERIOD FROM MAY 9.

B-104509, MARCH 26, 1952, 31 COMP. GEN. 482

PAY - DRILL - NATIONAL GUARD - FEDERAL RECOGNITION UNDER THE CAREER COMPENSATION ACT OF 1949, A FEDERALLY RECOGNIZED OFFICER OF THE NATIONAL GUARD--- AS DISTINGUISHED FROM THE NATIONAL GUARD OF THE UNITED STATES--- IS ENTITLED TO PAY FOR ARMORY DRILLS AND FIELD TRAINING ACTUALLY ATTENDED WHILE IN A FEDERALLY RECOGNIZED STATUS, EVEN THOUGH THE OFFICER MAY NOT HAVE HELD A COMMISSION AS A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES DURING THE PERIOD INVOLVED.

ASSISTANT COMPTROLLER GENERAL YATES TO COLONEL J. E. ALLEN, DEPARTMENT OF THE ARMY, MARCH 26, 1952:

BY 15TH ENDORSEMENT DATED JULY 6, 1951, THE CHIEF OF FINANCE FORWARDED TO THIS OFFICE YOUR 14TH ENDORSEMENT OF MAY 28, 1951, REQUESTING AN ADVANCE DECISION ON THE CLAIM OF MAJOR JUST US B. NAYLOR, HEADQUARTERS AND HEADQUARTERS BATTERY, 160TH ANTIAIRCRAFT ARTILLERY GROUP, DELAWARE NATIONAL GUARD, FOR ARMORY DRILL PAY AND FIELD TRAINING PAY DURING T.E PERIOD FROM MAY 9, 1950 TO SEPTEMBER 1, 1950, SUPPORTED BY SUPPLEMENTAL ARMORY DRILL PAY ROLLS OF THE SAID ORGANIZATION FOR THE QUARTERLY PERIODS FROM APRIL 1, 1950, TO JUNE 30, 1950, AND FROM JULY 1, 1950, TO SEPTEMBER 30, 1950, AND BY SUPPLEMENTAL FIELD TRAINING PAY ROLL OF THE SAID ORGANIZATION FOR THE PERIOD FROM JULY 23, 1950, TO AUGUST 6, 1950.

THE CORRESPONDENCE SUBMITTED WITH THE SUPPLEMENTAL PAY ROLLS SHOWS THAT MAJOR NAYLOR APPEARED BEFORE A FEDERAL RECOGNITION BOARD ON MAY 8, 1950; THAT HIS FEDERAL RECOGNITION AS A MAJOR, COAST ARTILLERY CORPS, IN THE DELAWARE NATIONAL GUARD WAS LATER RECEIVED, DATED JULY 24, 1950, EFFECTIVE MAY 9, 1950, THE EFFECTIVE DATE OF STATE ORDERS (PARAGRAPH 7, SPECIAL ORDERS NO. 47 ( AGO, DELAWARE) APPOINTING HIM A MAJOR IN THE COAST ARTILLERY CORPS AND ASSIGNING HIM TO DUTY WITH THE ORGANIZATION REFERRED TO ABOVE; THAT, WHEN TENDERED BY THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, BY LETTER DATED AUGUST 1, 1950, A COMMISSION IN THE NATIONAL GUARD OF THE UNITED STATES, MAJOR NAYLOR DECLINED, BY HIS THIRD ENDORSEMENT DATED AUGUST 30, 1950, TO TAKE THE OATH OF OFFICE; THAT BY PARAGRAPH 2, SPECIAL ORDERS NO. 101, AGO, DELAWARE, DATED SEPTEMBER 1, 1950, MAJOR NAYLOR'S APPOINTMENT AS AN OFFICER OF THE DELAWARE NATIONAL GUARD WAS TERMINATED, EFFECTIVE SEPTEMBER 1, 1950, REASON, RESIGNATION; AND THAT HIS FEDERAL RECOGNITION WAS TERMINATED BY THE NATIONAL GUARD BUREAU UNDER DATE OF SEPTEMBER 14, 1950, EFFECTIVE SEPTEMBER 1, 1950, REASON, RESIGNATION.

IN YOUR SECOND ENDORSEMENT OF FEBRUARY 7, 1951, TO THE SENIOR ARMY INSTRUCTOR, DELAWARE NATIONAL GUARD, YOU INDICATE IT TO BE YOUR BELIEF THAT, SINCE MAJOR NAYLOR DECLINED--- BY REFUSING TO TAKE THE OATH OF OFFICE--- TO ACCEPT THE TENDERED COMMISSION IN THE NATIONAL GUARD OF THE UNITED STATES, HE IS NOT ENTITLED TO FEDERAL PAY OR ALLOWANCES FOR DRILLS ATTENDED AND FIELD TRAINING PERFORMED AS AN OFFICER OF THE DELAWARE NATIONAL GUARD IN A FEDERALLY RECOGNIZED STATUS DURING THE PERIOD FROM MAY 9, 1950, TO SEPTEMBER 1, 1950, BOTH DATES INCLUSIVE.

AS TO ARMORY DRILL PAY, SECTION 501 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 825, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, AND TO THE EXTENT PROVIDED FOR BY LAW AND BY APPROPRIATIONS, MEMBERS OF THE NATIONAL GUARD, AIR NATIONAL GUARD, NATIONAL GUARD OF THE UNITED STATES, THE AIR NATIONAL GUARD OF THE UNITED STATES * * * SHALL BE ENTITLED TO RECEIVE COMPENSATION AT THE RATE OF ONE-THIRTIETH OF THE BASIC PAY AUTHORIZED FOR SUCH MEMBERS OF THE UNIFORMED SERVICES WHEN ENTITLED TO RECEIVE BASIC PAY, FOR EACH REGULAR PERIOD OF INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY, AT WHICH THEY SHALL HAVE BEEN ENGAGED FOR NOT LESS THAN TWO HOURS, INCLUDING THOSE PERFORMED ON SUNDAYS AND HOLIDAYS, OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES AS MAY BE PRESCRIBED BY THE SECRETARY CONCERNED: * * *

THE QUOTED LANGUAGE OF THE SAID SECTION 501 OF THE CAREER COMPENSATION ACT OF 1949, WHEN READ IN CONJUNCTION WITH SECTIONS 71, 73, 74, AND 75 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S. CODE, SECTIONS 4B, 112, 111, AND 113, RESPECTIVELY, CLEARLY INDICATES THAT A FEDERALLY RECOGNIZED MEMBER OF THE NATIONAL GUARD--- AS DISTINGUISHED FROM A FEDERALLY RECOGNIZED MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES--- IS ENTITLED TO BE PAID ARMORY DRILL PAY FOR DRILLS ACTUALLY ATTENDED WHILE IN SUCH FEDERALLY RECOGNIZED STATUS EVEN THOUGH HE MAY NOT HAVE BEEN COMMISSIONED AS A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES.

WITH REGARD TO FIELD TRAINING PAY, SUBSECTION (E) OF SECTION 201 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ALL MEMBERS OF THE UNIFORMED SERVICES WHEN ON THE ACTIVE LIST, WHEN ON ACTIVE DUTY, OR WHEN PARTICIPATING IN FULL-TIME TRAINING, TRAINING DUTY WITH PAY OR OTHER FULL-TIME DUTY (PROVIDED FOR OR AUTHORIZED IN THE NATIONAL DEFENSE ACT, AS AMENDED, OR IN THE NAVAL RESERVE ACT OF 1938, AS AMENDED, OR IN OTHER PROVISIONS OF LAW, INCLUDING PARTICIPATION IN EXERCISES OR PERFORMANCE OF THE DUTIES PROVIDED FOR BY SECTIONS 5, 81, 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED), AND IN ADDITION THERETO, ALL MEMBERS OF THE NATIONAL GUARD AND THE AIR NATIONAL GUARD WHEN THEY ARE ENTITLED BY LAW TO RECEIVE FROM THE FEDERAL GOVERNMENT THE SAME PAY AS THAT AUTHORIZED FOR MEMBERS OF THE REGULAR COMPONENTS OF THE UNIFORMED SERVICES OF CORRESPONDING GRADE OR RANK, SHALL BE ENTITLED TO RECEIVE THE BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED, OR IN WHICH DISTRIBUTED, PURSUANT TO SUBSECTION (B), (C), OR (D) OF THIS SECTION, IN ACCORDANCE WITH CUMULATIVE YEARS OF SERVICE * * * ( ITALICS SUPPLIED.)

SECTION 94 OF THE NATIONAL DEFENSE ACT, APPROVED JUNE 3, 1916, 39 STAT. 206 ( SEE 32 U.S. CODE, SECTIONS 63 AND 144), PROVIDES, IN PERTINENT PART AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE THE SECRETARY PARTICIPATION OF THE WHOLE OR ANY PART OF THE NATIONAL GUARD IN ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES, INCLUDING OUTDOOR TARGET PRACTICE, FOR FIELD OR COAST-DEFENSE INSTRUCTIONS, EITHER INDEPENDENTLY OR IN CONJUNCTION WITH ANY PART OF THE REGULAR ARMY * * * AND THE OFFICERS AND ENLISTED MEN OF SUCH NATIONAL GUARD WHILE SO ENGAGED SHALL BE ENTITLED TO THE SAME PAY, SUBSISTENCE, AND TRANSPORTATION AS OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES OF THE REGULAR ARMY ARE OR HEREAFTER MAY BE ENTITLED BY LAW. ( ITALICS SUPPLIED.)

SUBSECTION 102 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, PROVIDES THAT---

THE TERM "UNIFORMED SERVICES," UNLESS OTHERWISE QUALIFIED, SHALL BE INTERPRETED TO MEAN AND INCLUDE THE ARMY OF THE UNITED STATES, NAVY AIR FORCE OF THE UNITED STATES, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, AND ALL REGULAR AND RESERVE COMPONENTS THEREOF.

SECTION 1 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 2, DEFINING " ARMY OF THE UNITED STATES," WAS REPEALED BY SECTION 401 (A) OF THE ACT OF JUNE 28, 1950, 64 STAT. 271, AND THE SUBJECT MATTER THEREOF IS COVERED, IN PART, BY SECTIONS 2 AND 301 OF THE ACT OF JUNE 28, 1950, 64 STAT. 263 AND 268, 10 18.S. CODE A AND B, WHICH PROVIDE AS FOLLOWS:

SEC. 2. AS USED IN THIS ACT---

(A) THE TERMS " ARMY OF THE UNITED STATES" AND " ARMY" ARE SYNONYMOUS AND MEAN THE ARMY OR ARMIES REFERRED TO IN THE CONSTITUTION OF THE UNITED STATES, LESS THAT PART ESTABLISHED BY LAW AS THE AIR FORCE. THE ARMY INCLUDES THE COMPONENTS AND PERSONS PRESCRIBED IN SECTION 301 OF THIS ACT.

SEC. 301. THE ARMY INCLUDES THE REGULAR ARMY, THE NATIONAL GUARD OF THE UNITED STATES, AND THE ORGANIZED RESERVE CORPS; ALL PERSONS APPOINTED, ENLISTED, OR INDUCTED IN THE ARMY WITHOUT SPECIFICATION OF COMPONENT; AND ALL PERSONS SERVING IN THE ARMY UNDER CALL OR CONSCRIPTION UNDER ANY PROVISION OF LAW, INCLUDING MEMBERS OF THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA WHEN IN THE SERVICE OF THE UNITED STATES PURSUANT TO CALL AS PROVIDED BY LAW.

WHILE THE DEFINITION IN SUBSECTION 102 (A) OF THE CAREER COMPENSATION ACT, SUPRA, OF THE TERM ,UNIFORMED SERVICES" MIGHT GIVE RISE TO DOUBT WHETHER MEMBERS OF THE NATIONAL GUARD WHO ARE NOT MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES PROPERLY MAY BE CONSIDERED AS MEMBERS OF SUCH UNIFORMED SERVICES, THE UNDERSCORED PORTION OF SECTION 201 (E) OF THE SAID ACT, AS QUOTED ABOVE, WHEN READ IN CONJUNCTION WITH THE UNDERSCORED PORTIONS OF SECTION 94 OF THE NATIONAL DEFENSE ACT, MAKES IT REASONABLY EVIDENT THAT FEDERALLY RECOGNIZED MEMBERS OF THE NATIONAL GUARD--- EVEN THOUGH NOT MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES--- WHILE ATTENDING ENCAMPMENTS, FIELD TRAINING, ETC., ARE ENTITLED TO THE BASIC BAY REFERRED TO IN SAID SECTION 201 (E).

ACCORDINGLY, INASMUCH AS MAJOR NAYLOR WAS A FEDERALLY RECOGNIZED OFFICER OF THE NATIONAL GUARD OF THE STATE OF DELAWARE, WHO IS REPORTED TO HAVE TAKEN AND SUBSCRIBED TO THE OATH OF OFFICE PRESCRIBED UNDER SECTION 73 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 112, AND WHO IS SHOWN TO HAVE ATTENDED THE AUTHORIZED DRILLS ENUMERATED ON THE SUPPLEMENTAL ARMORY DRILL PAY ROLLS, AND TO HAVE ATTENDED FIELD TRAINING AS INDICATED ON THE SUPPLEMENTAL FIELD TRAINING PAY ROLL, YOU ARE AUTHORIZED TO MAKE PAYMENT ON SUCH SUPPLEMENTAL PAY ROLLS IF THEY ARE OTHERWISE CORRECT. THE SAID SUPPLEMENTAL PAY ROLLS, TOGETHER WITH SUPPORTING PAPERS, ARE RETURNED HEREWITH.