B-111105, MARCH 30, 1953, 32 COMP. GEN. 414

B-111105: Mar 30, 1953

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PAY - ERRONEOUS APPOINTMENT - NATIONAL GUARD OF THE UNITED STATES - DE JURE STATUS A PERSON WHO WAS APPOINTED AND ORDERED TO ACTIVE DUTY AS A MAJOR IN THE NATIONAL GUARD OF THE UNITED STATES UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT. WHO SUBSEQUENT TO GOING ON ACTIVE DUTY WAS DETERMINED TO BE INELIGIBLE TO HOLD THAT GRADE AND WAS TENDERED AN APPOINTMENT AS CAPTAIN. WAS IN A DE JURE STATUS WHILE ON ACTIVE DUTY AS A MAJOR AND ENTITLED TO THE PAY AND ALLOWANCES OF MAJOR UNTIL ACCEPTANCE OF THE APPOINTMENT AS A CAPTAIN. THERE WAS RECEIVED YOUR LETTER OF JUNE 9. IS ENTITLED TO THE PAY AND ALLOWANCES OF A MAJOR FOR THE PERIOD ENDING ON THE DATE (ABOUT MAY 27. THAT SHALALA WAS FEDERALLY RECOGNIZED AS A CAPTAIN.

B-111105, MARCH 30, 1953, 32 COMP. GEN. 414

PAY - ERRONEOUS APPOINTMENT - NATIONAL GUARD OF THE UNITED STATES - DE JURE STATUS A PERSON WHO WAS APPOINTED AND ORDERED TO ACTIVE DUTY AS A MAJOR IN THE NATIONAL GUARD OF THE UNITED STATES UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT, AS AMENDED, BUT WHO SUBSEQUENT TO GOING ON ACTIVE DUTY WAS DETERMINED TO BE INELIGIBLE TO HOLD THAT GRADE AND WAS TENDERED AN APPOINTMENT AS CAPTAIN, WHICH HE ACCEPTED, WAS IN A DE JURE STATUS WHILE ON ACTIVE DUTY AS A MAJOR AND ENTITLED TO THE PAY AND ALLOWANCES OF MAJOR UNTIL ACCEPTANCE OF THE APPOINTMENT AS A CAPTAIN.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. W. E. BRIGHT, DEPARTMENT OF THE ARMY, MARCH 30, 1953:

BY SECOND ENDORSEMENT FROM THE CHIEF OF FINANCE DATED JULY 28, 1952, THERE WAS RECEIVED YOUR LETTER OF JUNE 9, 1952, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER CAPTAIN JOHN SAMUEL SHALALA, O 1100762, CE, NGUS, IS ENTITLED TO THE PAY AND ALLOWANCES OF A MAJOR FOR THE PERIOD ENDING ON THE DATE (ABOUT MAY 27, 1952), WHEN HE ACCEPTED A COMMISSION IN THE GRADE OF CAPTAIN IN THE NATIONAL GUARD OF THE UNITED STATES.

IT APPEARS FROM A 4TH ENDORSEMENT, NATIONAL GUARD BUREAU, DATED MAY 13, 1952, THAT SHALALA WAS FEDERALLY RECOGNIZED AS A CAPTAIN, CE, ON FEBRUARY 7, 1952, TO DATE FROM OCTOBER 27, 1951. NO PRIOR SERVICE IS REFLECTED BY THE FILE BEFORE THIS OFFICE. PRIOR TO JANUARY 15, 1952, HE APPEARED BEFORE A DULY CONSTITUTED BOARD OF OFFICERS APPOINTED BY THE OHIO MILITARY DISTRICT, COLUMBUS, OHIO, WHICH APPROVED HIS APPOINTMENT AS MAJOR, CORPS OF ENGINEERS; AND HE WAS APPOINTED TO A POSITION VACANCY APPROPRIATE TO HIS GRADE (MAJOR). UNDER THE PROVISIONS OF SECTION 111 OF THE NATIONAL DEFENSE ACT, AS AMENDED, HE WAS ORDERED INTO THE ACTIVE FEDERAL SERVICE BY DIRECTION OF THE PRESIDENT, PRESUMABLY AS A MEMBER OF THE 112TH ENGINEER (C) BATTALION, 37TH INFANTRY DIVISION, OHIO NATIONAL GUARD, JANUARY 15, 1952, AND WAS APPOINTED AND ORDERED INTO THE ACTIVE SERVICE WITH HIS UNIT AS MAJOR, CORPS OF ENGINEERS, NATIONAL GUARD OF THE UNITED STATES, ON JANUARY 15, 1952. REVIEW OF THE RECORDS BY THE NATIONAL GUARD BUREAU DISCLOSED THAT THE OFFICER WAS INELIGIBLE FOR FEDERAL RECOGNITION IN THE NATIONAL GUARD IN THE GRADE OF MAJOR. IT THEREFORE WAS DETERMINED, IN EFFECT, THAT HE WAS INELIGIBLE TO CONTINUE TO SERVE AS MAJOR, CORPS OF ENGINEERS, NATIONAL GUARD OF THE UNITED STATES. UNDER DATE OF MAY 5, 1952, THE ADJUTANT GENERAL OF THE ARMY NOTIFIED HIM OF HIS SAID INELIGIBILITY, TENDERED HIM AN APPOINTMENT AS CAPTAIN IN THE NATIONAL GUARD OF THE UNITED STATES, ADVISED HIM THAT IN THE EVENT OF HIS FAILURE TO ACCEPT APPOINTMENT AS CAPTAIN WITHIN A STATED PERIOD IT WOULD BE NECESSARY TO RELIEVE HIM FROM ACTIVE DUTY AND DISCHARGE HIM FROM HIS COMMISSION (AS MAJOR) IN THE NATIONAL GUARD OF THE UNITED STATES, AND DIRECTED HIM, UPON ACCEPTANCE OF APPOINTMENT AS CAPTAIN, TO CONTINUE ON HIS PRESENT TOUR OF ACTIVE DUTY IN THE GRADE OF CAPTAIN. THE DATE OF RECEIPT OF NOTICE OF HIS INELIGIBILITY FOR THE GRADE OF MAJOR AND EXECUTION OF OATH OF OFFICE AS CAPTAIN, NATIONAL GUARD OF THE UNITED STATES, IS NOT DISCLOSED, BUT IT APPEARS THAT IT WAS NOT EARLIER THAN MAY 27, 1952. IT IS STATED THAT THE OFFICER HAS BEEN PAID AS A MAJOR THROUGH APRIL 30, 1952.

SECTION 301 OF THE ACT OF JUNE 28, 1950, 64 STAT. 268, 10 U.S.C. B, IS AS FOLLOWS:

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 ABOVE-NAMED COMPONENTS; 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.

SECTION 71 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 4B, IS IN PERTINENT PART AS FOLLOWS:

" NATIONAL GUARD OF THE UNITED STATES" MEANS A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES COMPOSED OF THOSE FEDERALLY RECOGNIZED UNITS AND ORGANIZATIONS AND PERSONS DULY APPOINTED AND COMMISSIONED IN THE ACTIVE AND INACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, WHO HAVE TAKEN AND SUBSCRIBED TO THE OATH OF OFFICE PRESCRIBED IN SECTION 112 OF THIS TITLE, AND WHO HAVE BEEN DULY APPOINTED BY THE PRESIDENT IN THE NATIONAL GUARD OF THE UNITED STATES, AS PROVIDED IN THIS TITLE, AND OF THOSE OFFICERS AND WARRANT OFFICERS APPOINTED AS PRESCRIBED IN SECTIONS 81 (SECTION 111 OF THE NATIONAL DEFENSE ACT) AND 113 OF THIS TITLE * * *.

SECTION III OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 81, PROVIDES IN PERTINENT PART AS FOLLOWS:

COMMISSIONED OFFICERS AND WARRANT OFFICERS APPOINTED IN THE NATIONAL GUARD OF THE UNITED STATES AND COMMISSIONED OR HOLDING WARRANTS IN THE ARMY OF THE UNITED STATES, ORDERED INTO FEDERAL SERVICE AS HEREIN PROVIDED, SHALL BE ORDERED TO ACTIVE DUTY UNDER SUCH APPOINTMENTS AND COMMISSIONS OR WARRANTS: PROVIDED, THAT THOSE OFFICERS AND WARRANT OFFICERS OF THE NATIONAL GUARD WHO DO NOT HOLD APPOINTMENTS IN THE NATIONAL GUARD OF THE UNITED STATES AND COMMISSIONS OR WARRANTS IN THE ARMY OF THE UNITED STATES MAY BE APPOINTED AND COMMISSIONED OR TENDERED WARRANTS THEREIN BY THE PRESIDENT, IN THE SAME GRADE AND BRANCH THEY HOLD IN THE NATIONAL GUARD.

PARAGRAPH 22, AR 130-10, OCTOBER 19, 1950, CONTAINS A SUGGESTED FORM OF PRESIDENTIAL PROCLAMATION APPROPRIATE FOR ORDERING THE NATIONAL GUARD OF THE UNITED STATES INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, WHICH READS IN PERTINENT PART AS FOLLOWS:

ALL OFFICERS AND WARRANT OFFICERS OF THE NATIONAL GUARD APPOINTED IN THE NATIONAL GUARD, FEDERALLY RECOGNIZED OR EXAMINED FOR FEDERAL RECOGNITION, AND ASSIGNED TO UNITS ORDERED TO ACTIVE DUTY UNDER THIS PROCLAMATION PRIOR TO THE EFFECTIVE DATE HEREOF, WHO DO NOT HOLD APPOINTMENTS IN THE NATIONAL GUARD OF THE UNITED STATES AND COMMISSIONS OR WARRANTS IN THE ARMY OF THE UNITED STATES, ARE HEREBY TENDERED SUCH APPOINTMENTS IN THE SAME GRADE AND ARM OR SERVICE THEY HOLD IN THE NATIONAL GUARD.

PARAGRAPH 20, SR 130-10-1, AUGUST 14, 1951, IS AS FOLLOWS:

PROCEDURE TO BE FOLLOWED WHEN FEDERAL RECOGNITION OF OFFICERS AND WARRANT OFFICERS IS IN PROCESS AT DATE OF ENTRY INTO THE ACTIVE MILITARY SERVICE.- -- AN OFFICER OR WARRANT OFFICER WHO HAS APPEARED BEFORE A BOARD FOR FEDERAL RECOGNITION BUT HAS NOT RECEIVED OFFICIAL NOTICE OF FEDERAL RECOGNITION ( NGB FORM 3A), WILL ENTER INTO ACTIVE MILITARY SERVICE WITH HIS UNIT IN HIS APPOINTED GRADE REGARDLESS OF NONRECEIPT OF FEDERAL RECOGNITION BEFORE THE EFFECTIVE DATE OF ENTRY INTO ACTIVE MILITARY SERVICE. OFFICERS IN THIS CATEGORY WILL COMPLETE ONE COPY OF NGB FORM 337 ( OATH OF OFFICE) ON THE EFFECTIVE DATE OF THE CALL OR ORDER. ADDITION, ONE COPY OF THE FOLLOWING STATEMENT WILL BE COMPLETED:

( PLACE)

( DATE)

MY PRESENT APPOINTMENT IN THE NATIONAL GUARD OF .................

( STATE) IS DATED ...................... . I WAS EXAMINED AND RECOMMENDED FOR

( DATE) FEDERAL RECOGNITION ON ........................ .

( DATE)

( NAME) * * * * * * * * THE OATH OF OFFICE AND STATEMENT PERTAINING TO FEDERAL RECOGNITION WILL BE ATTACHED TO THE INDIVIDUAL REPORT REQUIRED BY PARAGRAPH 28.

INSOFAR AS THE RECORD BEFORE THIS OFFICE DISCLOSES, THE OFFICER WAS APPOINTED AS MAJOR, CORPS OF ENGINEERS, NATIONAL GUARD OF THE UNITED STATES, AND SERVED AS SUCH UNTIL HE ACCEPTED APPOINTMENT AS CAPTAIN, NATIONAL GUARD OF THE UNITED STATES. IT THUS APPEARS THAT HIS DE JURE STATUS FOR A TIME WAS THAT OF A MAJOR, NATIONAL GUARD OF THE UNITED STATES. ACCORDINGLY, FOR THE TIME INVOLVED WHILE ON ACTIVE DUTY IN THE FEDERAL SERVICE AS AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES, HE IS ENTITLED TO BE CREDITED WITH THE PAY AND ALLOWANCES OTHERWISE DUE AND UNPAID OF A MAJOR UNTIL THE TIME HE ACCEPTED THE APPOINTMENT AS A CAPTAIN, NATIONAL GUARD OF THE UNITED STATES ON OR ABOUT MAY 27, 1952.