B-129572, NOVEMBER 19, 1956, 36 COMP. GEN. 407

B-129572: Nov 19, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

1934 COMMISSIONED AND WARRANT OFFICERS WHO WERE IN A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD ON JUNE 15. ARE ENTITLED TO CREDIT UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948. THE PERIOD WHICH WAS NOT SPECIFICALLY INCLUDED AS CREDITABLE SERVICE IN THE 1948 ACT. MEMBERS WHO WERE NOT IN A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD ON JUNE 15. WHO SUBSEQUENTLY RECEIVED NATIONAL GUARD APPOINTMENTS ARE ONLY ENTITLED TO SERVICE CREDIT FROM THE DATE OF ACCEPTANCE OF THE APPOINTMENT. 1956: FURTHER REFERENCE IS MADE TO THE LETTER OF OCTOBER 19. IN CASES WHERE AN APPOINTMENT IN THE NATIONAL GUARD OF THE UNITED STATES WAS ACCEPTED NOT LATER THAN OCTOBER 31.

B-129572, NOVEMBER 19, 1956, 36 COMP. GEN. 407

MILITARY PERSONNEL - STATE NATIONAL GUARD SERVICE - RETIRED PAY - SERVICE BETWEEN JANUARY 1, 1933, AND OCTOBER 31, 1934 COMMISSIONED AND WARRANT OFFICERS WHO WERE IN A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD ON JUNE 15, 1933, THE DATE OF THE ACT WHICH ESTABLISHED THE NATIONAL GUARD OF THE UNITED STATES AS A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES, AND WHO ACCEPTED APPOINTMENTS IN THE NATIONAL GUARD OF THE UNITED STATES NOT LATER THAN OCTOBER 31, 1934, ARE ENTITLED TO CREDIT UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, FOR SUCH SERVICE FROM JANUARY 1, 1933 TO OCTOBER 31, 1934, THE PERIOD WHICH WAS NOT SPECIFICALLY INCLUDED AS CREDITABLE SERVICE IN THE 1948 ACT; HOWEVER, MEMBERS WHO WERE NOT IN A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD ON JUNE 15, 1933, AND WHO SUBSEQUENTLY RECEIVED NATIONAL GUARD APPOINTMENTS ARE ONLY ENTITLED TO SERVICE CREDIT FROM THE DATE OF ACCEPTANCE OF THE APPOINTMENT.

TO THE SECRETARY OF DEFENSE, NOVEMBER 19, 1956:

FURTHER REFERENCE IS MADE TO THE LETTER OF OCTOBER 19, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION WHETHER SERVICE AS A FEDERALLY RECOGNIZED OFFICER IN AN ACTIVE STATUS OF THE NATIONAL GUARD OF A STATE DURING THE PERIOD JANUARY 1, 1933, THROUGH OCTOBER 31, 1934, IN CASES WHERE AN APPOINTMENT IN THE NATIONAL GUARD OF THE UNITED STATES WAS ACCEPTED NOT LATER THAN OCTOBER 31, 1934, MAY BE CREDITED AS SATISFACTORY FEDERAL SERVICE FOR RETIRED PAY PURPOSES UNDER SECTION 302 OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, PUBLIC LAW 810, 80TH CONGRESS, 10 U.S.C. 1036A. A DISCUSSION ON THE QUESTION IS SET FORTH IN COMMITTEE ACTION NO. 156, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AND ADDITIONAL QUESTIONS ARE THERE PRESENTED WHICH REQUIRE AN ANSWER ONLY IF THE BASIC QUESTION IS ANSWERED IN THE NEGATIVE.

SECTION 302 OF THE ACT OF JUNE 29, 1948, AUTHORIZES THE GRANTING OF RETIRED PAY BEGINNING AT AGE 60 TO ANY PERSON WHO COMPLETES TWENTY OR MORE YEARS OF SATISFACTORY FEDERAL SERVICE AS THERE DEFINED. SECTION 306, 10 U.S.C. 1036E, PROVIDES IN PERTINENT PART AS FOLLOWS:

FOR THE PURPOSES OF THIS TITLE---

(C) SERVICE IN A RESERVE COMPONENT, AS USED IN THIS TITLE, SHALL CONSIST OF SERVICE IN THE FOLLOWING ORGANIZATIONS, AND SHALL BE DEEMED TO BE FEDERAL SERVICE FOR THE PURPOSES OF THIS TITLE---

(1) THE NATIONAL GUARD OF THE UNITED STATES;

(2)THE NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES;

(3) THE FEDERALLY RECOGNIZED NATIONAL GUARD PRIOR TO 1933;

(4) A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD PRIOR TO

1933; * * *

SECTIONS 70 AND 73 OF THE NATIONAL DEFENSE ACT, APPROVED JUNE 3, 1916, 39 STAT. 201, 32 U.S.C. 123, 112, RESPECTIVELY, PROVIDED FOR ENLISTMENTS "IN THE NATIONAL GUARD OF THE UNITED STATES" AND OATHS FOR OFFICERS TO DISCHARGE FAITHFULLY THE DUTIES OF THEIR OFFICE "IN THE NATIONAL GUARD OF THE UNITED STATES.' HOWEVER, THE NATIONAL GUARD OF THE UNITED STATES WAS FIRST EXPRESSLY NAMED AS A COMPONENT OF THE ARMY OF THE UNITED STATES BY THE ACT OF JUNE 15, 1933, 48 STAT. 153, 10 U.S.C. 38. IT THUS APPEARS THAT THE 1933 ACT DID NOT CREATE THE NATIONAL GUARD OF THE UNITED STATES, BUT RATHER ESTABLISHED THAT ORGANIZATION AS A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES IN ORDER TO MAKE IT IMMEDIATELY AVAILABLE UPON THE DECLARATION OF AN EMERGENCY, THEREBY ELIMINATING THE DELAY INCIDENT TO A DRAFT. SECTION 11 OF THE 1933 ACT, 32 U.S.C. 113A, PROVIDED THAT OFFICERS OF THE NATIONAL GUARD IN A FEDERALLY RECOGNIZED STATUS ON THE DATE OF ITS APPROVAL SHOULD TAKE THE PRESCRIBED OATH OF OFFICE AND SHOULD BE APPOINTED IN THE NATIONAL GUARD OF THE UNITED STATES IN THE SAME GRADE AND BRANCH WITHIN A TIME LIMIT TO BE FIXED BY THE PRESIDENT AND, IN THE MEANTIME, SHOULD CONTINUE TO ENJOY ALL THE RIGHTS, BENEFITS, AND PRIVILEGES CONFERRED BY THAT ACT.

THE ESTABLISHMENT OF THE NATIONAL GUARD OF THE UNITED STATES AS A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES WAS ANNOUNCED BY WAR DEPARTMENT GENERAL ORDERS NO. 3, DATED APRIL 4, 1934. BY DIRECTION OF THE PRESIDENT EACH QUALIFIED COMMISSIONED OFFICER, NOT ABOVE THE GRADE OF COLONEL, AND EACH QUALIFIED WARRANT OFFICER OF THE NATIONAL GUARD, NOT ALREADY APPOINTED IN THE NATIONAL GUARD OF THE UNITED STATES, WAS APPOINTED THEREIN, SUBJECT TO ACCEPTANCE OF THE APPOINTMENT ON OR BEFORE OCTOBER 31, 1934.

IT IS STATED THAT THE DEPARTMENTS OF THE ARMY AND AIR FORCE CURRENTLY CREDIT COMMISSIONED AND WARRANT OFFICERS FEDERALLY RECOGNIZED IN THE NATIONAL GUARD PRIOR TO JUNE 15, 1933, WITH SATISFACTORY SERVICE FROM THE DATE OF FEDERAL RECOGNITION REGARDLESS OF THE DATE THE APPOINTMENT IN THE NATIONAL GUARD OF THE UNITED STATES WAS ACCEPTED; PERSONS ORIGINALLY APPOINTED IN THE NATIONAL GUARD OF THE UNITED STATES SUBSEQUENT TO JUNE 15, 1933, ARE CREDITED WITH SERVICE FROM THE DATE OF ACCEPTANCE OF SUCH APPOINTMENT. THE NAVY DEPARTMENT CREDITS PERSONS WITH PRIOR SERVICE IN THE NATIONAL GUARD OF THE UNITED STATES SUBSEQUENT TO JUNE 15, 1933, ARE CREDITED WITH SERVICE FROM THE DATE OF ACCEPTANCE OF SUCH APPOINTMENT. THE NAVY DEPARTMENT CREDITS PERSONS WITH PRIOR SERVICE IN THE NATIONAL GUARD OF THE UNITED STATES FROM THE DATE OF FEDERAL RECOGNITION PROVIDED THE OFFICERS ACCEPTED THE NATIONAL GUARD OF THE UNITED STATES APPOINTMENT NOT LATER THAN OCTOBER 31, 1934.

A STRICT LITERAL INTERPRETATION OF THE LANGUAGE USED IN SECTIONS 302 (A) AND 306 (C) OF THE ACT OF JUNE 29, 1948, 10 U.S.C. 1036A (A), 1036E (C), RESPECTIVELY, WOULD REQUIRE A NEGATIVE ANSWER TO THE QUESTION PRESENTED. IT IS A SETTLED RULE OF STATUTORY INTERPRETATION, HOWEVER, THAT THE LITERAL MEANING OF A STATUTE NEED NOT BE FOLLOWED IF SO DOING WOULD ACHIEVE A RESULT CONTRARY TO ITS EVIDENT PURPOSE AND LEGISLATIVE INTENT ( UNITED STATES V. SAUNDERS, 22 WALL. 492; UNITED STATES V. AMERICAN TRUCKING ASSOCIATION, INC., 310 U.S. 534; UNITED STATES V. KATZ, 271 U.S. 354). ALSO, WHILE WE RECOGNIZED THE EXISTENCE OF THE RULE THAT A CASE OR CLASS OF CASES OMITTED OR UNPROVIDED FOR BY STATUTE SHOULD BE HELD TO BE INTENTIONALLY OMITTED, THERE IS SUBSTANTIAL SUPPORT FOR THE VIEW THAT SUCH RULE IS NOT FOR APPLICATION IF BY ANY REASONABLE CONSTRUCTION THE STATUTE MAY BE READ TO AVOID IT. 22 COMP. GEN. 37. IF THE STATUTE WERE LITERALLY INTERPRETED, NATIONAL GUARD SERVICE DURING THE PERIOD JANUARY 1 TO JUNE 14, 1933, WOULD BE EXCLUDED. THERE IS, HOWEVER, NO SUCH EXPRESS EXCLUSION IN THE STATUTE AND THERE IS NOTHING IN THE LEGISLATIVE HISTORY EVIDENCING SUCH A LEGISLATIVE INTENT. ON THE CONTRARY, IT REASONABLY APPEARS FROM THE ACT AS A WHOLE THAT THE CONGRESS INTENDED THAT NATIONAL GUARD SERVICE DURING THAT PERIOD, OTHERWISE CREDITABLE, SHOULD BE COUNTED.

SUCH DOUBT AS THERE MAY HAVE BEEN IN THAT RESPECT APPARENTLY HAS BEEN SET AT REST BY PUBLIC LAW 1028, 84TH CONGRESS, APPROVED AUGUST 10, 1956, REVISING, CODIFYING, AND ENACTING WITHOUT SUBSTANTIVE CHANGE TITLES 10 AND 32 OF THE UNITED STATES CODE. SECTION 1332 (A) OF THE NEW TITLE 10 PROVIDES:

EXCEPT AS PROVIDED IN SUBSECTION (B), FOR THE PURPOSE OF DETERMINING WHETHER A PERSON IS ENTITLED TO RETIRED PAY UNDER SECTION 1331 OF THIS TITLE, HIS YEARS OF SERVICE ARE COMPUTED BY ADDING---

(1) HIS YEARS OF SERVICE, BEFORE JULY 1, 1949, IN---

(A) THE ARMED FORCES;

(B) THE FEDERALLY RECOGNIZED NATIONAL GUARD BEFORE JUNE 15,

1933; * * *

(C) A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD

BEFORE JUNE 15, 1933; * * * THE PURPOSE OF THE CHANGES IN DATES IS EXPLAINED IN HOUSE REPORT NO. 970 AND SENATE REPORT NO. 2484 ON H.R. 7049, WHICH BECAME PUBLIC LAW 1028, AS FOLLOWS:

IN SUBSECTION (A) (1) (B/-/C), THE WORDS " JUNE 15" ARE INSERTED TO REFLECT THE EXACT DATE OF THE CHANGE IN NATIONAL GUARD STATUS MADE BY SECTION 5 OF THE ACT OF JUNE 15, 1933, CH. 87, 48 STAT. 155, WHICH ESTABLISHED THE NATIONAL GUARD OF THE UNITED STATES AS A RESERVE COMPONENT OF THE ARMY.

THAT THE CONGRESS DID NOT INTEND NATIONAL GUARD SERVICE DURING THE PERIOD HERE INVOLVED TO BE EXCLUDED IN DETERMINING QUALIFICATION FOR TITLE III RETIRED PAY AND IN THE COMPUTATION OF THE AMOUNT OF RETIRED PAY APPEARS REASONABLY CLEAR FROM (1) THE 1948 ACT AS A WHOLE, (2) THE PROVISIONS OF SECTION 306 (D), 10 U.S.C. 1036E (D), OF THAT ACT INCLUDING WITHIN THE TERM "ACTIVE FEDERAL SERVICE" ALL PERIODS OF ANNUAL TRAINING DUTY, ALL PRESCRIBED PERIODS OF ATTENDANCE AT DESIGNATED SERVICE SCHOOLS, AND ALL ACTIVE DUTY UNDER COMPETENT FEDERAL ORDERS, (3) THE FACT THAT SUCH NATIONAL GUARD SERVICE WAS NOT EXPRESSLY EXCLUDED BY SECTION 306 (E) OR SECTION 306 (F) OF THAT ACT, 10 U.S.C. 1036E (E), 1036E (F), RESPECTIVELY, WHICH SECTIONS DO EXCLUDE CERTAIN OTHER TYPES OF SERVICE, AND (4) THE FACT THAT THE CONGRESS IN REVISING AND ENACTING INTO LAW TITLE 10 AND TITLE 32 OF THE U.S.C. EXPRESSLY PROVIDED FOR COUNTING FEDERALLY RECOGNIZED SERVICE IN THE NATIONAL GUARD UNTIL THE DATE ON WHICH THE NATIONAL GUARD OF THE UNITED STATES WAS ESTABLISHED AS A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES, WITH THE KNOWLEDGE THAT THERE WAS A HIATUS BETWEEN THAT DATE AND THE FIRST DATE ON WHICH APPOINTMENTS IN THE NATIONAL GUARD OF THE UNITED STATES WERE EFFECTED, APPARENTLY REGARDING IT UNNECESSARY TO SPECIFY ANY LATER DATE FOR COUNTING FEDERALLY RECOGNIZED NATIONAL GUARD SERVICE. WHILE SECTIONS 306 (E) AND 306 (F) OF THE 1948 ACT WERE NOT EXPRESSLY STATED AS ENUMERATING THE ONLY EXCLUSIONS OF RESERVE COMPONENT SERVICE, SECTION 1332 (B) OF THE NEW TITLE 10 SEEMS TO BE INTENDED AS A REASONABLY COMPREHENSIVE LISTING OF THE TYPES OF RESERVE COMPONENT SERVICE THAT MAY NOT BE INCLUDED IN COMPUTING A PERSON'S SERVICE UNDER SECTION 1332 (A) FOR THE PURPOSE OF DETERMINING WHETHER HE IS ENTITLED TO RETIRED PAY. ALSO SECTION 1334 FURTHER PROVIDES THAT SERVICE IN AN INACTIVE STATUS AND TIME SPENT AFTER RETIREMENT OR TRANSFER TO THE RETIRED RESERVE IS NOT CREDITABLE TOWARD YEARS OF SERVICE FOR THE PURPOSES HERE INVOLVED.

IN VIEW OF THE FOREGOING AND SINCE THE STATUTE PROVIDES FOR THE COUNTING OF FEDERALLY RECOGNIZED NATIONAL GUARD SERVICE UNTIL THE NATIONAL GUARD OF THE UNITED STATES WAS ESTABLISHED AS A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES AND EXPRESSLY ENUMERATES THE RESERVE SERVICE THAT CONGRESS APPARENTLY INTENDED SHOULD BE EXCLUDED, IT APPEARS REASONABLY CLEAR THAT CONGRESS INTENDED THAT THE QUESTIONED SERVICE SHOULD BE COUNTED FOR RETIRED PAY PURPOSES EVEN THOUGH THE STATUTE DOES NOT EXPRESSLY SO PROVIDE. CONSIDERING THE PROVISIONS OF THE 1948 AND 1956 ACTS IN CONJUNCTION WITH THE PROVISION IN SECTION 11 OF THE ACT OF JUNE 15, 1933, TO THE EFFECT THAT NATIONAL GUARD OFFICERS SHOULD CONTINUE TO ENJOY ALL THE RIGHTS, BENEFITS, AND PRIVILEGES CONFERRED BY THAT ACT, WE BELIEVE WE ARE WARRANTED IN GIVING AND, THEREFORE, DO GIVE AN AFFIRMATIVE ANSWER TO THE BASIC QUESTION PRESENTED.

WITH RESPECT TO PERSONS WHO WERE NOT IN A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD ON JUNE 15, 1933, HOWEVER, SECTION 12 OF THE 1933 ACT, 32 U.S.C. 133, PROVIDED THAT ITS PROVISIONS SHOULD NOT APPLY TO ANY PERSON THEREAFTER APPOINTED AS AN OFFICER IN THE NATIONAL GUARD UNTIL HE HAD PASSED SUCH TESTS AS TO PHYSICAL, MORAL, AND PROFESSIONAL FITNESS AS THE PRESIDENT SHOULD PRESCRIBE, THAT UPON BEING FOUND QUALIFIED A CERTIFICATE ENTITLING THE HOLDER TO FEDERAL RECOGNITION WOULD BE ISSUED, AND THAT " UPON BEING FEDERALLY RECOGNIZED SUCH OFFICERS AND WARRANT OFFICERS MAY BE APPOINTED IN THE NATIONAL GUARD OF THE UNITED STATES.' THE 1933 ACT PROVIDED THAT PERSONS APPOINTED IN THE NATIONAL GUARD AFTER JUNE 15, 1933, MUST FIRST QUALIFY FOR APPOINTMENT AND FEDERAL RECOGNITION, AND ONLY AFTER BEING APPOINTED IN THE NATIONAL GUARD AND FEDERALLY RECOGNIZED WERE THEY APPOINTED IN THE NATIONAL GUARD OF THE UNITED STATES, WHICH LATTER APPOINTMENTS WERE EFFECTIVE ONLY FROM THE DATE OF ACCEPTANCE. PERSONS NOT IN THE NATIONAL GUARD ON JUNE 15, 1933, MAY NOT COUNT FOR TITLE III RETIRED PAY PURPOSES NATIONAL GUARD SERVICE PRIOR TO APPOINTMENT IN THE NATIONAL GUARD OF THE UNITED STATES. HENCE, IN ANY CASE WHERE A PERSON WHO WAS NOT A MEMBER OF THE NATIONAL GUARD ON JUNE 15, 1933, HAS BEEN CREDITED FOR SUCH RETIRED PAY PURPOSES WITH NATIONAL GUARD SERVICE PERFORMED AFTER THAT DATE AND PRIOR TO HIS APPOINTMENT IN THE NATIONAL GUARD OF THE UNITED STATES, A CORRECTION RESPECTING HIS STATUS AND HIS RETIRED PAY RATE SHOULD BE EFFECTED ON THE BASIS OF EXCLUDING THE NATIONAL GUARD SERVICE SO CREDITED. SUCH CORRECTIVE ACTION WOULD, OF COURSE, BE EFFECTIVE AS OF THE FIRST DATE FOR WHICH THE PERSON RECEIVED RETIRED PAY, AND ANY OVERPAYMENT RESULTING FROM THE CORRECTION SHOULD BE COLLECTED UNLESS THE NECESSITY FOR THAT ACTION IS OBVIATED THROUGH ACTION BY THE APPROPRIATE BOARD FOR THE CORRECTION OF MILITARY OR NAVAL RECORDS.