B-136485, JUL. 13, 1959

B-136485: Jul 13, 1959

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WOOD: REFERENCE IS MADE TO YOUR LETTER OF JUNE 15. YOU INDICATE THAT IN OUR REPORT NO CREDIT WAS GIVEN FOR MAJOR COUSART'S SERVICE FROM NOVEMBER 1. DURING WHICH PERIOD HE WAS WITH THE PENNSYLVANIA NATIONAL GUARD. CREDITABLE SERVICE WAS SHOWN TO HAVE BEEN PERFORMED FROM MAY 22. THE STATEMENT OF NATIONAL GUARD SERVICE FORWARDED WITH YOUR LETTER SHOWS THAT MAJOR COUSART WAS HONORABLY DISCHARGED FROM FEDERAL SERVICE MAY 21. WAS COMMISSIONED AS MAJOR. THERE IS NO INFORMATION BEFORE THIS OFFICE INDICATING THAT MAJOR COUSART'S APPOINTMENT WAS FEDERALLY RECOGNIZED. NOR IS THERE SUCH A SHOWING IN THE STATEMENT OF SERVICE RECEIVED WITH YOUR LETTER. THE NATIONAL GUARD IS A STATE FORCE AND THE APPOINTMENT OF OFFICERS THEREIN IS RESERVED TO THE STATES.

B-136485, JUL. 13, 1959

TO MR. HARRY E. WOOD:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1959, WITH RESPECT TO OUR REPORT OF JUNE 11, 1959, TO THE CHIEF CLERK OF THE COURT OF CLAIMS, IN THE CASE OF JAMES B. COUSART V. UNITED STATES, C.CLS. 238 58. YOU INDICATE THAT IN OUR REPORT NO CREDIT WAS GIVEN FOR MAJOR COUSART'S SERVICE FROM NOVEMBER 1, 1919 TO NOVEMBER 9, 1920, DURING WHICH PERIOD HE WAS WITH THE PENNSYLVANIA NATIONAL GUARD.

THE STATEMENT OF SERVICE FURNISHED BY THE ADJUTANT GENERAL'S OFFICE, DEPARTMENT OF THE ARMY, SHOWS THAT MAJOR COUSART HAD 25 YEARS, 5 MONTHS AND 3 DAYS' SERVICE FOR LONGEVITY PAY AND RETIREMENT PURPOSES. CREDITABLE SERVICE WAS SHOWN TO HAVE BEEN PERFORMED FROM MAY 22, 1919, THROUGH JUNE 20, 1923. THE STATEMENT OF NATIONAL GUARD SERVICE FORWARDED WITH YOUR LETTER SHOWS THAT MAJOR COUSART WAS HONORABLY DISCHARGED FROM FEDERAL SERVICE MAY 21, 1919, WAS COMMISSIONED AS MAJOR, PENNSYLVANIA NATIONAL GUARD, NOVEMBER 1, 1919, AND RESIGNED HIS COMMISSION NOVEMBER 9, 1920. THERE IS NO INFORMATION BEFORE THIS OFFICE INDICATING THAT MAJOR COUSART'S APPOINTMENT WAS FEDERALLY RECOGNIZED, NOR IS THERE SUCH A SHOWING IN THE STATEMENT OF SERVICE RECEIVED WITH YOUR LETTER. ALSO, THE 1931 NATIONAL GUARD REGISTER FAILS TO SHOW THAT MAJOR COUSART HAD FEDERALLY RECOGNIZED SERVICE DURING THE PERIOD IN QUESTION.

THE NATIONAL GUARD IS A STATE FORCE AND THE APPOINTMENT OF OFFICERS THEREIN IS RESERVED TO THE STATES. SECTION 74 OF THE NATIONAL DEFENSE ACT OF 1916, 39 STAT. 201, AS AMENDED, FIXES THE QUALIFICATIONS FOR OFFICERS OF THE NATIONAL GUARD TO BE ENTITLED TO RECOGNITION UNDER ITS PROVISIONS AND REQUIRES THAT THE OFFICERS SUBSCRIBE TO THE OATH SET OUT IN SECTION 73. SECTION 75 PROVIDES FURTHER THAT EACH OFFICER HEREAFTER APPOINTED AN OFFICER OF THE NATIONAL GUARD MUST SUCCESSFULLY PASS AN EXAMINATION IN ORDER TO QUALIFY UNDER THAT ACT.

FEDERAL RECOGNITION IS NOT AN APPOINTMENT BUT A DETERMINATION THAT, FROM AND SUBSEQUENT TO THE DATE STATED, THE OFFICER HAS QUALIFIED UNDER THE NATIONAL DEFENSE ACT AS AN OFFICER OF THE NATIONAL GUARD. NOT BEING FEDERALLY RECOGNIZED, AN OFFICER WOULD NOT BE ENTITLED TO ANY PAY FROM FEDERAL FUNDS AND SERVICE AS SUCH AN OFFICER IS NOT CREDITABLE FOR LONGEVITY PAY OR RETIREMENT PURPOSES. SEE GENERALLY, 22 COMP. GEN. 439, 442; 23 ID. 755, 760; 24 ID. 507 AND 10 U.S.C. 1332B (4), 70A STAT. 103.

INASMUCH AS THE OFFICIAL RECORDS DO NOT INDICATE THE OFFICER'S APPOINTMENT AS MAJOR, NOVEMBER 1, 1919 WAS FEDERALLY RECOGNIZED, THE PERIOD FROM NOVEMBER 1, 1919 TO NOVEMBER 9, 1920 WAS PROPERLY EXCLUDED FROM THE COMPUTATION OF HIS SERVICE. ACCORDINGLY, WE MUST ADHERE TO THE COMPUTATION SET OUT IN OUR REPORT OF JUNE 11, 1959, TO THE CHIEF CLERK OF THE COURT OF CLAIMS.