B-145672, JUN. 7, 1961

B-145672: Jun 7, 1961

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USAF: REFERENCE IS MADE TO YOUR REQUEST. WAS TRANSFERRED TO THE NATIONAL GUARD ON DECEMBER 4. WAS HONORABLY DISCHARGED FROM THE INACTIVE NATIONAL GUARD ON DECEMBER 3. IT WAS HELD THAT THE NATIONAL GUARD RESERVE IN EFFECT WAS DISCONTINUED AND SUPERSEDED BY THE INACTIVE NATIONAL GUARD AS A RESULT OF THE ENACTMENT OF SECTION 15 OF THE ACT OF JUNE 15. HE WOULD HAVE BEEN REQUIRED TO SUBSCRIBE TO THE OATH CONTAINED THEREIN. THAT MATTER IS NOT REGARDED AS HAVING MAJOR SIGNIFICANCE. SINCE THERE IS NO EVIDENCE THAT HE ENLISTED FOR THE UNEXPIRED PERIOD OF HIS ENLISTMENT AFTER THE ISSUANCE OF GENERAL ORDERS NO. 3 AND HIS ACTIVE NATIONAL GUARD STATUS WAS TERMINATED ON JUNE 26. WHILE IT IS STATED THAT HE WAS TRANSFERRED TO THE NATIONAL GUARD RESERVE ON THAT DATE.

B-145672, JUN. 7, 1961

TO MAJOR H. G. WYLIE, USAF:

REFERENCE IS MADE TO YOUR REQUEST, SUBMITTED THROUGH THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. DO- AF-574, FOR A DETERMINATION AS TO CREDITABILITY, IN COMPUTATION OF BASIC PAY, OF NATIONAL GUARD SERVICE FROM JUNE 27, 1934, TO DECEMBER 3, 1936, IN THE CASE OF LIEUTENANT COLONEL WILLIAM T. SCHUSTER, USAF, AO 432 811.

THE RECORDS FURNISHED WITH YOUR LETTER SHOW THAT COLONEL SCHUSTER ENLISTED IN THE PENNSYLVANIA NATIONAL GUARD ON DECEMBER 4, 1933, WAS TRANSFERRED TO THE NATIONAL GUARD ON DECEMBER 4, 1934, AND WAS HONORABLY DISCHARGED FROM THE INACTIVE NATIONAL GUARD ON DECEMBER 3, 1936.

IN OUR DECISION OF MARCH 17, 1943, 22 COMP. GEN. 907, REFERRED TO IN YOUR LETTER, IT WAS HELD THAT THE NATIONAL GUARD RESERVE IN EFFECT WAS DISCONTINUED AND SUPERSEDED BY THE INACTIVE NATIONAL GUARD AS A RESULT OF THE ENACTMENT OF SECTION 15 OF THE ACT OF JUNE 15, 1933, 48 STAT. 159, WHICH AMENDED SECTION 78 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED. THAT SECTION PROVIDED FOR ENLISTMENTS IN AND TRANSFERS TO THE INACTIVE NATIONAL GUARD AND THE NATIONAL GUARD OF THE UNITED STATES UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR SHOULD PRESCRIBE, AND PROVIDED THAT A MAN SO ENLISTING SHOULD SIGN AN ENLISTMENT CONTRACT AND SUBSCRIBE TO THE DUAL OATH OR AFFIRMATION CONTAINED INSECTION 70 OF THE NATIONAL DEFENSE ACT AS AMENDED BY SECTION 8 OF THE ACT OF JUNE 15, 1933.

WAR DEPARTMENT GENERAL ORDERS NO. 3, DATED APRIL 4, 1934, ISSUED BY ORDER OF THE SECRETARY OF WAR, ANNOUNCED THE ESTABLISHMENT OF THE NATIONAL GUARD OF THE UNITED STATES AND PROVIDED FOR APPOINTMENTS AND ENLISTMENTS THEREIN. PARAGRAPH 12 OF THAT ORDER, IMPLEMENTING SECTION 7 OF THE ACT OF JUNE 15, 1933, AUTHORIZED ALL ENLISTED MEN OF THE NATIONAL GUARD WHO HAD BEEN MEMBERS ON JUNE 15, 1933, AND THOSE WHO HAD ENLISTED AFTER THAT DATE BUT BEFORE RECEIPT OF THE ORDER, TO BE ENLISTED IN THE SAME GRADE, RATING AND BRANCH OF SERVICES IN THE NATIONAL GUARD OF THE UNITED STATES FOR THE UNEXPIRED PORTION OF THEIR ENLISTMENTS IN THE NATIONAL GUARD UPON SIGNING AN ENLISTMENT CONTRACT AND SUBSCRIBING TO THE DUAL OATH OR AFFIRMATION OF ENLISTMENT. ALTHOUGH COLONEL SCHUSTER APPARENTLY BELIEVES THAT BECAUSE HE ENLISTED IN THE NATIONAL GUARD APPROXIMATELY 6 MONTHS AFTER PASSAGE OF THE ACT OF JUNE 15, 1933, HE WOULD HAVE BEEN REQUIRED TO SUBSCRIBE TO THE OATH CONTAINED THEREIN, THE OFFICIAL RECORDS OF THE PENNSYLVANIA NATIONAL GUARD DO NOT SHOW THAT HE IN FACT SUBSCRIBED TO SUCH DUAL OATH OR AFFIRMATION. HOWEVER, THAT MATTER IS NOT REGARDED AS HAVING MAJOR SIGNIFICANCE, SINCE THERE IS NO EVIDENCE THAT HE ENLISTED FOR THE UNEXPIRED PERIOD OF HIS ENLISTMENT AFTER THE ISSUANCE OF GENERAL ORDERS NO. 3 AND HIS ACTIVE NATIONAL GUARD STATUS WAS TERMINATED ON JUNE 26, 1934. WHILE IT IS STATED THAT HE WAS TRANSFERRED TO THE NATIONAL GUARD RESERVE ON THAT DATE, SUCH ACTION IS VIEWED AS HAVING ACCOMPLISHED HIS TRANSFER TO THE INACTIVE NATIONAL GUARD SINCE THE NATIONAL GUARD RESERVE HAD BEEN DISCONTINUED IN JUNE 1933.

SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 233, SPECIFIES THE SERVICES CURRENTLY CREDITABLE IN COMPUTATION OF BASIC PAY, INCLUDING FULL TIME FOR ALL PERIODS DURING WHICH THE MEMBER WAS ENLISTED OR HELD APPOINTMENT "IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES.' SINCE SERVICE IN THE INACTIVE NATIONAL GUARD WAS OMITTED FROM THE PROVISIONS OF THIS ACT, AS WELL AS FROM THE PROVISIONS OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 729, AND COLONEL SCHUSTER WAS ACTUALLY TRANSFERRED TO THE INACTIVE NATIONAL GUARD ON JUNE 26, 1934, HIS INACTIVE STATUS FOR THE PERIOD JUNE 27, 1934, TO DECEMBER 3, 1936, IS NOT CREDITABLE FOR BASIC PAY PURPOSES.