B-15562, MAY 26, 1941, 20 COMP. GEN. 815

B-15562: May 26, 1941

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NATIONAL GUARD OFFICERS IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER SECTION III OF SAID ACT WHO REACH THAT AGE ARE ENTITLED BY VIRTUE OF THEIR OFFICE TO THEIR STATUTORY PAY AND ALLOWANCES UNTIL PROPERLY RELIEVED FROM SUCH SERVICE. TRANSMITTING FOR DECISION WHETHER PAYMENT THEREON IS AUTHORIZED. WAS FEDERALLY RECOGNIZED AS A CAPTAIN. WAS ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES AS A MEMBER OF THE MEDICAL DEPARTMENT DETACHMENT. WERE CONVENED AS A MEDICAL BOARD AT PLAINVIEW. THE NATIONAL GUARD OFFICER WAS ORDERED TO PROCEED FROM HIS HOME STATION TO PLAINVIEW. UPON COMPLETION OF THE EXAMINATIONS OF UNITS AT THAT PLACE THE BOARD WAS TO PROCEED TO LUBBOCK.

B-15562, MAY 26, 1941, 20 COMP. GEN. 815

PAY - NATIONAL GUARD OFFICERS ON ACTIVE DUTY - RETENTION IN SERVICE AFTER RETIREMENT AGE WHILE SECTIONS 58 AND 77 OF THE NATIONAL DEFENSE ACT, AS AMENDED, AND NATIONAL GUARD REGULATIONS, APPLICABLE TO NATIONAL GUARDSMEN UNTIL RELIEVED FROM DUTY IN THE NATIONAL GUARD OF THEIR RESPECTIVE STATES BY ORDER INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, CONTEMPLATE AUTOMATIC SEPARATION AND DISCHARGE OF OFFICERS UPON REACHING THE AGE OF 64 YEARS, NATIONAL GUARD OFFICERS IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER SECTION III OF SAID ACT WHO REACH THAT AGE ARE ENTITLED BY VIRTUE OF THEIR OFFICE TO THEIR STATUTORY PAY AND ALLOWANCES UNTIL PROPERLY RELIEVED FROM SUCH SERVICE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJ. W. B. MILLER, U.S. ARMY, MAY 26, 1941:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM THE CHIEF OF FINANCE, YOUR LETTER OF FEBRUARY 5, 1941, TRANSMITTING FOR DECISION WHETHER PAYMENT THEREON IS AUTHORIZED, A VOUCHER STATED FOR $213.60 IN FAVOR OF CHARLES W. MONROE, REPRESENTING ACTIVE DUTY PAY AND ALLOWANCES AS A CAPTAIN OF THE NATIONAL GUARD OF THE UNITED STATES WITH OVER 12 YEARS' SERVICE, COVERING THE PERIOD NOVEMBER 27, TO DECEMBER 14, 1940.

IT APPEARS FROM THE OFFICIAL NATIONAL GUARD REGISTER, 1939, PAGE 1260, THAT CHARLES W. MONROE, BORN NOVEMBER 26, 1876, WAS FEDERALLY RECOGNIZED AS A CAPTAIN, MEDICAL CORPS, IN THE NATIONAL GUARD OF THE UNITED STATES, MAY 12, 1934, AND WAS ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES AS A MEMBER OF THE MEDICAL DEPARTMENT DETACHMENT, ONE HUNDRED AND FORTY-SECOND INFANTRY, TEXAS NATIONAL GUARD, HOME STATION ELECTRA, TEX., UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 8594, DATED NOVEMBER 16, 1940. THIS EXECUTIVE ORDER ISSUED BY VIRTUE OF THE AUTHORITY CONTAINED IN PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, AND THE NATIONAL DEFENSE ACT OF JUNE 3 1916, 39 STAT. 166, AS AMENDED, ORDERED ALL FEDERALLY RECOGNIZED ELEMENTS OF THE THIRTY-FIRST DIVISION, WHICH INCLUDED THE ONE HUNDRED AND FORTY SECOND INFANTRY, INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES EFFECTIVE NOVEMBER 25, 1940, FOR A PERIOD OF 12 CONSECUTIVE MONTHS, UNLESS SOONER DISCHARGED.

BY PARAGRAPH 25 OF SPECIAL ORDERS NO. 252, HEADQUARTERS 8TH CORPS AREA, FORT SAM HOUSTON, TEX., NOVEMBER 20, 1940, THIS OFFICER, THEREIN DESIGNATED AS MAJOR, AND TWO OFFICERS OF THE MEDICAL RESERVE, WERE CONVENED AS A MEDICAL BOARD AT PLAINVIEW, TEX., ON NOVEMBER 26, 1940, TO CONDUCT PHYSICAL EXAMINATIONS OF ENLISTED MEN OF CERTAIN DESIGNATED NATIONAL GUARD UNITS. THE NATIONAL GUARD OFFICER WAS ORDERED TO PROCEED FROM HIS HOME STATION TO PLAINVIEW, TEX., REPORTING UPON ARRIVAL, NOT LATER THAN 7 A.M. NOVEMBER 25, 1940, FOR THE DUTY INDICATED, AND UPON COMPLETION OF THE EXAMINATIONS OF UNITS AT THAT PLACE THE BOARD WAS TO PROCEED TO LUBBOCK, TEX., FOR EXAMINATION OF THE PERSONNEL OF THE DESIGNATED NATIONAL GUARD UNITS AT THAT PLACE.

PARAGRAPH 1 OF SPECIAL ORDERS NO. 59, DATED HEADQUARTERS 142ND INFANTRY, FORT WORTH, TEX., DECEMBER 2, 1940, PROVIDED:

BY VIRTUE OF HAVING PASSED HIS SIXTY-FOURTH (64) BIRTHDAY AND PENDING RECEIPT OF PROPER ORDERS ANNOUNCING HIS RETIREMENT, CAPTAIN CHARLES W. MONROE, MEDICAL CORPS, ATTACHED, 142ND INFANTRY, IS HEREBY RELIEVED OF ALL FURTHER DUTY WITH THIS REGIMENT.

IT APPEARS FROM THE RECORD SUBMITTED THAT THE ORDER JUST ABOVE QUOTED WAS PRECEDED BY A TELEGRAM FROM THE REGIMENTAL HEADQUARTERS OF THE ONE HUNDRED AND FORTY-SECOND INFANTRY, DATED NOVEMBER 30, 1940,"RETIRING" THE OFFICER ON ACCOUNT OF AGE AS OF MIDNIGHT NOVEMBER 25, 1940, BUT NEITHER THE TELEGRAM NOR SPECIAL ORDERS NO. 59 WAS RECEIVED BY THE OFFICER PRIOR TO ARRIVAL AT HIS HOME DECEMBER 4, 1940. APPARENTLY, UNDER EXECUTIVE ORDER NO. 8594 AND SPECIAL ORDERS NO. 252, CAPTAIN MONROE PERFORMED THE DUTY ASSIGNED WITH THE MEDICAL EXAMINING BOARD FROM NOVEMBER 25, TO DECEMBER 4, 1940.

PARAGRAPH 25 OF SPECIAL ORDERS NO. 270, DATED HEADQUARTERS 8TH CORPS AREA, FORT SAM HOUSTON, X., DECEMBER 11, 1940, PROVIDED:

BY DIRECTION OF THE PRESIDENT, AND UNDER THE PROVISIONS OF PARAGRAPH 2, SECTION 111, INCLOSURE TO WAR DEPARTMENT LETTER ( AG 325 (B-27-40) M M-A), DATED SEPTEMBER 4, 1940, SUBJECT: " INDUCTION OF THE NATIONAL GUARD OF THE UNITED STATES," CAPTAIN CHARLES W. MONROE, MED. DEPT., 142ND INFANTRY, NATIONAL GUARD OF THE UNITED STATES, NOW AT HIS UNIT RENDEZVOUS, ELECTRA, TEXAS, IS RELIEVED AT THAT PLACE FROM FURTHER ACTIVE DUTY IN THE ARMY OF THE UNITED STATES, EFFECTIVE DECEMBER 14, 1940, BECAUSE OF PHYSICAL DISABILITY DUE TO "/1) HYPERTENSIVE HEART DISEASE, (2) ARTERIO-SCLEROSIS, MODERATE, GENERALIZED, (3) AORTITIS, ATHEROSCLEROTIC, MODERATE, CHRONIC, (4) MYOCARDIAL INSUFFICIENCY, CHRONIC, MILD," AS DETERMINED BY A MEDICAL BOARD. ( AG 325--- ( INDUCTION IN.G. INTO F.S.)

SECTION 2 OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, 54 STAT. 859, PROVIDES:

ALL NATIONAL GUARD, RESERVE, AND RETIRED PERSONNEL ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER THE FOREGOING SPECIAL AUTHORITY, SHALL FROM THE DATES ON WHICH THEY ARE RESPECTIVELY REQUIRED BY SUCH ORDER TO REPORT FOR DUTY IN SUCH SERVICE, BE SUBJECT TO THE RESPECTIVE LAWS AND REGULATIONS RELATING TO ENLISTMENTS, REENLISTMENTS, EMPLOYMENT, CONDUCT, RIGHTS, AND PRIVILEGES, AND DISCHARGE OF SUCH PERSONNEL IN SUCH SERVICE TO THE SAME EXTENT IN ALL PARTICULARS AS IF THEY HAD BEEN ORDERED INTO SUCH SERVICE UNDER EXISTING GENERAL STATUTORY AUTHORIZATION.

SECTION 58 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 5 OF THE ACT OF JUNE 15, 1933, 48 STAT. 155, 32 U.S.C. 4, PROVIDES:

THE NATIONAL GUARD OF EACH STATE, TERRITORY, AND THE DISTRICT OF COLUMBIA SHALL CONSIST OF MEMBERS OF THE MILITIA VOLUNTARILY ENLISTED THEREIN, WHO UPON ORIGINAL ENLISTMENT SHALL BE NOT LESS THAN EIGHTEEN NOR MORE THAN FORTY-FIVE YEARS OF AGE, OR WHO IN SUBSEQUENT ENLISTMENT SHALL BE NOT MORE THAN SIXTY-FOUR YEARS OF AGE, ORGANIZED, ARMED, EQUIPPED, AND FEDERALLY RECOGNIZED AS HEREINAFTER PROVIDED, AND OF COMMISSIONED OFFICERS AND WARRANT OFFICERS WHO ARE CITIZENS OF THE UNITED STATES BETWEEN THE AGES OF TWENTY-ONE AND SIXTY-FOUR YEARS: PROVIDED, THAT FORMER MEMBERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS UNDER SIXTY-FOUR YEARS OF AGE MAY ENLIST IN SAID NATIONAL GUARD.

SECTION 77 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 14 OF THE ACT OF JUNE 15, 1933, 48 STAT. 159, 32 U.S.C. 114, PROVIDES THAT WHENEVER THE APPOINTMENT OF AN OFFICER OR WARRANT OFFICER OF THE NATIONAL GUARD OF A STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA HAS BEEN TERMINATED, OR UPON REACHING THE AGE OF 64 YEARS, THE FEDERAL RECOGNITION OF SUCH OFFICER SHALL BE WITHDRAWN AND HE SHALL BE DISCHARGED FROM THE NATIONAL GUARD OF THE UNITED STATES. THIS SECTION PROVIDES FURTHER THAT WHEN AN OFFICER REACHES THE AGE OF 64 YEARS HE SHALL THEREUPON CEASE TO BE A MEMBER THEREOF AND SHALL BE GIVEN A DISCHARGE THEREFROM BY THE PROPER OFFICIAL AUTHORIZED TO APPOINT SUCH OFFICER.

BY VIRTUE OF SECTION 2 OF PUBLIC RESOLUTION NO. 96, OFFICERS OF THE NATIONAL GUARD ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, PURSUANT TO THE PROVISIONS OF SECTION 1, ARE SUBJECT TO THE PROVISIONS OF THE NATIONAL DEFENSE ACT. SINCE SECTION III IS THE ONLY "EXISTING GENERAL STATUTORY AUTHORITY" WHICH PROVIDES FOR THE INDUCTION INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES OF THE "UNITS AND MEMBERS THEREOF" OF THE NATIONAL GUARD (B-14891, DATED FEBRUARY 20, 1941, 20 COMP. GEN. 469), THE PROVISIONS OF THAT SECTION GOVERN NATIONAL GUARD OFFICERS IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96 AND THE SEVERAL EXECUTIVE ORDERS ISSUED IN PURSUANCE THEREOF.

SECTION 111 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 18 OF THE ACT OF JUNE 15, 1933, 48 STAT. 160, 32 U.S.C. 81, PROVIDES IN PART:

* * * ALL PERSONS SO ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES SHALL FROM THE DATE OF SUCH ORDER STAND RELIEVED FROM DUTY IN THE NATIONAL GUARD OF THEIR RESPECTIVE STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA SO LONG AS THEY SHALL REMAIN IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, AND DURING SUCH TIME SHALL BE SUBJECT TO SUCH LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE ARMY OF THE UNITED STATES AS MAY BE APPLICABLE TO MEMBERS OF THE ARMY WHOSE PERMANENT RETENTION IN ACTIVE MILITARY SERVICE IS NOT CONTEMPLATED BY LAW. THE ORGANIZATION OF SAID UNITS EXISTING AT THE DATE OF THE ORDER INTO ACTIVE FEDERAL SERVICE SHALL BE MAINTAINED INTACT INSOFAR AS PRACTICABLE.

OFFICERS AND ENLISTED MEN WHILE IN THE SERVICE OF THE UNITED STATES UNDER THE TERMS OF THIS SECTION SHALL RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAW FOR OFFICERS AND ENLISTED MEN OF THE RESERVE FORCES WHEN ORDERED TO ACTIVE DUTY, EXCEPT BRIGADIER GENERALS AND MAJOR GENERALS, WHO SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS PROVIDED BY LAW FOR BRIGADIER GENERALS AND MAJOR GENERALS OF THE REGULAR ARMY, RESPECTIVELY. UPON BEING RELIEVED FROM ACTIVE DUTY IN THE MILITARY SERVICE OF THE UNITED STATES ALL INDIVIDUALS AND UNITS SHALL THEREUPON REVERT TO THEIR NATIONAL GUARD STATUS.

ARMY REGULATIONS 130-10, SECTION XIII, CONTAIN REGULATIONS RELATIVE TO INDUCTION OF THE NATIONAL GUARD OF THE UNITED STATES INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT, AS AMENDED, THE FORM OF THE ORDER THEREFOR, AS QUOTED IN PARAGRAPH 146 BEING THE SAME AS THE TERMS OF EXECUTIVE ORDER NO. 8594, AND IT IS THEREIN PROVIDED, AMONG OTHER THINGS, THAT THE PROVISIONS OF NATIONAL GUARD REGULATIONS CEASE TO APPLY FROM AND AFTER THE EFFECTIVE DATE OF THE ORDER; THAT MEMBERS SO INDUCTED MAY BE TRANSFERRED OR ASSIGNED BY APPROPRIATE MILITARY COMMANDERS TO ANY UNIT OR DUTY IN THE ARMY OF THE UNITED STATES TO WHICH THE PRESIDENT MAY ASSIGN PERSONNEL, AND THAT FROM AND AFTER THE EFFECTIVE DATE OF THE ORDER NO OFFICER OR WARRANT OFFICER OF THE ARMY OF THE UNITED STATES SO INDUCTED FROM THE NATIONAL GUARD OF THE UNITED STATES WILL BE DISCHARGED FROM THE MILITARY SERVICE EXCEPT IN ACCORDANCE WITH EXISTING APPLICABLE LAWS AND REGULATIONS GOVERNING DISCHARGES FROM THE ARMY OF THE UNITED STATES.

PARAGRAPH 155 OF THE SAME REGULATIONS PROVIDES, IN PART:

* * * AN OFFICER OR WARRANT OFFICER OF THE ARMY OF THE UNITED STATES WHO WAS INDUCTED FROM THE NATIONAL GUARD OF THE UNITED STATES UNDER THE ORDER WILL BE RELIEVED FROM THE ACTIVE MILITARY SERVICE OF THE UNITED STATES AS FOLLOWS:

(1) TERMINATION OF ORDER.--- UPON TERMINATION OF THE ORDER WITH RESPECT TO HIMSELF AS AN INDIVIDUAL.

(2) UPON HIS OWN APPLICATION.--- UPON HIS OWN APPLICATION WITHIN SIX MONTHS AFTER THE TERMINATION OF THE EMERGENCY DECLARED BY CONGRESS.

WHILE THE PROVISIONS OF SECTIONS 58 AND 77 OF THE NATIONAL DEFENSE ACT, AS AMENDED, AND APPLICABLE NATIONAL GUARD REGULATIONS APPEAR TO CONTEMPLATE NORMALLY THE COMPLETE SEPARATION AND DISCHARGE OF OFFICERS OF THE NATIONAL GUARD UPON REACHING THE AGE OF 64 YEARS, IT IS NOT ALTOGETHER CLEAR THAT THE STATUS OF OFFICERS WHO REACH THAT AGE WHILE IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER SECTION 111 IS SO AFFECTED AS TO RELIEVE THEM AUTOMATICALLY FROM DUTY PRIOR TO THE ISSUANCE OF ORDERS BY COMPETENT MILITARY AUTHORITY FOR THAT PURPOSE. UPON BEING ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES THE PERSONNEL OF THE NATIONAL GUARD UNITS STAND RELIEVED FROM DUTY IN THE NATIONAL GUARD OF THEIR RESPECTIVE STATES, TERRITORIES AND THE DISTRICT OF COLUMBIA, AND UNTIL PROPERLY RELIEVED FROM SUCH ACTIVE MILITARY SERVICE IN THE ARMY OF THE UNITED STATES, COMMISSIONED OFFICERS BY VIRTUE OF THEIR OFFICE ARE ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR OFFICERS OF THEIR RANK AND LENGTH OF SERVICE.

CAPTAIN MONROE DOES NOT APPEAR TO HAVE BEEN EFFECTIVELY RELIEVED FROM ACTIVE DUTY IN THE ARMY OF THE UNITED STATES UNTIL DECEMBER 14, 1940, PURSUANT TO THE PROVISIONS OF SPECIAL ORDERS NO. 270, SUPRA, IN CONSEQUENCE OF WHICH HE IS ENTITLED TO PAY AND ALLOWANCES TO AND INCLUDING THAT DATE. YOU ARE AUTHORIZED TO PAY THE VOUCHER, WHICH IS RETURNED HEREWITH, IF OTHERWISE CORRECT.