B-32556, MARCH 17, 1943, 22 COMP. GEN. 907

B-32556: Mar 17, 1943

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PAY - LONGEVITY - SERVICE CREDITS - INACTIVE NATIONAL GUARD SERVICE TIME DURING WHICH A COMMISSION WAS HELD IN THE INACTIVE NATIONAL GUARD. AS FOLLOWS: ATTACHED HERETO IS A VOUCHER IN THE AMOUNT OF $67.50. THE STATEMENT OF SERVICE ATTACHED TO THIS VOUCHER SHOWS THAT THIS OFFICER WAS APPOINTED IN THE INACTIVE NATIONAL GUARD JUNE 14. IT WAS HELD (22ND COMP. THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THE ACT OF DECEMBER 2. 1942 AUTHORIZES COMMISSIONED OFFICERS TO COUNT SERVICE IN THE INACTIVE NATIONAL GUARD FOR LONGEVITY PAY PURPOSES AND YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER PAYMENT OF THE VOUCHER IS AUTHORIZED. ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY. IN COMPUTING THEIR SERVICE FOR PAY THEY SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT.

B-32556, MARCH 17, 1943, 22 COMP. GEN. 907

PAY - LONGEVITY - SERVICE CREDITS - INACTIVE NATIONAL GUARD SERVICE TIME DURING WHICH A COMMISSION WAS HELD IN THE INACTIVE NATIONAL GUARD--- AS DISTINGUISHED FROM THE NATIONAL GUARD RESERVE AND THE NATIONAL GUARD OF THE UNITED STATES--- MAY NOT BE COUNTED IN COMPUTING LONGEVITY PAY UNDER SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. CARL WITCHER, U.S. ARMY, MARCH 17, 1943:

THERE HAS BEEN RECEIVED, BY SECOND ENDORSEMENT DATED FEBRUARY 13, 1943, YOUR LETTER OF FEBRUARY 4, 1943, AS FOLLOWS:

ATTACHED HERETO IS A VOUCHER IN THE AMOUNT OF $67.50, COVERING DIFFERENCE IN LONGEVITY PAY BETWEEN OVER 18 AND OVER 21 YEARS' SERVICE, IN FAVOR OF CAPTAIN SIDNEY A. COOK, WHICH HAS BEEN PRESENTED TO THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT.

THE STATEMENT OF SERVICE ATTACHED TO THIS VOUCHER SHOWS THAT THIS OFFICER WAS APPOINTED IN THE INACTIVE NATIONAL GUARD JUNE 14, 1933 AND TRANSFERRED TO THE NATIONAL GUARD RETIRED LIST DECEMBER 17, 1936.

THE ACT OF DECEMBER 2, 1942 AMENDING THE PAY READJUSTMENT ACT OF JUNE 6, 1942 AUTHORIZES COMMISSIONED OFFICERS TO COUNT SERVICE AS A COMMISSIONED OFFICER IN THE NATIONAL GUARD RESERVE BUT DOES NOT MENTION THE INACTIVE NATIONAL GUARD.

IT WAS HELD (22ND COMP. GEN. 439 AND 440) THAT PERIODS IN THE INACTIVE NATIONAL GUARD MAY NOT BE COUNTED FOR LONGEVITY PAY PURPOSES.

THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THE ACT OF DECEMBER 2, 1942 AUTHORIZES COMMISSIONED OFFICERS TO COUNT SERVICE IN THE INACTIVE NATIONAL GUARD FOR LONGEVITY PAY PURPOSES AND YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER PAYMENT OF THE VOUCHER IS AUTHORIZED.

THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, AMENDED, INTER ALIA, THE FIRST PARAGRAPH OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, TO READ AS FOLLOWS:

WHEN OFFICERS OF THE NATIONAL GUARD OR OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RESERVE OFFICERS, ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY, EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY, THEY SHALL RECEIVE PAY AS PROVIDED IN SECTION 1 OF THIS ACT, AND IN COMPUTING THEIR SERVICE FOR PAY THEY SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR 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, OR IN THE OFFICERS RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY, AND SERVICE AUTHORIZED IN SECTION 2 (B) OF THE ACT OF JANUARY 19, 1942 ( PUBLIC LAW 402, SEVENTY SEVENTH CONGRESS).

THIS OFFICE HERETOFORE HAS CONSIDERED THE QUESTION AS TO WHETHER COMMISSIONED SERVICE IN THE NATIONAL GUARD RESERVE OR IN THE INACTIVE NATIONAL GUARD COULD BE COUNTED FOR PAY PURPOSES UNDER SECTION 3 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 37 U.S.C. 7, OR UNDER SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS APPROVED JUNE 16, 1942, 56 STAT. 360. SEE 20 COMP. GEN. 520, AND 22 COMP. GEN. 439. IN BOTH INSTANCES THE ANSWER WAS IN THE NEGATIVE, BASED PRINCIPALLY ON THE FACT THAT IN ENUMERATING THOSE ORGANIZATIONS IN WHICH SERVICE COULD BE COUNTED FOR PAY PURPOSES, THE CONGRESS DID NOT NAME EITHER THE NATIONAL GUARD RESERVE OR THE INACTIVE NATIONAL GUARD, THE PRESUMPTION BEING THAT IN SO CAREFULLY ENUMERATING SUCH ORGANIZATIONS IT WAS INTENDED BY THE CONGRESS THAT SERVICE IN ANY OTHER ORGANIZATION, NOT SO ENUMERATED, WAS TO BE EXCLUDED. THE ACT OF DECEMBER 2, 1942, HERE INVOLVED, EXPRESSLY NAMES THE NATIONAL GUARD RESERVE BUT NOT THE INACTIVE NATIONAL GUARD AND THE SAME RULE IS FOR APPLICATION AS EXCLUDING SERVICE IN THE UNNAMED INACTIVE NATIONAL GUARD UNLESS IT CAN BE HELD THAT THE AUTHORITY TO COUNT SERVICE IN THE NATIONAL GUARD RESERVE IS ALSO AUTHORITY FOR COUNTING SERVICE IN THE INACTIVE NATIONAL GUARD WHICH, BY VIRTUE OF SECTION 15 OF THE ACT OF JUNE 15, 1933, 48 STAT. 159, AMENDING SECTION 78 OF THE NATIONAL DEFENSE ACT OF 1916, 39 STAT. 202, MAY BE VIEWED AS HAVING SUPERSEDED THE NATIONAL GUARD RESERVE.

WHILE THE NATIONAL GUARD RESERVE WAS THE FORERUNNER, SO TO SPEAK, OF THE INACTIVE NATIONAL GUARD, THE APPELLATIONS ARE NOT INTERCHANGEABLE. THE NATIONAL GUARD RESERVE WAS ESTABLISHED BY SECTION 78 OF THE NATIONAL DEFENSE ACT OF 1916, 39 STAT. 202. SECTION 15 OF THE ACT OF JUNE 15, 1933, 48 STAT. 159, AMENDED SECTION 78 OF THE NATIONAL DEFENSE ACT OF 1916, WHICH SECTION, AS SO AMENDED, OMITTED ANY REFERENCE TO A NATIONAL GUARD RESERVE BUT PROVIDED FOR SERVICE IN THE INACTIVE NATIONAL GUARD AND THUS, IN EFFECT, DISCONTINUED THE NATIONAL GUARD RESERVE. SECTION 5 OF THE SAID ACT OF JUNE 15, 1933, 48 STAT. 155, AMENDING SECTION 58 OF THE NATIONAL DEFENSE ACT OF 1916, ESTABLISHED THE NATIONAL GUARD OF THE UNITED STATES WHICH, AS DEFINED IN SECTION 71, AS AMENDED BY THE SAID 1933 ACT, 48 STAT. 157, WAS TO BE COMPOSED OF THOSE FEDERALLY RECOGNIZED UNITS AND ORGANIZATIONS AND PERSONS DULY APPOINTED AND COMMISSIONED IN THE ACTIVE AND INACTIVE NATIONAL GUARD WHO HAVE TAKEN AND SUBSCRIBED TO THE OATH OF OFFICE PRESCRIBED IN SECTION 73, AS AMENDED BY THE 1933 ACT, 48 STAT. 157.

WHILE THE AMENDED SECTION 78 WAS SILENT WITH RESPECT TO THE DISPOSITION TO BE MADE OF THOSE OFFICERS AND ENLISTED MEN WHO WERE MEMBERS OF THE NATIONAL GUARD RESERVE AT THAT TIME, IT APPEARS THAT MEMBERS OF THE NATIONAL GUARD RESERVE DID NOT AUTOMATICALLY BECOME MEMBERS OF THE NEWLY ESTABLISHED NATIONAL GUARD OF THE UNITED STATES. SOME LIGHT IS THROWN ON THEIR STATUS BY A STATEMENT IN THE ANNUAL REPORT OF THE CHIEF OF THE NATIONAL GUARD BUREAU FOR THE FISCAL YEAR 1934. ON PAGE 5 OF THAT REPORT IT IS STATED WITH RESPECT TO THE INACTIVE NATIONAL GUARD, AS FOLLOWS:

AS A RESULT OF THE ACT OF JUNE 15, 1933, THE NATIONAL GUARD RESERVE IS REPLACED BY THE INACTIVE NATIONAL GUARD WHICH IS LIMITED TO THE FEDERALLY RECOGNIZED PERSONNEL, COMMISSIONED AND ENLISTED, WHO HAVE BEEN TRANSFERRED TO OR ENLISTED IN THE INACTIVE NATIONAL GUARD, AND WHO ARE OR MAY BE ASSIGNED TO WAR VACANCIES IN ACTIVE AND INACTIVE UNITS. ALLOTTED UNITS WHOSE ORGANIZATION HAS NOT BEEN AUTHORIZED ARE INCLUDED IN THE INACTIVE NATIONAL GUARD.

GENERAL ORDERS NO. 3, WAR DEPARTMENT, 1934, APPOINTED AS OFFICERS IN THE NATIONAL GUARD OF THE UNITED STATES ALL OFFICERS OF THE NATIONAL GUARD RESERVE FOR WHOM THERE WAS A WAR VACANCY TO WHICH STATE AUTHORITIES WOULD ASSIGN THEM. ACCEPTANCE OF THIS APPOINTMENT REQUIRED A NEW OATH OF OFFICE AND A STATEMENT BY THE STATE ADJUTANT GENERAL THAT THERE WAS A VACANCY IN AN ALLOTTED UNIT TO WHICH THE OFFICER COULD BE ASSIGNED. THE STATUS OF THESE OFFICERS THEN CHANGED FROM THE NATIONAL GUARD RESERVE TO THE INACTIVE NATIONAL GUARD.

IT IS EXPECTED THAT APPROXIMATELY 1,000 OFFICERS OF THE NATIONAL GUARD RESERVE WILL ACCEPT APPOINTMENTS IN THE NATIONAL GUARD OF THE UNITED STATES AND BE ASSIGNED TO WAR VACANCIES AND THEREBY PASS INTO THE INACTIVE NATIONAL GUARD. THE FEDERAL RECOGNITION OF ALL SURPLUS NATIONAL GUARD RESERVE OFFICERS WILL BE WITHDRAWN AS OF OCTOBER 31, 1934, THE DATE ON WHICH APPOINTMENTS IN THE NATIONAL GUARD OF THE UNITED STATES, MADE BY GENERAL ORDERS NO. 3, WAR DEPARTMENT, 1934, ARE TO BE REGARDED AS WITHDRAWN. SEE, ALSO, THE ANNUAL REPORT FOR THE FISCAL YEAR 1935, ON PAGE 5 OF WHICH IT IS STATED:

UNDER THE PROVISIONS OF THE ACT OF JUNE 15, 1933, THE NATIONAL GUARD RESERVE WAS DESIGNATED AS THE " INACTIVE NATIONAL GUARD.' EACH OFFICER'S RECORD WAS EXAMINED, WITH THE RESULT THAT FEDERAL RECOGNITION WAS TERMINATED IN THE CASES OF ALL NATIONAL GUARD RESERVE OFFICERS WHO WERE NOT ASSIGNED TO WAR VACANCIES OR WHO DID NOT ACCEPT APPOINTMENTS IN THE NATIONAL GUARD OF THE UNITED STATES. THERE REMAIN IN THE INACTIVE NATIONAL GUARD A TOTAL OF 816 OFFICERS AND 15,632 ENLISTED MEN. * * *

FROM THE FOREGOING IT WILL BE SEEN THAT THE " NATIONAL GUARD RESERVE" IS SEPARATE AND DISTINCT FROM THE " INACTIVE NATIONAL GUARD.' NEITHER TERM INCLUDES THE OTHER. THE FAILURE OF CONGRESS IN THE ACT OF DECEMBER 2, 1942, EXPRESSLY TO AUTHORIZE THE COUNTING OF INACTIVE NATIONAL GUARD SERVICE FOR PAY PURPOSES DOES NOT APPEAR TO HAVE BEEN BY INADVERTENCE BUT, RATHER, BY DESIGN. FOR SUCH EXCLUSION THERE WOULD APPEAR TO HAVE BEEN A VERY GOOD REASON. UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT AS IT STOOD PRIOR TO THE SAID ACT OF JUNE 15, 1933, MEMBERS OF THE NATIONAL GUARD RESERVE WERE SUBJECT TO DRAFT INTO THE MILITARY SERVICE OF THE UNITED STATES UNDER THE CONDITIONS THERE STATED. SEE SECTION 111 OF THE ACT OF JUNE 3, 1916, 39 STAT. 211, AND SECTION 49 OF THE ACT OF JUNE 4, 1920, 41 STAT. 784. BUT AS AMENDED BY SECTION 18 OF THE ACT OF JUNE 15, 1933, 48 STAT. 160, SAID SECTION 111 OF THE NATIONAL DEFENSE ACT CONTAINED NO SUCH AUTHORITY BUT AUTHORIZED THE PRESIDENT IN TIME OF NATIONAL EMERGENCY DECLARED BY THE CONGRESS TO ORDER INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES "ANY OR ALL UNITS AND THE MEMBERS THEREOF OF THE NATIONAL GUARD OF THE UNITED STATES.' THAT IS, WHILE MEMBERS OF THE NATIONAL GUARD RESERVE, AS SUCH, WERE SUBJECT, UNDER THE NATIONAL DEFENSE ACT, TO FEDERAL MILITARY SERVICE PRIOR TO JUNE 15, 1933, MEMBERS OF THE INACTIVE NATIONAL GUARD, WHICH SUPERSEDED THE NATIONAL GUARD RESERVE, WERE NOT, AS SUCH, SUBJECT TO FEDERAL MILITARY SERVICE UNDER THE NATIONAL DEFENSE ACT, ALTHOUGH SUBJECT TO SUCH SERVICE IF THEY WERE MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES. WHEN THE CONGRESS IN THE ACT OF DECEMBER 2, 1942, SUPRA, AUTHORIZED THE COUNTING OF SERVICE, INTER ALIA, IN THE NATIONAL GUARD RESERVE AND IN THE NATIONAL GUARD OF THE UNITED STATES, BUT OMITTED SERVICE IN THE INACTIVE NATIONAL GUARD, THE EFFECT WAS TO AUTHORIZE THE COUNTING OF ALL TIME WHEN MEMBERS OF SUCH ORGANIZATIONS WERE SUBJECT TO FEDERAL MILITARY SERVICE UNDER THE NATIONAL DEFENSE ACT AND TO EXCLUDE TIME WHEN THEY WERE NOT SUBJECT TO FEDERAL MILITARY SERVICE UNDER THAT ACT. IT SEEMS REASONABLE TO CONCLUDE THAT THERE WAS NO INTENT TO AUTHORIZE THE COUNTING OF ANY TIME WHEN MEMBERS OF THE INACTIVE NATIONAL GUARD WERE NOT MEMBERS, ALSO, OF THE NATIONAL GUARD OF THE UNITED STATES, AND, HENCE, WERE NOT SUBJECT TO FEDERAL MILITARY SERVICE UNDER THE TERMS OF THE NATIONAL DEFENSE ACT.

IN VIEW OF THESE CONSIDERATIONS, I AM CONSTRAINED TO ADVISE THAT PAYMENT ON THE VOUCHER IS NOT AUTHORIZED. THE VOUCHER WILL BE RETAINED IN THIS OFFICE.