B-40373, APRIL 6, 1944, 23 COMP. GEN. 755

B-40373: Apr 6, 1944

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PAY - LONGEVITY - SERVICE CREDITS - NATIONAL GUARD RESERVE AND INACTIVE NATIONAL GUARD AS NO PORTION OF THE NATIONAL GUARD OR THE NATIONAL GUARD OF THE UNITED STATES WAS RECOGNIZED AS THE "INACTIVE NATIONAL GUARD" PRIOR TO THE ACT OF JUNE 15. A NAVAL RESERVE OFFICER WHO WAS IN THE NATIONAL GUARD RESERVE ON JUNE 14. WAS GIVEN A STATUS IN THE INACTIVE NATIONAL GUARD EFFECTIVE JUNE 15. - IS ENTITLED. HE WAS A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES AS ESTABLISHED AND DEFINED IN THE 1933 ACT. THEREAFTER TRANSFERRED TO THE INACTIVE NATIONAL GUARD IS ENTITLED. IRRESPECTIVE OF WHETHER HE IS CALLED INTO FEDERAL SERVICE UNDER HIS ENLISTMENT. PRESCRIBES THE SERVICE WHICH MAY BE COUNTED BY NAVAL RESERVE OFFICERS FOR LONGEVITY PAY PURPOSES AS FOLLOWS: * * * 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-40373, APRIL 6, 1944, 23 COMP. GEN. 755

PAY - LONGEVITY - SERVICE CREDITS - NATIONAL GUARD RESERVE AND INACTIVE NATIONAL GUARD AS NO PORTION OF THE NATIONAL GUARD OR THE NATIONAL GUARD OF THE UNITED STATES WAS RECOGNIZED AS THE "INACTIVE NATIONAL GUARD" PRIOR TO THE ACT OF JUNE 15, 1933, ENLISTED SERVICE PRIOR TO THAT DATE IN THE INACTIVE NATIONAL GUARD--- AS DISTINGUISHED FROM ENLISTED SERVICE IN THE NATIONAL GUARD RESERVE--- MAY NOT BE COUNTED IN COMPUTING LONGEVITY PAY OF A NAVAL RESERVE OFFICER UNDER SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942. A NAVAL RESERVE OFFICER WHO WAS IN THE NATIONAL GUARD RESERVE ON JUNE 14, 1933, AND WAS GIVEN A STATUS IN THE INACTIVE NATIONAL GUARD EFFECTIVE JUNE 15, 1933--- THE NATIONAL GUARD RESERVE HAVING BEEN DISCONTINUED EFFECTIVE JUNE 14, 1933, BY THE ACT OF JUNE 15, 1933--- IS ENTITLED, UNDER SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, IN COMPUTING LONGEVITY PAY, TO CREDIT FOR SERVICE IN THE NATIONAL GUARD RESERVE THROUGH JUNE 14, 1933, BUT, HIS SERVICE MAY NOT BE COUNTED AFTER THAT DATE IN THE ABSENCE OF A SHOWING THAT DURING THE PERIOD SUBSEQUENT TO JUNE 14, 1933, HE WAS A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES AS ESTABLISHED AND DEFINED IN THE 1933 ACT. A PERSON WHO ENLISTED IN A FEDERALLY RECOGNIZED UNIT OF THE NATIONAL GUARD SUBSEQUENT TO THE ACT OF JUNE 15, 1933, AND ACQUIRED A STATUS IN THE NATIONAL GUARD OF THE UNITED STATES BY SUBSCRIBING TO THE OATH REQUIRED BY SECTION 8 OF THE ACT OF JUNE 15, 1933, AMENDING SECTION 70 OF THE ACT OF JUNE 3, 1916, AND THEREAFTER TRANSFERRED TO THE INACTIVE NATIONAL GUARD IS ENTITLED, UNDER SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, IN COMPUTING HIS PAY AS A NAVAL RESERVE OFFICER TO COUNT FOR PURPOSES OF LONGEVITY PAY SERVICE AFTER TRANSFER TO, AND PRIOR TO DISCHARGE FROM, THE INACTIVE NATIONAL GUARD. AN INDIVIDUAL WHO ENTERS INTO A CONTRACT OF ENLISTMENT IN THE NATIONAL GUARD BEFORE HE HAS REACHED THE AGE OF 18 AND WHO REMAINS IN THE SERVICE AFTER HE REACHES THAT AGE MAY COUNT SERVICE AFTER HIS EIGHTEENTH BIRTHDAY FOR LONGEVITY PAY PURPOSES, IRRESPECTIVE OF WHETHER HE IS CALLED INTO FEDERAL SERVICE UNDER HIS ENLISTMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 6, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 19, 1944, WITH WHICH YOU TRANSMITTED A LETTER DATED FEBRUARY 2, 1944, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, WITH RESPECT TO SEVERAL QUESTIONS AS TO WHETHER CERTAIN SERVICE MAY BE COUNTED FOR LONGEVITY PAY PURPOSES BY OFFICERS OF THE NAVAL RESERVE.

SECTION 3 OF THE ACT OF JUNE 16, 1942, 56 STAT. 360, AS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, PRESCRIBES THE SERVICE WHICH MAY BE COUNTED BY NAVAL RESERVE OFFICERS FOR LONGEVITY PAY PURPOSES AS FOLLOWS:

* * * 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

SECTION 3A OF THE SAID ACT OF JUNE 16, 1942, ADDED THERETO BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, PROVIDES:

SEC. 3A. DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND FOR SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF SUCH WAR, IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF OFFICERS PAID UNDER THE PROVISIONS OF SECTION 1 OR 3 OF THIS ACT, SUCH OFFICERS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY SUCH SECTIONS, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS WARRANT OFFICERS OR ARMY FIELD CLERKS OR AS COMMISSIONED WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE REGULAR ARMY RESERVE, 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 * * *.

YOUR FIRST QUESTION IS AS FOLLOWS:

(1) WHETHER LIEUTENANT (JG) MORTON H. ROBARGE, USNR, IS ENTITLED TO COUNT SERVICE IN THE NATIONAL GUARD OF THE STATE OF NEW YORK, UNDER THE STATEMENT OF SERVICE SET FORTH IN THE ENCLOSED LETTER, DURING THE PERIOD FEBRUARY 27, 1928, TO FEBRUARY 26, 1931, OR ANY PART THEREOF FOR THE PURPOSE OF COMPUTING HIS LONGEVITY PAY.

THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS REPORTS THAT THE ADJUTANT GENERAL OF THE STATE OF NEW YORK HAS CERTIFIED THAT LIEUTENANT ROBARGE "HAD ENLISTED SERVICE IN THE ACTIVE NATIONAL GUARD OF THE STATE OF NEW YORK WHICH MAY BE CREDITED FOR LONGEVITY PAY PURPOSES FROM 2/27/28 TO 6/27/30, WHILE ASSIGNED TO THE 105TH INFANTRY; AND A PERIOD OF SERVICE IN THE INACTIVE NATIONAL GUARD WHICH MAY NOT BE COUNTED FOR PAY PURPOSES FROM 6/27/30 TO 2/26/31, WHILE ASSIGNED TO THE 105TH INFANTRY.'

WITH RESPECT TO THE PRIOR SERVICE REPORTED TO HAVE BEEN PERFORMED BY LIEUTENANT ROBARGE, THE BUREAU OF SUPPLIES AND ACCOUNTS STATES THAT THE NATIONAL GUARD BUREAU MADE THE FOLLOWING COMMENT:

1. THE ACT OF JUNE 15, 1933 ESTABLISHED THE NATIONAL GUARD OF THE UNITED STATES AND PROVIDED FOR SERVICE IN THE INACTIVE NATIONAL GUARD. AS A MATTER OF POLICY, THE NATIONAL GUARD BUREAU CHANGED THE STATUS OF ENLISTED MEMBERS OF THE NATIONAL GUARD RESERVE TO SHOW THAT, EFFECTIVE 15 JUNE 1933, THEY BECAME MEMBERS OF THE INACTIVE NATIONAL GUARD.

2. IT IS THEREFORE THE OPINION OF THIS BUREAU THAT THE SERVICE SHOWN ON THE ATTACHED STATEMENT FOR THE PERIOD FROM 27 JUNE 1930 TO 26 FEBRUARY 1931, WAS PERFORMED IN THE NATIONAL GUARD RESERVE AND MAY BE CREDITED (COUNTED) BY LIEUTENANT (JG) MORTON H. ROBARGE FOR PURPOSES OF LONGEVITY.

IN A DECISION DATED MARCH 17, 1943, TO LIEUTENANT COLONEL CARL WITCHER, U.S. ARMY, 22 COMP. GEN. 907, IT WAS HELD THAT UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 16, 1942, AS AMENDED, SUPRA, THE 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, WAS NOT AUTHORIZED TO BE COUNTED FOR PAY PURPOSES. THE PRESENT SUBMISSION INVOLVES THE CREDITING OF TIME IN AN ENLISTED STATUS IN THE "INACTIVE NATIONAL GUARD" BOTH PRIOR AND SUBSEQUENT TO THE ACT OF JUNE 15, 1933, 48 STAT. 153.

SECTION 15 OF THE ACT OF JUNE 15, 1933, 48 STAT. 159, AMENDED SECTION 78 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, WHICH SECTION, AS SO AMENDED, OMITTED ANY REFERENCE TO THE NATIONAL GUARD RESERVE BUT PROVIDED FOR SERVICE IN THE INACTIVE NATIONAL GUARD AND THUS, IN EFFECT, DISCONTINUED THE NATIONAL GUARD RESERVE. PRIOR TO JUNE 15, 1933, NO PORTION OF THE NATIONAL GUARD OR THE NATIONAL GUARD OF THE UNITED STATES WAS RECOGNIZED AS THE "INACTIVE NATIONAL GUARD" AND, THE STATEMENT BY THE ADJUTANT GENERAL OF THE STATE OF NEW YORK THAT LIEUTENANT ROBARGE HAD ENLISTED SERVICE IN THE INACTIVE NATIONAL GUARD FROM JUNE 27, 1930 TO FEBRUARY 26, 1931--- AS DISTINGUISHED FROM ENLISTED SERVICE IN THE NATIONAL GUARD RESERVE, AS TO WHICH SEE SECTION 2 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1076--- MAY NOT BE ACCEPTED AS SERVICE IN ANY OF THE NATIONAL GUARD BRANCHES SPECIFICALLY ENUMERATED IN THE SAID SECTION 3A OF THE ACT OF JUNE 16, 1942, AS AMENDED. DURING THE PERIOD FEBRUARY 27, 1928, TO JUNE 26, 1930, INCLUSIVE, IT APPEARS THAT THE OFFICER PERFORMED ENLISTED SERVICE IN THE " NATIONAL GUARD" AS THAT TERM IS USED IN THE SAID SECTION 3A AND THE COUNTING OF SUCH SERVICE IS AUTHORIZED. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

YOUR SECOND QUESTION IS:

(2) WHETHER LIEUTENANT (JG) NORMAN C. MACPHEE, USNR, IS ENTITLED TO COUNT SERVICE IN THE NATIONAL GUARD OF THE STATE OF MASSACHUSETTS, UNDER THE CONDITIONS OF SERVICE AS SET FORTH IN THE ENCLOSED LETTER, DURING THE PERIOD OCTOBER 12, 1932, TO MAY 26, 1935, OR ANY PART THEREOF, FOR THE PURPOSE OF COMPUTING HIS LONGEVITY PAY.

WITH RESPECT TO LIEUTENANT MACPHEE PRIOR SERVICE IN THE NATIONAL GUARD THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS REPORTS AS FOLLOWS:

NORMAN C. MACPHEE (NOW A COMMISSIONED OFFICER IN THE NAVAL RESERVE) ENLISTED IN THE MASSACHUSETTS NATIONAL GUARD ON 27 MAY 1932, AND FROM THAT DATE UNTIL 11 OCTOBER 1932, SERVED IN THE ACTIVE NATIONAL GUARD OF THE STATE OF MASSACHUSETTS WITH THE 101ST FIELD ARTILLERY BRIGADE. ADDITION TO THIS INFORMATION THE STATEMENT OF SERVICE OF THE ADJUTANT GENERAL OF THE STATE OF MASSACHUSETTS CONTAINS THE FOLLOWING ADDITIONAL DATA:

"PERIOD OF SERVICE IN THE INACTIVE NATIONAL GUARD AND NATIONAL GUARD RESERVE WHICH MAY NOT BE COUNTED FOR PURPOSES OF LONGEVITY:

" "FROM 12 OCTOBER 1932 TO 26 MAY 1935 NATIONAL GUARD RESERVE ASSIGNED 101ST AMMUNITION TRAIN, 51ST FIELD ARTILLERY BRIGADE. THE NATIONAL GUARD RESERVE REDESIGNATED TO INACTIVE NATIONAL GUARD IN JUNE 1934.'"

WITH RESPECT TO SUCH SERVICE THE NATIONAL GUARD BUREAU STATED AS FOLLOWS:

"1. THE ACT OF 15 JUNE 1933 ESTABLISHED THE NATIONAL GUARD OF THE UNITED STATES AND PROVIDED FOR SERVICE IN THE INACTIVE NATIONAL GUARD. AS A MATTER OF POLICY, THE NATIONAL GUARD BUREAU CHANGED THE STATUS OF ENLISTED MEMBERS OF THE NATIONAL GUARD RESERVE TO SHOW THAT, EFFECTIVE 15 JUNE 1933, THEY BECAME MEMBERS OF THE INACTIVE NATIONAL GUARD.

"2. IT IS THEREFORE THE OPINION OF THIS BUREAU THAT THE SERVICE SHOWN ON THE ATTACHED STATEMENT FOR THE PERIOD FROM 12 OCTOBER 1932 TO 14 JUNE 1933 WAS PERFORMED IN THE NATIONAL GUARD RESERVE AND MAY BE CREDITED FOR THE PURPOSES OF LONGEVITY BY ENSIGN MACPHEE, AND THAT THE PERIOD FROM 15 JUNE 1933 TO 26 MAY 1935 WAS PERFORMED IN THE INACTIVE NATIONAL GUARD AND MAY NOT BE CREDITED.'

AS INDICATED IN THE DECISION OF MARCH 17, 1943, AND ALSO, BY THE REPORT FROM THE NATIONAL GUARD BUREAU QUOTED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, THE NATIONAL GUARD RESERVE WAS DISCONTINUED EFFECTIVE JUNE 14, 1933, AND IT APPEARS THAT ENLISTED PERSONNEL HAVING A STATUS THEREIN WERE GIVEN A STATUS IN THE INACTIVE NATIONAL GUARD EFFECTIVE JUNE 15, 1933. HENCE, IT APPEARS THAT DURING THE PERIOD OCTOBER 12, 1932, TO JUNE 14, 1933, LIEUTENANT MACPHEE WAS IN THE NATIONAL GUARD RESERVE AND THAT SUBSEQUENT TO THAT PERIOD HIS REPORTED SERVICE WAS IN THE INACTIVE NATIONAL GUARD. HE MAY BE ALLOWED CREDIT FOR THE PERIOD OCTOBER 12, 1932, TO JUNE 14, 1933, BUT SINCE SERVICE IN THE INACTIVE NATIONAL GUARD IS NOT AUTHORIZED TO BE COUNTED FOR PAY PURPOSES (22 COMP. GEN. 907), HE IS NOT ENTITLED TO CREDIT FOR THE PERIOD JUNE 15, 1933, TO MAY 26, 1935, IN THE ABSENCE OF A SHOWING THAT DURING THAT PERIOD HE WAS A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES AS ESTABLISHED AND DEFINED IN THE ACT OF JUNE 15, 1933.

QUESTION 3 IS AS FOLLOWS:

(3) WHETHER LIEUTENANT (JG) BENJAMIN F. ROSSNER, USNR, IS ENTITLED TO COUNT SERVICE IN THE INACTIVE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA, UNDER THE CONDITIONS DESCRIBED IN THE ENCLOSURE, FOR THE PERIOD JULY 15, 1935, TO OCTOBER 4, 1937, IN THE COMPUTATION OF HIS LONGEVITY PAY.

IT APPEARS THAT LIEUTENANT ROSSNER ENLISTED IN THE DISTRICT OF COLUMBIA NATIONAL GUARD ON APRIL 2, 1935, WAS TRANSFERRED TO THE INACTIVE NATIONAL GUARD ON JULY 15, 1935, AND WAS HONORABLY DISCHARGED ON OCTOBER 4, 1937. WITH RESPECT TO SUCH SERVICE THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS QUOTES THE FOLLOWING STATEMENT BY THE ADJUTANT GENERAL HEADQUARTERS, DISTRICT OF COLUMBIA NATIONAL GUARD:

* * * IT IS REPEATED THAT BENJAMIN F. ROSSNER WAS IN THE " INACTIVE NATIONAL GUARD" FROM 15 JULY 1935 TO 4 OCTOBER 1937. DUE TO BUSINESS INTERFERENCE WITH THE PERFORMANCE OF MILITARY DUTY, HE WAS TRANSFERRED FROM THE ACTIVE NATIONAL GUARD TO THE " INACTIVE NATIONAL GUARD" AND ASSIGNED TO HEADQUARTERS AND SERVICE COMPANY, 121ST ENGINEERS, D.C.N.G., PER SPECIAL ORDER NO. 69, THIS HEADQUARTERS, DATED JULY 15, 1935. REMAINED IN THE " INACTIVE NATIONAL GUARD" UNTIL DATE OF HONORABLE DISCHARGE ON 4 OCTOBER 1937, BECAUSE OF REMOVAL FROM THE DISTRICT OF COLUMBIA.

AS USED IN THIS CASE, THE DESIGNATION " INACTIVE NATIONAL GUARD" MEANS FEDERALLY RECOGNIZED INACTIVE PERSONNEL ASSIGNED TO AN ACTIVE UNIT, INASMUCH AS HEADQUARTERS AND SERVICE COMPANY, 121ST ENGINEERS, WAS AN ACTIVE UNIT OF THE D.C. NATIONAL GUARD. REFERENCE IS MADE TO GENERAL ORDERS NO. 3, WAR DEPARTMENT, DATED APRIL 4, 1934, IN THIS CONNECTION.

SECTION 71 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 201, AS AMENDED BY SECTION 9 OF THE ACT OF JUNE 15, 1933, 48 STAT. 157, 32 U.S.C. 4B, DEFINES THE TERM " NATIONAL GUARD OF THE UNITED STATES" AS FOLLOWS:

(B) " NATIONAL GUARD OF THE UNITED STATES" MEANS A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES COMPOSED OF THOSE FEDERALLY RECOGNIZED UNITS AND ORGANIZATIONS AND PERSONS DULY APPOINTED AND COMMISSIONED IN THE ACTIVE AND INACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, WHO HAVE TAKEN AND SUBSCRIBED TO THE OATH OF OFFICE PRESCRIBED IN SECTION 73 OF THIS ACT, AND WHO HAVE BEEN DULY APPOINTED BY THE PRESIDENT IN THE NATIONAL GUARD OF THE UNITED STATES, AS PROVIDED IN THIS ACT, AND OF THOSE OFFICER AND WARRANT OFFICERS APPOINTED AS PRESCRIBED IN SECTIONS 75 AND 111 OF THIS ACT, AND THOSE PERSONS DULY ENLISTED IN THE NATIONAL GUARD OF THE UNITED STATES AND OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA WHO HAVE TAKEN AND SUBSCRIBED TO THE OATH OF ENLISTMENT PRESCRIBED IN SECTION 70 OF THIS ACT.

SECTION 70 OF THE SAID ACT OF JUNE 3, 1916, 39 STAT. 201, AS AMENDED BY SECTION 38 OF THE ACT OF JUNE 4, 1920, 41 STAT. 781, AND SECTION 8 OF THE ACT OF JUNE 15, 1933, 48 STAT. 156, 32 U.S.C. 123, PROVIDES:

MEN ENLISTING IN THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, AND IN THE NATIONAL GUARD OF THE UNITED STATES, SHALL SIGN AN ENLISTMENT CONTRACT AND SUBSCRIBE TO THE FOLLOWING OATH OR AFFIRMATION:

" I DO HEREBY ACKNOWLEDGE TO HAVE VOLUNTARILY ENLISTED THIS .... DAY OF ....., 19..., AS A SOLDIER IN THE NATIONAL GUARD OF THE UNITED STATES AND OF THE STATE OF ......., FOR THE PERIOD OF THREE (OR ONE) YEAR ...; UNDER THE CONDITIONS PRESCRIBED, BY LAW, UNLESS SOONER DISCHARGED BY PROPER AUTHORITY. AND I DO SOLEMNLY SWEAR THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE UNITED STATES OF AMERICA AND TO THE STATE OF ........., AND THAT I WILL SERVE THEM HONESTLY, AND FAITHFULLY AGAINST ALL THEIR ENEMIES WHOMSOEVER, AND THAT I WILL OBEY THE ORDERS OF THE PRESIDENT OF THE UNITED STATES AND OF THE GOVERNOR OF THE STATE OF ........., AND OF THE OFFICERS APPOINTED OVER ME ACCORDING TO LAW AND THE RULES AND ARTICLES OF WAR.'

FROM THE STATEMENTS MADE BY THE ADJUTANT GENERAL, DISTRICT OF COLUMBIA NATIONAL GUARD, IT APPEARS THAT PRIOR TO LIEUTENANT ROSSNER'S TRANSFER TO THE INACTIVE NATIONAL GUARD HE WAS A PART OF THE FEDERALLY RECOGNIZED NATIONAL GUARD AND THAT HE HAD SUBSCRIBED TO THE OATH REQUIRED BY THE SAID SECTION 70 OF THE ACT OF JUNE 3, 1916, AS AMENDED. UNDER SUCH CIRCUMSTANCES HE HAD A STATUS IN THE NATIONAL GUARD OF THE UNITED STATES PRIOR TO TRANSFER AND SUCH TRANSFER TO THE INACTIVE NATIONAL GUARD WOULD NOT AFFECT SUCH STATUS PRIOR TO HIS DISCHARGE ON OCTOBER 4, 1937. SINCE SERVICE IN THE NATIONAL GUARD OF THE UNITED STATES IS AUTHORIZED TO BE COUNTED FOR PAY PURPOSES LIEUTENANT ROSSNER MAY BE CREDITED WITH THE PERIOD FROM TRANSFER TO THE INACTIVE NATIONAL GUARD TO DATE OF DISCHARGE IN COMPUTING HIS PAY AS AN OFFICER OF THE NAVAL RESERVE. SEE DECISION DATED OCTOBER 6, 1943, B 35181. YOUR THIRD QUESTION IS ANSWERED ACCORDINGLY. QUESTION 4 READS:

(4) WHETHER ENLISTED SERVICE IN THE NATIONAL GUARD UNDER AN ENLISTMENT ENTERED INTO PRIOR TO THE DATE THE INDIVIDUAL CONCERNED BECAME 18 YEARS OF AGE MAY BE COUNTED FOR LONGEVITY PAY PURPOSES UNDER THE FOLLOWING CONDITIONS:

(A) WHEN THE INDIVIDUAL WAS NOT CALLED INTO FEDERAL SERVICE DURING THE PERIOD OF SUCH ENLISTMENT.

(B) WHEN THE INDIVIDUAL WAS CALLED INTO FEDERAL SERVICE DURING THE PERIOD OF SUCH ENLISTMENT EITHER PRIOR OR SUBSEQUENT TO THE DATE HE ATTAINED HIS 18TH BIRTHDAY.

SECTION 57 OF THE ACT OF JUNE 3, 1916, 39 STAT. 197, PROVIDES:

THE MILITIA OF THE UNITED STATES SHALL CONSIST OF ALL ABLE-BODIED MALE CITIZENS OF THE UNITED STATES AND ALL OTHER ABLE-BODIED MALES WHO HAVE OR SHALL HAVE DECLARED THEIR INTENTION TO BECOME CITIZENS OF THE UNITED STATES, WHO SHALL BE MORE THAN EIGHTEEN YEARS OF AGE AND, EXCEPT AS HEREINAFTER PROVIDED, NOT MORE THAN FORTY-FIVE YEARS OF AGE, AND SAID MILITIA SHALL BE DIVIDED INTO THREE CLASSES, THE NATIONAL GUARD, THE NAVAL MILITIA AND THE UNORGANIZED MILITIA. SEE, ALSO, SECTION 1 OF THE ACT OF JANUARY 21, 1903, 32 STAT. 775.

SECTION 58 OF THE SAID ACT OF JUNE 3, 1916, 39 STAT. 197, AS AMENDED BY SECTION 1 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1075, AND SECTION 5 OF THE ACT OF JUNE 15, 1933, 48 STAT. 155, PROVIDES THAT THE NATIONAL GUARD 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.'

WITH RESPECT TO THIS QUESTION THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS HAS CITED A DECISION DATED NOVEMBER 6, 1930, A-33559, INVOLVING AN OFFICER OF THE NAVY WHO CLAIMED TO HAVE HAD COMMISSIONED SERVICE IN THE STATE GUARD OF ARKANSAS PRIOR TO THE DATE HE HAD REACHED THE AGE WHICH QUALIFIED HIM FOR A COMMISSION IN SUCH ORGANIZATION. IT WAS HELD THAT ON THE FACTS APPEARING THE OFFICER DID NOT HOLD A COMMISSION IN THE ORGANIZED MILITIA DURING THE PERIOD INVOLVED. HOWEVER, YOUR QUESTION REFERS TO THE EFFECT OF ENLISTMENT PRIOR TO REACHING THE AGE PRESCRIBED FOR ENLISTMENT IN THE NATIONAL GUARD AND IN THAT CONNECTION IT HAS BEEN HELD THAT AN INDIVIDUAL WHO ENLISTED IN THE STATE NATIONAL GUARD BEFORE HE HAD REACHED HIS EIGHTEENTH BIRTHDAY WAS NOT AUTHORIZED TO COUNT SUCH PURPORTED ENLISTED SERVICE FOR LONGEVITY PAY PURPOSES. SEE DECISION DATED SEPTEMBER 2, 1931, A-37365. CF. HOSKINS V. PELL, 239 F. 279. ALSO, IT HAS BEEN HELD THAT AN INDIVIDUAL WHO SO ENLISTS AND WHO REMAINS OR IS RETAINED IN THE SERVICE AFTER REACHING THE AGE WHICH QUALIFIES HIM FOR ENLISTMENT MAY COUNT FOR LONGEVITY PAY PURPOSES THE PERIOD SUBSEQUENT TO REACHING THE REQUIRED AGE. SEE DECISION DATED APRIL 14, 1932, A-40979. CF. EX PARTE ROCK, 171 F. 240, AND EX PARTE HUBBARD, 182 F. 76. THE BASIS FOR THE CONCLUSION THAT SUCH SERVICE MAY BE COUNTED FOR PAY PURPOSES IS THAT THE INDIVIDUAL'S REMAINING IN THE NATIONAL GUARD AFTER REACHING THE AGE AT WHICH HE WOULD BE ELIGIBLE FOR ENLISTMENT IS EQUIVALENT TO AN ENLISTMENT IN THE REGULAR MANNER. SEE IN RE GRIMLEY, 137 U.S. 147.

YOUR LAST QUESTION, SUPRA, IS ANSWERED BY SAYING THAT AN INDIVIDUAL WHO ENTERS INTO A CONTACT OF ENLISTMENT IN THE NATIONAL GUARD BEFORE HE HAS REACHED THE AGE OF 18 AND WHO REMAINS IN THE SERVICE AFTER HE REACHES THAT AGE, MAY COUNT SERVICE AFTER HIS EIGHTEENTH BIRTHDAY FOR PAY PURPOSES, IRRESPECTIVE OF WHETHER OR NOT HE IS CALLED INTO FEDERAL SERVICE UNDER HIS ENLISTMENT.