B-43384, SEPTEMBER 6, 1944, 24 COMP. GEN. 186

B-43384: Sep 6, 1944

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- IS NOT SERVICE WHICH MAY BE COUNTED FOR PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942. AS FOLLOWS: THERE IS ENCLOSED HEREWITH A LETTER. IT WILL BE NOTED THAT HE HELD A COMMISSION AS LIEUTENANT (JG) IN THE CALIFORNIA NAVAL MILITIA DURING THE PERIOD JULY 30. WAS AN HONORARY ORGANIZATION AND NOT FEDERALLY RECOGNIZED.'. IT WILL BE OBSERVED THAT HE SERVED IN AN ENLISTED STATUS AS A MEMBER OF THE OHIO STATE NAVAL MILITIA FROM SEPTEMBER 15. IS NON-FEDERALLY RECOGNIZED.'. YOUR DECISION IS REQUESTED AS TO WHETHER SERVICE IN THE CALIFORNIA NAVAL MILITIA AND THE OHIO STATE NAVAL MILITIA. THE TERMS "FEDERALLY RECOGNIZED NATIONAL GUARD UNIT" AND "FEDERAL RECOGNITION" HAVE APPLICATION ONLY TO THE NATIONAL GUARD AND TO THE OFFICERS THEREOF WHEN ORGANIZED.

B-43384, SEPTEMBER 6, 1944, 24 COMP. GEN. 186

PAY - SERVICE CREDITS - NAVAL MILITIA OF THE STATES, ETC. SERVICE IN THE NAVAL MILITIA OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, ON AND AFTER FEBRUARY 16, 1914--- THE EFFECTIVE DATE OF THE BASIC LAW FOR THE ESTABLISHMENT AND MAINTENANCE OF THE NAVAL MILITIA--- IS NOT SERVICE WHICH MAY BE COUNTED FOR PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, UNLESS THE PARTICULAR NAVAL MILITIA UNIT HAS BEEN DULY PRESCRIBED AS A PART OF THE ORGANIZED MILITIA AS PROVIDED IN SECTION 1 OF THE ACT OF FEBRUARY 16, 1914, OR SUBSEQUENT SIMILAR LEGISLATION, SUCH AS THE NAVAL RESERVE ACTS OF 1925 AND 1938.

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

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 18, 1944, AS FOLLOWS:

THERE IS ENCLOSED HEREWITH A LETTER, WITH ENCLOSURES, FROM THE ACTING CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, RELATIVE TO THE RIGHT OF LIEUTENANT PAUL RICHARD HARMER, CC-V/S), USNR, AND ENSIGN ROBERT LEE RATCHFORD, SC-V/G), USNR, TO COUNT PRIOR SERVICE IN THE NAVAL NAVAL MILITIA OF A STATE FOR PAY PURPOSES.

IN THE CASE OF LIEUTENANT HARMER, IT WILL BE NOTED THAT HE HELD A COMMISSION AS LIEUTENANT (JG) IN THE CALIFORNIA NAVAL MILITIA DURING THE PERIOD JULY 30, 1934, TO JUNE 8, 1942, AND THAT, ACCORDING TO INFORMATION FURNISHED THE BUREAU OF NAVAL PERSONNEL, THE CALIFORNIA NAVAL MILITIA ,WAS AN HONORARY ORGANIZATION AND NOT FEDERALLY RECOGNIZED.'

IN THE CASE OF ENSIGN RATCHFORD, IT WILL BE OBSERVED THAT HE SERVED IN AN ENLISTED STATUS AS A MEMBER OF THE OHIO STATE NAVAL MILITIA FROM SEPTEMBER 15, 1942, TO MAY 26, 1943, AND THAT ACCORDING TO INFORMATION FURNISHED THE BUREAU OF NAVAL PERSONNEL, THE OHIO STATE NAVAL MILITIA ,IS NON-FEDERALLY RECOGNIZED.'

IN CONNECTION WITH THE FOREGOING, YOUR DECISION IS REQUESTED AS TO WHETHER SERVICE IN THE CALIFORNIA NAVAL MILITIA AND THE OHIO STATE NAVAL MILITIA, AS SET FORTH IN THE ENCLOSURE, CONSTITUTES "LEGAL SERVICE IN THE NAVAL MILITIA" FOR PAY PURPOSES WITHIN THE MEANING OF THE QUOTED WORDS AS USED IN THE COMPTROLLER GENERAL'S DECISION OF NOVEMBER 4, 1943 (23 COMP. GEN. 334).

THE TERMS "FEDERALLY RECOGNIZED NATIONAL GUARD UNIT" AND "FEDERAL RECOGNITION" HAVE APPLICATION ONLY TO THE NATIONAL GUARD AND TO THE OFFICERS THEREOF WHEN ORGANIZED, EQUIPPED AND TRAINED UNDER THE PROVISIONS OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, 48 STAT. 155 ET SEQ., AND, INSOFAR AS THIS OFFICE IS AWARE, THEY HAVE NO PROPER APPLICATION, AS SUCH, TO THE NAVAL MILITIA. IT IS TO BE NOTED THAT SECTION 117 OF THE ACT OF JUNE 3, 1916, 39 STAT. 212, 32 U.S.C. 2, SPECIFICALLY PROVIDES THAT THE PROVISIONS OF THAT ACT RESPECTING MILITIA ARE APPLICABLE ONLY TO MILITIA ORGANIZED AS A LAND FORCE, AND SIMILAR RESTRICTIONS APPEAR IN PRIOR STATUTES ON THE SAME SUBJECT. FOR EXAMPLE, BY SECTION 1 OF THE ACT OF JUNE 21, 1903, AS AMENDED BY THE ACT OF MAY 27, 1908, 35 STAT. 399, IT WAS PROVIDED THAT THE MILITIA SHOULD BE DIVIDED INTO TWO CLASSES--- THE ORGANIZED MILITIA, TO BE KNOWN AS THE NATIONAL GUARD OF THE STATE, TERRITORY OR DISTRICT OF COLUMBIA, OR BY SUCH OTHER DESIGNATION AS MIGHT BE GIVEN THEM BY LAWS OF THE RESPECTIVE STATES OR TERRITORIES, AND THE REMAINDER TO BE KNOWN AS THE RESERVE MILITIA, WITH A PROVISO THAT THE PROVISIONS THEREOF AND OF SECTION 1661 OF THE REVISED STATUTES, AS AMENDED, SHOULD APPLY ONLY TO THE MILITIA ORGANIZED AS A LAND FORCE. SECTION 57 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 197, PROVIDES THAT THE MILITIA OF THE UNITED STATES SHALL BE DIVIDED INTO THREE CLASSES, THE NATIONAL GUARD, THE NAVAL MILITIA, AND THE UNORGANIZED MILITIA. SECTION 117, SUPRA, PROVIDES AS FOLLOWS:

THE PROVISIONS OF THE ACT IN RESPECT TO THE MILITIA SHALL BE APPLICABLE ONLY TO MILITIA ORGANIZED AS A LAND FORCE AND NOT TO THE NAVAL MILITIA, WHICH SHALL CONSIST OF SUCH PART OF THE MILITIA AS MAY BE PRESCRIBED BY THE PRESIDENT FOR EACH STATE, TERRITORY, OR DISTRICT: PROVIDED, THAT EACH STATE, TERRITORY, OR DISTRICT MAINTAINING A NAVAL MILITIA AS HEREIN PRESCRIBED MAY BE CREDITED TO THE EXTENT OF THE NUMBER THEREOF IN THE QUOTA THAT WOULD OTHERWISE BE REQUIRED BY SECTION SIXTY-TWO OF THIS ACT.

SECTION 1 OF THE ACT OF FEBRUARY 16, 1914, 38 STAT. 283, PROVIDED THAT OF THE ORGANIZED MILITIA AS PROVIDED FOR BY LAW, SUCH PART OF THE SAME AS MAY BE DULY PRESCRIBED IN EACH STATE, TERRITORY AND FOR THE DISTRICT OF COLUMBIA SHALL CONSTITUTE A NAVAL MILITIA. SECTION 3 OF THAT ACT, 38 STAT. 284, AUTHORIZED THE PRESIDENT, IN THE EVENT OF WAR, ACTUAL OR THREATENED, TO CALL FORTH SUCH NUMBER OF THE NAVAL MILITIA OF THE STATE, TERRITORY OR THE DISTRICT OF COLUMBIA AS HE MIGHT DEEM NECESSARY AND TO ISSUE HIS ORDERS FOR THAT PURPOSE THROUGH THE GOVERNOR OR THE COMMANDING OFFICER OF THE NAVAL MILITIA OF THE DISTRICT OF COLUMBIA. SECTION 4 PROVIDED THAT WHEN THE MILITARY NEEDS OF THE FEDERAL GOVERNMENT, ARISING FROM THE NECESSITY TO EXECUTE THE LAWS OF THE UNITED STATES, TO SUPPRESS INSURRECTION, OR REPEL INVASION, COULD NOT BE MET BY THE REGULAR FORCES, THE NAVAL MILITIA, AS THEREIN PROVIDED, AND EXISTING NAVAL RESERVES THEN OR THEREAFTER ORGANIZED, SHOULD BE CALLED INTO THE SERVICE OF THE UNITED STATES IN ADVANCE OF ANY VOLUNTEER NAVAL FORCE WHICH IT MAY THEN BE DETERMINED TO RAISE. SECTION 5 PROVIDED, INTER ALIA, THAT ANY OFFICER OR ENLISTED MAN OF THE NAVAL MILITIA QUALIFIED FOR SERVICE WHO SHOULD REFUSE OR NEGLECT TO PRESENT HIMSELF FOR SUCH MUSTER UPON BEING CALLED FORTH AS THEREIN PRESCRIBED SHOULD BE SUBJECT TO TRIAL BY COURT MARTIAL AND SHOULD BE PUNISHED AS SUCH COURT MARTIAL MIGHT DIRECT.

THE 1914 ACT WAS THE BASIC LAW WITH RESPECT TO THE ESTABLISHMENT AND MAINTENANCE OF THE NAVAL MILITIA, AND WHILE SUCH PROVISIONS APPEAR TO HAVE BEEN SPECIFICALLY REPEALED BY THE ACT OF JULY 1, 1918, 40 STAT. 708, IT APPEARS THAT THEREAFTER, BEGINNING WITH THE ACT OF JUNE 4, 1920, 41 STAT. 817, AN ACT MAKING APPROPRIATIONS FOR THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE 33, 1921, FEDERAL FUNDS AGAIN WERE APPROPRIATED FOR ORGANIZING, ADMINISTERING AND RECRUITING THE NAVAL MILITIA, WITH A PROVISO:

THAT, UNTIL JUNE 30, 1922, OF THE ORGANIZED MILITIA AS PROVIDED BY LAW, SUCH PART AS MAY BE DULY PRESCRIBED IN ANY STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA SHALL CONSTITUTE A NAVAL MILITIA; AND, UNTIL JUNE 30, 1922, SUCH OF THE NAVAL MILITIA AS NOW IS IN EXISTENCE, AND AS NOW ORGANIZED AND PRESCRIBED BY THE SECRETARY OF THE NAVY UNDER AUTHORITY OF THE ACT OF CONGRESS APPROVED FEBRUARY 16, 1914, SHALL BE A PART OF THE NAVAL RESERVE FORCE, AND THE SECRETARY OF THE NAVY IS AUTHORIZED TO MAINTAIN AND PROVIDE FOR SUCH NAVAL MILITIA AS PROVIDED IN SAID ACT.

SIMILAR PROVISIONS WERE CONTINUED IN SUBSEQUENT FISCAL YEARS AND BY THE NAVAL RESERVE ACT OF 1925 IT WAS PROVIDED IN SECTION 28, 43 STAT. 1088, AS FOLLOWS:

THAT OF THE ORGANIZED MILITIA, AS PROVIDED BY LAW, SUCH PART AS MAY BE DULY PRESCRIBED IN ANY STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA SHALL CONSTITUTE A NAVAL MILITIA. ANY OFFICER OR ENLISTED MAN OF SUCH NAVAL MILITIA MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE APPOINTED OR ENLISTED IN THE FLEET NAVAL RESERVE IN THE GRADE, RANK, OR RATING NOT ABOVE THE RANK OF LIEUTENANT FOR WHICH HE MAY BE FOUND QUALIFIED IN ACCORDANCE WITH SUCH SPECIAL REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY: PROVIDED, THAT EACH OFFICER AND ENLISTED MAN OF THE NAVAL MILITIA APPOINTED OR ENLISTED IN THE FLEET NAVAL RESERVE TO QUALIFY FOR THE RANK OR RATING HE MAY HOLD IN ACCORDANCE WITH THE GENERAL REGULATIONS GOVERNING THE FLEET NAVAL RESERVE: PROVIDED FURTHER, THAT OFFICERS AND MEN OF THE NAVAL RESERVE WHO ARE MEMBERS OF THE NAVAL MILITIA OF ANY STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA SHALL STAND RELIEVED FROM ALL SERVICE OR DUTY IN SAID NAVAL MILITIA WHEN ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY: PROVIDED FURTHER, THAT SUCH VESSELS, MATERIAL, ARMAMENT, EQUIPMENT, AND OTHER FACILITIES OF THE REGULAR NAVY AS ARE OR MAY BE MADE AVAILABLE FOR THE FLEET NAVAL RESERVE SHALL ALSO BE BE AVAILABLE, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, FOR ISSUE OR LOAN TO THE SEVERAL STATES, TERRITORIES, OR THE DISTRICT OF COLUMBIA, FOR THE ADMINISTRATION AND TRAINING OF UNITS OF THE NAVAL MILITIA, BUT NO SUCH FACILITIES OF THE REGULAR NAVY SHALL BE FURNISHED FOR USE BY ANY PORTION OR UNIT OF THE NAVAL MILITIA UNLESS AT LEAST 95 PERCENTUM OF ITS PERSONNEL HAS BEEN APPOINTED OR ENLISTED IN THE FLEET NAVAL RESERVE AND UNLESS ITS ORGANIZATION, ADMINISTRATION, AND TRAINING CONFORM TO THE STANDARD PRESCRIBED BY THE SECRETARY OF THE NAVY FOR SUCH UNITS.

SAID SECTION 28 WAS REENACTED AS SECTION 401 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1185, WITH CERTAIN CHANGES NOT HERE MATERIAL.

NOTWITHSTANDING THE APPARENT RECOGNITION OF THE EXISTENCE OF A NAVAL MILITIA AS EXEMPLIFIED IN SAID SECTIONS 28 AND 401 OF THE NAVAL RESERVE ACTS OF 1925 AND 1928, RESPECTIVELY, IT IS INTERESTING TO OBSERVE THAT SECTION 3 OF THE 1925 ACT, 43 STAT. 1081, SPECIFICALLY PROVIDED IN PERTINENT PART, AS FOLLOWS:

SEC. 3. THAT ALL PROVISIONS OF LAW RELATING TO THE * * * NAVAL MILITIA, WITH THE EXCEPTION OF THE ACT OF JUNE 10, 1922 ( FORTY SECOND STATUTES AT LARGE, PAGE 625), ARE HEREBY REPEALED.

FROM THE FOREGOING IT APPEARS THAT THE MILITIA OF THE UNITED STATES IS DIVIDED INTO THE UNORGANIZED MILITIA AND THE ORGANIZED MILITIA, AND THAT THE LATTER IS MADE UP OF THOSE UNITS OF THE NAVAL MILITIA DULY PRESCRIBED AS A PART THEREOF AND OF THE NATIONAL GUARD UNDER THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED. THE EFFECT OF THE LANGUAGE CONTAINED IN SECTION 57 OF THE NATIONAL DEFENSE ACT AND THE FIRST SENTENCE OF SECTIONS 28 AND 401 OF THE NAVAL RESERVE ACTS OF 1925 AND 1938, RESPECTIVELY, MAKE THIS CLEAR. IT SEEMS TO FOLLOW, THEREFORE, THAT SERVICE IN THE NAVAL MILITIA ON AND AFTER FEBRUARY 16, 1914, INSOFAR AS FEDERAL LEGISLATION IS CONCERNED, MEANS SERVICES IN THE NAVAL MILITIA WHICH CONSTITUTES A PART OF THE ORGANIZED MILITIA, AND THAT UNLESS A PARTICULAR NAVAL MILITIA UNIT HAS BEEN DULY PRESCRIBED AS A PART OF THE ORGANIZED MILITIA, SERVICE IN SAID UNIT ON AND AFTER FEBRUARY 16, 1914, IS NOT SERVICE IN THE NAVAL MILITIA AS THAT TERM IS USED IN THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037.

IN THE ABSENCE OF A SHOWING THAT THE NAVAL MILITIA UNITS TO WHICH THESE TWO OFFICERS BELONGED WERE DULY PRESCRIBED PARTS OF THE ORGANIZED MILITIA OF THE RESPECTIVE STATES, IT MUST BE HELD THAT SERVICE THEREIN WAS NOT SERVICE IN THE NAVAL MILITIA WITHIN THE CONTEMPLATION OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1937, AND CREDIT FOR PAY PURPOSES UNDER SAID ACT IS NOT AUTHORIZED.