B-43867, SEPTEMBER 1, 1944, 24 COMP. GEN. 175

B-43867: Sep 1, 1944

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WAS TANTAMOUNT TO RATIFICATION OF HIS NATIONAL GUARD ENLISTMENT SO AS TO ENTITLE HIM TO COUNT FOR PAY PURPOSES UNDER SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942. IS ENTITLED TO COUNT FOR PAY PURPOSES ENLISTED SERVICE IN THE TEXAS NATIONAL GUARD DURING THE PERIOD AUGUST 25 TO DECEMBER 8. HE ENLISTED IN THE TEXAS NATIONAL GUARD AND WAS DISCHARGED DECEMBER 8. SIMILAR PROVISION WAS MADE IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1925. IT WAS STATED THEREIN AS FOLLOWS: THE GENERALLY ACCEPTED RULE OF LAW IS THAT WHERE THE HOLDING OF TWO PUBLIC OFFICES IS FORBIDDEN BY A CONSTITUTIONAL OR STATUTORY PROVISION THE ACCEPTANCE OF A SECOND OFFICE IS REGARDED AS A RESIGNATION OR RELINQUISHMENT OF THE FIRST OFFICE.

B-43867, SEPTEMBER 1, 1944, 24 COMP. GEN. 175

PAY - SERVICE CREDITS - NAVAL RESERVISTS - PROHIBITION AGAINST CONCURRENT MEMBERSHIP IN MILITARY ORGANIZATIONS AS AFFECTING COUNTING OF NATIONAL GUARD SERVICE WHERE A NAVAL RESERVE OFFICER HAD ENLISTED IN THE NATIONAL GUARD IN VIOLATION OF THE STATUTORY PROHIBITION AGAINST MEMBERS OF THE NAVAL RESERVE BECOMING MEMBERS OF OTHER MILITARY ORGANIZATIONS, THE ACT OF REMAINING IN THE NATIONAL GUARD, PERFORMING THE DUTIES REQUIRED AND RECEIVING PAY THEREFOR, SUBSEQUENT TO REMOVAL OF THE DISQUALIFICATION BY TERMINATION OF HIS NAVAL RESERVE SERVICE, WAS TANTAMOUNT TO RATIFICATION OF HIS NATIONAL GUARD ENLISTMENT SO AS TO ENTITLE HIM TO COUNT FOR PAY PURPOSES UNDER SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SERVICE IN THE NATIONAL GUARD AFTER TERMINATION OF HIS NAVAL RESERVE SERVICE. 23 COMP. GEN. 173, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 1, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 10, 1944 (FILE JAG:II:WJG:Z/P20-2/4) (, REQUESTING DECISION WHETHER LIEUTENANT EDWIN ORUM ROBINSON, A-V/S), USNR, IS ENTITLED TO COUNT FOR PAY PURPOSES ENLISTED SERVICE IN THE TEXAS NATIONAL GUARD DURING THE PERIOD AUGUST 25 TO DECEMBER 8, 1926, UNDER THE CIRCUMSTANCES HEREINAFTER STATED.

IT APPEARS THAT DURING THE PERIOD AUGUST 25, 1922, TO AUGUST 24, 1926, THE SUBJECT OFFICER HELD A COMMISSION IN THE NAVAL RESERVE FORCE, AND THAT ON APRIL 16, 1926, WHILE STILL HOLDING SUCH COMMISSION AND IN VIOLATION OF THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, HE ENLISTED IN THE TEXAS NATIONAL GUARD AND WAS DISCHARGED DECEMBER 8, 1926.

THE ACT OF AUGUST 29, 1916, 39 STAT. 556, ESTABLISHED, INTER ALIA, THE NAVAL RESERVE FORCE, AND PROVIDED (AT PAGE 588) THAT---

NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FORCE FROM ACCEPTING EMPLOYMENT IN ANY BRANCH OF THE PUBLIC SERVICE, EXCEPT AS AN OFFICER OR ENLISTED MAN IN ANY BRANCH OF THE MILITARY SERVICE OF THE UNITED STATES OR ANY STATE THEREOF, NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO HIS RETAINER PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO HIS RETAINER PAY. (ITALICS SUPPLIED.)

SIMILAR PROVISION WAS MADE IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1925, 43 STAT. 1081, AND, ALSO, IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, SUCH LATER PROVISION READING AS FOLLOWS:

* * * PROVIDED FURTHER, THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA.

IN DECISION OF SEPTEMBER 6, 1943, 23 COMP. GEN. 173, THE FIRST QUESTION CONSIDERED THEREIN CONCERNED THE EFFECT OF THE SUBJECT OFFICER'S ENLISTMENT ON APRIL 16, 1926, IN THE TEXAS NATIONAL GUARD WHILE HOLDING A COMMISSION IN THE NAVAL RESERVE FORCE, AND IT WAS STATED THEREIN AS FOLLOWS:

THE GENERALLY ACCEPTED RULE OF LAW IS THAT WHERE THE HOLDING OF TWO PUBLIC OFFICES IS FORBIDDEN BY A CONSTITUTIONAL OR STATUTORY PROVISION THE ACCEPTANCE OF A SECOND OFFICE IS REGARDED AS A RESIGNATION OR RELINQUISHMENT OF THE FIRST OFFICE. HOWEVER THE RULE IS OTHERWISE WHERE, AS HERE, THERE IS AN EXPRESS STATUTORY PROVISION PROHIBITING THE INCUMBENT OF ONE OFFICE FROM ACCEPTING APPOINTMENT TO ANOTHER. IN SUCH CASES, THE INCUMBENT, IN THE ABSENCE OF SOME AFFIRMATIVE ACTION EFFECTIVELY AND LEGALLY TERMINATING THE FIRST OFFICE, MAY NOT LEGALLY BE APPOINTED TO ANOTHER OFFICE AND ANY SUCH ATTEMPTED APPOINTMENT OR ACCEPTANCE THREOF IS WITHOUT LEGAL EFFECT. SEE 20 COMP. GEN. 288 AND AUTHORITIES CITED THEREIN. CF. 21 COMP. GEN. 819. ACCORDINGLY, UNDER THE CIRCUMSTANCES STATED IN YOUR QUESTION, SUPRA, THE OFFICER LEGALLY COULD NOT HAVE ENLISTED IN THE NATIONAL GUARD WHILE SERVING AS A NAVAL RESERVIST, AND, THEREFORE, HE DID NOT BECOME THEREBY A DE JURE MEMBER OF SUCH ORGANIZATION. HOWEVER, AS HE CONTINUED IN HIS STATUS AS AN OFFICER IN THE NAVAL RESERVE FORCE AND NAVAL RESERVE, HE BE ENTITLED UNDER THE PROVISIONS OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, TO CREDIT FOR PAY PURPOSES FOR COMMISSIONED SERVICE IN THE SAID NAVAL RESERVE FORCE AND THE NAVAL RESERVE FOR THE PERIOD AUGUST 25, 1922, TO AUGUST 24, 1926. SINCE HE LEGALLY COULD NOT HAVE ENLISTED IN THE NATIONAL GUARD ON APRIL 16, 1926, HE WOULD NOT BE ENTITLED TO CREDIT FOR PAY PURPOSES FOR ANY OF HIS SERVICE UNDER HIS ATTEMPTED ENLISTMENT OF THAT DATE, UNLESS IT BE ESTABLISHED THAT HE RATIFIED OR AFFIRMED SUCH ENLISTMENT CONTRACT AFTER REMOVAL OF HIS DISQUALIFICATION BY THE TERMINATION OF HIS NAVAL RESERVE SERVICE ON AUGUST 24, 1926.

YOU NOW INQUIRE WHETHER ATTENDANCE AT NATIONAL GUARD DRILLS AFTER REMOVAL OF THE DISQUALIFICATION BY TERMINATION OF HIS NAVAL RESERVE SERVICE ON AUGUST 24, 1926, MAY BE REGARDED AS A RATIFICATION OR AFFIRMATION OF HIS CONTRACT OF ENLISTMENT SO AS TO AUTHORIZE THE COUNTING FOR PAY PURPOSES OF HIS ENLISTED SERVICE IN THE TEXAS NATIONAL GUARD AFTER AUGUST 24, 1926.

WHILE A PERSON WHO ENLISTS IN THE MILITARY SERVICE WHILE UNDER A DISQUALIFICATION DOES NOT, BY REMAINING IN THE SERVICE AFTER REMOVAL OF THE DISQUALIFICATION, RATIFY HIS PURPORTED CONTRACT OF ENLISTMENT IN THE STRICT SENSE OF THE WORK, IT HAS BEEN HELD THAT THE ACTS OF REMAINING IN THE SERVICE AND RECEIVING PAY AND ALLOWANCES THEREFOR ARE THE EQUIVALENT OF AN ENLISTMENT AFTER REMOVAL OF THE DISQUALIFICATION. EX PARTE HUBBARD, 182 F. 76, AND HOSKINS V. PELL, 239 F. 279.

IN THE INSTANT CASE, THE RECORD INDICATES THAT ROBINSON ATTENDED THREE NATIONAL GUARD DRILLS DURING EACH OF THE MONTHS AUGUST AND SEPTEMBER, 1926, AND TWO DRILLS DURING OCTOBER, 1926. HENCE, UNDER THE CIRCUMSTANCES, THE ACT OF REMAINING IN THE TEXAS NATIONAL GUARD, PERFORMING THE DUTIES REQUIRED AND RECEIVING PAY THEREFOR, SUBSEQUENT TO THE REMOVAL OF THE DISQUALIFICATION, MAY BE REGARDED AS TANTAMOUNT TO THE RATIFICATION OF HIS ENLISTMENT IN THE NATIONAL GUARD AFTER AUGUST 24, 1926. CF. 23 COMP. GEN. 755.

ACCORDINGLY, THE OFFICER IS ENTITLED UNDER THE PROVISIONS OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AS AMENDED, 56 STAT. 1037, TO COUNT FOR PAY PURPOSES SERVICE IN THE TEXAS NATIONAL GUARD FROM AUGUST 25, 1926, TO THE DATE OF HIS DISCHARGE, DECEMBER 8, 1926.