B-46158, JANUARY 9, 1945, 24 COMP. GEN. 507

B-46158: Jan 9, 1945

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1945: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 7. AS FOLLOWS: THERE IS FORWARDED HEREWITH A LETTER FROM COMMANDER LAWRENCE L. IT IS STATED THAT COMMANDER LEWIS "PERFORMS NO DUTY AS AN OFFICER OF THE NATIONAL GUARD IN THIS STATE" HE HAVING BEEN "APPOINTED UNDER THE PROVISIONS OF SECTION 530. PARTICULAR ATTENTION IS FURTHER INVITED TO THE STATEMENT IN THE ENCLOSED COPY OF LETTER FROM THE DIRECTOR AND INSTRUCTOR. WAS NOT ASSIGNED TO AND FEDERALLY RECOGNIZED UNIT OF THE CALIFORNIA NATIONAL GUARD. SERVICE FOR PAY PURPOSES AS AN OFFICER OF THE NAVAL RESERVE IS NOT AUTHORIZED TO BE COUNTED IN HIS CASE FOR ANY PERIOD PRIOR TO FEBRUARY 24. IT IS REQUESTED THAT THE ENCLOSED FILE OF CORRESPONDENCE BE RETURNED WITH YOUR REPLY.

B-46158, JANUARY 9, 1945, 24 COMP. GEN. 507

PAY - LONGEVITY - SERVICE CREDITS - NATIONAL GUARD SERVICE A NAVAL RESERVE OFFICER WHO HAD HELD A COMMISSION IN THE STATE NATIONAL GUARD UNDER SECTION 503 OF THE CALIFORNIA MILITARY AND VETERANS CODE BECAUSE OF HIS POSITION AS A MILITARY INSTRUCTOR, WITHOUT BEING A MEMBER OF THE FEDERALLY RECOGNIZED NATIONAL GUARD AS CONTEMPLATED BY THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, MAY NOT COUNT SUCH SERVICE AS NATIONAL GUARD SERVICE FOR LONGEVITY PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 9, 1945:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 7, 1944 (JAG:11:WJG:Z) WITH ENCLOSURES, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM COMMANDER LAWRENCE L. LEWIS, D- V (S), USNR, 79895, PROTESTING AGAINST THE REQUESTED CHECK AGE OF HIS PAY IN THE AMOUNT OF $1208.94, WHICH SUM REPRESENTS ERRONEOUS PAYMENTS OF LONGEVITY PAY CREDITED TO THIS OFFICER FOR ALLEGED SERVICE IN THE CALIFORNIA NATIONAL GUARD FOR THE PERIOD SEPTEMBER 13, 1928, TO NOVEMBER 8, 1937, TOTAL OF NINE YEARS, ONE MONTH AND SIXTEEN DAYS.

IN THE ENCLOSED COPY OF FIRST ENDORSEMENT FROM THE ADJUTANT GENERAL, CALIFORNIA NATIONAL GUARD, SACRAMENTO, CALIFORNIA, DATED SEPTEMBER 14, 1937, IT IS STATED THAT COMMANDER LEWIS "PERFORMS NO DUTY AS AN OFFICER OF THE NATIONAL GUARD IN THIS STATE" HE HAVING BEEN "APPOINTED UNDER THE PROVISIONS OF SECTION 530, CHAPTER 2, OF THE MILITARY AND VETERAN'S CODE, STATE OF CALIFORNIA, 1935, WHICH AUTHORIZES THE MILITARY INSTRUCTOR TO BE APPOINTED MAJOR, OR LOWER RANK, IN MILITARY ACADEMIES HAVING EIGHT BOYS UNIFORMED AND DRILLED IN DIRECT ACCORDANCE WITH REGULATIONS OF THE UNITED STATES ARMY.'

PARTICULAR ATTENTION IS FURTHER INVITED TO THE STATEMENT IN THE ENCLOSED COPY OF LETTER FROM THE DIRECTOR AND INSTRUCTOR, NAVAL RESERVES, ELEVENTH NAVAL DISTRICT, DATED OCTOBER 12, 1937, TO THE EFFECT THAT MR. LAWRENCE L. LEWIS, CANDIDATE FOR COMMISSION IN THE U.S. NAVAL RESERVE,"HOLDS NO COMMISSION IN ANY MILITARY ORGANIZATION OF THE U.S. GOVERNMENT.'

FROM THE EVIDENCE BEFORE THE NAVY DEPARTMENT IN THIS CASE, IT APPEARS THAT COMMANDER LEWIS, DURING THE PERIOD SEPTEMBER 13, 1928, TO NOVEMBER 8, 1937, WAS NOT ASSIGNED TO AND FEDERALLY RECOGNIZED UNIT OF THE CALIFORNIA NATIONAL GUARD, AND PERFORMED NO DUTY AS AN OFFICER IN THE CALIFORNIA NATIONAL GUARD, AND THAT, ACCORDINGLY, SERVICE FOR PAY PURPOSES AS AN OFFICER OF THE NAVAL RESERVE IS NOT AUTHORIZED TO BE COUNTED IN HIS CASE FOR ANY PERIOD PRIOR TO FEBRUARY 24, 1938, THE DATE OF ACCEPTANCE OF HIS COMMISSION AS A LIEUTENANT COMMANDER, D-V (S),

THE NAVY DEPARTMENT THEREFORE PROPOSES TO CALL UP COMMANDER LEWIS TO REFUND TO THE UNITED STATES THE SUM OF $1,208.94 AS LONGEVITY PAY ERRONEOUSLY CREDITED FOR ALLEGED PRIOR SERVICE AS A MEMBER OF THE CALIFORNIA NATIONAL GUARD AUTHORIZED TO BE COUNTED FOR PAY PURPOSES.

BEFORE ADVISING COMMANDER LEWIS TO THE ABOVE EFFECT, THE NAVY DEPARTMENT WOULD APPRECIATE AN EARLY EXPRESSION OF YOUR VIEWS AS TO ITS CONCLUSION IN THIS CASE.

IT IS REQUESTED THAT THE ENCLOSED FILE OF CORRESPONDENCE BE RETURNED WITH YOUR REPLY.

IT APPEARS FROM THE ENCLOSURES THAT SOME TIME IN 1937 LAWRENCE L. LEWIS APPLIED FOR A COMMISSION IN THE NAVAL RESERVE AND THAT THE APPLICATION WAS REJECTED BECAUSE IT APPEARED THAT HE BELONGED TO A MILITARY OR NAVAL ORGANIZATION AND, HENCE, WAS INELIGIBLE FOR MEMBERSHIP IN THE NAVAL RESERVE UNDER THE PROVISIONS OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, WHICH PROVIDES THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION, EXCEPT THE NAVAL MILITIA.

FOLLOWING ACCEPTANCE OF HIS RESIGNATION NOVEMBER 8, 1937, AS A MAJOR IN THE CALIFORNIA NATIONAL GUARD, HE WAS ISSUED A COMMISSION AS A LIEUTENANT COMMANDER DV (S), USNR, ON FEBRUARY 3, 1938, WHICH COMMISSION WAS ACCEPTED BY HIM ON FEBRUARY 24, 1938. THE RECORD IS SILENT AS TO WHEN HE REPORTED FOR ACTIVE DUTY AS AN OFFICER IN THE NAVAL RESERVE BUT UNDER DATE OF JULY 7, 1943, HE PRESENTED THE DISBURSING OFFICER, UNITED STATES NAVAL TRAINING STATION, BAINBRIDGE, MARYLAND, A STATEMENT OF SERVICE TO THE EFFECT THAT HE HAD COMPLETED ON THAT DATE 14 YEARS AND 6 MONTHS SERVICE FOR PAY PURPOSES, WHICH SERVICE INCLUDED 9 YEARS, 1 MONTH AND 16 DAYS SERVICE (SIC) IN THE CALIFORNIA NATIONAL GUARD COVERING THE PERIOD SEPTEMBER 13, 1928, TO NOVEMBER 8, 1937. THIS STATEMENT OF SERVICE CONTAINED, ALSO, THE FOLLOWING CERTIFICATE:

I CERTIFY THAT THE ABOVE IS A TRUE AND CORRECT STATEMENT OF MY PRIOR SERVICE. IN THE EVENT OF ANY ERRORS, I AUTHORIZE CHECK AGE OF MY PAY ACCOUNT TO ADJUST ANY OVERPAYMENT RESULTING THEREFROM.

PRESUMABLY THE OFFICER WAS CREDITED LONGEVITY PAY ON THE BASIS OF THE SERVICE SHOWN IN THE STATEMENT OF SERVICE JUST REFERRED TO AND THE AMOUNT $1,208.94 MENTIONED IN YOUR LETTER REPRESENTS THE LONGEVITY INCREASE RESULTING FROM INCLUDING THE PERIOD FROM NOVEMBER 13, 1928, TO NOVEMBER 8, 1937. IT IS STATED THAT THE OFFICER WAS APPOINTED A MAJOR IN THE NATIONAL GUARD OF CALIFORNIA UNDER AUTHORITY OF SECTION 530, CHAPTER 2 OF THE MILITARY AND VETERANS CODE, STATE OF CALIFORNIA, 1935. SAID PROVISION APPEARS IN PART II OF THE CODE, THE FIRST CHAPTER REFERRING TO HIGH SCHOOL CADETS AND THE SECOND CHAPTER, CONSISTING SOLELY OF SECTION 530, PROVIDES AS FOLLOWS:

COMMISSION OF MILITARY INSTRUCTOR OF ACADEMY: AUTHORITY LIMITED: REVOCATION OF COMMISSION. IN ANY MILITARY ACADEMY HAVING NOT LESS THAN EIGHTY BOYS, UNIFORMED, DRILLED, AND INSTRUCTED IN STRICT ACCORDANCE WITH THE TACTICS OF THE REGULAR UNITED STATES ARMY, AND IN WHICH THE INSTRUCTION IS CONDUCTED IN STRICT ACCORDANCE WITH MILITARY PRINCIPLES, THE MILITARY INSTRUCTOR OF SUCH ACADEMY REGULARLY ELECTED BY THE BOARD OF TRUSTEES OR OTHER LAWFUL AUTHORITY OF THE ACADEMY, MAY BE COMMISSIONED IN THE NATIONAL GUARD WITH THE RANK OF MAJOR OR LOWER RANK. SUCH OFFICER SHALL EXERCISE NO AUTHORITY OR COMMAND EXCEPT AS MILITARY INSTRUCTOR OF SUCH ACADEMY. SUCH COMMISSION MAY BE REVOKED BY THE ADJUTANT GENERAL, UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE. PART 1 OF SAID CODE DEALS EXTENSIVELY WITH THE MILITIA AND THE NATIONAL GUARD AND SECTION 101 THEREOF PROVIDES:

FEDERAL LAWS ADOPTED. ALL ACTS OF THE CONGRESS OF THE UNITED STATES RELATING TO THE CONTROL, ADMINISTRATION AND GOVERNMENT OF THE ARMY OF THE UNITED STATES AND RELATING TO THE CONTROL, ADMINISTRATION, AND GOVERNMENT OF THE UNITED STATES NAVY, TOGETHER WITH THE RULES AND REGULATIONS FOR THE GOVERNMENT OF THE NATIONAL GUARD AND NAVAL RESERVE OR NAVAL MILITIA, SO FAR AS THE SAME ARE NOT INCONSISTENT WITH RIGHTS RESERVED TO THIS STATE AND GUARANTEED UNDER THE CONSTITUTION OF THIS STATE, CONSTITUTE THE RULES AND REGULATIONS FOR THE GOVERNMENT OF THE MILITIA.

IT HAS BEEN HELD THAT THE NATIONAL GUARD SERVICE REFERRED TO IN THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, REFERS TO THE NATIONAL GUARD ESTABLISHED BY THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 166, AS AMENDED, AND HAS NO REFERENCE TO THAT PART OF A STATE NATIONAL GUARD HAVING NO RELATION TO THE SAID NATIONAL DEFENSE ACT.

SECTIONS 71 AND 75 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 4B (A) AND 113, RESPECTIVELY, PROVIDE AS FOLLOWS:

(A) " NATIONAL GUARD" OR " NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA" MEANS THAT PORTION OF THE ORGANIZED MILITIA OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, ACTIVE AND INACTIVE, FEDERALLY RECOGNIZED AS PROVIDED IN THIS TITLE AND ORGANIZED, ARMED, AND EQUIPPED IN WHOLE OR IN PART AT FEDERAL EXPENSE AND OFFICERED AND TRAINED UNDER PARAGRAPH 16, SECTION 8, ARTICLE I OF THE CONSTITUTION.

S. 113. EXAMINATIONS FOR COMMISSIONS.

THE PROVISIONS OF THIS TITLE SHALL NOT APPLY TO ANY PERSON HEREAFTER APPOINTED AS AN OFFICER OF THE NATIONAL GUARD UNLESS HE FIRST SHALL HAVE SUCCESSFULLY PASSED SUCH TEST AS TO HIS PHYSICAL, MORAL, AND PROFESSIONAL FITNESS AS THE PRESIDENT SHALL PRESCRIBE. THE EXAMINATION TO DETERMINE SUCH QUALIFICATIONS FOR APPOINTMENT SHALL BE CONDUCTED BY A BOARD OF THREE COMMISSIONED OFFICERS APPOINTED BY THE SECRETARY OF WAR FROM THE REGULAR ARMY OF THE NATIONAL GUARD OF THE UNITED STATES, OR BOTH. THE EXAMINATION HEREIN PROVIDED FOR MAY BE HELD PRIOR TO THE ORIGINAL APPOINTMENT OR PROMOTION OR ANY INDIVIDUAL AS AN OFFICER OR WARRANT OFFICER, AND IF THE APPLICANT HAS BEEN QUALIFIED HE MAY BE ISSUED A CERTIFICATE OF ELIGIBILITY BY THE CHIEF OF THE NATIONAL GUARD BUREAU, WHICH CERTIFICATE, IN THE EVENT OF APPOINTMENT OR PROMOTION WITHIN TWO YEARS TO THE OFFICE FOR WHICH HE WAS FOUND QUALIFIED, SHALL ENTITLE THE HOLDER TO FEDERAL RECOGNITION WITHOUT FURTHER EXAMINATION, EXCEPT AS TO HIS PHYSICAL CONDITION.

IT APPEARS EVIDENT THAT THE OFFICER IN THE PRESENT CASE WAS NOT A MEMBER OF THE FEDERALLY RECOGNIZED NATIONAL GUARD AS CONTEMPLATED BY THE NATIONAL DEFENSE ACT, AS AMENDED, SO AS TO ENTITLE HIM TO COUNT THE TIME DURING WHICH HE HELD AN APPOINTMENT UNDER STATE AUTHORITY. AN OFFICER OF THE NAVAL RESERVE IS ENTITLED TO LONGEVITY CREDIT FOR SERVICE IN THE NATIONAL GUARD ONLY AS TO SUCH SERVICE DURING THE PERIOD OF FEDERAL RECOGNITION AFTER APPOINTMENT UNDER THE CONDITIONS PRESCRIBED BY STATUTE. SEE 22 COMP. GEN. 439, 442, ANSWER TO QUESTION 3. THEREFORE, ASIDE FROM THE DIFFICULTY IN RECONCILING AN ALLEGED APPOINTMENT EFFECTIVE IN 1928 UNDER AUTHORITY OF A STATE ENACTMENT OF 1935, IT IS NOTED THAT THERE HAS BEEN NO SUGGESTION THAT THE OFFICER WAS APPOINTED TO ANY PARTICULAR ARM OF THE SERVICE, ALL OF WHICH LEADS DEFINITELY TO THE CONCLUSION THAT HIS COMMISSION IN THE STATE NATIONAL GUARD UNDER SECTION 530 OF THE CALIFORNIA MILITARY AND VETERANS CODE WAS MERELY AN HONORARY TITLE HAVING NO CONNECTION WITH THE FEDERALLY RECOGNIZED NATIONAL GUARD AS CONTEMPLATED BY FEDERAL STATUTE. HENCE, NO PART OF THE PERIOD DURING WHICH HE HELD SUCH COMMISSION MAY BE CONSIDERED NATIONAL GUARD SERVICE WITHIN THE MEANING OF THE PAY READJUSTMENT ACT, AS AMENDED, FOR THE PURPOSE OF LONGEVITY INCREASE IN PAY. ACCORDINGLY, ANY CREDIT OF PAY BASED UPON THE PERIOD SEPTEMBER 13, 1928, TO NOVEMBER 8, 1937, WERE ERRONEOUS AND SHOULD BE RECOVERED. THE FILE OF CORRESPONDENCE IS RETURNED HEREWITH AS REQUESTED.