B-88772, OCTOBER 5, 1949, 29 COMP. GEN. 155

B-88772: Oct 5, 1949

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MAY BE REGARDED AS SERVICE IN THE NAVAL MILITIA WITHIN THE MEANING OF SAID SECTION 3A AND IS CREDITABLE FOR PAY PURPOSES THEREUNDER. 1949: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 19. AS FOLLOWS: THAT THE PAY READJUSTMENT ACT OF 1942 IS HEREBY AMENDED BY AMENDING SECTION 3A THEREOF. IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY THE SECTION UNDER WHICH THEY ARE PAID. SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD COMMISSIONS AS OFFICERS 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 ORGANIZED MILITIA PRIOR TO JULY 1.

B-88772, OCTOBER 5, 1949, 29 COMP. GEN. 155

PAY - SERVICE CREDITS - STATE NAVAL MILITIA SERVICE SERVICE IN THE NAVAL MILITIA OF A STATE DURING THE PERIOD MAY 27, 1908--- THE DATE OF THE ACT CONSTITUTING THE ORGANIZED MILITIA AS A LAND FORCE ONLY--- TO FEBRUARY 16, 1914--- THE DATE OF THE ACT MAKING THE NAVAL MILITIA A PART OF THE ORGANIZED MILITIA--- MAY NOT BE CONSIDERED AS SERVICE IN THE " ORGANIZED MILITIA" WITHIN THE CONTEMPLATION OF THE SERVICE PAY PROVISIONS OF SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED; HOWEVER, LEGAL ENLISTED SERVICE IN THE ILLINOIS NAVAL RESERVE, A PART OF THE NAVAL MILITIA, FROM MARCH 1, 1912, TO OCTOBER 22, 1913, MAY BE REGARDED AS SERVICE IN THE NAVAL MILITIA WITHIN THE MEANING OF SAID SECTION 3A AND IS CREDITABLE FOR PAY PURPOSES THEREUNDER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, OCTOBER 5, 1949:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 19, 1949, REQUESTING DECISION AS TO WHETHER, IN THE COMPUTATION OF PAY OF MEMBERS OF THE COAST GUARD, ENLISTED SERVICE IN THE ILLINOIS NAVAL RESERVE FROM MARCH 1, 1912, TO OCTOBER 22, 1913, MAY BE CONSIDERED AS SERVICE "IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916," WITHIN THE MEANING OF SECTION 1 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 729.

THE SAID SECTION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT THE PAY READJUSTMENT ACT OF 1942 IS HEREBY AMENDED BY AMENDING SECTION 3A THEREOF, AS ADDED BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942 ( PUBLIC LAW 785, SEVENTY-SEVENTH CONGRESS), TO READ AS FOLLOWS:

"SEC. 3A. IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF PERSONS PAID UNDER THE PROVISIONS OF SECTION 1, 3, 8, OR 9 OF THIS ACT, SUCH PERSONS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY THE SECTION UNDER WHICH THEY ARE PAID, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD COMMISSIONS AS OFFICERS 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 ORGANIZED MILITIA PRIOR TO JULY 1, 1916 * * * OR IN THE NAVAL MILITIA * * *.'

SECTION 1 OF THE ACT OF JANUARY 21, 1903, 32 STAT. 775, ORIGINALLY PROVIDED:

THAT THE MILITIA SHALL CONSIST OF EVERY ABLE-BODIED MALE CITIZEN OF THE RESPECTIVE STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, AND EVERY ABLE-BODIED MALE OF FOREIGN BIRTH WHO HAS DECLARED HIS INTENTION TO BECOME A CITIZEN, WHO IS MORE THAN EIGHTEEN AND LESS THAN FORTY FIVE YEARS OF AGE, AND SHALL 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 DESIGNATIONS AS MAY BE GIVEN THEM BY THE LAWS OF THE RESPECTIVE STATES OR TERRITORIES, AND THE REMAINDER TO BE KNOWN AS THE RESERVE MILITIA.

THE SAID SECTION WAS AMENDED BY THE ACT OF MAY 27, 1908, 35 STAT. 399, WHICH ADDED A PROVISO AS FOLLOWS:

* * * THAT THE PROVISIONS OF THIS ACT AND OF SECTION SIXTEEN HUNDRED AND SIXTY-ONE, REVISED STATUTES, AS AMENDED, SHALL APPLY ONLY TO THE MILITIA ORGANIZED AS A LAND FORCE.

SECTION 1 OF THE ACT OF FEBRUARY 16, 1914, 38 STAT. 283, PROVIDES:

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.

THE ILLINOIS GENERAL ASSEMBLY, BY AN ACT APPROVED JUNE 10, 1909, ESTABLISHED A MILITARY AND NAVAL CODE FOR THE STATE OF ILLINOIS AND REPEALED ALL ACTS IN CONFLICT THEREWITH, INCLUDING AN ACT APPROVED MAY 14, 1903, WHICH ALSO HAD ESTABLISHED A MILITARY AND NAVAL CODE FOR THE STATE. ARTICLE I, SECTION 2 OF THE SAID ACT OF JUNE 10, 1909, PROVIDES:

THE STATE MILITIA SHALL BE DIVIDED INTO TWO PARTS, THE ORGANIZED AND THE UNORGANIZED. THE ORGANIZED MILITIA SHALL BE FURTHER DIVIDED INTO THE " ILLINOIS NATIONAL GUARD" AND THE " ILLINOIS NAVAL RESERVE.' ALL PERSONS LIABLE TO MILITARY SERVICE AND NOT ENROLLED IN EITHER OF THE ABOVE CLASSES CONSTITUTE THE UNORGANIZED, OR RESERVE, MILITIA.

ARTICLE V, SECTIONS 1 AND 5 OF THE ABOVE ACT, PROVIDES THAT THE NAVAL RESERVE SHALL BE ORGANIZED AS A SHIP'S CREW AND THAT THE NAVAL FORCES SHALL NOT BE CONSIDERED AS ATTACHED TO ANY DIVISION OR BRIGADE OF THE LAND FORCES OF THE STATE, BUT SHALL BE UNDER THE DIRECT COMMAND OF THE COMMANDER-IN-1CHIEF.

IT IS EVIDENT THAT THE ILLINOIS NAVAL RESERVE, AS CONSTITUTED UNDER THE ACT OF JUNE 10, 1909, WAS NOT A PART OF THE STATE MILITIA ORGANIZED AS A LAND FORCE AND, HENCE, UNDER THE ACT OF MAY 27, 1908, SUPRA, MAY NOT BE CONSIDERED TO HAVE BEEN A PART OF THE " ORGANIZED MILITIA"--- AS THAT TERM IS USED IN THE ACTS OF JANUARY 21, 1903, MAY 27, 1908, AND SEPTEMBER 7, 1944--- DURING THE PERIOD MARCH 1, 1912, TO OCTOBER 22, 1913.

YOU REFER TO AN OPINION BY THE ATTORNEY GENERAL (26 OP. ATTY. GEN. 303) IN WHICH IT WAS HELD THAT THE TERMS " NATIONAL GUARD" AND " ORGANIZED MILITIA" AS USED IN THE ACT OF JANUARY 21, 1903, EMBRACE ALL THE MILITIA ORGANIZED UNDER THE LAWS OF THE STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, WHETHER INTENDED FOR LAND OR NAVAL SERVICE. THE SAID OPINION WAS RENDERED JULY 15, 1907, PRIOR TO THE ACT OF MAY 27, 1908, AND HAS NO APPLICATION HERE.

THE QUESTION, AS STATED, IS ANSWERED IN THE NEGATIVE.

HOWEVER, IT APPEARS THAT THE TERMS " NAVAL RESERVE" AND " NAVAL MILITIA" HAVE BEEN USED IN ILLINOIS STATUTES TO DENOTE THE SAME ORGANIZATION, AT LEAST SINCE 1903. SEE ARTICLE II, SECTION 1 OF THE ACT OF MAY 14, 1903, SUPRA, WHICH PROVIDED THAT THE "ORGANIZED NAVAL MILITIA SHALL BE DESIGNATED AS THE ILLINOIS NAVAL RESERVE; " ACTS OF MAY 15 AND 16, 1903, MAKING APPROPRIATIONS FOR THE " NAVAL MILITIA OF ILLINOIS; " ACT OF APRIL 17, 1909, MAKING APPROPRIATION FOR EXPENSES OF A VOYAGE BY THE NAVAL MILITIA; CHAPTER 129, SECTION 135, ILLINOIS REVISED STATUTES, 1945, PERTAINING TO SALARY OF OFFICERS OF THE NAVAL RESERVE, AND SECTION 136, PERTAINING TO COMPENSATION OF ENLISTED MEN OF THE NAVAL MILITIA.

THUS, IT REASONABLY APPEARS THAT DURING THE PERIOD MARCH 1, 1912, TO OCTOBER 22, 1913, THE " ILLINOIS NAVAL RESERVE," AS DEFINED BY THE STATE ACTS OF MAY 14, 1903, AND JUNE 10, 1909, WAS A PART OF THE " NAVAL MILITIA" WITHIN THE MEANING OF FEDERAL STATUTES.

ACCORDINGLY, LEGAL ENLISTED SERVICE IN THE ILLINOIS NAVAL RESERVE FROM MARCH 1, 1912, TO OCTOBER 22, 1913--- IF THE FACT OF SUCH SERVICE BE CLEARLY ESTABLISHED--- CONSTITUTES SERVICE IN THE NAVAL MILITIA WITHIN THE CONTEMPLATION OF SECTION 1 OF THE ACT OF SEPTEMBER 7, 1944, SUPRA, AND IS CREDITABLE FOR PAY PURPOSES UNDER THE SAID SECTION. COMPARE 23 COMP. GEN. 334.