B-91351, APRIL 12, 1950, 29 COMP. GEN. 402

B-91351: Apr 12, 1950

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PAY - ACTIVE DUTY - MEMBERS OF THE NATIONAL GUARD A MEMBER OF THE NATIONAL GUARD WHO REPORTS TO HIS COMPANY RENDEZVOUS AT THE CALL OF THE PRESIDENT IS NOT IN THE FEDERAL SERVICE NOR ENTITLED TO PAY FROM FEDERAL FUNDS UNTIL HE MEETS CERTAIN CONDITIONS. IS MUSTERED INTO FEDERAL SERVICE. SO THAT A MEMBER WHO FAILS TO MEET SUCH QUALIFICATIONS IS IN EFFECT REJECTED FOR MUSTER AND IS NOT ENTITLED TO PAY FROM FEDERAL FUNDS. 1950: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 17. THE ADJUTANT GENERAL OF THE ARMY ADVISED THIS OFFICE THAT YOU WERE ENLISTED MARCH 13. WERE DISCHARGED JULY 20. YOU WERE ALLOWED THE SUM OF $6 AS PAY DUE YOU FROM JULY 15 TO 20. YOUR CLAIM FOR THE $60 BONUS WAS DISALLOWED IN THE SAME SETTLEMENT FOR THE REASON THAT AS YOU WERE "NEVER ACTUALLY MUSTERED INTO FEDERAL SERVICE BUT (WERE) DISCHARGED FROM (THE) NATIONAL GUARD BEFORE MUSTER INTO FEDERAL SERVICE THERE IS NO AUTHORITY FOR PAYMENT OF THE BONUS AS CLAIMED.'.

B-91351, APRIL 12, 1950, 29 COMP. GEN. 402

PAY - ACTIVE DUTY - MEMBERS OF THE NATIONAL GUARD A MEMBER OF THE NATIONAL GUARD WHO REPORTS TO HIS COMPANY RENDEZVOUS AT THE CALL OF THE PRESIDENT IS NOT IN THE FEDERAL SERVICE NOR ENTITLED TO PAY FROM FEDERAL FUNDS UNTIL HE MEETS CERTAIN CONDITIONS, INCLUDING THAT OF BEING FOUND MORALLY, MENTALLY, AND PHYSICALLY QUALIFIED, AND IS MUSTERED INTO FEDERAL SERVICE, SO THAT A MEMBER WHO FAILS TO MEET SUCH QUALIFICATIONS IS IN EFFECT REJECTED FOR MUSTER AND IS NOT ENTITLED TO PAY FROM FEDERAL FUNDS.

ASSISTANT COMPTROLLER GENERAL YATES TO JOHN M. HELSEL, APRIL 12, 1950:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 17, 1948 (1949), REFERRED TO THIS OFFICE BY THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WHEREIN YOU REQUEST ADVICE WHY YOU MAY NOT BE PAID FOR YOUR SERVICE WHILE IN THE UNITED STATES ARMY. ALSO YOU STATE THAT YOU DID NOT RECEIVE THE $60 BONUS AT THE TIME OF YOUR DISCHARGE.

UNDER DATE OF APRIL 2, 1928, THE ADJUTANT GENERAL OF THE ARMY ADVISED THIS OFFICE THAT YOU WERE ENLISTED MARCH 13, 1917, AT ALTOONA, PENNSYLVANIA, AND ASSIGNED TO COMPANY G, 10TH INFANTRY, PENNSYLVANIA NATIONAL GUARD; THAT YOU REPORTED AT COMPANY RENDEZVOUS FOR FEDERAL SERVICE ON JULY 15, 1917, AND WERE DISCHARGED JULY 20, 1917, BY REASON OF PHYSICAL DISABILITY WHICH EXISTED PRIOR TO YOUR ENTRY INTO THE SERVICE. BY SETTLEMENT DATED MAY 5, 1928, YOU WERE ALLOWED THE SUM OF $6 AS PAY DUE YOU FROM JULY 15 TO 20, 1917. YOUR CLAIM FOR THE $60 BONUS WAS DISALLOWED IN THE SAME SETTLEMENT FOR THE REASON THAT AS YOU WERE "NEVER ACTUALLY MUSTERED INTO FEDERAL SERVICE BUT (WERE) DISCHARGED FROM (THE) NATIONAL GUARD BEFORE MUSTER INTO FEDERAL SERVICE THERE IS NO AUTHORITY FOR PAYMENT OF THE BONUS AS CLAIMED.' SETTLEMENT DATED JUNE 28, 1928, DISALLOWED YOUR CLAIM FOR PAY FROM MARCH 13, 1917, TO JULY 14, 1917, FOR THE REASON THAT SINCE YOU DID NOT REPORT TO YOUR COMPANY RENDEZVOUS UNTIL JULY 15, 1917, YOU WERE NOT ENTITLED TO PAY PRIOR TO THAT DATE.

WHILE THE DISALLOWANCE OF YOUR CLAIM IS NOT NOW PROPERLY A MATTER FOR REVIEW IN VIEW OF ALL THE CIRCUMSTANCES AND THE LENGTH OF TIME WHICH HAS ELAPSED SINCE THE SAID CLAIMS WERE DISALLOWED, IT IS PROPER TO POINT OUT THAT YOUR RIGHT TO PAYMENT OF THE $60 BONUS UNDER THE ACT OF FEBRUARY 24, 1919, 40 STAT. 1151, AND TO RECEIVE PAY AND ALLOWANCE FROM FEDERAL FUNDS WAS DEPENDENT ON WHETHER OR NOT YOU SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES. THE DECISIONS OF THIS OFFICE HAVE BEEN UNIFORM IN HOLDING THAT A NATIONAL GUARDSMAN WHO REPORTS TO HIS COMPANY RENDEZVOUS AT THE CALL OF THE PRESIDENT IS NOT IN FEDERAL SERVICE OR ENTITLED TO PAY FROM FEDERAL FUNDS UNLESS HE MEETS CERTAIN CONDITIONS PRECEDENT, INCLUDING THAT OF BEING FOUND MORALLY, MENTALLY, AND PHYSICALLY QUALIFIED, AND IS MUSTERED INTO FEDERAL SERVICE. IF HE IS FOUND NOT TO POSSESS THE QUALITIES OF MORAL, MENTAL, OR PHYSICAL FITNESS, HE IS IN EFFECT REJECTED FOR MUSTER AND IS NOT ENTITLED TO PAY FROM FEDERAL FUNDS. SEE 3 COMP. GEN. 258. THE RIGHT TO PAY FROM THE DATE OF REPORTING AT THE COMPANY RENDEZVOUS IS AN INCHOATE RIGHT TO BE PERFECTED BY BEING ACCEPTED FOR FEDERAL SERVICE AND MUSTERED AFTER DETERMINATION BY PROPER FEDERAL OFFICERS THAT THE SOLDIER IS FULLY QUALIFIED FOR SUCH SERVICE. AS YOU WERE FOUND PHYSICALLY DISQUALIFIED YOU NEITHER FORMALLY NOR CONSTRUCTIVELY ENTERED INTO THE ACTUAL SERVICE OF THE UNITED STATES AND WHILE YOU MAY HAVE SERVED WITH YOUR ORGANIZATION WHILE IT WAS IN THE SERVICE OF THE UNITED STATES YOU WERE NOT IN THE SERVICE OF THE UNITED STATES.

THE FACT, IF IT BE A FACT, THAT OTHERS MAY HAVE RECEIVED THE $60 BONUS FOR SERVICE SIMILAR TO YOURS DOES NOT ALTER THE FACT THAT YOU DID NOT SERVE IN THE MILITARY SERVICE OF THE UNITED STATES WITHIN THE MEANING OF THE STATUTE PROVIDING FOR SUCH BONUS AND YOU DO NOT HAVE A RIGHT TO RECEIVE A SIMILAR ERRONEOUS PAYMENT. AS THE PAYMENT OF $6 MADE YOU FROM FEDERAL FUNDS FOR THE PERIOD JULY 15 TO 20, 1917, WAS MADE UNDER A FORMER INTERPRETATION OF THE LAW, IT WILL NOT BE DISTURBED.