B-97176, NOVEMBER 21, 1950, 30 COMP. GEN. 199

B-97176: Nov 21, 1950

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IS NOT ENTITLED TO FEDERAL PAY UNDER THE NATIONAL DEFENSE ACT. FOR ANY DRILLS OR FIELD TRAINING PERFORMED IN THE NEW POSITION PRIOR TO THE DATE HE WAS FEDERALLY RECOGNIZED AS AN OFFICER IN THE AIR FORCE NATIONAL GUARD. IN PARAGRAPH 2 OF YOUR LETTER THE FACTS ARE STATED BRIEFLY. AS FOLLOWS: FIRST LIEUTENANT BURNS WAS RELIEVED FROM DUTY AS BATTALION ADJUTANT. THE OFFICER WAS FEDERALLY RECOGNIZED AS A FIRST LIEUTENANT. WAS NOT FEDERALLY RECOGNIZED AS A FIRST LIEUTENANT. FOR WHICH PAY IS CLAIMED ON THE ATTACHED SUPPLEMENTAL PAY ROLLS AS A FEDERALLY RECOGNIZED FIRST LIEUTENANT. PROVIDES: 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 TESTS AS TO HIS PHYSICAL.

B-97176, NOVEMBER 21, 1950, 30 COMP. GEN. 199

NATIONAL GUARD - ARMORY DRILL AND FIELD TRAINING PAY - FEDERAL RECOGNITION REQUIREMENT A FEDERALLY RECOGNIZED NATIONAL GUARD ENGINEER OFFICER WHO TRANSFERRED TO THE AIR FORCE NATIONAL GUARD AND ASSUMED THE DUTIES OF THE AIR FORCE POSITION, ALTHOUGH NOT AT THAT TIME FEDERALLY RECOGNIZED AS AN AIR FORCE OFFICER, IS NOT ENTITLED TO FEDERAL PAY UNDER THE NATIONAL DEFENSE ACT, AS AMENDED, FOR ANY DRILLS OR FIELD TRAINING PERFORMED IN THE NEW POSITION PRIOR TO THE DATE HE WAS FEDERALLY RECOGNIZED AS AN OFFICER IN THE AIR FORCE NATIONAL GUARD.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. E. E. ENGER, DEPARTMENT OF THE ARMY, NOVEMBER 21, 1950:

BY FIRST ENDORSEMENT DATED AUGUST 1, 1950, THE CHIEF OF FINANCE REFERRED TO THIS OFFICE YOUR LETTER OF APRIL 18, 1950, FORWARDING FOR ADVANCE DECISION SUPPLEMENTAL ARMORY DRILL PAY ROLLS OF HEADQUARTERS, 126TH BOMB GROUP. 66TH FIGHTER WING, ILLINOIS NATIONAL GUARD, FOR THE PERIODS FROM JUNE 1, 1949, TO AUGUST 31, 1949, AND SEPTEMBER 1, 1949, TO NOVEMBER 30, 1949, AND SUPPLEMENTAL FIELD TRAINING PAY ROLL OF THAT ORGANIZATION FOR THE PERIOD FROM JULY 30, 1949, TO AUGUST 13, 1949, CONTAINING THE CLAIMS FOR PAY BY EUGENE E. BURNS, FIRST LIEUTENANT, DURING THE PERIOD JULY 1 TO NOVEMBER 30, 1949.

IN PARAGRAPH 2 OF YOUR LETTER THE FACTS ARE STATED BRIEFLY, AS FOLLOWS:

FIRST LIEUTENANT BURNS WAS RELIEVED FROM DUTY AS BATTALION ADJUTANT, 1903D AVIATION ENGINEER BATTALION, AND APPOINTED FIRST LIEUTENANT AIR FORCE NATIONAL GUARD, AND ASSIGNED DUTY AS SPECIAL SERVICE OFFICER, HEADQUARTERS 126TH BOMB GROUP, PURSUANT TO AUTHORITY CONTAINED IN PARAGRAPH 9, SPECIAL ORDER 150, AGO ILLINOIS DATED AND EFFECTIVE 1 JULY 1949. THE TRANSFER INVOLVING A CHANGE IN SERVICE AND DUTY ASSIGNMENT REQUIRED A NEW APPOINTMENT AND FEDERAL RECOGNITION UNDER THE PROVISIONS OF CHANGE 3, PARAGRAPH 22B, NGR 20 DATED 22 NOVEMBER 1948. AT TIME OF TRANSFER, 1 JULY 1949, THE OFFICER WAS FEDERALLY RECOGNIZED AS A FIRST LIEUTENANT, CORPS OF ENGINEERS, AS OF 24 JANUARY 1949, BUT WAS NOT FEDERALLY RECOGNIZED AS A FIRST LIEUTENANT, AIR FORCE NATIONAL GUARD, UNDER THE APPOINTMENT, UNTIL 25 OCTOBER 1949. PRIOR TO DATE OF FEDERAL RECOGNITION UNDER THE NEW APPOINTMENT ON 25 OCTOBER 1949, THE OFFICER ATTENDED 4 DRILLS IN JULY 1949, 2 DRILLS IN AUGUST 1949, 5 DRILLS IN SEPTEMBER 1949, 2 DRILLS IN OCTOBER 1949, AND ATTENDED FIELD TRAINING FROM 30 JULY TO 13 AUGUST 1949, FOR WHICH PAY IS CLAIMED ON THE ATTACHED SUPPLEMENTAL PAY ROLLS AS A FEDERALLY RECOGNIZED FIRST LIEUTENANT, CORPS OF ENGINEERS.

SECTION 75 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 113, PROVIDES:

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 TESTS 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 THE ARMY FROM THE REGULAR ARMY OR THE NATIONAL GUARD OF THE UNITED STATES, OR BOTH. THE EXAMINATION HEREIN PROVIDED FOR MAY BE HELD PRIOR TO THE ORIGINAL APPOINTMENT OR PROMOTION OF ANY INDIVIDUAL AS AN OFFICER OR WARRANT OFFICER AND IF THE APPLICANT HAS BEEN FOUND 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.

UPON BEING FEDERALLY RECOGNIZED SUCH OFFICERS AND WARRANT OFFICERS MAY BE APPOINTED IN THE NATIONAL GUARD OF THE UNITED STATES.

INSOFAR AS HERE PERTINENT, PARAGRAPH 22B, NGR 20, DATED DECEMBER 11, 1947, AS CHANGED BY CHANGES NO. 3, DATED NOVEMBER 22, 1948, PROVIDES AS FOLLOWS:

B. INVOLVING CHANGE.--- A TRANSFER INVOLVING A CHANGE IN GRADE, OR IN ARM OR SERVICE, REQUIRES A NEW APPOINTMENT AND OATH OF OFFICE, AND THE OFFICER IN QUESTION MUST AGAIN SEEK FEDERAL RECOGNITION. IN SUCH CASES, RECOGNITION INVOLVES THE SAME APPLICATION, PROCEDURE, AND EXAMINATION AS PRESCRIBED FOR AN ORIGINAL APPOINTMENT * * *.

IN DECISION OF JUNE 22, 1940, B-9483, A SIMILAR CASE, IT WAS STATED:

IT WAS HELD IN A-15117, DATED SEPTEMBER 22, 1926, THAT WHERE AN OFFICER OF THE NATIONAL GUARD IS PROMOTED BY A COMMISSION OF THE GOVERNOR OF A STATE AND CONTINUES TO FUNCTION IN THE GRADE HELD PRIOR THERETO PENDING NOTICE OF FEDERAL RECOGNITION IN THE GRADE TO WHICH PROMOTED, HE IS ENTITLED TO PAY AS AN OFFICER OF THE GRADE FROM WHICH PROMOTED UNTIL NOTICE OF FEDERAL RECOGNITION IS RECEIVED.

COLONEL HOWE, HOWEVER, APPEARS FROM THE FACTS FOR CONSIDERATION NOT TO HAVE CONTINUED TO FUNCTION IN THE GRADE OF COLONEL AFTER THE EFFECTIVE DATE OF HIS STATE COMMISSION BUT, ON THE OTHER HAND, APPEARS TO HAVE ASSUMED THE DUTIES OF THE GRADE TO WHICH PROMOTED ALTHOUGH NOT FEDERALLY RECOGNIZED.

SEE, ALSO, 15 COMP. GEN. 280; AND DECISION OF MARCH 13, 1942, B 17873.

LIEUTENANT BURNS DID NOT CONTINUE TO FUNCTION AS AN ENGINEER OFFICER BUT, APPARENTLY EFFECTIVE JULY 1, 1949, ASSUMED THE DUTIES OF THE AIR FORCE POSITION TO WHICH TRANSFERRED, ALTHOUGH NOT FEDERALLY RECOGNIZED IN THAT STATUS. HIS STATUS AS A FIRST LIEUTENANT OF ENGINEERS, IN WHICH HE PERFORMED NO DUTY, DID NOT QUALIFY HIM FOR FEDERAL PAY UNDER THE NATIONAL DEFENSE ACT SUBSEQUENT TO JUNE 30, 1949, IN EITHER THAT CAPACITY OR AS A FIRST LIEUTENANT OF THE AIR FORCE. AND, SINCE HE WAS NOT FEDERALLY RECOGNIZED AS A FIRST LIEUTENANT IN THE AIR FORCE UNTIL OCTOBER 25, 1949, HE WAS NOT ENTITLED TO FEDERAL PAY AS AN AIR FORCE OFFICER PRIOR TO THAT DATE. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE SUPPLEMENTAL PAY ROLLS, WHICH ARE RETURNED HEREWITH, FOR ANY DRILLS OR FIELD TRAINING PERFORMED AFTER JUNE 30, 1949, AND PRIOR TO OCTOBER 25, 1949. IF OTHERWISE PROPER, PAYMENT OF ARMORY DRILL PAY AND FLYING PAY EARNED SUBSEQUENT TO OCTOBER 24, 1949, MAY BE MADE ON THE SUPPLEMENTAL PAY ROLL COVERING THE PERIOD FROM SEPTEMBER 1, 1949, TO NOVEMBER 30, 1949.