JULY 22, 1922, 2 COMP. GEN. 43

JULY 22, 1922, 2 COMP. GEN. 43

DRILL PAY - SUPERNUMERARY NONCOMMISSIONED OFFICERS OF THE NATIONAL GUARD THE FAILURE TO REDUCE A SUPERNUMERARY MASTER SERGEANT IN THE NATIONAL GUARD TO THE GRADE OF PRIVATE IN ACCORDANCE WITH INSTRUCTIONS OF THE WAR DEPARTMENT DOES NOT ENTITLE SUCH NONCOMMISSIONED OFFICER TO THE PAY OF MASTER SERGEANT AFTER THE DATE ON WHICH HE BECAME SUPERNUMERARY, BUT IF THE TOTAL NUMBER OF ENLISTED MEN IN HIS COMPANY DID NOT EXCEED THE NUMBER LAWFULLY PRESCRIBED FOR SUCH COMPANIES OF THE NATIONAL GUARD HE MAY BE PAID AS A PRIVATE FOR THE DRILLS ATTENDED.

COMPTROLLER GENERAL MCCARL TO MAJ. M. T. LEGG, UNITED STATES ARMY, JULY 22, 1922.

THERE WAS RECEIVED JUNE 28 YOUR LETTER OF MAY 8, 1922, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO PAY SUPPLEMENTAL PAY ROLL THEREWITH TRANSMITTED OF THE SERVICE COMPANY, ONE HUNDRED AND FIFTH INFANTRY, NEW YORK NATIONAL GUARD, FOR THE PERIOD JULY 1 TO DECEMBER 31, 1921, CONTAINING THE CLAIM OF MASTER SERGEANT PATRICK J. BRENNAN, FOR ATTENDANCE AT 27 DRILLS OF THE COMPANY.

IT APPEARS THAT UNDER TABLES OF ORGANIZATION FOR AN INFANTRY SERVICE COMPANY FOUR MASTER SERGEANTS ARE AUTHORIZED; THAT UPON RECEIPT OF THE ROLLS OF THE COMPANY FOR THE PERIOD IN QUESTION THE FACT WAS DISCLOSED THAT THE COMPANY HAD HAD FIVE MASTER SERGEANTS DURING THE ENTIRE PERIOD; THAT THE JUNIOR MASTER SERGEANT, CLAIMANT IN THIS CASE, WAS NOT PAID WITH THE BALANCE OF THE COMPANY, AND THAT THE PURPOSE OF YOUR SUBMISSION IS TO DETERMINE HIS LEGAL RIGHT TO PAY, EITHER AS A MASTER SERGEANT OR OTHERWISE. THIS IS A SATISFACTORY EXPLANATION OF THE PAY ROLL TO AUTHORIZE CONSIDERATION OF THE INDIVIDUAL MATTER PRESENTED. SEE DECISION OF JUNE 30, 1922 (10 MS., COMP. GEN., 2488).

SECTION 60 OF THE NATIONAL DEFENSE ACT, 39 STAT., 197, AS AMENDED BY SECTION 36 OF THE ACT OF JUNE 4, 1920, 41 STAT., 780, PROVIDES:

ORGANIZATION OF NATIONAL GUARD UNITS.--- EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE ORGANIZATION OF THE NATIONAL GUARD, INCLUDING THE COMPOSITION OF ALL UNITS THEREOF, SHALL BE THE SAME AS THAT WHICH IS OR MAY HEREAFTER BE PRESCRIBED FOR THE REGULAR ARMY, SUBJECT IN TIME OF PEACE TO SUCH GENERAL EXCEPTIONS AS MAY BE AUTHORIZED BY THE SECRETARY OF WAR. AND THE PRESIDENT MAY PRESCRIBE THE PARTICULAR UNIT OR UNITS, AS TO BRANCH OR ARM OF SERVICE, TO BE MAINTAINED IN EACH STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA IN ORDER TO SECURE A FORCE WHICH,WHEN COMBINED, SHALL FORM COMPLETE HIGHER TACTICAL UNITS.

UNTIL JULY 1, 1921, COMPANIES AND CORRESPONDING UNITS OF THE NATIONAL GUARD MAY BE RECOGNIZED AT A MINIMUM ENLISTED STRENGTH OF FIFTY: PROVIDED, THAT THE NATIONAL GUARD OF ANY STATE, TERRITORY, AND THE DISTRICT OF COLUMBIA MAY INCLUDE SUCH DETACHMENTS OR PARTS OF UNITS AS MAY BE NECESSARY IN ORDER TO FORM COMPLETE TACTICAL UNITS WHEN COMBINED WITH TROOPS OF OTHER STATES.

IN CAPTAIN GENAWAY'S CASE (5 MS., COMP. GEN., 534), JANUARY 13, 1922, HAVING BEFORE ME MILITIA BUREAU CIRCULAR LETTER NO. 18, DATED MARCH 17, 1921, IT WAS SAID:

* * * NO GENERAL EXCEPTION BY THE SECRETARY OF WAR, APPLICABLE ALIKE TO ALL BATTALION HEADQUARTERS COMPANIES, IS SHOWN, AND NO PAYMENT TO THE SUPERNUMERARY OFFICER IS AUTHORIZED.

THE TERM "GENERAL EXCEPTIONS" COMPREHENDS EXCEPTIONS APPLICABLE TO ALL UNITS OF A GIVEN CHARACTER; AS, FOR EXAMPLE, IF INFANTRY COMPANIES OF THE REGULAR ARMY HAVE A COMPLEMENT OF THREE COMMISSIONED OFFICERS, ALL INFANTRY COMPANIES OF THE NATIONAL GUARD MAY BE AUTHORIZED TO HAVE A LESS OR GREATER NUMBER. A DIRECTION TO RETAIN SURPLUS OFFICERS IN THOSE UNITS HAVING SURPLUS OFFICERS AFTER REORGANIZATION IS NOT A "GENERAL EXCEPTION" MODIFYING THE ORGANIZATION OF ALL UNITS BUT IS A SPECIAL EXCEPTION APPLICABLE ONLY TO SUCH UNITS AS HAVE SURPLUS OFFICERS, AND IS NOT WITHIN THE EXCEPTION AS TO UNIFORMITY OF ORGANIZATION OF THE NATIONAL GUARD WITH THE ORGANIZATION OF THE REGULAR ARMY CONTAINED IN THE LAW.

THE CLAIM HERE CONSIDERED IS THAT OF A NONCOMMISSIONED OFFICER--- AN ENLISTED MAN--- AND THE RULE IS THE SAME; THERE IS NO AUTHORITY, IN THE ABSENCE OF A GENERAL EXCEPTION AUTHORIZED BY THE SECRETARY OF WAR, TO PAY MORE NONCOMMISSIONED OFFICERS OF A GIVEN GRADE IN A SERVICE COMPANY OF THE NATIONAL GUARD THAN ARE AUTHORIZED FOR SUCH A COMPANY OF THE REGULAR ARMY. THIS SEEMS TO BE RECOGNIZED BY THE WAR DEPARTMENT, FOR IN PARAGRAPH (B) OF INSTRUCTIONS OF JANUARY 13, 1922 (MILITIA BUREAU CIRCULAR LETTER NO. 5), IT WAS STATED:

(B) IN CASE AN ORGANIZATION HAS AN EXCESS OF ENLISTED PERSONNEL, DUE TO ITS HAVING CHANGED ITS CHARACTER OR BRANCH OF SERVICE, SUCH EXCESS CAN BE MAINTAINED ONLY IN THE GRADE OF PRIVATE, AND NEW ENLISTMENTS WILL NOT BE PERMITTED UNTIL THE ORGANIZATION IS BROUGHT WITHIN THE PRESCRIBED STRENGTH; HOWEVER, MEN IN THE ORGANIZATION MAY BE REENLISTED UPON EXPIRATION OF CURRENT ENLISTMENTS.

IN THIS CASE THE INSTRUCTIONS OF JANUARY 13, 1922, WERE NOT FOLLOWED, AND THE SUPERNUMERARY MASTER SERGEANT WAS NOT REDUCED. IF, HOWEVER THE TOTAL NUMBER OF ENLISTED MEN IN THE SERVICE COMPANY, 105TH INFANTRY, NEW YORK NATIONAL GUARD, DURING THE SEMIANNUAL PERIOD JULY 1 TO DECEMBER 31, 1921, DID NOT EXCEED THE NUMBER LAWFULLY PRESCRIBED FOR SERVICE COMPANIES OF THE NATIONAL GUARD, AND ALTHOUGH MASTER SERGEANT BRENNAN WAS NOT REGRADED AS DIRECTED, THERE IS NO LEGAL OBJECTION TO PAYING HIM THE PAY OF A PRIVATE FOR THE DRILLS ATTENDED.

THIS IS A CASE IN WHICH THE FAILURE OF OFFICERS TO CARRY OUT ORDERS HAS RESULTED IN APPARENT INJURY TO AN INDIVIDUAL IN NO MANNER RESPONSIBLE FOR THE OFFICERS' FAILURE TO ACT, BUT WHO NEVERTHELESS SUFFERS FOR SUCH FAILURE. THE HARDSHIP TO AN INNOCENT INDIVIDUAL DOES NOT, HOWEVER, WARRANT THIS OFFICE IN BENDING THE CONSTRUCTION OF THE LAW CONTRARY TO ITS INTENT TO SAVE HIM FROM THE EFFECTS OF THE OFFICERS' FAILURE TO CARRY OUT ORDERS APPLICABLE TO HIM.