B-12163, SEPTEMBER 7, 1940, 20 COMP. GEN. 136

B-12163, SEPTEMBER 7, 1940, 20 COMP. GEN. 136

PAY - LONGEVITY - NATIONAL GUARDSMEN IN ACTIVE FEDERAL SERVICE ENLISTED SERVICE IN THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND DISTRICT OF COLUMBIA, WHEN NOT IN THE ACTIVE SERVICE OF THE UNITED STATES, MAY NOT BE COUNTED FOR LONGEVITY PAY PURPOSES BY ENLISTED MEN OF THE NATIONAL GUARD ORDERED INTO THE ACTIVE SERVICE OF THE UNITED STATES PURSUANT TO PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, SEPTEMBER 7, 1940:

I HAVE YOUR LETTER OF AUGUST 29, 1940 (DISPATCHED FROM THE ADJUTANT GENERAL'S OFFICE, SEPTEMBER 3, 1940, AND RECEIVED IN THIS OFFICE SEPTEMBER 4), ASKING WHETHER IN CONNECTION WITH THE PROPOSED MOBILIZATION OF THE NATIONAL GUARD OF THE UNITED STATES ENLISTED MEN OF THAT COMPONENT WILL BE ENTITLED TO LONGEVITY PAY FOR ENLISTED SERVICE IN THE NATIONAL GUARD NOT IN FEDERAL SERVICE. REFERENCE IS MADE IN YOUR LETTER TO SENATE JOINT RESOLUTION 286 WHICH BECAME PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940. SECTION 1 OF THE JOINT RESOLUTION AUTHORIZES THE PRESIDENT DURING THE PERIOD ENDING JUNE 30, 1942, TO ORDER INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES FOR A PERIOD OF 12 CONSECUTIVE MONTHS EACH, ANY OR ALL MEMBERS AND UNITS OF ANY OR ALL RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES, AND SECTION 2 THEREOF PROVIDES:

ALL NATIONAL GUARD, RESERVE, AND RETIRED PERSONNEL ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER THE FOREGOING SPECIAL AUTHORITY, SHALL FROM THE DATES ON WHICH THEY ARE RESPECTIVELY REQUIRED BY SUCH ORDER TO REPORT FOR DUTY IN SUCH SERVICE, BE SUBJECT TO THE RESPECTIVE LAWS AND REGULATIONS RELATING TO ENLISTMENTS, REENLISTMENTS, EMPLOYMENT, CONDUCT, RIGHTS, AND PRIVILEGES, AND DISCHARGE OF SUCH PERSONNEL IN SUCH SERVICE TO THE SAME EXTENT IN ALL PARTICULARS AS IF THEY HAD BEEN ORDERED INTO SUCH SERVICE UNDER EXISTING GENERAL STATUTORY AUTHORIZATIONS.

SECTION 58 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 5 OF THE ACT OF JUNE 15, 1933, 48 STAT. 155, 32 U.S.C. 4-A, CONTAINS A PROVISION AS FOLLOWS:

THE NATIONAL GUARD OF THE UNITED STATES IS HEREBY ESTABLISHED. IT SHALL BE A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES AND SHALL CONSIST OF THOSE FEDERALLY RECOGNIZED NATIONAL GUARD UNITS, AND ORGANIZATIONS AND OF THE OFFICERS, WARRANT OFFICERS, AND ENLISTED MEMBERS OF THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, WHO SHALL HAVE BEEN APPOINTED, ENLISTED AND APPOINTED, OR ENLISTED, AS THE CASE MAY BE, IN THE NATIONAL GUARD OF THE UNITED STATES, AS HEREINAFTER PROVIDED, AND OF SUCH OTHER OFFICERS AND WARRANT OFFICERS AS MAY BE APPOINTED THEREIN AS PROVIDED IN SECTION 111 HEREOF: PROVIDED, THAT THE MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES SHALL NOT BE IN THE ACTIVE SERVICE OF THE UNITED STATES EXCEPT WHEN ORDERED THERETO IN ACCORDANCE WITH LAW, AND, IN TIME OF PEACE, THEY SHALL BE ADMINISTERED, ARMED, UNIFORMED, EQUIPPED, AND TRAINED IN THEIR STATUS AS THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, AS PROVIDED IN THIS ACT: * * *

SECTION 70 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 8 OF THE ACT OF JUNE 15, 1933, 48 STAT. 156, 32 U.S.C. 123, PROVIDES AN OATH FOR ENLISTED MEN OF THE NATIONAL GUARD IN WHICH THE MAN ACKNOWLEDGES HE HAS "VOLUNTARILY ENLISTED THIS ------------ DAY OF ------------ , 19--, AS A SOLDIER IN THE NATIONAL GUARD OF THE UNITED STATES AND THE STATE OF ------ ---- , FOR THE PERIOD OF" 3 (OR 1) YEARS, ETC. SECTION 71 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 9 OF THE ACT OF JUNE 15, 1933, 48 STAT. 157, 32 U.S.C. 4-B, CONTAINS A PROVISO AS FOLLOWS:

(B) " NATIONAL GUARD OF THE UNITED STATES" MEANS A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES COMPOSED OF THOSE FEDERALLY RECOGNIZED UNITS AND ORGANIZATIONS AND PERSONS DULY APPOINTED AND COMMISSIONED IN THE ACTIVE AND INACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, WHO HAVE TAKEN AND SUBSCRIBED TO THE OATH OF OFFICE PRESCRIBED IN SECTION 73 OF THIS ACT, AND WHO HAVE BEEN DULY APPOINTED BY THE PRESIDENT IN THE NATIONAL GUARD OF THE UNITED STATES, AS PROVIDED IN THIS ACT, AND OF THOSE OFFICERS AND WARRANT OFFICERS APPOINTED AS PRESCRIBED IN SECTIONS 75 AND 111 OF THIS ACT, AND OF THOSE PERSONS DULY ENLISTED IN THE NATIONAL GUARD OF THE UNITED STATES AND OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA WHO HAVE TAKEN AND SUBSCRIBED TO THE OATH OF ENLISTMENT PRESCRIBED IN SECTION 70 OF THIS ACT.

SECTION 111 OF THE ACT, AS AMENDED BY SECTION 18 OF THE ACT OF JUNE 15, 1933, 48 STAT. 160, 32 U.S.C. 81, PROVIDES THAT WHEN CONGRESS SHALL HAVE DECLARED A NATIONAL EMERGENCY AND SHALL HAVE AUTHORIZED THE USE OF THE ARMED LAND FORCES OF THE UNITED STATES FOR ANY PURPOSE REQUIRING USE OF TROOPS IN EXCESS OF THOSE OF THE REGULAR ARMY, THE PRESIDENT MAY ORDER INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES TO SERVE THEREIN FOR THE PERIOD OF THE WAR OR EMERGENCY ALL UNITS AND MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES, WITH SOME ADDITIONAL PROVISIONS, AND, IN A LATER PARAGRAPH, PROVIDES:

OFFICERS AND ENLISTED MEN WHILE IN THE SERVICE OF THE UNITED STATES UNDER THE TERMS OF THIS SECTION SHALL RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAW FOR OFFICERS AND ENLISTED MEN OF THE RESERVE FORCES WHEN ORDERED TO ACTIVE DUTY, * * *

THE PAY READJUSTMENT ACT OF JUNE 10, 1922, 42 STAT. 625, 37 U.S.C. 1, PROVIDES PAY FOR THE REGULAR ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE, AND SECTION 3 THEREOF, AT PAGE 627, 37 U.S.C. 7, FIXES THE PAY OF OFFICERS BELOW THE GRADE OF BRIGADIER GENERAL IN THE NATIONAL GUARD AND IN THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT WHEN AUTHORIZED TO RECEIVE FEDERAL PAY, PROVIDES THAT WHEN ENTITLED TO FEDERAL PAY OTHER THAN FOR ARMORY DRILLS OF ADMINISTRATIVE FUNCTION PAY THEY SHALL RECEIVE THE LONGEVITY INCREASE AS PROVIDED IN SECTION 1 OF THE ACT AND PROVIDES FURTHER THAT:

* * * IN COMPUTING THE INCREASE OF PAY FOR EACH PERIOD OF THREE YEARS' SERVICE, SUCH OFFICERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE OR MARINE CORPS RESERVE FORCE, WHEN CONFIRMED IN GRADE AND QUALIFIED FOR ALL GENERAL SERVICE, WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE PERFORMED ACTIVE DUTY UNDER RESERVE COMMISSIONS, AND WITH ONE-HALF TIME FOR ALL OTHER PERIODS DURING WHICH THEY HAVE HELD RESERVE COMMISSIONS.

SECTION 14 (37 U.S.C. 23) OF THE ACT FIXES ARMORY DRILL PAY OF WARRANT OFFICERS OF THE NATIONAL GUARD AND THE PAY FOR ARMORY DRILLS FOR ENLISTED MEN OF THE NATIONAL GUARD OF THE SIXTH AND SEVENTH GRADES AND WHEN PARTICIPATING IN THE EXERCISES PROVIDED FOR BY SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT. OTHERWISE, THAN AS MENTIONED HEREIN, THERE IS NO PROVISION CONTAINED IN THAT LAW FOR THE PAY OF THE ENLISTED PERSONNEL OF THE NATIONAL GUARD OR OF THE OTHER RESERVE COMPONENTS OF THE ARMY OR THE OTHER SERVICES MENTIONED IN THE TITLE OF THE ACT. SECTION 9 OF THE ACT (37 U.S.C. 13) CONTAINS A PROVISION AS FOLLOWS:

* * * COMMENCING JULY 1, 1922, * * * ENLISTED MEN OF THE ARMY AND MARINE CORPS, SHALL RECEIVE, AS A PERMANENT ADDITION TO THEIR PAY, AN INCREASE OF 5 PERCENTUM OF THEIR BASE PAY FOR EACH FOUR YEARS OF SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT NOT TO EXCEED 25 PERCENTUM.

YOU MENTION AS OF POSSIBLE APPLICATION A PROVISION CONTAINED IN SECTION 55 (B) OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 35 OF THE ACT OF JUNE 4, 1920, 41 STAT. 780, 10 U.S.C. 427, RELATING TO MEMBERS OF THE ENLISTED RESERVE CORPS ON ACTIVE DUTY THAT "WHEN ON ACTIVE DUTY THEY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS OTHER ENLISTED MEN OF LIKE GRADES AND LENGTH OF SERVICE.'

THE TITLE OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, IS AS FOLLOWS:

AN ACT TO READJUST THE PAY AND ALLOWANCES OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE.

ENLISTED MEN OF THE REGULAR ARMY ARE ENTITLED TO COUNT ONLY ACTIVE SERVICE IN THE FORCES SPECIFICALLY MENTIONED IN THE TITLE OF THE ACT OF JUNE 10, 1922, AND SERVICE IN THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, WHEN NOT IN THE ACTIVE SERVICE OF THE UNITED STATES, IS NOT INCLUDED IN THE TITLE OF THE ACT; THEREFORE, SERVICE IN SUCH A COMPONENT BY ENLISTED MEN OF THE REGULAR ARMY IS NOT AUTHORIZED TO BE COUNTED. SECTION 1 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 15, 1933, 48 STAT. 153, 10 U.S.C. 2, PROVIDES:

THAT THE ARMY OF THE UNITED STATES SHALL CONSIST OF THE REGULAR ARMY, THE NATIONAL GUARD OF THE UNITED STATES, THE NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES, THE OFFICERS' RESERVE CORPS, THE ORGANIZED RESERVES, AND THE ENLISTED RESERVE CORPS. CONSEQUENTLY, THAT ALTHOUGH THE NATIONAL GUARD OF THE UNITED STATES IS A PART OF THE ARMY OF THE UNITED STATES, UNDER SECTION 58 OF THE NATIONAL DEFENSE ACT THE MEMBERS THEREOF ARE NOT IN THE ACTIVE SERVICE OF THE UNITED STATES EXCEPT WHEN ORDERED THERETO IN ACCORDANCE WITH LAW, AND THE MEMBERS THEREOF ARE REQUIRED TO BE ADMINISTERED, ARMED, UNIFORMED, EQUIPPED, AND TRAINED IN THEIR STATUS AS THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA AS PROVIDED IN THE NATIONAL DEFENSE ACT. THERE IS, THEREFORE, NO "SERVICE" IN THE NATIONAL GUARD OF THE UNITED STATES UNTIL IT IS ORDERED INTO THE ACTIVE SERVICE OF THE UNITED STATES; WHEN NOT SO IN THE ACTIVE SERVICE THERE IS MERELY A LIABILITY TO SERVICE IMPOSED BY LAW UPON MEMBERS OF THE NATIONAL GUARD OF THE VARIOUS STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA. SERVICE IN THE LATTER COMPONENT IS SERVICE IN THE ARMY OF THE UNITED STATES UNDER SECTION 1 OF THE NATIONAL DEFENSE ACT ONLY "WHEN IN THE SERVICE OF THE UNITED STATES.' AS STATED ABOVE, WHEN NOT IN THE SERVICE OF THE UNITED STATES, THIS SERVICE MAY NOT BE COUNTED BY ENLISTED MEMBERS OF THE REGULAR ARMY, AND A STATUS AS A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES WOULD NOT GIVE SUCH MEN GREATER RIGHTS TO LONGEVITY INCREASE, THERE BEING IN FACT NO SERVICE RENDERED IN THE NATIONAL GUARD OF THE UNITED STATES EXCEPT WHEN IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES.

SECTION 111 PROVIDES THAT MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES---

* * * SO ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES SHALL FROM THE DATE OF SUCH ORDER STAND RELIEVED FROM DUTY IN THE NATIONAL GUARD OF THEIR RESPECTIVE STATES, TERRITORIES, AND IN THE DISTRICT OF COLUMBIA SO LONG AS THEY SHALL REMAIN IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, AND DURING SUCH TIME SHALL BE SUBJECT TO SUCH LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE ARMY OF THE UNITED STATES AS MAY BE APPLICABLE TO MEMBERS OF THE ARMY WHOSE PERMANENT RETENTION IN ACTIVE MILITARY SERVICE IS NOT CONTEMPLATED BY LAW. * * *

IT IS ONLY SERVICE WHICH AN ENLISTED MAN OF THE REGULAR ARMY MAY COUNT FOR LONGEVITY INCREASE THAT IS AUTHORIZED TO BE COUNTED BY ENLISTED MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES, AND IT IS ONLY THAT "LENGTH OF SERVICE" WHICH A MEMBER OF THE ENLISTED RESERVE CORPS MAY COUNT UNDER SECTION 55 (B) OF THE NATIONAL DEFENSE ACT. YOU CITE THE HOLDING OF THE FORMER COMPTROLLER OF THE TREASURY, 24 COMP. DEC. 120, WHICH, AS YOU SUGGEST, WAS BASED ON SECTION 111 OF THE NATIONAL DEFENSE ACT AS ORIGINALLY ENACTED JUNE 3, 1916, 39 STAT. 211. SPECIFIC PROVISION HAS BEEN MADE AS TO OFFICERS OF THE NATIONAL GUARD BY LATER LAWS AND THE LANGUAGE APPLICABLE TO ENLISTED MEN OF THE NATIONAL GUARD HAS BEEN MODIFIED. THAT DECISION RESTED UPON THE LANGUAGE THEREIN CONSTRUED AND IT CANNOT BE APPLIED TO THE PRESENT STATUTES.