B-129732, MARCH 22, 1957, 36 COMP. GEN. 661

B-129732, MARCH 22, 1957, 36 COMP. GEN. 661

MILITARY PERSONNEL - RETIRED PAY - CONCURRENT STATE NATIONAL GUARD PAY - PRIOR TO JANUARY 1, 1953 WHEN NATIONAL GUARD WAS DESIGNATED AS RESERVE COMPONENT OF ARMY ALTHOUGH STATE NATIONAL GUARD DRILLS AND FIELD TRAINING DUTY PERFORMED BY A RETIRED REGULAR ARMY OFFICER WHO, AFTER RETIREMENT IN 1948, WAS COMMISSIONED IN A STATE NATIONAL GUARD AND GIVEN FEDERAL RECOGNITION, MAY NOT BE REGARDED AS PERFORMANCE OF DUTY AS A MEMBER OF A RESERVE COMPONENT, THE PAYMENT OF NATIONAL GUARD PAY CONCURRENTLY WITH RETIRED PAY PRIOR TO JANUARY 1, 1953, WHEN NATIONAL GUARD MEMBERS WERE BROUGHT WITHIN THE SCOPE OF THE DUAL PAYMENTS PROHIBITION OF SECTION 2 OF THE ACT OF SEPTEMBER 27, 1950, IS OF SUCH DOUBTFUL VALIDITY AS TO CONSTITUTE AN IMPROPER PAYMENT.

TO THE SECRETARY OF THE ARMY, MARCH 22, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF NOVEMBER 5, 1956, FROM THE ASSISTANT SECRETARY OF THE ARMY ( FINANCIAL MANAGEMENT), REQUESTING DECISION WHETHER A MEMBER OF THE REGULAR ARMY RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY AND WHO, SUBSEQUENT TO HIS RETIREMENT, IS COMMISSIONED IN A STATE NATIONAL GUARD, MAY UNDER ANY CIRCUMSTANCES DRAW CONCURRENTLY BOTH THE ENCUMBENTS ACCRUING FROM HIS APPOINTMENT IN THE STATE NATIONAL GUARD AND HIS RETIRED PAY.

IN THE DISCUSSION CONTAINED IN AN ACCOMPANYING MEMORANDUM, REFERENCE IS MADE TO THE CASE OF A REGULAR ARMY OFFICER WHO WAS PLACED ON THE RETIRED LIST ON MARCH 31, 1948, PURSUANT TO THE PROVISIONS OF SECTION 5, ACT OF JULY 31, 1935, 49 STAT. 507, AS AMENDED, 10 U.S.C., 1946 USED., 971B; COMMISSIONED IN A STATE NATIONAL GUARD APRIL 1, 1948; REMAINED IN THE ACTIVE NATIONAL GUARD UNTIL JULY 31, 1953, AT WHICH TIME HE WAS TRANSFERRED TO THE INACTIVE NATIONAL GUARD AND DISCHARGED THEREFROM ON JANUARY 31, 1955. IT IS STATED THAT THIS OFFICER ATTENDED NATIONAL GUARD DRILLS AND PERFORMED FIELD TRAINING AND RECEIVED PAY FOR SUCH ATTENDANCE CONCURRENTLY WITH HIS RETIRED PAY.

IT APPEARS THAT THE RETIRED REGULAR ARMY OFFICER REFERRED TO IS COLONEL HAROLD A. MEYER, SERIAL NO. O-14960. THIS OFFICER FOLLOWING HIS RETIREMENT ON MARCH 31, 1948, WAS COMMISSIONED A COLONEL IN THE CALIFORNIA NATIONAL GUARD, EFFECTIVE APRIL 1, 1948, AND ON JUNE 21, 1948, HE WAS APPOINTED AS COLONEL IN THE NATIONAL GUARD OF THE UNITED STATES AND ASSIGNED SERIAL NO. O-958218 UNDER THIS APPOINTMENT.

THE QUESTION PRESENTED IN WHETHER THIS OFFICER IS TO BE CONSIDERED FOR THE WHOLE OR ANY PART OF THE PERIOD FROM APRIL 1, 1948, TO JANUARY 31, 1955, INCLUSIVE, AS A "MEMBER OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES" WITHIN THE MEANING OF THAT PHRASE AS IT IS USED IN SECTION 2 OF THE ACT OF SEPTEMBER 27, 1950, 64 STAT. 1067, 10 U.S.C., 1952 USED., 369B. SUCH ACT, MADE RETROACTIVELY EFFECTIVE FROM JULY 1, 1947, BY SECTION 3, 10 U.S.C. 369B NOTE, PROVIDED AS FOLLOWS:

NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, ANY MEMBER OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES OR OF THE AIR FORCE OF THE UNITED STATES ENTITLED TO DRAW A PENSION, RETIREMENT PAY, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES BY VIRTUE OF PRIOR MILITARY SERVICE, MAY ELECT, WITH REFERENCE TO PERIODS OF ACTIVE DUTY OR DRILL, TRAINING, INSTRUCTION, OR OTHER DUTY FOR WHICH THEY MAY BE ENTITLED TO RECEIVE COMPENSATION PURSUANT TO ANY PROVISIONS OF LAW, TO RECEIVE EITHER (1) THE COMPENSATION FOR SUCH DUTY, WHICH, WHEN AUTHORIZED BY LAW, SHALL INCLUDE TRAVEL OR OTHER EXPENSES INCIDENT THERETO, AND SUBSISTENCE AND QUARTERS, OR COMMUTATION THEREOF, OR (2) THE PENSION, RETIREMENT PAY, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY, BUT NOT BOTH; AND UNLESS THEY SPECIFICALLY WAIVE OR RELINQUISH THE LATTER THEY SHALL NOT RECEIVE THE FORMER FOR THE PERIODS OF SUCH DUTY.

THE NATIONAL GUARD OF THE UNITED STATES WAS DESIGNATED AS A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES IN SECTION 5, ACT OF JUNE 15, 1933, 48 STAT. 155, 32 U.S.C. 1946 USED., 4A. THAT DESIGNATION OF THE NATIONAL GUARD OF THE UNITED STATES AS A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES WAS CONTINUED BY THE ARMED FORCES RESERVE ACT OF 1952, WHICH BECAME EFFECTIVE ON JANUARY 1, 1953. SEE SECTIONS 202 AND 701 OF THE ACT, RESPECTIVELY, 66 STAT. 483, 501, 50 U.S.C. 1952 USED., 922, 1111. ALSO, SEE SECTION 261 (A), TITLE 10, U.S.C. AS ENACTED INTO LAW BY THE ACT APPROVED AUGUST 10, 1956, 70A STAT. 10.

HOWEVER, WHEN NOT IN THE ACTIVE SERVICE OF THE UNITED STATES MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES ARE TRAINED IN THEIR STATE STATUS, I.E., AS MEMBERS OF THE NATIONAL GUARD OF A STATE, 32 U.S.C., 1946 USED., 4A; SECTION 709, ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 503, 50 U.S.C., 1952 USED., 1119. SEE, ALSO, SECTION 3079, TITLE 10, U.S.C. ACT APPROVED AUGUST 10, 1956. 70A STAT. 171. FEDERAL RECOGNITION ENTITLES AN OFFICER OF A STATE NATIONAL GUARD TO PARTICIPATE IN ARMORY DRILLS AND TO PERFORM FIELD TRAINING DUTY IN A STATUS ENTITLING HIM TO RECEIVE FEDERAL PAY THEREFOR. HENCE, IT APPEARS THAT THE DRILLS ATTENDED AND THE FIELD TRAINING DUTY PERFORMED BY THE OFFICERS CONCERNED PRIOR TO JANUARY 1, 1953, IN HIS STATUS AS A FEDERALLY RECOGNIZED MEMBER OF THE NATIONAL GUARD OF THE STATE OF CALIFORNIA WERE NOT ATTENDED OR PERFORMED AS A MEMBER OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES. IT DOES NOT FOLLOW, HOWEVER, THAT THE PAYMENT CONCURRENTLY OF RETIRED PAY AND NATIONAL GUARD PAY WAS PROPER. THE PROVISIONS OF SECTION 2 OF THE ACT OF SEPTEMBER 27, 1950, MUST BE READ AND CONSIDERED IN CONNECTION WITH OTHER APPLICABLE PROVISIONS OF LAW. DURING THE PERIOD FROM APRIL 1, 1948, TO JUNE 30, 1951, INCLUSIVE, THE ANNUAL APPROPRIATION ACTS COVERING THE FISCAL YEARS 1948 TO 1951, INCLUSIVE, CONTAINED EXPRESS PROVISIONS BARRING DUAL PAYMENTS. SEE THE ACT OF JULY 30, 1947, 61 STAT. 564, 32 U.S.C. 42 NOTE, ACT OF JUNE 24, 1948, 62 STAT. 662, 32 U.S.C. 42 NOTE, ACT OF OCTOBER 29, 1949, SECTION 610, 63 STAT. 1018; AND THE ACT OF SEPTEMBER 6, 1950, SECTION 609, 64 STAT. 752. WHILE THERE DOES NOT APPEAR TO HAVE BEEN ANY SIMILAR APPROPRIATION PROVISION APPLICABLE FOR THE PERIOD FROM JULY 1, 1951, TO DECEMBER 31, 1952, INCLUSIVE, THE PRIOR APPROPRIATION PROVISIONS AND THE PROVISIONS OF THE ACT OF SEPTEMBER 27, 1950, RAISE SERIOUS DOUBT THAT THE CONGRESS INTENDED TO AUTHORIZE DUAL PAYMENTS FOR ANY PART OF THE PERIOD HERE INVOLVED. IN THE ABSENCE OF CLARIFYING LEGISLATION TO THE CONTRARY, NO SUCH DUAL PAYMENTS AS ARE HERE INVOLVED MAY BE CONSIDERED PROPER.

EFFECTIVE JANUARY 1, 1953, THE STATUS OF THE OFFICER ABOVE REFERRED TO IS BROUGHT SQUARELY WITHIN THE SCOPE OF SECTION 2 OF THE 1950 LAW BY VIRTUE OF THE PROVISIONS OF SECTION 101 (D) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 481, 482, 50 U.S.C., 1952 USED., 901 (D), WHICH, IN PERTINENT PART, PROVIDES THAT:

* * * ANY INACTIVE-DUTY TRAINING PERFORMED BY MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES OR OF THE AIR NATIONAL GUARD OF THE UNITED STATES, WHILE IN THEIR STATUS AS MEMBERS OF THE NATIONAL GUARD OF AIR NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA PURSUANT TO SECTION 92 OF THE NATIONAL DEFENSE ACT, AS AMENDED, OR PURSUANT TO ANY OTHER PROVISION OF LAW, SHALL BE DEEMED TO BE INACTIVE- DUTY TRAINING IN THE SERVICE OF THE UNITED STATES AS MEMBERS OF ONE OF THE RESERVE COMPONENTS SPECIFIED IN SECTION 202 OF THIS ACT. SECTION 714 (C) OF THE SAME ACT, 66 STAT. 505, 50 U.S.C., 1952 USED; 1124 (C), PROVIDES AS FOLLOWS:

THE INACTIVE-DUTY TRAINING PERFORMED BY MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES OR MEMBERS OF THE AIR NATIONAL GUARD OF THE UNITED STATES WHILE IN THEIR STATUS AS MEMBERS OF THE NATIONAL GUARD OR AIR NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA UNDER REGULATIONS PRESCRIBED BY THE APPROPRIATE SECRETARY PURSUANT TO SECTION 92 OF THE NATIONAL DEFENSE ACT, AS AMENDED, OR OTHER EXPRESS PROVISION SHALL BE CONSIDERED INACTIVE-DUTY TRAINING IN THE SERVICE OF THE UNITED STATES AS RESERVE MEMBERS OF THE ARMY OR AIR FORCE. ALSO, SEE SECTION 3686 (3), TITLE 10, U.S. CODE, ACT APPROVED AUGUST 10, 1956, 70A STAT. 211, 212.

IN SUMMARY, THEREFORE, YOU ARE ADVISED THAT THE DUAL PAYMENTS MADE TO COLONEL MEYER FOR THE PERIOD FROM APRIL 1, 1948, TO DECEMBER 31, 1952, INCLUSIVE, ARE DEEMED TO BE CONTRARY TO THE INTENT OF THE APPLICABLE PROVISIONS OF LAW THEN IN EFFECT AND HENCE OF SUCH DOUBTFUL VALIDITY AS TO BE CONSIDERED AS CONSTITUTING IMPROPER PAYMENTS, AND, OF COURSE, ANY DUAL PAYMENTS MADE TO HIM FOR ANY PART OF THE PERIOD COMMENCING JANUARY 1, 1953, WERE CONTRARY TO THE EXPRESS PROVISIONS OF LAW RELATING TO MEMBERS OF RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES.