B-14891, FEBRUARY 20, 1941, 20 COMP. GEN. 469

B-14891, FEBRUARY 20, 1941, 20 COMP. GEN. 469

PAY - ACTIVE DUTY - NATIONAL GUARD AN OFFICER OF THE NATIONAL GUARD ORDERED INTO THE SERVICE OF THE UNITED STATES PURSUANT TO PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, IS ENTITLED TO PAY AS ESTABLISHED BY SECTION 3 OF THE JOINT SERVICE PAY ADJUSTMENT ACT, AS AMENDED, WHETHER HE IS CONSIDERED AS BEING IN FEDERAL SERVICE UNDER SECTION 38 OR UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, FEBRUARY 20, 1941:

I HAVE YOUR LETTER OF FEBRUARY 7, 1941, AS FOLLOWS:

IN CONNECTION WITH PAYMENTS NOW BEING MADE TO OFFICERS OF THE NATIONAL GUARD ORDERED INTO THE FEDERAL SERVICE UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96 OF THE 76TH CONGRESS APPROVED AUGUST 27, 1940, SEVERAL QUESTIONS HAVE ARISEN ON WHICH YOUR DECISION IS REQUESTED IN ORDER THAT THE WAR DEPARTMENT MAY APPROPRIATELY INSTRUCT FINANCE OFFICERS MAKING SUCH PAYMENTS.

AT THE PRESENT TIME OFFICERS OF THE NATIONAL GUARD ORDERED INTO THE FEDERAL SERVICE UNDER THE PROVISIONS OF THE ABOVE CITED RESOLUTION ARE RECEIVING AS BASE PAY THE PAY OF THE PAY PERIODS, AND THE LONGEVITY PAY AS SPECIFIED IN SECTION 3 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922 (42 STAT. 627; 37 U.S.C. 7), WHICH PROVIDES FOR THE PAY OF OFFICERS OF THE NATIONAL GUARD AND RESERVE FORCES WHEN AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY.

NATIONAL GUARD OFFICERS ARE PAID AS INDICATED ABOVE FOR THE FOLLOWING REASONS:

A. EXECUTIVE ORDERS ISSUED FROM TIME TO TIME, BY VIRTUE OF THE AUTHORITY CONTAINED IN PUBLIC RESOLUTION NO. 96 OF THE 76TH CONGRESS,APPROVED AUGUST 27, 1940, AND IN THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, HAVE ORDERED NATIONAL GUARD OFFICERS INTO THE FEDERAL SERVICE AS MEMBERS OF DESIGNATED UNITS.

B. SECTION 2 OF PUBLIC RESOLUTION NO. 96, SUPRA, READS AS FOLLOWS:

"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.' ( ITALICS SUPPLIED.)

C. IN ENACTING PUBLIC RESOLUTION NO. 96, SUPRA, THE CONGRESS MANIFESTLY OBVIATED THE NECESSITY OF A DECLARATION OF AN EMERGENCY BY CONGRESS AS A CONDITION PRECEDENT TO THE ORDERING OF THE NATIONAL GUARD INTO ACTIVE MILITARY SERVICE OF THE UNITED STATES AS PROVIDED IN SECTION 111 OF THE NATIONAL DEFENSE ACT. SINCE SECTION 111 OF THE NATIONAL DEFENSE ACT IS THE ONLY "EXISTING GENERAL STATUTORY AUTHORITY" WHICH PROVIDES FOR THE INDUCTION INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES OF THE "UNITS AND MEMBERS THEREOF" OF THE NATIONAL GUARD, IT IS CONSIDERED AS CONTROLLING IN THE PRESENT SITUATION. THIS SECTION PROVIDES THAT "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 * * *.'

D. SECTION 3 OF THE PAY READJUSTMENT ACT OF 1922, CITED ABOVE, PROVIDES FOR THE PAY OF OFFICERS OF THE NATIONAL GUARD WHEN AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY AND SPECIFICALLY FIXES THE PAY PERIOD, THE PAY OF WHICH THEY SHALL RECEIVE, REGARDLESS OF LENGTH OF SERVICE.

A QUESTION HAS RECENTLY ARISEN, HOWEVER, AS TO WHETHER FOR PAY PURPOSES OFFICERS OF THE NATIONAL GUARD, ORDERED INTO THE FEDERAL SERVICE UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96, SUPRA, SHOULD BE VIEWED AS HAVING BEEN ORDERED INTO SUCH SERVICE UNDER THE PROVISIONS OF SECTION 38 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, WHICH PROVIDES THAT THE NATIONAL GUARD OFFICERS WHEN ON ACTIVE DUTY WITH THE ARMY OF THE UNITED STATES UNDER THE CONDITIONS OF SAID SECTION SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS AN OFFICER OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE, WHICH PROVISION OF LAW, IF APPLICABLE, MAY ENTITLE SUCH OFFICERS TO PAY PERIOD PAY BASED ON LENGTH OF SERVICE AND OTHER CONDITIONS.

SINCE THE BASIS OF PAYMENTS AS PRESCRIBED IN SECTION 3 OF THE PAY READJUSTMENT ACT AND IN SECTION 38 OF THE NATIONAL DEFENSE ACT ARE MATERIALLY DIFFERENT, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

A. ARE THE OFFICERS OF THE NATIONAL GUARD ORDERED INTO FEDERAL SERVICE UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96 OF THE 76TH CONGRESS, APPROVED AUGUST 27, 1949, ENTITLED TO PAY OF THE PAY PERIODS WHICH RELATE TO THEIR RANK WITHOUT REGARD TO LENGTH OF SERVICE OR OTHER CONDITIONS AS PROVIDED IN SECTION 3 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 627, OR ARE SUCH OFFICERS ENTITLED TO PAY, THAT IS, BASE PAY, PAY- PERIOD PAY, AND LONGEVITY PAY, ON THE SAME BASIS AS OFFICERS OF THE REGULAR ARMY AS PRESCRIBED IN SECTION 38 OF THE NATIONAL DEFENSE ACT?

B. IF ENTITLED TO PAY ON THE SAME BASIS AS OFFICERS OF THE REGULAR ARMY AS PROVIDED IN SECTION 38 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, MAY SUCH NATIONAL GUARD OFFICERS WHILE IN THE FEDERAL SERVICE UNDER THE CONDITIONS ABOVE STATED COUNT THEIR NON-FEDERAL NATIONAL GUARD SERVICE FOR PAY PERIOD PURPOSES AS WELL AS FOR INCREASES OF PAY ON ACCOUNT OF LONGEVITY?

YOUR EARLY DECISION IS REQUESTED.

PRIOR TO THE ACT OF JUNE 10, 1922, 42 STAT. 625, TITLE 37 OF THE U.S.C. OFFICERS OF THE NATIONAL GUARD AND OF THE OFFICERS' RESERVE CORPS WHEN ENTITLED TO RECEIVE THE FEDERAL PAY OF THEIR GRADES WERE ENTITLED TO THE SAME PAY AS OFFICERS OF THE REGULAR ARMY; AND PRIOR TO THE ACT OF JUNE 3, 1916, 39 STAT. 166, OFFICERS OF THE ORGANIZED MILITIA WERE ENTITLED TO LONGEVITY INCREASE OF PAY ONLY FOR THE SAME CHARACTER OF SERVICE AS COULD BE COUNTED BY OFFICERS OF THE REGULAR ARMY. SEE 23 COMP. DEC. 152. WAS HELD THAT OFFICERS OF THE NATIONAL GUARD DRAFTED INTO THE SERVICE OF THE UNITED STATES UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, WERE ENTITLED TO COUNT THEIR STATE NATIONAL GUARD SERVICE FOR LONGEVITY INCREASE OF PAY, 24 COMP. DEC. 121, BUT THAT AN OFFICER COMING INTO THE SERVICE OF THE UNITED STATES OTHER THAN BY DRAFT UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT WAS NOT ENTITLED TO COUNT NATIONAL GUARD STATE SERVICE FOR LONGEVITY INCREASE OF PAY. 24 COMP. DEC. 560. SEE, HOWEVER, THE ACT OF JULY 9, 1918, 40 STAT. 875.

BY THE ACT OF JUNE 10, 1922, THE BASE PAY OF OFFICERS OF THE SIX SERVICES NAMED IN THE TITLE OF THE ACT, INCLUSIVE OF THE REGULAR ARMY OF THE UNITED STATES, WAS FIXED WITH RESPECT BOTH TO GRADE AND LENGTH OF SERVICE; FOR EXAMPLE, THE PAY OF THE SIXTH PERIOD, $4,000 PER ANNUM, IS PAYABLE TO COLONELS WHO HAVE COMPLETED 26 YEARS OF SERVICE AND TO LIEUTENANT COLONELS WHO HAVE COMPLETED 30 YEARS OF SERVICE; THE PAY OF THE FIFTH PERIOD, $3,500, IS PAYABLE TO COLONELS WHO ARE NOT ENTITLED TO THE PAY OF THE SIXTH PERIOD, TO LIEUTENANT COLONELS WHO HAVE COMPLETED 20 YEARS OF SERVICE AND TO MAJORS WHO HAVE COMPLETED 23 YEARS OF SERVICE; THE PAY OF THE FOURTH PERIOD, $3,000, IS PAYABLE TO LIEUTENANT COLONELS WHO ARE NOT ENTITLED TO THE PAY OF THE FIFTH OR SIXTH PERIOD, TO MAJORS WHO HAVE COMPLETED 14 YEARS OF SERVICE AND TO CAPTAINS WHO HAVE COMPLETED 17 YEARS OF SERVICE; THE PAY OF THE THIRD PERIOD, $2,400, IS PAYABLE TO MAJORS WHO ARE NOT ENTITLED TO THE PAY OF THE FOURTH, FIFTH, OR SIXTH PERIOD, TO CAPTAINS WHO HAVE COMPLETED 7 YEARS OF SERVICE AND TO FIRST LIEUTENANTS WHO HAVE COMPLETED 10 YEARS OF SERVICE; THE PAY OF THE SECOND PERIOD, $2,000, IS PAYABLE TO CAPTAINS WHO ARE NOT ENTITLED TO THE PAY OF THE THIRD OR FOURTH PERIOD, TO FIRST LIEUTENANTS WHO HAVE COMPLETED 3 YEARS OF SERVICE AND TO SECOND LIEUTENANTS WHO HAVE COMPLETED 5 YEARS OF SERVICE; AND THE PAY OF THE FIRST PERIOD, $1,500, IS PAYABLE TO ALL OTHER OFFICERS WHOSE PAY IS PROVIDED IN SECTION 1 OF THAT ACT. THE TENTH PARAGRAPH OF SECTION 1 PROVIDES FOR A LONGEVITY INCREASE OF PAY OF 5 PERCENT FOR EACH PERIOD OF 3 YEARS OF SERVICE UP TO 30 YEARS. THE SECTION PROVIDES, ALSO, THAT FOR ALL OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, NO SERVICE SHALL BE COUNTED FOR PURPOSES OF PAY EXCEPT ACTUAL COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT AND COMMISSIONED SERVICE IN THE NATIONAL GUARD WHEN CALLED OUT BY ORDER OF THE PRESIDENT; BUT FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, IT WAS PROVIDED THAT ALL SERVICE THEN COUNTED FOR LONGEVITY INCREASE OF PAY SHOULD BE INCLUDED, AND, AS TO SUCH OFFICERS IN THE SERVICE ON JUNE 30, 1922, IT SPECIFICALLY PROVIDED FOR COUNTING 75 PERCENTUM OF THE TIME THE OFFICER HELD A COMMISSION AS AN OFFICER IN THE ORGANIZED MILITIA BETWEEN JANUARY 21, 1903, AND JULY 1, 1916, OR IN THE NATIONAL GUARD, AND CERTAIN NAVAL RESERVE SERVICE. SECTION 3 OF THE ACT, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250, 37 U.S.C. 7, PROVIDES:

THAT WHEN OFFICERS OF THE NATIONAL GUARD OR OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY, THOSE SERVING IN GRADES CORRESPONDING TO THOSE OF COLONEL, LIEUTENANT COLONEL, MAJOR, CAPTAIN, FIRST LIEUTENANT, AND SECOND LIEUTENANT OF THE ARMY SHALL RECEIVE THE PAY OF THE SIXTH, FIFTH, FOURTH, THIRD, SECOND, AND FIRST PERIODS, RESPECTIVELY. SUCH OFFICERS WHENEVER ENTITLED TO FEDERAL PAY, EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY, SHALL RECEIVE AS LONGEVITY PAY, IN ADDITION TO BASE PAY PROVIDED BUT NOT EXCEEDING THE MAXIMUM PAY PRESCRIBED BY LAW, AN INCREASE THEREOF AT THE PERCENTUM AND TIME RATES UP TO THIRTY YEARS PROVIDED IN THE TENTH PARAGRAPH OF SECTION 1. 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.

IT WILL BE OBSERVED THE PROVISION FOR COUNTING SERVICE IN THIS SECTION IS LIMITED TO LONGEVITY INCREASE OF PAY, PERIOD OR BASE PAY HAVING BEEN THEREIN OTHERWISE PROVIDED.

PRIOR TO THE ENACTMENT OF THE JOINT SERVICE PAY ADJUSTMENT ACT OF JUNE 10, 1922, THE NATIONAL DEFENSE ACT HAD BEEN AMENDED IN VARIOUS RESPECTS BY THE ACT OF JUNE 4, 1920, AND SECTION 32 OF THAT ACT, 41 STAT. 775, ADDED SECTION 37A, AS FOLLOWS:

TO THE EXTENT PROVIDED FROM TIME TO TIME BY APPROPRIATIONS FOR THIS SPECIFIC PURPOSE, THE PRESIDENT MAY ORDER RESERVE OFFICERS TO ACTIVE DUTY AT ANY TIME AND FOR ANY PERIOD; BUT EXCEPT IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS, NO RESERVE OFFICER SHALL BE EMPLOYED ON ACTIVE DUTY FOR MORE THAN FIFTEEN DAYS IN ANY CALENDAR YEAR WITHOUT HIS OWN CONSENT. A RESERVE OFFICER SHALL NOT BE ENTITLED TO PAY AND ALLOWANCES EXCEPT WHEN ON ACTIVE DUTY. WHEN ON ACTIVE DUTY HE SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS AN OFFICER OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE, AND MILEAGE FROM HIS HOME TO HIS FIRST STATION AND FROM HIS LAST STATION TO HIS HOME, BUT SHALL NOT BE ENTITLED TO RETIREMENT OR RETIRED PAY.

THIS PROVISION, WHICH GIVES THE SAME PAY AND ALLOWANCES AS AN OFFICER OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE WOULD RECEIVE, WAS NECESSARILY AMENDED BY SECTION 3 OF THE ACT OF JUNE 10, 1922, SEE 10 U.S.C. 361, 362, AND 363.

SECTION 38 OF THE NATIONAL DEFENSE ACT WAS OMITTED IN THE AMENDMENT OF THE NATIONAL DEFENSE ACT IN 1920 BY SECTION 31 OF THAT ACT, 41 STAT. 775; THE SECTION WAS REENACTED BY THE ACT OF JUNE 6, 1924, 43 STAT. 470, TO PROVIDE, AMONG OTHER THINGS, THAT OFFICERS OF THE NATIONAL GUARD FEDERALLY RECOGNIZED AS SUCH WHO WERE APPOINTED AS RESERVE OFFICERS UNDER SECTION 37 OF THE ACT SHOULD BE APPOINTED FOR THE PERIOD DURING WHICH RECOGNITION SHOULD CONTINUE IN EFFECT, AND IN TIME OF PEACE WERE TO BE GOVERNED BY SUCH SPECIAL REGULATIONS APPROPRIATE FOR THAT CLASS OF RESERVE OFFICERS AS THE SECRETARY OF WAR MIGHT PRESCRIBE. THE SECTION WAS FURTHER AMENDED BY SECTION 4 OF THE ACT OF JUNE 15, 1933, 48 STAT. 155, TO GIVE TO OFFICERS OF THE NATIONAL GUARD A STATUS AS RESERVE OFFICERS AND DIRECTED THAT THEY SHOULD BE COMMISSIONED AS SUCH IN THE ARMY OF THE UNITED STATES, BUT DID NOT SPECIFICALLY PROVIDE, GENERALLY, FOR THEIR BEING CALLED TO ACTIVE DUTY AS HAD BEEN PROVIDED FOR RESERVE OFFICERS GENERALLY BY SECTION 37A OF THE NATIONAL DEFENSE ACT. BY THE ACT OF JUNE 19, 1935, 49 STAT. 391, 32 U.S.C. 81C, THIS SECTION, AS AMENDED IN 1933, WAS FURTHER AMENDED BY INSERTION OF A PARAGRAPH, WHICH WAS AN ADAPTATION OF THE LANGUAGE OF SECTION 37A OF THE NATIONAL DEFENSE ACT, AS FOLLOWS:

TO THE EXTENT PROVIDED FOR FROM TIME TO TIME BY APPROPRIATIONS FOR THIS SPECIFIC PURPOSE, THE PRESIDENT MAY ORDER OFFICERS OF THE NATIONAL GUARD OF THE UNITED STATES TO ACTIVE DUTY IN AN EMERGENCY AT ANY TIME AND FOR THE PERIOD THEREOF: PROVIDED, THAT, EXCEPT IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS, NO OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES SHALL BE EMPLOYED ON ACTIVE DUTY FOR MORE THAN FIFTEEN DAYS IN ANY CALENDAR YEAR WITHOUT HIS OWN CONSENT. WHEN ON SUCH ACTIVE DUTY AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS AN OFFICER OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE, AND MILEAGE FROM HIS HOME TO HIS FIRST STATION AND FROM HIS LAST STATION TO HIS HOME, BUT SHALL NOT BE ENTITLED TO RETIREMENT OR RETIRED PAY. A COMPARISON OF THIS PROVISION WITH THE PROVISIONS OF SECTION 37A SHOWS THAT THE LANGUAGE AS TO RESERVE OFFICERS GENERALLY WAS MERELY ADAPTED TO THE NATIONAL GUARD, AND THAT OTHERWISE THE LANGUAGE AS CARRIED IN SECTION 37A WAS NOT CHANGED. SENATE REPORT NO. 635, SEVENTY-FOURTH CONGRESS, FIRST SESSION, MAKES PLAIN THAT THIS WAS ONLY INTENDED TO CLARIFY THE PROVISION CONTAINED IN THE ACT OF JUNE 15, 1933. OBVIOUSLY, AS THE PROVISION WAS TO CLARIFY THE FORMER ENACTMENT TO SECURE AS TO NATIONAL GUARD OFFICERS IDENTICALLY THE SAME AUTHORITY AS HAD BEEN PROVIDED FOR RESERVE OFFICERS GENERALLY, THERE WAS NO PURPOSE TO ESTABLISH A DIFFERENT RATE OF PAY THAN THAT IN EFFECT FOR OFFICERS OF THE NATIONAL GUARD AND THE RESERVES WHEN ENTITLED TO THE FEDERAL PAY OF THEIR GRADES UNDER SECTION 3 OF THE JOINT SERVICE PAY ADJUSTMENT ACT. THIS IS MADE CLEAR BY 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, WHEREIN IT WAS SPECIFICALLY PROVIDED THAT OFFICERS OF THE NATIONAL GUARD COMING INTO THE SERVICE OF THE UNITED STATES UNDER THE PROVISIONS OF THAT SECTION "SHALL RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAW FOR OFFICERS * * * OF THE RESERVE FORCES WHEN ORDERED TO ACTIVE DUTY.' THERE CAN BE NO DOUBT THERE WAS NO PURPOSE TO CREATE A DISPARITY IN PAY BETWEEN AN OFFICER OF THE NATIONAL GUARD ORDERED INTO THE SERVICE OF THE UNITED STATES UNDER SECTION 111, NORMALLY WITH HIS UNIT, AND ONE ORDERED INTO SUCH SERVICE INDIVIDUALLY UNDER SECTION 38 OF THE NATIONAL DEFENSE ACT. IN COPYING THE LANGUAGE OF THE STATUTE AS TO THE OFFICER'S RESERVE CORPS, TO WIT, 37A--- WHICH HAD BEEN AMENDED BY THE PROVISION OF SECTION 3 OF THE JOINT SERVICE PAY ADJUSTMENT ACT--- THE INTENT WAS TO CARRY INTO THAT AMENDMENT OF SECTION 38 THE SAME PROVISION AS THEN EXISTING UNDER SECTION 37A FOR RESERVE OFFICERS, GENERALLY, INCLUDING THE PAY PROVIDED BY SECTION 3 OF THE JOINT SERVICE PAY ADJUSTMENT ACT.

ACCORDINGLY, IT WOULD APPEAR TO BE CLEAR THAT WHETHER NATIONAL GUARD OFFICERS ARE IN THE SERVICE OF THE UNITED STATES UNDER SECTION 38 OR UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT, THEY ARE ENTITLED TO THE PAY PROVIDED FOR THE NATIONAL GUARD AND THE RESERVE FORCES IN SECTION 3 OF THE JOINT SERVICE PAY ADJUSTMENT ACT. THEREFORE, YOUR FIRST QUESTION IS ANSWERED BY SAYING OFFICERS OF THE NATIONAL GUARD ARE ENTITLED TO THE PAY OF THE PERIOD CORRESPONDING TO THEIR RANK AS FIXED IN SECTION 3 OF THE JOINT SERVICE PAY ADJUSTMENT ACT WITHOUT REGARD TO THEIR LENGTH OF SERVICE. IN VIEW OF THAT ANSWER TO THE FIRST QUESTION AN ANSWER TO YOUR SECOND QUESTION IS NOT NECESSARY. HOWEVER, IT IS PROPER TO POINT OUT THAT IF THE PROVISION AS TO PAY CONTAINED IN SECTION 38 OF THE NATIONAL DEFENSE ACT WAS LITERALLY FOLLOWED THE OFFICER WOULD NOT BE ENTITLED TO ANY OF THE BENEFITS OF SECTION 3 OF THE JOINT SERVICE PAY ADJUSTMENT ACT, BUT WOULD BE ENTITLED TO THE SAME PAY AS PROVIDED FOR OFFICERS OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF SERVICE AS FIXED BY SECTION 1 OF THAT ACT, AND IN MOST, IF NOT ALL, CASES SUCH A HOLDING WOULD BE TO THE DISADVANTAGE OF THE NATIONAL GUARD OFFICER, FOR CLEARLY HE WOULD NOT BE ENTITLED TO THE SAME PAY AS A REGULAR OFFICER OF THE SAME GRADE AND LENGTH OF SERVICE AND, ALSO, ENTITLED TO BENEFITS AS TO COUNTING SERVICE AS CONTAINED IN SECTION 3 OF THE ACT, BECAUSE A REGULAR ARMY OFFICER WOULD NOT BE ENTITLED TO COUNT SUCH SERVICE. THE SAME PAY AND ALLOWANCES AS AN OFFICER OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF SERVICE WOULD NECESSARILY BE THE SAME AND NOT SOME OTHER PAY. THIS LENDS FURTHER SUPPORT TO THE VIEW THAT WHETHER AN OFFICER OF THE NATIONAL GUARD IS IN THE SERVICE OF THE UNITED STATES UNDER SECTION 38 OR UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT HE IS ENTITLED TO THE PAY SPECIFICALLY PROVIDED FOR OFFICERS OF THE NATIONAL GUARD WHEN AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY AS ESTABLISHED BY SECTION 3 OF THE JOINT SERVICE PAY ADJUSTMENT ACT.