B-157685, OCT 4, 1965

B-157685, OCT 4, 1965

PRECIS-UNAVAILABLE

MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 16, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION WHETHER NATIONAL GUARD REGULATIONS MAY BE AMENDED TO AUTHORIZE PAYMENT TO NATIONAL GUARD CIVILIAN TECHNICIANS, WHO ARE VOLUNTARILY ORDERED FOR SHORT PERIODS OF FEDERAL ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING AS MEMBERS OF THE NATIONAL GUARD, OF THE DIFFERENCE BETWEEN THE ACTIVE DUTY PAY AND ALLOWANCES TO WHICH THEY ARE OTHERWISE ENTITLED IN THEIR MILITARY STATUS AND THEIR HIGHER CIVILIAN TECHNICIAN PAY DURING THE PERIOD OF SUCH FEDERAL ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING. THIS MATTER IS DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 368, A COPY OF WHICH WAS RECEIVED WITH THE REQUEST FOR DECISION.

IT IS STATED IN COMMITTEE ACTION NO. 368 THAT AIR NATIONAL GUARD TECHNICIANS ARE EMPLOYED UNDER THE PROVISIONS OF 32 U.S.C. 709 ON A FULL TIME BASIS BY THE ADJUTANTS GENERAL OF THE SEVERAL STATES AND PUERTO RICO TO MAINTAIN AIR NATIONAL GUARD AIRCRAFT AND ARE PAID FROM FEDERAL FUNDS APPROPRIATED FOR USE OF THE NATIONAL GUARD. THESE TECHNICIANS PERFORM THEIR REGULAR DUTIES IN A CIVILIAN STATUS AND THEY HAVE BEEN HELD BY THIS OFFICE AND THE COURTS TO BE EMPLOYEES OF THEIR RESPECTIVE STATES. GENERALLY, HOWEVER, NATIONAL GUARD TECHNICIANS ARE REQUIRED BY REGULATION TO BE FEDERALLY RECOGNIZED MEMBERS OF THE NATIONAL GUARD OF THEIR RESPECTIVE STATES AND, AS SUCH, THEY ARE REQUIRED BY LAW AND REGULATION TO PERFORM AT LEAST 15 DAYS OF FULL TIME FIELD TRAINING EACH YEAR. REGULATION, NGR 51/ANGR 40-01, THEY ARE AUTHORIZED A MAXIMUM OF 15 DAYS OF MILITARY LEAVE PER YEAR FROM THEIR CIVILIAN POSITIONS WITHOUT CHARGE TO ORDINARY LEAVE OR LOSS OF THEIR CIVILIAN PAY FOR THE PERFORMANCE OF SUCH TRAINING. WHEN A PERIOD OF ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR FULL TIME TRAINING EXCEEDS 15 DAYS, THE REGULATIONS REQUIRE THAT THE TIME IN EXCESS OF 15 DAYS BE CHARGED TO ANNUAL LEAVE OR LEAVE WITHOUT PAY.

IT IS STATED FURTHER IN THE COMMITTEE ACTION THAT THE AIR NATIONAL GUARD HAS BEEN REQUESTED TO PERFORM OPERATIONAL MISSIONS FOR THE AIR FORCE WHICH EXTEND BEYOND THE SCOPE OF NORMAL TRAINING ACTIVITIES. UNDER PRESENT LAW THE PERSONNEL TO PERFORM THESE MISSIONS MUST BE OBTAINED BY CALLING FOR VOLUNTEERS; AND, AS THE MISSIONS WILL EXTEND OVER SEVERAL WEEKS AND VERY FEW NON-TECHNICIAN MEMBERS OF THE NATIONAL GUARD CAN OBTAIN LEAVE FROM THEIR CIVILIAN POSITIONS FOR MORE THAN 2 WEEKS PER YEAR, MOST OF THE PERSONNEL TO PERFORM THE MISSIONS MUST COME FROM THE TECHNICIAN FORCE. SINCE TECHNICIANS WHO VOLUNTEER FOR THIS DUTY WILL NOT HAVE SUFFICIENT LEAVE IN THEIR CIVILIAN POSITIONS TO COVER THESE PERIODS OF ACTIVE DUTY, IT WILL BE NECESSARY TO CARRY THEM IN A LEAVE WITHOUT PAY STATUS WITH AN ATTENDANT LOSS OF TAKE HOME PAY FOR MOST ENLISTED GRADES AND SOME LOW RANKING OFFICER GRADES. THIS LOSS OF PAY, IT IS SAID, IS CONSIDERABLE AND IS MAKING IT DIFFICULT TO SECURE SUFFICIENT QUALIFIED VOLUNTEERS FOR THE PERFORMANCE OF THE MISSIONS. AS A CONSEQUENCE, THE CHIEF, NATIONAL GUARD BUREAU PROPOSES TO AMEND THE REGULATIONS, NGR 51/ANGR 40-01, TO AUTHORIZE PAYMENT OF THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF THE TECHNICIAN'S MILITARY GRADE IN WHICH HE IS SERVING AND THE TECHNICIAN'S PAY TO WHICH HE IS CURRENTLY ENTITLED WHEN HE VOLUNTEERS FOR AND IS ORDERED TO A SHORT PERIOD OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PURSUANT TO SECTION 672(D) OF TITLE 10 OF THE UNITED STATES CODE.

IT IS SUGGESTED IN THE COMMITTEE ACTION THAT SINCE (1) CIVILIAN EMPLOYEES OF THE NATIONAL GUARD OF THE VARIOUS STATES, AS STATE EMPLOYEES, ARE NOT SUBJECT TO THE FEDERAL DUAL EMPLOYMENT, DUAL COMPENSATION OR ADDITIONAL COMPENSATION PROHIBITIONS OR, IF THEY ARE, WOULD BE EXEMPT FORM THE APPLICATION OF SUCH LAWS BY 5 U.S.C. 30R(D) WHEN ON ACTIVE DUTY FOR TRAINING IN THEIR RESERVE STATUS; (2) SECTION 1033 OF TITLE 10 OF THE CODE PROVIDES THAT ANY RESERVE WHO, BEFORE, BEING ORDERED TO ACTIVE DUTY, WAS RECEIVING COMPENSATION FROM ANY PERSON MAY, WHILE HE IS ON THAT DUTY RECEIVE COMPENSATION FROM THAT PERSON; AND (3) SECTION 709(B) OF TITLE 32 OF THE CODE PROVIDES THAT COMPENSATION PAID TO TECHNICIANS UNDER THAT SECTION IS IN ADDITION TO COMPENSATION OTHERWISE PROVIDED FOR A MEMBER OF THE NATIONAL GUARD, THERE MAY BE SOME LEGAL BASIS FOR THE PROPOSAL OF THE CHIEF OF THE NATIONAL GUARD BUREAU. ALSO, IT IS SUGGESTED THAT SINCE, UNDER EXISTING LAW (32 U.S.C. 709(F)), THE SECRETARY OF THE AIR FORCE HAS AUTHORITY TO PRESCRIBE SUCH REASONABLE REGULATIONS AS HE MAY DEEM PROPER RELATIVE TO THE PAY OF TECHNICIANS FOR HOLIDAYS, VACATIONS AND SICK LEAVE, HE MAY IN THE CIRCUMSTANCES IN THIS CASE, AUTHORIZE BY REGULATIONS "SPECIAL MILITARY LEAVE" FOR US TO 90 DAYS DURING WHICH THE CIVILIAN PAY OF THESE TECHNICIANS MAY BE CONTINUED AT A REDUCED RATE.

WE AGREE WITH THE POINT MADE IN THE COMMITTEE ACTION THAT THE DUAL OFFICE, DOUBLE COMPENSATION AND ADDITIONAL COMPENSATION LAWS, HAVE NO APPLICATION IN THIS CASE. IT IS AXIOMATIC HOWEVER, THAT IN THE ABSENCE OF SOME STATUTE PROVIDING OTHERWISE, MEMBERS OF THE ARMED FORCES ON MILITARY DUTY ENTITLING THEM TO PAY AND ALLOWANCES FOR THE PERFORMANCE OF THAT DUTY MAY BE PAID ONLY THE PAY AND ALLOWANCES LEGALLY AUTHORIZED FOR THE GRADE IN WHICH THEY ARE SERVING. IN DECISION OF APRIL 28, 1922, 1 COMP.GEN. 602, IT WAS HELD THAT SINCE ENLISTED MEMBERS OF THE NATIONAL GUARD WERE AUTHORIZED BY SECTION 94 OF THE NATIONAL DEFENSE ACT TO RECEIVE WHILE ATTENDING ENCAMPMENTS ONLY THE PAY AUTHORIZED FOR ENLISTED MEMBERS OF THE REGULAR ARMY OF CORRESPONDING GRADES, A NATIONAL GUARD REGULATION AUTHORIZING PAYMENT OF THE CARETAKER PAY PROVIDED BY SECTION 90 OF THE NATIONAL DEFENSE ACT IN ADDITION TO MILITARY PAY TO SUCH ENLISTED MEMBERS WHO WERE CARETAKERS, WHILE ATTENDING ENCAMPMENTS, WAS CONTRARY TO LAW AND WITHOUT EFFECT. SECTION 90 OF THE NATIONAL DEFENSE ACT WAS AMENDED BY PUBLIC LAW 154, 74TH CONGRESS, APPROVED JUNE 19, 1935, 49 STAT. 291, TO PROVIDE THAT THE COMPENSATION PAID TO CARETAKERS WHO BELONG TO THE NATIONAL GUARD SHOULD BE IN ADDITION TO ANY COMPENSATION AUTHORIZED FOR MEMBERS OF THE "NATIONAL GUARD UNDER ANY OF THE PROVISIONS OF THE NATIONAL DEFENSE ACT." WHILE PROVISIONS WAS ALSO MADE IN THE NATIONAL DEFENSE ACT FOR THE PAY OF MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES (SECTION 111 FOR EXAMPLE), THE 1935 AMENDMENT DOES NOT INCLUDE THAT ORGANIZATION. THE PROVISIONS OF SECTION 90 OF THE NATIONAL DEFENSE ACT ARE CODIFIED IN 32 U.S.C. 709, AND, AS POINTED OUT IN THE COMMITTEE ACTION, THE LAST SENTENCE OF SECTION 709(B) OF TITLE 32 INCLUDES THE ABOVE REFERRED TO PROVISIONS OF THE 1935 AMENDMENT. THE LEGISLATIVE HISTORY OF THE CODE PROVISIONS SHOWS THAT THE TERM, "UNDER ANY OF THE PROVISIONS OF THE NATIONAL DEFENSE ACT," WAS OMITTED AS SURPLUSAGE IN THE CODIFICATION OF SECTION 90. THIS DOES NOT REFLECT ANY INTENTION ON THE PART OF CONGRESS TO MAKE ANY CHANGE IN THE APPLICATION OF SUCH PROVISION. THE PAYMENTS PERMITTED BY THE PROVISION ARE LIMITED TO PAY AUTHORIZED FOR MEMBERS OF THE "NATIONAL GUARD," SPECIFICALLY DEFINED IN TITLE 32 AS A STATE ORGANIZATION AND WE BELIEVE IT MUST BE APPLIED AS HAVING REFERENCE ONLY TO NATIONAL GUARD PAY PROVIDED FOR DUTY SUCH AS THAT AUTHORIZED BY SECTIONS 502 TO 505 OF TITLE 32 OF THE CODE. SINCE THE PAY OF MEMBERS PERFORMING ACTIVE DUTY UNDER 10 U.S.C. 672 IS NOT AUTHORIZED FOR DUTY COMPARABLE TO DUTY AUTHORIZED BY PROVISIONS SUCH AS THOSE FORMERLY CONTAINED IN SECTIONS 92, 94, 97, 99 AND 110 OF THE NATIONAL DEFENSE ACT BUT IS AUTHORIZED BY 37 U.S.C. 204 (AND WAS AUTHORIZED BY PRIOR COMPARABLE PROVISIONS IN MILITARY PAY ACTS) FOR MEMBERS OF THE UNIFORMED SERVICES ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES, IT IS OUR VIEW THAT THE LAST SENTENCE OF SECTION 709(B) OF TITLE 32 NOT ONLY DOES NOT AUTHORIZE THE ADDITIONAL COMPENSATION PROPOSED TO BE PAID IN THIS CASE BUT IMPLIES THAT SUCH ADDITIONAL COMPENSATION SHOULD NOT BE PAID PARTICULARLY SINCE THAT IS THE INTERPRETATION AND APPLICATION ADMINISTRATIVELY GIVEN SUCH SENTENCE DURING THE 30 YEARS SINCE IT WAS ENACTED. NOTHING IN SECTION 204 OF TITLE 37 MAY BE VIEWED AS AUTHORITY FOR THE PAYMENT OF ANY TECHNICIAN PAY IN ADDITION TO THE ACTIVE DUTY PAY WHICH IT PROVIDES AND WE ARE NOT AWARE OF ANY OTHER LAW WHICH MAY BE VIEWED AS SO PROVIDING. IN THIS REGARD THERE HAS NOT BEEN OVERLOOKED 10 U.S.C. 1033, CITED IN THE COMMITTEE ACTION AS A POSSIBLE BASIS FOR THE PROPOSAL OF THE CHIEF, NATIONAL GUARD BUREAU. HOWEVER, THE CONTINUATION OF FEDERAL CIVILIAN PAY UNDER SUCH PROVISIONS FOR INDIVIDUALS ON DUTY IN THE ARMED FORCES HAS NEVER BEEN AUTHORIZED DURING SUCH DUTY AND IF THERE SHOULD BE ANY STATE LAW IMPLEMENTING THAT PROVISION, WE BELIEVE THAT THE FUNDS INVOLVED NECESSARILY WOULD BE STATE FUNDS AND NOT FUNDS APPROPRIATED FROM THE FEDERAL TREASURY.

AS TO WHETHER THE SECRETARY OF THE AIR FORCE, IN THE EXERCISE OF HIS AUTHORITY TO PROVIDE BY REGULATION FOR THE CIVILIAN PAY AND LEAVES OF ABSENCES OF STATE NATIONAL GUARD TECHNICIANS, MAY, IN THE CIRCUMSTANCES OF THIS CASE, AUTHORIZE FOR THEM MILITARY LEAVES OF ABSENCES IN ADDITION TO THE 15 DAYS ALREADY PROVIDED AT A REDUCED RATE OF CIVILIAN PAY, IT MAY BE NOTED THAT THEY LONG HAVE BEEN ASSIMILATED TO FEDERAL CIVILIAN EMPLOYEES FOR PAY AND LEAVE PURPOSES AND THE PRESENT PROVISIONS FOR 15 DAYS OF MILITARY LEAVE ARE PATTERNED AFTER THE FEDERAL STATUTE AUTHORIZING SUCH LEAVE FOR FEDERAL CIVILIAN EMPLOYEES FOR THE PURPOSE OF ANNUAL TRAINING DUTY AS MEMBERS OF THE RESERVE COMPONENTS INCLUDING THE NATIONAL GUARD. CONGRESS HAS NEVER PROVIDED ANY ADDITIONAL MILITARY LEAVE FOR FEDERAL EMPLOYEES FOR THE PERFORMANCE OF ACTIVE DUTY EITHER ON A VOLUNTARY OR AN INVOLUNTARY BASIS. THE PROPOSED ADDITIONAL MILITARY LEAVE FOR THESE STATE NATIONAL GUARD TECHNICIANS WOULD NOT BE AUTHORIZED BECAUSE OF ANY REQUIRED TRAINING DUTY AS MEMBERS OF THE NATIONAL GUARD BUT TO MEET AN OPERATIONAL NEED OF THE UNITED STATES AIR FORCE. IN THAT VIEW THE SOLE PURPOSE OF THE ADDITIONAL LEAVE WOULD BE TO PROVIDE A SUPPLEMENT TO THE PAY AUTHORIZED BY LAW FOR THE DUTY WHICH THEY WOULD BE PERFORMING TO INDUCE THE PERSONNEL CONCERNED TO VOLUNTEER FOR SUCH DUTY. THIS OBVIOUSLY WOULD DISCRIMINATE AGAINST ALL OTHER MILITARY PERSONNEL ON SUCH DUTY. THE SECRETARY'S AUTHORITY IN THIS RESPECT STEMS FROM FEDERAL LAW, TITLE 32 OF THE U.S.C. AND WE DOUBT THAT IN GRANTING SUCH AUTHORITY THE CONGRESS EVER CONTEMPLATED THAT IT WOULD BE USED FOR SUCH A PURPOSE. HENCE, AND HAVING IN MIND THAT THE CIVILIAN PAY COSTS OF THESE NATIONAL GUARD TECHNICIANS ARE PAID FROM APPROPRIATED FUNDS, IT IS OUR VIEW THAT "SPECIAL MILITARY LEAVE" MAY NOT BE PROVIDED AS SUGGESTED IN THE COMMITTEE ACTION WITHOUT THE SPECIFIC APPROVAL OF CONGRESS. WE SEE NO BASIS FOR MAKING ANY DISTINCTION BETWEEN ACTIVE DUTY AND ACTIVE DUTY FOR TRAINING, IN CONNECTION WITH YOUR QUESTION SINCE THE DUTY HERE INVOLVED (WHATEVER IT MIGHT BE TERMED) WOULD, IN FACT, BE FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE.

ACCORDINGLY, YOUR QUESTION MUST BE ANSWERED IN THE NEGATIVE.