B-16762, MAY 16, 1941, 20 COMP. GEN. 786

B-16762, MAY 16, 1941, 20 COMP. GEN. 786

PAY - LONGEVITY - SERVICE CREDITS - NATIONAL GUARD A NATIONAL GUARD OFFICER ON ACTIVE DUTY AND ENTITLED TO FEDERAL PAY MAY NOT COUNT FOR LONGEVITY PAY PURPOSES A PERIOD DURING WHICH HE HELD A COMMISSION IN THE NATIONAL GUARD OF THE UNITED STATES AND AT THE SAME TIME SERVED IN AN ENLISTED STATUS IN THE NATIONAL GUARD OF A STATE, SINCE THE ONLY SERVICE INVOLVED WAS NOT COMMISSIONED SERVICE AND HIS STATUS AS AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES PRIOR TO ITS ORDER INTO THE FEDERAL SERVICE MERELY IMPOSED ON HIM A LIABILITY TO BE SO ORDERED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJ. B. H. GRABAN, U.S. ARMY, MAY 16, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED APRIL 4, 1941, FORWARDED TO THIS OFFICE BY FIRST INDORSEMENT DATED MAY 8, 1941, REQUESTING DECISION AS TO WHETHER SERVICE IN THE NATIONAL GUARD OF THE UNITED STATES MAY BE CONSIDERED IN THE COMPUTATION OF LONGEVITY PAY FOR CAPT. HENRY M. SMICK, INF-NG. A VOUCHER IN THE AMOUNT OF $9.33, REPRESENTING LONGEVITY PAY FOR THE PERIOD FEBRUARY 3 TO 28, 1941, WAS TRANSMITTED WITH YOUR LETTER.

THE OFFICIAL NATIONAL GUARD REGISTER FOR THE YEAR 1939, PAGE 536, SHOWS AS FOLLOWS:

PRIVATE PVT/1CL CORP SGT INF AND SSC AND D 13 NOV 34 TO 5 JULY 39 ( NGUS INF 2 LT 16 DEC 35 1 LT 2 FEB 39 TO 22 OCT 39) 2 LT INF 6 JULY 39

THIS INDICATES THAT CAPTAIN SMICK WAS AN OFFICER IN THE NATIONAL GUARD OF THE UNITED STATES FROM DECEMBER 16, 1935, TO JULY 5, 1939, AND AN OFFICER OF THE NATIONAL GUARD OF HIS STATE JULY 6, 1939, PRESUMABLY TO THE PRESENT TIME; THAT AT THE BEGINNING OF THIS PERIOD HE WAS IN AN ENLISTED STATUS IN THE NATIONAL GUARD OF THE STATE AND SUCH STATUS CONTINUED UNTIL JULY 6, 1939, ON WHICH DATE HE WAS MADE AN OFFICER IN THE NATIONAL GUARD OF THE STATE. THE OFFICER IS NOW ON ACTIVE DUTY AS AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES AND IS ENTITLED TO PAY UNDER SECTION 3 OF THE ACT/OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250, 37 U.S.C. 7, WHICH 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.

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 III 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 III OF THE ACT REFERRED TO IN SECTION 58, SUPRA, PROVIDES THAT WHEN CONGRESS SHALL HAVE DECLARED A NATIONAL EMERGENCY AND SHALL HAVE AUTHORIZED THE USE OF LAND FORCES OF THE UNITED STATES FOR ANY PURPOSE REQUIRING THE USE OF TROOPS IN EXCESS OF THOSE OF THE REGULAR ARMY, THE PRESIDENT MAY ORDER THE NATIONAL GUARD OF THE UNITED STATES INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES. THE LAST PARAGRAPH OF THE SECTION IS AS FOLLOWS:

IN THE INITIAL MOBILIZATION OF THE NATIONAL GUARD OF THE UNITED STATES, WAR-STRENGTH OFFICER PERSONNEL SHALL BE TAKEN FROM THE NATIONAL GUARD AS FAR AS PRACTICABLE, AND FOR THE PURPOSE OF THIS EXPANSION WARRANT OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD MAY, IN TIME OF PEACE, BE APPOINTED OFFICERS IN THE NATIONAL GUARD OF THE UNITED STATES AND COMMISSIONED IN THE ARMY OF THE UNITED STATES.

SECTION 38 OF THE NATIONAL DEFENSE ACT, AS AMENDED AND REENACTED BY SECTION 4 OF THE ACT OF JUNE 15, 1933, 48 STAT. 155, PROVIDES:

ALL PERSONS APPOINTED OFFICERS IN THE NATIONAL GUARD OF THE UNITED STATES ARE RESERVE OFFICERS AND SHALL BE COMMISSIONED IN THE ARMY OF THE UNITED STATES. * * *

FROM THE FOREGOING, IT IS EVIDENT THAT WHILE THE NATIONAL GUARD OF THE UNITED STATES IS A RESERVE COMPONENT OF THE ARMY, IT IS COMPOSED OF CERTAIN UNITS, ORGANIZATIONS, AND PERSONS OF THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, AND ALTHOUGH ITS MEMBERS HAVE THE STATUS OF RESERVES OF THE ARMY, WHEN NOT IN THE ACTUAL SERVICE OF THE UNITED STATES ALL THE MILITARY DUTY TO WHICH THEY ARE SUBJECT IS IN THE NATIONAL GUARD OF THE STATE. THEY 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 NO SERVICE IN THE NATIONAL GUARD OF THE UNITED STATES UNTIL IT IS ORDERED INTO THE ACTIVE SERVICE OF THE UNITED STATES AND WHEN NOT IN ACTIVE SERVICE THERE IS MERELY A LIABILITY TO SERVICE IMPOSED BY LAW UPON MEMBERS OF THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA. SEE 20 COMP. GEN. 136.

SECTION 71 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 9 OF THE ACT OF JUNE 15, 1933, 48 STAT. 157, IS AS FOLLOWS:

IN THIS ACT, UNLESS THE CONTEXT OR SUBJECT MATTER OTHERWISE REQUIRES --

(A) " NATIONAL GUARD" OR " NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA" MEANS THAT PORTION OF THE ORGANIZED MILITIA OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, ACTIVE AND INACTIVE, FEDERALLY RECOGNIZED AS PROVIDED IN THIS ACT AND ORGANIZED, ARMED, AND EQUIPPED IN WHOLE OR IN PART AT FEDERAL EXPENSE AND OFFICERED AND TRAINED UNDER PARAGRAPH 16, SECTION 8 ARTICLE I OF THE CONSTITUTION.

(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 73OF 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.

UNDER THE PROVISIONS OF SECTION 3 OF THE JOINT SERVICE PAY ACT, JUNE 10, 1922, 42 STAT. 627, AN OFFICER OF THE NATIONAL GUARD ENTITLED TO FEDERAL PAY MAY COUNT FOR LONGEVITY PAY PURPOSES COMMISSIONED SERVICE IN THE " NATIONAL GUARD.' THE TERM " NATIONAL GUARD" AS THERE USED REFERS TO THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, AND SINCE NO CONTRARY INTENT APPEARS IN LATER STATUTES IT MUST BE HELD TO HAVE THE ORIGINAL MEANING WHEN FIRST USED IN SECTION 3.

CAPTAIN SMICK IS NOT AUTHORIZED TO COUNT FOR LONGEVITY PAY PURPOSES HIS NATIONAL GUARD SERVICE PRIOR TO JULY 6, 1939, BECAUSE SUCH SERVICE WAS NOT COMMISSIONED SERVICE AND HIS STATUS AS A COMMISSIONED OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES DURING HIS ENLISTED STATUS IN THE NATIONAL GUARD DOES NOT GIVEN HIM GREATER RIGHTS TO A LONGEVITY INCREASE. A NATIONAL GUARD OFFICER ON ACTIVE DUTY AND ENTITLED TO FEDERAL PAY MAY COUNT FOR LONGEVITY PAY PURPOSES ONLY THAT SERVICE WHICH IS SPECIFICALLY AUTHORIZED BY LAW TO BE COUNTED FOR SUCH PURPOSE, AND NO PROVISION HAS BEEN MADE FOR COUNTING TIME DURING WHICH A COMMISSION WAS HELD IN THE NATIONAL GUARD OF THE UNITED STATES WHILE IN AN ENLISTED STATUS IN THE NATIONAL GUARD OF A STATE.

ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT OF THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED, SINCE CAPTAIN SMICK DOES NOT HAVE THE REQUIRED 3 YEARS' SERVICE TO BE ENTITLED TO LONGEVITY PAY.