B-142610, JUN. 9, 1960

B-142610, JUN. 9, 1960

TO THE SECRETARY OF DEFENSE:

BY LETTER OF FEBRUARY 4, 1960, OUR CLAIMS DIVISION ADVISED THE NATIONAL GUARD BUREAU THAT MR. JOHN A. DROSSOPOULOS, AF 34 086 246, A MEMBER OF THE FEDERALLY RECOGNIZED GEORGIA AIR NATIONAL GUARD, IS INDEBTED TO THE UNITED STATES BY REASON OF AN ERRONEOUS PAYMENT MADE TO HIM WHILE HE WAS SERVING AS MASTER SERGEANT, UNITED STATES AIR FORCE, AND REQUESTED THAT COLLECTION ACTION BE TAKEN PURSUANT TO THE ACT OF JULY 15, 1954, 68 STAT. 482 (5 U.S.C. 46D).

THIS REQUEST WAS IN ACCORD WITH LETTER DATED AUGUST 24, 1959, B 140309, B -138869, TO THE CHIEF, NATIONAL GUARD BUREAU, COPY ENCLOSED.

BY LETTER OF FEBRUARY 24, 1960 (NG-LA), THE NATIONAL GUARD BUREAU EXPRESSED DOUBT AS TO THE PROPRIETY OF COMPLYING WITH THE REQUEST OF OUR CLAIMS DIVISION AND REQUESTED A DECISION AS TO WHETHER THERE IS AUTHORITY UNDER THE ACT OF JULY 15, 1954, TO COLLECT FROM PAY DUE A MEMBER OF THE NATIONAL GUARD FOR SERVICE PERFORMED BY HIM IN HIS STATE STATUS AND NOT AS A MEMBER OF A RESERVE COMPONENT IN FEDERAL STATUS.

THE BUREAU'S DOUBT APPEARS TO BE PREDICATED ON THE VIEW THAT THE AUTHORITY TO COLLECT UNDER THE CITED ACT IS CONFINED TO CASES WHERE A MEMBER OF A RESERVE COMPONENT WHO IS INDEBTED TO THE UNITED STATES EARNS PAY IN A WHOLLY RESERVE TRAINING STATUS, IN WHICH EVENT THE INDEBTEDNESS MAY BE COLLECTED FROM HIS CURRENT PAY ACCOUNT. THE BUREAU STATES THAT THE ARMY NATIONAL GUARD AND AIR NATIONAL GUARD AS SUCH ARE NOT RESERVE COMPONENTS; THAT MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES WHILE TRAINING IN THEIR ARMY OR AIR NATIONAL GUARD STATUS ARE UNDER CONTROL OF STATE AUTHORITIES, AND THEREFORE THAT ANY ARMORY DRILL OR FIELD TRAINING PAY TO WHICH MR. DROSSOPOULOS MAY BE ENTITLED IS DUE HIM BY REASON OF DUTY IN A NATIONAL GUARD STATUS AND NOT BY REASON OF HIS MEMBERSHIP IN A RESERVE COMPONENT.

THE ACT OF JULY 15, 1954, 5 U.S.C. 46D, PROVIDES AS FOLLOWS:

"WHEN IT IS DETERMINED BY THE SECRETARY OF THE DEPARTMENT CONCERNED OR THE HEAD OF THE AGENCY OR INDEPENDENT ESTABLISHMENT CONCERNED, OR ONE OF THEIR DESIGNEES, THAT AN EMPLOYEE OF THE UNITED STATES OR ANY MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD, OR A RESERVE COMPONENT THEREOF, IS INDEBTED TO THE UNITED STATES AS THE RESULT OF ANY ERRONEOUS PAYMENT MADE BY THE DEPARTMENT, AGENCY, OR INDEPENDENT ESTABLISHMENT CONCERNED TO OR ON BEHALF OF ANY SUCH PERSON, THE AMOUNT OF THE INDEBTEDNESS MAY BE COLLECTED IN MONTHLY INSTALLMENTS, OR AT OFFICIALLY ESTABLISHED REGULAR PAY PERIOD INTERVALS, BY DEDUCTION IN REASONABLE AMOUNTS FROM THE CURRENT PAY ACCOUNT OF SUCH PERSON. THE DEDUCTIONS MAY BE MADE ONLY FROM BASIC COMPENSATION, BASIC PAY, AND INCENTIVE PAY, RETIRED PAY, RETAINER PAY, OR IN THE CASE OF PERSONS NOT ENTITLED TO BASIC PAY, OTHER AUTHORIZED PAY. COLLECTION SHALL BE EFFECTED OVER A PERIOD NOT GREATER THAN THE ANTICIPATED PERIOD OF ACTIVE DUTY OR PERIOD OF EMPLOYMENT, AS THE CASE MAY BE. THE AMOUNT DEDUCTED FOR ANY PERIOD SHALL NOT EXCEED AN AMOUNT EQUAL TO TWO-THIRDS OF THE PAY FROM WHICH THE DEDUCTION IS MADE, UNLESS THE DEDUCTION OF A GREATER AMOUNT IS NECESSARY TO EFFECT COLLECTION WITHIN THE PERIOD OR ANTICIPATED PERIOD OF ACTIVE DUTY OR EMPLOYMENT. IF SUCH INDIVIDUAL RETIRES, RESIGNS, OR HIS EMPLOYMENT OR PERIOD OF ACTIVE DUTY IS OTHERWISE TERMINATED BEFORE SUCH ADJUSTMENT HAS BEEN COMPLETED, ADJUSTMENT SHALL BE MADE BY DECREASING SUBSEQUENT PAYMENTS, OF WHATEVER NATURE, DUE SUCH PERSON BY THE DEPARTMENT, AGENCY, OR INDEPENDENT ESTABLISHMENT CONCERNED. NOTHING IN THIS SECTION SHALL MODIFY ANY EXISTING LAW WHICH PROVIDES FOR FORFEITURE OF PAY OR ALLOWANCES.'

AS THE NATIONAL GUARD BUREAU POINTS OUT, THE ARMY NATIONAL GUARD AND THE AIR NATIONAL GUARD ARE NOT RESERVE COMPONENTS OF THE ARMY AND AIR FORCE. THE NATIONAL GUARD RESERVE COMPONENTS ARE THE ARMY NATIONAL GUARD OF THE UNITED STATES AND THE AIR NATIONAL GUARD OF THE UNITED STATES. ENLISTED MEMBERS OF FEDERALLY RECOGNIZED STATE NATIONAL GUARD UNITS, HOWEVER, ARE CONCURRENTLY ENLISTED IN THE NATIONAL GUARD OF THE UNITED STATES. COMPARE PARAGRAPHS 9 AND 12 OF ARMY REGULATIONS 130-15 AND 5 AND 15, AIR NATIONAL GUARD REGULATIONS 39-9. WHILE MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES ARE NOT IN ACTIVE FEDERAL SERVICE EXCEPT WHEN ORDERED THERETO, AND WHEN NOT ON ACTIVE DUTY THEY ARE TRAINED IN THEIR STATUS AS MEMBERS OF THE NATIONAL GUARD, THEIR INACTIVE-DUTY TRAINING IS NEVERTHELESS TRAINING IN THE SERVICE OF THE UNITED STATES (10 U.S.C. 101 (31) ( AND THEIR PAY ACCRUES ON THAT BASIS. SECTION 501 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 301.

HENCE, WE BELIEVE THAT MEMBERS OF THE NATIONAL GUARD WHO ARE MEMBERS OF A FEDERALLY RECOGNIZED STATE UNIT ARE MEMBERS OF A RESERVE COMPONENT FOR PURPOSES OF THE 1954 ACT. 34 COMP. GEN. 504, 508. THEIR INACTIVE-DUTY TRAINING PAY ACCRUES ON THE BASIS THAT SUCH TRAINING IS UNITED STATES SERVICE AND IS PAID BY THE GOVERNMENT. IT FOLLOWS THAT PAYMENTS OF SUCH PAY ARE PAYMENTS WHICH ARE SUBJECT TO REDUCTION UNDER THE 1954 ACT TO SATISFY INDEBTEDNESSES WITHIN THE PURVIEW OF THE ACT. THIS VIEW APPARENTLY IS CONCURRED IN BY THE DEPARTMENT OF DEFENSE. SECTION V, DEPARTMENT OF DEFENSE DIRECTIVE 7330.2. ALSO, IT MAY BE NOTED THAT NATIONAL GUARD DRILL PAY OVERPAYMENTS LONG HAVE BEEN REGARDED AS PROPER OFFSETS AGAINST OTHER PAY DUE FROM THE UNITED STATES. DECISION OF JUNE 30, 1924, A-3467.