I. IN GENERAL.

NATIONAL GUARD

§ 1. Generally.

§ 12. Civilian Personnel.

§ 15. Calling or Ordering into Active Federal Service.

IV. OFFICERS AND ENLISTED MEN.

§ 37. Enlistment and Induction.

§ 71. Discharge, Dismissal or Resignation of Personnel.

I. IN GENERAL

§ 1. Generally

Applicability of Unemployment Compensation Act to members of Air National Guard, see Op JAGAF 1955/10, CIV PERS § 49.1.

§ 12.1. Generally.

§ 12. Civilian Personnel

Applicability of Unemployment Compensation Act to civilian employees of Air National Guard, see Op JAGAF 1955/10, CIV PERS § 49.1.

§ 15. Calling or Ordering into Active Federal Service § 15.1. Generally.

On 6 August 1953 a National Guard sergeant received notice of induction as a selectee. On the same date he applied for active duty. On 26 August he was inducted. On 20 October orders were issued purporting to call him to active duty as of that date. On 1 March 1954 orders were issued purporting to amend the 20 October orders to make them confirm verbal orders of 20 August calling the man to active duty as of that date which would have been prior to his induction. A letter indorsement by the headquarters purporting to call him to active duty stated that his request for active duty was inadvertently received after his induction. Held: The record is devoid of evidence that the man was given an order, verbal or otherwise, to report for active duty pursuant to his application therefor prior to the date he was ordered to report for induction. In fact it appears that his request was not received until after his induction. As a confirming order cannot confirm a fact nonexistent at the date of the order purported to be confirmed, it follows that the orders of 1 March 1954 purporting to confirm verbal orders of 20 August 1953, were legally ineffective to order the man to active duty as of 20 August 1953. (Citing SPJGA 1943/4045, 25 Mar 1943: JAGA 1951/4495, 25 Jul 1951;

JAGA 1953/1016, 19 Jan 1953, 3 Dig Ops PAY § 55.1; JAGA 1953/8934, 9 Nov 1953; JAGA 1954/1172, 25 Jan 1954; JAGA 1954/1238, 14 Jan 1954, 3 Dig Ops RES F § 5.3.) JAGA 1954/6151. 20 July 1954.

§ 40.27. After receipt of orders for induction.

In February 1951, a man enlisted in the National Guard. On 20 November 1953 he received notice of an order from his local selective service board to report for induction on 11 December 1953. On 26 November 1953 he was discharged for the purpose of re-enlisting to enter upon extended active duty and he re-enlisted on 27 November 1953. Held: Under the circumstances set out above, subsec 15 (d), Universal Military Training and Service Act (62 Stat 624, 50 USC App. 465(d)), does not prohibit a re-enlistment (as distinguished from enlistment) after receipt of orders to report for induction. JAGA 1954/7112. 10 September 1954.

§ 41. Appointment of Officers

§ 41.3. Women, generally.

The all male composition of the National Guard, prescribed by secs 57 and 58 of the National Defense Act, as amended (32 USC 1, 4), has not been modified by legislation pertaining to the appointment of female Reserve officers. Accordingly, the appointment of females in the National Guard is precluded by the aforementioned provisions of law. (See subsec 217(b), AFRA of 1952 (66 Stat 486), PL 476, 82d Cong; sec 303, AFRA of 1952 (66 Stat 498, supra); subsec 702(a), AFRA of 1952 (66 Stat 501, supra); JAGA 1948/4927, 22 Jul 1948; CSJAGA 1949/5350, 3 Aug 1949.) JAGA 1954/2994. 19 April 1954.

§ 41.15. Retired persons.

A retired Regular Army officer may be appointed as an officer in the National Guard without effect upon the retired status and obligations or entitlement to retirement pay of such officer. If such officer were appointed as an officer of the National Guard of the United States, he would be required to make the election as to pay required by sec 2, act of 27 September 1950 (64 Stat 1067, 10 USC 369b). As the appointment of officers in the National Guard is a function of the various states, eligibility for such appointment is a matter for determination by state authorities in accordance with state laws and regulations. (Citing JAGA 1951/1025, 16 Apr 1951; JAGA 1952/2784, 3 Apr 1952; JAGA 1953/6464, 6 Aug 1953; JAGA 1953/6755, 14 Aug 1953; JAGA 1954/1902, 18 Feb 1954; JAGA 1954/1358, 1 Feb 1954.) JAGA 1954/2107. 5 March 1954.

§ 41.19. Term of appointment.

Appointments in the National Guard of the United States made prior to 7 December 1941 under the provisions of sec 111, National Defense Act (formerly 32 USC 81) and in force at the outbreak of war (7 December 1941), were continued in force until six months after its termination under the provisions of sec 38, National Defense Act, as amended (32 USC 19). Appointments thus continued were further continued until 1 April 1953 by Executive Order No. 10397, 25 September 1952, 17 FR 8605. Certain of these appointments were further continued beyond 1 April 1953 where persons holding such appointments were on active duty on such date and determined, as provided in the Missing Persons Act (56 Stat 143), as amended (50 USC Appx 1001 et seq.), to have been in a status of missing, missing in action, interned, captured, beleagured, or beseiged at any time after 25 June 1950 and before the termination of the National emergency proclaimed on 16 December 1950, by Proclamation No. 2914 (EO 10441, 31 Mar 1953, 18 FR 1824; EO 10466, 30 Jun 1953, 18 FR 3777). (Citing JAGA 1952/7086, 20 Oct 1952, 2 Dig Ops, NG § 41.19.) JAGA 1954/5573. 24 June 1954.

§ 53. Pay and Allowances

§ 53.3. Active duty pay.

Orders issued by direction of the President under the authority of the Selective Service Extension Act of 1950, PL 599, 81st Congress, ordered a National Guard sergeant to active duty effective 22 August 1950 and concurrently relieved him from duty with the South Dakota National Guard. Orders dated 22 August 1950, and issued by the headquarters of his National Guard unit advanced him from sergeant to the grade of sergeant first class. Morning reports disclosed that from 22 August 1950 to 1 September 1950 he was on detached service at his assigned station pursuant to the orders to active duty. His assignment on detached service was terminated effective 1 September 1950 and he was discharged the same day pursuant to orders which stated he was discharged from the military service of the United States not by reason of physical disability but having been found physically disqualified for entry into active federal service. Section 201(e) of the Career Compensation Act of 1949, 63 Stat 807, 37 USC 232(e), provides that all members of the uniformed services when on the active list, when on active duty, or when participating in other full time duty (provided for or authorized in the National Defense Act, as amended, or in other provisions of law) shall be entitled to receive the basic pay of the grade to which assigned or in which distributed in accordance with cumulative years of service. Held: The sergeant's status during the period 22 August 1950 to 1 September 1950 came within the scope of sec 201(e) of the 1949 Act. It follows that he was entitled to receive the basic pay of a sergeant first class, in accordance with the cumulative years of service to his credit for that period. (See 4 Comp Gen 872. To the extent that the decision in B-91351, 12 Apr 1950, 9 Bull. JAG 106, 29 Comp Gen 402, may be inconsistent it should no longer be followed.) MS Comp Gen B-119981, 34 Comp Gen 369. 3 February 1955.

Current law and regulations pertaining to the National Guard contemplate the payment of armory drill pay, if otherwise proper, in cases where only one individual is present at an assembly. Hence, payment is authorized on an armory drill pay roll of a National Guard unit showing that only one individual attended six of the ten drills ordered for a certain period. (Citing pars 14, 19 and 20, National Guard Regulations No. 45, 14 July 1952; National Guard Regulations No. 58, 22 July 1953; sec 501(a), Career Compensation Act of 1949, 63 Stat 825; 29 Comp Gen 223. Distinguishing 8 Comp Gen 373, 19 Jan 1929.) MS Comp Gen B-116781, 33 Comp Gen 547. 12 May 1954.

Prior to 16 February 1948, a National Guard officer performed duty as a federally recognized colonel with duty assignment as group commander of a quartermaster group. By orders issued on 16 February 1948 he was promoted to brigadier general with duty assignment as commander of an antiaircraft artillery brigade. Federal recognition in the grade of brigadier general was not granted until 10 November 1949. During the period 8 March 1948 to 31 August 1949, the officer received payments of armory drill and administrative function pay as a colonel. Exceptions were taken to such payments for the reason that the payee ceased to function as a colonel, Quartermaster Corps, on and after the date of his transfer to the antiaircraft artillery brigade in the grade of brigadier general. Held: The officer was not entitled to pay for armory drill and performance of administrative functions as a colonel in the National Guard during the period 16 February 1948 to 9 November 1949 and amounts so paid should be recovered. Since the officer relinquished his commission as a colonel upon accepting his commission as a brigadier general, sec 501 (c) of the Career Compensation Act of 1949, 63 Stat 826, does not grant him any right to pay for the performance of administrative functions of a colonel, a rank not held by him during that period. (Citing 30 Comp Gen 199; 15 Comp Gen 280; Comp Gen B-110553, 25 Nov 1952.) MS Comp Gen B100308, 34 Comp Gen 273. 3 December 1954.

§ 61.1. Generally.

§ 61. Injuries, Disability, or Death

A National Guardsman was taken sick and hospitalized during a training period. After the training period was over he was kept in the hospital although neither the hospital nor the National Guard Bureau authorities knew whether the illness was incurred in line of duty. Subsequently there was a determination that the illness had been incurred not in line of duty. There was no record of notice to the hospital or of any attempt by Federal authorities to terminate the hospitalization. A National Guard Bureau letter stated that action to discharge the man should be deferred until his release from the hospital because in that way he would be returned home at Government expense after maximum benefits from hospitalization had been

received. The nature of the illness and the basis for the finding of not in line of duty were not disclosed in the file. Held: The Act of 15 July 1939 (53 Stat 1042), as amended (32 USC 164d), authorizes the Secretary of the Army, under such regulations as he may prescribe, to require the hospitalization and medical care, so long as necessary, of certain members of the National Guard and National Guard of the United States, without reference to their line of duty status. Regulations in effect at the time the man herein was hospitalized (2 July 1950) authorized medical care at Government expense only during the period of their training duty for members of the National Guard and National Guard of the United States who contracted disease not in line of duty. Accordingly, based on the information stated herein and in the absence of evidence that the man was required by the Army to accept medical care against his wishes and received no benefit from the medical service furnished him, he was not legally entitled to hospitalization at Government expense for the period after termination of his training period. (Citing DA Memo 40-590-18, 14 June 1948 as changed by C 1, 14 July 1949; AR 40-505, 5 December 1945, as changed by C 2, 22 August 1946, C 3, 2 March 949; NGR 62, 26 February 1947, as changed by C 1, 3 September 1948, C 2, 8 November 1948, C 3, 31 March 1949 and C 4, 31 January 1950; JAG 701, 15 September 1939; SPJGA 1943/887, 29 January 1943; JAGA 1953/6361, 11 August 1953; JAGA 1953/8756, 23 November 1953; JAGA 1953/5971, 24 July 1953 and other opinions.)

Held also: If in the opinion of the Secretary of the Army the interests of the Government are best served by such action, any indebtedness of the man to the United States arising out of his hospitalization subsequent to the expiration of the period of his training duty may be remitted and cancelled by the Secretary of the Army under the provisions of the Act of 22 May 1928 (45 Stat 698), as amended (10 USC 875a) if the man is still a member of the Army. (Citing JAGA 1953/1437, 5 February 1953; JAGT 1954/2744, 20 October 1954; cf. JAGA 1955/1438, 10 February 1955.) JAGA 1955/1329. 9 February 1955.

§ 61.5. Injuries incurred during drill duty, training duty, or encampment.

A member of a federally recognized National Guard unit reported to the armory for training duty. The drill was to commence at 1930 hours and prior thereto, at 1915 hours, he injured his wrist while engaged in a basketball game with other members of the organization. Held: The injury was incurred not in line of duty but not due to his own misconduct. (Citing JAGA 1951/5491, 7 Sep 1951; JAGA 1951/5394, 12 Sep 1951; cf. JAGA 1950/6881, 30 Nov 1950; JAGA 1951/2883, 17 May 1951; JAGA 1952/5057, 12 Jun 1952, 2 Dig Ops, NG § 61.5.) JAGA 1954/6927. JAGA 1954/6927. 20 August

1954.

Rights of persons injured while on active duty for training to benefits under the last proviso of sec 5, act of 3 April 1939 (53 Stat 557) as amended by, inter alia, sec 2, act of 20 June 1949 (63 Stat 202, 10 USC 456), see JAGA 1954/5784, RES F § 61.1.