On 20 October 1952, General Temple, through a direct appointment, became a second lieutenant in the California Army National Guard and was assigned as Platoon Leader, Company A, 160th Infantry Regiment, 40th Infantry Division. From 8 April 1953 to 30 June 1954 he commanded Company C, 160th Infantry Regiment. Subsequent assignments were as Liaison Officer and Combat Command Motor Officer until his promotion to first lieutenant on 19 October 1955 when he was assigned as Company Commander, Headquarters and Headquarters Company, Combat Command A, 40th Armored Division. He was promoted to captain on 20 May 1958 and assigned as Headquarters Commandant, 40th Armored Division on 12 November 1959. On 1 June 1962 he was promoted to the grade of major.

General Temple served as Assistant G-1 and Acting G-1, 40th Armored Division and S-1 of the 40th Division Support Command until his assignment on 15 September 1966 as Battalion Commander, 40th Supply and Transportation Battalion, 40th Armored Division. He was promoted to lieutenant colonel on 16 November 1966, and on 20 September 1967 he became the Commanding Officer, 3d Battalion, 160th Infantry, 40th Infantry Brigade (Separate).

Effective 22 July 1968 he was assigned as an Operations and Training Officer, Headquarters and Headquarters Detachment, California National Guard. He became the Commandant, California Military Academy (State OCS) on 15 October 1970 and was promoted to colonel on 1 November 1970. During the period 22 July 1968 to 3 March 1971 General Temple served as the Military Assistant to the Governor of California.

He was assigned as the Deputy Brigade Commander, 49th Infantry Brigade (Separate) on 1 November 1971 and on 13 January 1974 became the Commanding Officer, 3d Brigade, 40th Infantry Division (Mechanized).

General Temple attended the United States Army War College from 14 July 1974 to May 1975. After receiving his Masters Degree in public administration he reported to the National Guard Bureau on 12 September 1975 as the Chief, Office of Mobilization Readiness. On 1 September 1976 he became Chief, Office of Policy and Liaison. On 1 October 1978 he was promoted to brigadier general and became Deputy Director, Army National Guard.

Decorations and awards

Meritorious Service Medal, Army Commendation Medal, Good Conduct Medal, National Defense Service Medal, Korean Service Medal with one Bronze Service Star, Armed Forces Reserve Medal with two Hourglass Devices, Army Reserve Components Achievement Medal, United Nations Service Medal, Combat Infantryman Badge, Army General Staff Identification Badge.

Civic affiliations

National Guard Association of the United States, United States Strategic Institute, Inter-University Seminar on the Armed Forces and Society, American Society for Public Administration, Association of the United States Army, Al Malaikah Shrine, Los Angeles Athletic Club, National Guard Association of California.

Senator BAYH. The next witness is Maj. Gen. Francis S. Greenlief, executive vice president, National Guard Association, accompanied by Col. William Blatt, legal counsel of the National Guard Association. I might point out that General Greenlief is in the unique position to be able to tell us from what he saw as the chief of the National Guard Bureau in the Department of Defense. He was in active. service. He is, I notice, joined by General Ahner, the Adjutant General of the Indiana National Guard and the president of the Adjutant General Association.

We are proud to have him here. Maybe he can speak as to professional Guard service for the hearings today.

TESTIMONY OF MAJ. GEN. FRANCIS S. GREENLIEF, EXECUTIVE VICE PRESIDENT, NATIONAL GUARD ASSOCIATION, ACCOMPANIED BY COL. WILLIAM BLATT, LEGAL COUNSEL, NATIONAL GUARD ASSOCIATION

General GREENLIEF. Good morning gentlemen, members of the subcommittee, I am delighted to have the opportunity to present the views of the National Guard Association. I am accompanied by Col. William Blatt, general counsel of our association.

The National Defense Act of 1916 included the National Guard, while in the service of the United States, as a part of the Army of the United States. It prescribed the organization and training of the National Guard, and provided for the appropriation of Federal funds to support National Guard training while in State status. Congress improved upon that act by the enactment of subsequent laws which equated training duty performed by members of the National Guard under that act, now codified under sections 502-505, title 32, with like duty performed by members of the Army Reserve and Air Force Reserve under title 10, United States Code.

Enactment of S. 1858 would provide a capstone to the legislative enactments which have clarified the State-Federal relationships of the National Guard.

For example, under title 5, United States Code, members of the Guard who are Federal employees are entitled to military leave with pay for the purpose of attending annual training under 32 U.S.C. 503. Their full-time training duty under 32 U.S.C. 503 through 505 is creditable in determining entitlement to retired pay for nonregular service and the amount of that pay.

Title 37 provides the same pay for their inactive duty training under 32 U.S.C. 502, and pay and allowances for full-time training under other provisions of that title, as it does for members of the Army Reserve and Air Force Reserve performing inactive duty or active duty for training.

Guardsmen are entitled to benefits provided by title 38, veterans' benefits, for title 32 duty to the same extent as Army and Air Force reservists in like circumstances. These include medical care, compensation for service-connected injuries or death, insurance, reemployment rights, and other death benefits. Their full-time duty pay is subject to social security taxes under title 42.

The concept in its purest form was expressed in section 714 of the Armed Forces Reserve Act of 1952. That section, since codified in sections 3686 and 8686 of title 10, reads in pertinent part, and I quote:

For the purposes of laws providing benefits for members of the Army, or Air, National Guard of the United States (2) full-time training-performed by a member of the Army, or Air, National Guard of the United States in his status as a member of the Army, or Air, National Guard under sections 316 and 503-505 of title 32 for which he is entitled to pay from the United States, or for which he has waived such pay, shall be considered active duty for training in Federaland I underline Federal

service as a Reserve of the Army (Air Force); and

(3) inactive-duty training performed by a member of the Army (Air) National Guard of the United States in his status as a member of the Army (Air) National

Guard, in accordance with regulations prescribed under section 502 of title 32— shall be considered inactive duty training in Federal

again I underline, in Federal

service as a Reserve of the Army (Air Force).

Nevertheless, members of the National Guard are not considered to be in Federal service for the purposes of the Federal Tort Claims Act when they are performing training duty under title 32 except in the case of members of the District of Columbia National Guard, whose commanding general is appointed by the President.

Members of the Army Reserve and Air Force Reserve performing training duty under title 10 are, of course, in Federal service, and are covered by FTCA.

Incidentally, members of the National Guard employed as technicians under 32 U.S.C. 709 are Federal employees, and are therefore covered by the FTCA for acts or omissions in that capacity.

A partial solution to the problem which S. 1858 would solve was provided in annual appropriation acts before 1960. They authorized payment of claims, not in excess of $1,000, for property damage incident to National Guard camps of instruction.

But the post-World War II years had seen a greatly increased emphasis on the Federal mission of the National Guard. That was best exemplified when the Army National Guard took over many of the Active Army's NIKE Hercules onsite air defense installations, and manned them on a full-time basis. This exposure to new claims of unprecedented magnitude obviously demanded appropriate Federal legislation.

A number of bills which would have extended the Federal Tort Claims Act to cover title 32 National Guard activities were introduced. Those bills were rejected, largely because the Department of Justice opposed them on grounds that the master-servant relationship on which FTCA was said to be predicated did not exist when the National Guard were performing training under title 32 in its militia status. Instead, section 715 of title 32, patterned after the Military Claims Act as codified in section 2733 of title 10, was enacted on September 13, 1960.

Section 715 of title 32 authorizes the administrative settlement of claims for property damage, personal injury, or death caused by members of the National Guard engaged in training under provisions of that title. The Secretary of the Army or the Air Force, as appropriate, may now approve claims not in excess of $25,000.

If the claim exceeds that amount and if the Secretary considers it meritorious, he may pay the $25,000 and report the balance to the Congress for its consideration, just as he does with respect to claims filed under section 2733 of title 10.

In the main, this compromise legislation has worked well. However, a few weaknesses have become evident. Some claims have proven controversial, and there is no mechanism for resolving them. Active Army commanders concerned over potential liability have refused to permit Army Guard military personnel to carry loaded weapons under circumstances in which their Active duty and Army Reserve counterparts are armed.

Similarly, Active Air Force commanders refuse to permit Air National Guard members serving under title 32-performing Federal

security missions to carry loaded weapons. Such actions seriously degrade morale and the state of training.

A person who has been injured, or sustained property damage, may sue the individual member of the National Guard. Some State laws, for example, those of Virginia, provide immunity for the Guard member if he is acting in line of duty, that is, in the scope of his employment.

Of course, that law does not protect the Virginia Guard member if the injury or damage occurred in another State and a court of that latter State obtained jurisdiction. The injured or damaged party may in any case be without meaningful remedy because of the limited financial capability of the average National Guard member.

A number of States have waived their sovereign immunity and permitted suit to be brought against them for the tortious acts or omissions of Guard members. However, a number of these laws, either by their terms or judicial construction, have been held to apply only to State-mandated duty, such as providing military aid to the civil authority in disaster relief, and not to training duty required by Federal law, title 32, and paid from Federal funds. This is the construction. required by Iowa law, which resulted in a classic confrontation between the Governor of that State and the Air Force.

The deserving claimant in that case might have been unpaid to this day had not the Governor threatened to ground all of his Army and Air National Guard aircraft until the matter was resolved.

Whatever merit there may have been in the Department of Justice opposition in years past to extension of the FTCA to National Guard training activities, vanished completely when the Congress authorized suits against the United States under that act for injury or death resulting from swine flue vaccine produced by private pharmaceutical companies.

The essential ingredient is no longer the presence or absence of the Federal master-servant relationships, but rather whether there is an important and substantial Federal interest in the end product, be it atomic energy, swine flu immunization, or the training of the National Guard for its State and Federal missions.

S. 1858 should be enacted in the interest of making the "One Army" and "One Air Force" policy a reality. It should be enacted so that National Guard members performing federally required and paid training will have the same protection against financial liability as their Army and Air Force Reserve counterparts enjoy.

It should be enacted so that deserving citizens will have an adequate remedy in the case of injury or property damage resulting from federally authorized activities of the National Guard. And it should be enacted so that the interests of the United States will be safeguarded by the nonjury provisions governing such cases in the Federal courts. The case, Mr. Chairman, to which you alluded to earlier; the deserving claimant in that case might have been unpaid to this day.

Mr. Chairman, I appreciate your introduction of S. 1858 and the cosponsorship of Senators Young, Cannon, Inouye, Burdick, Morgan, Armstrong, Javits, Bumpers, Wallop, Melcher, Ford, Hollings, Heflin, Thurmond, Pell, Percy, Durenberger, Jackson, Bentsen, Simpson, Stewart, Boren, Pressler, Leahy, Garn, DeConcini, Laxalt, Mathias, Cochran, Matsunaga, Gravel, Biden, and Baucus, and I have appreciated this opportunity to testify in support of S. 1858.

Before I close, Mr. Chairman, I would like to make a short addendum. Mr. Farley of the Justice Department said in testimony earlier that S. 1858 would make National Guardsmen serving in training duty Federal employees. I do not believe that is so at all. I see nothing in the law that makes National Guardsmen serving under title 32 Federal employees. The Constitution has already determined that they are not.

All S. 1858 does is to include National Guardsmen performing training duty under title 32 in the definition of Federal employees for the purposes of the Federal Tort Claims Act.

I submit, Mr. Chairman, and Senator Thurmond, that there is adequate precedent for that. The Swine Flu Act provided the coverage of the Federal Tort Claims Act to pharmaceutical houses who most certainly enjoyed no servant relationship with the Federal Government.

Second, sections 3686 and 8686 of title 10 provide benefits to National Guardsmen as if they were on active duty under title 10. That is simply all we ask under S. 1858.

The precedents are there; the Justice Department has destroyed their own position of insisting on master-servant relationship when they supported the Swine Flu Act which extended Federal Tort Claims Act coverage as the sole remedy, the exclusive remedy for suits arising from or claims arising from the swine flu program.

They did that not because there was a master-servant relationship. The Congress didn't do it because there was a master-servant relationship. They did it because it was for the good of the U.S. Government. I submit, Mr. Chairman and Senator Thurmond, the training of the National Guard for their combat duty is for the good of the American people.

Mr. Chairman and Senator Thurmond, I will be pleased to attempt to answer your questions.

Senator BAYH. General, I have seldom seen a witness who can lay it right out there as succinctly as you have.

General GREENLIEF. Thank you.

Senator BAYH. Therefore, I don't think I have any questions at this point. You just brought out what it is all about, brought out the history of where we are and how we got where we are.

I appreciate your testimony more than I can say.

General GREENLIEF. Thank you, sir.

Senator BAYH. Thank you. Senator Thurmond?

Senator THURMOND. General, we are certainly glad to have you here. There is no one connected with Defense that I hold a higher esteem and regard for than you.

General GREENLIEF. Thank you, sir. I would return the compliment, by the way.

Senator THURMOND. How is that?

General GREENLIEF. I would return the compliment to you, sir,

by the way.

Senator THURMOND. Thank you, sir.

Have you had a chance to study this particular bill?

General GREENLIEF. Yes, sir.

Senator THURMOND. To see that it does just what Mr. Hise, the attorney, testified to a few moments ago?