If not, I would like for you to do that, because I have tremendous confidence in you and your opinion about these matters.

General GREENLIEF. Senator Thurmond, I have studied the bill in great detail, and have done considerable preparation for this hearing. I consider myself fully aware of the recommendation, and I have worked with Colonel Blatt, who is with me, who knows more about National Guard law than anyone else I know of in this city.

But to answer your question, the problems is perhaps a little difficult to understand because people who do not deal with National Guard daily. National Guard law daily tend not to know which provision of law they are operating under at a given time.

Perhaps I might be able to relate that. A National Guardsman performing pure State duty, service during a riot, a flood, hurricane, fire or whatever, is serving under State law. There is no Federal control. We seek no Federal tort claims coverage for National Guardsmen performing duties under pure State duty.

When National Guardsmen attend. their weekend drill, armory drills, when they go to field training, when they go to service school in some cases, they are training under title 32. Title 32 is training under State control for a Federal mission with pay allowance, equipment, benefits, just as if they were serving on title 10.

Title 10 is the status in which a National Guardsman serves when he is mobilized or ordered to active duty.

Now, there is no question Federal Tort Claims Act should not be covered should not provide protection to a National Guardsman performing a pure State duty.

On the other hand, when he is serving under title 10, he has been ordered to active Federal duty. Again, FTCA is already provided. That is not the issue. That is not a question. That leaves only the middle ground-armory drills, weekend training, field training and any other full-time training duty. We are only talking about training prescribed by the Federal Government with Federal equipment to achieve Federal objectives for which pay and allowance and benefits are provided as if they had been serving on title 10.

You asked a question about travel status. In my view, a National Guardsman who leaves his home and drives to the armory for weekend training would be covered by this legislation only when he reported to the armory, his duty station. He would only be covered until he completed his training at the duty station, so that he would not be provided FTCA coverage in route from his home to the armory or from the armory to his home.

Then this same man who would attend field training, he would not be covered from the trip to his home, to the armory, or the initial rendezvous point of a convoy. He would be covered as soon as he reported at that first place of duty, and would be covered during the trip. Even though, sir, he might drive his own car. If his own car was the authorized method for transportation to field training, he would have entered on duty at the time he reported to the appointed place. He would be traveling in a military status, and thus he would be covered. That would also apply on the return trip.

Senator THURMOND. I think you have explained that quite well. Now, do you think this bill specifically does just what you have said you feel it ought to contain?

General GREENLIEF. Yes, sir.

Senator THURMOND. If not, I just wondered if-maybe you and your staff would look it over to see if there are any questions about it just to see if it does what you said?

General GREENLIEF. I will give Colonel Blatt an opportunity to critique me, but I am sure that it does. I would like to make one point before I do that.

Senator Thurmond, the National Guard Association of the United States is just as interested in maintaining State control of the National Guard in its inactive duty status as you are. We believe in that part of the Constitution. We insist on it.

However, this bill does no violence to that, because, as I said earlier, in contrast to Mr. Farley's understanding of what the bill did, the bill does not make a National Guardsman serving under title 32 a Federal employee. It could not, if that were the intent, because the Constitution covers that issue.

All S. 1858 does is to include National Guardsmen serving under title 32 in the definition paragraph of S. 1858 for the purposes of providing Federal Tort Claims Act coverage.

It does not make them Federal employees. We would oppose it if it did.

Colonel Blatt, the Senator's question was, am I sure this bill does what I say it does?

Senator THURMOND. Incidentally, do you pronounce your name Blatt or Blott?

Colonel BLATT. Not like the speaker of the South Carolina House. Senator THURMOND. The speaker spells it the same as you do, but pronounces it Blott. His son is a Federal judge and I recommended him. They pronounce it Blott. How do you pronounce your name? Colonel BLATT. I pronounce it Blatt.

Senator THURMOND. Blott or Blatt?

Colonel BLATT. Blatt.

Senator THURMOND. Blatt.

Colonel BLATT. Well, I met the speaker at one time when I was down in Columbia.

Yes, Senator, there is no question but that the construction placed upon the proposed amendment by Mr. Hise and by General Greenlief is correct. The language of the amendment, of course, relates to members of the National Guard while engaged in training or duty under these specified sections.

So travel to or from would almost certainly not be considered to be "while engaged in training or duty." The training or duty would occur after arriving at the rendezvous or training site.

Senator THURMOND. Army or field training.

Colonel BLATT. Yes, sir, or perhaps at a service school or other place of duty.

Senator THURMOND. Well, thank you very much. I wanted that point clarified. I thought if there is any question about it, we would like for you gentlemen to work with our staff just to be sure it does just what General Greenlief said it would do.

You think it does that now?

Colonel BLATT. Yes, sir.

Senator THURMOND. Well, General, I think you all have answered the questions that I wanted to raise about this.

Because of the way you have got a concurrent jurisdiction by two solvents, so to speak, it is well to clarify the situation, because we are going to have to answer these questions maybe on the floor when the bill comes to the floor.

I think the answers that you all have given us satisfy me, and I can now support the bill. Thank you.

General GREENLIEF. Thank you very much, sir.

Senator BAYH. General, thank you very much. We appreciate your testimony and it is good to see you again, General Greenlief, and good to work with you on this.

[The prepared statement of General Greenlief follows:]

PREPARED STAtement of MaJ. GEN. FRANCIS S. GREENLIEF (Retired) Chairman Bayh and members of the Subcommittee, I am Major General Francis S. Greenlief (retired), Executive Vice President of the National Guard Association of the United States.

Our Association welcomes this opportunity to appear before you in support of S. 1858, 96th Congress.

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 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, U.S.C. 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 non-regular 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 Federal Services as a Reserve of the Army (Air Force); and

"(3) inactive-duty training peformed 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 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 on-site 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 Sept. 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 ther 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, 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 suites against the United States under that act for injury or death resulting from swine flu vaccine produced by private pharmaceutical companies.

The essential ingredient is no longer the presence or absence of the Federal master-servent 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 non-jury provisions governing such cases in the Federal courts.

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

Mr. Chairman, and members of the committee, I will be pelased to attempt to answer your questions.

BIOGRAPHY OF MAJ. GEN. FRANCIS S. GREENLIEF (RET.), EXECUTIVE VICE PRESIDENT, NATIONAL GUARD ASSOCIATION OF THE UNITED STATES (1974-) Major General Francis S. Greenlief joined the staff of the National Guard Association of the United States in September 1974, after retiring as Chief, National Guard Bureau on 1 July 1974. He was appointed the Executive Vice President of the 48,000-member Association in September 1975.

General Greenlief was born in Hastings, Nebraska on 27 July 1921. He completed high school there and enrolled in the University of Nebraska in 1939 to study business administration.

He enlisted in Company G, 134th Infantry, Nebraska National Guard in Hastings on 5 July 1940, and was ordered to active duty with his unit on 23 December 1940 as a corporal. At the time of his entrance to Infantry Officer Candidate School in May 1942, he was Acting First Sergeant of the same Company. General Greenlief was graduated from Officer Candidate School and was commissioned a second lieutenant, Infantry, on 25 August 1942. He served as Platoon Leader and Commanding Officer, Company L, 134th Infantry in the European Theater of Operations from May 1944 until August 1945, participating in the Normandy, Northern France, Rhineland, and Ardennes Campaigns. He was released from active duty on 5 January 1946.

On 3 November 1947, General Greenlief rejoined the Nebraska National Guard as Commanding Officer, Company G, 134th Infantry. He subsequently served as S-3 of the 134th Infantry Regiment, acting Assistant Adjutant General of Nebraska, G-4 of the 34th Infantry Division and Division Chief of Staff. He was promoted to colonel on 1 July 1957.

As a colonel, he was ordered to active duty from the Nebraska Army National Guard and assigned as Executive Officer, Army Division, National Guard Bureau on 1 January 1960. He was appointed brigadier general and designated Assistant Chief (Army), National Guard Bureau, on 3 November 1962.

General Greenlief was appointed as Deputy Chief, National Guard Bureau, on 14 September 1963 and was promoted to major general on 9 Februrary 1965. On 13 September 1967, he was extended for an additional four-year term. On 20 April 1970, he was appointed Director, Army National Guard in addition to his duties as Deputy Chief, National Guard Bureau.

He was appointed by the President and confirmed by the Senate to be Chief, National Guard Bureau, for a four-year term and was sworn into office on 1 September 1971.

He completed flight training and was designated an Army Aviator on 22 May 1969. He is qualified in fixed and rotary wing aircraft.

Awards and decorations include Distinguished Service Medal, USA, w/cluster; Distinguished Service medal, USAF; Silver Star, Bronze Star, Purple Heart with three Oak Leaf Clusters, Croix de Guerre with Gold Star, European-AfricanMiddle Eastern Campaign Medal with four Battle Stars, the Combat Infantry Badge and the Army Aviator Badge, Distinguished Service Medal, NGAUS; and many State awards.

Senator BAYH. General Ahner, I am glad to have you with us, here, sir. How is everything in Indiana? I will say for the record that the,