Page images
PDF
EPUB

Section 99 of the same act, as amended by section 5 of the act of September 22, 1922, 42 Stat., 1035, respecting attendance at service schools, provides as to pay, that

any such officer shall receive out of any National Guard allotment of funds available for the purpose, the pay and allowances provided in the Pay Readjustment Act of June 10, 1922, for officers of the National Guard when authorized by law to receive Federal Pay and the travel allowances provided in section 12 thereof, and any such enlisted man shall receive therefrom. except as otherwise provided in section 14 of the Pay Readjustment Act of June 10, 1922, the same pay and allowances,

to which an enlisted man of the Regular Army of like grade would be entitled for attending sucb' school, college, or practical course of instruction under orders from proper military authority,

National Guard officers, when entitled to receive the pay provided by sections 94, 97, and 99, as amended, are not in Federal service. 2 Comp. Gen., 189. They are, however, entitled to receive the pay provided by those sections, as modified by section 3 of the act of June 10, 1922, and when entitled to Federal pay other than for armory drill are entitled to the subsistence allowance provided by section 5 of that act.

(c) Are National Guard officers attending the Army War College or other Army schools, where quarters are not available for either themselves or members of their families, entitled to allowances for rental and subsistence?

It is assumed that the officers are attending the schools mentioned pursuant to the provisions of section 99 of the national defense act as amended by section 5 of the act of September 22, 1922.

The portion of the question relating to the subsistence allowance is fully covered by the answer to question (6).

If National Guard student officers are, under section 99, as amended, ordered to attend an Army service school in numbers in excess of the quarters available, or if they are ordered to attend a service school at which no quarters are available, so that in fact no public quarters are available, they are entitled to rental allowanco as provided in section 6 of the act of June 10, 1922. But any public quarters at a service school available for assignment are "available public quarters” and rental allowance may not be paid to a student officer so long as such quarters are available. And see decision to you October 30, 1922, 14 MS. Comp. Gen., 2047.

(d) What base pay for each grade should be considered for the purpose of payment to National Guard officers for armory drills, and will this base pay change according to years of service?

The first portion of this question has been answered under (a), And the second portion is answered by saying that section 3 of the act of June 10, 1922, fixes a permanent base pay for each of the grades of National Guard officers from second lieutenant to colonel. inclusive; the purpose and intent of section 3 is to fix a base pay for officers of the National Guard of these grades without reference to length of service, either State or Federal; the effect of the pro

vision is to leave the base pay of officers of the National Guard as it was under prior laws except as to second lieutenants. See section 1261, Revised Statutes, as amended by the act of May 11, 1908, 35 Stat., 108.

In view of the phrasing of your letter it may be well to point out that the provisions for longevity pay contained in section 3 of the act of June 10, 1922, are not applicable to officers receiving pay under sections 94, 97, or 99, as amended, or armory drill pay under section 109 of the national defense act as amended. See act of June 4, 1920, 41 Stat., 783. This provision is applicable only when under basic prior laws National Guard officers are entitled to pay for length of service and it fixes a basis of calculation different from that provided for officers of the Regular Army. See answer to question (a). 2 Comp. Gen., 85. And see also 1 Comp. Gen., 257; 2 id., 274, 275. The decision of October 6, 1922, 2 Comp. Gen., 264, considered only service that might be counted by National Guard officers if longevity were otherwise payable.

WAR-RISK INSURANCE AND COMPENSATION-NATIONAL GUARD

MEMBERS.

Members of the National Guard who were called into active service under the

War Department by the President's proclamation of July 3, 1917, but who were not thereafter accepted or enrolled for military service in the Army, are entitled to compensation under the war risk insurance act for disability due to injury sustained or disease contracted in line of duty while so serv. ing, but are not entitled to compensation for any aggravation of disability caused by such service; they are also within the general provisions of section 400 of the war risk insurance laws, subject to the restrictions im.

posed by other sections thereof. Comptroller General McCarl to the Director, United States Veterans' Bureau, December 29, 1922:

I have your letter of October 31, 1922, requesting decision whether National Guardsmen who responded to the President's proclamation of July 3, 1917, calling and drafting the National Guard into Federal service by reporting for service with their organizations, but who were afterwards rejected for general military service and discharged on surgeon's certificate of disability, are entitled to the benefit of the compensation and insurance provisions of the war risk insurance act.

Section 300 of the war risk insurance act as amended by the act of August 9, 1921, 42 Stat., 153, provides for payment of compensation

For death or disability resulting from personal injury suffered or disease contracted in the line of duty on or after April 6, 1917, or for an aggravation of a disability existing prior to examination, acceptance, and enrollment for service, when such aggravation was suffered and contracted in the line of. duty on or after April 6, 1917, by any commissioned officer or enlisted man,

when employed in the active service under the War Department or Navy Department,

Section 400 of the war risk insurance act of October 6, 1917, 40 Stat., 409, provides for insurance of “every commissioned officer and enlisted man *, when employed in active service under the War Department or Navy Department.”

Section 22 of the act of October 6, 1917, 40 Stat., 401, provides that when used in the compensation and insurance provisions of the act, unless the context otherwise requires—

(6) The term “commissioned officer" includes a warrant officer, but includes only an officer in active service in the military or naval forces of the United States.

(7) The terms “man" and "enlisted man" mean a person, whether male or female, and whether enlisted, enrolled, or drafted into active service in the military or naval forces of the United States, and including noncommissioned and petty officers, and members of training camps authorized by law.

[ocr errors][ocr errors][ocr errors]

(12) The term “military or naval forces " means the Army, the Navy, the Marine Corps, the Coast Guard, the Naval Reserves, the National Naval Volun. teers, and any other branch of the United States service while serving pursuant to law with the Army or Navy.

Under these definitions it is legally necessary to an award under war risk insurance laws that death or disability shall have resulted from injury sustained or disease contracted in the active service under the War Department in the military or naval forces of the United States as defined by the said laws.

Section 1 of the national defense act of June 3, 1916, 39 Stat., 166, provides that the Army shall consist of certain specified organizations including “the National Guard while in the service of the United States."

The second paragraph of section 1 of the act of May 18, 1917, authorized the President to draft into the military service of the United States any or all members of the National Guard, and provided that said members so drafted into the military service of the United States should serve therein for the period of the then existent emergency unless sooner discharged.

Under date of July 3, 1917, the President issued his proclamation, as follows:

WHEREAS, the United States of America and the Imperial German Government are now at war, and having in view the consequent danger of aggression by a foreign enemy upon the territory of the United States and the necessity for proper protection against possible interference with the execution of the laws of the Union by agents of the enemy, I, WOODROW WILSON, President of the United States, by virtue of the authority vested in me by the Constitution and the laws of the United States and through the governors of the respective States, call into the service of the United States as of and from the dates hereinafter respectively indicated all members of the National Guard and all enlisted members of the National Guard Reserve of the following States, who are not now in the service of the United States, except members of staff corps and departments not included in the personnel of tactical organizations, and except such officers of the National Guard as have been or may be specially notified by my authority that they will not be affected by this call, to wit:

On July 15, 1917, New York, Pennsylvania, Ohio, West Virginia, Michigan, Wisconsin, Minnesota, Iowa, North Dakota, South Dakota and Nebraska ;

On July 25, 1917, Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Maryland, District of Columbia, Virginia, North Carolina, South Carolina, Tennessee, Illinois, Montana, WyomIng, Idaho, Washington and Oregon.

The members of the National Guard of the various States affected by this call will be concentrated at such places as may be designated by the War Department.

II. And, under the authority conferred upon me by clause second of section one of the Act of Congress “ to authorize the President to increase temporarily the military establishment of the United States," approved May 18, 1917, I do hereby draft into the military service of the United States as of and from the fifth day of August, nineteen hundred and seventeen, all members of the National Guard and all enlisted members of the National Guard Reserve of the following States, except members of staff corps and departments not included in the personnel of tactical organizations, and except such other officers of the National Guard as have been or may be specially notified by my authority that they will not be drafted, to wit:

New York, Pennsylvania, Ohio, West Virginia, Michigan, Wisconsin, Minnesota, Iowa, North Dakota, South Dakota, Nebraska, Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Maryland, District of Columbia, Virginia, North Carolina, South Carolina, Tennessee, Illinois, Montana, Wyoming, Idaho, Washington, Oregon, Indiana, Kentucky, Georgia, Florida, Alabama, Mississippi, Arkansas, Louisiana, Oklahoma, Texas, Missouri, Kansas, Colorado, New Mexico, Arizona, Utah and California.

III. All persons hereby drafted shall on and from the fifth day of August, nineteen hundred and seventeen, stand discharged from the militia, and, under the terms of section 2 of the Act of May 18, 1917, be subject to the laws and regulations governing the Regular Army, except as to promotions, so far as such laws and regulations are applicable to persons whose permanent retention in the military service on the active or retired list is not contemplated by law.

IV. The members of each company, battalion, regiment, brigade, division, or other organizations of the National Guard hereby drafted into the military service of the United States shall be embodied in organizations corresponding to those of the Regular Army. The officers not above the rank of colonel of said organizations of the National Guard who are drafted and whose offices are provided for in like organizations of the Regular Army, are hereby appointed officers in the Army of the United States in the arm, staff corps or department, and in the grades in which they now hold commission as officers of the National Guard, such appointments to be effective, subject to acceptance, on and from the fifth day of August, nineteen hundred and seventeen, and each of them, subject to such acceptance, is hereby assigned as of said date to the organization in the Army of the United States composed of those who were members of the organization of the National Guard in which at the time of draft he held a commission. The noncommissioned officers of the organizations of the National Guard the members of which are hereby drafted are hereby appointed noncom. missioned officers in their present grade in the organizations of the Army composed of said members and shall in each case have the same relative rank as heretofore; and all other enlisted men are hereby confirmed in the Army of the United States in the grades and ratings held by them in the National Guard in all cases where such grades and ratings correspond to grades and ratings provided for in like organizations of the Regular Army, all such appointments of noncommissioned officers and confirmations of other enlisted men in their grades to be without prejudice to the authority of subordinate commanders in respect of promotions, reductions and changes in enlisted personnel.

V. Each organization of the military force hereby created will until further orders, bear the same name and designation as the former organization of the National Guard of whose members it is composed.

VI. All necessary orders for combining the organizations created by embody. ing therein members of the National Guard and National Guard Reserve hereby drafted into the military service of the United States into complete tactical units will be issued by the War Department.

This proclamation clearly and specifically called the members of the National Guard not specially excepted from the call “ into the service of the United States” under the War Department and drafted them later “into the military service of the United States." There can be no doubt, I think, that from the date the members reported under the call they were in the active service of the United States under the War Department and therefore were within the benefits of war risk insurance laws. It is not material for the purposes of this decision whether members who responded to the call were, prior to their examination, acceptance, and enrollment, serving in and as part of the Army, or were serving as members of the Guard in the active service of the United States with the Army and under the War Department. In either case they are entitled, if otherwise qualified, to the benefit of war risk insurance laws.

It is true that the National Guard is not exclusively or primarily another “ branch of the United States service," but it has a dual character and function which makes it a Federal as well as a State agency. The intent and purpose of the war risk insurance laws to extend the benefit of those laws to all persons in active service under the War Department, either as part of the Army or as serving with but not as part of the Army, is plain and should not be defeated by a too narrow interpretation of the wording of paragraph (12) of section 22 of the war risk insurance act hereinbefore quoted.

As it appeared originally in the act of October 6, 1917, 40 Stat., 405, section 300 of the war risk insurance act provided compensation “ for death or disability resulting from personal injury suffered or disease contracted in the line of duty, *, when employed in the active service under the War Department or Navy Department.” Under this provision it was legally necessary to an award of compensation that the death or disability should have been caused by injury sustained or disease contracted while in active service under the War Department. Section 18 of the act of August 9, 1921, 42 Stat., 153, so amended section 300 as to provide also compensationfor an aggravation of a disability existing prior to examination, acceptance, and enrollment for service, when such aggravation was suffered and contracted in the line of duty on or after April 6, 1917.

The provision for compensation for aggravation of disability contemplates and assumes that the beneficiary will have been examined, accepted, and enrolled for service, and negatives payment of such compensation to one who has not been examined, accepted, and enrolled. A National Guardsman who was not accepted and enrolled for service in the Army, therefore, can not qualify for aggravation compensation.

I conclude that members of the National Guard who were called by the President's proclamation into active service under the War Department, but who were not thereafter accepted or enrolled for

本 *

« PreviousContinue »