(b) So far as any benefit named in this subsection is not provided for him under section 318 of this title, a member covered by subsection (a) is entitled to

(1) the hospitalization, rehospitalization, and medical and surgical care in a hospital and at his home appropriate for the treatment of his injury or disease until the resulting disability cannot be materially improved by further hospitalization or treatment;

(2) the basic pay and allowances, whether in money or in kind, to which he was entitled at the time when the injury was incurred or the disease contracted, during the period of his hospitalization or rehospitalization, but not for more than a total of six months after the end of his prescribed tour of training;

(3) subsistence during hospitalization or rehospitalization when he is not entitled to pay and allowances under clause (2); and

(4) necessary transportation incident to his hospitalization, rehospitalization, and return to his home when he is discharged from the hospital. (Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 605.)

In subsection (b), the words "So far as any benefit named in this subsection is not provided for him under section 318 of this title" are inserted, since it is possible that the benefits provided by that revised section will, as to certain persons, overlap those provided by this revised section. The words "a member covered by subsection (a) is entitled to-" are inserted for clarity.

In subsection (b) (1), the word "necessary" and "from such injury or disease" are omitted as surplusage.

In subsection (b) (3), the words "under clause (2)" are substituted for the words "under the preceding provisions". The words "at Government expense" are omitted as surplusage.

In subsection (a), the words "a member" are substituted for the words "Officers, warrant officers, and enlisted men". 32: 164a (words between 1st and 2d semicolons) is omitted as executed. The words "is entitled to the benefits of subsection (b)" are substituted for the words "shall * be entitled, at Government expense".

*

Subsection (a) (2) is substituted for 32: 164b.

§ 320. Hospitalization: when Secretary may require.

(a) The Secretary of the Army or the Secretary of the Air Force, as the case may be, may order the hospitalization, medical and surgical treatment, and domiciliary care, for as long as necessary, of any member of the Army National Guard or the Air National Guard, respectively, in training under section 502, 503, 504, or 505 of this title, or on duty under section 316 of this title, and may incur obligations with respect thereto.

(b) Subsection (a) applies whether or not the member was injured, or contracted a disease, in line of duty, except in the case of

(1) a member of the National Guard in armorydrill status, unless he incurs an injury while participating in an aerial flight under section 502 (e) of this title; or

In subsection (a), the references to 10: 455a-455d and 32: 164a-164c, and the words "nor any other law of the United States shall be construed as limiting the power and authority", are omitted, since the revised section makes explicit the authority of the appropriate Secretary to require the prescribed hospitalization and care. The words "under such regulations as he may prescribe" are omitted, since the Secretary has inherent authority to issue regulations appropriate to exercising his statutory functions. The words "in the active military service or on active duty, or" are omitted, since persons do not perform active duty, in the sense in which that term is defined in section 101 (11) of this title, in their status as members of the National Guard. The references in 10: 455e and 32: 164d to 32: 144-146 and 186 are omitted, since they do not authorize any duty or training. The words "any member of the National Guard" are substituted for the word "persons", since the applicability of the revised section is limited to those members.

In subsection (b), the first 18 words are substituted for the words "without reference to their line-of-duty status". The words "except in the case of-" are substituted for the words "That this section shall not include" and "That this section shall not apply". The word "member" is substituted for the words "officers, warrant officers, and enlisted men" and "officers and enlisted men". The words "(as distinguished from disease)" are omitted as surplusage. The word "furloughs" is omitted as obsolete.

CROSS REFERENCES

Army and Air Force, members of, see sections 3723 and 8723 of Title 10, Armed Forces.

§ 321. Death gratuity.

(a) Except as provided in subsection (h), the Secretary of the Army or the Secretary of the Air Force, as the case may be, shall have a death gratuity paid to or for the survivor prescribed by subsection (e) immediately upon receiving official notification of the death of a member of the National Guard who

(1) dies while performing full-time training or duty under section 316, 502, 503, 504, or 505 of this title or while performing authorized travel to or from that training or duty;

(2) dies while performing other training or duty under one of those sections or under section 206 of title 37; or

(3) when authorized or required by an authority designated by the Secretary concerned, assumed an obligation to perform training or duty under one of those sections or under section 206 of title 37 (other than work or study in connection with a correspondence course of an armed force or attendance, in an inactive status, at an educational institution under the sponsorship of an armed force or the Public Health Service), and who dies from an injury incurred by him after December 31, 1956, while traveling directly to or from that training or duty.

(b) Except as provided in subsection (h), the Secretary of the Army or the Secretary of the Air Force, as the case may be, shall have a death gratuity paid to or for the survivor prescribed by subsection (e) of each member of the National Guard who dies within 120 days after his discharge or release from

(1) full-time training or duty under section 316, 502, 503, 504, or 505 of this title; or

(2) other training or duty performed under one of those sections or under section 206 of title 37 (other than work or study in connection with a correspondence course of an armed force or attendance, in an inactive status, at an educational institution under the sponsorship of an armed force or the Public Health Service);

if the Administrator of Veterans' Affairs determines that the death resulted from (A) disease or injury incurred or aggravated while performing training or duty under clause (1) or the travel described in subsection (c), or (B) injury incurred or aggravated while performing training or duty under clause (2) or the travel described in subsection (c) (2).

(c) The travel covered by subsection (b) is

(1) authorized travel to or from the training or duty described in subsection (b) (1); or

(2) travel directly to or from the training or duty described in subsection (b) (1) or (2) that is performed by a member of the National Guard who, when authorized or required by an authority designated by the Secretary concerned, assumed an obligation to perform that training or duty, and whose injury was incurred or aggravated after December 31, 1956.

(d) For the purposes of subsections (b) and (c), the standards and procedures for determining the incurrence or aggravation of a disease or injury are those applicable under the laws relating to disability compensation administered by the Veterans' Administration, except that there is no requirement under this section that any incurrence or aggravation have been in line of duty.

(e) A death gratuity payable upon the death of a person covered by subsections (a) —(d) shall be paid to or for the living survivor named in section 1477 of title 10, except that references in that section to section 1475 or 1476 shall be treated as references to subsection (a) or subsections (b) -(d) of this section, as the case may be.

(f) The death gratuity payable under this section shall be equal to 6 months' pay at the rate to which the decedent was entitled on the date of his death, except that the gratuity may not be less than $800 or more than $3,000. For this purpose:

(1) A person covered by subsection (a), (b), or (c) is considered to have been entitled, on the date of his death, to pay at the rate to which he was entitled on the last day on which he performed training or duty.

(2) A person covered by subsection (a), (b), or (c) who performed training or duty without pay is considered to have been performing that training or duty with pay.

(3) A person covered by subsection (a), (b), or (c) who incurred a disability while performing training or duty under section 316, 502, 503, 504,

or 505 of this title or under section 206 of title 37 and who became entitled to basic pay while receiving hospital or medical care, including outpatient care, for that disability, is considered to have been on that training or duty for as long as he is entitled to that pay.

(g) The Secretary of the Army, the Secretary of the Air Force, and the Administrator of Veterans' Affairs have the same obligations with respect to payments under subsections (a), (b), and (c) as they have under sections 1479 and 1480 (c) of title 10.

(h) Payments under this section are subject to the restrictions that section 1480 (a), (b), and (d) of title 10 imposes on payments under sections 14751477 of that title. (Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 606; Sept. 2, 1958, Pub. L. 85-861, §2 (10), 72 Stat. 1544; Sept. 7, 1962, Pub. L. 87-649, §8(b), 76

The words "A member of the National Guard" are substituted for the words "All officers, warrant officers, and enlisted men of the federally recognized National Guard of the several States, Territories, and the District of Columbia-". 32: 160a (as applicable to death gratuities) provides the same death gratuities for members of the National Guard as are "now or may hereafter" be provided for members of the Regular Army or the Regular Air Force, as the case may be, under certain conditions of service and disability. By inserting the words "under section 3688 or 8688 of title 10", the revised section insures that any change made in that revised section will apply equally to members of the National Guard. The words "active duty" are omitted, since persons do not perform active duty, in the sense in which that term is defined in section 101 (11) of this title, in their status as members of the National Guard. The references to sections 10: 22-23, 24-26, and 30-36 are omitted as repealed by section 401 of the Army Organization Act of 1950, 64 Stat. 271, and section 401 (a) (1) of the Air Force Organization Act of 1951, 65 Stat. 333. The reference to 10: 23a is omitted as executed. With the exсерtion of 32: 62, 63, and 65, the remainder of the references do not relate to the training of members of the National Guard, and are therefore omitted from the revised section. The reference to section 504 of this title, based on section 97 of the National Defense Act, is inserted. Although not contained in the United States Code, it is contained in section 3 of the Act of June 20, 1949, ch. 225, 63 Stat. 202. The words "while he is in training" are substituted for the words "while so employed" and "while so engaged". The words "in all respects" and "as now or may hereafter be" are omitted as surplusage.

AMENDMENTS

1962-Pub. L. 87-649 substituted "section 206 of title 37" for "section 301 of title 37" in subsecs. (a) (2), (3), (b) (2), and (f) (3).

1958-Pub. L. 85-861 substituted provisions contained in subsecs. (a)-(h) for provisions which authorized the Secretaries of the Army and Air Force to have a death gratuity paid to the widow, child, or other dependent relative named in section 3688 or 8688 of Title 10 of a member of the National Guard who dies from a disability incurred in line of duty while he is in training under section 502, 503, 504, or 505 of this title for a period of more than 30 days, if the death is caused by disease, or for any period of time, if the death is caused by injury, and which required the death gratuity to be equal to, and to be paid under the same conditions as apply to, the death gratuity payable under sections 3688 or 8688 of Title 10 for a member of the Regular Army or the Regular Air Force, as the case may be, of corresponding grade and length of service.

EFFECTIVE DATE OF 1962 AMENDMENT

Amendment of section by Pub. L. 87-649 effective on Nov. 1, 1962, see section 15 of Pub. L. 87-649, set out as a note preceding section 101 of Title 37, Pay and Allowances of the Uniformed Services.

EFFECTIVE DATE OF BENEFITS

Benefits under act June 20, 1949, as effective from Aug. 14, 1945, see note under section 318 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 38 section 423. § 322. Discharge of enlisted members.

(a) An enlisted member of the National Guard shall be discharged when

(1) he becomes 64 years of age; or
(2) his Federal recognition is withdrawn.

(b) An enlisted member who is discharged from the National Guard is entitled to a discharge certificate similar in form and classification to the corresponding certificate prescribed for members of the Regular Army or the Regular Air Force, as the case may be.

(c) In time of peace, an enlisted member of the National Guard may be discharged before his enlistment expires, under such regulations as may be prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be. (Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 606.)

Subsection (a) is substituted for 32: 154 (last par., less 1st 26, and last 26, words) to reflect an opinion of the Judge Advocate General of the Army (JAGA 1953/9033, 3 Dec. 1953).

In subsection (b), the words "is entitled to a discharge certificate similar in form and classification to the corresponding certificate" are substituted for the words "shall receive a discharge in writing in such form and with such classification as is or shall be". The words "service in" are omitted as surplusage.

In subsection (c), the words "his enlistment expires" are substituted for the words "the expiration of terms of enlistment".

CROSS REFERENCES

Army and Air Force enlisted members, limitations on discharge, see section 1169 of Title 10, Armed Forces. §323. Withdrawal of Federal recognition.

(a) Whenever a member of the National Guard ceases to have the qualifications prescribed under section 301 of this title or ceases to be a member of a federally recognized unit or organization of the National Guard, his Federal recognition shall be withdrawn.

(b) Under regulations to be prescribed by the President, the capacity and general fitness of an officer of the National Guard for continued Federal recognition may be investigated at any time by an efficiency board composed of commissioned officers of

(1) the Regular Army or the Army National Guard of the United States, or both, who outrank him and who are detailed by the Secretary of the Army, if he is a member of the Army National Guard; or

(2) the Regular Air Force or the Air National Guard of the United States, or both, who outrank him and who are detailed by the Secretary of the Air Force, if he is a member of the Air National Guard.

If the findings of the board are unfavorable to the officer and are approved by the President, his Federal recognition shall be withdrawn.

(c) If a member of the Army National Guard of the United States or the Air National Guard of the United States is transferred to the Army Reserve or the Air Force Reserve, as the case may be, under section 3259, 3352 (a), 8259, or 8352 (a) of title 10, his Federal recognition is withdrawn.

(d) Except as provided in sections 1005 and 1006 of title 10, the Federal recognition of a second lieutenant of the Army National Guard who is discharged under section 3820 (c) of title 10 for failure of promotion shall be withdrawn on the date of that discharge.

(e) Except as provided in sections 1005 and 1006 of title 10, the Federal recognition of a reserve officer of the Air Force who is not recommended for promotion under section 8368 (c) (1) or (2) of title 10, or who is found to be not qualified for Federal recognition under section 8368 (d) or (e) of title 10, shall be withdrawn. (Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 607; Sept. 2, 1958, Pub. L. 85-861, §§ 2 (11), 33 (c) (2), 72 Stat. 1546, 1567.)

Revised section

323 (a).....

323 (b)....

HISTORICAL AND REVISION NOTES

Source (U. S. Code)

32: 154 (last 26 words of last par.).

32: 115 (1st sentence, and 1st 24 words of 2d sentence).

323 (c)... 50: 1116 (last 15 words of 1st sentence).

Source (Statutes at Large)

June 3, 1916, ch. 134, § 76 (1st sentence, and 1st 24 words of 2d sentence); restated June 15, 1933, ch. 87, § 13 (1st sentence, and 1st 24 words of 2d sentence), 48 Stat. 158.

June 3, 1916, ch. 134, 110 (last 25 words of last par.); restated Sept. 22, 1922, ch. 423, § 6 (last 137 words of last par.); restated May 12. 1928, ch. 529 (last 25 words), 45 Stat. 501.

July 9, 1952, ch. 608, §706 (last 15 words of 1st sentence), 66 Stat. 503.

In subsection (a) the words "ceases to have the qualifications prescribed under section 300 of this title" are substituted for 32: 154 (last 26 words of last par.), since it is implicit that a member who could not be paid would lose his federally recognized status (see JAGA 1953/9033, 3 Dec. 1953). The last 23 words of subsection (a) are inserted as a necessary implication of the rule stated in section 309 (c) of this title.

In subsection (b), the words "or warrant officer" are omitted, since section 101 (9) of this title defines "officer" to include warrant officers. The word "detailed" is substituted for the word "appointed", since the filling of the positions involved is not appointment to an office in the constitutional sense. The word "commissioned" is inserted after the words "composed of", since the word "officer" alone, in 32: 115, referred to a commissioned officer only (see opinion of the Judge Advocate General of the Army (JAGA 1953/4078, 6 May 1953)). The words "who outrank him" are substituted for the words "senior in rank to the officer under investigation".

In subsection (c), the opening clause is substituted for the words "such transfer". The words "his Federal recognition is withdrawn" are substituted for the words "shall terminate his federally recognized National Guard or Air National Guard status".

AMENDMENTS

1958-Subsec. (b) (1). Pub. L. 85-861, §33(c) (2), substituted "the Regular Army or the Army National Guard of the United States, or both" for "a regular or reserve component of the Army".

Subsec. (b) (2). Pub. L. 85-861, §33(c) (2), substituted "the Regular Air Force or the Air National Guard of the United States, or both" for "a regular or reserve component of the Air Force".

Subsecs. (d) and (e). Pub. L. 85-861, §2(11), added subsecs. (d) and (e).

EFFECTIVE DATE OF 1958 AMENDMENT

Amendment of subsec. (b) (1), (2) of this section by Pub. L. 85-861 effective Aug. 10, 1956, see section 33(g) of Pub. L. 85-861, set out as a note under section 101 of Title 10, Armed Forces.

CROSS REFERENCES

Suspension of subsecs. (d) and (e) of this section, see section 111 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 111 of this title; title 10 sections 3820, 8368, 8820.

§ 324. Discharge of officers; termination of appoint

ment.

(a) An officer of the National Guard shall be discharged when

(1) he becomes 64 years of age; or

(2) his Federal recognition is withdrawn. The official who would be authorized to appoint him shall give him a discharge certificate.

(b) Subject to subsection (a), the appointment of an officer of the National Guard may be terminated or vacated as provided by the laws of the State or Territory of whose National Guard he is a member, or by the laws of Puerto Rico, the Canal Zone, or the District of Columbia, if he is a member of its National Guard. (Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 607.)

In subsection (b), the words "Subject to subsection (a)" are inserted for clarity. The words "as provided by the laws" are substituted for the words "in such shall provide by law".

CROSS REFERENCES

Army National Guard of United States and Air National Guard of United States, discharge of officers, see sections 3820 and 8820 of Title 10, Armed Forces.

§ 325. Relief from National Guard duty when ordered to active duty.

(a) Each member of the Army National Guard of the United States or the Air National Guard of the United States who is ordered to active duty is relieved from duty in the National Guard of his State or Territory, or of Puerto Rico, the Canal Zone, or the District of Columbia, as the case may be, from the effective date of his order to active duty until he is relieved from that duty.

(b) So far as practicable, members, organizations, and units of the Army National Guard of the United States or the Air National Guard of the United States ordered to active duty shall be returned to their National Guard status upon relief from that duty. (Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 607.)

Active duty, see sections 672, 3495 and 8495 of Title 10, Armed Forces.

Return of arms and equipment upon relief from Federal service, see section 706 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 706 of this title.

§ 326. Courts-martial of National Guard not in Federal service: composition, jurisdiction, and procedures. In the National Guard not in Federal service, there are general, special, and summary courts-martial constituted like similar courts of the Army and the Air Force. They have the jurisdiction and powers, except as to punishments, and shall follow the forms and procedures, provided for those courts. (Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 608.)

Revised section

HISTORICAL AND REVISION NOTES

Source (U. S. Code)

326....... 32: 91.

Source (Statutes at Large)

June 3, 1916, ch. 134, § 102, 39 Stat. 208.

The words "not in Federal service" are substituted for the words "Except in organizations in the service of the United States". The words "have the jurisdiction and powers" are substituted for the words "and have cognizance of the same subjects, and possess like powers". The words "of three kinds, namely", "provided for by the laws and regulations governing", "proceedings of courtsmartial of the National Guard", and "modes of" are omitted as surplusage.

CROSS REFERENCES

Uniform Code of Military Justice

Generally, see chapter 47 of Title 10, Armed Forces. Composition of courts-martial, see sections 825829 of Title 10.

Court-martial jurisdiction, see sections 816-820 of Title 10.

Pre-trial procedure, see sections 830-835 of Title 10. Review of courts-martial, see sections 859-876 of Title 10.

Trial procedure, see sections 836-854 of Title 10. § 327. General courts-martial of National Guard not in Federal service.

(a) In the National Guard not in Federal service, general courts-martial may be convened by the President or by the governor of a State or Territory. Puerto Rico, or the Canal Zone, or by the commanding general of the National Guard of the District of Columbia.

(b) A general court-martial may sentence to(1) a fine of not more than $200;

(2) forfeiture of pay and allowances;

In subsection (a), the words "Federal service" are substituted for the words "service of the United States".

In subsection (b), the words "A general court-martial may sentence to" are substituted for the words "and such courts shall have the power to impose ...to sentence". The words "any combination of these punishments" are substituted for the words "or any two or more of such punishments may be combined in the sentences Imposed by such courts".

§ 328. Special courts-martial of National Guard not in Federal service.

(a) In the National Guard not in Federal service, the commanding officer of a garrison, fort, post, camp, air base, auxiliary air base, or other place where troops are on duty, or of a brigade, regiment, wing, group, detached battalion, separate squadron, or other detached command, may convene special courts-martial. Special courts-martial may also be convened by superior authority.

(b) A special court-martial may not try a commissioned officer.

In subsection (a), the words "Federal service" are substituted for the words "service of the United States". The words "where troops are on duty" are inserted for clarity. The words "for his command" are omitted, since they cast doubt on the right of a court-martial to try others than members of the command of the appointing authority. The words "air base, auxiliary air base", "wing, group", and "detached squadron" are inserted to clarify the applicability of the revised section to Air Force organizations. The words "convene" and "convened" are substituted for the words "appoint" and "appointed" to conform to 32:92 and similar provisions of section 823 of title 10 (article 23 of the Uniform Code of Military Justice). The words "when by the latter deemed advisable" are omitted as surplusage.

In subsection (b), the positive authority of a special court-martial to try any person subject to military law is omitted as covered by section 326 of this title.

In subsection (c), the words "for a single offense" are Inserted for clarity.

§ 329. Summary courts-martial of National Guard not in Federal service.

(a) In the National Guard not in Federal service, the commanding officer of a garrison, fort, post, camp, air base, auxiliary air base, or other place where troops are on duty, or of a regiment, wing, group, detached battalion, detached squadron, detached company, or other detachment, may convene a summary court-martial consisting of one commissioned officer. The proceedings shall be informal.

(b) A summary court-martial may sentence to a fine of not more than $25 for a single offense, to forfeiture of pay and allowances, and to reduction of a noncommissioned officer to the ranks. (Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 608.)