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1339e. Same-Pensions. When any officer or enlisted man of the National Guard drafted into the service of the United States in time

of the National Guard on duty at a military post, the question was raised as to the legality of their being charged by the Quartermaster Corps for fuel and light consumed by them in public quarters.

Held, that Congress has very clearly manifested its intention in legislation that National Guard troops and members of the Officers' Reserve Corps in the active service of the United States shall receive the same pay and allowances as is provided by law for officers and enlisted men of the Regular Army of like grades, and that under the act of March 2, 1907 (34 Stat. 1167), all officers are entitled to heat and light actually necessary for the allowance of quarters to which they are entitled and have been assigned, and in case National Guard officers and members of the Officers' Reserve Corps on duty at any military post are duly occupying their authorized allowance of public quarters at such post, they should not be charged for heat and light actually necessary for such quarters. (War Dept. Bull. 54, Sept. 26, 1917.)

Officers and enlisted men of the National Guard are, when drafted into the Federal service, under the act of June 3, 1916, entitled to credit for their prior service, both State and Federal, in the National Guard, for purposes of longevity and continuous-service pay. But this right is limited to those actually brought into the service as National Guardsmen under the draft. (As to rank see below.) (War Dept. Bull. 67, Nov. 30, 1917.)

An officer of the National Army or of the Reserve Corps can not count prior service in the National Guard in computing service for longevity pay. Such service may be so counted only by officers drafted as National Guard officers, and only so long as they continue in service under the draft. (War | Dept. Bull. 72, Dec. 24, 1917.)

Commissioned officers of the Regular Army who have had State (not Federal) service in the militia or National Guard are not entitled to count such service in the computation of their longevity pay. Officers of the National Guard drafted into the military service of the United States under section 111 of the national defense act of June 3, 1916, are entitled to have counted all legal service which they have had in the Organized Militia or National Guard and in the Army and Navy, if any, in computing their longevity pay. (War Dept. Bull. 75, Dec. 31, 1917.)

Proof of previous service in the National Guard as a basis of claim for longevity pay on the part of a member of the National Guard drafted into the Federal service should be made out by means of clear and unequivocal evidence and by the best evidence obtainable. In those cases where such service as an officer or an enlisted man is evidenced by a commission, warrant, oath of enlistment, or other document, the claimant should produce, if possible, either the document itself or a certificate from the adjutant general of the State or the person in charge of such records to the effect that there was issued or filed such a commission, warrant, enlistment oath, or other document. If it be not possible to produce such document or such certificate as to the existence of such a record, secondary evidence thereof can be resorted to only upon proof of certificate of the adjutant general or of the custodian of such records, showing that diligent search has been made and that no record of such commission, warrant, or enlistment has been found or that such record has been lost or destroyed. The door to the admission of secondary evidence having been thus opened, proof of such seryice in the National Guard should then be made by the best and most convincing secondary evidence obtainable. (Dig. Opin. J. A. G., January, 1918.)

An Oflicer in the National Guard of a State who resigned his commission therein in order to enter a reserve officer's training camp and who was thereafter commissioned in the National Army is not entitled to longevity pay under section 111 of the national defense act of June 3, 1916. When he entered the training camp he was not on the footing of a drafted man, but was a civilian candidate for a commission in the Army and as such he was no longer a member of the National Guard; nor was he at that time, or thereafter, drafted into Federal service. " Such officers only as were drafted into Federal service under section 111 of the national defense act as members of the National Guard or National Guard Reserve are entitled to count State service in the National Guard for longevity pay purposes." (Comp. Treas., Feb. 16, 1918; Dig. Opin. J. A. G., February, 1918.)

of war is disabled by reason of wounds or disability received or incurred while in the active service of the United States in time of war, he shall be entitled to all the benefits of the pension laws existing at the time of his service, and in case such officer or enlisted man dies in the active service of the United States in time of war or in returning to his place of residence after being mustered out of such service, or at any other time in consequence of wounds or disabilities received in such active service, his widow and children, if any, shall be entitled to all the benefits of such pension laws. Sec. 112, id.

(See paragraphs 1348 and 1339j.)

1339f. Physical eramination of officers and enlisted men on being colled into service of United States.-Every officer and enlisted man of the National Guard who shall be called into the service of the United States as such shall be examined as to his physical fitness under such regulations as the President may prescribe without further commission or enlistment. Sec. 115, id. 212.

1339g. Same--Physical examination prior to muster out.--Immediately preceding the muster out of an oflicer or enlisted man called into the active service of the United States he shall be physically examined under rules prescribed by the President of the United States, and the record thereof shall be filed and kept in the War Department. Id.

1

Under section 112 of the national-defense act of June 3, 1916, officers of the National Guard drafted into the service of the United States are entitled to the benefits of the pension laws. By section 2 of the selective-draft act of May 18, 1917, the laws and regulations governing the Regular Army, except as to promotions, apply to such vilicers so drafted in so far as such laws and regulations are applicable to persons whose permanent retention in the military service is not contemplated by existing law. It is not contemplated that officers drafted into the service are to be permanently retained therein. Therefore the laws governing retirement do not apply to them, but the pension laws do apply. (War Dept. Bull. 75, Dec. 31, 1917.)

Held as follows: Under the national-defense art the National Guard occupies a dual statue, i. e., as a national force and also as a State force, and no officer or enlisted man can remain a member unless he is physically qualified for Federal service. Congress has prescribed the qualifications for commission or enlistment in the National Guard and has asserted, on behalf of the United States, the authority to prescribe the conditions under which enlistments and discharges in and from the National Guard shall be made. Section 72 of the national-defense act restricts discharges in time of peace, so that no discharge may be given in time of peace“ prior to the expiration of terms of enlistment,” except "under such regulations as the President may prescribe." Section 115 provides for a medical examination to determine the physical condition of the officers and enlisted men when called into the service of the United States, and it appears clear that an officer or enlisted man, upon being examined as required in that section and found physically defective, must be discharged not only from the operation of the call into the Federal service, but also from the National Guard. In the case of an enlisted man the discharge, when ordered, should be effected by a discharge in writing, signed by the proper National Guard commander, under the provisions of section 72 of the nationaldefense act, and should be so worded as to show that it is a discharge pot only from the operation of the Federal call, but also from the National Guard. With respect to a commissioned officer, a discharge should be ordered by the President and should purport to be a discharge froin the National Guard. (iVar Dept. Bull. 28, Aug. 18, 1916.)

1339h. Congress declares emergency to exist and authorizes drafting of the National Guard, the Organized Militia, and Organized Militia Reserves.-In the opinion of the Congress of the United States an emergency now exists which demands the use of troops in addition to the Regular .Army of the United States, and that the President be, and he is hereby, authorized to draft into the military service of the United States, under the provisions of section one hundred and eleven of the national defense Act approved June third, nineteen hundred and sixteen, so far as the provisions of said section may be applicable and not inconsistent with the terms hereof, any or all members of the National Guard and of the Organized Militia of the several States, Territories, and the District of Columbia and any and all members of the National Guard and Organized Militia Reserves, to serve for the period of the emergency, not exceeding three years, unless sooner discharged. Sec. 1, Joint Resolution of July 1, 1916 (39 Stat. 339).

1339i. Same--Persons so drafted to stand discharged from militia during period of their service.-All persons so drafted shall, from the date of their draft, stand discharged from the militia during the period of their service under said draft. I. 340.

1339j. Same-Pensions.--The provisions of section one hundred and twelve of the national defense Act of June third, nineteen hundred and sixteen, shall be applicable to any officer or enlisted man drafted into the service of the United States pursuant to the provisions of this joint resolution. Sec. 2, id.

1339k. Same-Organization of drafted units and appointment of officers for same.When organizations the members of which are drafted under the provisions of this resolution do not constitute complete tactical units the President may, by combining such organizations, organize battalions, regiments, brigades, and divisions, and may appoint officers for such units from the Regular Army, from the members of such organizations, from those duly qualified and registered pursuant to section twenty-three of the Act of Congress approved January twenty-first, nineteen hundred and three, or members of the Officers' Reserve Corps as provided in section thirty-eight of the national defense Act of June third, nineteen hundred and sixteen, oflicers with rank not above that of colonel to be appointed by the President alone and all other officers to be appointed by the President, by and with the advice and consent of the Senate. Sec. 3, id.

13391. Same-Vacancies in Regular 1rmy caused by appointment of officers to positions in drafted forces, filling of.- Vacancies incident to the appointment of oflicers of the Regular Army to the positions in the forces drafted for this emergency may be filled under the provisions of section eight of the Act of April twenty-fifth, nineteen hundred and fourteen. Id.

*See par. 1339e, ante. ? See footnote to paragraph 1388, ante, for law authorizing list of eligibles for

commissions.

1339m. Same-Rank and command, officers of same grade.--Whenever in time of war or public danger or during the emergency declared in section one of this resolution, two or more officers of the same grade are on duty in the same field, department, or command, or organizations thereof, the President may assign the command of the forces of such field, department, or command, or of any organization thereof, without regard to seniority of rank in the same grade. In the absence of such assignment by the President, officers of the same grade shall rank and have precedence in the following order without regard to date of rank or commission as between officers of different classes, namely: First, officers of the Regular Army and officers of the Marine Corps detached for service with the Army by order of the President; second, oflicers of forces drafted into the military service of the United States. Sec. 4, id.

1339n. Same-Rank and precedence of officers of Regular Army holiling commissions in drafted forces.-Officers of the Regular Army holding commissions in forces drafted into the service of the United States shall rank and have precedence under said commissions as if they were commissioned in the Regular Army; but the rank of officers of the Regular Army under their commissions in the forces drafted into the service of the United States shall not for the purpose of this resolution be held to antedate muster or draft into the service of the United States. Id.

13390. Officers and enlisted men of National Guard and Medical Reserve Corps who are Government employees and responded to the call to be restored to their positions at expiration of their military service.-All oflicers and enlisted men of the National Guard and of the Medical Reserve Corps of the Army who are Government employees and who respond to the call of the President for service shall, at the expiration of the military service to which they are called, be restored to the positions occupied by them at the time of the call. Act of Aug. 29, 1916 (39 Stat. 624).

1339p. Draft, organize, and officer National Guard and National Guard Reserve.-To draft into the military service of the United States, organize, and officer, in accordance with the provisions of sec tion one hundred and cleren ? of said national defense Act, so far as the provisions of said section may be applicable and not inconsistent with the terms of this Act, any or all members of the National Guard and of the National Guard Reserves, and said members so drafted into the military service of the United States shall serve therein for

See par. 1389, ante.
Paragraph 1339a, ante, or 39 Stat. 211.

the period of the existing emergency unless sooner discharged. Par. 2, Scc. 1, Act of May 18, 1919 (40 Stat. 76).

(For provision authorizing the raising of the enlisted men of the National Guard drafted into the service of the United States to their maximum legal strength by voluntary enlistment or by selective draft, see paragraph 1637, post.)

1339q. Same-State designations of organizations to be retained.When so drafted the organizations or units of the National Guard shall, so far as practicable, retain the State designations of their respective organizations. Ia.

(For paragraph 1 of this section, see paragraphs 331cand 331ci, ante.)

1342a. Subject to rules and articles of war when called into service of United States.- The National Guard when called as such into the service of the United States shall, from the time they are reg by the terms of the call to respond thereto, be subject to the laws and regulations governing the Regular Army, so far as such laws and regulations are applicable to officers and enlisted men whose permanent retention in the military service, either on the active list or on the retired list, is not contemplated by existing law. Sec. 101, Act of June 3, 1916 (39 Stat. 208).

* An officer of the National Guard drafted into the service of the United States by the proclamation of the President of July 3, 1917, pursuant to the provisions of the selective draft act of May 18, 1917, may be discharged in either of the two ways prescribed by section 9 of the act. Such an officer is not entitled to the right to appear before a retiring board as provided by law for officers of the Regular Army and has no right under the law to be heard by any board if the President determines that his discharge would promote the public service. As to the procedure of retiring boards see Ops. J. A. G. 210.81, Jan. 14, 1918. (Dig. Opin. J. A. G., January, 1918.)

Members of the Quartermaster Corps and of the Ordnance and Medical Departments of the New York National Guard, designated by the Militia Bureau of the War Department in Circular 29, paragraph 7, as "attached personnel do not come within the President's proclamation of July 3, 1917, drafting into the service of the United States the National Guard of the several States; but are specifically excluded therefrom, being members of the staff corps and departments not included in the personnel of tactical organizations. Where the services of any or all members of the attached personnel are desired by the Federal Government an order should be issued under authority of the President drafting them into the service of the United States, and such men as are to be used in noncommissioned grades should be appointed noncommissioned officers in the Army of the United States. (Id.)

The national defense act does not recognize individuals as national guardismen, except as they form component parts of an organization which conforms to the standards therein prescribed. A National Guard regiment which was authorized by the President, but which did not conform to the requirements of the national defense act at the time of the drafting of the National Guard on August 5, 1917, was not included in such draft and the individual members of such regiment were not affected by it. (Id.)

* Upon the recommendation that prompt action be taken to apprehend and punish such members of National Guard organizations as may have failed to respond to the call of March 25, 1917:

Held, that the said call embraced only organizations of the National Guard and did not include members of the Organized Militia who failed to qualify under the national defense act of June 3, 1916; that by the terms of section 101 of that act " The National Guard, when called as such into the service of the United States, shall, from the time they are required by the terms of the call

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