United States when, at the same time, he was an enlisted man of the National Guard. It was held therein that

Section 3 of the act of June 16, 1942, Public Law 607, 77th Congress, effective June 1, 1942, provides that officers of the National Guard or of the Reserve forces of any of the services mentioned in the title of that act when entitled to Federal pay, shall be credited for longevity pay purposes "with full time for all periods during which they have held commissions as officers in the National Guard, National Guard of the United States, or in the Officers Reserve Corps

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The section thus provides in clear and unequivocal language for credit for full time during which commissions were held in the two components of the Army of the United States in which Lieutenant Reed has had service. There is no qualification as to active duty.

Each of the questions now being considered refers to time during which an officer held a commission in the National Guard of the United States, and the law authorizes the counting of such service. However, where, because of the dual status which may exist in the National Guard and the National Guard of the United States, an officer for the same period has met the requirements of the statute with respect to both service in the National Guard and service in the National Guard of the United States, the law does not authorize or contemplate the counting of double time for such period. Your question a (2) is answered by saying the officer is not entitled to credit for time in the inactive National Guard, but that he is entitled to credit for the time he held a commission in the National Guard of the United States; and your question a (3) is answered yes.

Section 109 of the National Defense Act of June 3, 1916, as amended by section 3 of the act of October 14, 1940, 54 Stat. 1136, provides in part:

Under such regulations as the Secretary of War may prescribe, officers and warrant officers of the National Guard, except general officers, shall receive compensation at the rate of one-thirtieth of the monthly base pay prescribed for them in sections 3 and 9 of the Pay Readjustment Act of June 10, 1922, for each regular drill, period of appropriate duty, or other equivalent period of training, authorized by the Secretary of War, not exceeding eight in any one calendar month and not exceeding sixty in any one fiscal year, at which they shall have been engaged for the entire period of not less than one and one-half hours: Provided, That such pay shall be in addition to compensation for attendance at field- or coast-defense instruction or maneuvers,

Section 14 of the act of June 16, 1942, provides that—

Under such regulations as the Secretary of War may prescribe, officers of the National Guard, other than general officers, and warrant officers and enlisted men of the National Guard, shall receive compensation at the rate of one-thirtieth of the monthly pay authorized for such persons when in the Federal service, for each regular drill, period of appropriate duty, or other equivalent period of training, authorized by the Secretary of War, at which they shall have been engaged for the entire prescribed period of time: Provided, That such pay shall be in addition to compensation for attendance at field- or coast-defense instruction or maneuvers.

Your question b is as follows:

b. Is the longevity increase to be included in computing armory drill pay for officers of the National Guard? The provisions of Section 3 and Section 14 quoted above appear to be in conflict on this question.

It is noted that the act of July 2, 1942, 56 Stat. 625, making appropriations for the military establishment for the fiscal year ending

June 30, 1943, under the heading National Guard, 56 Stat. 625, makes a total sum of $99.900 available for any of the objects specified in the appropriations for the National Guard in the Military Appropriation Act, 1942. With substantially all qualified members of the National Guard on active Federal service, it is obvious that few, if any, payments of armory drill pay are authorized at the present time. In fact it is understood that instructions have been issued by the National Guard Bureau that no armory drill pay will be paid during the present war.

The statute in effect prior to the act of June 16, 1942, authorizing armory drill pay for officers of the National Guard, clearly provided that such pay was to be "one-thirtieth of the monthly base pay" prescribed for them in section 3 of the Pay Readjustment Act of June 10, 1922, 42 Stat. 627. Increases in pay authorized because of length of service, were not considered in computing armory drill pay under this act or the prior acts. See section 47 of the act of June 4, 1920, 41 Stat. 783, and section 3 of the act of June 3, 1924, 43 Stat. 364. In section 14 of the act of June 16, 1942, armory drill pay for officers of the National Guard is authorized at the rate of "one-thirtieth of the monthly pay authorized for such persons when in the Federal service"; however, the change in language is not material insofar as longevity pay is concerned. Longevity pay for National Guard officers is authorized in section 3 of the act and it is there expressly provided that such officers shall receive the prescribed addition to their base pay whenever entitled to Federal pay, "except armory drill and administrative function pay." The language in section 14 of the act, when considered with the specific provisions of section 3, makes it clear that the “pay” to which reference is made in section 14, is the base pay to which National Guard personnel are entitled when in Federal service and not base pay plus longevity increases. Your question b is answered accordingly.

Section 8 of the act, 56 Stat. 362, provides for the pay of warrant officers of the Army and other services and contains the following provision:

Every person paid under the provisions of this section shall receive an increase of 5 per centum of the base pay of his period for each three years of service, not exceeding thirty years. Such service shall be: active Federal service in any of the services mentioned in the title of this Act or Reserve components thereof; service in the active National Guard of the several States, Territories, and the District of Columbia; and service in the Naval Reserve, Marine Corps Reserve, and the Coast Guard Reserve; Provided. That commissioned warrant officers shall be credited only with all commissioned service in any of the services mentioned in the title of this Act including commissioned service in the Reserve components thereof and the National Guard. Your question c is as follows:

c. Are warrant officers of the National Guard entitled to count, for longevity pay purposes, prior service in the active National Guard or Organized Militia either as a warrant officer or enlisted man:

(1) When in active Federal service?

(2) When participating in exercises or performing the duties provided for by Sections 94, 97, and 99 of the National Defense Act?

(3) When in an armory drill pay status?

Under section 14 of the act, warrant officers of the National Guard when in the Federal service or when participating in exercises or performing the duties provided for by sections 94, 97, and 99 of the National Defense Act, 39 Stat. 206, 207, as amended, are entitled to receive the same pay and allowances as are authorized for persons of corresponding grade and length of service in the Regular Army. Your question is whether a warrant officer of the National Guard on the duty indicated may count prior service in the active National Guard or Organized Militia either as a warrant officer or as an enlisted man. It is assumed that you refer to the Organized Militia prior to July 1, 1916. References to the Organized Militia have been made in more recent acts in connection with the Naval Militia and perhaps in other enactments (see section 28 of the act of February 28, 1925, 43 Stat. 1088, 34 U. S. C. 841, and section 401 of the act of June 25, 1938, 52 Stat. 1185, 34 U. S. C. 856) but this decision. is not to be construed as having reference to such acts.

Section 111 of the National Defense Act of June 3, 1916, 39 Stat. 211, as amended by section 49 of the act of June 4, 1920, 41 Stat. 784, and section 18 of the act of June 15, 1933, 48 Stat. 160, relating to the National Guard when ordered into Federal service, provides that officers and enlisted men in the service of the United States under the terms thereof, shall have the same pay and allowances "provided by law for officers and enlisted men of the reserve forces when ordered to active duty, except brigadier generals and major generals. The service which was authorized to be counted for longevity pay purposes under this section by enlisted men ordered into the Federal service, pursuant to the provisions of Public Resolution No. 96, approved August 27, 1940, was considered in 20 Comp. Gen. 136, and it was held that the service authorized to be counted was the service which may be counted by enlisted men of the Regular Army; prior service in the National Guard while not in Federal service could not be counted. It is stated in that decision on page 139, that:

It is only service which an enlisted man of the Regular Army may count for longevity increase that is authorized to be counted by enlisted members of the National Guard of the United States, and it is only that "length of service" which a member of the Enlisted Reserve Corps may count under section 55 (b) of the National Defense Act.

The same conclusion was reached in the case of warrant officers of the National Guard in the Federal service. See 20 Comp. Gen. 750.

By the act of May 4, 1942, 56 Stat. 266, Public Law No. 538, warrant officers and enlisted men of the National Guard of the United States were authorized to count for longevity pay purposes prior active and inactive service in the Naval Reserve, Marine Corps Reserve and National Guard, except that only active Federal service in the inac

tive National Guard could be counted. As indicated by the quoted portion of section 8 of the act, warrant officers in the Regular Army may count among other service, "service in the active National Guard of the several States, Territories and the District of Columbia." While the Organized Militia prior to July 1, 1916, was referred to as the Militia, the National Guard of the several States, Territories, and District of Columbia, and perhaps other names (See sections 1 and 3 of the act of January 21, 1903, 32 Stat. 775 and sections 1 and 3 of the act of May 27, 1908, 35 Stat. 399), where service in the Organized Militia prior to July 1, 1916, has been included in service which may be counted for longevity pay purposes it has been expressly mentioned. See section 3 of the act of June 10, 1922, 42 Stat. 627, and section 3 of the act of June 16, 1942. The service authorized to be counted is the service expressly mentioned and it cannot be presumed that by authorizing the counting of service in the active National Guard of the several States, Territories and the District of Columbia, it was intended to authorize the counting of service in the Organized Militia prior to July 1, 1916.

Section 9 of the act of June 10, 1922, 42 Stat. 629, prescribing the pay for warrant officers provided that they were entitled to "an increase of 5 per centum of their base pay for such four years of service" in any of the services mentioned in the title of that act. This statute did not define the word "service" to indicate what type of service warrant officers were authorized to count for longevity pay purposes. Under this provision, it was the practice to count service both as an enlisted man and as a warrant officer. It does not appear that the present provision requires a different construction in this connection. Accordingly, your questions c (1) and c (2) are answered by saying that prior service in the active National Guard, but not Organized Militia, may be counted for longevity pay purposes under the circumstances mentioned, whether the service is as an enlisted man or a warrant officer. Of course, the foregoing is not applicable to commissioned warrant officers.

Your question c (3) is whether warrant officers of the National Guard are entitled to count for longevity pay purposes, prior service in the active National Guard or Organized Militia, either as a warrant officer or enlisted man when in an armory drill pay status. The answer to this question is no. See the answer to question b and section 110 of the National Defense Act, 39 Stat. 209.

Section 9 of the act, 56 Stat. 363, is in part as follows:

Every enlisted man paid under the provisions of this section shall receive an increase of 5 per centum of the base pay of his grade for such three years of service up to thirty years. Such service shall be active Federal service in any of the services mentioned in the title of this Act or Reserve components thereof; service in the active National Guard of the several States, Territories, and the District of Columbia; and service in the enlisted Reserve Corps of the Army, the Naval Reserve, the Marine Corps Reserve, and the Coast Guard Reserve.

Your question d is:

Under the above provision, what constitutes "service in the active National Guard of the several States, Territories, and the District of Columbia?"

The service contemplated by this provision is legal service in the active National Guard of the several States, Territories, and the District of Columbia as distinguished from service in the inactive National Guard or the National Guard Reserve. See also the answers to ques

tions c and e.

Your question e is as follows:

May enlisted men count service in the following instances:

(1) Service as an active member of the State Militia (Organized Militia), prior to July 1, 1916 if Federally recognized.

(2) Service as an active member of the State Militia (Organized Militia), prior to July 1, 1916 if not Federally recognized?

(3) Service as an active member of the State Militia (Organized Militia), prior to July 1, 1916, if Federally recognized, while in Federal service?

(4) Service as an active member of the State Militia (Organized Militia), prior to July 1, 1916, if Federally recognized, but not in Federal service?

(5) Service as an inactive member of the State Militia (Organized Militia), prior to July 1, 1916, either Federally recognized or not Federally recognized? (6) Service as an active member of the National Guard while in Federal Service?

(7) Service as an active member of the National Guard not in Federal service?

Questions (1) and (4) apparently cover an identical situation, question (4) being the same as question (1) with the addition "but not in Federal service" which is implied in question (1).

The manner in which the questions are stated indicates that some importance is attached to whether or not an enlisted man of the State Militia (Organized Militia) was "Federally recognized." This office knows of no provision for Federal recognition of an enlisted man of the Organized Militia prior to July 1, 1916. It is noted, also, that a man eligible for enlistment in the Organized Militia prior to July 1, 1916, would now be past or nearing 50 years of age. However, this question insofar as it refers to the counting of service in the Organized Militia is substantially answered in the reply to question c. The provisions of Section 9 of the act with respect to longevity pay are not materially different from the provisions of Section 8 of the act. Accordingly State service in the Organized Militia whether active or inactive, prior to July 1, 1916, may not be counted by enlisted men receiving pay thereunder. Your questions e (1), (2), (4), and (5) are answered accordingly.

As to your question e (3), if the enlisted man was in Federal service it was active service in the Army or in a component thereof and is authorized to be counted. See section 2 of the act of April 22, 1898, 30 Stat. 361 and section 1 of the act of April 25, 1914, 38 Stat. 347.

With reference to service as an active member of the National Guard, whether in Federal service or not in Federal service, your question is answered yes. There is no requirement that the service be Federal service. Questions (6) and (7) are answered accordingly.