B-33427, SEPTEMBER 6, 1943, 23 COMP. GEN. 173

B-33427, SEPTEMBER 6, 1943, 23 COMP. GEN. 173

PAY - SERVICE CREDITS - NAVAL RESERVISTS - PROHIBITION AGAINST CONCURRENT MEMBERSHIP IN MILITARY ORGANIZATIONS AS AFFECTING COUNTING OF NATIONAL GUARD SERVICE WHERE THE HOLDING OF TWO PUBLIC OFFICES IS FORBIDDEN BY A CONSTITUTIONAL OR STATUTORY PROVISION, THE ACCEPTANCE OF A SECOND OFFICE IS REGARDED AS A RESIGNATION OR RELINQUISHMENT OF THE FIRST OFFICE; BUT WHERE THERE IS AN EXPRESS STATUTORY PROVISION PROHIBITING THE INCUMBENT OF ONE OFFICE FROM ACCEPTING APPOINTMENT TO ANOTHER, THE INCUMBENT, IN THE ABSENCE OF SOME AFFIRMATIVE ACTION EFFECTIVELY AND LEGALLY TERMINATING THE FIRST OFFICE, MAY NOT LEGALLY BE APPOINTED TO ANOTHER OFFICE, AND ANY SUCH ATTEMPTED APPOINTMENT OR ACCEPTANCE THEREOF IS WITHOUT LEGAL EFFECT. THE PROHIBITION IN THE SEVERAL NAVAL RESERVE ACTS AGAINST NAVAL RESERVISTS BECOMING MEMBERS OF OTHER MILITARY OR NAVAL ORGANIZATIONS DISQUALIFIES A NAVAL RESERVE OFFICE FOR ENLISTMENT IN THE NATIONAL GUARD, SO THAT THE ENLISTMENT OF SUCH AN OFFICER IN THE NATIONAL GUARD DOES NOT OPERATE TO CONSTITUTE THE OFFICER A DE JURE MEMBER OF THAT ORGANIZATION DIVESTING HIM OF HIS STATUS AS A NAVAL RESERVE OFFICER, AND, THEREFORE, HE IS ENTITLED TO COUNT FOR PURPOSES OF PAY UNDER SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, HIS COMMISSIONED SERVICE IN THE NAVAL RESERVE AFTER THE DATE OF HIS NATIONAL GUARD ENLISTMENT. A NAVAL RESERVE OFFICER WHO ENLISTED IN THE NATIONAL GUARD IN VIOLATION OF THE PROHIBITION IN THE NAVAL RESERVE ACT OF 1925, AGAINST MEMBERS OF THE NAVAL RESERVE BECOMING MEMBERS OF OTHER MILITARY ORGANIZATIONS, DOES NOT BECOME THEREBY A DE JURE MEMBER OF THE NATIONAL GUARD, AND, THEREFORE, THE SUBSEQUENT TERMINATION OF HIS NAVAL RESERVE SERVICE DOES NOT OPERATE TO ENTITLE HIM TO COUNT FOR PAY PURPOSES UNDER SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SERVICE IN THE NATIONAL GUARD AFTER THE DATE OF TERMINATION OF HIS NAVAL RESERVE SERVICE UNLESS HE THEREAFTER RATIFIES OR AFFIRMS HIS ENLISTMENT IN THE NATIONAL GUARD. WHERE, ALTHOUGH DISQUALIFIED UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1925 FROM ACCEPTING MEMBERSHIP IN THE NAVAL RESERVE WHILE A MEMBER OF A MILITARY ORGANIZATION, AN OFFICER OF THE NATIONAL GUARD RESERVE "ACCEPTED" A COMMISSION IN THE NAVAL RESERVE, THE ATTEMPTED ACCEPTANCE OF SUCH COMMISSION DID NOT AFFECT HIS STATUS IN THE NATIONAL GUARD RESERVE, AND, THEREFORE, HE IS ENTITLED TO COUNT FOR PURPOSES OF PAY, AS A NAVAL RESERVE OFFICER NOW ON ACTIVE DUTY, SERVICE IN THE NATIONAL GUARD RESERVE TO THE EXTENT AUTHORIZED UNDER SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED. WHERE AN OFFICER OF THE NATIONAL GUARD RESERVE WAS DISCHARGED THEREFROM SUBSEQUENT TO JUNE 15, 1933--- DATE OF THE ACT DISCONTINUING THE NATIONAL GUARD RESERVE--- HIS SERVICE IN THE NATIONAL GUARD RESERVE IS TO BE REGARDED, IN COMPUTING HIS ACTIVE DUTY PAY UNDER SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AS HAVING TERMINATED BY LAW ON JUNE 15, 1933. THE FACT THAT A PERSON WHILE SERVING AS A MEMBER OF THE INACTIVE NATIONAL GUARD IS DISQUALIFIED BY THE PROVISION IN THE NAVAL RESERVE ACT OF 1938 FROM ACCEPTING A COMMISSION IN THE NAVAL RESERVE WHILE A MEMBER OF A MILITARY ORGANIZATION DOES NOT OPERATE TO INVALIDATE THE COMMISSION IN THE NAVAL RESERVE NOR PREVENT A VALID ACCEPTANCE THEREOF UPON REMOVAL OF THE DISQUALIFICATION BY DISCHARGE FROM THE INACTIVE NATIONAL GUARD, BUT, IN ORDER FOR THE COMMISSION TO BECOME VESTED IN SUCH A PERSON, THERE IS REQUIRED SOME AFFIRMATIVE ACT SUBSEQUENT TO REMOVAL OF THE DISQUALIFICATION--- SUCH AS REPORTING FOR ACTIVE DUTY--- INDICATING HIS INTENTION TO ACCEPT THE COMMISSION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 6, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 23, 1943, FILE JAG:K:WJG:GB SO 3 22 24, REQUESTING DECISION ON CERTAIN QUESTIONS PRESENTED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS.

THE FIRST QUESTION PRESENTED IS AS FOLLOWS:

AN OFFICER NOW SERVING IN THE RANK OF LIEUTENANT IN THE NAVAL RESERVE HELD COMMISSION IN THE NAVAL RESERVE FORCE AND NAVAL RESERVE FROM AUGUST 25, 1922, TO AUGUST 24, 1926. HE ENLISTED IN THE TEXAS NATIONAL GUARD ON APRIL 6, 1923, WHILE HOLDING COMMISSION IN THE NAVAL RESERVE, AND WAS DISCHARGED APRIL 5, 1926; REENLISTED IN THE TEXAS NATIONAL GUARD, APRIL 16, 1926, AND WAS DISCHARGED DECEMBER 8, 1927. IN VIEW OF THE RESTRICTIONS CONTAINED IN THE NAVAL RESERVE LAW WAS THE COMMISSION IN THE NAVAL RESERVE VOIDED BY HIS ENLISTMENT IN THE TEXAS NATIONAL GUARD ON APRIL 6, 1923?

IT APPEARS THAT IN VIEW OF THE PROVISIONS OF REFERENCE (E) ( PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037), THIS OFFICER MAY COUNT FOR PAY PURPOSES INACTIVE COMMISSIONED SERVICE IN THE NAVAL RESERVE FORCE AND NAVAL RESERVE FROM AUGUST 25, 1922, TO APRIL 5, 1923, AND ENLISTED SERVICE IN THE TEXAS NATIONAL GUARD FROM APRIL 6, 1923 TO APRIL 5, 1926, AND FROM APRIL 16, 1926, TO DECEMBER 8, 1927. THIS WOULD SEEM TO BE A PROPER BASIS FOR COMPUTATION OF SERVICE IN CASE IT IS HELD THAT ENLISTMENT IN THE NATIONAL GUARD ON APRIL 6, 1923 AUTOMATICALLY TERMINATED HIS COMMISSION IN THE NAVAL RESERVE FORCE. WITH RESPECT TO THE NATIONAL GUARD THERE APPEARS NO LEGAL BAR TO SIMULTANEOUS SERVICE IN THE NATIONAL GUARD AND OTHER MILITARY OR NAVAL ORGANIZATIONS. HOWEVER, IT MIGHT BE HELD THAT THIS OFFICER COULD ALSO COUNT SERVICE IN THE NAVAL RESERVE FROM APRIL 6, 1926, TO APRIL 15, 1926, SUBSEQUENT TO DISCHARGE AND PRIOR TO REENLISTING IN THE NATIONAL GUARD OR THAT HE COULD COUNT COMMISSIONED SERVICE IN THE NAVAL RESERVE AND NAVAL RESERVE FORCE FROM AUGUST 25, 1922, TO AUGUST 24, 1926, AND ENLISTED SERVICE IN THE NATIONAL GUARD FROM AUGUST 25, 1926, TO DECEMBER 8, 1927.

THE ACT OF AUGUST 29, 1916, ESTABLISHED, INTER ALIA, THE NAVAL RESERVE FORCE, AND PROVIDED (39 STAT. 588):

NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FORCE FROM ACCEPTING EMPLOYMENT IN ANY BRANCH OF THE PUBLIC SERVICE, EXCEPT AS AN OFFICER OR ENLISTED MAN IN ANY BRANCH OF THE MILITARY SERVICE OF THE UNITED STATES OR ANY STATE THEREOF, NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO HIS RETAINER PAY. ( ITALICS SUPPLIED.) SIMILAR PROVISION WAS MADE IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1925, 43 STAT. 1081, AND, ALSO, IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, SUCH LATER PROVISION READING AS FOLLOWS:

PROVIDED FURTHER, THAT NO OFFICER OR (ENLISTED) MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA.

THE GENERALLY ACCEPTED RULE OF LAW IS THAT WHERE THE HOLDING OF TWO PUBLIC OFFICES IS FORBIDDEN BY A CONSTITUTIONAL OR STATUTORY PROVISION THE ACCEPTANCE OF A SECOND OFFICE IS REGARDED AS A RESIGNATION OR RELINQUISHMENT OF THE FIRST OFFICE. HOWEVER, THE RULE IS OTHERWISE WHERE, AS HERE, THERE IS AN EXPRESS STATUTORY PROVISION PROHIBITING THE INCUMBENT OF ONE OFFICE FROM ACCEPTING APPOINTMENT TO ANOTHER. IN SUCH CASES, THE INCUMBENT, IN THE ABSENCE OF SOME AFFIRMATIVE ACTION EFFECTIVELY AND LEGALLY TERMINATING THE FIRST OFFICE, MAY NOT LEGALLY BE APPOINTED TO ANOTHER OFFICE AND ANY SUCH ATTEMPTED APPOINTMENT OR ACCEPTANCE THEREOF IS WITHOUT LEGAL EFFECT. SEE 20 COMP. GEN. 288 AND AUTHORITIES CITED THEREIN. CF. 21 COMP. GEN. 819. ACCORDINGLY, UNDER THE CIRCUMSTANCES STATED IN YOUR QUESTION, SUPRA, THE OFFICER LEGALLY COULD NOT HAVE ENLISTED IN THE NATIONAL GUARD WHILE SERVING AS A NAVAL RESERVIST, AND, THEREFORE, HE DID NOT BECOME THEREBY A DE JURE MEMBER OF SUCH ORGANIZATION. HOWEVER, AS HE CONTINUED IN HIS STATUS AS AN OFFICER IN THE NAVAL RESERVE FORCE AND NAVAL RESERVE, HE WOULD BE ENTITLED UNDER THE PROVISIONS OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, TO CREDIT FOR PAY PURPOSES FOR THE COMMISSIONED SERVICE IN THE SAID NAVAL RESERVE FORCE AND THE NAVAL RESERVE FOR THE PERIOD AUGUST 25, 1922, TO AUGUST 24, 1926. SINCE HE LEGALLY COULD NOT HAVE ENLISTED IN THE NATIONAL GUARD ON APRIL 16, 1926, HE WOULD NOT BE ENTITLED TO CREDIT FOR PAY PURPOSES FOR ANY OF HIS SERVICE UNDER HIS ATTEMPTED ENLISTMENT OF THAT DATE, UNLESS IT BE ESTABLISHED THAT HE RATIFIED OR AFFIRMED SUCH ENLISTMENT CONTRACT AFTER REMOVAL OF HIS DISQUALIFICATION BY THE TERMINATION OF HIS NAVAL RESERVE SERVICE ON AUGUST 24, 1926.

THE SECOND QUESTION IS STATED AS FOLLOWS:

AN OFFICER NOW HOLDING THE RANK OF LIEUTENANT COMMANDER IN THE NAVAL RESERVE ACCEPTED COMMISSION AS SECOND LIEUTENANT IN THE MARYLAND NATIONAL GUARD ON NOVEMBER 24, 1930, WAS TRANSFERRED TO THE NATIONAL GUARD RESERVE ON MAY 1, 1932, AND HONORABLY DISCHARGED THEREFROM ON OCTOBER 3, 1933; WHILE HOLDING A COMMISSION IN THE NATIONAL GUARD RESERVE HE ACCEPTED COMMISSION AS ENSIGN IN THE NAVAL RESERVE ON MAY 10, 1932, WHICH HE RESIGNED ON APRIL 15, 1935; AND HE SUBSEQUENTLY ACCEPTED A COMMISSION AS LIEUTENANT IN THE NAVAL RESERVE ON NOVEMBER 1, 1939.

THERE APPEARS TO BE NO REASON FOR QUESTIONING THE RIGHT OF THIS OFFICER TO COUNT COMMISSIONED SERVICE IN THE NATIONAL GUARD OR THE NATIONAL GUARD RESERVE FROM NOVEMBER 24, 1930, TO OCTOBER 3, 1933, BUT IN VIEW OF THE RULING IN 21 COMP. GEN. 819 MAY THIS OFFICER COUNT COMMISSIONED SERVICE IN THE NAVAL RESERVE FROM OCTOBER 4, 1933, TO APRIL 15, 1935, ALL OF WHICH SERVICE WAS INACTIVE?

IN THE CITED DECISION, 21 COMP. GEN. 819, IT WAS HELD, QUOTING THE SYLLABUS:

THE PROVISION IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, THAT NO OFFICER OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA, DISQUALIFIES AN ARMY INDUCTEE FROM ACCEPTING A COMMISSION IN THE NAVAL RESERVE, BUT THE FACT THAT AN INDUCTEE CANNOT ACCEPT SUCH A COMMISSION WHILE STILL IN THE ARMY DOES NOT INVALIDATE THE COMMISSION SO AS TO PREVENT A VALID ACCEPTANCE UPON REMOVAL OF THE DISQUALIFICATION BY DISCHARGE FROM THE ARMY. THE SAME RULE WOULD APPLY TO MEMBERS OF THE NATIONAL GUARD, THAT IS TO SAY, THE OFFICER COULD NOT LEGALLY HAVE BEEN COMMISSIONED IN THE NAVAL RESERVE ON MAY 10, 1932, SINCE HE WAS AT THAT TIME HOLDING A COMMISSION IN THE NATIONAL GUARD RESERVE, AND THE ATTEMPT TO SO COMMISSION HIM DID NOT AFFECT HIS STATUS IN THE NATIONAL GUARD. ACCORDINGLY, HE MAY COUNT FOR PAY PURPOSES HIS SERVICE IN THE NATIONAL GUARD AND THE NATIONAL GUARD RESERVE TO THE EXTENT THAT IT IS AUTHORIZED TO BE COUNTED BY SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SUPRA. IN THIS CONNECTION, ATTENTION IS INVITED TO THE FACT THAT THE NATIONAL GUARD RESERVE WAS, IN EFFECT, DISCONTINUED ON JUNE 15, 1933, BY SECTION 15 OF THE ACT OF JUNE 15, 1933, 48 STAT. 159. SEE DECISION OF MARCH 17, 1943, 22 COMP. GEN. 907. ACCORDINGLY, THE OFFICER'S SERVICE IN THE NATIONAL GUARD RESERVE, INSOFAR AS IT MAY BE COUNTED FOR PAY PURPOSES, IS TO BE REGARDED AS HAVING BEEN TERMINATED BY LAW ON JUNE 15, 1933, RATHER THAN ON OCTOBER 3, 1933, THE DATE ON WHICH, IT IS STATED, HE WAS DISCHARGED THEREFROM.

WITH RESPECT TO THE COMMISSION IN THE NAVAL RESERVE WHICH THE OFFICER IS STATED TO HAVE ,ACCEPTED" ON MAY 10, 1932, AND "RESIGNED" ON APRIL 15, 1935, YOU ARE ADVISED THAT HE MAY NOT BE CREDITED WITH ANY PART OF SUCH TIME AS FOR SERVICE UNDER THAT COMMISSION, SINCE HE WAS DISQUALIFIED FROM ACCEPTING SUCH COMMISSION WHILE HE WAS A MEMBER OF THE NATIONAL GUARD OR THE NATIONAL GUARD RESERVE AND THERE APPEARS TO HAVE BEEN NO VALID ACCEPTANCE OF THAT COMMISSION SUBSEQUENT TO THE TERMINATION OF HIS SERVICE IN THE NATIONAL GUARD RESERVE. CF. ANSWER TO THE THIRD QUESTION, INFRA.

THE THIRD QUESTION IS STATED AS FOLLOWS:

AN OFFICER OF THE RANK OF LIEUTENANT SERVED AS AN ENLISTED MAN IN THE CALIFORNIA NATIONAL GUARD FROM FEBRUARY 10, 1936, TO FEBRUARY 9, 1939 ( ONE YEAR OF THIS PERIOD WAS ACTIVE NATIONAL GUARD SERVICE AND THE REMAINING TWO WERE INACTIVE NATIONAL GUARD SERVICE); HE ACCEPTED COMMISSION IN THE NAVAL RESERVE AS ENSIGN ON SEPTEMBER 5, 1938, AND ENTERED ON ACTIVE DUTY ON DECEMBER 15, 1940, PURSUANT TO ORDERS OF DECEMBER 3, 1940.

IN VIEW OF THE RULING IN 21 COMP. GEN. 819, IS THIS OFFICER ENTITLED TO COUNT:

(1) ENLISTED SERVICE IN THE CALIFORNIA NATIONAL GUARD FROM FEBRUARY 10, 1936, TO SEPTEMBER 4, 1938, AND COMMISSIONED SERVICE (INACTIVE AND ACTIVE) IN THE NAVAL RESERVE FROM SEPTEMBER 5, 1938; OR

(2) ENLISTED SERVICE IN THE CALIFORNIA NATIONAL GUARD FROM FEBRUARY 10, 1936, TO FEBRUARY 9, 1939, AND COMMISSIONED SERVICE (INACTIVE AND ACTIVE) IN THE NAVAL RESERVE FROM FEBRUARY 10, 1939; OR

(3) COUNT ENLISTED SERVICE IN THE CALIFORNIA NATIONAL GUARD FROM FEBRUARY 10, 1936 TO FEBRUARY 9, 1939, AND ACTIVE COMMISSIONED SERVICE IN THE NAVAL RESERVE FROM DECEMBER 15, 1940 ON THE PREMISE THAT ENTERING ON ACTIVE DUTY PURSUANT TO ORDERS OF COMPETENT AUTHORITY CONSTITUTED ACCEPTANCE BY CONDUCT OF A COMMISSION, WHICH HE MAY HAVE BEEN LEGALLY DISQUALIFIED FROM ACCEPTING ON SEPTEMBER 5, 1938 AND UNTIL FEBRUARY 10, 1939, DATE FOLLOWING DISCHARGE FROM THE CALIFORNIA NATIONAL GUARD? IN THIS CONNECTION ATTENTION IS INVITED TO THE FACT THAT NO ACTION WAS TAKEN BY THE APPOINTING AUTHORITY TO REVOKE THE COMMISSION AFTER ITS ACCEPTANCE AND THE ISSUANCE OF ORDERS TO ACTIVE DUTY IS PRIMA FACIE EVIDENCE THAT HE WAS STILL CONSIDERED AN OFFICER OF THE NAVAL RESERVE BY THE BUREAU OF NAVAL PERSONNEL.

SINCE THE OFFICER WAS A MEMBER OF THE INACTIVE NATIONAL GUARD WHEN TENDERED A COMMISSION IN THE NAVAL RESERVE ON SEPTEMBER 5, 1938, HE COULD MAKE NO VALID ACCEPTANCE THEREOF. HOWEVER, THE FACT THAT HE COULD NOT ACCEPT THE COMMISSION AT THAT TIME DID NOT OPERATE TO INVALIDATE THE COMMISSION NOR TO PREVENT HIS MAKING A VALID ACCEPTANCE THEREOF UPON REMOVAL OF THE DISQUALIFICATION BY DISCHARGE FROM THE INACTIVE NATIONAL GUARD. 21 COMP. GEN. 819, SUPRA. BUT HE DID NOT BECOME AUTOMATICALLY VESTED WITH SUCH COMMISSION UPON HIS DISCHARGE FROM THE INACTIVE NATIONAL GUARD, THERE BEING REQUIRED, IN THE ABSENCE OF A FORMAL ACCEPTANCE, SOME AFFIRMATIVE ACT BY THE APPOINTEE INDICATING HIS INTENTION TO ACCEPT SUCH COMMISSION. THE FIRST SUCH ACTION BY THE OFFICER HERE INVOLVED APPEARS TO HAVE BEEN HIS REPORTING FOR ACTIVE DUTY ON DECEMBER 15, 1940. ACCORDINGLY, HE MAY BE CREDITED WITH SERVICE IN THE NAVAL RESERVE COMMENCING ON THAT DATE, IN ADDITION TO HIS PRIOR NATIONAL GUARD SERVICE.