Untitled California Attorney General Opinion

Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

DANIEL E. LUNGREN

Attorney General

______________________________________

OPINION :

: No. 90-804

of :

: MAY 2, 1991

DANIEL E. LUNGREN :

Attorney General :

:

RONALD M. WEISKOPF :

Deputy Attorney General :

:

__________________________________________________________________

THE HONORABLE WILLIAM A. CRAVEN, MEMBER OF THE CALIFORNIA

SENATE, has requested an opinion on the following question:

May the Governor appoint as the Adjutant General an

officer who is presently on active duty in the United States Army

and who possesses the requisite rank and command or staff

experience but who has never been a member of the National Guard of

California or that of any other state?

CONCLUSION

The Governor may not appoint as Adjutant General an

officer presently on active duty in the United States Army who

possesses the requisite rank and command or staff experience when

the officer has never been a member of the National Guard of

California or that of any other state.

ANALYSIS

Section 162 of the Military and Veterans Code1 provides

for the appointment, tenure and qualifications for the Adjutant

General of the State of California as follows:

"The Adjutant General shall be appointed by the

Governor with the advice and consent of the Senate, and

1 All section references are to the Military and Veterans Code

unless otherwise specified.

1. 90-804

shall hold office at the pleasure of the Governor, or

until his successor is appointed and has qualified. No

person is eligible for appointment as Adjutant General

unless he had not less than a total of ten (10) years of

commissioned service in the National Guard of the United

States, of which at least four (4) years shall be service

as a field grade officer in the California National Guard

within the preceding 10-year period prior to the date of

appointment and of which at least four (4) years shall

have been in command of army or air troops at the

battalion or equivalent or higher command level or four

(4) years as a staff officer at brigade or equivalent or

higher staff level."

The question we are asked to address is whether an

officer who is on active duty in the United States Army and who

possesses the requisite rank and command or staff experience,2 but

who has never been a member of the National Guard of California or

of any other state,3 may be appointed Adjutant General. We

conclude that such an officer would not meet the statutory

qualifications for the office.

The first requirement that an appointee must satisfy is

having had "not less than a total of ten (10) years of commissioned

service in the National Guard of the United States ." (§ 162;

emphasis added.) We proceed to show that the officer described

would not meet that qualification because under federal law he or

she would have had to acquire that commissioned service by serving

as a member of a recognized state National Guard unit in a position

which accorded him or her what is known as "federal recognition."

The National Guard of the United States (NGUS) "is a

reserve component of the United States Armed Forces" (58

Ops.Cal.Atty.Gen. 144, 144-145, (1975)) and consists, inter alia,

of the Army National Guard of the United States (ARNGUS) and the

Air National Guard of the United States (ANGUS). (Cf. 10 U.S.C. §

261.) We assume that the Army officer in question has never served

in the Air National Guard of the United States, and so in order to

2 "Commissioned service" refers to the service of commissioned

officers (§ 220) as distinguished from noncommissioned officers (§

252) and enlisted personnel (§ 250). "A field grade officer" has

the rank of major or above. In Army terminology, a command unit

increases in size as follows: platoon, company, battalion,

regiment, brigade, and division. "A staff officer" is one who acts

in a support position to the commander of a unit.

3 As we shall explain, the ten years "in the National Guard of

the United States" requirement may be met by serving six years in

the National Guard of another state and four years in the

California National Guard.

2. 90-804

have been a member of the National Guard of the United States, he

or she would have had to have been a member of the Army National

Guard of the United States, or to have otherwise specially

qualified in a manner not pertinent here.

The Army National Guard of the United States is a reserve

component of the Army and is composed of the "(1) federally

recognized units and organizations of the Army National Guard; and

(2) members of the Army National Guard who are also Reserves of the

Army." (10 U.S.C. § 3077; cf. 32 U.S.C. § 101(5).) Thus, for the

officer to have been a member of the Army National Guard of the

United States, he or she would have had to have been a member of a

federally recognized unit of the Army National Guard or a member of

the Army National Guard and a Reserve of the Army. In the scenario

we are given, he or she would have been neither.

The Army National Guard is "that part of the organized

militia of the several states and territories ... that ... is a

land force ... and ... is federally recognized." (32 U.S.C.

§ 101(4).) In other words, it is the collective of the Army

National Guards of the several states and territories that have

been accorded "federal recognition." That is a term of art that

describes a status accorded both to a state's militia and to its

individual officers: "As a result of federal recognition, a state

National Guard unit receives federal aid and qualifies as a unit of

the National Guard of the United States subject to being called

into the federal service [citation]." (11 Ops.Cal.Atty.Gen. 252,

260 (1948).) "Federal recognition [also] determines an officer's

right to a federal commission in the National Guard of the United

States." (Ibid.)

Here the Army officer in question would never have been

a member of the Army National Guard or a member of the Army Reserve

because, although he or she has been on active duty as a regular

officer in the United States Army, he or she has not served in a

reserve component. (Cf. 10 U.S.C. §§ 101(5) ["`Army National Guard

of the United States' means the reserve component of the Army..."];

101(22) ["The term `active duty' means full-time duty in the active

military service of the United States. ... It does not include

full-time National Guard duty ".].) And because the officer has

never been a member of the California National Guard or that of any

other state, he or she would not have been a member of the Army

4 It should be made clear that the Army Reserve and the Army

National Guard of the United States are separate reserve components

of the armed forces. (E.g., compare 10 U.S.C. § 261, subsec.(a)(1)

with id., subsec. (a)(2); see also, historical note following 32

U.S.C. § 101 explaining the definition of "Army National Guard of

the United States" found in clause (4) of that section.) Thus, one

may be a Reserve of the Army without being a member ARNGUS. (Cf.

10 U.S.C. § 3076.)

3. 90-804

National Guard as a member of "that part of the organized militia

of the several States...." (32 U.S.C. § 101(4).)

Never having served in the Army National Guard or been a

Reserve of the Army, the officer in question would never have been

a member of the Army National Guard of the United States (ARNGUS),

or perforce the National Guard of the United States, as required by

section 162. That being the case, he or she would be ineligible to

be appointed Adjutant General.

In 58 Ops.Cal.Atty.Gen. 144, supra, we were asked the

same question that we are today and answered it in the affirmative.

There we concluded that an active duty Army officer who had never

been a member of the California National Guard could not qualify

for appointment under section 162 by itself, but could qualify for

appointment upon becoming a member of the California National Guard

through the operation of section 215. Section 215 provides in

part:

"For all purposes under this code commissioned

officers ... of the California National Guard ... who

have heretofore or hereafter performed service in the

United States Army ... shall be entitled to credit for

time so served as if such service had been rendered in

the state forces."

Thus we said:

"If, therefore, the officer otherwise qualified for

appointment under section 162 were to become a member of

the California National Guard ..., the time served in the

federal armed services would be credited toward

eligibility under section 162. If such officer had ten

years of active duty and four of those years were within

the last ten-year period preceding his appointment and he

met the other requirements of section 162, he could be

appointed Adjutant General by the Governor." (58

Ops.Cal.Atty.Gen. at 145.)

We have been specifically asked to reconsider this aspect of our

1975 opinion. Doing so, we find it was in error.

Whatever the consequences of the time credit accorded by

section 215 for time served in the United States Army may be, such

as providing a factor to be used in computing retirement pay and

determining other benefits for members of the California National

Guard (cf. Santin v. Cranston (1967) 250 Cal.App.2d 438, 441; 39

Ops.Cal.Atty.Gen. 316 (1962); 38 Ops.Cal.Atty.Gen. 82 (1961); 22

Ops.Cal.Atty.Gen. 161 (1953); see also § 228), that credit is only

given for purposes of California's Military and Veterans Code.

Thus, while the section may consider one's active federal military

duty time as having been spent in the California National Guard for

4. 90-804 certain state purposes, it in no way purports to affect federal law

and federal requirements. Particularly, it would not confer status

upon an officer as having served as a member of the Army National

Guard or the National Guard of the United States merely through the

time credit for service in the state military forces that it

accords.

The Army National Guard (and National Guard of the United

States) must be distinguished from the National Guard of

California. (Cf. 11 Ops.Cal.Atty.Gen. 252, 260, supra.) Most

important for us here is that membership in the latter does not

ipso facto mean or confer membership in the former. This is

because under federal law "recognition of a state guard

organization as a unit of the National Guard of the state [does]

not automatically adopt its officers or confer on them the status

of commissioned officers in the [Army] National Guard without [the

officers also first individually receiving] federal recognition."

(Gaston v. United States (Mun.Ct.App. D.C. 1943) 34 A.2d 353, 356.)

In other words, recognition for status in the Army National Guard

requires acceptance of the individual state National Guard officer

under federally established criteria in addition to recognition of

the organization or unit to which he or she belongs. Thus "[o]ne

may be a member of the National Guard of a state without receiving

federal recognition" (Zitzer v. Walsh (D. Conn. 1972) 352 F.Supp.

438, 440), but without it one does not become a member of the Army

National Guard. (Cf. 32 U.S.C. § 307; Gaston v. United

States,supra; United States v. Dern (D.C. Cir. 1934) 74 F.2d 485,

488.)5

5 Section 210 describes the composition of the California

National Guard. It states:

"The National Guard consists of:

"(a) General officers.

"(b) The several staff corps and departments

prescribed in tables of organization of the United States

Army or United States Air Force or tables of organization

for the National Guard.

"(c) The officers and enlisted men on the retired

and the reserve lists.

"(d) The organizations forming the National Guard

and persons enlisted or commissioned therein."

"General officers" would be those holding the rank of brigadier

general or above. The "tables of organization" contain the units

and personnel who are federally recognized. "The retired and the

reserve lists" contain the names of those who were once on active

duty and have been discharged. Those on the reserve list would not

5. 90-804 Accordingly, for an officer in a state militia, such as

the California National Guard, to have status as an officer in the

Army National Guard or the National Guard of the United States, he

or she must first have received the aforementioned "federal

recognition." (Cf. 11 Ops.Cal.Atty.Gen. 252, 260, supra.) To

receive it, he or she must, inter alia, be appointed to fill a

vacancy, have the requisite qualifications, pass an examination,

and subscribe to an oath. (32 U.S.C. §§ 307, 312; cf. 11

Ops.Cal.Atty.Gen. 252, 260, supra ["To be federally recognized, an

officer, in addition to having the prescribed qualifications must

be assigned to a federally recognized unit in a position provided

for in the prescribed tables of organization [citation]."].)

Section 215 does not purport to and cannot give the predicate for

that recognition, and without it an officer, such as the one in

question here, could not be considered to have had ten years

commissioned service in the Army National Guard or the National

Guard of the United States. Failing that, even if section 215

would consider ten years' service in the United States Army to have

been served in the California National Guard, he or she would still

not meet the first requirement of section 162 for appointment as

Adjutant General discussed above.

Our present conclusion regarding the relationship between

sections 162 and 215 is supported by the legislative history of

these two statutes. Prior to 1963, section 162 specifically

allowed "fifteen (15) years commissioned service in ... the United

States Army ..." as an alternative for eligibility. (Stats. 1947,

ch. 331, § 2.) The 1963 amendment of the statute (Stats. 1963, ch.

124, § 1) removed this alternative. We have examined the

legislative history of the 1963 amendment and have found no

indication that the deletion of the United States Army service

alternative was to be circumvented indirectly by the application of

section 215.

We therefore conclude that an officer who is presently on

active duty in the United States Army and who possesses the

requisite rank and command or staff experience may not be appointed

Adjutant General, when he or she has not served at least ten years

as a federally recognized officer in the National Guard of

California or of any other state.6

yet be eligible for retirement and must be distinguished from the

members of the State Military Reserve, formerly known as the

California National Guard Reserve. The latter are not part of the

California National Guard (§§ 120, 550) and are not federally

recognized. The final "organizations" category would cover those

who are not federally recognized.

6 In light of this conclusion we need not reconsider our former

understanding that section 215 would deem a person who had never

been a member of the California National Guard to have been a

member for the purpose of the second requirement of section 162,

6. 90-804 *****

i.e., one's having had four years' service as a field grade officer

in the California National Guard.

7. 90-804