Untitled California Attorney General Opinion ( 1991 )

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.
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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
4
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
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i.e., one's having had four years' service as a field grade officer
in the California National Guard.
7. 90-804