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AGO 1952 No. 217 - January 17, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington

PROMOTION OF WASHINGTON NATIONAL GUARD OFFICERS.

Promotion vacancies for officers of the National Guard shall be filled by promotion of the senior qualified officer of the next lower grade.  Such qualification includes the requirements for federal recognition.

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                                                                 January 17, 1952

Brigadier General Lilburn H. Stevens
The Adjutant General
Camp Murray
Fort Lewis, Washington                                                                                                Cite as:  AGO 51-53 No. 217

Dear Sir:

            Receipt is acknowledged of your letter of January 4, 1952, in which you inquire as to the proper method of promoting officers to fill vacancies in the Washington National Guard in view of the apparent conflict between the requirements of Circular No. 7 of the United States National Guard Bureau dated 17 May 1951, and Sections 25, 26 and 27 of the Military Code of the State of Washington, chapter 130, Laws of 1943 (§§ 8603-25 to 8603-27, inc. Rem. 1943 Supp.).

            It is our conclusion that a promotion to fill a vacancy in commissioned grades in the Washington National Guard must go to the senior qualified officer of the next lower grade and such qualification includes meeting the requirements of federal regulations.

                                                                     ANALYSIS

            Promotion of officers to fill vacancies in the Washington National Guard is governed by sections 25, 26 and 27, chapter 130, Laws of 1943.  Those sections read:

            "Sec. 25. Whenever a vacancy shall have occurred in any commissioned office of a company or similar unit of the Organized Militia of Washington other  [[Orig. Op. Page 2]] than the junior commissioned office thereof, the same shall be filled by the assignment thereto of an officer of the same rank and branch or arm of the service resident at the station of said company or similar unit, or by the promotion of the senior officer of the next lower rank of the same branch or arm of the service resident at that station."  (§ 8603-25 Rem. Rev. Stat.)

            "Sec. 26.  Whenever a vacancy shall have occurred in the commissioned staff of any regiment, battalion or other unit of the Organized Militia of Washington, the same shall be filled by the assignment thereto of an officer of the same rank and branch or arm of the service, or by the promotion of the senior officer of the next lower rank of the same unit."  (§ 8603-26 Rem. Rev. Stat.)

            "Sec. 27. Whenever a vacancy shall have occurred in the rank of major in the line of the Organized Militia of Washington, the same shall be filled as follows:

            "a. If the command is at the same station, by the assignment of the senior major of the line of the same branch or arm of the service resident at that station who shall have no command wholly located within said station, or, if there be no such major, by the promotion of the senior captain of the same branch or arm of the service resident at said station.

            "b. If the command is not all at one station, by the promotion of the senior among the captains of the same branch or arm of the service resident at the various stations of such command.

            "Whenever a vacancy shall have occurred in the rank of colonel or lieutenant colonel, it shall be filled by promotion of the next senior officer of  [[Orig. Op. Page 3]] such command, except in those cases where the law provides for the assignment thereto of officers relieved from detail with staff corps and departments.

            "Whenever a vacancy shall have occurred in the rank of brigadier general of the line, it shall be filled by the promotion of the senior officer of the line of the Organized Militia of Washington of the next lower rank."  (§ 8603-27 Rem. Rev. Stat.)

            It will be noted that the express requirement in each case is that the position vacancy be filled by promotion of the senior officer in the next lower rank, thus placing the promotion entirely upon the basis of seniority.  If this were the only basis for promotion, clearly there would be a violation of federal regulations for Circular No. 7 of the National Guard Bureau, dated 17 May 1951 prescribes numerous conditions for qualification of officers for federal recognition.  These qualifications require that they fulfill minimum military educational requirements, meet age in grade limitations, complete certain periods and minimum years of service in grade, and evidence excellent performance of military duty in the grade from which promoted.  It is impracticable to promote an officer in the Washington National Guard who is not eligible to federal recognition and the policy of the State Military Code is declared in § 5, chapter 130, Laws of 1943, as follows:

            "The Governor shall cause the Organized Militia of this State at all times to conform to all Federal laws and regulations as are now or may hereafter from time to time become operative and applicable, notwithstanding anything in the laws of this state to the contrary.  * * *"

            Thus, it is apparent that it was the intention of the legislature that the Washington National Guard should conform to federal regulations.  The promotion of officers as contemplated by sections 25, 26 and 27 can be accomplished only in conformity with a procedure specified in section 20 of the Military Code.  This section requires that a candidate for appointment be adjudged qualified by an examining board.  The language used in the section necessarily makes it applicable to promotion as well as to original appointment.  In our opinion sections 25, 26 and 27 must be read in the light of section 20, for no promotion can take place except in conformity with section 20.  Thus, when the  [[Orig. Op. Page 4]] three sections referred to speak of promotion of the senior officer of the next lower rank they should be deemed to mean the promotion of the senior officer of the next lower rank who can qualify for promotion.  Section 20 reads as follows:

            "No person shall be appointed and commissioned or warranted to any office in the Organized Militia of Washington unless he shall have been examined and adjudged qualified therefor by an examining board, appointed by the Adjutant General, and whose report shall have been approved by the authority appointing the board.  The composition, appointment and procedure of examining boards and the nature and scope of examinations shall be as prescribed by the laws or regulations of the United States or those of this state.  Whenever a commissioned officer shall have been examined for promotion pursuant to this section and shall have been adjudged not qualified therefor, upon approval by the authority appointing the board of its report to that effect such officer shall be honorably discharged, retired or placed in the reserve as the Governor shall direct."

            It will be noted that the nature and scope of examinations shall be as prescribed by the laws or regulations of the United States or those of this state.  We believe that this is express authority for including within the scope of the examination a determination of whether the individual meets the requirements for federal recognition as prescribed in federal regulations.  Under this section if an officer examined for promotion shall have been adjudged not qualified, he shall be honorably discharged or placed in the reserve as the Governor shall direct.  Under section 28 of the Military Code of Washington an officer may waive his right of promotion to which his seniority shall entitle him, in which event the next senior officer who shall not in writing have waived such promotion shall be entitled thereto.

            When a vacancy arises to be filled by promotion from the next lower rank, it is our opinion that the senior officer in such rank has a right to such promotion if he can qualify and he may be required to either waive the promotion or submit  [[Orig. Op. Page 5]] to examination pursuant to section 20.  If he shall fail to qualify, action should be taken as prescribed in that section.  Thus, in any event, where the senior officer cannot qualify for promotion, the way is left open for a promotion of the next senior officer who can qualify.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General

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