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AGLO 1975 No. 14 - February 10, 1975
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑- EMPLOYEES ‑- MILITARY ‑- VETERANS' PREFERENCE

A person is not eligible for a veteran's preference in a competitive examination for public employment under RCW 41.04.010(1) solely on the basis of a six year enlistment in the Washington National Guard under 10 U.S.C.§ 511(d) with respect to which his only period of active duty (aside from drills and annual training exercises) was for a four month training period as required by that federal statute.

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                                                                February 10, 1975

Honorable J. Roy Jones
Prosecuting Attorney
Asotin County Courthouse
Asotin, Washington                                                                                                               Cite as:  AGLO 1975 No. 14

Dear Sir:

            By recent letter you conveyed to us several inquiries from the Asotin County Department of Emergency Services.  We have previously responded by informal letters to two of those questions and we here address ourselves, by an attorney general's letter opinion, to the third.  We paraphrase that question as follows:

            Is a person eligible for a veteran's preference in a competitive examination for public employment under RCW 41.04.010(1) solely on the basis of a six year enlistment in the Washington National Guard under 10 U.S.C. § 511(d) with respect to which his only period of active duty (aside from drills and annual training exercises) was for a four month training period as required by that federal statute?

            We answer this question in the negative for the reasons stated in our analysis.

                                                                     ANALYSIS

            RCW 41.04.010 provides, in pertinent part, as follows:

            "In all competitive examinations, unless otherwise provided herein, to determine the qualifications of applicants for public offices, positions or employment, the state, and all of its policital subdivisions and all municipal corporations, shall give a preference status to all veterans as defined in RCW 41.04.005, by adding to the passing mark, grade or rating only, based upon a possible rating of one hundred points as perfect a percentage in accordance with the following:

             Orig. Op. Page 2 "(1) Ten percent to a veteran who is not receiving any veterans retirement payments and said percentage shall be utilized in said veteran's competitive examination and not in any promotional examination until one of such examinations results in said veteran's first appointment:  Provided, That said percentage shall not be utilized in any promotional examination;"

            RCW 41.04.005 defines the term "veteran," for the purposes of this statute, as one who

            ". . . has served in any branch of the armed forces of the United States during:

            "(1) Any period of war and such 'period of war' shall include World War I, World War II, the Korean conflict, the Viet Nam era, and the period beginning on the date of any future declaration of war by the congress and ending on the date prescribed by presidential proclamation or concurrent resolution of the congress.  The said 'Viet Nam era' shall mean the period beginning August 5, 1964, and ending on such date as shall thereafter be determined by presidential proclamation or concurrent resolution of the congress; and in addition to this subsection, who, upon termination of said service has

            "(2) Received an honorable discharge; or

            "(3) Received a discharge for physical reasons with an honorable record; or

            "(4) Been released from active military service with evidence of service other than that for which an undesirable, bad conduct, or dishonorable discharge shall be given."

            Your question involves the eligibility for a preference under the first of these statutes of an individual honorably discharged from the Washington Air National Guard following a six year enlistment under 10 U.S.C. § 511(d) ‑ a federal statute which provides as follows:

             Orig. Op. Page 3 "(d) Under regulations to be prescribed by the Secretary of Defense, or the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy, a non-prior-service person who is under 26 years of age, who is qualified for induction for active duty in an armed force, and who is not under orders to report for induction into an armed force under the Military Selective Service Act of 1967 (50 App. U.S.C. 451-473), except as provided in section 6(c)(2)(A) (ii) and (iii) of such Act, may be enlisted in the Army National Guard or the Air National Guard, or as a Reserve for service in the Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve, for a term of six years.  Each person enlisted under this subsection shall perform an initial period of active duty for training of not less than four months to commence insofar as practicable within 180 days after the date of that enlistment."

            As required by this statute this person was initially called to active duty for a four-month interval for basic training.  For such training purposes he was sent to an Air Force base in Texas, after which he immediately returned to his national guard unit.  Thereafter, for the remainder of his six year enlistment period, he only participated in drills and the customary two week annual training periods required of such national guard units.  This all occurred during the Viet Nam "era," as required by RCW 41.04.005,supra.  At the end of his enlistment he received an honorable discharge.  Thus, the single issue posed is whether his service during this period constituted qualifying service ". . . in any branch of the armed forces of the United States."  RCW 41.04.005,supra.  Because this question relates to a state veteran's benefit, however, we must in answering it also look to the provisions of another statute, RCW 73.04.090, which provides that:

            "All benefits, advantages or emoluments, not available upon equal terms to all citizens, including but not being limited to preferred rights to public employment, civil service preference, exemption from license fees or other impositions, preference in purchasing state property and special pension or retirement rights, which by any law of this state  Orig. Op. Page 4 have been made specially available to war veterans or to persons who have served in the armed forces or defense forces of the United States, shall be available only to persons who have been subject to full and continuous military control and discipline as actual members of the federal armed forces.  Service with such forces in a civilian capacity, or in any capacity wherein a person retained the right to terminate his service or to refuse full obedience to military superiors, shall not be the basis for eligibility for such benefits.  Service in any of the following shall not for purposes of this section be considered as military service:  The office of emergency services or any component thereof; the American Red Cross; the United States Coast Guard Auxiliary; United States Coast Guard Reserve Temporary; United States Coast and Geodetic Survey; American Field Service; Civil Air Patrol; Cadet Nurse Corps, and any other similar organization."

            Since the term "armed forces of the United States" is not precisely defined in our own statutes, it is appropriate at the outset to examine the definition of the term "armed forces" as it appears in certain federal statutes.  Specifically, 10 U.S.C., § 101(4), defines this term to include the "Army, Navy, Air Force, Marine Corps and Coast Guard."  The same definitional section refers to the Army and Air National Guards not only as part of the "organized militia of the several states" but, in addition, as the reserve components of the Army and Air Force respectively, which themselves fall within the definition of "armed forces."  Another section of the federal code, 10 U.S.C., § 261, also identifies the Army National Guard of the United States and the Air National Guard of the United States as reserve components of the armed forces.

            A general examination of the provisions of Title 10 (dealing with the armed forces) and Title 32 (dealing with the national guard) of the United States Code leads to the conclusion that these statutes do not excludeper se, national guard units from the definition of "armed forces."  Moreover, where distinctions are to be drawn  Orig. Op. Page 5 between those who have served in the armed forces, the differences are expressly noted.  Thus, for example, in 5 U.S.C., § 2108 (dealing with veterans' preferences at the federal level), a veteran is defined to exclude those who have been called to active duty from their national guard or reserve unit for training purposes only.  However, while this statute controls for federal purposes, it is not controlling for purposes of our own state laws, RCW 41.04.010,supra,et al.

            The absence in the federal statutes of a clear-cut distinction in the term "armed forces" between regular reserve components of the military suggests that our legislature may not have relied on a controlling definition in federal statutes for the term "armed forces" as it appears in RCW 41.04.005, and thus for any distinctions it may have intended to draw in the nature of the service necessary to qualify for preference benefits.

            Distinctions in the military service performed appear in chapter 73.16 RCW where RCW 73.16.010, also dealing with the subject of preferences in public employment, provides:

            "In every public department, and upon all public works of the state, and of any county thereof, honorably discharged soldiers, sailors, and marines who are veterans of any war of the United States, or of any military campaign for which a campaign ribbon shall have been awarded, and their spouses, shall be preferred for appointment and employment.  Age, loss of limb, or other physical impairment, which does not in fact incapacitate, shall not be deemed to disqualify them, provided they possess the capacity necessary to discharge the duties of the position involved."

            This section does not use the term "armed forces," but it does refer to preferences for "appointment and employment."  The section should be compared with RCW 73.16.033 which expressly confers certain reemployment rights on "returned veterans and others."  The latter section provides, in part, as follows:

            "Any person who is a resident of this state and who voluntarily or upon demand, vacates a position of employment to determine his physical fitness to enter, or, who actually does enter  Orig. Op. Page 6 upon active duty or training in the Washington National Guard, the armed forces of the United States, or the United States public health service, shall, provided he meets the requirements of RCW 73.16.035, be reemployed forthwith: . . ."

            The requirements of RCW 73.16.035 are not relevant to the question under consideration.

            It can be seen that this statute makes separate reference to national guard personnel and members of the armed forces in conferring the limited employment preferences on both groups provided by RCW 73.16.033.  The distinctions between appointment referred to in RCW 73.16.010 and reemployment used in RCW 73.16.033 suggest that initial employment preferences were not intended to apply to members of the national guard unless the nature of the service might independently make such persons eligible for the preference as a member of the armed forces of the United States.1/

             Orig. Op. Page 7   This leads us back to what appears now to be the decisive statute insofar as your question is concerned, RCW 73.04.090, which we quoted earlier but here repeat for ease of reference:

            "All benefits, advantages or emoluments, not available upon equal terms to all citizens, including but not being limited to preferred rights to public employment, civil service preference, exemption from license fees or other impositions, preference in purchasing state property and special pension or retirement rights, which by any law of this state have been made specially availabe to war veterans or to persons who have served in the armed forces or defense forces of the United States, shall be available only to persons who have been subject to full and continuous military control and discipline as actual members of the federal armed forces.  Service with such forces in a civilian capacity, or in any capacity wherein a person retained the right to terminate his service or to refuse full obedience to military superiors, shall not be the basis for eligibility for such benefits.  Service in any of the following shall not for purposes of this section be considered as military service:  The office of emergency services or any component thereof; the American Red Cross; the United States Coast Guard  Orig. Op. Page 8 Auxiliary; United States Coast Guard Reserve Temporary; United States Coast and Geodetic Survey; American Field Service; Civil Air Patrol; Cadet Nurse Corps, and any other similar organization."

            It might be argued under this section that the exclusion of members of certain enumerated organizations from the coverage of other veterans' legislation impliedly recognizes the availability of such benefits for members of national guard or reserve units without regard to the nature of the service performed.  However, the section also provides that individuals eligible for veterans' benefits must have been subject to "full and continuous military control and discipline as actual members of the federal armed forces."

            We conclude that this language impliedly requires that a veteran spend on active duty a period of service beyond that required by law for active duty training.2/

             In reaching this conclusion it is necessary to refer to those federal statutes which define the nature of the service performed by the veteran whose situation gave rise to your inquiry.  The starting point is 10 U.S.C., § 511(d), supra, which (also repeated for ease of reference) provides:

            "(d) Under regulations to be prescribed by the Secretary of Defense, or the Secretary of Transportation with respect to the Coast Guard when it is not operatiing as a service in the Navy, a non-prior-service person who is under 26 years of age, who is qualified for induction for active duty in an armed force, and who is not under orders to report  Orig. Op. Page 9 for induction into an armed force under the Military Selective Service Act of 1967 (50 App. U.S.C. 451 ‑ 473), except as provided in section 6(c)(2)(A) (ii) and (iii) of such Act, may be enlisted in the Army National Guard or the Air National Guard, or as a Reserve for service in the Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve, for a term of six years.  Each person enlisted under this subsection shall perform an initial period of active duty for training of not less than four months to commence insofar as practicable within 180 days after the date of that enlistment."

            The status of such persons on training assignment appears to be defined (insofar as the Air National Guard is concerned) in 10 U.S.C. § 8497:

            "Members of the Air National Guard of the United States ordered to active duty shall be ordered to duty as Reserves of the Air Force."

            This interpretation is confirmed by regulations issued by the Secretary of the Air Force as authorized by 10 U.S.C., § 511(d). Thus, 32 C.F.R., § 132.3(g) provides:

            "(g)Army and Air National Guard.  In order to assure uniformity of training and discipline, members of the Army National Guard of the United States and the Air National Guard of the United States ordered to active‑duty-for-training for the purpose of basic training will be ordered to that duty as Reserves of the Army or of the Air Force, as appropriate."

            In construing the term "federal armed forces," a further examination of those provisions in the federal statute authorizing active duty assignments for reservists and guardsmen will be useful.  Under 10 U.S.C., § 8500, the President is authorized to call units or individual members of the Air National Guard into the "federal service" in the event of certain emegencies.  In the absence of such emergencies, a reservist or member of the national guard may elect to serve an active duty assignment other than for training.  See, 10 U.S.C., § 679, which employs the term "active duty" rather than "federal service."  A survey of these and other statutes reveals that the two terms are used interchangeably.  In this context, the phrase "actual members of the federal armed forces" used  Orig. Op. Page 10 in RCW 73.04.090 may fairly be read to refer to those in the federal service or on active duty.

            Federal law also provides assistance in assessing the import of another phrase in RCW 73.04.090, "full and continuous military control and discipline."  The consequences of a call to federal service are set forth in 10 U.S.C., § 8499:

            "Members of the Air National Guard called into Federal service are, from the time when they are required to respond to the call, subject to the laws and regulations governing the Air Force, except those applicable only to members of the Regular Air Force."

            That such control exists over those who have been called to active duty for training only is fairly implied from the language of 32 C.F.R., § 132.3(g), cited above, which refers to the need for "uniformity of training and discipline."

            From this examination of federal law, we can infer that a member of the national guard called to active duty for training is a member of the federal armed forces for that period and that during such period, such person is subject to "full and continuous military control and discipline."  We are still left with the question, however, whether a veteran who serves on active duty only for a limited period of time for purposes of training is qualified for preference benefits within the meaning of RCW 73.04.090.  In our opinion, such person does not meet the tests of the statute.

            When the category of "qualified veteran" set forth in RCW 73.04.090 is considered as an integrated definition ‑ "persons who have been subject to full and continuous military control and discipline as actual members of the federal armed forces" ‑ we find that something more than a limited period of active duty for training is required for eligibility for benefits.  The language in its entirety ‑ "full and continuous military control" and "actual members of the federal armed forces" ‑ connotes an extended period of active duty during which time an individual's entire existence is subject to military regulation.  It may be conceded that a reservist's entire period of enlistment is subject to a measure of military supervision.  See, e.g.,Olenick v. Brucker, 173 F.Supp. 493 (D.C.D.C. 1959).  The control, however, is not full, as should be selfevident from the ability of reservists to follow civilian pursuits during the substantial part of their periods of enlistment.

             Orig. Op. Page 11 The result we reach is entirely consistent with the underlying philosophy of veterans' benefit legislation. Preferences have been granted for the purpose of discharging in some measure the debt of gratitude owed by the public to those who have served in the armed forces in time of war.  Valentine v. McDonald, 371 Mich. 138, 145, 123 N.W.2d 227, 230 (1963).  That the dislocation in the merit selection process entailed by the preference award should be extended only to those whose own lives have suffered significant dislocation has been forcefully emphasized by the courts.  Matter of Rahill v. Bronstein, 32 N.Y.2d 417, 298 N.E.2d 674 (1973).

            Interpreting constitutional and statutory provisions which in granting the preference made as distinctions between the nature of the services rendered by one in the armed forces, the New York Court found that the pervasive rationale for preference legislation cited by the supreme court in Mitchell v. Cohen, 333 U.S. 411, 419, 420 (1948), justified a limitation of its benefits to those whose period of service had been full-time active duty:

            "Throughout the legislative reports and debates leading to the birth of this statute is evident a consistent desire to help only those who had sacrificed their normal pursuits and surroundings to aid in the struggle to which this nation had dedicated itself.  It was the veterans or ex-servicemen who had been completely divorced from their civilian employment by reason of their full-time service with the armed forces who were the objects of Congressional solicitude.  Reemployment and rehabilitation were considered to be necessary only as to them.

            "There is nothing to indicate that the legislative mind in this instance was directed toward granting special benefits or rewards to those who performed military service without interference with their normal employment and mode of life.  As to them, assistance in reemployment and rehabilitation was thought unnecessary. Their civilian employment status remained unchanged by reason of their military service.  And since their civilian life was substantially unaltered, there was no problem of aiding their readjustment back to such a life.  Indeed, to have given them preference rights solely because of their part-time military service would have been inconsistent with the professed  Orig. Op. Page 12 aims of the statutory framers.  Such preference would have diluted the benefits conferred on those ex-servicemen who had made full-scale sacrifices; and it would have been inequitable to the many civilians who also had participated voluntarily in essential war and defense activities but who had not been directly connected with a branch of the armed forces."

            The resolution of this issue judicially has been reached by statute under federal law as we have already noted.  5 U.S.C., § 2108.  Some states have equivalent statutory provisions.  See, e.g., 4 Mass. Gen. Laws Ann. § 7, followed in Greeley v. Civil Service Comm., 306 N.E.2d 449 (Mass. App. 1974).

            We trust you will find this discussion responsive to your inquiry.

Very truly yours,

SLADE GORTON
Attorney General

LELAND T. JOHNSON
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In AGO 59-60 No. 152 to Charles O. Carroll, Prosecuting Attorney, King County on October 14, 1960we held that a veteran of the Korean conflict must have received a campaign badge to be eligible for relief under the provisions of chapter 73.08 RCW.   Accord AGO 55-57 No. 72 to Charles O. Carroll, Prosecuting Attorney, King County on May 10, 1955.  The language of RCW 73.08.010 in pertinent part provides:

            "For the relief of indigent and suffering Union soldiers, sailors and marines who served in the Civil War, in the war of Mexico or in any of the Indian wars in the United States, the Spanish-American war and Philippine insurrection, soldiers, sailors and marines who served in the United States army, navy, or marine coprs between April 6, 1917, and the date upon which peace is finally concluded with the German government and its allies, or soldiers, sailors and marines who served in the army, navy or marine corps of the United States in any other foreign war, insurrection, or expedition, which service shall be governed by the issuance of a campaign badge by the government of the United States of America, . . ."  (Emphasis supplied.)

            In contrast, RCW 73.16.010 accords employment preference to those "who are veterans of any war of the United States, or of any military campaign for which a campaign ribbon shall have been awarded . . ."  (Emphasis supplied.)

            For purposes of chapter 41.04 RCW, a veteran is one who has served during "any period of war" as defined in RCW 41.04.005.  In AGO 61-62 No. 180 to Daniel F. Donohoe, Director Highway Personnel Department on November 29, 1962, we held simply that veterans' preference benefits were available only to veterans of a war in which the United States was engaged.  While the nature of the service required was not discussed in that opinion, the distinctions in the statutory language in RCW 73.08.010 and RCW 73.16.010 fairly imply that foreign or overseas service or the award of a campaign ribbon is not a requisite for the award of preferences allowed by RCW 41.04.010.

2/We do not feel it necessary to discuss what additional period of active duty beyond that set aside for training is required in order to qualify a veteran for preferences under the Washington statutes.   Present law provides that a member of a reserve component of the armed forces who desires to go on active duty must agree to serve for a period at least twelve months longer than "any period of active duty that the member is otherwise required to perform."  10 U.S.C. 679(b).

            Conceivabley, a period of active duty for a reservist called into the federal service, individually or with his unit, by the President during an emergeny, might be of short duration.  The call, however, is likely to be for an indefinite period, requiring severance of all of a reservist's civilian ties.  In any event, the period of active duty will represent an individual commitment beyond the interval otherwise required for training.

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