AGO 1951 No. 421 - Jan 5 1951
EXTENSION OF WASHINGTON NATIONAL GUARD ENLISTMENT CONTRACT
Action by Congress of the United States and Presidential Executive Order promulgated pursuant thereto was contemplated by the statute of this state establishing the organized militia and effectively extends enlistment contracts for a period of twelve months.
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January 5, 1951
Lilburn H. Stevens
Brigadier General, AGC, WNG
The Adjutant General
Camp Murray, Fort Lewis, Washington Cite as: AGO 49-51 No. 421
We are in receipt of your letter of December 29, 1950, wherein you request the opinion of this office concerning the legality of the action taken by you as Adjutant General of the Washington National Guard, acting for the Governor, in extending the enlistment contract of members of the Washington National Guard for a period of twelve months when such contract of enlistment would otherwise expire prior to midnight July 8, 1951.
The conclusion reached may be summarized as follows:
Presidential Executive Order 10145 promulgated in implementation of an act of Congress extended all enlistment contracts in the National Guard of the State of Washington, which would otherwise expire prior to midnight July 8, 1951, for a period of twelve months, and action taken by you as Adjutant General of the Washington National Guard issuing an order that all enlistments were so extended was a proper function of your office.
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The National Guard of the State of Washington is federally recognized and as a National Guard Unit of the United States constitutes a reserve component of the Army of the United States. 32 U.S.C. 4a, in part provides:
"The National Guard of the United States is hereby established. It shall be a reserve component of the Army of the United States and shall consist of those federally recognized National Guard units, and organizations, and of the officers, warrant officers, and enlisted members of the National Guard of the several States, Territories, and the District of Columbia, who shall have been appointed, enlisted and appointed, or enlisted, as the case may be, in the National Guard of the United States, as hereinafter provided, and of such other officers and warrant officers as may be appointed therein as provided in Section 111 hereof: Provided, That the members of the National Guard of the United States shall not be in the active service of the United States except when ordered thereto in accordance with law, and, in time of peace, they shall be administered, armed, uniformed, equipped, and trained in their status as the National Guard of the several States, Territories, and the District of Columbia, as provided in this Act: * * *"
Although § 35, Chapter 130, Laws of 1943, § 8603-35 Rem. Supp. 1943, provides that enlistments in the organized militia of the state shall be for a period of three years, § 5, Chapter 130, Laws of 1943, § 8603-5 Rem. Supp. 1943, declares the policy of the entire statute which creates the organized militia of this state and such policy contemplates that Federal statutes and regulations shall control. The latter section, in part, provides:
"Declaration of Policy. 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. * * *"
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The act of the 81st Congress extending the enlistment period of all components of the Army of the United States was contemplated by § 5, Chapter 130, Laws of 1943, § 8603-5 Rem. Supp. 1943, quoted, supra, and the action of Congress as provided by Chapter 501, Public Law 624, 81st Congress, is controlling. That statute, in part, provides:
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That until July 9, 1951, the President shall be authorized to extend all enlistments in any component of the Army of the United States, the United States Navy, and the United States Marine Corps, including the Naval Reserve and the Marine Corps Reserve, and in any component of the Air Force of the United States for a period of not to exceed twelve months; Provided, That all persons whose terms of enlistments are extended in accordance with the provisions of this Act shall continue during such extensions to be subject in all respects to the laws and regulations for the government of their respective service.
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The Presidential Executive Order 10145 promulgated in implementation of the statute quoted,supra, effectively extended for a period of twelve months all enlistments in the National Guard of the United States which would otherwise expire prior to midnight July 8, 1951.
It is, therefore, the opinion of this office that the action taken by you as Adjutant General of the Washington National Guard in extending the period of the enlistment contract of members of the Washington National Guard, pursuant to the provisions of Presidential Executive Order 10145 was proper.
Very truly yours,
WILLIAM J. MILLARD, JR.
Assistant Attorney General