MILITIA ‑- UNIFORM ALLOWANCE

MILITIA ‑- UNIFORM ALLOWANCE

An individual who has received an initial uniform allowance when commissioned an officer of the Ground National Guard is entitled to another initial uniform allowance following his resignation from the Ground National Guard and his subsequent appointment as an officer in the Air National Guard.

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                                                                   May 14, 1957

Honorable Lilburn H. Stevens
Major General, Wash. N.G.
The Adjutant General
Camp Murray
Fort Lewis, Washington                                                                                                                Cite as:  AGO 57-58 No. 63

Dear Sir:

            You have requested our opinion on a problem involving uniform allowances for members of the National Guard.  In your letter you state that at the present time the Organized Militia of Washington is comprised of both Ground and Air National Guard organizations, and that the uniforms are different for each branch.  We paraphrase your question as follows:

            Is an individual who has received an initial uniform allowance when commissioned an officer of the Ground National Guard entitled to another initial uniform allowance following his resignation from the Ground National Guard and his subsequent appointment as an officer in the Air National Guard?

            We answer in the affirmative.

                                                                     ANALYSIS

            RCW 38.12.200 provides that:

             [[Orig. Op. Page 2]]

            "Every commissioned officer of the organized militia shall within sixty days from the date of the order whereby he was appointed, provide himself at his own expense, with the uniform and equipment prescribed by the governor for his rank and assignment.

            "There shall be audited and paid to each properly uniformed and equipped officer of the active list of the organized militia, not in federal service an initial uniform allowance of one hundred dollars and annually thereafter for each twelve months state service an additional uniform allowance of fifty dollars, subject to such regulations as the commander-in-chief may prescribe, to be audited and paid upon presentation of proper voucher therefor."

            It is to be noted that the appointment must place the officer within the organized militia of this state.

            The term "organized militia" is defined in RCW 38.04.010 as follows:

            "'Organized militia' is the general term including both state and national guard and whenever used applies equally to all such organizations; . . ."

            RCW 38.12.060 reads in part as follows:

            "All commissioned and warrant officers of the organized militia shall be appointed and commissioned or warranted by the governor only as herein provided. . . . Every commissioned and warranted officer shall hold office under his commission or warrant until he has been regularly appointed and commissioned or warranted to another rank or office, or until he has been regularly retired, discharged, dismissed, or placed in the reserve."

            Thus, to become qualified for the initial uniform allowance under RCW 38.12.200, quoted above, an appointment of the officer into the organized militia must be made by the governor.  Furthermore, his position as a commissioned officer may only be relinquished in accordance with the methods laid out in the last sentence of Section 38.12.060, cited above.  One of these methods is dismissal.

             [[Orig. Op. Page 3]]

            Dismissal of officers is covered in RCW 38.12.170, a portion of which reads as follows:

            "The governor may dismiss any commissioned or warrant officer of the organized militia for any of the following reasons:

            ". . .

            "(5) Acceptance of resignation of such officer . . ."

            It is our understanding that in order to effect a change of position from the Ground National Guard to the Air National Guard, or vice versa, an officer must first resign his commission and subsequently receive a new appointment by the governor as a member of the other branch.  Such a resignation, when properly executed, is therefore a dismissal under Section 38.12.170, cited above.

            A dismissal results in a relinquishment of membership in the organized militia of this state under RCW 38.12.060, supra.  Thus, when the individual is again appointed by the governor to the different component of the organized militia, it is a new and original appointment, for there must of necessity be a period of time, however short, between his resignation and his second appointment when he is not a commissioned officer or member of the organized militia of the state.

            It is therefore our opinion that an individual who has resigned his commission in the Ground National Guard and thereafter is commissioned by the governor in the Air National Guard, or vice versa, is entitled to the initial uniform allowance under RCW 38.12.200, assuming that he has otherwise qualified.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ERNEST M. FURNIA
Assistant Attorney General