RESIGNATION BY OFFICERS OF THE NATIONAL GUARD

RESIGNATION BY OFFICERS OF THE NATIONAL GUARD

An officer of the National Guard leaving the state may have his service terminated for that reason, but the Governor is not obligated to accept his resignation, and if a resignation is tendered it is not effective until accepted.

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                                                              September 26, 1950

Representative James P. Dillard
1124 West Eighth Avenue
Spokane, Washington                                                                                                              Cite as:  AGO 49-51 No. 340

Dear Sir:

            We have your verbal request for an opinion relative to the following inquiry:

            "Can an officer resign from the National Guard by reason of his removal from the state and is his resignation effective at the date when it was submitted or at the time of approval?"

            It is our conclusion that an officer of the National Guard does not have an unqualified right to resign by reason of his removal from the state but such removal is a proper basis for terminating his service at the option of the Governor.  A resignation is effective only as of the time of its acceptance.

                                                                     ANALYSIS

            When an officer accepts an appointment in the National Guard no limitation is placed upon the term of his service but his appointment is for an indefinite period.  Section 19, chapter 130, Laws of 1943 (§ 8603-19 Rem. 1943 Supp.) the state military code provides that a commissioned officer shall hold office until he shall have been retired, discharged, dismissed or placed in the reserve.  Section 3, of chapter 130, Laws of 1943 (§ 8603-31 Rem. 1943 Supp.) provides in part:

             [[Orig. Op. Page 2]]

            "The Governor may dismiss any commissioned or warrant officer of the Organized Militia of Washington for any of the following reasons:

            "* * *

            "e. Acceptance of resignation of such officer: Provided, That no officer shall be discharged or his resignation accepted while under arrest or against whom military charges have been preferred, or until he shall have turned over to his successor or satisfactorily accounted for all state and Federal monies, and military property for which he shall be accountable or responsible.

            "f. Removal of his actual residence to such distance from the station of his command as to render it impracticable for him to perform the duties of his office.

            "* * *"

            It will be noted that the section just quoted is written in permissive terms, that is, the Governor "may" dismiss a commissioned officer for the reasons stated.  Thus, removal from the state is a proper cause for terminating the service of a commissioned officer, but the military code does not require the Governor to terminate the service for this reason.  Termination of the service of an officer under the state military code is accomplished only in the manner provided in the sections above mentioned.  This necessarily means that a resignation can be effective only upon the date of its approval.  In actual practice where an officer resigns, the termination of his service is accomplished by the issuance of an order from the state military department.

            There has been no decision by the courts of this state in regard to the termination of the services of National Guard officers.  However, the United States Supreme Court has ruled upon a comparable situation in the case of persons in the federal military service.  The rule is stated in 36 Am.Jur. 223 as follows:

             [[Orig. Op. Page 3]]

            "It has been held that nothing short of a written resignation to the President or the proper executive department, by a commissioned officer of the Army, Navy, or Marine Corps, and the acceptance of the same duly notified to the incumbent of the office, in the customary mode, will of itself create a vacancy in an office in the Army or Navy by resignation."

            The text cites as authority Mimmack v. United States, 97 U.S. 426, 24 L.Ed. 1067.

            To summarize, removal from the state is a proper ground for termination of the service of an officer of the National Guard but the Governor is not required to accept a resignation for this reason and if a resignation is tendered it is not effective until acceptance has occurred.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General