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National Guard; Pensions; Eligibility of Members and Former Members

June 28, 1983

Subject:

National Guard; Pensions; Eligibility of Members and Former Members

Requested By:

Robert A. Melott Deputy Secretary Department of Crime Control and Public Safety

Questions:

  1. Under G.S. 127A-40, when may a member of the North Carolina National Guard receive the pension authorized therein?

  2. How can it be determined whether a person has separated from the North Carolina National Guard with an honorable discharge as required by G.S. 127A-40(a)(3)?

  3. Does G.S. 127A-40 permit a person who has retired from the Army Reserve and is receiving retired pay for that non-regular service to also receive the pension authorized therein?

  4. Does G.S. 127A-40 permit a person who is employed full-time with the North Carolina National Guard as a federal technician under the Civil Service system to receive the pension authorized therein?

  5. Does G.S. 127A-40 permit the Adjutant General of the North Carolina Militia to receive the pension authorized therein?

Conclusions:

  1. A member of the North Carolina National Guard may receive the pension authorized by G.S. 127A-40 only after he meets the statutory age and length of service requirements and separates from the Guard with an honorable discharge.

  2. A member’s National Guard Bureau Form 22 should be used to establish that he has separated from the North Carolina National Guard with an honorable discharge.

  3. Yes, provided the person meets the requirements established by G.S. 127A-40 and has separated from the North Carolina National Guard.

  4. Yes, provided the person meets the requirements established by G.S. 127A-40 and is not employed in a federal technician position for which National Guard membership is required as a condition of employment.

  5. Yes, provided the person meets the requirements established by G.S. 127A-40 and has separated from the North Carolina National Guard.

The 1973 Session of the North Carolina General Assembly enacted as Chapter 625 of its Session Laws "An Act to Amend the General Statutes of North Carolina so as to Provide Pensions for Members of the National Guard of North Carolina." By Section 1 of that Act, a new section, G.S. 127-30.1 (now G.S. 127A-40), was added to Chapter 127 of the North Carolina General Statutes. The Act, which was to become effective on July 1, 1974, read in pertinent part:

(a)
Every member of the National Guard of North Carolina who meets the requirements hereinafter set forth shall receive, commencing at age 60, a pension . . . The requirements for such pension are that each member shall:
(1)
Have served and qualified for at least 20 years’ creditable military service, including National Guard, Reserve and Active Duty, under the same requirement specified for entitlement to retired pay for nonregular service under Chapter 67, Title 10, United States Code.
(2)
Have a least 15 years of the aforementioned service as a member of the North Carolina National Guard and the final or last 10 years of service immediately prior to retirement shall have been in the North Carolina National Guard.
(3)
Have received an honorable discharge from the North Carolina National Guard."

(Emphasis added.)

Further, the original legislation provided:

(g) The provisions of this section shall apply to: (1) members of the North Carolina National Guard serving therein on or after July 1, 1974; (2) any person who fully qualifies for the pension and is involuntarily separated from the North Carolina National Guard for reasons other than misconduct between the date of ratification of this Section and July 1, 1974, with eligibility of such person commencing at age 60 or July 1, 1974, whichever is the later date.

(Emphasis added.)

Later in the 1973 Session, the North Carolina General Assembly enacted Chapter 1241 of its Session Laws which amended G.S. 127-30.1. Subsection (a) was amended to read: "Every member and former member of the National Guard of North Carolina who meets the requirements hereinafter set forth shall receive, commencing at age 60, a pension. . . ." (Emphasis added) A period was also inserted after the first use of the word "Guard" in subdivision (a)(2) and the remainder of the subdivision stricken. Finally, the amendment deleted all of subsection

(g)
and substituted in lieu thereof the following:
(g)
The provisions of this section shall apply to any member or former member of the North Carolina National Guard who is qualified by the above requirements with eligibility of such person commencing at age 60 or July 1, 1974, whichever is the later date.

(Emphasis added.)

The threshold issue presented by your first question is whether, by amending the Act to include both the terms "member" and "former member", the Legislature intended a person, who was otherwise qualified, to receive the pension while serving in the North Carolina National Guard. The Legislature’s intent may be found from the language of the act and its legislative history. State Milk Commission v. National Food Stores, Inc., 270 N.C. 323, 154 S. E. 2d 548 (1967). Additionally, parts of the same statute dealing with the same subject matter must be considered and interpreted as a whole. Commissioner of Insurance v. North Carolina Automobile Rate Administrative Office, 294 N.C. 60, 239 S.E. 2d 48 (1978). Words and phrases of a statute may not be interpreted out of context, but individual expressions must be construed as a part of the composite whole and must be accorded only that meaning which other provisions and the clear intent and purpose of the act will permit. In re Hardy, 294 N.C. 90, 240 S.E. 2d 367 (1978).

When these rules of statutory interpretation are applied to the original 1973 Act, the emphasized language of subdivisions (g)(1) and (g)(2) clearly reflects the Legislature used the term "member" in subsection (a) to refer to: 1) persons serving in the North Carolina National Guard on or after the Act’s effective date and 2) persons serving in the Guard on or after its ratification who were involuntarily separated before its effective date. Further, the emphasized language of subdivisions (a)(2) and (a)(3) indicates the Legislature’s intent to have these members receive the pension only upon retirement and discharge from the North Carolina National Guard under honorable conditions.

There are no written minutes of the committee to which the 1973 amendment was referred, nor is there any record of a legislative debate which might indicate its intended purpose. On its face, the amendment did two things. First, the amendment to subdivision (a)(2) eliminated the requirement that ten years of the qualifying service be with the North Carolina National Guard immediately prior to retirement. Second, the amendment to subsection (g) extended the coverage of the Act to "any . . . former member . . . who is qualified by the above requirements. . . ." The addition of the words "former members" to subsection (a) was only a necessary reference to those persons brought within the Act’s coverage by new subsection (g).

The Legislature’s intent in amending subsection (g) is obvious. The original Act authorized payment of the pension only to persons serving in the Guard on or after its effective date who thereafter retired in the Guard on or after its effective date who thereafter retired and persons serving in the Guard at its ratification who were separated before its effective date. The amendment simply extended the Act’s coverage to persons who had completed the qualifying service with the Guard before the Act’s effective date. As the amendment specifically provided that "any member or former member [had to be] qualified by the [statutory] requirements" in order to receive the pension, it in no way effected the requirement of subdivision (1)(3) that they must have been honorably discharged from the North Carolina National Guard.

This conclusion is bolstered by the language of subsection (b) of the statute which has remained unchanged throughout its history. This subsection provides that "[p]ayment to a retired member . . . [will] cease at the death of the individual. . . ." (Emphasis added.) The statute contains no similar provision for cessation of payments to persons who die while serving in the Guard. Certainly if the Legislature had intended the amendment to authorize members to receive the pension while serving in the Guard, it also would have made a provision requiring the cessation of the pension payments upon the death of such a member.

It could be argued that by adding the words "former members" without striking the word "member", the Legislature intended to have the pension paid to persons, who otherwise qualified, while they were serving with the Guard as well as those who had retired or separated. The only support for this position is that concurrently with the addition of the words "former member" the Legislature eliminated the requirement that the last ten years of qualifying service immediately prior to retirement be with the North Carolina National Guard. This interpretation is in conflict with the legislative intent expressed in other portions of the Act as no other references to retired pay, discharge, or retired member were deleted. A more likely reason for eliminating this provision was to allow persons who had the required years of service with the North Carolina National Guard to receive the pension in the event they transferred to and then retired or separated from another state’s National Guard.

Although admittedly the amendment made the Act ambiguous, it should not be interpreted as authorizing pension payments to persons while serving in the Guard. Thus, it must be concluded that G.S. 127A-40 authorizes members of the North Carolina National Guard who met the statutory age and length of service requirements to receive the pension only after separating from the Guard with an honorable discharge.

The question you pose concerning how to determine whether a person has separated from the North Carolina National Guard with an honorable discharge as required by G.S. 127-A-40(1)(3) is more simply answered. Under 32 U.S.C. §§ 322 and 324, discharged members of the National Guard are "entitled to a discharge certificate similar in form and classification to the corresponding certificate prescribed for members of the Regular Army or the Regular Air Force, as the case may be." National Guard Bureau Form 22 is used to terminate active or inactive status of National Guard members and is the counterpart of Defense Department Form 214. NGB Form 22 requires, on line 8d, the "character of service" to be indicated. An entry of "honorable" in line 8d of NGB Form 22 satisfies the requirement of G.S. 127A-40(a)(3) that the individual "shall have received an honorable discharge from the North Carolina National Guard."

It is clear that G.S. 127A-40 does not prohibit an individual who is retired from the Army Reserve, and receiving retired pay for that non-regular service from also being paid the pension authorized by the statute. Only those individuals "receiving retired pay as a result of length of service, age or physical disability retirement from any of the regular components of the armed forces of the United States" are ineligible for the benefits provided by G.S.127A-40. [G.S.127A40(c) Emphasis added.] The Army Reserve is not a regular component of the armed forces of the United States. It is specifically listed in 10 U.S.C. § 2161(a) as a reserve component of the armed forces. Additionally, retired pay based in part upon service with a reserve component is considered retired pay for non-regular service not pay as a result of length of service, age or physical disability. (10 U.S.C. § 1331) Finally, G.S. 127A-40(d) provides that "[n]othing contained in this Article shall preclude or in any way effect the benefits that an individual may be entitled to from State, Federal or private retirement systems." Therefore, an individual who receives retired pay as a result of his service with the Army Reserve may receive the pension provided by G.S. 127A-40 if he is otherwise qualified and has separated from the Guard.

The issue as to whether the pension may be paid to a federal technician who is otherwise qualified depends upon his status as a member of the North Carolina National Guard. Under 10

U.S.C. § 709, persons employed as technicians in the administration and training of the National Guard or the maintenance and repair of supplies issued to the National Guard or the armed forces shall, while so employed, be a member of the National Guard and hold the military grade specified for that position. Persons may also be employed as federal technicians in positions for which membership in the National Guard is not required as a condition of employment. As used in 10 U.S.C. § 709, the term "National Guard" refers to the Army National Guards and the Air National Guards of the organized militia of the several states and thus includes both the Army and Air components of the North Carolina National Guard.

As stated above, the obvious intent of the Legislature was to allow only persons who had retired or been separated from the North Carolina National Guard to receive pensions. Therefore, a person who holds a federal technician position in which National Guard membership is required as a condition of employment and who has not retired or been separated from the North Carolina National Guard may not be paid the pension provided by G.S. 127A-40. Conversely, a person who is employed as a federal technician in a position in which National Guard membership is not required as a condition of employment and who has retired or been separated from the North Carolina National Guard may be paid the pension provided by the statute.

Nothing in G.S. 127A-40 precludes the Adjutant General from drawing the pension provided for therein if he is otherwise qualified. The office of Adjutant General, as the military head of the militia, is established by G.S. 127A-19. The statute specifically provides that the "Adjutant General, while holding such office, may be a member of the active National Guard or Naval Militia." (G.S. 127A-29). This language necessarily implies that the Adjutant General may be a civilian or have non-regular military status including that of an inactive, retired or separated officer of the North Carolina National Guard. Therefore, consistent with the conclusion earlier reached in this opinion, the Adjutant General of North Carolina, if otherwise qualified, may receive the pension authorized by G.S. 127A-40, provided he or she has separated from the National Guard.

RUFUS L. EDMISTEN Attorney General

W. Dale Talbert Assistant Attorney General