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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

DANIEL E. LUNGREN
 

Attorney General
 

OPINION :
 

: No. 90-804
 

of :
 

: MAY 2, 1991
 

DANIEL E. LUNGREN :
 

Attorney General :
 

:
 

RONALD M. WEISKOPF :
 

Deputy Attorney General :
 

:
 

THE HONORABLE WILLIAM A. CRAVEN, MEMBER OF THE CALIFORNIA
 

SENATE, has requested an opinion on the following question:
 

May the Governor appoint as the Adjutant General an
 

officer who is presently on active duty in the United States Army
 

and who possesses the requisite rank and command or staff
 

experience but who has never been a member of the National Guard of
 

California or that of any other state?
 

CONCLUSION
 

The Governor may not appoint as Adjutant General an
 

officer presently on active duty in the United States Army who
 

possesses the requisite rank and command or staff experience when
 

the officer has never been a member of the National Guard of
 

California or that of any other state.
 

ANALYSIS
 

Section 162 of the Military and Veterans Code1

 provides
 

for the appointment, tenure and qualifications for the Adjutant
 

General of the State of California as follows:
 

"The Adjutant General shall be appointed by the
 

Governor with the advice and consent of the Senate, and
 

1

All section references are to the Military and Veterans Code
 

unless otherwise specified.
 

1. 90-804
 
 

 

shall hold office at the pleasure of the Governor, or
 

until his successor is appointed and has qualified. No
 

person is eligible for appointment as Adjutant General
 

unless he had not less than a total of ten (10) years of
 

commissioned service in the National Guard of the United
 

States, of which at least four (4) years shall be service
 

as a field grade officer in the California National Guard
 

within the preceding 10-year period prior to the date of
 

appointment and of which at least four (4) years shall
 

have been in command of army or air troops at the
 

battalion or equivalent or higher command level or four
 

(4) years as a staff officer at brigade or equivalent or
 

higher staff level." 


The question we are asked to address is whether an
 

officer who is on active duty in the United States Army and who
 

possesses the requisite rank and command or staff experience,2 but
 

who has never been a member of the National Guard of California or
 

of any other state,3

 may be appointed Adjutant General. We
 

conclude that such an officer would not meet the statutory
 

qualifications for the office.
 

The first requirement that an appointee must satisfy is
 

having had "not less than a total of ten (10) years of commissioned
 

service in the National Guard of the United States ." (§ 162;
 

emphasis added.) We proceed to show that the officer described
 

would not meet that qualification because under federal law he or
 

she would have had to acquire that commissioned service by serving
 

as a member of a recognized state National Guard unit in a position
 

which accorded him or her what is known as "federal recognition."
 

The National Guard of the United States (NGUS) "is a
 

reserve component of the United States Armed Forces" (58
 

Ops.Cal.Atty.Gen. 144, 144-145, (1975)) and consists, inter alia,
 

of the Army National Guard of the United States (ARNGUS) and the
 

Air National Guard of the United States (ANGUS). (Cf. 10 U.S.C. §
 

261.) We assume that the Army officer in question has never served
 

in the Air National Guard of the United States, and so in order to
 

2

"Commissioned service" refers to the service of commissioned
 

officers (§ 220) as distinguished from noncommissioned officers (§
 

252) and enlisted personnel (§ 250). "A field grade officer" has
 

the rank of major or above. In Army terminology, a command unit
 

increases in size as follows: platoon, company, battalion,
 

regiment, brigade, and division. "A staff officer" is one who acts
 

in a support position to the commander of a unit.
 

3

As we shall explain, the ten years "in the National Guard of
 

the United States" requirement may be met by serving six years in
 

the National Guard of another state and four years in the
 

California National Guard.
 

2. 90-804
 
 

have been a member of the National Guard of the United States, he
 

or she would have had to have been a member of the Army National
 

Guard of the United States, or to have otherwise specially
 

qualified in a manner not pertinent here. 


The Army National Guard of the United States is a reserve
 

component of the Army and is composed of the "(1) federally
 

recognized units and organizations of the Army National Guard; and
 

(2) members of the Army National Guard who are also Reserves of the
 4
 Army." (10 U.S.C. § 3077; cf. 32 U.S.C. § 101(5).) Thus, for the
 

officer to have been a member of the Army National Guard of the
 

United States, he or she would have had to have been a member of a
 

federally recognized unit of the Army National Guard or a member of
 

the Army National Guard and a Reserve of the Army. In the scenario
 

we are given, he or she would have been neither.
 

The Army National Guard is "that part of the organized
 

militia of the several states and territories ... that ... is a
 

land force ... and ... is federally recognized." (32 U.S.C.
 

§ 101(4).) In other words, it is the collective of the Army
 

National Guards of the several states and territories that have
 

been accorded "federal recognition." That is a term of art that
 

describes a status accorded both to a state's militia and to its
 

individual officers: "As a result of federal recognition, a state
 

National Guard unit receives federal aid and qualifies as a unit of
 

the National Guard of the United States subject to being called
 

into the federal service [citation]." (11 Ops.Cal.Atty.Gen. 252,
 

260 (1948).) "Federal recognition [also] determines an officer's
 

right to a federal commission in the National Guard of the United
 

States." (Ibid.)
 

Here the Army officer in question would never have been
 

a member of the Army National Guard or a member of the Army Reserve
 

because, although he or she has been on active duty as a regular
 

officer in the United States Army, he or she has not served in a
 

reserve component. (Cf. 10 U.S.C. §§ 101(5) ["`Army National Guard
 

of the United States' means the reserve component of the Army..."];
 

101(22) ["The term `active duty' means full-time duty in the active
 

military service of the United States. ... It does not include
 

full-time National Guard duty".].) And because the officer has
 

never been a member of the California National Guard or that of any
 

other state, he or she would not have been a member of the Army
 

4

It should be made clear that the Army Reserve and the Army
 

National Guard of the United States are separate reserve components
 

of the armed forces. (E.g., compare 10 U.S.C. § 261, subsec.(a)(1)
 

with id., subsec. (a)(2); see also, historical note following 32
 

U.S.C. § 101 explaining the definition of "Army National Guard of
 

the United States" found in clause (4) of that section.) Thus, one
 

may be a Reserve of the Army without being a member ARNGUS. (Cf.
 

10 U.S.C. § 3076.)
 

3. 90-804
 
National Guard as a member of "that part of the organized militia
 

of the several States...." (32 U.S.C. § 101(4).) 


Never having served in the Army National Guard or been a
 

Reserve of the Army, the officer in question would never have been
 

a member of the Army National Guard of the United States (ARNGUS),
 

or perforce the National Guard of the United States, as required by
 

section 162. That being the case, he or she would be ineligible to
 

be appointed Adjutant General.
 

In 58 Ops.Cal.Atty.Gen. 144, supra, we were asked the
 

same question that we are today and answered it in the affirmative.
 

There we concluded that an active duty Army officer who had never
 

been a member of the California National Guard could not qualify
 

for appointment under section 162 by itself, but could qualify for
 

appointment upon becoming a member of the California National Guard
 

through the operation of section 215. Section 215 provides in
 

part: 


"For all purposes under this code commissioned
 

officers ... of the California National Guard ... who
 

have heretofore or hereafter performed service in the
 

United States Army ... shall be entitled to credit for
 

time so served as if such service had been rendered in
 

the state forces." 


Thus we said:
 

"If, therefore, the officer otherwise qualified for
 

appointment under section 162 were to become a member of
 

the California National Guard ..., the time served in the
 

federal armed services would be credited toward
 

eligibility under section 162. If such officer had ten
 

years of active duty and four of those years were within
 

the last ten-year period preceding his appointment and he
 

met the other requirements of section 162, he could be
 

appointed Adjutant General by the Governor." (58
 

Ops.Cal.Atty.Gen. at 145.) 


We have been specifically asked to reconsider this aspect of our
 

1975 opinion. Doing so, we find it was in error.
 

Whatever the consequences of the time credit accorded by
 

section 215 for time served in the United States Army may be, such
 

as providing a factor to be used in computing retirement pay and
 

determining other benefits for members of the California National
 

Guard (cf. Santin v. Cranston (1967) 250 Cal.App.2d 438, 441; 39
 

Ops.Cal.Atty.Gen. 316 (1962); 38 Ops.Cal.Atty.Gen. 82 (1961); 22
 

Ops.Cal.Atty.Gen. 161 (1953); see also § 228), that credit is only
 

given for purposes of California's Military and Veterans Code.
 

Thus, while the section may consider one's active federal military
 

duty time as having been spent in the California National Guard for
 

4. 90-804
 

 

certain state purposes, it in no way purports to affect federal law
 

and federal requirements. Particularly, it would not confer status
 

upon an officer as having served as a member of the Army National
 

Guard or the National Guard of the United States merely through the
 

time credit for service in the state military forces that it
 

accords.
 

The Army National Guard (and National Guard of the United
 

States) must be distinguished from the National Guard of
 

California. (Cf. 11 Ops.Cal.Atty.Gen. 252, 260, supra.) Most
 

important for us here is that membership in the latter does not
 

ipso facto mean or confer membership in the former. This is
 

because under federal law "recognition of a state guard
 

organization as a unit of the National Guard of the state [does]
 

not automatically adopt its officers or confer on them the status
 

of commissioned officers in the [Army] National Guard without [the
 

officers also first individually receiving] federal recognition."
 

(Gaston v. United States (Mun.Ct.App. D.C. 1943) 34 A.2d 353, 356.)
 

In other words, recognition for status in the Army National Guard
 

requires acceptance of the individual state National Guard officer
 

under federally established criteria in addition to recognition of
 

the organization or unit to which he or she belongs. Thus "[o]ne
 

may be a member of the National Guard of a state without receiving
 

federal recognition" (Zitzer v. Walsh (D. Conn. 1972) 352 F.Supp.
 

438, 440), but without it one does not become a member of the Army
 

National Guard. (Cf. 32 U.S.C. § 307; Gaston v. United
 

States,supra; United States v. Dern (D.C. Cir. 1934) 74 F.2d 485,
 

488.)5
 

5

Section 210 describes the composition of the California
 

National Guard. It states:
 

"The National Guard consists of:
 

"(a) General officers.
 

"(b) The several staff corps and departments
 

prescribed in tables of organization of the United States
 

Army or United States Air Force or tables of organization
 

for the National Guard.
 

"(c) The officers and enlisted men on the retired
 

and the reserve lists.
 

"(d) The organizations forming the National Guard
 

and persons enlisted or commissioned therein."
 

"General officers" would be those holding the rank of brigadier
 

general or above. The "tables of organization" contain the units
 

and personnel who are federally recognized. "The retired and the
 

reserve lists" contain the names of those who were once on active
 

duty and have been discharged. Those on the reserve list would not
 

5. 90-804
 

Accordingly, for an officer in a state militia, such as
 

the California National Guard, to have status as an officer in the
 

Army National Guard or the National Guard of the United States, he
 

or she must first have received the aforementioned "federal
 

recognition." (Cf. 11 Ops.Cal.Atty.Gen. 252, 260, supra.) To
 

receive it, he or she must, inter alia, be appointed to fill a
 

vacancy, have the requisite qualifications, pass an examination,
 

and subscribe to an oath. (32 U.S.C. §§ 307, 312; cf. 11
 

Ops.Cal.Atty.Gen. 252, 260, supra ["To be federally recognized, an
 

officer, in addition to having the prescribed qualifications must
 

be assigned to a federally recognized unit in a position provided
 

for in the prescribed tables of organization [citation]."].)
 

Section 215 does not purport to and cannot give the predicate for
 

that recognition, and without it an officer, such as the one in
 

question here, could not be considered to have had ten years
 

commissioned service in the Army National Guard or the National
 

Guard of the United States. Failing that, even if section 215
 

would consider ten years' service in the United States Army to have
 

been served in the California National Guard, he or she would still
 

not meet the first requirement of section 162 for appointment as
 

Adjutant General discussed above.
 

Our present conclusion regarding the relationship between
 

sections 162 and 215 is supported by the legislative history of
 

these two statutes. Prior to 1963, section 162 specifically
 

allowed "fifteen (15) years commissioned service in ... the United
 

States Army ..." as an alternative for eligibility. (Stats. 1947,
 

ch. 331, § 2.) The 1963 amendment of the statute (Stats. 1963, ch.
 

124, § 1) removed this alternative. We have examined the
 

legislative history of the 1963 amendment and have found no
 

indication that the deletion of the United States Army service
 

alternative was to be circumvented indirectly by the application of
 

section 215.
 

We therefore conclude that an officer who is presently on
 

active duty in the United States Army and who possesses the
 

requisite rank and command or staff experience may not be appointed
 

Adjutant General, when he or she has not served at least ten years
 

as a federally recognized officer in the National Guard of
 

California or of any other state.6
 

yet be eligible for retirement and must be distinguished from the
 

members of the State Military Reserve, formerly known as the
 

California National Guard Reserve. The latter are not part of the
 

California National Guard (§§ 120, 550) and are not federally
 

recognized. The final "organizations" category would cover those
 

who are not federally recognized.
 

6

In light of this conclusion we need not reconsider our former
 

understanding that section 215 would deem a person who had never
 

been a member of the California National Guard to have been a
 

member for the purpose of the second requirement of section 162,


6. 90-804
***** 


i.e., one's having had four years' service as a field grade officer
 

in the California National Guard.
 

7. 90-804