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§ 323. —  Withdrawal of Federal recognition.



[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
  January 24, 2002 and December 19, 2002]
[CITE: 32USC323]

 
                        TITLE 32--NATIONAL GUARD
 
                          CHAPTER 3--PERSONNEL
 
Sec. 323. Withdrawal of Federal recognition

    (a) Whenever a member of the National Guard ceases to have the 
qualifications prescribed under section 301 of this title or ceases to 
be a member of a federally recognized unit or organization of the 
National Guard, his Federal recognition shall be withdrawn.
    (b) Under regulations to be prescribed by the President, the 
capacity and general fitness of an officer of the National Guard for 
continued Federal recognition may be investigated at any time by an 
efficiency board composed of commissioned officers of--
        (1) the Regular Army or the Army National Guard of the United 
    States, or both, who out-rank him and who are detailed by the 
    Secretary of the Army, if he is a member of the Army National Guard; 
    or
        (2) the Regular Air Force or the Air National Guard of the 
    United States, or both, who outrank him and who are detailed by the 
    Secretary of the Air Force, if he is a member of the Air National 
    Guard.

If the findings of the board are unfavorable to the officer and are 
approved by the President, his Federal recognition shall be withdrawn.
    (c) If a member of the Army National Guard of the United States or 
the Air National Guard of the United States is transferred to the Army 
Reserve or the Air Force Reserve, as the case may be, under section 
12105, 12213(a), or 12214(a) of title 10, his Federal recognition is 
withdrawn.
    (d) The Federal recognition of a reserve commissioned officer of the 
Army or the Air Force who is--
        (1) federally recognized as an officer of the National Guard; 
    and
        (2) subject to involuntary transfer to the Retired Reserve, 
    transfer to an inactive status list, or discharge under chapter 
    1407, 1409, or 1411 of title 10;

shall, if not sooner withdrawn, be withdrawn on the date of such 
involuntary transfer or discharge.

(Aug. 10, 1956, ch. 1041, 70A Stat. 607; Pub. L. 85-861, Secs. 2(11), 
33(c)(2), Sept. 2, 1958, 72 Stat. 1546, 1567; Pub. L. 103-337, div. A, 
title XVI, Secs. 1630(2), 1676(a)(3), Oct. 5, 1994, 108 Stat. 2964, 
3019.)

                                          Historical and Revision Notes
                                                    1956 Act
----------------------------------------------------------------------------------------------------------------
            Revised section                      Source (U.S. Code)               Source (Statutes at Large)
----------------------------------------------------------------------------------------------------------------
323(a)................................  32:154 (last 26 words of last        June 3, 1916, ch. 134, Sec.  76
                                         par.).                               (1st sentence, and 1st 24 words of
323(b)................................  32:115 (1st sentence, and 1st 24      2d sentence); restated June 15,
                                         words of 2d sentence).               1933, ch. 87, Sec.  13 (1st
                                        50:1116 (last 15 words of 1st         sentence, and 1st 24 words of 2d
323(c)................................   sentence).                           sentence), 48 Stat. 158.
                                        ...................................  June 3, 1916, ch. 134, Sec.  110
                                                                              (last 25 words of last par.);
                                                                              restated Sept. 22, 1922, ch. 423,
                                                                              Sec.  6 (last 137 words of last
                                                                              par.); restated May 12, 1928, ch.
                                                                              529 (last 25 words), 45 Stat. 501.
                                        ...................................  July 9, 1952, ch. 608, Sec.  706
                                                                              (last 15 words of 1st sentence),
                                                                              66 Stat. 503.
----------------------------------------------------------------------------------------------------------------

    In subsection (a) the words ``ceases to have the qualifications 
prescribed under section 300 of this title'' are substituted for 32:154 
(last 26 words of last par.), since it is implicit that a member who 
could not be paid would lose his federally recognized status (see JAGA 
1953/9033, 3 Dec. 1953). The last 23 words of subsection (a) are 
inserted as a necessary implication of the rule stated in section 309(c) 
of this title.
    In subsection (b), the words ``or warrant officer'' are omitted, 
since section 101(9) of this title defines ``officer'' to include 
warrant officers. The word ``detailed'' is substituted for the word 
``appointed'', since the filling of the positions involved is not 
appointment to an office in the constitutional sense. The word 
``commissioned'' is inserted after the words ``composed of'', since the 
word ``officer'' alone, in 32:115, referred to a commissioned officer 
only (see opinion of the Judge Advocate General of the Army (JAGA 1953/
4078, 6 May 1953)). The words ``who outrank him'' are substituted for 
the words ``senior in rank to the officer under investigation''.
    In subsection (c), the opening clause is substituted for the words 
``such transfer''. The words ``his Federal recognition is withdrawn'' 
are substituted for the words ``shall terminate his federally recognized 
National Guard or Air National Guard status''.

                                                    1958 Act
----------------------------------------------------------------------------------------------------------------
          Section of title 32                    Source (U.S. Code)               Source (Statutes at Large)
----------------------------------------------------------------------------------------------------------------
323(d)................................  50:1261 (as applicable to Federal    Sept. 3, 1954, ch. 1257, Secs.  324
                                         recognition).                        (as applicable to Federal
323(e)................................  50:1352(e)(1) (56th through 63d       recognition), 522(e)(1) (56th
                                         words).                              through 63d words). (e)(2) (78th
                                        50:1352(e)(2) (78th through 85th      through 85th words), 68 Stat.
                                         words).                              1161, 1181.
----------------------------------------------------------------------------------------------------------------

    The change [in subsec. (b)(1) and (2)] is necessary to exclude from 
the efficiency board commissioned officers of the Army Reserve or Air 
Force Reserve, in accordance with the source law, the first sentence of 
section 76 of the Act of June 3, 1916, chapter 134 (formerly 32 U.S.C. 
115 (1st sentence)).
    In subsection (d), the words ``notwithstanding section 115 of title 
32'' are omitted as surplusage.
    In subsection (e), the words ``if appropriate'' are omitted as 
surplusage.


                               Amendments

    1994--Subsec. (c). Pub. L. 103-337, Sec. 1676(a)(3), substituted 
``12105, 12213(a), or 12214(a)'' for ``3259, 3352(a), 8259, or 
8352(a)''.
    Subsecs. (d), (e). Pub. L. 103-337, Sec. 1630(2), added subsec. (d) 
and struck out former subsecs. (d) and (e) which read as follows:
    ``(d) Except as provided in sections 1005 and 1006 of title 10, the 
Federal recognition of a second lieutenant of the Army National Guard 
who is discharged under section 3820(c) of title 10 for failure of 
promotion shall be withdrawn on the date of that discharge.
    ``(e) Except as provided in sections 1005 and 1006 of title 10, the 
Federal recognition of a reserve officer of the Air Force who is not 
recommended for promotion under section 8368(c)(1) or (2) of title 10, 
or who is found to be not qualified for Federal recognition under 
section 8368(d) or (e) of title 10, shall be withdrawn.''
    1958--Subsec. (b)(1). Pub. L. 85-861, Sec. 33(c)(2), substituted 
``the Regular Army or the Army National Guard of the United States, or 
both'' for ``a regular or reserve component of the Army''.
    Subsec. (b)(2). Pub. L. 85-861, Sec. 33(c)(2), substituted ``the 
Regular Air Force or the Air National Guard of the United States, or 
both'' for ``a regular or reserve component of the Air Force''.
    Subsecs. (d), (e). Pub. L. 85-861, Sec. 2(11), added subsecs. (d) 
and (e).


                    Effective Date of 1994 Amendment

    Amendment by section 1676(a)(3) of Pub. L. 103-337 effective Dec. 1, 
1994, except as otherwise provided, and amendment by section 1630(2) of 
Pub. L. 103-337 effective Oct. 1, 1996, see section 1691 of Pub. L. 103-
337, set out as an Effective Date note under section 10001 of Title 10, 
Armed Forces.


                    Effective Date of 1958 Amendment

    Amendment by section 33(c)(2) of Pub. L. 85-861 effective Aug. 10, 
1956, see section 33(g) of Pub. L. 85-861, set out as a note under 
section 101 of Title 10, Armed Forces.


              Suspension of Subsection (d) of This Section

    For authority of the President to suspend subsec. (d) of this 
section in time of war or emergency declared by Congress, see section 
111 of this title.

                  Section Referred to in Other Sections

    This section is referred to in section 111 of this title; title 10 
section 14907.



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