§ 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National Guard, his Federal recognition shall be withdrawn.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approved by the President, his Federal recognition shall be withdrawn.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withdrawn.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shall, if not sooner withdrawn, be withdrawn on the date of such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
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Revised section Source (U.S. Code) Source (Statutes at Large)
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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.
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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
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Section of title 32 Source (U.S. Code) Source (Statutes at Large)
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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.
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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.
