In reaching its decision, the Federal Circuit acknowledged Defendant's dual enlistment argument and found that Plaintiff is a member of both the ARNG and the ARNGUS. Clark v. United States, 322 F.3d 1358, 1365 (Fed. Cir. 2003). The Court determined that this dual membership, however, is only theoretical, since a member of the National Guard can be a member of only one group at a time.
On appeal, this court reversed, holding that “members of the National Guard only serve the federal military when they are formally called into the military service of the United States. At all other times, National Guard members serve solely as members of the State militia under the command of a state governor.” Clark v. United States, 322 F.3d 1358, 1366 (Fed.Cir.2003). Because Clark had not been formally called into the military service of the United States, he was not a member of a reserve component when taking the correspondence courses.
On appeal, this court reversed, holding that "members of the National Guard only serve the federal military when they are formally called into the military service of the United States. At all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003). Because Clark had not been formally called into the military service of the United States, he was not a member of a reserve component when taking the correspondence courses.
Members of the National Guard only serve the federal military when they are formally called into the service of the United States. See Perpich v. Dep't. of Def., 496 U.S. 334, 345 (1990); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003). Until ordered into federal service, National Guardsman serve solely as a member of their state or commonwealth militia.
The relator contends that Perpich thus stands for the inverse proposition that when a guardsman is not called into federal service, he is relieved of his status in the federal armed forces. See Clark v. United States, 322 F.3d 1358, 1365-66 (Fed. Cir. 2003) ("We understand Perpich to stand for the proposition that members of the National Guard only serve the federal military when they are formally called into the military service of the United States."). In Clark, the Federal Circuit interpreted whether 37 U.S.C. § 206(d) applied to members of the National Guard. At the time, 37 U.S.C. § 206(a) provided that "a member of the National Guard or a member of a reserve component of a uniformed service who is not entitled to basic pay . . . is entitled to compensation, at the rate of 1/30 of the basic pay authorized for a member of a uniformed service of a corresponding grade entitled to basic pay."
That is, Clark II held that a requirement to participate in certain training does not ipso facto place a member of the armed forces into duty status if advance authorization for such status is a prerequisite prescribed by the Secretary but is not obtained. Mr. Pipes cites to and misreads our earlier decision in Clark v. United States, 322 F.3d 1358 (Fed. Cir. 2003) (Clark I), as determining that the National Guard members were "entitled to compensation for completing required correspondence courses in off duty time." Appellant's Br. 34.
We conclude that the Board did not err in holding that Mr. McGrath must show that, for the 87 days in dispute, he was formally ordered into federal service, pursuant to Title 10, by the President or other federal authority. Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003) (holding that "members of the National Guard only serve the federal military when they are formally called into the military service of the United States" (citing Perpich v. Dep't of Defense, 496 U.S. 334 (1990))). Other courts have consistently drawn the same distinction.
The case law therefore recognizes that when called into active federal service, National Guard members are under federal control, but when they are in reserve status under Title 32, they operate under state control. See, e.g., Clark v. United States , 322 F.3d 1358, 1366 (Fed. Cir. 2003) ("[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States. At all other times, National Guard members serve solely as members of the State militia under the command of a state governor."); United States v. Hutchings , 127 F.3d 1255, 1258 (10th Cir. 1997) (same); Knutson v. Wis. Air Nat’l Guard , 995 F.2d 765, 767 (7th Cir. 1993) (same).
"At all other times, [however, they] serve solely as members of the State militia under the command of a state governor." Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003). In this case, Bradley was under federal Title 10 orders when she received the benefits to which she was not entitled; the United States was defrauded, not the State of Kansas.
The reading of a statute that produces such a result is disfavored. See Clark v. United States, 322 F.3d 1358, 1365 (Fed. Cir. 2003); see also United States v. Alaska, 521 U.S. 1, 59, 117 S.Ct. 1888, 1918, 138 L.Ed.2d 231 (1997). In sum, section 101(g)(2) did not require that the government compensate Huntleigh for its assumption of screening functions at national airports.