When can a North Carolina National Guard member start drawing the state pension under G.S. 127A-40, and which kinds of separation, federal-technician status, or other federal-pension status disqualify the member?

Plain-English summary

Robert A. Melott, Deputy Secretary of the Department of Crime Control and Public Safety, asked five questions about the North Carolina National Guard pension under G.S. 127A-40 (formerly G.S. 127-30.1). The questions all turned on a single textual ambiguity: the 1973 Session Laws had been amended in mid-session to expand the pension to "any member or former member" of the Guard, which on a surface read might have authorized in-service pension payments.

The 1983 AG concluded the amendment did not produce that result. The opinion read the entire statute as a coherent whole and held that the pension is payable only after the member has reached the statutory age and service thresholds and has been honorably separated from the Guard.

Pension trigger. A Guard member becomes eligible only after (1) completing the 20 years of qualifying creditable military service (including federal-active and reserve service), with at least 15 years in the NC Guard; (2) reaching age 60; and (3) separating from the Guard with an honorable discharge. The pension does not begin while the member is still serving.

Documenting honorable discharge. National Guard Bureau Form 22 (NGB 22), authorized by 32 U.S.C. §§ 322 and 324, is the discharge certificate. Line 8d of NGB 22 records "character of service." An entry of "honorable" on that line satisfies the honorable-discharge requirement of G.S. 127A-40(a)(3).

Army Reserve retirees. A person collecting Army Reserve retired pay for non-regular service is not disqualified. G.S. 127A-40(c) bars only people who receive retired pay from a "regular component" of the federal armed forces. The Army Reserve is a "reserve component" listed in 10 U.S.C. § 2161(a); pay based on reserve service is "non-regular" pay under 10 U.S.C. § 1331. G.S. 127A-40(d) expressly preserves entitlement to other state, federal, and private retirement benefits.

Federal technicians. Under 10 U.S.C. § 709, a federal technician may be required to maintain National Guard membership as a condition of employment. If Guard membership is a condition of the technician job, the person has not "separated" from the Guard and cannot collect. If the technician job does not require Guard membership, and the person has otherwise separated from the Guard, the pension is payable.

Adjutant General. The office is established by G.S. 127A-19. G.S. 127A-29 says the Adjutant General "may" be a member of the active National Guard or Naval Militia, which implies the office can be held by a civilian or by an inactive, retired, or separated officer. If the Adjutant General is otherwise qualified and has separated from the Guard, the pension is payable.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The NC National Guard pension framework under Chapter 127A has been amended multiple times, including changes to the qualifying-service formula, the age threshold, and the interplay with federal pension regimes. Federal-technician personnel law under Title 10 and Title 32 of the U.S. Code has also been substantially revised. A current eligibility question should be referred to the Retirement Systems Division and a North Carolina lawyer.

Historical context: what the AG concluded

The opinion is an exercise in cleaning up a drafting ambiguity from a 1973 mid-session amendment.

The original 1973 act (Chapter 625) was clear. It conditioned the pension on completed service, age, and discharge. The applicability subsection (g) made the pension available only to members serving on or after July 1, 1974 who later retired, or to members involuntarily separated before that date for non-misconduct reasons.

The later 1973 amendment (Chapter 1241) muddied things. It added the words "former member" to the eligibility clause and rewrote subsection (g) to extend the pension's coverage to "any member or former member" qualified by the requirements. The AG saw two plausible readings: (1) the amendment merely extended coverage to those who had completed qualifying service before the act's effective date but had since left the Guard, or (2) the amendment authorized in-service pension payments to qualifying current members.

The AG chose the narrower reading. Three things drove that choice. First, the legislative history (such as it was) supported a backward-looking extension to pre-effective-date separations, not a forward-looking in-service entitlement. Second, the unchanged subsection (b) provided that "payment to a retired member" ceases at death and contained no parallel rule for in-service members, suggesting the legislature still contemplated only retired members. Third, the parts-of-a-whole canon (citing State Milk Commission, Commissioner of Insurance, and In re Hardy) required reading the amendment in light of the rest of the act, which uniformly assumed retirement before pension payment.

Federal-technician analysis tracked Guard-membership status. The opinion did not invent its own federal-state interaction rule; it simply applied the separation requirement to federal-technician facts. If the federal job required Guard membership, the technician was still a Guard member, so the pension was not yet payable. If the federal job did not require Guard membership, the technician's status was the same as any civilian who had separated.

Adjutant General read with state-office logic. The office is partly military and partly civilian. The opinion used the "may be a member of the active National Guard" phrasing in G.S. 127A-29 as showing that the office does not require active membership. So the Adjutant General who has separated from the Guard can collect, just like any other separated member.

Background and statutory framework

G.S. 127A-40 (formerly G.S. 127-30.1) is the NC Guard pension statute, originally enacted by Chapter 625 of the 1973 Session Laws and amended by Chapter 1241 of the same session, effective July 1, 1974.

Subsection (a) sets out the eligibility requirements: 20 years of creditable military service including National Guard, Reserve, and Active Duty (under the federal nonregular-retirement standards in Chapter 67, Title 10 of the U.S. Code); at least 15 years in the NC Guard; and an honorable discharge.

Subsection (b) addresses death and cessation of payment for retired members. Subsection (c) excludes members receiving retired pay from "regular components" of the federal armed forces. Subsection (d) preserves entitlement to other state, federal, and private retirement benefits.

The federal-technician program operates under 10 U.S.C. § 709. Some technician positions require Guard membership as a condition of employment; others do not. The distinction matters for the separation analysis under the NC pension.

NGB Form 22 is the National Guard discharge certificate authorized by 32 U.S.C. §§ 322 and 324. It is the documentary equivalent of DD Form 214 for non-Guard military service.

Common questions

Can a Guard member collect the pension before age 60?

No. The statute requires both the service threshold and age 60. The opinion does not address any disability or early-retirement carve-outs.

Does part-time Guard service count toward the 20-year requirement?

The statute counts creditable military service under the federal nonregular-retirement standard, which is itself a points-based system that counts inactive-duty training drills toward retirement points. The opinion does not get into the granular point calculation; it directs the reader to the federal standard.

What happens if a member is discharged "general, under honorable conditions" rather than "honorable"?

The opinion does not directly address other-than-honorable discharges. The statute requires an "honorable discharge," and Form NGB 22 distinguishes honorable from other characterizations. A general discharge under honorable conditions is a different characterization and may not satisfy the statutory requirement; this would need fact-specific analysis.

If a former Guard member rejoins the Guard, does the pension stop?

The opinion implies that the pension is payable only while the member is separated. Returning to the Guard would interrupt separated status. The opinion does not directly address resumption of pension payments after a second separation.

Does collecting Social Security or another state-administered retirement benefit affect the Guard pension?

No, under G.S. 127A-40(d), which expressly preserves entitlement to other state, federal, and private retirement benefits. The only offset is the regular-component federal pension under G.S. 127A-40(c).

Source

• Landing page: https://ncdoj.gov/opinions/national-guard-pensions-eligibility-of-members-and-former-members/

Citations

• N.C.G.S. § 127A-40
• N.C.G.S. § 127A-40(a)(3)
• N.C.G.S. § 127A-40(c)
• N.C.G.S. § 127A-40(d)
• N.C.G.S. § 127A-19
• N.C.G.S. § 127A-29
• Chapter 625, 1973 Session Laws
• Chapter 1241, 1973 Session Laws
• 10 U.S.C. § 709
• 10 U.S.C. § 1331
• 10 U.S.C. § 2161(a)
• 32 U.S.C. §§ 322 and 324
• State Milk Commission v. National Food Stores, Inc., 270 N.C. 323, 154 S.E.2d 548 (1967)
• Commissioner of Insurance v. North Carolina Automobile Rate Administrative Office, 294 N.C. 60, 239 S.E.2d 48 (1978)
• In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978)

Original opinion text

Requested By: Robert A. Melott, Deputy Secretary, Department of Crime Control and Public Safety

Questions:

• Under G.S. 127A-40, when may a member of the North Carolina National Guard receive the pension authorized therein?
• 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)?
• 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?
• 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?
• Does G.S. 127A-40 permit the Adjutant General of the North Carolina Militia to receive the pension authorized therein?

Conclusions:

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