                                            August 7,200O



The Honorable Bob Turner                            Opinion No. K-0265
Chair, Committee on Public Safety
Texas House of Representatives                      Re: Validity of a regulation of the Texas Air
P.O. Box 2910                                       National Guard that relates to “officers lacking in
Austin, Texas 78768-2910                            professional qualifications” (RQ-0197-JC)



Dear Representative   Turner:

         You request an opinion concerning the involuntary discharge of Major Robert H. Starks from
the Texas Air National Guard in 1990. You state that Major Starks’ discharge was apparently based
upon provisions of the Texas Air National Guard Regulation 36-05 applicable to “officers lacking
in professional qualifications.” Letter from Honorable Bob Turner, Texas State Representative, to
Honorable John Comyn, Attorney General of Texas (Feb. 27, 2000) (on tile with Opinion
Committee).     You ask whether an individual could legally be discharged from the Texas Air
National Guard (“TANG”) on the basis of this regulation, as further defined by a unit policy letter
issued by the commander.        We answer only your legal question, and do not address any fact
questions related to the termination. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0152 (1999) at 12; JC-
0020 at 2; M-l 87 (1968) at 3; O-291 1 (1940) at 2. We conclude that it is not illegal for an individual
to be discharged from the TANG on the basis of the regulation as further defined by the unit
commander’s policy letter. See TEX. GOV’T CODE ANN. 5 43 1.045(a) (Vernon 1998) (“unit” may
mean “a company, squadron-size organization, or separately administered or located platoon or flight
of the Texas National Guard”).

         The Texas Air National Guard, like the Texas Army National Guard, is an active state
military force, id. $43 1.001(3), which Congress may order into active federal duty when it is needed
for national security. 32 U.S.C. 5 102 (1994); see generally Tex. Att’y Gen. LO-98-038, at 2-3
(describing federal-state nature of National Guard). The Governor is commander-in-chief         of the
state military forces with full authority over these forces, except when they are called into actual
service of the United States. TEX. CONST. art. IV, 5 7; TEX. GOV’TCODE ANN. 4 43 1.002(a) (Vernon
1998); see also id. $5 431.004(a), ,044 (Governor’s rule-making authority). If the Governor is
unable to perform the duties of commander-in-chief,     the Adjutant General shall command the state
miliary forces. Id. 5 43 1.002(b); see also id. $43 1.022 (Adjutant General is subordinate only to the
Governor in matters pertaining to the military department of the state and the state military forces).
The Honorable   Bob Turner    - Page 2             (X-0265)




         Texas Air National Guard Regulation (“TANG Regulation”) 36-05 was adopted by the
Adjutant General for the Governor. See TANG Reg. 36-05, at 2. This regulation is not a “rule”
within the Administrative Procedure Act, TEX. GOV’TCODEANN. ch. 2001 (Vernon 2000). That Act
defines “rule” to exclude “a statement regarding only the internal management or organization of
a state agency and not affecting private rights or procedures.”        Id. 5 2001.003(6)(C).    TANG
Regulation 36-05 concerns only the internal management of the Texas National Guard and is
therefore not subject to the rule-making procedures under the Act and accordingly is not codified in
the Texas Administrative     Code. Nor are the unit policy letters that implement the regulation
required to be included in a formal rule. “Not every statement by an administrative agency is a rule
for which the APA prescribes procedures for adoption and for judicial review.” Texas Educ. Agency
v. Leeper, 893 S.W.2d 432,443 (Tex. 1994); see Brinkley v. Texas Lottery Comm ‘n, 986 S.W.2d
764, 769 (Tex. App.-Austin         1999, no pet.) (administrative    agencies routinely issue letters,
guidelines, and reports and file briefs that contain statements that implement, interpret, or prescribe
law, policy, procedure or practice requirements).

         Major Robert Starks was discharged from the Texas Air National Guard in 1990 in
accordance with TANG Regulation 36-05 for failure to complete his unit commander’s Unit Level-
Professional Military Education Course. Letter from James C. Null, ChiefWarrant Officer, Adjutant
General’s Department, to Honorable Jesse Jones, Texas State Representative (Dec. 11,1997) (on tile
with Opinion Committee). The Adjutant General’s Department reviewed Major Starks’ termination
several times and he appealed it at least three times to the Air Force Board for the Correction of
Military Records (the “AFBCMR”). Id. The AFBCMR, composed of civilians appointed by the
Secretary of the Air Force, provides aggrieved members of the military a means to correct an error
or remove an injustice from their military records, restore lost rank, and recover for the loss of
pay and other pecuniary benefits. 10 U.S.C. § 1552 (1994 & Supp. IV 1998); see Udell v. Adjutant
General’s Dept., 878 F. Supp. 991,995 (S.D. Tex. 1995). The AFBCMR determined that “there
was insufficient    evidence of error or injustice to warrant corrective action.”           Letter from
John J. D’Oraztio, Chief Examiner, Air Force Board for Correction of Military Records, to Major
Robert H. Starks (Feb. 25, 1997) (on file with Opinion Committee).              A representative of the
Department of Defense informed Mr. Stark that the decision of the AFBCMR was “on firm legal
basis,” and that “it appears the only way you can reverse this action is to prove your separation under
TANGR 36-05 is not in accordance with Texas statute.” Letter from David D. Kirtley, Lt. Col.,
USAF, Departments ofthe Army and the Air Force, National Guard Bureau, to Mr. Robert H. Starks
(Dec. 20, 1994) (on tile with Opinion Committee).        See Cole v. Texas Army Nat’1 Guard, 909
S.W.2d 535,539 (Tex. App.-Austin 1995, writ denied) (Adjutant General’s termination ofnational
guard officer was invalid because in excess of Adjutant General’s statutory authority).

         In connection with this background information, you ask us whether Major Starks could be
terminated pursuant to TANG Regulation 36-05 for not completing a Unit Level-Professional
Military Education Course required by the unit commander. Neither TANG Regulation 36-05 nor
any other regulation applicable to the Texas Air National Guard as a whole stated that this course
was required. The particular standards applied to Major Starks existed solely in a unit policy letter
issued by the commander and they were more stringent than those required by TANG as a
The Honorable Bob Turner      - Page 3              (X-0265)




whole. Letter from Mr. Robert H. Starks, to Honorable John Comyn, Texas Attorney General
(Apr. 18,200O) (on file with Opinion Committee). Mr. Starks questions whether TANG Regulation
36-05 and the Unit-Level-Professional   Military Education standards applied to him because he was
“dischargedpursuant   to a unit-imposed policy” and “it cannot be said that the discharge was required
by State Law.” Id. In addressing this question, we will cite current provisions ofthe statutes, unless
a relevant provision was significantly different in 1990, when Major Starks was terminated.

         Federal law provides that the appointment of an officer of the National Guard may be
terminated as provided by the laws ofthe State ofwhose National Guard he is a member. 32 USC.
5 324(b) (1994). State law provides that “[a] person may be discharged from the state military forces
according to regulations adopted by the adjutant general or to federal law or regulations.” TEX.
GOV’TCODE ANN. § 43 1.089 (Vernon 1998) (emphasis added); see also Act of Apr. 30,1987,7Oth
Leg., R.S., ch. 147, 5 1, I987 Tex. Gen. Laws 3 16,422, amended by Act of May 29, 1997,75th
Leg., R.S., ch. 1021,s 13,1997 Tex. Gen. Laws 3728,3732 (section 431.042(b) ofthe Government
Code formerly permitted discharge of National Guard officer “because of’ administrative
regulation).    Thus, a member of the Texas National Guard could be terminated pursuant to
administrative regulation.

               TANG Regulation      36-05 states in part:

               3. Purpose.     National Guard officer personnel policies focus on
               attaining and maintaining        military leadership which directly
               correlates with achieving a combat ready, professional and dynamic
               force. It is essential that personnel policies pertaining to the Texas
               National Guard provide for a viable mobilization            capability,
               promotion opportunity and grade vitality. This regulation establishes
               the necessary policy and procedures to insure this goal by providing
               authority for administrative discharge of officers when and where
               necessary.

                4. policv. Officers who are substandard in performance of duty or
                conduct, deficient in character, lacking in professional qualifications
                or sfatus, or otherwise unsuited for continued military service are not
                to be retained in the Texas National Guard. Presence of one or more
                of these conditions will be sufficient basis for the administrative
                discharge of an officer from the Texas National Guard. Additionally,
                an officer of the Texas National Guard may be administratively
                discharged from his appointment for one or more of the following
                reasons or conditions. [conditions not relevant to request]
The Honorable     Bob Turner       - Page 4           (K-0265)




                  5. Procedures.

                      a.   Commanders of units below Adjutant General’s Department
                           level.

                          (I) Such commanders may request the resignation               of
                  individual officers due to reasons indicated in paragraph 4.

                           (2) In the event a requested resignation is not received by the
                  date required, a request for administrative         discharge may be
                  submitted to The Adjutant General of Texas through command
                  channels. A copy ofthe request will be provided the involved officer
                  at the time it is forwarded.

                           (3) If approved, the officer will be discharged in accordance
                  with appropriate provisions of Section 6, Article 5765: Section 2,
                  Article 5780: Section 4, Article 5781: and/or Section 1, Article 5782,
                  Revised Civil Statutes of Texas. [These provisions are now codified,
                  respectively, as Government Code sections 43 1.003 (governor’s
                  military staff), 43 1.022 (adjutant general’s role), 43 1.029 (adjutant
                  general’s duties, including duties that pertain to chiefs of staff),
                  43 1.030 (property), and 43 1.042 (officer of National Guard must be
                  qualified under United States law and regulations).]

                           (4) An individual processed under this regulation who feels
                  his commander      is unjustified in requesting his administrative
                  discharge may appeal to The Adjutant General of Texas for a review
                  of his case. The Adjutant General may appoint a board of officers to
                  investigate the appeal and provide pertinent recommendations based
                  on the findings of the board.

TANG Reg. 36-05 (emphasis            added),

         As we have pointed out, section 43 1.089 ofthe Government Code provides that apersonmay
be discharged from the state military forces “according to regulations adopted by the adjutant
general.” It is suggested that a person may not be discharged for failing to complete an instructional
program unless a regulation adopted by the Adjutant General specifies that the person must complete
the particular instructional program.     The legal question to be addressed is whether a person
discharged for failing to complete course work required in a unit policy letter has been terminated
“according to” a regulation “adopted by the adjutant general.”

            Section 4 of TANG Regulation 36-05 establishes in broad terms the reasons for which
 officers    may be terminated, that is, for being “substandard in performance of duty or conduct,
The Honorable Bob Turner      - Page 5             (X-0265)




deficient in character, lucking in professional qualifications or status, or otherwise unsuited for
continued military service,” while section 5(a)(l) of the regulation authorizes unit commanders to
“request the resignation of individual officers due to reasons indicated in paragraph 4.” TANG Reg.
36-05 $5 4, 5(a)(l) (emphasis added). The unit commander applies the regulation to individual
cases, determining whether the facts show that the officer is “lacking in professional qualifications
or status,” and requesting the officer’s resignation if the facts warrant this. If the officer does not
resign by the date required, the unit commander submits the request for administrative discharge to
the Adjutant General through the chain of command. Id. 5 5(a)(2). An individual terminated under
this regulation may appeal to the Adjutant General for a review of his case. Id. 5 5(a)(4).

         We believe that an officer terminated for lack of“professiona1 qualifications or status” under
the procedures set out in TANG Regulation 36-05 has been terminated “according to” a regulation
adopted by the Adjutant General. “According to” is defined as “[i]n a manner agreeing with,
consistent with, or answering to; agreeably to.” I OXFORDENGLISHDICTIONARY83 (2d ed. 1989).
Section 43 1.089 ofthe Government Code is construed to mean that a person may be discharged from
the state military forces “in a manner agreeing with, consistent with, or answering to; agreeably to”
regulations adopted by the Adjutant General. Thus, the termination must be effectuated consistently
with the regulation, Assuming that the professional qualifications described in the unit policy letter
are relevant to the officer’s work and that the procedures set out in TANG Regulation 35-06 are
followed, an officer terminated for failure to complete course work required in the letter has been
terminated “according to” a regulation “adopted by the adjutant general.” See gene&ly Jolicoeur
v. Laird, 344 F. Supp. 1125,1127 (D. Mirm. 1971); Caruso v. Toothaker, 331 F. Supp. 294,297-98
(M.D. Pa. 1971) (unit commanders had discretion to determine pursuant to regulationwhetherornot
national guard member had unexcused absence from training session); see also Cole, 909 S.W.2d
at 539 (discharge of National Guard officer “for cause” was invalid because Adjutant General did
not follow statutory procedures).      Accordingly, we conclude that an individual could legally be
discharged from the Texas Air National Guard for lacking professional qualifications as stated in
TANG Regulation 36-05 and further defined in the unit commander’s policy letter.
The Honorable   Bob Turner    - Page 6             (JC-0265)




                                         SUMMARY

                         An officer could legally be discharged from the Texas Air
                National Guard for lacking professional qualifications pursuant to a
                regulation as further defined by a policy letter of the unit commander.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee
