[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 13. Powers and Prerogatives of the House]
[B. War Powers]
[§ 8. Legislation Authorizing Militray Action Prior to War Powers Act]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1806-1816]
CHAPTER 13
Powers and Prerogatives of the House
B. WAR POWERS
Sec. 8. Legislation Authorizing Military Action Prior to War Powers Act
In several instances prior to the War Powers Act, Congress, usually
in response to Presidential requests,(9) granted the Chief
Executive express statutory authority to use force he deemed necessary
in specific areas. These so-called ``area resolutions'' were short of
formal declarations of war, but constituted either prior or subsequent
acquiescence to Presidential use of force.
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9. The exception is the Cuba resolution which was not requested by the
President. See Sec. Sec. 8.7, 8.8, infra, for discussion of
this resolution.
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A question arose in such situations as to whether, if Congress
could authorize the President to use force by approving a statute short
of a declaration of war, it could divest the President of that
authority merely by repealing the statute. The answer to that question
depended on other congressional actions. Only one area resolution, the
Gulf of Tonkin Resolution,(10) was repealed. Following
repeal, the President continued to direct military operations and send
troops to Vietnam, and Con
[[Page 1807]]
gress continued to approve legislation providing manpower and supplies
for the war effort.
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10. See Sec. Sec. 8.1, 8.2, infra, for a discussion of approval and
repeal of this resolution.
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Groups of servicemen who had received orders to fight in Vietnam
filed suit contending that repeal of the Gulf of Tonkin Resolution had
divested the President and other executive branch officials of
authority to prosecute the war. Ruling on this challenge, the Court of
Appeals for the Second Circuit held that authorization could be
inferred from congressional approval of authorizations and
appropriations for war supplies and personnel. (11)
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11. DaCosta v Laird, 448 F2d 1368 (1971); see also Orlando v Laird, 443
F2d 1039 (2d Cir. 1971), cert. denied 404 U.S. 869. Contra,
Mottola v Nixon, 318 F Supp 538 (N.D. Calif. 1970) which found
no ratification [reversed on grounds of lack of standing, 464
F2d 26 (9th Cir. 1972)]. The Supreme Court summarily affirmed a
three-judge district court opinion which dismissed a challenge
to the constitutionality of the war on political question
grounds. Altee v Richardson, 411 U.S. 911 (1973, aff'g. 347 F
Supp 689 (E.D.Pa. 1972).
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The following precedents comprise some examples of congressional
action prior to the War Powers Act, taken in most instances in response
to Presidential requests for such
action. -------------------
Gulf of Tonkin Resolution
Sec. 8.1 The House by yea and nay vote suspended the rules and agreed
to a House joint resolution (known as the Gulf of Tonkin
Resolution) supporting the President's actions to repel aggression
by North Vietnam.
On Aug. 7, 1964,(12) the House by a vote of yeas 416,
nays 0, present 1, not voting 14, suspended the rules and agreed to
House Joint Resolution 1145, known as the Gulf of Tonkin Resolution,
supporting the President's action to repel aggression by North Vietnam.
The resolution was approved by the President on Aug. 10, 1964, in the
following form: (13)
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12. 110 Cong. Rec. 18538-55, 88th Cong. 2d Sess.
13. This excerpt is taken from 78 Stat. 384, 88th Cong. 2d Sess. (Pub.
L. No. 88-408).
See Sec. 8.2, infra, for Senate approval of this measure.
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Joint Resolution
To promote the maintenance of international peace and security in
southeast Asia.
Whereas naval units of the Communist regime in Vietnam, in
violation of the principles of the Charter of the United Nations
and of international law, have deliberately and repeatedly attacked
United States naval vessels
[[Page 1808]]
lawfully present in international waters, and have thereby created
a serious threat to international peace; and
Whereas these attacks are part of a deliberate and systematic
campaign of aggression that the Communist regime in North Vietnam
has been waging against its neighbors and the nations joined with
them in the collective defense of their freedom; and
Whereas the United States is assisting the peoples of southeast
Asia to protect their freedom and has no territorial, military or
political ambitions in that area, but desires only that these
peoples should be left in peace to work out their own destinies in
their own way: Now, therefore, be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That the Congress
approves and supports the determination of the President, as
Commander in Chief, to take all necessary measures to repel any
armed attack against the forces of the United States and to prevent
further aggression.
Sec. 2. The United States regards as vital to its national
interest and to world peace the maintenance of international peace
and security in southeast Asia. Consonant with the Constitution of
the United States and the Charter of the United Nations and in
accordance with its obligations under the Southeast Asia Collective
Defense Treaty, the United States is, therefore, prepared, as the
President determines, to take all necessary steps, including the
use of armed force, to assist any member or protocol state of the
Southeast Asia Collective Defense Treaty requesting assistance in
defense of its freedom.
Sec. 3. This resolution shall expire when the President shall
determine that the peace and security of the area is reasonably
assured by international conditions created by action of the United
Nations or otherwise, except that it may be terminated earlier by
concurrent resolution of the Congress.
Parliamentarian's Note: After conferring with the congressional
leadership and others with respect to attacks by North Vietnamese
torpedo boats against U.S. destroyers, President Johnson ordered
retaliation against the bases from which the torpedo boats operated. In
an address to the nation on radio and TV, late on Monday, Aug. 3, he
stated that he had requested the Congress to support his action by a
resolution. On Aug. 5, the President transmitted to the Congress a
message on the developing situation in Southeast Asia and a draft of a
resolution. The Committee on Foreign Affairs, to which the message was
referred (H. Doc. 333), asked for and was granted permission to sit
during the session of the House on Aug. 6.
Authority granted by this resolution was repealed by approval, on
Jan. 12, 1971, of section 12 of an act to amend the Foreign Military
Sales Act.(14)
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14. 84 Stat. 2053, 2055,91st Cong. 1st Sess. (Pub. L. No. 91-672).
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Sec. 8.2 The Senate by yea and nay vote agreed to a House
[[Page 1809]]
joint resolution known as the Gulf of Tonkin Resolution supporting
the President's actions to repel aggression by North Vietnam.
On Aug. 7, 1964,(15) the Senate by a vote of yeas 88,
nays 2, agreed to House Joint Resolution 1145, known as the Gulf of
Tonkin Resolution, supporting the President's actions to repel
aggression by North Vietnam.(16)
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15. 110 Cong. Rec. 18470, 18471, 88th Cong. 2d Sess.
16. See Sec. 8.1, supra, for the House vote and text of this measure.
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Authority granted by this resolution was repealed by approval, on
Jan. 12, 1971, of section 12 of an act to amend the Foreign Military
Sales Act.(17)
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17. 84 Stat. 2053, 2055 (Pub. L. No. 91672) H.R. 15628, 91st Cong. 1st
Sess.
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Resolution to Protect Formosa and Pescadores
Sec. 8.3 The House by yea and nay vote agreed to a House joint
resolution authorizing the President to employ armed forces to
protect the security of Formosa, the Pescadores, and related
positions and territories of that area.
On Jan. 25, 1955,(18) the House by a vote of yeas 410,
nays 3, not voting 21, agreed to House Joint Resolution
159,(19) which was approved by the President on Jan. 29,
1955, in the following form: (20)
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18. 101 Cong. Rec. 659, 669, 680, 681, 84th Cong. 1st Sess.
19. See Sec. 8.4, infra, for Senate approval of this measure.
20. This excerpt is taken from 69 Stat. 7, 84th Cong. 1st Sess., Ch. 4
(Pub. L. No. 84-4).
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Joint Resolution
Authorizing the President to employ the Armed Forces of the United
States for protecting the security of Formosa, the Pescadores
and related positions and territories of that area.
Whereas the primary purpose of the United States, in its
relations with all other nations, is to develop and sustain a just
and enduring peace for all; and Whereas certain territories in the
West Pacific under the jurisdiction of the Republic of China are
now under armed attack, and threats and declarations have been and
are being made by the Chinese Communists that such armed attack is
in aid of and in preparation for armed attack on Formosa and the
Pescadores. . . . Therefore be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That the President
of the United States be and he hereby is authorized to employ the
Armed Forces of the United States as he deems necessary for the
specific purpose of securing and protecting Formosa and the
Pescadores against armed attack, this authority to include the
securing and protection of such related positions and territories
of that area now in friendly hands and the taking of such other
measures as he
[[Page 1810]]
judges to be required or appropriate in assuring the defense of
Formosa and the Pescadores.
This resolution shall expire when the President shall determine
that the peace and security of the area is reasonably assured by
international conditions created by action of the United Nations or
otherwise, and shall so report to the Congress.
Sec. 8.4 The Senate by yea and nay vote agreed to a House joint
resolution authorizing the President to employ armed forces to
protect the security of Formosa, the Pescadores, and related
positions.
On Jan. 28, 1955,(1) the Senate by a vote of yeas 85,
nays 3, agreed to House Joint Resolution 159, directing the President
to employ armed forces to protect the security of Formosa, the
Pescadores, and related positions in the area.(2)
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1. 101 Cong. Rec. 994, 995, 84th Cong. 1st Sess.
2. See Sec. 8.3, supra, for the text of and House vote on this
measure.
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Resolution to Protect Middle Eastern Nations
Sec. 8.5 The House by yea and nay vote agreed to a House joint
resolution to promote peace and stability in the Middle East by
authorizing the President to cooperate with and assist any nation
or group of nations in that area in the development of economic
strength, and to undertake programs of military assistance; the
resolution further stated congressional intent with respect to
using armed forces of the United States to secure and protect the
territorial integrity and political independence of any nation
which requests aid from armed aggression by any nation controlled
by communism.
On Mar. 7, 1957,(3) the House by a vote of 350 yeas, 60
nays, not voting 23, agreed to House Resolution 188, to accept House
Joint Resolution 117, autllorizing the President to cooperate with
nations of the Middle East in the development of economic strength, to
undertake programs of military assistance, and to employ armed
forces.(4)
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3. 103 Cong. Rec. 3250, 3265, 3266, 85th Cong. 1st Sess.
4. See Sec. 8.6, infra, for the Senate vote on the House joint
resolution.
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The joint resolution was approved by the President in the following
form on Mar. 9, 1957: (5)
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5. This language is taken from 71 Stat. 5, 85th Cong. 1st Sess. [Pub.
L. No. 85-7] (footnotes omitted).
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[[Page 1811]]
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That:
The President be and hereby is authorized to cooperate with and
assist any nation or group of nations in the general area of the
Middle East desiring such assistance in the development of economic
strength dedicated to the maintenance of national independence.
Sec. 2. The President is authorized to undertake, in the
general area of the Middle East, military assistance programs with
any nation or group of nations of that area desiring such
assistance. Furthermore, the United States regards as vital to the
national interest and world peace the preservation of the
independence and integrity of the nations of the Middle East. To
this end, if the President determines the necessity thereof, the
United States is prepared to use armed forces to assist any such
nation or group of such nations requesting assistance against armed
aggression from any country controlled by international communism:
Provided, That such employment shall be consonant with the treaty
obligations of the United States and with the Constitution of the
United States.
Sec. 3. The President is hereby authorized to use during the
balance of fiscal year 1957 for economic and military assistance
under this joint resolution not to exceed $200,000,000 from any
appropriation now available for carrying out the provisions of the
Mutual Security Act of 1954, as amended, in accord with the
provisions of such Act: Provided, That, whenever the President
determines it to be important to the security of the United States,
such use may be under the authority of section 401(a) of the Mutual
Security Act of 1954, as amended (except that the provisions of
section 105(a) thereof shall not be waived), and without regard to
the provisions of section 105 of the Mutual Security Appropriation
Act, 1957. . . .
Sec. 5. The President shall within the months of January and
July of each year report to the Congress his action hereunder.
Sec. 6. This joint resolution shall expire when the President
shall determine that the peace and security of the nations in the
general area of the Middle East are reasonably assured by
international conditions created by action of the United Nations or
otherwise except that it may be terminated earlier by a concurrent
resolution of the two Houses of Congress.
Sec. 8.6 The Senate agreed to a House joint resolution to promote peace
and stability in the Middle East by authorizing the President to
assist nations in that area in the development of economic
strength, and to undertake programs of military assistance; the
resolution also endorsed the concept of employing armed forces of
the United States to secure and protect the territorial integrity
and political independence of any nation which requests aid from
armed aggression by any nation controlled by communism.
[[Page 1812]]
On Mar. 5, 1957,(6) the Senate by a vote of 72 yeas to
19 nays, agreed to House Joint Resolution 117,(7)
authorizing the President to cooperate with and assist any nation or
group of nations in that area in the development of economic strength,
to undertake programs of military assistance, and to employ American
Armed Forces to resist aggression as stated above. This House joint
resolution was approved in lieu of Senate Joint Resolution 19.
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6. 103 Cong. Rec. 3127, 3129, 3130, 85th Cong. 1st Sess.
7. See Sec. 8.5, supra, for the text of and House vote on this
measure.
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Resolution Regarding Soviet Weapons in Cuba
Sec. 8.7 The Senate agreed to a Senate joint resolution expressing the
position of the United States with respect to Soviet buildup of
weapons in Cuba.
On Sept. 20, 1962,(8) the Senate by a vote of 86 yeas, 1
nay, agreed to Senate Joint Resolution 230, expressing the position of
the United States with respect to buildup of Soviet weapons in
Cuba.(9)
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8. 108 Cong. Rec. 20024, 20058, 87th Cong. 2d Sess.
9. See Sec. 8.8, infra, for the text of and House vote on this
measure.
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Sec. 8.8 After rejecting a motion to recommit the measure, the House by
yea and nay vote agreed to a Senate joint resolution expressing the
position of the United States with respect to Soviet buildup of
weapons in Cuba.
On Sept. 26, 1962,(10) the House by a vote of yeas 384,
nays 7, not voting 44, agreed to a Senate joint resolution which was
approved by the President on Oct. 3, 1962, in the following form:
(11)
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10. 108 Cong. Rec. 20859, 20909-11, 87th Cong. 2d Sess.
11. See Sec. 8.7, supra, for Senate approval of this measure. This
excerpt is taken from 76 Stat. 697, 87th Cong. 2d Sess. (Pub.
L. No. 87-733).
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Whereas President James Monroe, announcing the Monroe Doctrine
in 1823, declared that the United States would consider any attempt
on the part of European powers ``to extend their system to any
portion of this hemisphere as dangerous to our peace and safety'';
and
Whereas in the Rio Treaty of 1947 the parties agreed that ``an
armed attack by any State against an American State shall be
considered as an attack against all the American States . . . one
of the said contracting parties undertakes to assist in meeting the
attack in the exercise of the inherent right of individual or
collective self defense recognized by article 51 of the Charter of
the United Nations''; and . . .
Whereas the international Communist movement has increasingly
ex
[[Page 1813]]
tended into Cuba its political, economic, and military sphere of
influence; Now, therefore, be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That the United
States is determined--
(a) to prevent by whatever means may be necessary, including
the use of arms, the Marxist-Leninist regime in Cuba from
extending, by force or the threat of force, its aggressive or
subversive activities to any part of this hemisphere;
(b) to prevent in Cuba the creation or use of an externally
supported military capability endangering the security of the
United States; and
(c) to work with the Organization of American States and with
freedom- loving Cubans to support the aspirations of the Cuban
people for self-determination.
Passage of the Senate joint resolution followed rejection by a vote
of yeas 140, nays 251, not voting 46, of a motion to recommit with
instructions which had been offered by Mr. William S. Broomfield. of
Michigan.
Parliamentarian's Note: This resolution was approved prior to the
Cuban missile crisis of 1962.
Resolution to Protect Berlin
Sec. 8.9 The House and Senate agreed to a House concurrent resolution
expressing the determination of Congress to prevent by whatever
means, including the use of arms, Soviet violation of American,
British, and French rights to Berlin, including ingress and egress,
and to fulfill the American commitment to the people of Berlin.
On Oct. 5, 1962, the House by a vote of yeas 312, nays 0, not
voting 123,(12) and on Oct. 10, 1962, the Senate by voice
vote,(13) agreed to House Concurrent Resolution 570,
expressing the sense of the Congress with respect to Berlin in the
following language:
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12. 108 Cong. Rec. 22618-38, 87th Cong. 2d Sess.
13. Id. at pp. 22964-66.
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Whereas the primary purpose of the United States in its
relations with all other nations is and has been to develop and
sustain a just and enduring peace for all; and
Whereas it is the purpose of the United States to encourage and
support the establishment of a free, unified, and democratic
Germany; and
Whereas in connection with the termination of hostilities in
World War II of the United States, the United Kingdom, France, and
the Soviet Union freely entered into binding agreements under which
the four powers have the right to remain in Berlin, with the right
of ingress and egress, until the conclusion of a final settlement
with the Government of Germany; and
Whereas no such final settlement has been concluded by the four
powers and the aforementioned agreements continue in force: Now,
therefore, be it
[[Page 1814]]
Resolved by the House of Representatives (the Senate
concurring), That it is the sense of the Congress--
(a) that the continued exercise of United States, British, and
French rights in Berlin constitutes a fundamental political and
moral determination;
(b) that the United States would regard as intolerable any
violation by the Soviet Union directly or through others of those
rights in Berlin, including the right of ingress and egress;
(c) that the United States is determined to prevent by whatever
means may be necessary, including the use of arms, any violation of
those rights by the Soviet Union directly or through others, and to
fulfill our commitment to the people of Berlin with respect to
their resolve for freedom.
Authorization to Activate Reserve Forces
Sec. 8.10 The House agreed to a Senate joint resolution authorizing the
President to order units and members of the Ready Reserve to active
duty for not more than 12 months.
On July 31, 1961,(14) the House by a vote of yeas 403,
nays 2, not voting 32, agreed to Senate Joint Resolution 120,
authorizing the President to order units and members of the Ready
Reserve into active military service. The joint resolution, passed by
the Senate on a vote of yeas 75, nays 0, on July 28,
1961,(15), and approved by the President on Aug. 1,
1961,(16) reads as follows: (17)
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14. 107 Cong. Rec. 14051, 14061, 14062, 87th Cong. 1st Sess.
15. Id. at pp. 13930, 13942.
16. See 107 Cong. Rec. 14370, 87th Cong. 1st Sess., Aug. 2, 1961, for
announcement in the Senate of Presidential approval.
17. This excerpt is taken from 75 Stat. 242, 87th Cong. 1st Sess. (Pub.
L. No. 87-117).
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Joint Resolution
To authorize the President to order units and members in the Ready
Reserve to active duty for not more than twelve months, and for
other purposes.
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That
notwithstanding any other provision of law, until July 1, 1962, the
President may, without the consent of the persons concerned, order
any unit, and any member not assigned to a unit organized to serve
as a unit, in the Ready Reserve of an armed force to active duty
for not more than twelve consecutive months. However, not more than
two hundred and fifty thousand members of the Ready Reserve may be
on active duty (other than for training), without their consent,
under this section at any one time.
Sec. 2. Notwithstanding any other provision of law, until July
1, 1962, the President may authorize the Secretary of Defense to
extend enlistments, appointments, periods of active duty, periods
of active duty for training, peri
[[Page 1815]]
ods of obligated service, or other military status, in any
component of an armed force or in the National Guard that expire
before July 1, 1962, for not more than twelve months.
Parliamentarian's Note: In an address to the Nation on July 25,
1961, President John F. Kennedy requested authority to call up the
Ready Reserves to respond to the Berlin crisis.(18)
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18. This address is reprinted at 107 Cong. Rec. 13460-62, 87th Cong.
1st Sess., July 26, 1961.
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Sec. 8.11 During the Cuban missile crisis, the Senate and House agreed
to a Senate joint resolution authorizing the President to activate
units and members of the Ready Reserve, for not more than 12
months.
On Sept. 13, 1962, the Senate by a vote of 76 yeas, 0
nays,(19) and on Sept. 24, 1962, the House by a vote of 342
yeas, 13 nays, 80 not voting,(20) agreed to Senate Joint
Resolution 224, authorizing the President to activate units and members
of the Ready Reserve. The measure was approved on Oct. 3, 1962, in the
following form: (1)
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19. 108 Cong. Rec. 19349, 19365, 87th Cong. 2d Sess.
20. Id. at pp. 20489, 20521, 20522
1. This excerpt is taken from 76 Stat. 710, 87th Cong. 2d Sess. (Pub.
L. No. 87-736).
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Joint Resolution
To authorize the President to order units and members in the Ready
Reserve to active duty for not more than twelve months, and for
other purposes.
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That,
notwithstanding any other provision of law, until February 28,
1963, the President may, without the consent of the persons
concerned, order any unit, or any member, of the Ready Reserve of
an armed force to active duty for not more than twelve consecutive
months. However, not more than one hundred and fifty thousand
members of the Ready Reserve may be on active duty (other than for
training), without their consent, under this section at any one
time.
Sec. 2. Notwithstanding any other provision of law until
February 28, 1963, the President may authorize the Secretary of
Defense to extend enlistments, appointments, periods of active
duty, periods of active duty for training, periods of obligated
service or other military status, in any component of an armed
force or in the National Guard that expire before February 28,
1963, for not more than twelve months. However, if the enlistment
of a member of the Ready Reserve who is ordered to active duty
under the first section of this Act would expire after February 28,
1963, but before he has served the entire period for which he was
so ordered to active duty, his enlistment may be extended until the
last day of that period.
Sec. 3. No member of the Ready Reserve who was involuntarily
ordered to
[[Page 1816]]
active duty or whose period of active duty was extended under the
Act of August 1, 1961, Public Law 87-117 (75 Stat. 242), may be
involuntarily ordered to active duty under this Act.