POSITIVE LAW; CITATION

This title has been made positive law by section 2 of act Aug. 10, 1956, ch. 1041, 70A Stat. 596, which provided in part that: "Title 32 of the United States Code, entitled 'National Guard', is revised, codified, and enacted into law, and may be cited as "Title 32, United States Code, §.'"

REPEALS

Section 53 of act Aug. 10, 1956, ch. 1041, 70A Stat. 641, repealed the sections or parts of sections of the Revised Statutes or Statutes at Large covering provisions codified in this act, "except with respect to rights and duties that matured, penalties that were incurred, and proceedings that were begun, before the effective date of this act [August 10, 1956] and except as provided in section 49". SAVINGS AND SEVERABILITY PROVISIONS

Section 49 of act Aug. 10, 1956, ch. 1041, 70A Stat. 640, provided that:

"(a) In sections 1-48 of this Act, it is the legislative purpose to restate, without substantive change, the law replaced by those sections on the effective date of this Act. However, laws effective after March 31, 1955, that are inconsistent with this Act shall be considered as superseding it to the extent of the inconsistency.

"(b) References that other laws, regulations, and orders make to the replaced law shall be considered to be made to the corresponding provisions of sections 1-48.

"(c) Actions taken and offenses committed under the replaced law shall be considered to have been taken or committed under the corresponding provisions of sections 1-48.

"(d) If a part of this Act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this Act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

"(e) In chapter 47 of title 10, United States Code, enacted by section 1 of this Act, no inference of a legislative construction is to be drawn from the part in which any article is placed nor from the catchlines of the part or the article as set out in that chapter.

"(f) The enactment of this Act does not increase or decrease the pay or allowances, including retired pay and retainer pay, of any person.

"(g) The enactment of this Act does not affect the status of persons who, on the effective date of this Act, have the status of warrant officer, of the Army Mine Planter Service."

RESTATEMENT OF SUSPENDED OR TEMPORARILY SUPERSEDED

Officers, discharge, see sections 3820 and 8820 of Title 10.

Ready Reserve as including units and members of, see section 269 of Title 10.

Reserve components, see section 261 of Title 10. Reserve Forces Policy Board membership to include two members each from, see section 175 of Title 10. Status when not in Federal service, see sections 3079 and 8079 of Title 10.

Strength, see sections 3224 and 8224 of Title 10. Transfer of members from Ready Reserve to Standby Reserve, see section 269 of Title 10.

Transfer of members to Army Reserve or Air Force
Reserve, see sections 3259, 3352, 8259 and 8352 of
Title 10.

Insurrection, see chapter 15 of Title 10.
National Guard Bureau-

Assignment of regular or reserve officers of Army or Air Force, see sections 3541 and 8541 of Title 10. Chief, appointment; acting chief, see section 3015 of Title 10.

Commissioned officers of Army National Guard of United States and Air National Guard of United States, duty in Bureau, see sections 3496 and 8496 of Title 10.

Functions with respect to Air National Guard, see section 8033 of Title 10.

Organized militia as including the National Guard, see section 311 of Title 10.

Policies and regulations for government of Army National Guard of United States and Army National Gaurd, Air National Guard of United States and Air National Guard, see sections 3033 and 8033 of Title 10, Armed Forces.

Reserve components, standards and procedures for retention and promotion, see chapter 51 of Title 10, Armed Forces.

§ 101. Definitions.

In addition to the definitions in sections 1-5 of title 1, the following definitions apply in this title:

(1) "Territory" means any Territory organized after this title is enacted, so long as it remains a Territory.

(2) "Armed forces" means the Army, Navy, Air Force, Marine Corps, and Coast Guard.

(3) "National Guard" means the Army National Guard and the Air National Guard.

(4) "Army National Guard" means that part of the organized militia of the several States and Territories, Puerto Rico, the Canal Zone, and the District of Columbia, active and inactive, that— (A) is a land force;

(B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution;

(C) is organized, armed, and equipped wholly or partly at Federal expense; and

(D) is federally recognized.

(5) "Army National Guard of the United States" means the reserve component of the Army all of whose members are members of the Army National Guard.

(6) "Air National Guard" means that part of the organized militia of the several States and

Territories, Puerto Rico, the Canal Zone, and the District of Columbia, active and inactive, that—

(A) is an air force;

(B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I of the Constitution;

(C) is organized, armed, and equipped wholly or partly at Federal expense; and

(D) is federally recognized.

(7) "Air National Guard of the United States" means the reserve component of the Air Force all of whose members are members of the Air National Guard.

(8) "Officer" means commissioned or warrant officer.

(9) "Enlisted member" means a person enlisted in, or inducted, called, or conscripted into, an armed force in an enlisted grade.

(10) "Grade" means a step or degree, in a graduated scale of office or military rank, that is established and designated as a grade by law or regulation.

(11) "Rank" means the order of precedence among members of the armed forces.

(12) "Active duty" means full-time duty in the active military service of the United States. It includes such Federal duty as duty on the active list, full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned.

(13) "Supplies" includes material, equipment, and stores of all kinds.

(14) "Shall" is used in an imperative sense. (15) "May" is used in a permissive sense. The words "no person may * * *"" mean that no person is required, authorized, or permitted to do the act prescribed.

(16) "Includes" means "includes but is not limited to".

(17) "Pay" includes basic pay, special pay, incentive pay, retired pay, and equivalent pay, but does not include allowances.

(18) "Spouse" means husband or wife, as the case may be.

(Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 596; Sept. 2, 1958, Pub. L. 85–861, § 2(1), 72 Stat. 1542; June 25, 1959, Pub. L. 86-70, § 27, 73 Stat. 148; July 12, 1960, Pub. L. 86-624, § 22, 74 Stat. 417.)

Source (Statutes at Large)

June 3, 1916, ch. 134. § 62 (1st 36 words of last proviso), 39 Stat. 198. June 3, 1916, ch. 134, § 117, 39 Stat. 212.

June 3, 1916, ch. 134, § 71; added June 15, 1933, ch. 87, §9, 48 Stat. 157; Oct. 12, 1949, ch. 681, § 530, 63 Stat. 837; July 9, 1952, ch. 608, §803 (9th par.), 66 Stat. 505. July 9, 1952, ch. 608 § 702 (for definition purposes), 66

Stat. 501.

Sept. 19, 1951, ch. 407, § 305 (less last 16 words), 65 Stat. 330.

The definitions in clauses (2) and (9)—(17) reflect the adoption of terminology which, though undefined in the source statutes restated in this title, represent the closest practicable approximation of the ways in which the terms defined have been most commonly used. Where established uses conflict, a choice has been made.

In clause (1), the definition of "Territory" in 32: 4c is executed throughout this revised title by specific reference, where applicable, to the Territories, Puerto Rico, and the Canal Zone.

In clause (2), a definition of "National Guard" is inserted for clarity.

In clause (3) (A), the words "a land force" are substituted for 32: 2. The National Defense Act of 1916, § 117 (last 66 words), 39 Stat. 212, is not contained in 32: 2. It is also omitted from the revised section as repealed by the act of February 28, 1925, ch. 374, § 3, 43 Stat. 1081. In clauses (3) and (4), the word "Army" is inserted to distinguish the organizations defined from their Air Force counterparts.

In clauses (3) and (5), the words "unless the context or subject matter otherwise requires-" and "as provided in this title", in 32: 4b, are omitted as surplusage.

In clauses (3) (B) and (5) (B), the words "has its officers appointed" are substituted for the word "officered", in 32: 4b.

In clauses (4) and (6), only that much of the description of the composition of the Army National Guard of the United States and the Air National Guard of the United States is used as is necessary to distinguish these reserve components, respectively, from the other reserve

components.

In clause (5) (A), the words "an air force" are substituted for the words "for which Federal responsibility has been vested in the Secretary of the Air Force or the Department of the Air Force pursuant to law", in 10: 1835, and for 32: 2 (less applicability to Army National Guard), to make the definition of "Air National Guard" parallel with the definition of "Army National Guard", and to make explicit the intent of Congress in creating the Air National Guard, that the organized militia henceforth should consist of three mutually exhaustive classes comprising the Army, Air, and Naval militia.

In clause (8), words showing how enlisted members became such are inserted to make clear that enlistment is not the only method of becoming a member in an enlisted grade.

AMENDMENTS

1960-Pub. L. 86-624 eliminated Hawaii from cl. (1). 1959-Pub. L. 86-70 eliminated Alaska from cl. (1). 1958-Pub. L. 85-861 added clauses (2) and (18) and renumbered former clauses (2)—(16) as (3)-(17), respectively.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6323 of title 5.

§ 102. General policy.

In accordance with the traditional military policy of the United States, it is essential that the strength and organization of the Army National Guard and the Air National Guard as an integral part of the first line defenses of the United States be maintained and assured at all times. Whenever Congress determines that more units and organizations are needed for the national security than are in the regular components of the ground and air forces, the Army National Guard of the United States and the Air National Guard of the United States, or such parts of them as are needed, together with such units of other reserve components as are necessary for a balanced force, shall be ordered to active Federal duty and retained as long as so needed. (Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 597.)

*

as ex

The words "The Congress further declares pressed in the National Defense Act of 1916 as amended" and "It is the intent of Congress that" are omitted as surplusage. The words "United States" are substituted for the words "our" and "this Nation". The words "more ・・・ than are in" are substituted for the words "in excess of those". The words "Federal duty" are substituted for the words "military service of the United States". The words "as long as so needed" are substituted for the words "so long as such necessity exists".

of the Air Force, to be maintained in each State and Territory, Puerto Rico, the Canal Zone, and the District of Columbia. However, no change in the branch, organization, or allotment of a unit located entirely within a State may be made without the approval of its governor.

(d) To maintain appropriate organization and to assist in training and instruction, the President may assign the National Guard to divisions, wings, and other tactical units, and may detail commissioned officers of the National Guard or of the Regular Army or the Regular Air Force, as the case may be, to command those units. However, the commanding officer of a unit organized wholly within a State or Territory, Puerto Rico, the Canal Zone, or the District of Columbia may not be displaced under this subsection.

(e) To insure prompt mobilization of the National Guard in time of war or other emergency, the President may, in time of peace, detail a commissioned officer of the Regular Army to perform the duties of chief of staff for each fully organized division of the Army National Guard, and a commissioned officer of the Regular Air Force to perform the duties of the corresponding position for each fully organized wing of the Air National Guard.

(f) Unless the President consents

(1) an organization of the National Guard whose members have received compensation from the United States as members of the National Guard may not be disbanded; and

(2) the actual strength of such an organization in commissioned officers or enlisted members may not be reduced below the minimum strength prescribed by the President.

(Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 598.) HISTORICAL AND REVISION NOTES

The word "members" is substituted for the words "officers and enlisted men". The word "Regular" is omitted, since the organization is now prescribed for the Army, and the Regular Army is only a personnel category.

CROSS REFERENCES

Appointment of National Guard officers as Reserve officers upon Federal recognition, see sections 3351 and 8351 of Title 10, Armed Forces.

Army Staff, see chapter 305 of Title 10.

§ 104. Units: location; organization; command.

(a) Each State and Territory, Puerto Rico, and the Canal Zone may fix the location of the units and headquarters of its National Guard.

(b) Except as otherwise specifically provided in this title, the organization of the Army National Guard and the composition of its units shall be the same as those prescribed for the Army, subject, in time of peace, to such general exceptions as the Secretary of the Army may authorize; and the organization of the Air National Guard and the composition of its units shall be the same as those prescribed for the Air Force, subject, in time of peace, to such general exceptions as the Secretary of the Air Force may authorize.

(c) To secure a force the units of which when combined will form complete higher tactical units, the President may designate the units of the National Guard, by branch of the Army or organization

Source (Statutes at Large)

June 3, 1916, ch. 134. §§ 64, 65 (proviso), 68, 39 Stat. 198200.

June 3, 1916, ch. 134, § 60, June 4. 1920, ch. 227 subch; I, 36; restated June 15, 1933, ch. 87, § 6, 48 Stat. 156.

In subsection (a), the words "within their respective borders" are omitted as surplusage.

In subsection (b), the word "Army" is substituted for the words "Regular Army", since the Army is the category for which the organization is prescribed, and the Regular Army is a personnel category for which no organization is prescribed. Similarly, the words "Air Force" are used instead of the words "Regular Air Force".

In subsection (c), the words "by branch of the Army or organization of the Air Force" are substituted for the words "as to branch or arm of service". The words "branch, organization, or allotment of a unit" are substituted for the words "allotment, branch, or arm of units or organizations".

In subsections (d) and (e) the word "commissioned" is inserted, since 32: 8 and 10 historically applied only to commissioned officers (see opinion of the Judge Advocate General of the Army (JAGA 1953/4078, 6 May 1953)).

In subsection (d), the word "brigades" is omitted as surplusage.

In subsection (e), the word "tactical" is omitted as surplusage.

In subsection (f), the words "have received compensation from the United States as members of the National Guard" are substituted for the words "shall be entitled to and shall have received compensation under the provi

sions of this title". The words "actual strength in commissioned officers or enlisted members" are substituted for the words "commissioned or enlisted strength". RETENTION OF ANCIENT PRIVILEGES AND ORGANIZATION Section 32 of act Aug. 10, 1956, provided that: "(a) Any corps of artillery, cavalry, or infantry existing in any of the States on the passage of the Act of May 8, 1792, which by the laws, customs, or usages of those States has been in continuous existence since the passage of that Act, shall be allowed to retain its ancient privileges, subject, nevertheless to all duties required by law of militia: Provided, That those organizations may be a part of the National Guard and entitled to all the privileges thereof, and shall conform in all respects to the organization, discipline, and training to the National Guard in time of war: Provided further, That for purposes of training and when on active duty in the service of the United States they may be assigned to higher units, as the President may direct, and shall be subject to the orders of officers under whom they shall be serving.

"(b) The First Corps Cadets, antedating, and continuously existing in the State of Massachusetts since, the Act of May 8, 1792, now designated as the 126th Tank Battalion, 26th Infantry Division, hereby declared to be a corps as defined in subsection (a) of this Act for all purposes thereof and now incorporated in the Organized Militia and a part of the National Guard of Massachusetts, shall be allowed to retain its ancient privileges and organization. The First Corps Cadets is hereby declared to be entitled to a lieutenant colonel in command and a major second in command; and those officers, when federally recognized, are entitled to the pay provided by law for their respective grades: Provided, That nothing in this section or other provisions of law shall be considered to be in derogation of any other ancient privileges to which the First Corps Cadets is entitled under the laws, customs, or usages of the State of Massachusetts."

CROSS REFERENCES

Army Staff and Air Staff, see chapters 305 and 805 of Title 10, Armed Forces.

Chief and assistant chief of staff of wings of Air National Guard in Federal service, detail, see section 8542 of Title 10.

Chief and assistant chief of staff of divisions of Army National Guard in Federal service, detail, see section 3542 of Title 10.

Limitation on relocation of units, see section 2238 of Title 10.

Policies and regulations for government of reserve components of Army and Air Force, see sections 3033 and 8033 of Title 10.

§ 105. Inspection.

(a) The Secretary of the Army shall have an inspection made at least once a year by inspectors general, or, if necessary, by any other commissioned officers of the Regular Army detailed for that purpose, to determine whether

(1) the amount and condition of property held by the Army National Guard are satisfactory; (2) the Army National Guard is organized as provided in this title;

(3) the members of the Army National Guard meet prescribed physical and other qualifications;

(4) the Army National Guard and its organization are properly uniformed, armed, and equipped and are being trained and instructed for active duty in the field, or for coast defense; and

(5) Army National Guard records are being kept in accordance with this title.

The Secretary of the Air Force has a similar duty with respect to the Air National Guard.

(b) The reports of inspections under subsection (a) are the basis for determining whether the National Guard is entitled to the issue of military

In subsection (a), the word "commissioned" is inserted, since 32:15 historically applied only to commissioned officers (see opinion of the Judge Advocate General of the Army (JAGA 1953/4078, 6 May 1953)).

In subsection (a) (2), the words "provided in this title" are substituted for the words "hereinbefore prescribed". In subsection (a) (4), the words "the Army National Guard and its organizations" are substituted for the words "the organization and the officers and enlisted men thereof". The word "uniformed" is omitted as covered by the word "equipped".

In subsection (b), the words "under subsection (a)” are substituted for the word "such". The words "units and members" are substituted for the word "parts". The words "within the meaning of this title" are omitted as surplusage.

§ 107. Apportionment of appropriations.

(a) Appropriations for the Army National Guard under section 106 of this title shall be apportioned among the States and Territories, Puerto Rico, the Canal Zone, and the District of Columbia under equitable procedures to be prescribed by the Secretary of the Army and in direct ratio to the respective actual strengths in enlisted members of the active Army National Guard in those jurisdictions on the date of apportionment. Appropriations for the Air National Guard under section 106 of this title shall be apportioned among the States and Territories, Puerto Rico, the Canal Zone, and the District of Columbia under equitable procedures to be prescribed by the Secretary of the Air Force and in direct ratio

to the respective actual strengths in enlisted members of the active Air National Guard in those jurisdictions on the date of apportionment.

(b) Under such regulations as the Secretary concerned may prescribe, apportioned appropriations are available for

(1) the necessary expenses of members of a regular or reserve component of the Army or the Air Force traveling on duty in connection with the National Guard;

(2) the necessary expenses of officers of the Regular Army or the Regular Air Force on duty in the National Guard Bureau or with the Army General Staff or the Air Staff, traveling to and from annual conventions of the National Guard Association of the United States or the Adjutants General Association;

(3) the transportation of supplies furnished to the National Guard as permanent equipment;

(4) the office rent and necessary office expenses of officers of a regular or reserve component of the Army or the Air Force on duty with the National Guard;

(5) the expenses of the National Guard Bureau, including clerical services;

(6) the promotion of rifle practice, including the acquisition, construction, maintenance, and equipment of shooting galleries and suitable target ranges;

(7) such incidental expenses of authorized encampments, maneuvers, and field instruction as the Secretary considers necessary; and

(8) other expenses of the National Guard authorized by law.

(c) The expenses of enlisted members of the Regular Army or the Regular Air Force on duty with the National Guard shall be paid from appropriations for the Army National Guard or the Air National Guard, as the case may be, but not from the allotment of a State or Territory, Puerto Rico, the Canal Zone, or the District of Columbia. Payable expenses include allowances for subsistence and quarters under sections 402 and 403 of title 37 and expenses for medicine and medical attendance. (Aug. 10, 1956, ch. 1041, § 2, 70A Stat. 599; Sept. 11, 1967, Pub. L. 90-83, § 4, 81 Stat. 220.)

In subsection (a), the words "strengths in enlisted members of the active" are substituted for the words "number of enlisted men in active service". The words between the eighth and ninth semicolons of 32: 22, relating to horses and draft animals, are omitted as obsolete, since no animals are now authorized for the National Guard. The words "under section 106 of this title" are inserted, since only appropriations under that revised section are required to be apportioned.

In subsection (b) (1) and (2), the words "actual and" are omitted as surplusage.

In subsection (b) (2), the words "Reserve Officers holding commission in the National Guard" are omitted as

The

In subsection (c), the words "under sections 251 and 252 of title 37" are substituted for the words "provided in section 19 of title 37", since allowances for subsistence and quarters are now covered by those sections. words "shall be paid from appropriations for the National Guard, but not from the allotment of a State or Territory, Puerto Rico, the Canal Zone, or the District of Columbia" are substituted for the words "shall constitute a charge against the whole sum annually appropriated for the support of the National Guard, and shall be paid therefrom and not from the allotment duly apportioned for any particular State, Territory, or the District of Columbia".

The words "does not comply" are substituted for the words "shall * • have failed or refused to comply". The words "a requirement of, or regulation prescribed under, this title" are substituted for the words "any requirement of this title, or any regulation promulgated thereunder and in aid thereof by the President or the Secretary of the Army". The words "money or any other aid" are substituted for the words "pecuniary or other aid". The words "or provided by this title or any other" are omitted as surplusage.

§ 109. Maintenance of other troops.

(a) In time of peace, a State or Territory, Puerto Rico, the Virgin Islands, the Canal Zone, or the District of Columbia may maintain no troops other than those of its National Guard and defense forces authorized by subsection (c).

(b) Nothing in this title limits the right of a State or Territory, Puerto Rico, the Virgin Islands, the Canal Zone, or the District of Columbia to use its National Guard or its defense forces authorized by subsection (c) within its borders in time of peace, or prevents it from organizing and maintaining police or constabulary.

(c) In addition to its National Guard, if any, a State or Territory, Puerto Rico, the Virgin Islands, the Canal Zone, or the District of Columbia may, as provided by its laws, organize and maintain de