USC Chapter 3

USC Chapter 3
in effect

32 U.S.C. § 301 Federal recognition of enlisted members

To be eligible for Federal recognition as an enlisted member of the National Guard, a person must have the qualifications prescribed by the Secretary concerned for the grade, branch, position, and type of unit or organization involved. He becomes federally recognized upon enlisting in a federally recognized unit or organization of the National Guard.

32 U.S.C. § 302 Enlistments, reenlistments, and extensions

(a) Under regulations to be prescribed by the Secretary concerned, original enlistments in the National Guard may be accepted for—(1) any specified term, not less than three years, for persons who have not served in an armed force; or (2) any specified term, not less than one year, for persons who have served in any armed force. (b) Under regulations to be prescribed by the Secretary concerned, reenlistment in the National Guard may be accepted for any specified period, or, if the person last served in one of the highest five enlisted grades, for an unspecified period. (c) Enlistments or reenlistments in the National Guard may be extended—(1) under regulations to be prescribed by the Secretary concerned, at the request of the member, for any period not less than six months; or (2) by proclamation of the President, if Congress declares an emergency, until six months after termination of that emergency.

32 U.S.C. § 303 Active and inactive enlistments and transfers

(a) Under regulations to be prescribed by the Secretary of the Army, a person qualified for enlistment in the active Army National Guard may be enlisted in the inactive Army National Guard for a single term of one or three years. Under regulations prescribed by the Secretary of the Air Force, a person qualified for enlistment in the active Air National Guard may be enlisted in the inactive Air National Guard for a single term of one or three years. (b) Under such regulations as the Secretary of the Army may prescribe, an enlisted member of the active Army National Guard, not formerly enlisted in the inactive Army National Guard, may be transferred to the inactive Army National Guard. Under such regulations as the Secretary of the Air Force may prescribe, an enlisted member of the active Air National Guard, not formerly enlisted in the inactive Air National Guard, may be transferred to the inactive Air National Guard. Under such regulations as the Secretary concerned may prescribe, a person enlisted in or transferred to the inactive Army National Guard or the inactive Air National Guard may be transferred to the active Army National Guard or the active Air National Guard, as the case may be. (c) In time of peace, no enlisted member may be required to serve for a period longer than that for which he enlisted in the active or inactive National Guard. (d)(1) Under regulations prescribed by the Secretary of the Army—(A) an officer of the Army National Guard who fills a vacancy in a federally recognized unit of the Army National Guard may be transferred from the active Army National Guard to the inactive Army National Guard; and (B) an officer of the Army National Guard transferred to the inactive Army National Guard pursuant to subparagraph (A) may be transferred from the inactive Army National Guard to the active Army National Guard to fill a vacancy in a federally recognized unit. (2) Under regulations prescribed by the Secretary of the Air Force—(A) an officer of the Air National Guard who fills a vacancy in a federally recognized unit of the Air National Guard may be transferred from the active Air National Guard to the inactive Air National Guard; and (B) an officer of the Air National Guard transferred to the inactive Air National Guard pursuant to subparagraph (A) may be transferred from the inactive Air National Guard to the active Air National Guard to fill a vacancy in a federally recognized unit.

32 U.S.C. § 304 Enlistment oath

Each person enlisting in the National Guard shall sign an enlistment contract and subscribe to the following oath: “I do hereby acknowledge to have voluntarily enlisted this __ day of ____, 19_, in the ______ National Guard of the State of ______ for a period of __ year(s) under the conditions prescribed by law, unless sooner discharged by proper authority. “I, ________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and of the State of ______ against all enemies, foreign and domestic; that I will bear true faith and allegiance to them; and that I will obey the orders of the President of the United States and the Governor of ______ and the orders of the officers appointed over me, according to law and regulations. So help me God.” The oath may be taken before any officer of the National Guard of the State or Territory, or of Puerto Rico, or the District of Columbia, as the case may be, or before any other person authorized by the law of the jurisdiction concerned to administer oaths of enlistment in the National Guard.

32 U.S.C. § 305 Federal recognition of commissioned officers: persons eligible

(a) The following categories are eligible for Federal recognition as commissioned officers of the National Guard:(1) Members of the National Guard. (2) Members of the armed forces. (3) Former officers of the armed forces. (4) Former enlisted members of the armed forces who were discharged honorably or under honorable conditions. (5) Graduates of the United States Military Academy, the United States Naval Academy, the United States Air Force Academy, the United States Coast Guard Academy, or the United States Merchant Marine Academy. (6) Graduates of a school, college, university, or officer’s training camp who received military instruction under the supervision of a commissioned officer of the Regular Army or the Regular Air Force, and whose fitness for appointment has been certified by that officer. (7) Civilians who are specially qualified for duty in a technical or staff branch or organization. (b) To be eligible for Federal recognition under this section with a view to serving as a nurse, a person must be a graduate of a hospital or university training school and a registered nurse.

32 U.S.C. § 307 Federal recognition of officers: examination; certificate of eligibility

(a) To be eligible for Federal recognition as an officer of the National Guard, a person must—(1) receive an appointment with a view to filling a vacancy in a federally recognized unit or organization of the National Guard; (2) have the qualifications prescribed by the Secretary concerned for the grade, branch, position, and type of unit or organization involved; and (3) except as provided in subsections (d) and (e) of this section, pass an examination for physical, moral, and professional fitness to be prescribed by the President, and subscribe to the oath of office prescribed by section 312 of this title. (b) The examination prescribed by subsection (a)—(1) shall be conducted, for the Army National Guard, by a board of three commissioned officers designated by the Secretary of the Army from members of the Regular Army or the Army National Guard of the United States, or both, and for the Air National Guard, by a board of three commissioned officers designated by the Secretary of the Air Force from members of the Regular Air Force or the Air National Guard of the United States, or both; and (2) may be held before original appointment or promotion. (c) If such a board finds a person qualified, the Chief of the National Guard Bureau may issue to him a certificate of eligibility for Federal recognition for the office for which he was found qualified. If he is originally appointed or promoted within two years to that office, he is entitled to Federal recognition without further examination, except as to physical condition. (d) Subject to subsection (a)(1) and (2) and to such physical examination as may be prescribed, Federal recognition shall be extended to each officer of the Army Reserve who has qualified for appointment as an officer of the Army National Guard in his reserve grade. Similarly, Federal recognition shall be extended to each officer of the Air Force Reserve who has qualified for appointment as an officer of the Air National Guard. Federal recognition extended under this subsection is effective from the date of appointment in the Army National Guard or the Air National Guard, as the case may be. (e) Subject to subsection (a)(1) and (2), Federal recognition shall be extended to each officer of the Air Force Reserve who is appointed in a commissioned grade in the Air National Guard to fill a vacancy, if on the date on which he is appointed his reserve grade is the same as the grade in which he is appointed or his name is on a recommended list for promotion to that reserve grade. (f) Federal recognition extended under subsection (d) or (e) is effective from the date of appointment in the Army National Guard or the Air National Guard, as the case may be.

32 U.S.C. § 308 Federal recognition of officers: temporary recognition

(a) The Secretary of the Army may authorize the extension of temporary Federal recognition as an officer of the Army National Guard to any person who has passed the examination prescribed in section 307(b) of this title, pending his appointment as a reserve officer of the Army. The Secretary of the Air Force may do likewise for a person who has passed that examination pending his appointment as a reserve officer of the Air Force. Temporary recognition so extended may be withdrawn at any time. If not sooner withdrawn or replaced by permanent recognition upon appointment as a reserve officer in the same grade, it terminates one year after its effective date. (b) To be eligible for temporary Federal recognition under subsection (a), a person must take an oath that during the period of temporary recognition he will perform his Federal duties as if he had been appointed as a reserve officer of the Army or the Air Force, as the case may be.

32 U.S.C. § 309 Federal recognition of National Guard officers: officers promoted to fill vacancies

Each officer of the National Guard who is promoted to fill a vacancy in a federally recognized unit of the National Guard, and who has been on the reserve active-status list or the active-duty list of the Army or the Air Force for at least one year and has completed the minimum years of service in grade specified in section 14303 of title 10, shall be examined for Federal recognition in the grade to which the officer is promoted.

32 U.S.C. § 310 Federal recognition of National Guard officers: automatic recognition

(a)(1) Notwithstanding sections 307 and 309 of this title, if a second lieutenant of the National Guard is promoted to the grade of first lieutenant to fill a vacancy in a federally recognized unit in the National Guard, Federal recognition is automatically extended to that officer in the grade of first lieutenant, effective as of the date on which that officer has completed the service in the grade specified in section 14303(a)(1) of title 10 and has met such other requirements as prescribed by the Secretary concerned under section 14308(b) of that title, if the officer has remained in an active status since the officer was so recommended. (2) Notwithstanding sections 307 and 309 of this title, if a warrant officer, W–1, of the National Guard is promoted to the grade of chief warrant officer, W–2, to fill a vacancy in a federally recognized unit in the National Guard, Federal recognition is automatically extended to that officer in the grade of chief warrant officer, W–2, effective as of the date on which that officer has completed the service in the grade prescribed by the Secretary concerned under section 12242 of title 10, if the warrant officer has remained in an active status since the warrant officer was so recommended. (b) Notwithstanding sections 307 and 309 of this title, if an officer of the Army Reserve or the Air Force Reserve in a reserve grade above second lieutenant is appointed in the next higher grade in the National Guard to fill a vacancy in a federally recognized unit in the National Guard, Federal recognition is automatically extended to that officer in the grade in which the officer is so appointed in the National Guard if the officer has been recommended for promotion under chapter 1405 of title 10 and has remained in an active status since the officer was so recommended. The extension of Federal recognition under this subsection is effective as of the date when the officer is appointed in the National Guard.

32 U.S.C. § 312 Appointment oath

Each person who is appointed as an officer of the National Guard shall subscribe to the following oath: “I, ______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of ______ against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will obey the orders of the President of the United States and of the Governor of the State of ______, that I make this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office of ____ in the National Guard of the State of ______ upon which I am about to enter, so help me God.”

32 U.S.C. § 313 Appointments and enlistments: age limitations

(a) To be eligible for original enlistment in the National Guard, a person must be at least 17 years of age and under 45, or under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. To be eligible for reenlistment, a person must be under 64 years of age. (b) To be eligible for appointment as an officer of the National Guard, a person must—(1) be a citizen of the United States; and (2) be at least 18 years of age and under 64.

32 U.S.C. § 314 Adjutants general

(a) There shall be an adjutant general in each State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands. He shall perform the duties prescribed by the laws of that jurisdiction. (b) The President shall appoint the adjutant general of the District of Columbia and prescribe his grade and qualifications. (c) The President may detail as adjutant general of the District of Columbia any retired commissioned officer of the Regular Army or the Regular Air Force recommended for that detail by the commanding general of the District of Columbia National Guard. An officer detailed under this subsection is entitled to the basic pay and allowances of his grade. (d) The adjutant general of each State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands, and officers of the National Guard, shall make such returns and reports as the Secretary of the Army or the Secretary of the Air Force may prescribe, and shall make those returns and reports to the Secretary concerned or to any officer designated by him.

32 U.S.C. § 315 Detail of regular members of Army and Air Force to duty with National Guard

(a) The Secretary of the Army shall detail commissioned officers of the Regular Army to duty with the Army National Guard of each State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands. The Secretary of the Air Force shall detail commissioned officers of the Regular Air Force to duty with the Air National Guard of each State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands. With the permission of the President, an officer so detailed may accept a commission in the Army National Guard or the Air National Guard, as the case may be, terminable in the President’s discretion, without prejudicing his rank and without vacating his regular appointment. (b) The Secretary of the Army may detail enlisted members of the Regular Army for duty with the Army National Guard of each State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands. The Secretary of the Air Force may detail enlisted members of the Regular Air Force for duty with the Air National Guard of each State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands.

32 U.S.C. § 316 Detail of members of Army National Guard for rifle instruction of civilians

The President may detail officers and noncommissioned officers of the Army National Guard to duty as instructors at rifle ranges for the training of civilians in the use of military arms.

32 U.S.C. § 317 Command during joint exercises with Federal troops

When any part of the National Guard that is not in Federal service participates in an encampment, maneuver, or other exercise for instruction, together with troops in Federal service, the command of the post, air base, or other place where it is held, and of the troops in Federal service on duty there, remains with the officers in Federal service who command that place and the Federal troops on duty there, without regard to the rank of the officers of the National Guard not in Federal service who are temporarily participating in the exercise.

32 U.S.C. § 322 Discharge of enlisted members

(a) An enlisted member of the National Guard shall be discharged when—(1) he becomes 64 years of age; or (2) his Federal recognition is withdrawn. (b) An enlisted member who is discharged from the National Guard is 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. (c) In time of peace, an enlisted member of the National Guard may be discharged before his enlistment expires, under such regulations as may be prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be.

32 U.S.C. § 323 Withdrawal of Federal recognition

(a) Whenever a member of the National Guard ceases to have the qualifications prescribed under section 301 of this title or ceases to be a member of a federally recognized unit or organization of the National Guard, his Federal recognition shall be withdrawn. (b) Under regulations to be prescribed by the President, the capacity and general fitness of an officer of the National Guard for continued Federal recognition may be investigated at any time by an efficiency board composed of commissioned officers of—(1) the Regular Army or the Army National Guard of the United States, or both, who out-rank him and who are detailed by the Secretary of the Army, if he is a member of the Army National Guard; or (2) the Regular Air Force or the Air National Guard of the United States, or both, who outrank him and who are detailed by the Secretary of the Air Force, if he is a member of the Air National Guard. If the findings of the board are unfavorable to the officer and are approved by the President, his Federal recognition shall be withdrawn. (c) If a member of the Army National Guard of the United States or the Air National Guard of the United States is transferred to the Army Reserve or the Air Force Reserve, as the case may be, under section 12105, 12213(a), or 12214(a) of title 10, his Federal recognition is withdrawn. (d) The Federal recognition of a reserve commissioned officer of the Army or the Air Force who is—(1) federally recognized as an officer of the National Guard; and (2) subject to involuntary transfer to the Retired Reserve, transfer to an inactive status list, or discharge under chapter 1407, 1409, or 1411 of title 10; shall, if not sooner withdrawn, be withdrawn on the date of such involuntary transfer or discharge.

32 U.S.C. § 324 Discharge of officers; termination of appointment

(a) An officer of the National Guard shall be discharged when—(1) he becomes 64 years of age; or (2) his Federal recognition is withdrawn. The official who would be authorized to appoint him shall give him a discharge certificate. (b) Subject to subsection (a), the appointment of an officer of the National Guard may be terminated or vacated as provided by the laws of the State of whose National Guard he is a member, or by the laws of the Commonwealth of Puerto Rico, or the District of Columbia, Guam, or the Virgin Islands, of whose National Guard he is a member. (c) Notwithstanding subsection (a)(1), an officer of the National Guard serving as a chaplain, medical officer, dental officer, nurse, veterinarian, Medical Service Corps officer, or biomedical sciences officer may be retained, with the officer’s consent, until the date on which the officer becomes 68 years of age.

32 U.S.C. § 325 Relief from National Guard duty when ordered to active duty

(a) Relief Required.—(1) Except as provided in paragraph (2), each member of the Army National Guard of the United States or the Air National Guard of the United States who is ordered to active duty is relieved from duty in the National Guard of his State, or of the Commonwealth of Puerto Rico, Guam, or the Virgin Islands or the District of Columbia, as the case may be, from the effective date of his order to active duty until he is relieved from that duty. (2) An officer of the Army National Guard of the United States or the Air National Guard of the United States is not relieved from duty in the National Guard of his State, or of the Commonwealth of Puerto Rico, Guam, or the Virgin Islands or the District of Columbia, under paragraph (1) while serving on active duty if—(A) the President authorizes such service in both duty statuses; and (B) the Governor of his State, or of the Commonwealth of Puerto Rico, Guam, or the Virgin Islands, or the commanding general of the District of Columbia National Guard, as the case may be, consents to such service in both duty statuses. (b) Advance Authorization and Consent.—The President and the Governor of a State or Territory, or of the Commonwealth of Puerto Rico, or the commanding general of the District of Columbia National Guard, as applicable, may give the authorization or consent required by subsection (a)(2) with respect to an officer in advance for the purpose of establishing the succession of command of a unit. (c) Return to State Status.—So far as practicable, members, organizations, and units of the Army National Guard of the United States or the Air National Guard of the United States ordered to active duty shall be returned to their National Guard status upon relief from that duty.

32 U.S.C. § 326 Courts-martial of National Guard not in Federal service: composition, jurisdiction, and procedures

In the National Guard not in Federal service, there are general, special, and summary courts-martial constituted like similar courts of the Army and the Air Force. They have the jurisdiction and powers, except as to punishments, and shall follow the forms and procedures, provided for those courts. Punishments shall be as provided by the laws of the respective States, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands.

32 U.S.C. § 327 Courts-martial of National Guard not in Federal service: convening authority

(a) In the National Guard not in Federal service, general, special, and summary courts-martial may be convened as provided by the laws of the respective States, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands. (b) In the National Guard not in Federal service—(1) general courts-martial may be convened by the President; (2) special courts-martial may be convened—(A) by the commanding officer of a garrison, fort, post, camp, air base, auxiliary air base, or other place where members of the National Guard are on duty; or (B) by the commanding officer of a division, brigade, regiment, wing, group, detached battalion, separate squadron, or other detached command; and (3) summary courts-martial may be convened—(A) by the commanding officer of a garrison, fort, post, camp, air base, auxiliary air base, or other place where members of the National Guard are on duty; or (B) by the commanding officer of a division, brigade, regiment, wing, group, detached battalion, detached squadron, detached company, or other detachment. (c) The convening authorities provided under subsection (b) are in addition to the convening authorities provided under subsection (a).

32 U.S.C. § 328 Active Guard and Reserve duty: Governor’s authority

(a) Authority.—The Governor of a State or the Commonwealth of Puerto Rico, Guam, or the Virgin Islands, or the commanding general of the District of Columbia National Guard, as the case may be, with the consent of the Secretary concerned, may order a member of the National Guard to perform Active Guard and Reserve duty, as defined by section 101(d)(6) of title 10, pursuant to section 502(f) of this title. (b) Duties.—A member of the National Guard performing duty under subsection (a) may perform the additional duties specified in section 502(f)(2) of this title to the extent that the performance of those duties does not interfere with the performance of the member’s primary Active Guard and Reserve duties of organizing, administering, recruiting, instructing, and training the reserve components. (c) Waiver Authority.—(1) Notwithstanding section 101(d)(6)(A) of title 10 and subsection (b) of this section, the Governor of a State or the Commonwealth of Puerto Rico, Guam, or the Virgin Islands, or the commanding general of the District of Columbia National Guard, as the case may be, may, at the request of the Secretary concerned, order a member of the National Guard to perform Active Guard and Reserve duty for purposes of performing training of the regular components of the armed forces as the primary duty. (2) Training performed under paragraph (1) must be in compliance with the requirements of section 502(f)(2)(B)(i) of this title. (3) No more than 100 personnel may be granted a waiver by a Secretary concerned under paragraph (1) at a time. (4) The authority under paragraph (1) shall terminate on October 1, 2024.

32 U.S.C. § 328a Active Guard and Reserve duty: State disaster response duty

(a) Authority.—The chief executive of a State who has declared an emergency in such State due to a disaster, may, with the consent of the Secretary of Defense, order a member of the National Guard of such State, who is performing Active Guard and Reserve duty pursuant to section 328 of this title, to perform duties in response to, or in preparation for, such disaster. Duty performed under this section shall be referred to as “State disaster response duty”. (b) Requirements.—State disaster response duty performed pursuant to this section—(1) shall be on a reimbursable basis, in accordance with subsection (c); (2) may be performed to the extent that the performance of such duty does not interfere with the performance of the member’s primary Active Guard and Reserve duties of organizing, administering, recruiting, instructing, and training the reserve components; and (3) shall not exceed a total of 14 days per member per calendar year, except that the Secretary of Defense may, if the chief executive so requests before the end of the 14th such day, authorize an extension of the duration of such duty, not to exceed an additional—(A) 7 days, if the Secretary determines that such extension is appropriate; and (B) 46 days if the Secretary determines that such duty is in support of the response to a catastrophic incident, as that term is defined in section 501 of the Homeland Security Act of 2002 (6 U.S.C. 311). (c) Reimbursement.—(1) The Secretary of the military department concerned shall charge a State for the fully burdened costs of manpower for each day of State disaster response duty performed pursuant to this section. (2) Such charges shall be paid from the funds of the State of the requesting chief executive or from any other non-Federal funds. (3) Any amounts received by a Secretary of a military department under this section shall be credited, at the discretion of the Secretary of Defense, to—(A) the appropriation, fund, or account used to pay such costs; or (B) an appropriation, fund, or account available for the purposes for which such costs were incurred. (4) If the State of the requesting chief executive is more than 90 days in arrears in reimbursing the Secretary of the military department concerned for State disaster response duty performed pursuant to this section, such duty may not be performed—(A) unless authorized by the Secretary of Defense; and (B) after the requesting chief executive obligates funds for the amount in arrears. (d) Limitation of Liability.—While performing State disaster response duty under this section, a member of the National Guard is not an instrumentality of the United States with respect to any act or omission in carrying out such duty. The United States shall not be responsible for any claim or judgment arising from the use of a member of the National Guard under this section. (e) Definitions.—In this section:(1) The term “Active Guard and Reserve duty” has the meaning given such term in section 101 of title 10. (2) The term “State” has the meaning given such term in section 901 of this title.

32 U.S.C. § 329 Prohibition on private funding for interstate deployment

A member of the National Guard may not be ordered to cross a border of a State to perform duty (under this title or title 10) if such duty is paid for with private funds, unless such duty is in response to a major disaster or emergency under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170).