Del. Code tit. 20, § 101 State militia; name.
The active militia of this State shall be organized and known as the Delaware National Guard and shall be subject at all times to the orders of the officers thereof.
Delaware National Guard
Del. Code tit. 20, ch. 1
in effectDel. Code tit. 20, § 102 Definitions.
As used in this chapter:
(1) “National Defense Act” means an act of Congress, entitled, “An Act for making further and more effectual provisions for the national defense, and for other purposes” approved by the President, June 3, 1916, and any and all acts amendatory and supplementary thereto.
(2) “Unit” shall mean any part of the Delaware National Guard designated a “unit” by order of the Adjutant General.
Del. Code tit. 20, § 103 Conformity with federal statutes; powers of Governor.
The National Guard of this State shall conform to federal statutes and regulations relating to and governing the armed forces of the United States, insofar as they are applicable and not inconsistent with the Constitution of Delaware or this title.
The Governor of Delaware shall be the Commander in Chief of the National Guard, except as to any part thereof called or ordered into federal service.
The Governor of this State, as Commander in Chief, may make such changes from time to time in matters or organization, administration and discipline as may be necessary to conform to the requirements made by Congress for participation in federal appropriations for the National Guard.
Del. Code tit. 20, § 104 Rules and regulations.
(a) In order to fulfill the purposes of this chapter, the Adjutant General may make and publish rules and regulations for the government, discipline and exercise of the Delaware National Guard.
(b) Such rules and regulations shall, so far as practicable, conform to the rules, regulations and statutes, of the Department of Defense, the Army, the Air Force, and the National Guard Bureau of the United States.
(c) When such rules and regulations have been promulgated and published by the Adjutant General, they shall have the force and effect of law.
Del. Code tit. 20, § 105 Uniforms, arms and equipment.
The Delaware National Guard shall be uniformed, armed and equipped, as nearly as practicable, in accordance with federal statutes and regulations in relation to uniforms, arms and equipment.
Del. Code tit. 20, § 106 Disbanding of unit incapacitated to discharge its duties.
If it appears to the Commander in Chief that a company of the Delaware National Guard has failed to comply with the requirements of the law so that it is incapacitated to discharge the duties required of it, such company may be disbanded by the Commander in Chief.
Del. Code tit. 20, § 107 Bills and allowances; how paid.
No bill or allowance, on account of the Delaware National Guard, authorized by this chapter, shall be paid by the State Treasurer unless the bill or allowance is itemized and its contents duly certified to by the Adjutant General or by an officer designated by the Adjutant General. The Adjutant General shall be permitted to draw a warrant on the State Treasurer to pay current expenses from funds which may be appropriated for such purpose.
Del. Code tit. 20, § 108 Donations to National Guard.
(a) Any county, municipality or corporation in this State may appropriate money out of the treasury of such municipality, county or corporation, donate any other valuable thing or grant or lease any land belonging to it for the purpose of aiding the improvement of the Delaware National Guard.
(b) The Delaware National Guard may accept donations of money or property from any lawful source to improve its capabilities.
(c) The money so appropriated, other valuable thing donated or the land so granted or leased to the Delaware National Guard shall be, so far as practicable, expended or disposed of by the State Department of Military Affairs in such manner and under such lawful conditions as the donor may direct.
Del. Code tit. 20, § 109 Delaware National Guard Counterdrug Task Force.
For purposes of transfers of property forfeited to the United States under the Controlled Substance Act (21 U.S.C. § 881), the Delaware National Guard Counterdrug Task Force shall be designated as a law-enforcement agency for that limited purpose. This section does not allow, authorize or entitle the Delaware National Guard Counterdrug Task Force to funds from the Special Law Enforcement Assistance Fund.
Del. Code tit. 20, § 121 Established; composition.
The Delaware National Guard, the Delaware State Defense Forces and the Delaware militia, when not in the service of the United States, shall be governed and their affairs administered pursuant to the laws of this State, and the laws of the United States, by the Governor as Commander in Chief, through the Department of Military Affairs, which is hereby established and which shall consist of the Adjutant General as its chief executive and such other officers, warrant officers and enlisted personnel and civilian employees as the laws of the State or the laws of the United States may direct or permit. The Department of Military Affairs shall be a department of the executive branch of government in a like manner as all other such departments.
Del. Code tit. 20, § 122 Adjutant General; appointment; qualifications.
(a) The Adjutant General is appointed, confirmed, and holds office as provided in § 10 of Article III of the Delaware Constitution.
(b) To be eligible for appointment to the office of Adjutant General a person must have served as a commissioned officer of the Delaware National Guard or the armed forces of the United States.
(c) The Governor may authorize the position of Adjutant General to be held at the rank of Lieutenant General.
Del. Code tit. 20, § 123 Adjutant General — Powers and duties.
The Adjutant General shall be responsible to the Commander in Chief for carrying out the policies of the Commander in Chief and shall issue orders in the Commander in Chief’s name. To accomplish this end the Adjutant General shall have the following duties and the powers necessary to effectuate the same:
(1) Supervise all troops, arms and branches of the Delaware National Guard, Delaware State Defense Forces and militia, with such supervisory powers as are necessary, covering primarily all duties pertaining to their organization, armament, discipline, training, recruiting, inspection, pay, subsistence and supplies.
(2) Supervise the receipt, preservation, repair, distribution, issue and collection of all arms and military stores of this State.
(3) Maintain records of all officers and enlisted personnel of the Delaware National Guard, Delaware State Defense Forces, and Delaware militia if called to duty, and keep on file in the Adjutant General’s office, or a place designated by the Adjutant General, copies of all orders, reports and communications relevant thereto.
(4) Negotiate and enter contracts on behalf of the Department of Military Affairs under the Adjutant General’s jurisdiction as necessary to effectuate the purposes of this chapter, including, retirement, disability and group health benefits in accordance with appropriations therefor and enter into agreements with the Secretary of Defense of the United States or other appropriate officials for withholding sums from the compensation of such civilian employees for contributions to such benefit programs.
(5) Have a seal of office, which shall be delivered to the Adjutant General’s successor at the completion of the Adjutant General’s term of office. Such seal shall be approved by the Commander in Chief and shall be affixed to official documents and papers as deemed appropriate by the Adjutant General.
(6) Assist deceased service personnel’s families and former service personnel or their dependents in adjusting their claims with the government and arrange for proper military funerals for service personnel from Delaware who are killed in action, or during active duty or who die overseas and are brought back to the United States for burial.
(7) Perform such other and further duties as may be required by the Commander in Chief.
(8) Shall receive an annual salary as determined by the General Assembly in the annual appropriations act.
(9) Furnish the proper officers of the United States government such reports and other information as from time to time is deemed necessary.
(10) Promulgate rules and regulations for the governance and discipline of the Delaware National Guard.
Del. Code tit. 20, § 124 Assistant Adjutants General — Rank; appointment; qualifications.
The Adjutant General will be assisted by an Assistant Adjutant General of the Army National Guard in the Department of Military Affairs and an Assistant Adjutant General of the Air National Guard in the Department of Military Affairs. They shall hold the rank of Brigadier General. Such individuals shall be appointed from the active or retired list of the Army National Guard and Air National Guard respectively by the Adjutant General and shall have served as commissioned officers of the Delaware National Guard or armed forces of the United States and shall serve at the pleasure of the Adjutant General.
Del. Code tit. 20, § 125 Assistant Adjutants General — Duties in absence or disability of Adjutant General.
In case of absence or disability of the Adjutant General to perform the duties of the office of Adjutant General, the Commander in Chief shall designate 1 of the Assistant Adjutants General to serve as the Adjutant General.
Del. Code tit. 20, § 126 Service Officers; appointment and duties [Repealed].
Del. Code tit. 20, § 127 Military staff of Governor.
The military staff of the Governor shall consist of the Adjutant General, the Assistant Adjutants General, and such personal aides-de-camp as the Governor may select. Commissioned officers of the Delaware National Guard, if detailed as aides-de-camp, shall be relieved of ordinary duties while actually on duty with the Governor but shall continue to be paid as if on ordinary duty.
Del. Code tit. 20, § 128 Duties of Department of Military Affairs.
The Department of Military Affairs shall assist the Adjutant General in carrying out the duties of that office and shall also consult with the Adjutant General in carrying out the following duties:
(1) Make such changes in the military organization of the Delaware National Guard as are necessary from time to time to conform to the requirements of the laws of the United States and the directives of the National Guard Bureau.
(2) Fix the location of units and headquarters of the Delaware National Guard and shall, subject to the approval of the National Guard Bureau, transfer, attach, consolidate or inactivate any organization or unit, when in its judgment the efficiency of the Delaware National Guard presently existing will be increased thereby.
(3) Establish awards and decorations and approve the design therefor.
Del. Code tit. 20, § 129 Commissioned and warrant officers; oath and term of appointment.
All officers known as commissioned officers and warrant officers, appointed under and by authority of this chapter shall, before entering upon the duties of their several and respective offices, take and subscribe the oath as prescribed by the National Defense Act for officers or warrant officers, as applicable, for officers of the National Guard and shall hold their appointments in conformity therewith.
Del. Code tit. 20, § 130 Regulations as to appointment of officers and other matters.
The Governor of this State may issue such regulations governing the appointment of officers in the National Guard of this State and such other matters pertaining to the National Guard as may be necessary in order to conform to the requirements made by Congress for participation in federal appropriations for the National Guard.
Del. Code tit. 20, § 131 Enlistment and oath.
Enlistment and oath of enlistment in the National Guard of this State shall be in conformity with the provisions of the National Defense Act and any amendments thereto.
Del. Code tit. 20, § 132 Death of veteran personnel; state flags to half-staff.
If any unit of the Delaware National Guard learns of the death of any its current or retired members, said unit may, on the day on which the deceased member is to be buried, cremated or otherwise interred or ceremoniously remembered following that member’s death, lower the state flag to half-staff for the duration of the day.
Del. Code tit. 20, § 133 Retirement of officers and enlisted personnel.
Repealed by 73 Del. Laws, c. 263, § 1, effective May 17, 2002.
Del. Code tit. 20, § 134 Retirement of officers and enlisted personnel — Rights of retired officers and enlisted personnel.
Retired officers and enlisted personnel shall be borne on the roster of the Delaware National Guard as so retired and shall be entitled to wear the uniform of the highest grade attained by them on all occasions of ceremony. Retired officers may, at the discretion of the Commander in Chief, with their consent be temporarily placed on active duty.
Del. Code tit. 20, § 135 Oaths and affirmations; who may administer; false swearing.
(a) General, field, commissioned and warrant officers may administer oaths and affirmations in all matters appertaining to or concerning the Delaware National Guard service, but in no case shall they charge any fee or compensation therefor.
(b) Whoever falsely swears or falsely affirms to any oath or affirmation administered pursuant to this section shall be deemed guilty of perjury in the second degree, a class E felony.
Del. Code tit. 20, § 136 State armories and arsenals; use; rentals; payment of orders; application for federal funds.
(a) The Adjutant General shall determine the use of armories and arsenals by military units of the Delaware National Guard.
(b) The Adjutant General may enter into, on behalf of the State, leases and contracts for the use of any state-owned armory, arsenal or military reservation upon such terms and conditions and for such duration as the Adjutant General deems advisable; provided, such use or occupation of any such property shall not interfere with the operation of such property by the armed forces of this State.
(c) All rentals received for the use of any such property shall be forwarded to the Adjutant General and be used to pay for the maintenance, utilities and other expenses associated with such use of said armories.
(d) No order shall be paid by the State Treasurer unless approved by the Adjutant General, or by an officer or employee designated by the Adjutant General, or unless an itemized bill or statement showing in detail the items to be paid under such order shall be attached and the contents thereof certified to be correct.
(e) The Adjutant General shall have full authority to make application to the National Guard Bureau for federal funds to improve or maintain any armory, arsenal or military reservation of this State.
Del. Code tit. 20, § 141 Property accountability.
(a) Any officer, enlisted member, employee or agent of the Delaware National Guard who receives state or federal property or funds for military use shall be liable under the appropriate state and federal regulations for the proper safeguarding of said property or funds.
(b) No such person shall be discharged from responsibility for such property or funds until a proper accounting shall be made under appropriate regulations.
(c) The Adjutant General shall be empowered to enter suit against any person in the name of the state for the value of any such property as may have been damaged, lost, destroyed or not properly accounted for.
Del. Code tit. 20, § 142 Arms and property to be deposited on order of proper officer; penalty; notice; lost or damaged arms or equipment.
(a) All arms, equipment or other property furnished to organizations of the Delaware National Guard shall, when required by the Adjutant General or the commanding officer of any unit, be deposited in the armory of the unit.
(b) Any person to whom such property was issued, failing to deposit or return any article of such property unless properly accounted for within 10 days after said person shall have been notified by written notice from the commanding officer to return it to the armory, shall be assessed damages in an amount of the current value of the property thus illegally detained, which assessment shall become a judgment of the court and entered upon its records as such. The court is empowered to use its civil contempt power to enforce payment of this assessment.
(c) (1) Notice under this section shall be given either by personal delivery thereof to the person to be notified or by deposit of such notice in the United States mail in an envelope with postage prepaid, addressed to such person at the person’s address as shown by the records of the Delaware National Guard.
(2) The giving of notice by mail is complete upon the expiration of 4 days after such deposit of such notice. Proof of the giving of notice in either such manner may be made by the certificate of any officer or employee of the Delaware National Guard or affidavit of any person over 18 years of age, naming the person to whom such notice was given and specifying the time, place and manner of the giving thereof.
(d) When any arms, equipment or other property furnished to organizations of the Delaware National Guard are lost or damaged by the act or neglect of any officer or enlisted person, deduction may be made to the amount of such loss or damage from any pay or allowance that may be or become due, under this chapter, to such officer or enlisted person.
Del. Code tit. 20, § 143 Recovery of arms and property of disbanded company.
Upon disbandment of any company or organization which has received arms, equipment or any other property of the State or of the United States for military purposes, the commanding officer of such company or organization shall be responsible for the return of the same to the custody of a duly authorized officer of the State.
The Adjutant General shall take the necessary legal proceedings in the name of the State or direct that proper legal proceedings be taken, as provided for in § 142 of this title, unless the property is properly accounted for.
Del. Code tit. 20, § 144 Enforcement; jurisdiction; appearance through designated officer.
(a) The Justice of the Peace Courts shall have jurisdiction to enforce this subchapter.
(b) The Delaware National Guard may appear in Justice of the Peace Court by and through any officer designated by the Adjutant General for the purposes of enforcing this subchapter.
Del. Code tit. 20, § 151 Kinds of courts-martial; procedures; jurisdiction; Military Judges; Judge Advocates.
(a) Courts-martial shall be of 3 kinds: general, special and summary. These courts shall be constituted like similar courts-martial of the Army and Air Force of the United States to the extent practicable.
(1) Convictions by general and special courts-martial will be recorded in accordance with § 8508 of Title 11 and the rules and regulations promulgated by the Delaware Justice Information System (DELJIS) Board of Directors.
(2) Any conviction by a summary court-martial or by nonjudicial punishment is not a criminal conviction and not reportable and shall not be transmitted pursuant to 8508 of Title 11.
(b) These courts-martial shall have the jurisdiction and powers as specified in regulations adopted and promulgated by the Adjutant General that shall conform as far as practicable to the Uniform Code of Military Justice (“UCMJ”) (10 U.S.C. § 801 et seq.) and the Manual for Courts-Martial of the United States so long as not inconsistent with the provisions of this subchapter.
(1) This subchapter applies to all members of the state military forces at all times even outside the State. Subject-matter jurisdiction under this subchapter is established if a nexus exists between an offense, either “military-only” or “military,” and the state military force.
(2) The Punitive Articles (Part IV) of the Manual for Courts-Martial and Subchapter X of the UCMJ [10 U.S.C. § 877 et seq.], (collectively known as “Articles”) constitute prosecutable offenses. Any offense prosecuted by a general or special court-martial shall constitute a misdemeanor offense. Any offense prosecuted by a summary court-martial or by nonjudicial punishment is not a criminal offense.
a. The term “military offense” means those offenses prescribed under Articles:
111 (Drunken or reckless operation of a vehicle, aircraft, or vessel) [10 U.S.C. § 911],
118 (Murder) [10 U.S.C. § 918],
119 (Manslaughter) [10 U.S.C. § 919],
120 (Rape and sexual assault generally) [10 U.S.C. § 920],
120a (Stalking) [10 U.S.C. § 920a],
120c (Other sexual misconduct) [10 U.S.C. § 920c],
121 (Larceny and wrongful appropriation) [10 U.S.C. § 921],
122 (Robbery) [10 U.S.C. § 922],
123 (Forgery) [10 U.S.C. § 923],
123a (Making, drawing, or uttering check, draft or order without sufficient funds) [10 U.S.C. § 923a],
124 (Maiming) [10 U.S.C. § 924],
126 (Arson) [10 U.S.C. § 926],
127 (Extortion) [10 U.S.C. § 927],
128 (Assault) [10 U.S.C. § 928],
129 (Burglary) [10 U.S.C. § 929],
130 (Housebreaking) [10 U.S.C. § 930], and
131 (Perjury) [10 U.S.C. § 931].
b. The term “military-only offense” means those offenses prescribed under Articles:
77 (Principals) [10 U.S.C. § 877],
78 (Accessory after the fact) [10 U.S.C. § 878],
80 (Attempts) [10 U.S.C. § 880],
81 (Conspiracy) [10 U.S.C. § 881],
82 (Solicitation) [10 U.S.C. § 882],
83 (Fraudulent enlistment, appointment, or separation) [10 U.S.C. § 883],
84 (Unlawful enlistment, appointment, or separation) [10 U.S.C. § 884],
85 (Desertion) [10 U.S.C. § 885],
86 (Absence without leave) [10 U.S.C. § 886],
87 (Missing movement) [10 U.S.C. § 887],
88 (Contempt toward officials) [10 U.S.C. § 888],
89 (Disrespect towards superior commissioned officer) [10 U.S.C. § 889],
90 (Assaulting or willfully disobeying superior commissioned officer) [10 U.S.C. § 890],
91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) [10 U.S.C. § 891],
92 (Failure to obey order or regulation) [10 U.S.C. § 892],
93 (Cruelty and maltreatment) [10 U.S.C. § 893],
94 (Mutiny or sedition) [10 U.S.C. § 894],
95 (Resistance, flight, breach of arrest, and escape) [10 U.S.C. § 895],
96 (Releasing prisoner without proper authority) [10 U.S.C. § 896],
97 (Unlawful detention) [10 U.S.C. § 897],
98 (Noncompliance with procedural rules) [10 U.S.C. § 898],
99 (Misbehavior before the enemy) [10 U.S.C. § 899],
100 (Subordinate compelling surrender) [10 U.S.C. § 900],
101 (Improper use of countersign) [10 U.S.C. § 901],
102 (Forcing a safeguard) [10 U.S.C. § 902],
103 (Captured or abandoned property) [10 U.S.C. § 903],
104 (Aiding the enemy) [10 U.S.C. § 904],
105 (Misconduct as prisoner) [10 U.S.C. § 905],
107 (False official statements) [10 U.S.C. § 907],
108 (Military property of United States - Loss, damage, destruction, or wrongful disposition) [10 U.S.C. § 908],
109 (Property other than military property of United States - Waste, spoilage, or destruction) [10 U.S.C. § 909],
110 (Improper hazarding of vessel) [10 U.S.C. § 910],
112 (Drunk on duty) [10 U.S.C. § 912],
112a. (Wrongful use, possession, etc., of controlled substances) [10 U.S.C. § 912a],
113 (Misbehavior of sentinel) [10 U.S.C. § 913],
114 (Dueling) [10 U.S.C. § 914],
115 (Malingering) [10 U.S.C. § 915],
116 (Riot or breach of peace) [10 U.S.C. § 916],
117 (Provoking speeches or gestures) [10 U.S.C. § 917],
132 (Frauds against the United States) [10 U.S.C. § 932],
133 (Conduct unbecoming an officer and a gentleman) [10 U.S.C. § 933],
134 (General article) [10 U.S.C. § 934], and
Any other offense listed under the Articles without a civilian equivalent.
c. The Articles and the implementing regulations adopted by the Adjutant General shall be of the same force and effect as if they had been set forth at length in this section.
(3) When an act or omission constitutes a violation of both this subchapter and another law of Delaware or local, municipal law or ordinance foreign or domestic, a court-martial may be initiated only after the Attorney General or other civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached.
(c) These courts shall use the forms and procedures as established for similar courts of the Army and Air Force of the United States, as adopted by regulation by the Adjutant General and which regulations shall conform as far as practicable to the UCMJ (10 U.S.C. § 801 et seq.) and the Manual for Courts-Martial of the United States.
(d) The Adjutant General may designate 1 or more current or retired officers of the Delaware National Guard who is/are/were qualified members of the Judge Advocate General Corps as “Military Judge” for state military justice purposes.
A retired officer serving as “Military Judge,” while acting in such capacity, must receive a sum equal to the daily pay and allowance of the rank they held when they retired from the Delaware National Guard.
(e) The Delaware National Guard Judge Advocate General Corps shall have responsibility to prosecute military offenses and military-only offenses in a trial by courts-martial. Members of the Delaware National Guard Judge Advocate General Corps must be members in good standing of the bar of the highest court of a state and certified or designated as a judge advocate in the Judge Advocate General’s Corps of the Army, Air Force, Navy, Marine Corps, or Coast Guard, or a reserve component of one of these.
(f) Any person convicted of a military offense or a military-only offense in a court-martial pursuant to this section may appeal a final decision of a general or special courts-martial to the Delaware Superior Court in accordance with the laws of Delaware. A decision of a general or special courts-martial becomes final on the date a sentence is acted upon as specified in §§ 152 and 155 of this title, or, when approval of the Governor is also required as specified in § 156 of this title, on the latter date that the Governor approves the sentence. In accordance with Rule 39(a) of the Rules of Criminal Procedure for the Superior Court of the State of Delaware, all appeals to the Delaware Superior Court shall be taken within 15 days from the date the general or special courts-martial decision becomes final. In addition to the time restriction in Rule 39(a) of the Rules of Criminal Procedure for the Superior Court of the State of Delaware, Rule 39(c) “On the record,” and (h) “Dismissal” shall apply in any appeal of a general or special courts-martial. If, however, the Delaware Adjutant General was not the convening authority of a special court-martial, the defendant must first appeal the decision of a special court-martial to the Delaware Adjutant General within 15 days of the date the convening authority acts upon the sentence, and once the Delaware Adjutant General has rendered a final decision, may further appeal to the Delaware Superior Court in accordance with the laws of Delaware.
Del. Code tit. 20, § 152 General courts-martial.
(a) The Governor or Adjutant General may convene a general court-martial by appropriate order.
(b) A general court-martial may impose a sentence of:
(1) A fine of not more than the member’s pay and allowances for 24 unit training assemblies;
(2) Forfeiture of the member’s pay and allowances for up to 24 unit training assemblies;
(3) A reprimand;
(4) Dismissal, dishonorable discharge or a bad conduct discharge;
(5) Reduction of any noncommissioned officer or enlisted person to any rank;
(6) A sentence of confinement in accordance with the limitations set forth in § 155 of this title; or
(7) Any combination of these punishments.
(c) Any sentence imposed by a general court-martial shall not become effective until acted upon by the Adjutant General in accordance with the Manual for Courts-Martial of the United States.
Del. Code tit. 20, § 153 Special courts-martial.
(a) A commander of the rank of O-6 (Colonel), the commander of any other unit specifically designated by the Adjutant General, the Assistant Adjutant General for the Army National Guard, the Assistant Adjutant General for the Air National Guard and the Adjutant General may convene a special court-martial by appropriate order.
(b) A special court-martial may impose any sentence authorized for a general court-martial, including a bad-conduct discharge, except that fines and forfeiture are limited to 12 unit training assemblies.
(c) Any sentence imposed by a special court-martial shall not become effective until acted upon by the convening authority in accordance with the Manual for Courts-Martial of the United States.
(d) A special court-martial shall have jurisdiction to try any member of the Delaware National Guard.
Del. Code tit. 20, § 154 Summary courts-martial.
(a) A commander of any unit of the Delaware National Guard may be appropriate order convene a summary court-martial consisting of 1 officer.
(b) A summary court-martial may impose a sentence of:
(1) A fine of not more than the member’s pay and allowances for 4 unit training assemblies.
(2) Forfeiture of the member’s pay and allowances for up to 4 unit training assemblies.
(3) Reduction of any noncommissioned officer or enlisted person to any rank within the promotional authority of the appointing authority; or
(4) Any combination of these punishments.
(c) Any sentence imposed by a summary court-martial shall not become effective until acted upon by the convening authority in accordance with the Manual for Courts-Martial of the United States.
Del. Code tit. 20, § 155 Penalties.
(a) When not in federal service under Title 10 of the United States Code, the punishment which a court-martial may direct for an offense shall not exceed such limits as prescribed by the Uniform Code of Military Justice (UCMJ) subject to the limitations in this section.
(b) For all offenses, the penalty shall be as provided in the UCMJ except that the maximum sentence of confinement shall not exceed 1 year.
(c) Any sentence to incarceration by a general or special court-martial shall not be executed until acted upon by the convening authority in accordance with the Manual for Courts-Martial of the United States.
(d) The Department of Correction shall receive and confine all military offenders committed to its custody by order of court-martial approved by the Adjutant General.
Del. Code tit. 20, § 156 Sentences which require Governor’s approval.
When not in federal service under Title 10 of the United States Code, sentence of dismissal or dishonorable or bad conduct discharge from the service imposed by court-martial shall not be executed until approved by the Governor.
Del. Code tit. 20, § 157 Process.
The President, Military Judge, or Summary Court Officer of any court-martial convened under this title may:
(1) Issue warrants, subpoenas or subpoenas duces tecum to compel appearance at a court-martial or to enforce the Court’s judgments.
(2) Issue such other process as is necessary to exercise the Court’s jurisdiction.
(3) Punish persons subject to the Delaware Code of Military Justice for contempt of court under the procedures of the Uniform Code of Military Justice; provided, however, that no punishment imposed may exceed that authorized for violation of § 1271 of Title 11.
Any warrant or subpoena under this section may be served or executed by the Sheriff, any constable, law-enforcement officer, military policeman or provost marshal designated for this purpose.
Del. Code tit. 20, § 158 Disobedience of subpoenas.
(a) Any member of the Delaware National Guard who fails to obey a subpoena issued by a court-martial shall be punished by the court-martial under the terms of the Uniform Code of Military Justice as adopted by regulation of the Delaware National Guard.
(b) Any person not a member of the Delaware National Guard who wilfully fails to obey a subpoena issued by a court-martial shall be guilty of criminal contempt of court under § 1271(3) of Title 11.
Del. Code tit. 20, § 159 Payment of fines.
(a) Upon approval of the sentence of any court-martial to pay a fine by the court-martial convening authority, the fine so imposed shall be immediately due and payable to the State of Delaware General Fund, through the commander of the member’s unit to be forwarded to the Adjutant General.
(b) Any fine or forfeiture imposed by sentence of court-martial or nonjudicial punishment collected by the Adjutant General shall be paid over to the Delaware National Guard Central Fund.
Del. Code tit. 20, § 160 §§ 160, 161. [Reserved.]
Del. Code tit. 20, § 162 Violation of duties by sheriffs, constables and wardens.
Whoever, being a sheriff, constable or prison warden neglects or refuses to:
(1) Execute any process, or
(2) Make proper return of all fines and penalties collected,
shall be fined $100 for each such offense for the use of this State.
Del. Code tit. 20, § 163 Nonjudicial punishment.
Any commanding officer of the Delaware National Guard, not in federal service under Title 10 of the United States Code, may, in addition to or in lieu of admonition or reprimand, impose nonjudicial punishment in a like manner and to the extent prescribed by Article 15 of the Uniform Code of Military Justice [10 U.S.C. § 815] and the Manual for Courts-Martial, United States, 2012, as amended, as adopted by regulation of the Delaware National Guard.
Del. Code tit. 20, § 171 Governor as Commander in Chief; call out of National Guard for state duty.
(a) When the Governor has determined that it is in the best interest of the State, the Governor by order may:
(1) Call out any unit or units, member or members of the Delaware National Guard to serve in a state duty status to respond to any emergency situation.
(2) Call out any member or members of the Delaware National Guard to serve on state duty status to plan for any impending emergency.
(3) Call out any unit or units, member or members of the Delaware National Guard to serve on state duty for an emergency or impending emergency to fulfill obligations under any interstate emergency agreements or compacts; and such troops may be employed within or outside of Delaware as required by the agreement or compact.
(4) Call out units or members of the Delaware National Guard for training or other nonemergency function as deemed appropriate subject to funding availability.
(5) Call out any member sentenced to incarceration by a general or special court-martial to state active duty with no pay for the duration of the confinement pursuant to § 155 of this title.
(b) The Governor shall serve as commander-in-chief of the Delaware National Guard when it is not in federal service.
Del. Code tit. 20, § 172 Proclamation of state of insurrection.
Whenever any portion of the Delaware National Guard is employed in aid of the civil authority, the Governor, if in the Governor’s judgment the maintenance of law and order will thereby be promoted, may by proclamation declare the county or city in which the troops are serving, or any specified part thereof, to be in a state of insurrection.
Del. Code tit. 20, § 173 Requisition for military force; neglect to respond to notice.
All requisitions for military force shall be made known to the forces whose services are required by the commanding officer thereof, and, upon refusal of those notified to attend the summons and perform the duty required, they shall be liable to such punishment as a general court-martial may determine.
Del. Code tit. 20, § 174 Field maneuvers, target practice or review.
Repealed by 72 Del. Laws, c. 106, § 21, effective July 1, 1999.
Del. Code tit. 20, § 175 Exemption from arrest; right-of-way.
No person belonging to the military forces of this State shall be arrested on any civil process while going to, remaining at or returning from any place at which such person may be ordered to attend for military duty when the Delaware National Guard has been called out upon state duty.
Any portion of the Delaware National Guard parading or performing any duty according to law shall have the right-of-way in any street or highway through which they may pass. The carriage of the United States mails, the legitimate functions of the police and the progress and operation of fire engines and fire departments shall not be interfered with thereby.
Del. Code tit. 20, § 176 Rules governing troops when called into service.
Whenever the troops are called into active federal duty, the officers and personnel shall be governed by the regulations of the United States Army and United States Air Force.
Del. Code tit. 20, § 177 Bounds from which civilians are excluded; offenses of civilians; penalties; jurisdiction.
(a) After the Delaware National Guard has been called out pursuant to this subchapter, the commanding officer thereof may fix certain bounds within which no spectator may enter without leave.
(b) Whoever intrudes within the limits fixed under this section, when forbidden to do so, or whoever, after entering within such limits by permission, conducts oneself in a disorderly manner or whoever resists a sentry or guard acting under orders to prevent such entry or disorderly conduct shall be fined not less than $10 nor more than $100, and the costs of prosecution, and civil contempt processes may be used to obtain payment of same.
(c) Whoever violates this section may be arrested by the commanding officer or by the commanding officer’s order.
(d) Justices of the peace shall have jurisdiction of offenses under this section.
Del. Code tit. 20, § 178 Immunity from civil and criminal liability.
(a) Neither this State, nor the National Guard of the State nor, except in cases of wilful misconduct, gross negligence or bad faith, the officers, members, agents or representatives thereof, engaged in any state duty pursuant to this subchapter, shall be liable, either civilly or criminally, for the death of or injury to persons, or for damage to property, as a result of such activity.
(b) The National Guard of the State and the officers, members, agents and representatives thereof, engaged in any state duty pursuant to this subchapter or of Chapter 31 of this title, shall have the authority to enforce any and all laws of this State and any and all ordinances of any municipality wherein such service is performed and shall be considered as officers of this State and of such municipality.
(c) If the National Guard of this State or any officer, member, agent or representative thereof is prosecuted by civil or criminal action, whether State or federal, for an act committed or performed by such organization or person while engaged in any state duty, pursuant to this subchapter or of Chapter 31 of this title, all the expense of the defense of such action or actions, including, without limitation, attorney’s fees, witnesses’ fees for the defense, defendant’s court costs and all costs for transcripts of records and abstracts thereof on appeal by the defense, shall be paid by the State; provided that the Attorney General of the State shall be first consulted in regard to, and approve of, the selection of the attorney for the defense; and provided, further, that the Attorney General of the State may, if the Attorney General of the State sees fit, assume the responsibility for the defense of such member and conduct the same personally or by any 1 of the Attorney General assistants. The expenses of such defense shall be paid by the State Treasurer from any moneys not otherwise appropriated, upon warrants therefor signed by the Adjutant General and countersigned by the Attorney General.
(d) If, as a result of criminal or civil action based all, or in part, on federal law, the National Guard of the State or any officer, member, agent or representative thereof is subject to liability which would not result if this section were applicable, such agency or person shall be completely indemnified and held harmless by the State.
(e) For purposes of this section, no officer, member, agent or representative of the National Guard of the State shall be held to have acted in bad faith, with gross negligence or with wilful misconduct if such person believed at the time of such act that such act was reasonably necessary to comply with this subchapter or Chapter 31 of this title, or any order, rule or regulation promulgated pursuant to such subchapter and chapter or protect such officer, member, agent or representative, other persons or property.
Del. Code tit. 20, § 179 Waiver of late fees for state-issued licenses.
(a) No National Guard member or reservist who is called to active duty outside of the State, pursuant to the provisions of this subchapter, shall be liable for the payment of any late fee for the renewal of a state-issued license if the state-issued license expired while the service member was deployed outside of the State, so long as the service member presents the appropriate National Guard credentials to the State agency responsible for issuing the license, and pays the license renewal fee, within 90 days of the service member’s return to the State or termination of service.
(b) For purposes of this section only, “state-issued license” includes, but is not limited to, vehicle registrations and driver’s licenses issued pursuant to Title 21, hunting, trapping and fishing licenses issued pursuant to Title 7, and professional licenses issued pursuant to Title 24.
Del. Code tit. 20, § 181 Service pay and expenses during emergency service
(a) For every day of service while on State duty on account of an emergency or impending emergency, as listed in § 171 of this title, each enlisted member, officer or warrant officer of the Delaware National Guard shall receive a sum equal to twice the per diem, pay and allowances that military personnel of like grade and length of service in the United States military would be entitled to receive for a similar period of service. For state duty outside of emergency or impending emergency responses, including training or other nonemergency response authorized by the Adjutant General, members of the Delaware National Guard shall receive a sum equal to the per diem, pay, and allowances that military personnel of like grade and length of service in the United States military receive for a similar period of service, with the exception of radiological emergency preparedness (REP) events. For REP events, members of the Delaware National Guard shall receive a sum equal to allowances and twice the base pay.
(b) Service pay for such emergencies and nonemergencies and any expenses incidental to mobilization shall be paid by the State Treasurer from any moneys not otherwise appropriated, upon warrants therefor signed by the Adjutant General and countersigned by the Governor.
Del. Code tit. 20, § 182 Disability and death benefits for injury or death occurring in service of the State.
(a) As used in this section, the phrase “service of the State” includes duty pursuant to § 171 of this title as well as attendance at military school under proper orders, participating in armory drill, special ceremonies and field training unless otherwise designated by the United States government.
(b) If any officer or soldier belonging to any regiment, company, or detachment of the Delaware National Guard is wounded or disabled in the service of the State when called into such service, the member shall receive compensation from the State at the rate provided in Chapter 23 of Title 19 for the type of injuries sustained.
(c) If any officer or enlisted member of the Delaware National Guard is killed in the service of the State, a pension shall be awarded to the spouse or next of kin, as the case may be, in accordance with the provisions of § 2330 of Title 19.
(d) Such compensation or pension shall be based either upon civilian earning capacity or wages or upon military pay scale, whichever is greater.
(e) Any such compensation or pension shall be paid by the State Treasurer from any moneys not otherwise appropriated upon warrants therefor signed by the Adjutant General and countersigned by the Governor.
Del. Code tit. 20, § 183 Uniform and equipment allowances for officers [Repealed].
Del. Code tit. 20, § 184 Unit fund grant.
The Delaware National Guard shall receive an appropriation annually for the unit funds of said Guard. The funds received shall be allocated to each unit fund on a proportional basis based upon the unit’s authorized strength. The funds shall be expended with the approval of the Adjutant General to enhance the morale, welfare and recreation of assigned personnel.
Del. Code tit. 20, § 185 Exemption from state merit system.
Personnel employed by the State to support the operations and maintenance of the National Guard shall be exempt from the state merit system and shall be paid in accordance with like positions as Department of Defense employees. Such employees shall be governed in a like manner in accordance with the rules and regulations which pertain to Department of Defense employees except for: retirement benefits, health benefits, severance packages, and unused sick leave; all of which shall be administered in the same manner as state merit system employees. For all state positions in the National Guard, the Adjutant General or designee will determine whether the position will be classified to be governed in a like manner to either a Department of Defense employee position established under Title 5 of the United States Code or a Department of Defense position established under Title 32 of the United States Code.
Del. Code tit. 20, § 186 Compensation for unused sick leave [Repealed].
Del. Code tit. 20, § 187 Service Members’ Life Insurance Reimbursement Fund.
(a) The “Service Members’ Life Insurance Reimbursement Fund” is created in the state treasury. The fund shall consist of legislative appropriations to the fund; gifts, grants, donations and bequests to the fund; and income from investment of the fund. Expenditures from the fund shall be made in accordance with rules promulgated by the Secretary of Finance and with the approval of the Adjutant General of the Delaware National Guard or the Adjutant General’s authorized representative.
(b) The fund shall be administered by the Delaware National Guard, and money in the fund is appropriated to the Delaware National Guard for the purpose of reimbursing eligible members of the Delaware National Guard for premiums paid for benefits under the service members’ group life insurance program pursuant to 38 U.S.C. § 1965 et seq., as amended, and not otherwise reimbursed by the federal government.
(c) The Delaware National Guard shall adopt rules necessary to determine eligibility for reimbursement from the service members’ life insurance reimbursement fund and to implement a reimbursement program. Only members of the Delaware National Guard serving on active duty for longer than 30 days as a result of a federal mobilization or as a result of a state mobilization ordered by the Governor shall be deemed eligible.
(d) Nothing in this section is intended to alter, amend or change the eligibility or applicability of the service members’ group life insurance program pursuant to 38 U.S.C. § 1965 et seq., as amended, or any rights, responsibilities or benefits thereunder.
Del. Code tit. 20, § 188 . State-sponsored life insurance.
All members of the Delaware National Guard will be entitled to receive an annual briefing on the state-sponsored life insurance benefit program.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title20/c001/sc01/index.htmlFetched: 10/4/2026