Military justice in the National Guard: a survey of the laws and procedures of the states, territories, and the District of Columbia

Nothing can be more hurtful to the service, than the neglect of discipline; for that discipline, more than numbers, gives one army the superiority over another. (1)

I. Introduction (2)

Members of the U.S. Armed Forces are subject to the Uniform Code of Military Justice (UCMJ) at all times while serving on active-duty in the military. (3) Similarly, servicemembers in the organized reserves of the Army, Navy, Marine Corps, Air Force, and Coast Guard (4) are also subject to the UCMJ, while serving in an active military status. (5)

An exception to this jurisdictional principle regarding the UCMJ is the applicability to Soldiers and Airmen serving in the Army and Air National Guards (6) of the individual states. (7) Unless serving in a federal active-duty status under Title 10 of the United States Code, members of the National Guard are not subject to the UCMJ and military justice action or disciplinary measures must be taken by the individual states. (8)

Those military justice actions taken by the states are often markedly different than courts-martial or nonjudicial punishment under the UCMJ. This article provides an overview of the National Guard military justice systems among the states, territories, and the District of Columbia. (9) Specifically, the overview addresses nonjudicial punishment, all levels of courts-martial including pre-trial matters, courts-martial personnel, trials, post-trial procedures, and appellate matters. The following discussions examine the similarities and differences with the UCMJ and state military justice systems as well as the procedural and substantive differences in the two systems of criminal justice. Additionally, a recently proposed Model State Code of Military Justice will be examined in contrast to existing state laws. (10)

A. The Army National Guard

The Army National Guard of the United States is part of the organized militia which is "a land force" that is "trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution," which "is organized, armed, and equipped wholly or partly at Federal expense," and is also "federally recognized." (11) The Army National Guard is made up of more than 340,000 Soldiers. (12) Of those 340,000 plus Soldiers, there are more than 600 Judge Advocates serving in the Army National Guard. (13)

While the National Guard is a component of the U.S. Armed Forces, it is also the militia of the individual state when not serving in a federal status. (14) More simply put, unless called into federal service under Title 10, the National Guard remains primarily under the control of the states and their governors. Accordingly, discipline of National Guard Soldiers and military justice actions are under the exclusive jurisdiction of the state when not in federal service. (15)

In July of 2003, the structure of each state's National Guard Headquarters was changed from their previous make-up. The Chief of the National Guard Bureau directed that states transition from separate Army and Air National Guard commands into a joint headquarters. (16) Consequently, as joint commands, most states administer military justice in the same manner for both the Army and Air National Guard components. (17)

B. Historical Overview

The militia system in the United States can trace its roots back to the earliest settlers on this continent. As early as the 1500s, militias were formed by Spanish settlers. (18) In 1565, Saint Augustine, Florida, was established as the first Spanish military presidio (headquarters) in what would become the United States. (19) More than four hundred years later, Saint Augustine retains its historic ties to the militia system as the location of the Florida National Guard Headquarters. (20)

While the term "National Guard" was first used in 1824, (21) the framework for the modern National Guard was established by federal legislation in 1903. (22) The Militia Act of 1903 (also known as the Dick Act (23)) secured the federal nexus between state militias and the United States military by providing funding and equipment and requiring the militias to standardize their training and structure. (24) It was then that the National Guard first became subject to call-up for federal service other than on a volunteer basis. (25) When not in federal service, responsibility for military justice action and discipline of militia troops remained with the states. (26)

Following World War II, Congress enacted the UCMJ. (27) During the floor debates about the UCMJ, the issue of its applicability to the National Guard was specifically addressed for the record:

Mr. HOLLAND. I should like to ask the Senator from Tennessee if it is correct to say for the record that there is nothing in this bill which is applicable to the National Guard of the several States?

Mr. KEFAUVER. There is not, unless members of the National Guard are on Federal service.

Mr. HOLLAND. Does the Senator mean by his answer to state that the National Guard and no components of personnel therefrom would be affected by or subject to any of the provisions of this bill until and unless they have been actually federalized?