How can State Defense Force members be subject to the UCMJ?

2020-05-17T19:39:43-04:00

These soldiers (Airmen, sailors) have no federal status or benefits. They cannot be denied federally. They can't even use the PX or other facilities on base although some Commanders particularly on bases with a lot of National Guard do let them. So I don't see any legal logic to how they can be subject to a federal law. The only thing I could think of is that the states would have to have a parallel set of of laws that a part of state code. However California State Guard members are subject to the UCMJ when on duty!

Response by SFC Allen Ginger made May 17 at 2020 7:54 PM

2020-05-17T19:54:17-04:00

The state of California national guard adopted the UCMJ.

Response by LTC Private RallyPoint Member made May 17 at 2020 8:12 PM

2020-05-17T20:12:41-04:00

Meant to say "deployed" not "denied"

Response by MSgt Steven Holt, NRP, CCEMT-P made May 17 at 2020 8:46 PM

2020-05-17T20:46:29-04:00

That's an interesting question LTC Private RallyPoint Member. I was part of the TN State Guard for a couple years after leaving Federal service. We were not subject to the UCMJ but could be prosecuted under applicable TN State or Federal laws. I'm wondering if CA adopted an agreement stating members would be subject to UCMJ actions while performing official duties? Even then, a competent attorney could most likely get the charges dismissed since the members are not under Federal control.

Response by SFC Ralph E Kelley made May 17 at 2020 9:32 PM

2020-05-17T21:32:47-04:00

States that authorize either naval or military organized militia forces not in the State's National Guard are empowering individuals under state authority to act within the state and adjoining boundary regions of adjacent states (on request and coordination) and countries (on order of the state governor) to protect that states citizens and property from robbery, brigands and invasions. Normally these State defense Forces and County Militias are organized under the states authority. State defense Forces are typically assigned under the State Police, Highway Patrols and Rangers.
These are collectively known as the State Guard. State Guard organizations are organized, trained, equipped, armed, disciplined, and administered under each State's own sovereign authority, and are not subject to a Federal recall to active duty, nor are the individual members subject to the UCMJ in their capacities as members of the State Guard. State Guard organizations typically are organized similarly to a military force, and usually report to the senior National Guard officer in each State, known as the Adjutant General. In this sense, the State Guard are auxiliaries to each State's Constitutionally authorized organized militia forces, the Army and Air Force National Guard. In some states such as the Commonwealth of Kentucky County Judge-Executives have the authority granted to them to call up and deputize their county's citizens into County Militia Troops, Squadrons and Regiments.
The State Guard is often specialized, based on each State's requirements, for missions such as wilderness search and rescue, light aviation, forest firefighting, law enforcement, or general emergency management roles. Under each State's own authorities, State Guard members may be ordered to State Active Duty (SAD), in a status similar to National Guard members in a Title 32 status but solely under State authority and discipline, and also may be provided with the training, equipment, and authority to act as law enforcement officers with powers of arrest. Each State sets the requirements to join, remain, be promoted or rewarded, and conditions of employment such as a minimum amount of duty performed in a year, and whether any duty is paid or non-paid, and whether the individuals are covered by various civil service or retirement pension plans. Most State Guard duty is performed without pay, in a volunteer status.
While the State Guard organizations are subject to recall to SAD, or other workforce requirements as imposed by their State, they are not subject to either partial or full mobilization authorities under Title 10. However, the individual State Guard members often have dual-status as both State Guard and a Federally recognized uniformed services member, such as a Texas State Guard officer who is also a retired US military officer. Such an individual could be recalled to active duty under both SAD as a State Guard member, or under one of the various authorities to recall retired or reserve military members to active duty (10 USC 688, various 10 USC 123XX authorities, and others), but not both because a Federal status trumps a State status. State Guard members could thus be subject to the UCMJ at all times under their Federal status, and under specific State military and civil/criminal codes under their State status.

Response by SGM Private RallyPoint Member made May 17 at 2020 9:36 PM

2020-05-17T21:36:01-04:00

UCMJ is incorporated into state law for state military reserves:

California Code, Military and Veterans Code - MVC § 560:
(a) The Uniform Code of Military Justice (Chapter 47 (commencing with Section 801 ) of Title 10 of the United States Code) and the rules and regulations adopted thereunder, together with the Manual for Courts-Martial, United States, 1984 (Executive Order 12473 of April 13, 1984, as amended), are hereby adopted as part of this code and shall be applicable to and govern the State Military Reserve.

Response by LTC Private RallyPoint Member made May 17 at 2020 9:53 PM

2020-05-17T21:53:17-04:00

the state not "estate"

Response by Capt Gregory Prickett made May 17 at 2020 10:05 PM

2020-05-17T22:05:52-04:00

They are not subject to the UCMJ, per its own terms in Article 2. The State of California has its own military laws which appear to have adopted the UCMJ as a law of the state, and enforceable on the state militia, as modified by statute or by regulation adopted by the governor. So while it says that they are subject to the UCMJ, they are in fact being punished under state law, not federal.

Response by CW3 Private RallyPoint Member made May 17 at 2020 11:03 PM

2020-05-17T23:03:37-04:00

Make no mistake sir: While most state forces are similar in how the operate and what applies, they are not all the same. While both State Defense Forces (State owned/operated-only militias) and National Guard members in Title 32 status are technically not subject to the UCMJ, it still applies for a couple of reasons. Just like you alluded to, there is usually an applicable state law in every state which mirrors the UCMJ. To follow-up on your California example, under the "California Military & Veterans Code" (CMVC), there are many laws which are virtually identical to the UCMJ in addition to its court martial structure. In addition to this, it adds a caveat that essentially says that the federal UCMJ (under Title 10 USC) also applies to these state owned Soldiers, making anything left out, still covered under the UCMJ by some type of transitive legal association. Of course, there is much less stigma with a National Guard Soldier being chaptered out or otherwise found guilty for a UCMJ offense than an active duty Soldier (and anything serious--such as murder) would get charged in a civilian court for those part time Soldiers anyway. I am sure you are also aware that National Guard Soldiers (not the state-only militias) have a dual status, and can be federalized under Title 10 USC. When in this status, they are completely under the jurisdiction of the federal UCMJ as any other active duty Soldier would be.

Response by SFC Michael Hasbun made May 17 at 2020 11:39 PM

2020-05-17T23:39:24-04:00

LOL...no. They have nothing to do with the military. It's just Cosplay..

Response by CPO Jeffrey Bohemier made May 18 at 2020 2:43 AM

2020-05-18T02:43:35-04:00

The UCMJ is part of the Federal Armed Forces structure. As California is part of the United States, they shouldn’t get special privileges or exemptions that are different from any other state, regardless of that state’s laws. That’s because Federal law always has precedence over state law regardless of the state law in question. That being said, California certainly retains the right to mirror Federal Laws word for word for usage within the state. It’s just a matter of realigning of the statute numbers to coincide with state laws already on the books. This is certainly true of any state.

Response by LTC Laura Wickett made May 18 at 2020 3:54 PM

2020-05-18T15:54:05-04:00

The State Defense Force is an all volunteer force and does not fall under the authority of the UCMJ. However, as LTC Dolgin mentioned each State has a parallel system that covers the standard behavior of the volunteers.

Response by SSgt Elihu Lowery made Jan 7 at 2021 7:29 PM

2021-01-07T19:29:31-05:00

State Defence Forces are subject to their States UCMJ. Which covers both the National Guard members when on State Active Duty and State Guard/State Defense Force members when on State Orders.