Bill Text: NC H250 | 2011-2012 | Regular Session | Chaptered
Bill Title: Various Clarifying Militia Law Amendments
Spectrum: Moderate Partisan Bill (Democrat 5-1)
Status: (Passed) 2011-06-23 - Ch. SL 2011-195 [H250 Detail]
Download: North_Carolina-2011-H250-Chaptered.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
SESSION LAW 2011-195
HOUSE BILL 250
AN ACT to make references in chapter 127A of the north carolina general statutes to federal and state military organizations proper and uniform, as directed by session law 2009‑281, as amended by session law 2010‑152, and to make other clarifying, conforming, and technical amendments, as recommended by the general statutes commission.
The General Assembly of North Carolina enacts:
SECTION 1.(a) Chapter 127A of the General Statutes reads as rewritten:
"Chapter 127A.
"Militia.
"Article 1.
"Classification of Militia.
"§ 127A‑1. Composition of militia.
The militia of the State shall
consist of all able‑bodied citizens of the State and of the United States
and such all other able‑bodied persons who have or shall
declare their intention to become citizens of the United States, subject to such
the qualifications as may be hereinafter prescribed, prescribed
in this Chapter, who shall be drafted into said the militia
or shall voluntarily accept commission, appointment, or assignment to duty
therein.
"§ 127A‑3. Organized militia; National Guard.
The North Carolina National Guard,
both army and air, Army and Air, shall consist of regularly
commissioned, warrant and enlisted personnel between such ages as may be within
the age limits established by regulations promulgated by the secretary of
the appropriate service and shall be organized, governed, armed, equipped and
have such the duties and responsibilities as hereinafter
provided.provided in this Chapter.
"§ 127A‑4. Organized militia; naval militia.
The naval militia shall consist of
regularly commissioned, warrant and enlisted personnel between such ages as
may be within the age limits established by regulations promulgated
by the secretary of the appropriate service and shall be organized, governed,
armed, equipped and have such the duties and responsibilities as
hereinafter provided.provided in this Chapter.
"§ 127A‑5. Organized militia; State defense militia.
The State defense militia shall
consist of commissioned, warrant and enlisted personnel called, ordered,
appointed or enlisted therein by the Governor under the provisions of Article 5
of this Chapter and shall be organized, governed, armed, equipped and have such
the duties and responsibilities as hereinafter provided.provided
in this Chapter.
"§ 127A‑6. Organized militia; historic military commands.
Historic military commands are
those historic groups which remain active by meeting at least once a month and
which follow military procedures. Only such groups as may be designated
by the Governor shall fall within this branch of the militia. Any maximum age
limits prescribed by this Chapter shall not be applicable do not
apply to members of historic military commands.
"§ 127A‑7. Composition of unorganized militia.
The unorganized militia shall
consist of all other able‑bodied citizens of the State and of the United
States and such all other able‑bodied persons who have or
shall declare their intention to become citizens of the United States, who
shall be at least 17 years of age, except those who have been convicted of a
felony or discharged from any component of the military under other than
honorable conditions.
"§ 127A‑8. Exemptions from duty with the militia.
The officers, judicial and
executive, of the government of the United States and the State of North
Carolina, persons in the military or naval service of the United States,
customhouse clerks, persons employed by the United States in the transmission
of mail, artificers and personnel employed in the armories, arsenals and navy
yards of the United States, pilots, and mariners actually employed in
the sea service of any citizen or merchant within the United States shall be
exempt from duty with the militia without regard to age, and all persons who,
because of religious beliefs, shall claim exemption from duty with the
militia, if the conscientious holding of such the belief by such
that person shall be is established under such the
regulations as are or may be prescribed for exemption from service
with the armed forces Armed Forces of the United States, shall be
exempted from militia service in a combatant capacity; but no person so
exempted shall be exempt from militia service in any capacity that shall be
declared noncombatant for the armed forces Armed Forces of the
United States.
"§ 127A‑9. Number of troops authorized.
In time of peace the State shall
maintain only such those troops as may be that are authorized
by the President of the United States; but nothing contained in this Chapter
shall be construed as limiting the rights of the State in the use of the North
Carolina National Guard or the State defense militia or both within its
borders in time of peace. Nothing contained in this Chapter shall prevent the
organization and maintenance of State police or constabulary.
"§ 127A‑10. Corps entitled to retain privileges.
Any corps of artillery, cavalry,
or infantry existing in the State on the passage of the act of Congress of May
8, 1792, which by the laws, customs, or usages of the State has been in
continuous existence since the passage of such that act, under
its provisions and under the provisions of section 232 and sections 1625 to
1660, both inclusive, of Title 16 of the revised statutes of 1873 and the act
of Congress of January 21, 1903, relating to the militia, shall be allowed to
retain its ancient privileges, subject, nevertheless, to all duties required by
law of the militia; but such these organizations may be a part of
the North Carolina National Guard, and entitled to all the privileges of
this Chapter, and shall conform in all respects to the organization,
discipline, and training of the North Carolina National Guard in time of
war. 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.
"Article 2.
"General Administrative Officers.
"§ 127A‑17. Commander in chief to prescribe regulations.
The commander in chief shall have
the power and it shall be his dutythe duty, from time to time time,
to issue such orders and to prescribe such regulations relating
to the organized and unorganized militia as will causethat are
necessary for the same militia at all times to conform to the
federal requirements of the United States government relating thereto.
"§ 127A‑17.1. Confidentiality of National Guard records.
Notwithstanding any provision of
Chapter 143B,143B of the General Statutes, no records of the North
Carolina National Guard in the Department of Crime Control and Public
Safety shall be disclosed or used for any purpose except for official purposes,
and no records shall be disclosed, destroyed or used in any manner which is in
violation of any existing federal law or regulation. Nothing in this Chapter
shall convert records which are the property of the federal government into
State property.
"§ 127A‑18. Personal staff of Governor.
The Governor may detail not more than 10 active North Carolina National Guard members and two active naval militia members who shall in addition to their regular duties, perform the duties of aides‑de‑camp on the personal staff of the Governor.
"§ 127A‑19. Adjutant General.
The military head of the militia
shall be the Adjutant General who shall hold the rank of major general. The
Adjutant General shall be appointed by the Governor in his the
Governor's capacity as commander in chief of the militia, in consultation
with the Secretary of Crime Control and Public Safety, and shall serve at the
pleasure of the Governor. No person shall be appointed as Adjutant General who
has less than five years' commissioned service in an active status in any
component of the armed forcesArmed Forces of the United States.
The Adjutant General, while holding such this office, may be a
member of the active North Carolina National Guard or naval militia.
Subject to the approval of the
Governor and in consultation with the Secretary, DepartmentSecretary of
Crime Control and Public Safety, the Adjutant General may appoint (i) a deputy
adjutant general who may hold the rank of major general, and (ii) an assistant
adjutant general for Army National Guard, and an assistant adjutant general for
Air National Guard, each of whom may hold the rank of brigadier general and who
shall serve at the pleasure of the Governor. The Adjutant General may also
employ such staff members and other personnel as may be authorized
by the Secretary and funded.
"§ 127A‑21. United States property and fiscal officer.
(a) The Governor of the
State, in consultation with the Secretary of Crime Control and Public Safety,
shall appoint, designate, or detail, subject to the approval of the Secretary
of the Army and the Secretary of the Air Force, a qualified commissioned
officer of the North Carolina National Guard who is also a commissioned officer
of the Army National Guard of the United States or the Air National Guard of
the United States, as the case may be, to be the United States property and
fiscal officer for North Carolina. If the officer is not on active duty, the
President may order him the officer to active duty, with his the
officer's consent, to serve as a property and fiscal officer.
(b) The status of the
United States property and fiscal officer is that of a reserve commissioned
officer of the army or air force,United States Army or Air Force, as
appropriate, on extended active duty and detailed for duty with the National
Guard Bureau for administrative purposes. In his the officer's capacity
as United States property and fiscal officer, he the officer will
function under the direction of and cooperate fully with the State Adjutant
General.
(c) The assumption and performance of duties and responsibilities, pay and allowances, and other personnel actions to include retention and retirement of an officer appointed and serving as the United States property and fiscal officer will be governed by regulations promulgated by the National Guard Bureau or pursuant to regulations promulgated by the secretary of the appropriate service.
"§ 127A‑22. North Carolina property and fiscal officer.
(a) Upon full mobilization
of the North Carolina National Guard into federal service to the extent that
the functions of a United States property and fiscal officer no longer exist or
are authorized under federal statutes, the Governor of the State, in consultation
with the Secretary of Crime Control and Public Safety, may appoint, designate
or detail a qualified individual to serve at the pleasure of the Governor as
the North Carolina property and fiscal officer for any composition of a
nonfederally recognized State National Guard or State defense militia organized
under the provisions of G.S. 127A‑1 et seq.this Chapter.
(b) In consideration of his
the North Carolina property and fiscal officer's services for the
responsibility, care, utilization, and issue of State or federal facilities and
property, under the jurisdiction of the State of North Carolina, the North
Carolina property and fiscal officer shall receive from the State such a
just and proper salary as the Governor may authorize to be just and
proper;authorized by the Governor; the salary to constitute a charge
upon appropriations made to the Department of Crime Control and Public Safety.
(c) The North Carolina property
and fiscal officer for North Carolina shall be an employee of the
Department of Crime Control and Public Safety. He The officer shall
be required to give good and sufficient bond to the State, the amount thereof
to be determined by the Governor, for the faithful performance of his duties
and for the safekeeping and proper distribution of such the funds
and property entrusted to his the officer's care. He The
officer shall receipt for and account for all funds and property allotted
to his the officer's custody from the appropriation for military
purposes by State and federal agencies, and shall make such returns and
reports through the Secretary of Crime Control and Public Safety concerning same
the property and funds as may be required by the Governor or
State laws.
"§ 127A‑23. Commissions for commandants and officers at qualified educational institutions.
The Governor of North Carolina is
authorized to appoint and commission, as staff officers of the North Carolina
unorganized militia, the officers of any university, college, academy or other
educational institution which qualifies as herein provided.provided
in this section. Any university, college, academy or other educational
institution shall be qualified under this section when such the institution
has been regularly incorporated under and by virtue of the laws of North
Carolina; the institution, as a part of its courses of study, regularly teaches
military science and tactics; the Department of Defense at Washington, D.C.,
has detailed an officer of the armed forcesArmed Forces of the United
States as professor or assistant professor of military science and tactics;
the institution has been designated as qualified by the secretary of the
appropriate service and has been made a unit of the Senior or Junior Reserve
Officers' Training Corps, or the institution, not having a unit of the Reserve
Officers' Training Corps, has been approved and authorized by the Secretary of
Defense to participate in the National Defense Cadet Corps Training Program or
other military training programs under Title 10, United States Code, sections
3540 and 4651.
Any qualified institution desiring
the appointment of officers in the North Carolina unorganized militia shall
make application to the Governor setting forth all requisite facts as to its
qualifications, the names of the persons to be commissioned, the rank desired
for each, and the person's position at the institution. The application shall
be signed by the chancellor, president, superintendent or other presiding
official, under the seal of the institution. Upon receipt of the application,
the Governor may appoint and commission the officers of such a qualified
institution as follows: the chancellor, president, superintendent or other
presiding official, as colonel; the vice‑president, principal or other
officer second in authority, as major; the professors and members of the
faculty, as captains. The persons so commissioned shall have no connection with
the North Carolina National Guard or other military forces of the State,
nor shall they exercise any military authority other than in the discharge of
their duties at their respective institutions. The commissions issued under
this section may be terminated at the will of the Governor.
"Article 3.
"National Guard.
"§ 127A‑29. National Guard.
The North Carolina National
Guard class of the four classes of the organized militia as established under G.S. 127A‑2
is hereby designated the North Carolina National Guard.'North
Carolina National Guard.' Those elements of the North Carolina National
Guard which receive federal recognition by the United States government shall
hold a dual status both as State troops and as a reserve component of the armed
forcesArmed Forces of the United States. In its federal status, the
North Carolina National Guard shall be subject to federal laws and regulations
pertaining thereto. The Adjutant General shall insure compliance with such those
federal laws and regulations and with all State laws and orders of the
Governor not inconsistent with those federal laws and regulations.them.
"§ 127A‑30. Organization of National Guard units.
Except as otherwise specifically
provided by the laws of the United States, the organization of the North
Carolina National Guard, including the composition of all units thereof,its
units, shall be the same as that which is or may hereafter be prescribed
for the regular army or air forceUnited States Army or Air Force subject
in time of peace to such general exceptions as may be authorized
by the Secretary of Defense.
"§ 127A‑31. Location of units.
The Governor shall determine and
fix the location of the units and headquarters of the North Carolina National
Guard within the State; but no organization of the North Carolina National
Guard, members of which shall be entitled to and shall have received
compensation under the provisions of the act of Congress approved June 3, 1916,
as amended, shall be disbanded without the consent of the President, nor
without such that consent shall the commissioned or enlisted
strength of any such organization be reduced below the minimum that is now or
shall be hereafter prescribed therefor by the President.
"§ 127A‑32. Officers appointed and commissioned; oath of office.
All officers of the North Carolina National Guard shall be appointed and commissioned by the Governor as follows, viz.:
(1) Except as otherwise
specifically provided by the laws of the United States, the qualifications for
appointment as an officer in the North Carolina National Guard shall be
the same as those prescribed for the regular establishment, subject to such general
exceptions as may be authorized by the Secretary of Defense.
(2) Candidates for such appointment
shall make written application therefor on such forms as may be prescribed
by the secretary of the appropriate service, to the Adjutant General, State of
North Carolina, through command channels for comment by endorsements thereon.
(3) No person shall
hereafter be appointed an officer of the North Carolina National Guard
unless he the person has established to the satisfaction of a
board of officers his that person's physical, moral, and professional
qualifications to perform the duties of the grade and position for which
examined, subject to such general exceptions as may be authorized
by the Secretary of Defense. The board shall consist of three or more
commissioned officers of the appropriate service, appointed under such regulations
as may be promulgated by the secretary of the appropriate service.
(4) Candidates appointed as officers of the North Carolina National Guard shall take and subscribe to the following oath of office:
"I, (First Name Middle Name Last Name), do solemnly swear that I will support and defend the Constitution of the United States and the Constitution of the State of North Carolina against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will obey orders of the President of the United States and of the Governor of the State of North Carolina; 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 (Grade) (Branch) in the National Guard of the State of North Carolina upon which I am about to enter, so help me God."
"§ 127A‑33. Promotion of officers by seniority and in accordance with regulations.
The promotion of all officers
shall be by seniority as far as the same is practicable and to in
the best interest of the service within the organization, and in accordance
with regulations promulgated by the secretary of the appropriate service.
"§ 127A‑35. Elimination and disposition of officers; efficiency board; transfer to inactive status.
(a) Whenever the efficiency
or general fitness, including physical fitness, of a North Carolina National
Guard officer is in question, the Adjutant General, State of North Carolina, may
order him the officer to appear before an efficiency board to
determine whether or not the appointment of the officer should be withdrawn.
The efficiency board will be composed of not less than three commissioned
officers, all senior in rank to the officer undergoing investigation. A member
of the board serving in a legal or medical advisory capacity may be junior to
any person, other than a judge advocate, law specialist, or medical officer
being considered. The findings of an efficiency board are not final until
reviewed and approved by the Secretary of the Department of Crime
Control and Public Safety and the Governor of the State of North Carolina.
(b) Commissions of officers of the North Carolina National Guard may be vacated upon resignation, absence without leave for 30 days, pursuant to sentence of a court martial, or pursuant to regulations promulgated by the secretary of the appropriate service.
(c) Officers of the North
Carolina National Guard may, upon their own request, be transferred to the
inactive North Carolina National Guard, subject to such exceptions
as may be authorized by the Adjutant General, State of North Carolina,
or the Secretary of Defense.
"§ 127A‑37. Enlistments in National Guard; oath of enlistment.
(a) Enlistments in the North
Carolina National Guard shall be for such the periods and
subject to such the qualifications as prescribed by the secretary
of the appropriate service.
(b) Enlisted men persons
shall not be recognized as members of the North Carolina National
Guard until they shall have subscribed to the following oath of enlistment:
"I do hereby acknowledge to have voluntarily enlisted this ____day of______, ____, in the (Army) (Air) National Guard of the State of North Carolina and as a Reserve of the (Army) (Air Force) with membership in the (Army National Guard of the United States) (Air National Guard of the United States) for a period of (Years Months Days) under the conditions prescribed by law, unless sooner discharged by proper authority.
"I, (First Name Middle Name Last Name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and of the State of North Carolina 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 North Carolina and the orders of the officers appointed over me, according to law, regulations, and the Uniform Code of Military Justice, so help me God."
"§ 127A‑38. Discharge of enlisted personnel.
(a) Enlisted personnel
discharged from service in the North Carolina National Guard shall
receive a discharge in writing in such the form and with such the
classification as that is or shall be prescribed under
regulations promulgated by the appropriate service.
(b) Discharges may be given
prior to the expiration of terms of enlistment under such regulations as
may be prescribed by the Adjutant General, State of North Carolina, or
pursuant to regulations promulgated by the secretary of the appropriate
service.
"§ 127A‑39. Membership continued in the National Guard.
When called or ordered into federal service and discharged therefrom, members shall continue their membership in the North Carolina National Guard until the expiration of their enlistment or appointment, unless sooner terminated by proper authority.
"§ 127A‑40. Pensions for the members of the North Carolina National Guard.
(a) Every member and former
member of the North Carolina National Guard who meets the requirements hereinafter
set forthof this section shall receive, commencing at age 60, a
pension of ninety‑five dollars ($95.00) per month for 20 years'
creditable military service with an additional nine dollars fifty cents ($9.50)
per month for each additional year of such service; provided, however, that the
total pension shall not exceed one hundred ninety dollars ($190.00) per month.
The requirements for such a pension are that each member shall:
(1) Have served and qualified for at least 20 years' creditable military service, including National Guard, reserve and active duty, under the same requirement specified for entitlement to retired pay for nonregular service under Chapter 67, Title 10, United States Code.
(2) Have at least 15 years of the aforementioned service as a member of the North Carolina National Guard.
(3) Have received an honorable discharge from the North Carolina National Guard.
(b) Payment to a retired member of the North Carolina National Guard under the provisions of this section will cease at the death of the individual and no payment will be made to beneficiaries or to the decedent's estate, except that the legal representative of a retired member who dies shall be entitled to a full check for the month in which the death occurred.
(c) No individual receiving
retired pay as a result of length of service, age or physical disability
retirement from any of the regular components of the armed forcesArmed
Forces of the United States will be eligible for benefits under this
section.
(d) Nothing contained in this section shall preclude or in any way affect the benefits that an individual may be entitled to from State, federal or private retirement systems.
(e) Repealed by Session Laws 1989, c. 792, s. 2.3.
(f) The Secretary of Crime
Control and Public Safety shall determine the eligibility of guard North
Carolina National Guard members for the benefits herein provided in
this section and shall certify those eligible to the State Treasurer. In
addition, the Department of Crime Control and Public Safety shall, on and after
July 1, 1983, provide the Department of State Treasurer with an annual census
population, by age and the number of years of creditable service, for all
former members of the North Carolina National Guard in receipt of a
pension as well as for all active members of the North Carolina National
Guard who are not in receipt of a pension and who have seven and more years of
creditable service. The Department of Crime Control and Public Safety shall
also provide the State Treasurer a census population of all former members of
the North Carolina National Guard who are not in receipt of a pension
and who have 15 and more years of creditable service. The Department of State
Treasurer shall make pension payments to those persons certified from the North
Carolina National Guard Pension Fund, which shall include general fund
appropriations made to the Department of State Treasurer. The Department of
State Treasurer shall have performed an annual actuarial valuation of the fund
and shall have the financial responsibility for maintaining the fund on a
generally accepted actuarial basis. The Department of Crime Control and Public
Safety shall provide the Department of State Treasurer with whatever assistance
is required by the State Treasurer in carrying out his the State
Treasurer's financial responsibilities.
(g) The provisions of this
section shall apply to any member or former member of the North Carolina
National Guard who is qualified for the above retirements with eligibility of
such person commencing at age 60 or July 1, 1974, whichever is the later
date.
(h) If, for any reason, the North Carolina National Guard Pension Fund shall be insufficient to pay in full any pension benefits, or other charges, then all benefits or payments shall be reduced pro rata, for as long as the deficiency in amount exists. No claim shall accrue with respect to any amount by which a pension or benefit payment shall have been reduced.
(h1) Any member or former member of the North Carolina National Guard who is qualified for benefits under this section and who is a member of a domiciled employees' or retirees' association that has at least 2,000 members, the majority of whom are active or retired employees of the State or public school employees, may authorize, in writing, the periodic deduction from the member's retirement benefits a designated lump sum to be paid to the employees' or retirees' association. The authorization shall remain in effect until revoked by the member. A plan of deductions pursuant to this subsection shall become void if the employees' or retirees' association engages in collective bargaining with the State, any political subdivision of the State, or any local school administrative unit.
(i) Pensions for members
of the North Carolina National Guard shall be subject to future legislative
change or revision.
"§ 127A‑41. Uniforms, arms and equipment.
The North Carolina National
Guard shall, as far as practicable, be uniformed, armed armed, and
equipped with the same type of uniforms, arms and equipment as is or shall be
provided for the appropriate regular service.
"§ 127A‑41.1. Stay of legal and court proceedings because of State military service.
At any stage of any legal proceeding in any court in which a person called into service of the State by the Governor is involved, either as plaintiff or defendant, during the period of service or within 60 days after the conclusion of the period of active service, all actions and proceedings:
(1) May be stayed by the court on its own motion; or
(2) Shall be stayed on
application by the member or by a person acting on behalf of the member,
unless, in the opinion of the court, the ability of the plaintiff to prosecute
the action or the defendant to conduct his a defense is not
materially affected by reason of the military service.
"§ 127A‑42. Distinguished Service Medal by Governor of North Carolina.
There is hereby created the North
Carolina Distinguished Service Medal which shall be of appropriate design, and
a ribbon, together with a rosette or other device to be worn in lieu thereof.
This medal and appurtenances thereto shall be of a design approved by the
Governor. Upon the recommendation of the Secretary of Crime Control and Public
Safety and a board consisting of the Adjutant General and all other general
officers and officers assigned to authorized general‑officer‑grade vacancies,vacancies
of the North Carolina National Guard, the Governor is authorized to present
such the medal to any member or former member of the armed
forcesArmed Forces of the United States discharged under honorable
conditions, who has distinguished himself or herself by exceptionally
meritorious conduct in the performance of outstanding service to the North
Carolina National Guard. The Governor, on his the Governor's own
authority, may award such the medal to the Secretary of Crime
Control and Public Safety, the Adjutant General, or any other active or
inactive general officer or flag officer of the armed forces,Armed
Forces of the United States who has distinguished himself or herself by
especially meritorious conduct in the performance of his or her duties.
"§ 127A‑43. North Carolina National Guard Meritorious Service Medal.
There is hereby created the North
Carolina National Guard Meritorious Service Medal which shall be of appropriate
design, and a ribbon, together with a rosette or other device to be worn in
lieu thereof. This medal and appurtenances thereto shall be of a design
approved by the Governor or his designated representative.the
Governor's designee. The Governor or his designated representativethe
Governor's designee is authorized to award this medal upon the
recommendation of the Secretary of Crime Control and Public Safety in
consultation with the Adjutant General and a board of officers appointed by the
Adjutant General. Any member or former member of the armed forcesArmed
Forces of the United States discharged under honorable conditions, who has
distinguished himself or herself by heroism, meritorious achievement, or
meritorious service to the North Carolina National Guard, is eligible for this
award. The Governor, on his the Governor's own authority, may
award such the medal to the Secretary of Crime Control and Public
Safety, the Adjutant General or any other active or inactive general officer or
flag officer of the armed forcesArmed Forces of the United States
who has distinguished himself or herself by heroism, meritorious
achievement, or meritorious service to the North Carolina National Guard. The
required heroism, achievement, or service, while of a lesser degree than that
required for awarding of the North Carolina Distinguished Service Medal, must
nevertheless be accomplished with distinction.
"§ 127A‑44. North Carolina National Guard Commendation Medal.
There is hereby created the North
Carolina National Guard Commendation Medal which shall be of appropriate
design, and a ribbon, together with a rosette or other device to be worn in
lieu thereof. This medal and appurtenances thereto shall be of a design
approved by the Governor or his designated representative.the
Governor's designee. The Adjutant General of North Carolina or his
designated representative,the Adjutant General's designee, who
shall not be below the rank of colonel (O‑6), may award this medal. Any
member or former member of the armed forcesArmed Forces of the United
States discharged under honorable conditions, who distinguishes himself or
herself by his example or the performance of a specific act in
behalf of the North Carolina National Guard, is eligible for this award.
"§ 127A‑44.1. North Carolina National Guard Achievement Medal.
There is hereby created the North
Carolina National Guard Achievement Medal which shall be of appropriate design,
and a ribbon, together with a rosette or other device to be worn in lieu
thereof. This medal and appurtenances thereto shall be of a design approved by
the Governor or his designated representative.the Governor's
designee. The Adjutant General of North Carolina or his designated
representative,the Adjutant General's designee, who shall not be
below the rank of lieutenant colonel (O‑5), may award this medal. Any
member or former member of the armed forcesArmed Forces of the United
States discharged under honorable conditions, who distinguishes himself or
herself by his example or the performance of a specific act in
behalf of the North Carolina National Guard, is eligible for this award.
"§ 127A‑45. North Carolina National Guard State Active Duty Award.
There is hereby created the North
Carolina National Guard State Active Duty Award which shall be a ribbon of
appropriate design. This ribbon and appurtenances thereto shall be of a design
approved by the Governor or his designated representative.the
Governor's designee. The Adjutant General of North Carolina may present
this ribbon to members of the North Carolina National Guard who, by order of
the Governor, satisfactorily serve a tour of State active duty. To be worthy of
this award, the nature of the tour of State active duty must have been a
distinct and notable service to the State or to a community, as determined by
the Adjutant General of North Carolina. On or after July 1, 1991, this award
may also be presented to active guard personnel and reserve personnel who
satisfactorily participate in tours of State active duty.
"§ 127A‑45.1. North Carolina National Guard Governor's Unit Citation.
There is hereby created the North
Carolina National Guard Governor's Unit Citation which shall be a streamer, a
unit emblem, and a certificate, all of appropriate design as approved by the
Governor or his designated representative.the Governor's designee.
The Governor or his designated representativethe Governor's designee is
authorized to present such the unit citation, upon recommendation
of the Adjutant General, subject to the approval of the Secretary, to any unit
of North Carolina National Guard distinguishing itself by extraordinary heroism
or meritorious service while in a State active duty status. The unit must
display such gallantry, determination, and esprit de corps in accomplishing its
mission under conditions which set it apart and above other units.
"§ 127A‑45.2. North Carolina National Guard Meritorious Unit Citation.
There is hereby created the North
Carolina National Guard Meritorious Unit Citation which shall be a streamer, a
unit emblem, and a certificate, all of appropriate design as approved by the
Governor or his designated representative.the Governor's designee.
The Adjutant General is authorized to present such this citation
to any unit of the North Carolina National Guard distinguishing itself through
heroism or meritorious service to the State of North Carolina. The required
heroism or meritorious service, while of a lesser degree than that required for
the award of the North Carolina National Guard Governor's Unit Citation, must
nevertheless have been accomplished with distinction.
"§ 127A‑45.2A. North Carolina National Guard Outstanding Unit Award.
There is hereby created the North
Carolina National Guard Outstanding Unit Award which shall be a streamer, a
unit emblem, and a certificate, all of appropriate design as approved by the
Governor or his designated representative.the Governor's designee.
The Adjutant General may present this citation to any unit of the North
Carolina National Guard distinguishing itself through meritorious achievement
or service to the State of North Carolina. The required meritorious service,
while of a lesser degree than that required for the award of the North Carolina
National Guard Meritorious Unit Citation, must nevertheless have been
accomplished with distinction.
"§ 127A‑45.3. North Carolina National Guard Distinguished Civilian Service Medal.
There is hereby created the North
Carolina National Guard Distinguished Civilian Service Medal which shall be of
appropriate design, rosette or other device to be worn in lieu thereof, and
citation certificate, of a design approved by the Governor or his designated
representative.the Governor's designee. The Governor or his
designated representativethe Governor's designee is authorized to
award this medal upon the recommendation of the Adjutant General of North
Carolina and a board of officers and noncommissioned officers appointed by the
Adjutant General, to United States citizens and governmental officials at the
policy development level who render distinguished service to the North Carolina
National Guard.
"§ 127A‑45.4. North Carolina National Guard Outstanding Civilian Service Medal.
There is hereby created the North
Carolina National Guard Outstanding Civilian Service Medal which shall be of
appropriate design, rosette or other device to be worn in lieu thereof, and
citation certificate, of a design approved by the Governor or his designated
representative.the Governor's designee. The Adjutant General of
North Carolina is authorized to award this medal upon the recommendation of a
board of officers and noncommissioned officers, appointed by the Adjutant
General, to United States citizens and governmental officials who render
outstanding service to the North Carolina National Guard.
"§ 127A‑45.5. North Carolina National Guard Meritorious Civilian Service Award.
There is hereby created the North
Carolina National Guard Meritorious Civilian Service Award which shall consist
of a certificate of a design approved by the Governor or his designated
representative.the Governor's designee. The Adjutant General of
North Carolina or a designated representative,the Adjutant General's
designee, who shall not be below the grade of general officer, is
authorized to confer this award. This award may be granted to individuals,
organizations, corporations, associations and other groups, making a
substantial contribution to the North Carolina National Guard.
"§ 127A‑45.5A. Other awards.
The Adjutant General may, from
time to time, create such other awards and medals to recognize meritorious
service or outstanding achievement. The creation of such the awards
and medals shall be approved by the Governor. The Governor or his the
Governor's designee shall approve the design of such the awards
and medals.
"§ 127A‑46. Authority to wear medals, ribbons and other awards.
The Adjutant General may prescribe
those medals, ribbons and other awards and decorations which that may
be worn by members of the militia, not inconsistent with regulations of the
respective armed servicesArmed Forces of the United States.
"§ 127A‑47. Courts‑martial for National Guard.
Courts‑martial for organizations
military personnel of the North Carolina National Guard not
in the service of the United States shall be of three kinds, namely, general
courts‑martial, special courts‑martial, and summary courts‑martial.
They shall be constituted, have cognizance of the same subjects, and possess
like powers as similar courts provided for by the Uniform Code of Military
Justice and Manual for Courts‑Martial, United States. The proceedings of
courts‑martial of the North Carolina National Guard shall follow
the forms and modes of procedure prescribed for such similar courts.
"§ 127A‑48. General courts‑martial.
General courts‑martial for
military personnel of the North Carolina National Guard not in the
service of the United States may be convened by orders of the Governor of the
State or of the Adjutant General, and such these courts shall
have the power to impose punishments in like manner and to the extent
prescribed by the Uniform Code of Military Justice and Manual for Courts‑Martial,
United States, as shall be in use by the armed forcesArmed Forces of
the United States at the time of the offense, except that (i) no court shall
have the authority to impose confinement as part of the sentence unless the
court consisted of a military judge and not less than five members, except that
a defendant who requests a military judge alone may be sentenced to
confinement, and (ii) no court shall have the authority to impose confinement
in excess of one year and one day as part of a sentence.
"§ 127A‑49. Special courts‑martial; appointments, power and authority.
In the North Carolina National Guard, not in the service of the United States, special courts‑martial may be appointed by any of the following:
(1) The commander of a
brigade, regiment, comparable or higher command of the North Carolina Army
National Guard, provided that such the commander is a general
officer.
(2) The commander of a wing,
group, separate squadron, comparable or higher command of the North Carolina
Air National Guard, provided that such the commander is a general
officer.
(3) The commander or officer
in charge of any North Carolina National Guard command when empowered by the
Governor or the Adjutant General of North Carolina, provided that such the
commander or officer is a general officer.
Except as to commissioned
officers, such special courts‑martial shall have the power
and authority to try any person subject to military law for any crimes or
offenses within the jurisdiction of a general military court. Such Special
courts‑martial shall have the power to impose punishments in like
manner and to the extent prescribed by the Uniform Code of Military Justice and
Manual for Courts‑Martial, United States, as shall be in use by the armed
forcesArmed Forces of the United States at the time of the offense,
except that (i) no court shall have the authority to impose confinement as part
of the sentence unless the court consisted of a military judge and not less
than three members except that a defendant who requests a military judge alone
may be sentenced to confinement, and (ii) no court shall have the authority to
impose confinement in excess of six months as part of a sentence.
"§ 127A‑50. Summary courts‑martial.
In the North Carolina National Guard, not in the service of the United States, summary courts‑martial may be appointed by any of the following:
(1) Any person who may convene a general or special court‑martial.
(2) The commander of a
battalion, comparable or higher command of the North Carolina Army National
Guard, provided that such the commander is an officer of the
grade of major or above.
(3) The commander of a
detached squadron, comparable or higher command of the North Carolina Air
National Guard, provided that such the commander is an officer of
the grade of major or above.
Such The court shall
consist of one officer who shall have the power to administer oaths and try
enlisted personnel of each respective command for breaches of discipline and
violations of laws governing such those organizations. Such These
courts shall also have the power to impose punishments in like manner and
to the extent prescribed by the Uniform Code of Military Justice and Manual for
Courts‑Martial, United States, as shall be in use by the armed forcesArmed
Forces of the United States at the time of the offense, except that no
court shall have the authority to impose confinement as part of a sentence.
There shall be no right to demand trial by court‑martial.
"§ 127A‑50.1. Military judges.
The Adjutant General shall appoint military judges to preside over courts‑martial of the North Carolina National Guard not in federal service. Minimum requirements for appointment as a military judge are:
(1) Certification as a military judge by the Judge Advocate General of the United States Army, Air Force, Navy, Marines, or Coast Guard.
(2) Designation as a judge
advocate by The the Judge Advocate General of the United
States Army, Navy, Air Force, Marines, or Coast Guard.
(3) Membership in the North
Carolina National Guard, the National Guard of another state, or the active or
reserve components of any of the military services.the Armed Forces
of the United States.
"§ 127A‑51. Nonjudicial punishment.
Any commander of the North
Carolina National Guard, not in the service of the United States, may, in
addition to or in lieu of admonition or reprimand, impose nonjudicial
punishment in like manner and to the extent prescribed by Article 15 of the
Uniform Code of Military Justice and Manual for Courts‑Martial, United
States, as shall be currently in use by the armed forcesArmed Forces of
the United States except that there shall be no right to demand trial by court‑martial.
"§ 127A‑52. Jurisdiction of courts‑martial.
The jurisdiction of courts‑martial
of the North Carolina National Guard, not in the service of the United
States, shall be as prescribed by the Manual for Courts‑Martial, United
States, as shall be currently in use by the armed forcesArmed Forces of
the United States. Such courts‑martial shall have jurisdiction to try
accused persons for offenses committed while serving without the State and
while going to and returning from such service without the State in like
manner and to the same extent as while serving within the State.
"§ 127A‑53. Manual for Courts‑Martial.
Trials and proceedings by all
courts and boards shall be in accordance with the Manual for Courts‑Martial,
United States, as shall be currently in use by the armed forcesArmed
Forces of the United States, except as modified by this Chapter.
"§ 127A‑55. Forms for courts‑martial procedure.
In the North Carolina National
Guard, not in the service of the United States, forms for courts‑martial
procedure shall be substantially as those set forth in the Appendices, Manual
for Courts‑Martial, United States, as shall be currently in use by the armed
forcesArmed Forces of the United States, with any modifications
required by this Chapter.
"§ 127A‑56. Powers of courts‑martial.
In the North Carolina National
Guard, not in the service of the United States, presidents of courts‑martial
and summary court officers shall have power to issue warrants to arrest an
accused person and to bring the person before a court for trial whenever such
the person has disobeyed an order in writing from the convening
authority to appear before such the court, a copy of the charge
or charges having been delivered to the accused with such the order,
and to issue subpoenas and subpoenas duces tecum, and to enforce by attachment
attendance of witnesses and the production of books, papers, records and other
articles subject to a subpoena duces tecum, and to sentence for a refusal to be
sworn or to answer as provided in actions before civil courts. The presiding
officer shall also have power to punish for contempt occurring in the presence
of the court.
"§ 127A‑57. Execution of processes and sentences.
All warrants and other processes
authorized by this Chapter and sentences of any of the military courts of this
State shall be executed by any sheriff, deputy sheriff, or State or local law
enforcement officer into whose hands the samethey may be placed
for service or execution, and such the officer shall make return
thereof to the officer issuing or imposing the same. Such The service
or execution of process or sentence shall be made by such the officer
without tender or advancement of fee therefor; but all costs in such these
cases shall be paid from funds appropriated to the Department of Crime
Control and Public Safety.
"§ 127A‑59. Sentences.
When any sentence to fine or
imprisonment shall beis imposed by any military court of this
State, it shall be the duty of the military judge, president of said the
court, or summary court officer, upon the approval of the court's findings
and sentence of such court,sentence, to make out and sign a
certificate entitling the case, giving the name of the accused, the date and
place of trial, the date of approval of sentence, and the terms of the
sentence. The trial counsel shall deliver such the certificate to
the Clerk of the Superior Court of Wake County, and it shall thereupon be the
duty of the clerk to take such the actions as are necessary
to carry said the sentence into execution in the same manner as
prescribed by law for the collection of fines, or commitment to service of terms
of imprisonment, in criminal cases determined in the courts of this State. The
Administrative Office of the Courts shall ensure that the State's criminal
history records include pertinent information relating to a court‑martial
under this Chapter in a like manner as a comparable offense under the State's
criminal laws would be recorded.
"§ 127A‑60. Approval of sentence.
No sentence imposed by a special or general court‑martial of the North Carolina National Guard, not in the service of the United States, shall be executed until approved by the Governor. Any officer convicted by a general court‑martial and dismissed from the service shall be forever disqualified from holding a commission in the militia.
"§ 127A‑62. Appeals; discretionary review.
(a) Jurisdiction. Court‑martial judgments which include a sentence to confinement shall have a right of appeal to the Wake County Superior Court. The provisions of G.S. 15A‑1451 shall apply to appeals under this section.
(b) Filing and Service. An appeal under this section must be made in writing and filed with the Clerk of Superior Court of Wake County within 10 days after the approval of the sentence by the Governor. A copy of the petition shall be filed with the military court and the military trial counsel of record. For the purposes of a filing fee, the appeal shall be treated as an administrative appeal to the Superior Court.
(c) Assertion of Errors. All errors, including, but not limited to, the following, must be asserted or shall be deemed waived:
(1) Any error of law, including the following:
a. The court erroneously failed to dismiss the charge prior to the court‑martial.
b. The court's ruling was contrary to law with regard to motions made before or during the trial or with regard to the admission or exclusion of evidence.
c. The evidence, at the close of all the evidence, was insufficient to justify submission of the case to the court‑martial panel, whether or not a motion so asserting was made before verdict.
d. The court erroneously instructed the court‑martial panel.
(2) The verdict is contrary to the weight of the evidence.
(3) For any other cause, the defendant did not receive a fair and impartial trial.
(d) Appointment of Superior
Court Judge. The appeal shall be heard by a judge assigned by the Chief
Justice of the North Carolina Supreme Court, to be heard at such a session
of the Wake County Superior Court as the Chief Justice shall direct.designated
by the Chief Justice.
(e) Applicable Law. The presiding judge, in determining whether there were errors, shall apply the law as provided for trial by courts‑martial under this Article.
(f) Setting Aside of Findings or Sentence. The findings or sentence, or both, may be modified or set aside, in whole or in part, by the court on the ground of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, or error prejudicial to the substantial rights of the accused.
(g) Hearings and
Rehearings. The court may remand the matter to the court‑martial for such
evidentiary hearings or other proceedings, to be conducted by a military
judge alone, as that it deems necessary prior to the court's
final disposition of the case. If the court sets aside the findings or
sentence, the court may, except when the setting aside is based on lack of
sufficient evidence in the record to support the findings, order a rehearing.
If the court sets aside the findings and sentence and does not order a
rehearing, the court shall dismiss the charges. If the court orders a rehearing,
but the convening authority finds a rehearing impractical, the convening
authority shall dismiss the charges.
(h) Counsel.
(1) The Staff Judge Advocate of the North Carolina National Guard shall:
a. Designate a judge advocate who is qualified and certified under Article 27(b) of the Uniform Code of Military Justice, and who is a member of the North Carolina Bar, to represent the defendant.
b. Designate a judge advocate who is qualified and certified under Article 27(b) of the Uniform Code of Military Justice, and who is a member of the North Carolina Bar, to represent the State.
(2) The counsel designated to represent the defendant under sub‑subdivision a. of subdivision (1) of this subsection shall not be the counsel who represented the defendant at the court‑martial.
(3) Where a defendant
alleges ineffective assistance of prior counsel as a ground for relief, the
defendant shall be deemed to waive the attorney‑client privilege with
respect to both oral and written communications between such counsel and the
defendant and the prior counsel to the extent the defendant's prior
counsel reasonably believes such the communications are necessary
to defend against the allegations of ineffectiveness. This waiver of the
attorney‑client privilege shall be automatic upon the filing of the
pleadings alleging ineffective assistance of prior counsel, and the Wake County
Superior Court need not enter an order waiving the privilege.
(4) The Adjutant General,
upon the recommendation of the Staff Judge Advocate, shall place the designated
judge advocates described in this subsection onto State active duty for such
the periods of time as necessary for either counsel to
provide adequate representation to the respective parties, if regularly
scheduled unit training periods are insufficient. The Staff Judge Advocate
shall verify to the Adjutant General whether any such additional periods of
time are necessary.
(i) Discretionary Review. Review of decisions by the Wake County Superior Court shall be pursuant to G.S. 7A‑31.1.
(j) The rules for practice and procedure for review of courts‑martial by the Wake County Superior Court shall be consistent with those prescribed for review of administrative appeals by the Superior Court, except as modified by this section.
"Article 4.
"Naval Militia.
"§ 127A‑67. Organization and equipment.
The organization of the naval
militia shall be units of convenient size, in each of which the number and rank
of officers and the distribution of the total enlisted strength among the
several ratings of petty officers and other enlisted personnel shall be such as
are prescribed by the Secretary of the Navy, who may also prescribe the number
of officers and the number of petty officers and other enlisted personnel
required for the organization of such the units into larger
bodies for administrative and other purposes, and the arms and equipment of the
naval militia shall be those which are now or may hereafter be prescribed by
the Secretary of the Navy.
"§ 127A‑68. Officers appointed to naval militia.
Officers of the United States navy
and marine corpsNavy and Marine Corps may, with the approval of the
Secretary of the Navy, be appointed by the Governor and commissioned as
officers of the naval militia.
"§ 127A‑70 Discipline in naval militia.
The naval militia shall be subject
to the system of discipline prescribed for the United States navy and marine
corps,Navy and Marine Corps, and the commanding officer of a naval
militia battalion or brigade,unit or a naval militia officer in
command of naval militia forces on shore or on any vessel of the navy United
States Navy loaned to the State, or on any vessel on which such forces are
training, whether within or without the State, or wherever, either within or
without the State, naval militia forces of the State shall be assembled
pursuant to orders, shall have power without trial by courts‑martial to
impose upon members of the naval militia the punishments which the commanding
officer of a vessel of the navy United States Navy is authorized
by law to impose.
"§ 127A‑71. Disbursing and accounting officer.
The Governor shall appoint a
disbursing officer, approved by and of such a rank as may be prescribed
by the Secretary of the Navy, to perform such the duties as the
Secretary of the Navy may prescribe. The Governor shall also appoint the above
described disbursing officer, or such otheranother officer of
the pay corpsappropriate finance office of the naval militia as
hethat the Governor may elect, as accounting officer for each battalion
unit thereof, or at his the Governor's option for each
larger unit or combination of units of the same,units, who shall
be responsible for the proper accounting for all public property issued to and
for the use of such battalion the unit or larger unit or
combination of units.
"§ 127A‑72. Rendition of accounts.
Accounting officers shall render
accounts as prescribed by the Governor or by the Secretary of the Navy, and
shall be required to give good and sufficient bond to the State and to the
United States, in such the sums as that the
Governor or the Secretary of the Navy may direct,directs, and
conditioned upon the faithful accounting for all public property and for the
safekeeping of such the part thereof as may be in the
personal custody of such the officer. Accounting officers may
issue any or all such property to other officers or enlisted personnel of the
naval militia under such rules and regulations as may be prescribed.applicable
rules and regulations.
"§ 127A‑74. Courts‑martial for naval militia.
Courts‑martial for the naval
militia, not in the service of the United States, shall be organized, have the
same powers, functions and authorities, and follow the same procedures as
courts‑martial for the North Carolina National Guard as set forth
in G.S. 127A‑47 through 127A‑61.127A‑62.
"Article 5.
"State Defense Militia.
"§
127A‑80. Authority to organize and maintain State defense militia of
North Carolina.North Carolina State Defense Militia.
(a) The Governor is
authorized to organize such any part of the unorganized militia
as a State force for discipline and training, into companies, battalions,
regiments, brigades or similar organizations, as may be deemed necessary
for the defense of the State; to maintain, uniform and equip such this
military force within the appropriations available; to exercise discipline
in the same manner as is now or may hereafter be provided by the laws of the
State for the North Carolina National Guard. Such The military
force shall be subject to the call or the order of the Governor to execute the
law and secure the safety of persons and property, suppress riots or
insurrections, repel invasions or provide disaster relief, as may now or
hereafter be provided by law for the North Carolina National Guard or
for the State militia.
(b) Such The military
force shall be designated as the "North Carolina State Defense Militia"
and shall be composed of personnel of the unorganized militia as may volunteer
for service therein or be drafted as provided by law. To be eligible for
service in an enlisted status, a person must be at least 17 years of age. To be
eligible for service as an officer, a person must be at least 18 years of age.
The force and its personnel shall be additional to and distinct from the North
Carolina National Guard organized under existing law. A person may not
become a member of the defense militia established under this section, if a
member of a reserve component of the armed forces.Armed Forces of the
United States.
(c) The Governor is hereby
authorized: to prescribe rules and regulations governing the appointment of
officers, the enlistment of other personnel, the organization, administration,
equipment, discipline and discharge of the personnel of such the military
force; to requisition from the Secretary of Defense such arms and equipment
as may bethat are in possession of and can be spared by the
Department of Defense; and to furnish the facilities of available armories,
equipment, State premises and property, for the purpose of drill and
instruction.
(d) Such The force
shall not be called, ordered, or in any manner drafted, as such, into the
military service of the United States, but no person shall by reason of
membership therein, be exempt from military service under any federal law.
(e) The Governor is hereby
authorized to transfer to the benefit of the State defense militia any
available and unexpended funds which he shall find the Governor finds
necessary for its use from any appropriations to the North Carolina National
Guard by the General Assembly, and for the same purpose to allot moneys monies
from the Contingency and Emergency Fund with the concurrence of the Council
of State. Upon disbandment of the State defense militia any moneys monies
or balance to the credit of any unit of this organization shall be paid
into the State treasury for the benefit of the North Carolina National
Guard, and all property, clothing, and equipment belonging to the State shall
be transferred to the account of the North Carolina National Guard for
disposition in accordance with the best interests of the State and as deemed
advisable by the Governor. Upon disbandment of any unit of the State defense
militia prior to the disbandment of the entire organization, the Governor is
authorized to direct the transfer of any State property or balance of funds of
the disbanded unit to any other unit, including any new unit or units organized
to fill vacancies, or otherwise, as the Governor may direct.
(f) The North Carolina State
defense militia shall be subject to the military laws of the State not
inconsistent with or contrary to the provisions contained in this Article with
the following exceptions:
The provisions of G.S. 127A‑117, 127A‑118, and 127A‑139 as amended, shall not be applicable to the personnel and units of the State defense militia.
(g) There shall be allowed
annually to each unit or company of the State defense militia such the
funds as may be necessary to be applied to the payment offor
armory rent, heat, light, stationery, printing, and other expenses.
(h) All payments are to be
made by the Secretary of the Department of Crime Control and Public
Safety in accordance with State laws in semiannual installments on the first
day of July and the first day of January of each year, but no payment shall be
made unless all assemblies and duties required by law are duly performed by all
organizations named.
(i) The commander of each
organization participating in the appropriation herein named shall render an
itemized statement of all funds received from any source whatsoever for the
support of the organization in such the manner and on such the
forms as may be prescribed by the Secretary of the Department of Crime
Control and Public Safety. Failure on the part of any commander to submit
promptly when due the financial statement of the organization will be sufficient
cause to withhold all appropriations for the organization.
"§ 127A‑81. State defense militia cadre.
(a) The Governor is
authorized: to organize and regulate part of the unorganized militia as a State
defense militia cadre in units or commands which he the Governor may
deem necessary to provide a cadre for an active State defense militia; to
prescribe regulations for the maintenance of the property and equipment of the
cadre, for the exercise of its discipline, and for its training and duties.
(b) The cadre shall be
designated the "North Carolina State Defense Militia Cadre" and shall
be composed of a force of officers and enlisted personnel raised by appointment
of the Governor, or otherwise, as may be provided by law. The Secretary of the
Department of Crime Control and Public Safety may reimburse cadre members
for expenses actually incurred, not to exceed the amount appropriated and
authorized for such purposesthe purpose by the General Assembly.
(c) The Governor's
authority hereunder under this Article shall not be subject to
regulations prescribed by the Secretary of Defense. Age and membership
requirements for the State defense militia generally, as set forth in G.S. 127A‑80G.S. 127A‑80,
shall apply. The training of the cadre need not be in accordance with training
regulations issued by the Department of Defense. The provisions of G.S. 127A‑80(c),
(d), (g), (h) and (i) shall also apply to cadres.
(d) The total authorized strength of the cadre, its authorized officer and enlisted strength, the composition of each of its units or commands, and the allocation of cadre units or commands among the counties, cities, and towns of the State, shall be as prescribed by the Governor in suitable regulations enforced through the Adjutant General, or as otherwise provided by law.
(e) The duties of the State
defense militia cadre shall be as ordered and directed by the Governor from
time to time, or in regulations, and may include authority to take charge of
armories and other military installations and real properties used by the North
Carolina National Guard, together with such any other property as
that the regulations may provide, when and if the North Carolina
National Guard, or any part thereof, may beis inducted into the
service of the United States, or, for any extended period of time, may beis
absent on any duty from its home station. In addition, the cadre shall have
duties appropriate to the organization, maintenance, and training of a military
cadre to act as a nucleus for the organization of an active State defense
militia whenever the necessity may arise.
"Article 6.
"Unorganized Militia.
"§ 127A‑87. Unorganized militia ordered out for service.
The commander in chief may at any
time, in order to execute the law, secure the safety of persons and property,
suppress riots or insurrections, repel invasions or provide disaster relief, in
addition to the North Carolina National Guard, the State defense militia
and the naval militia, order out the whole or any part of the unorganized
militia. When the militia of this State or a part thereof is called forth under
the Constitution and laws of the United States, the Governor shall first order
out for service the North Carolina National Guard, the State defense
militia or naval militia, or such any part thereof as that
may be necessary, and if the number available be is insufficient,
he the Governor shall then order out such aany part
of the unorganized militia as hethat the Governor may deem
necessary. During the absence or organizations of the North Carolina National
Guard or naval militia in the service of the United States, their state
designations shall not be given to new organizations.
"§ 127A‑88. Manner of ordering out unorganized militia.
The Governor shall, when ordering
out the unorganized militia, designate the number. He The Governor may
order them out either by calling for volunteers or by draft. He The
Governor may attach them to the several organizations of the North
Carolina National Guard, the State defense militia or naval militia, as may
be best for the service.
"§ 127A‑89. Draft of unorganized militia.
If the unorganized militia is
ordered out by draft, the Governor shall designate the persons in each county
to make the draft, and prescribe rules and regulations for conducting the
same.it.
"§ 127A‑90. Punishment for failure to appear.
Every member of the militia
ordered out for duty, or who shall volunteer or be drafted, who does not appear
at the time and place ordered, shall be liable to such punishment as a
court‑martial may determine.determined by a court‑martial.
"§ 127A‑91. Promotion of marksmanship.
The Adjutant General is authorized
to detail a commissioned officer of the North Carolina National Guard or member
of the State defense militia to promote rifle marksmanship among the State defense
militia and the unorganized militia of the State. Such The officer
or member so detailed shall serve without pay and it shall be his dutythe
duty of the officer or member to organize and supervise rifle clubs in
schools, colleges, universities, clubs and other groups, under such rules
and regulations as prescribed by the Adjutant General shall
prescribe and in such a manner to that will make
them, when duly organized, acceptable for membership in the National Rifle
Association. Provided, that such these duties and efforts shall
in nowise interfere or conflict with clubs of schools or units operating in R.O.T.C.Reserve
Officers' Training Corps or similar schools under the supervision of armed
forces instructors.instructors of the Armed Forces of the United States.
"Article 7.
"Regulations as to Active Service.
"§ 127A‑97. National Guard and naval militia first ordered out.
In all cases the North Carolina National Guard and naval militia as provided for in this Chapter shall be first ordered into service.
"§ 127A‑98. Regulations enforced on active State service.
Whenever any portion of the
militia shall beis called into active State service to execute
the law, secure the safety of persons and property, suppress riots or
insurrections, repel invasions or provide disaster relief, the provisions of
the Uniform Code of Military Justice of the United States, governing the armed
forcesArmed Forces of the United States, and the regulations
prescribed for the armed forcesArmed Forces of the United States,
and the regulations issued thereunder, shall be enforced and regarded as part
of this Chapter until said forces shall bethis portion of the militia
is relieved from such the duty. As to offenses committed when
such the provisions of the Uniform Code of Military Justice of
the United States are so enforced, courts‑martial shall possess, in
addition to the jurisdiction and power of sentence and punishment herein vested
in them, all additional jurisdiction and power of sentence and punishment
exercisable by like courts under such the provisions of the
Uniform Code of Military Justice of the United States or regulations or laws
governing the United States armed forcesArmed Forces of the United
States or the customs and usages thereof; but no punishment under such the
Code which shall extendthat extends to the taking of life
shall in any case be inflicted except in case of war, invasion, or
insurrection, declared by a proclamation of the Governor to exist and then only
after approval by the Governor of the sentence inflicting such that punishment.
Imprisonment other than in guardhouse shall be executed in county jails or
other prisons designated by the Governor for that purpose.
"§ 127A‑99. Regulations governing unorganized militia.
Whenever any part of the unorganized militia is ordered out, it shall be governed by the same rules and regulations and be subject to the same penalties as the North Carolina National Guard or naval militia.
"Article 8.
"Pay of Militia.
"§ 127A‑106. Paid by the State.
When the militia or any portion
thereof shall beis ordered by the Governor into State service,
the pay (including payment for any leave earned as a result of more than 30
days of continuous service), subsistence, transportation and other necessary
expenses incident thereto shall be paid by the State Treasurer, upon the
approval of the Governor.
"§ 127A‑107. Rate of pay for other service.
The Governor may, whenever the
public service requires it, order upon special or regular duty any officer or
enlisted member of the North Carolina National Guard or naval militia,
and the expenses and compensation therefor of such the officer and
or enlisted member shall be paid out of the appropriations made to
the Department of Crime Control and Public Safety. Such officers and
enlisted membersThe officers or enlisted members shall receive the
same rate of pay as officers and enlisted members of the same grade and like
service of the regular service,Armed Forces of the United States,
provided that no such officer or enlisted member shall receive less than 18
times the minimum hourly wage per day as provided for in G.S. 95‑25.3(a).
Officers and enlisted members when on duty in connection with examining boards,
efficiency boards, advisory boards, courts of inquiry or similar duty shall be
allowed per diem and subsistence prescribed for lawful State boards and
commissions generally for such duty. Officers and enlisted members serving on
general or special courts‑martial shall receive the base pay of their
rank. No staff officer or enlisted member who receives a salary from the State
as such shall be entitled to any additional compensation other than actual and
necessary expenses incurred while traveling upon orders issued by the proper
authority.
"§ 127A‑108. Pay and care of soldiers, airmen and sailors disabled in service.
A member of the North Carolina National
Guard, the State defense militia, or the naval militia who without fault or
negligence on his the member's part is disabled through illness,
injury, or disease contracted or incurred while on duty or by reason of duty in
the service of the State or while reasonably proceeding to or returning from such
duty shall receive the actual necessary expenses for care and medicine and
medical attention at the expense of the State and if such shallthe
disability temporarily incapacitate him forincapacitates the
member from pursuing his the member's usual business or
occupation he the member shall receive during such his
or her incapacity the pay and allowances as that are
provided for the same grade and rating in like circumstances in the active armed
forcesArmed Forces of the United States. If such the member
is permanently disabled, he the member shall receive the pensions
and rewards benefits that persons under similar circumstances in
the military serviceArmed Forces of the United States receive
from the United States. In case any sucha member shall diedies
as a result of such an injury, illness or disease within one year
after it has been incurred or contracted, the surviving spouse, minor children,
or dependent parents of the member shall receive such the pension
and rewards benefits as persons under similar circumstances
receive from the United States.
The cost incurred by reason of
this section shall be paid out of the Contingency and Emergency Fund, or suchanother
other fund as may be designated by law.
The Adjutant General, with the
approval of the Governor, shall make and publish such regulations
pursuant to this section as may bethat are necessary for its
implementation. Before the name of any person is placed on the disability or
pension rolls of the State under this section, proof shall be made in
accordance with such these regulations that the applicant is
entitled to such the care, pension, or reward.benefit.
Nothing herein in this
section shall in any way limit or condition any other payment to such a
member as by law may be allowed: Provided, however,that the law
allows, except that any payments made under the provisions of Chapter 97 of
the General Statutes or under federal statutes as now or hereafter amended
shall be deducted from the payments made under this section.
"§
127A‑110. Proceedings against third party injuring or killing guard organized
militia personnel.
(a) The right of a
member of the North Carolina National Guard, the State defense militia, or the
naval militia to compensation and other benefits under G.S. 127A‑108
shall not be affected by the fact that the injury or death was caused under
circumstances creating a liability in some person other than the State State,
or "third party," to pay damages therefor, such person
hereinafter being referred to as the "third party." therefor. The
respective rights and interests of the guard member under this Article,
and the State, if any, in respect of the common‑law cause of action
against such a third party and the damages recovered shall be as
set forth in this section.
(b) The guard member
or personal representative if guard the member be dead, shall
have the exclusive right to proceed to enforce the liability of the third party
by appropriate proceedings if such the proceedings are instituted
not later than 12 months after the date of injury or death, whichever is later.
During said this 12‑month period, and at any time
thereafter if summons is issued against the third party during said the
12‑month period, the guard member or personal representative
shall have the right to settle with the third party and to give a valid and
complete release of all claims to the third party by reason of such the
injury or death, subject to the provisions of (h) below.subsection
(h) of this section.
(c) If settlement is not
made and summons is not issued within said the 12‑month period,period
described in subsection (b) of this section, then all rights of the guard
member, or personal representative if guard the member be
dead, against the third party shall pass by operation of the period fixed by
the statute of limitations applicable to such these rights and if
the State shall not havehas not settled with or instituted
proceedings against the third party within such this time, then
all such rights shall revert to the guard member or personal
representative 60 days before the expiration of the applicable statute of
limitations.
(d) The person in whom the
right to bring such a proceeding or make settlement is vested
shall, during the continuation thereof, also have the exclusive right to make
settlement with the third party and the release of the person having the right
shall fully acquit and discharge the third party except as provided by (h)
below.subsection (h) of this section. A proceeding so instituted by
the person having the right shall be brought in the name of the guard member
or personal representative and the State shall not be a necessary or proper
party thereto. If the guard member or personal representative should
refuserefuses to cooperate with the State by being the party
plaintiff, then the action shall be brought in the name of the State and the guard
member or personal representative shall be made a party plaintiff or party
defendant by order of court.
(e) The amount of
compensation and other benefits paid or payable on account of such the
injury or death shall not be admissible in evidence in any proceeding
against the third party. If the third party defending such the proceeding,
by answer duly served on the State, sufficiently alleges that actionable
negligence of the State joined and concurred with the negligence of the third
party in producing the injury or death, then an issue shall be submitted to the
jury in such the case as to whether actionable negligence of the
State joined and concurred with the negligence of the third party in producing
the injury or death. The State shall have the right to appear, to be
represented, to introduce evidence, to cross‑examine adverse witnesses,
and to argue to the jury as to this issue as fully as though it were a party
although not named or joined as a party to the proceeding. Such issueThe
issue as to the State's negligence shall be the last of the issues
submitted to the jury. If the verdict shall beis that actionable
negligence of the State did join and concur with that of the third party in
producing the injury or death, then the court shall reduce the damages awarded
by the jury against the third party by the amount which the State would otherwise
be entitled to receive therefrom by way of subrogation hereunder and the entire
amount recovered, after such reduction, shall belong to the guard member
or personal representative free of any claim by the State and the third party
shall have no further right by way of contribution or otherwise against the
State, except any right which may exist by reason of an express contract of
indemnity between the State and the third party, which was entered into prior
to the injury to the guard member.
(f) (1) Any
amount obtained by any person by settlement with, judgment against, or
otherwise from the third party by reason of such the injury or
death shall be disbursed by order of the court for the following purposes and
in the following order of priority:
a. First to the payment of actual court costs taxed by judgment.
b. Second to the payment of
the fee of the attorney representing the person making settlement or obtaining
judgment, and such this fee shall not exceed one third of the
amount obtained or recovered of the third party.
c. Third to the reimbursement of the State for all benefits by way of compensation or medical treatment expense paid or to be paid by the State pursuant to G.S. 127A‑108.
d. Fourth to the payment of
any amount remaining to the guard member or personal representative.
(2) The attorney fee paid
under (f)(1)subdivision (1) of this section shall be paid by the guard
member and the State in direct proportion to the amount each shall receive
under (f)(1)c and (f)(1)d hereofsub‑subdivisions (1)c. and d.
of this subsection and shall be deducted from such the payments
when distribution is made.
(g) In any proceeding
against or settlement with the third party, every party to the claim for
compensation shall have a lien to the extent of the party's interest under (f)
hereofsubsection (f) of this section upon any payment made by the
third party by reason of such the injury or death, whether paid
in settlement, in satisfaction of judgment, as consideration for covenant not
to sue, or otherwise and such the lien may be enforced against
any person receiving such the funds. Neither the guard member
or personal representative nor the State shall make any settlement with or
accept any payment from the third party without the written consent of the
other and no release to or agreement with the third party shall be valid or
enforceable for any purpose unless both State and guard member or
personal representative join therein; provided, that this sentence shall not
apply if the State is made whole for all benefits paid or to be paid by him the
member or personal representative under this Chapter less attorney's fees
as provided by (f)(1) and (2) hereofsubsection (f) of this section
and the release to or agreement with the third party is executed by the guard
member. The Attorney General shall have the right on behalf of the State to
reduce by compromise its claim.
(h) Institution of proceedings against or settlement with the third party, or acceptance of benefits under this Chapter, shall not in any way or manner affect any other remedy which any party to the claim for compensation may have except as otherwise specifically provided in this Chapter, and the exercise of one remedy shall not in any way or manner be held to constitute an election of remedies so as to bar the other.
"Article 9.
"Privilege of Organized
State Militia and Reserve Components of the Armed Forces of the United
States Armed Forces.
"§ 127A‑117. Contributing members.
Each organization of the North
Carolina National Guard and naval militia may, besides its regular and
active members, enroll contributing members on payment in advance by each
person desiring to become such a contributing member of not less
than ten dollars ($10.00) per annum, which money shall be paid into the unit
fund. Each contributing member shall be entitled to receive from the commanding
officer thereof a certificate of membership.
"§ 127A‑118. Organizations may own property; actions.
Organizations of the North
Carolina National Guard and naval militia shall have the right to own and
keep real and personal property, which shall belong to the organization; and
the commanding officer of any organization may recover for its use debts or
effects belonging to it, or damages for injury to such property,the
property. An action for such recovery to of debts,
effects, or damages must be brought in the name of the commanding officer thereof
of the organization before any court of justice within the State
having jurisdiction; and no suit or complaint pending in his or her name
shall be abated by his or her ceasing to be commanding officer of the
organization; but upon motion of the commander succeeding him such or
her the new commander shall be admitted to prosecute the suit or complaint
in like manner and with like effect as if it had been originally commenced by
him or her.
"§ 127A‑119. When families of soldiers, airmen and sailors supported by county.
When any citizen of the State is
absent on duty as a member of the North Carolina National Guard, State
defense militia or naval militia, and his the member's family members
are unable to support themselves during his the member's absence,
the board of commissioners of his the member's county, on
application, shall make a reasonable allowance towards their maintenance
such allowance as may be deemed reasonable.maintenance.
"Article 10.
"Care of Military Property.
"§ 127A‑125. Custody of military property.
All public military property,
except when used in the performance of military duty, shall be kept in
armories, or other properly designated places of deposit; and it shall be
unlawful for any person charged with the care and safety of said public military
property to allow the sameit out of his or her custody,
except as above specified.specified in this section.
"§ 127A‑126. Other suitable storage facilities.
All public military property of every description which may not be distributed among the units of the North Carolina National Guard or State defense militia according to law shall be stored and kept at suitable storage facilities as determined by the Adjutant General.
"§ 127A‑127. Property kept in good order.
Every officer and enlisted member
belonging to any unit equipped with public military property shall keep and
preserve such the property in good order; and for neglect to do
so may be punished as a court‑martial may direct.
"§ 127A‑128. Equipment and vehicles.
Equipment and vehicles issued by
the Department of Defense to the North Carolina National Guard or State
defense militia shall be used solely for military purposes, except in those
specific cases where nonmilitary use is authorized by the Department of Defense
and/oror the Governor. Necessary expense in maintaining such equipment
and vehicles, not provided for by the federal government government, shall
be a proper charge against State funds appropriated for the North Carolina National
Guard: Provided, such the expense shall be specifically
authorized by the Governor and certified by the Adjutant General.
"§ 127A‑129. Transfer of property.
All officers accountable or
responsible for public funds, property, or books, before being relieved from
the duty, shall turn them over the same according to the
regulations prescribed by the Governor.
"§ 127A‑130. Replacement of lost or damaged property.
Whenever any military property
issued to the North Carolina National Guard or State defense militia of
the State shall have been lost, damaged, or destroyed, and upon report of a
disinterested surveying officer it shall appear that the loss, damage, or
destruction of property was due to carelessness or neglect, or that its loss,
damage or destruction could have been avoided by exercise of able care, the
money value of such the property shall be charged to the
responsible officer or enlisted member, and the pay of such the officers
and enlisted members from both federal and State funds at any time accruing may
be stopped and applied to the payment of any such indebtedness until same it
is discharged.
"§ 127A‑131. Unlawful conversion or willful destruction of military property.
(a) If any person shall
willfully or wantonly destroy or injure, willfully retain after demand made or
otherwise convert to his the person's own use any property of the
State or of the United States issued for the purpose of arming or equipping the
militia of the State or if any person shall purchase any property of the State
or of the United States knowing it to be unlawfully obtained, he the
person shall be guilty of a Class 1 misdemeanor.
(b) Any person, firm or
corporation receiving in pledge or buying from any other person, firm or
corporation for the purpose of resale any goods, to include arms, ammunition,
explosives, equipment, clothing, supplies and materials, which may reasonably
be thought to be the property of the armed forcesArmed Forces of
the United States and their reserve components or of the militia of the State
of North Carolina, shall keep a register and shall enter therein a true and
accurate record of each purchase, showing the name, social security number and
address of the person from whom purchased, the name and address of the firm or
corporation from whom purchased, together with the amount paid for each item or
lot of small items, the date of purchase, the serial numbers of all items
bearing serial numbers, and any other marks, brands or descriptions which will
serve to identify the items purchased. The register shall be at all times open
to the inspection of the public. Any person, firm or corporation failing to
comply with this provision shall be guilty of a Class 1 misdemeanor; and any person,
firm or corporation making a false entry in such register shall be guilty of a
Class 1 misdemeanor.
"Article 11.
"Support of Militia.
"§ 127A‑137. Requisition for federal funds.
The Governor shall make
requisition upon the secretary of the appropriate service for such the
State allotment from federal funds as may be appropriate for the support of
the militia.
"§ 127A‑138. Local appropriations; unit funds.
(a) Every municipality and
county within the State is hereby authorized and empowered to appropriate for
the benefit of any unit or units of the militia such the amounts
of public funds from year to year as the governing body of such the municipality
or county may deem wise, patriotic and expedient; and is further authorized,
either alone or in connection with others, to provide heat, electricity, water,
telephone service and other costs of operation and maintenance of any armory. Such
These appropriations may be funded by the levy of property taxes
pursuant to G.S. 153A‑149 and G.S. 160A‑209 or by
the allocation of other revenues whose use is not otherwise restricted by law.
(b) Any funds donated to any unit or units of the militia by local governments, civic organizations or private sources, short‑term rental of their armory buildings, or funds earned through vending machine commissions and items of similar nature shall remain at the unit or units to be expended in accordance with rules and regulations prescribed by the Secretary.
"§ 127A‑139. Allowances made to different organizations and personnel.
(a) There may be allowed
each year to the following officers, under rules and regulations prescribed by
the Secretary of Crime Control and Public Safety, as follows: to general
officers, and commanders of divisions, corps, groups, brigades, regiments,
separate battalions, squadrons or similar organizations, not to exceed two
hundred and twenty‑five dollars ($225.00); to commanding officers of
companies, batteries, troops, detachments and similar units not to exceed two
hundred dollars ($200.00); to executive officers, adjutants, plans and training
officers, logistical officers and commissioned officers in comparable
assignments in divisions, corps, groups, brigades, regiments, battalions,
squadrons and similar organizations, not to exceed two hundred dollars
($200.00). No officer shall be entitled to receive any part of the amounts
named herein in this subsection unless he the officer has
performed satisfactorily all duties required of him the officer by
law and regulations and has pursued such any course of
instruction as that may from time to time be required.
(b) There may be allowed annually to the supply sergeant of each company, battery, troop, detachment, and similar organizations, a sum of money not to exceed one hundred dollars ($100.00) for services satisfactorily performed.
(c) There shall be allowed
annually sufficient funds to be allocated by the Secretary of Crime Control and
Public Safety among the federally recognized units of the North Carolina National
Guard and their headquarters, NCNG State Pistol Team, NCNG State Rifle Team,
NCARNG Aviation Support Facility, and NCARNG Aviation Flight Activitya
pistol team, a rifle team, aviation support facilities, and aviation flight
activities for administrative and operating expenses, including heat,
electricity, telephone, postage, office supplies and equipment, minor repairs
and replacement of equipment, and such any other expenses and
special items of equipment not otherwise provided as that may be
authorized in accordance with North Carolina National Guard rules and
regulations.
(d) Repealed by Session Laws 1979, c. 701, s. 2.
(e) The commanding officers
of all organizations participating in the appropriations herein made shall
render an itemized statement of all funds received from any source whatever for
the support of their respective organizations in such the manner
and on such the forms as may be prescribed by the
Secretary through the Adjutant General. Failure on the part of any officer to
submit promptly when due the financial statement of his the officer's
organization will be sufficient cause to withhold all appropriations for such
organizations.the organization.
"Article 12.
"General Provisions.
"§ 127A‑145. Reports of officers.
All officers of the North
Carolina National Guard, the State defense militia, and the naval militia
shall make such returns and reports to the Governor, the Secretary
of Defense, or to such officers as they may designatedesignated
by them, at such the times and in such the form
as may from time to time be prescribed.
"§ 127A‑146. Officer to give notice of absence.
When any officer shall have
occasion to be absent from his the officer's usual residence one
week or more, he the officer shall notify the officer next in
command, and also his the officer's next superior officer in
command, of his the officer's intended absence, and shall arrange
for the officer next in command to handle and attend to all official
communications.
"§ 127A‑147. Orders, rules, regulations and Uniform Code of Military Justice applicable to militia when not in service of United States.
The North Carolina National
Guard, State defense militia and naval militia, when not in the service of the
United States, shall be governed by State law, the orders, rules and
regulations of the Adjutant General, regulations promulgated by the secretary
of the appropriate service of the armed forces Armed Forces of
the United States, and the Uniform Code of Military Justice, as amended from
time to time.
"§ 127A‑148. Commander may prevent trespass and disorder.
The commander upon any occasion of
duty may place in arrest during the continuance thereof any person who shall
trespass upon the campground, parade ground, armory, or other place devoted to such
that duty, or who shall in any way or manner interrupt or molest the
orderly discharge of duty by those under arms, or shall disturb or prevent the
passage of troops going to or returning from any duty. He The
commander may prohibit and prevent the sale or use of all spirituous
liquors, wine, ale, beer, or cider, the holding of huckster or auction sales,
and all gambling within the limits of the post, campground, campground
or place of encampment, parade, parade or drill under his or
her command, or within such any limits not exceeding one mile
therefrom as he that the commander may prescribe. And he The
commander may in his the commander's discretion abate as
common nuisance all such sales.
"§ 127A‑149. Power of arrest in certain emergencies.
In the event members of the North
Carolina National Guard or State defense militia are called out by the Governor
pursuant to the authority vested in him the Governor by the
Constitution, they shall have such the power of arrest as may
be reasonably necessary to accomplish the purpose for which they have been
called out.
"§ 127A‑150. Immunity of guardsmen from civil and criminal liability.
(a) A member of the North Carolina National Guard or State defense militia, while acting in aid of civil authorities and in the line of duty, shall have the immunities of a law‑enforcement officer.
(b) Whenever members Members
of the North Carolina National Guard or State defense militia shall have
the immunities of a law‑enforcement officer whenever they are called
upon to execute the laws, laws; engage in disaster relief, relief;
suppress or prevent actual or threatened riot or insurrection, insurrection;
repel invasion, invasion; or apprehend or disburse disperse
any sniper, rioters, mob or unlawful assembly, they shall have the
immunities of a law‑enforcement officer.assembly.
(c) Any civil claim against
a member of the North Carolina National Guard or State defense militia
allegedly arising from the action or inaction of such the member
of the North Carolina National Guard or State defense militia while in
line of duty shall be filed within two years of the date of the occurrence or
forever barred.
"§ 127A‑151. Organizing company without authority.
If any person shall organize a
military company, or drill or parade under arms as a military body, except
under the militia laws and regulations of the State, or shall exercise or
attempt to exercise the power or authority of a military officer in this State,
without holding a commission from the Governor, he the person shall
be guilty of a Class 1 misdemeanor.
"§ 127A‑152. Placing name on muster roll wrongfully.
If any officer of the militia of
the State shall knowingly or willfully place, or cause to be placed, on any
muster roll the name of any person not regularly or lawfully enlisted, or the
name of any enlisted man member who is dead or who has been
discharged, transferred, or has lost membership for any cause whatsoever, or
who has been convicted of any infamous crime, he the officer shall
be guilty of a Class 1 misdemeanor.
"§ 127A‑153. Protection of uniform.
(a) The wearing of any
military uniform of the United States government by members of the
militia shall be pursuant to applicable regulations promulgated by the
respective armed services branches of the Armed Forces of the
United States and regulations of the Adjutant General of North Carolina not
inconsistent with federal uniform regulations.
(b) The wearing of any
military uniform of the North Carolina State government by
members of the militia shall be pursuant to applicable regulations promulgated
by the Adjutant General of North Carolina.
(c) Members of the militia
who violate the regulations referred to in (a) and (b) above subsections
(a) and (b) of this section shall, upon conviction by a court‑martial,
be punished in like manner and to the extent prescribed by Article 134 of the
Uniform Code of Military Justice and Manual for Courts‑Martial, United
States, as shall be in use by the armed forces Armed Forces of
the United States at the time of the offense.
(d) Persons not subject to
courts‑martial who violate the regulations referred to in (a) and (b)
above subsections (a) and (b) of this section may be charged and
tried in the State courts and upon conviction shall be punished as provided in (c)
above.subsection (c) of this section.
"§ 127A‑154. Upkeep of properties.
There shall be paid from the
appropriations from for the North Carolina National Guard such
the amounts as may be necessary for the maintenance, upkeep,
and improvement of State military properties and facilities. Provided, such these
expenditures shall be approved and authorized by the Governor.
"§ 127A‑155. When officers authorized to administer oaths.
Officers of the North Carolina National Guard are authorized to administer oaths in all circumstances pertaining to any military matter whenever an oath is required.
"Article 13.
"Armories.
"§ 127A‑161. Definitions.
As used in this Article, the following terms mean:
(1) Armory: Armory.
Any building or building complex and related facilities, including the
lands for them, which are intended to be utilized by the militia for training,
administration, storage, and the maintenance and servicing of equipment.
(2) Armory site: Armory
site. That land, meeting federal and State specifications, upon which an
armory may be constructed.
(3) Department: Department.
The North Carolina Department of Crime Control and Public Safety.
(4) Facilities: Facilities.
Those adjuncts to an armory, including but not limited to yards, storage
buildings, sheds, ramps, racks, target ranges, furniture, fixtures and other
equipment and installations.
(5) Funds: Funds.
Any moneys monies appropriated by any municipality, county,
the State or the United States government and made available for the purpose of
acquiring armory sites or constructing or repairing any armory, warehouse, or
other facility for the use of any unit or for any other purpose in connection
with the housing, training, instruction or promotion of the interest of any
unit.
(6) Municipality: Municipality.
Any incorporated city, town or village.
(7) Unit: Unit. Any
organizational entity of the militia.
"§ 127A‑163. Powers of Department specified.
The Department of Crime Control and Public Safety is further authorized and empowered:
(1) To act as an agency of the State of North Carolina for the purpose of setting up and administering any statewide plan for the acquisition of armories and armory sites, for the construction and maintenance of armories and for providing facilities which are now or may be necessary in order to comply with any federal law and in order to receive, administer and disburse any funds which may be provided by act of Congress for such purpose;
(2) As suchWhen
acting as an agency of the State of North Carolina, Carolina
under subdivision (1) of this section, to promulgate statewide plans for
the acquisition of armories and armory sites, for the construction and
maintenance of armories and such other facilities as may be found that
are desirable or necessary to meet the requirements and receive the
benefits of any federal legislation with respect thereto;
(3) To receive and
administer any funds which may be appropriated by any act of Congress or
otherwise for the acquisition of armories and armory sites; sites, for
the construction and maintenance of armories armories, and for
providing facilities, which facilities that may at any time
become available for such those purposes;
(4) To receive and administer any other funds which may be available in furtherance of any activity in which the Department of Crime Control and Public Safety is authorized and empowered to engage under the provisions of this Article; and
(5) To adopt such rules
and regulations as may be necessary to carry out the intent and purpose
of this Article.
"§ 127A‑167. Appropriations to supplement available funds authorized.
Any city or town and any county in
the State, separately or jointly, may make appropriations to supplement
available federal or State funds to be used for the construction of armory
facilities for the North Carolina National Guard. Appropriations made under
authority of this Article shall be in such the amounts and in such
the proportions as may be deemed adequate and necessary by
the governing body of the county and/or municipality desiring to participate in
the armory construction program.
"§ 127A‑168. Local financial support.
Each county and city in this State is authorized to make appropriations for the purposes of this Article and to fund them by levy of property taxes pursuant to G.S. 153A‑149 and G.S. 160A‑209 and by the allocation of other revenues whose use is not otherwise restricted by law.
"§ 127A‑169. Unexpended portion of State appropriation.
The unexpended portion of any
appropriation from the general fundGeneral Fund of the State for
the purposes set out in this Article, remaining at the end of any biennium,
shall not revert to the general fund General Fund of the State,
but shall constitute part of a permanent fund to be expended from time to time
in the manner and for the purposes set out in this Article.
"Article 14.
"National Guard Mutual Assistance Compact.
"§ 127A‑177. Definitions; mutual aid.
(a) As used in this Article:
(1) "Emergency" means an occurrence or condition, temporary in nature, in which police and other public safety officials and locally available National Guard forces are, or may reasonably be expected to be, unable to cope with substantial and imminent danger to the public safety.
(2) "Requesting state" means the state whose governor requests assistance in coping with an emergency.
(3) "Responding state" means the state furnishing aid, or requested to furnish aid.
(b) Upon request of the
governor of a party state for assistance in an emergency, the governor of a
responding state shall have authority under this Compact to send without the
borders of his the responding state and place under the temporary
command of the appropriate National Guard or other military authorities of the
requesting state all or any part of the National Guard forces of his the
responding state as he the governor of the responding state may
deem necessary, and the exercise of his the governor's discretion
in this regard shall be conclusive.
(c) The governor of a party
state may withhold the National Guard forces of his that governor's
state from such use and recall any forces or part or member thereof previously
deployed in a requesting state.
(d) Whenever National Guard forces of any party state are engaged in another state in carrying out the purposes of this Compact, the members thereof so engaged shall have the same powers, duties, rights, privileges and immunities as members of National Guard forces in such other state. The requesting state shall save members of the National Guard forces of responding states harmless from civil liability for acts or omissions in good faith which occur in the performance of their duty while engaged in carrying out the purposes of this Compact, whether the responding forces are serving the requesting state within its borders or are in transit to or from such service.
(e) Subject to the provisions of subsections (f), (g) and (h) of this section, all liability that may arise under the laws of the requesting state, the responding state, or a third state on account of or in connection with a request for aid, shall be assumed and borne by the requesting state.
(f) Any responding state rendering aid pursuant to this Compact shall be reimbursed by the requesting state for any loss or damage to, or expense incurred in the operation of any equipment answering a request for aid, and for the cost of the materials, transportation and maintenance of National Guard personnel and equipment incurred in connection with such request: Provided, that nothing herein contained shall prevent any responding state from assuming such loss, damage, expense or other cost.
(g) Each party state shall provide, in the same amounts and manner as if they were on duty within their state, for the pay and allowances of the personnel of its National Guard units while engaged without the state pursuant to this Compact and while going to and returning from such duty pursuant to this Compact. Such pay and allowances shall be deemed items of expense reimbursable under subsection (f) of this section by the requesting state.
(h) Each party state providing for the payment of compensation and death benefits to injured members and the representatives of deceased members of its National Guard forces in case such members sustain injuries or are killed within their own state, shall provide for the payment of compensation and death benefits in the same manner and on the same terms in case such members sustain injury or are killed while rendering aid pursuant to this Compact. Such compensation and death benefits shall be deemed items of expense reimbursable pursuant to subsection (f) of this section.
"§ 127A‑178. Delegation.
Nothing in this Compact shall be
construed to prevent the governor of a party state from delegating any of his
the governor's responsibilities or authority respecting the National
Guard, provided that such delegation is otherwise in accordance with law. For
purposes of this Compact, however, the governor shall not delegate the power to
request assistance from another state.
"§ 127A‑179. Limitations.
Nothing in this Compact shall:
(1) Expand or add to the functions of the National Guard, except with respect to the jurisdictions within which such functions may be performed;
(2) Authorize or permit National Guard units to be placed under the field command of any person not having the military or National Guard rank or status required by law for the field command position in question.
"§ 127A‑181. Payment of liability to responding state.
Upon presentation of a claim
therefor by an appropriate authority of a state whose National Guard forces
have aided this State pursuant to the Compact, any liability of this State pursuant
to G.S. 127A‑177(f) of this Compact shall be paid out of the
general fund.
"§ 127A‑182. Status, rights and benefits of forces engaged pursuant to Compact.
In accordance with G.S. 127A‑177(h)
of this Compact, G.S. 127A‑177(h), members of the National
Guard forces of this State shall be deemed to be in State service at all times
when engaged pursuant to this Compact, and shall be entitled to all rights and
benefits provided pursuant to the laws of this State.
"§ 127A‑183. Injury or death while going to or returning from duty.
All benefits to be paid under G.S. 127A‑177(h)
of the foregoing Compact shall include any injury or death sustained
while going to or returning from such duty.
"§ 127A‑184. Authority of responding state required to relieve from assignment or reassign officers.
Nothing in the foregoing this
Compact shall authorize or permit state officials or military officers of the
requesting state to relieve from assignment or reassign officers or
noncommissioned officers of National Guard units of the responding state
without authorization by the appropriate authorities of the responding state.
"Article 16.
"National Guard Reemployment Rights.
"§ 127A‑202. Rights.
Upon release from State duty, the
employee shall make written application to his the employee's
previous employer for reemployment within five days of his the
employee's release from duty or from hospitalization continuing after
release. If the employee is still qualified for his the employee's
previous employment, he the employee shall be restored to his
previous position or to a position of like seniority, status and salary, unless
the employer's circumstances now make the restoration unreasonable. If the
employee is no longer qualified for his the employee's previous
employment, he the employee shall be placed in another position,
for which he the employee is qualified, and which will give him
the employee appropriate seniority, status and salary, unless the
employer's circumstances now make the placement unreasonable.
."
SECTION 1.(b) The Revisor of Statutes is authorized to substitute, consistent with this act, the term "Armed Forces of the United States" for the following terms, wherever these terms appear in the General Statutes, when referring to the Armed Forces of the United States:
(1) "armed forces."
(2) "Armed Forces."
(3) "armed forces of the United States."
(4) "armed services of the United States."
(5) "United States armed services."
(6) "United States armed forces."
(7) "United States Armed Forces."
(8) "U.S. armed forces."
(9) "U.S. Armed Forces."
SECTION 1.(c) The Revisor of Statutes is authorized to insert, consistent with this act, the words "United States" before references to the "army," "navy," "marine corps," "coast guard," and "air force," wherever these terms appear in the General Statutes, when referring to a branch or branches of the Armed Forces of the United States, and to capitalize those terms.
SECTION 1.(d) The Revisor of Statutes is authorized to substitute, consistent with this act, the term "North Carolina National Guard" for the terms "National Guard," "national guard," and "guard," wherever these terms appear in the General Statutes, when referring to the North Carolina National Guard.
SECTION 2. This act is effective when it becomes law.
In the General Assembly read three times and ratified this the 14th day of June, 2011.
s/ Walter H. Dalton
President of the Senate
s/ Thom Tillis
Speaker of the House of Representatives
s/ Beverly E. Perdue
Governor
Approved 11:34 a.m. this 23rd day of June, 2011
