Posted on May 17, 2020
How can State Defense Force members be subject to the UCMJ?
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These soldiers (Airmen, sailors) have no federal status or benefits. They cannot be denied federally. They can't even use the PX or other facilities on base although some Commanders particularly on bases with a lot of National Guard do let them. So I don't see any legal logic to how they can be subject to a federal law. The only thing I could think of is that the states would have to have a parallel set of of laws that a part of state code. However California State Guard members are subject to the UCMJ when on duty!
UCMJ
Law
Posted >1 y ago
Responses: 11
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UCMJ is incorporated into state law for state military reserves:
California Code, Military and Veterans Code - MVC § 560:
(a) The Uniform Code of Military Justice (Chapter 47 (commencing with Section 801 ) of Title 10 of the United States Code) and the rules and regulations adopted thereunder, together with the Manual for Courts-Martial, United States, 1984 (Executive Order 12473 of April 13, 1984, as amended), are hereby adopted as part of this code and shall be applicable to and govern the State Military Reserve.
California Code, Military and Veterans Code - MVC § 560:
(a) The Uniform Code of Military Justice (Chapter 47 (commencing with Section 801 ) of Title 10 of the United States Code) and the rules and regulations adopted thereunder, together with the Manual for Courts-Martial, United States, 1984 (Executive Order 12473 of April 13, 1984, as amended), are hereby adopted as part of this code and shall be applicable to and govern the State Military Reserve.
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LTC (Join to see)
I know it covered in the military and vets code, but it still doesn't seem logical legally that estate you can tell an employee went to that they are subject to a federal law that only applies to people on federal status. SFC Kelley, said they are not unless they have dual-status as a military retiree who is recalled. So it would be interesting question. Although many military retirees and veterans join a State Defense Force it is not neither is required.
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CW3 (Join to see)
LTC (Join to see) - Sir, this question often comes up on RallyPoint. SGM (Join to see) is correct that 560 CMVC essentially is a catch-all for anything not covered by the state code, and many other states follow suit with their own making it so the ICMJ essentially applies (as I stated above in my own post). It does make sense when you consider that they are a government military force, even though they are in a state-owned status. Forces such as these must have legal limitations and a system in place that must be followed. You can find laws limiting law enforcement officers within states as well, and can even go down the line on other government entities. However, with military and police specifically, a lot of authority and power are given to these individuals which laws like these essentially regulate. In fact, under CA Penal Code 830.4(a) California National Guard soldiers and airmen can even be given state police powers under certain conditions, which again, is very similar in other states. The UCMJ and applicable state military codes help to keep good order and discipline within the military forces. And in the case of state forces, it also makes it easier for National Guard soldiers to transition to federal service where the full federal UCMJ does *directly* apply (which happens often as I am sure you are aware).
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The State Defense Force is an all volunteer force and does not fall under the authority of the UCMJ. However, as LTC Dolgin mentioned each State has a parallel system that covers the standard behavior of the volunteers.
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That's an interesting question LTC (Join to see). I was part of the TN State Guard for a couple years after leaving Federal service. We were not subject to the UCMJ but could be prosecuted under applicable TN State or Federal laws. I'm wondering if CA adopted an agreement stating members would be subject to UCMJ actions while performing official duties? Even then, a competent attorney could most likely get the charges dismissed since the members are not under Federal control.
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MSgt Steven Holt, NRP, CCEMT-P
Capt Gregory Prickett - There's our answer then. I'm not familiar with CA statutes. Thank you for the insight.
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