§ 104. — Units: location; organization; command.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 32USC104]
TITLE 32--NATIONAL GUARD
CHAPTER 1--ORGANIZATION
Sec. 104. Units: location; organization; command
(a) Each State or Territory and Puerto Rico may fix the location of
the units and headquarters of its National Guard.
(b) Except as otherwise specifically provided in this title, the
organization of the Army National Guard and the composition of its units
shall be the same as those prescribed for the Army, subject, in time of
peace, to such general exceptions as the Secretary of the Army may
authorize; and the organization of the Air National Guard and the
composition of its units shall be the same as those prescribed for the
Air Force, subject, in time of peace, to such general exceptions as the
Secretary of the Air Force may authorize.
(c) To secure a force the units of which when combined will form
complete higher tactical units, the President may designate the units of
the National Guard, by branch of the Army or organization of the Air
Force, to be maintained in each State and Territory, Puerto Rico, and
the District of Columbia. However, no change in the branch,
organization, or allotment of a unit located entirely within a State may
be made without the approval of its governor.
(d) To maintain appropriate organization and to assist in training
and instruction, the President may assign the National Guard to
divisions, wings, and other tactical units, and may detail commissioned
officers of the National Guard or of the Regular Army or the Regular Air
Force, as the case may be, to command those units. However, the
commanding officer of a unit organized wholly within a State or
Territory, Puerto Rico, or the District of Columbia may not be displaced
under this subsection.
(e) To insure prompt mobilization of the National Guard in time of
war or other emergency, the President may, in time of peace, detail a
commissioned officer of the Regular Army to perform the duties of chief
of staff for each fully organized division of the Army National Guard,
and a commissioned officer of the Regular Air Force to perform the
duties of the corresponding position for each fully organized wing of
the Air National Guard.
(f) Unless the President consents--
(1) an organization of the National Guard whose members have
received compensation from the United States as members of the
National Guard may not be disbanded; and
(2) the actual strength of such an organization in commissioned
officers or enlisted members may not be reduced below the minimum
strength prescribed by the President.
(Aug. 10, 1956, ch. 1041, 70A Stat. 598; Pub. L. 100-456, div. A, title
XII, Sec. 1234(b)(1), (2), Sept. 29, 1988, 102 Stat. 2059.)
Historical and Revision Notes
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Revised section Source (U.S. Code) Source (Statutes at Large)
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104(a)................................ 32:6. June 3, 1916, ch. 134, Secs. 64,
104(b)................................ 32:5 (1st sentence). 65 (proviso), 68, 39 Stat. 198-
104(c)................................ 32:5 (less 1st sentence). 200.
104(d)................................ 32:8. June 3, 1916, ch. 134, Sec. 60;
104(e)................................ 32:10 (proviso). June 4, 1920, ch. 227 subch. I,
104(f)................................ 32:16. Sec. 36; restated June 15, 1933,
ch. 87, Sec. 6, 48 Stat. 156.
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In subsection (a), the words ``within their respective borders'' are
omitted as surplusage.
In subsection (b), the word ``Army'' is substituted for the words
``Regular Army'', since the Army is the category for which the
organization is prescribed, and the Regular Army is a personnel category
for which no organization is prescribed. Similarly, the words ``Air
Force'' are used instead of the words ``Regular Air Force''.
In subsection (c), the words ``by branch of the Army or organization
of the Air Force'' are substituted for the words ``as to branch or arm
of service''. The words ``branch, organization, or allotment of a unit''
are substituted for the words ``allotment, branch, or arm of units or
organizations''.
In subsections (d) and (e) the word ``commissioned'' is inserted,
since 32:8 and 10 historically applied only to commissioned officers
(see opinion of the Judge Advocate General of the Army (JAGA 1953/4078,
6 May 1953)).
In subsection (d), the word ``brigades'' is omitted as surplusage.
In subsection (e), the word ``tactical'' is omitted as surplusage.
In subsection (f), the words ``have received compensation from the
United States as members of the National Guard'' are substituted for the
words ``shall be entitled to and shall have received compensation under
the provisions of this title''. The words ``actual strength * * * in
commissioned officers or enlisted members'' are substituted for the
words ``commissioned or enlisted strength''.
Amendments
1988--Subsec. (a). Pub. L. 100-456, Sec. 1234(b)(2), substituted
``Each State or Territory and Puerto Rico'' for ``Each State and
Territory, Puerto Rico, and the Canal Zone''.
Subsecs. (c), (d). Pub. L. 100-456, Sec. 1234(b)(1), struck out
``the Canal Zone,'' after ``Puerto Rico,''.
Comptroller General Assessments of National Guard Management
Pub. L. 107-314, div. A, title V, Sec. 511(a), Dec. 2, 2002, 116
Stat. 2536, provided that: ``Not later than one year after the date of
the enactment of this Act [Dec. 2, 2002], the Comptroller General shall
submit to Congress a report on management of the National Guard. The
report shall include the following:
``(1) The Comptroller General's assessment of the effectiveness
of the implementation of Department of Defense plans for improving
management and accounting for personnel strengths in the National
Guard, including an assessment of the process that the Department of
Defense, the National Guard Bureau, the Army National Guard and
State-level National Guard leadership, and leadership in the other
reserve components have for identifying and addressing in a timely
manner specific units in which nonparticipation rates are
significantly in excess of the established norms.
``(2) The Comptroller General's assessment of the effectiveness
of the process for Federal recognition of senior National Guard
officers and recommendations for improvement to that process.
``(3) The Comptroller General's assessment of the process for,
and the nature and extent of, the administrative or judicial
corrective action taken by the Secretary of Defense, the Secretary
of the Army, and the Secretary of the Air Force as a result of
Inspector General investigations or other investigations in which
allegations against senior National Guard officers are substantiated
in whole or in part.
``(4) The Comptroller General's determination of the
effectiveness of the Federal protections provided for members or
employees of the National Guard who report allegations of waste,
fraud, abuse, or mismanagement and the nature and extent to which
corrective action is taken against those in the National Guard who
retaliate against such members or employees.''
Study of State and Federal Missions of National Guard
Pub. L. 103-160, div. A, title V, Sec. 522, Nov. 30, 1993, 107 Stat.
1655, directed Secretary of Defense to provide for a study of State and
Federal missions of National Guard to be carried out by a federally
funded research and development center, including consideration of both
separate and integrated requirements (including requirements pertaining
to personnel, weapons, equipment, and facilities) that derive from those
missions, required an interim report not later than May 1, 1994, and a
final report not later than Nov. 15, 1994, directed Secretary to submit
each report to Congress, not later than 15 days after the date on which
it is received by the Secretary, and directed Secretary, together with
Secretary of the Army and Secretary of the Air Force, to conduct
evaluation of assumptions, analysis, findings, and recommendations of
the study and, not later than Feb. 1, 1995, to submit to Congress a
report on the evaluation.
Retention of Ancient Privileges and Organization
Section 32 of act Aug. 10, 1956, provided that:
``(a) Any corps of artillery, cavalry, or infantry existing in any
of the States on the passage of the Act of May 8, 1792, which by the
laws, customs, or usages of those States has been in continuous
existence since the passage of that Act, shall be allowed to retain its
ancient privileges, subject, nevertheless to all duties required by law
of militia: Provided, That those organizations may be a part of the
National Guard and entitled to all the privileges thereof, and shall
conform in all respects to the organization, discipline, and training to
the National Guard in time of war: Provided further, That 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.
``(b) The First Corps Cadets, antedating, and continuously existing
in the State of Massachusetts since, the Act of May 8, 1792, now
designated as the 126th Tank Battalion, 26th Infantry Division, hereby
declared to be a corps as defined in subsection (a) of this Act for all
purposes thereof and now incorporated in the Organized Militia and a
part of the National Guard of Massachusetts, shall be allowed to retain
its ancient privileges and organization. The First Corps Cadets is
hereby declared to be entitled to a lieutenant colonel in command and a
major second in command; and those officers, when federally recognized,
are entitled to the pay provided by law for their respective grades:
Provided, That nothing in this section or other provisions of law shall
be considered to be in derogation of any other ancient privileges to
which the First Corps Cadets is entitled under the laws, customs, or
usages of the State of Massachusetts.''
