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§ 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
----------------------------------------------------------------------------------------------------------------
            Revised section                      Source (U.S. Code)               Source (Statutes at Large)
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------

    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.''



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