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* $500,000 shall be available exclusively for defraying the cost of increasing the strength of the National Guard from approximately two hundred thousand to not exceeding an average of two hundred and five thousand officers and men
* Sec. 1, military appropriation act of July 1, 1937 (50 Stat. 462).
1264. Adjutants general; appointment.-There shall be appointed in each State, Territory, and District of Columbia, an adjutant general, who shall perform such duties as may be prescribed by the laws of such State, Territory, and District, respectively, * * Sec. 12, act of Jan. 21, 1903 (32 Stat. 776); 32 U. S. 0. 11.
Provided, That the adjutants general of the Territories and of the District of Columbia shall be appointed by the President with such rank and qualifications as he may prescribe, and each adjutant general for a Territory shall be a citizen of the Territory for which he is appointed. Sec. 66, act of June 3, 1916 (39 Stat. 199); 32 U. S. C. 12.
Provisions for detail of an active or retired officer of the Army as adjutant general of the District of Columbia Militia are made by 195 and 219, respectively, ante.
1265. Adjutants general; duties. The adjutants general of the States, Terri. tories, and the District of Columbia and the officers of the National Guard shall make such returns and reports to the Secretary of War, or to such officers as he may designate, at such times and in such form as the Secretary of War may from time to time prescribe:
Sec. 66, act of June 3, 1916 (39 Stat. 199); 32 U. 8. C. 13.
1266. Ancient Corps.--Any corps of Artillery, Cavalry, or Infantry existing in any of the States on the passage of the Act of May eighth, seventeen hundred and ninety-two, which by the laws, customs, or usages of said States has been in continuous existence since the passage of said Act, under its provisions and under the provisions of section two hundred and thirty-two and sections sixteen hundred and twenty-five to sixteen hundred and sixty, both inclusive, of title sixteen of the Revised Statutes of eighteen hundred and seventy-three, and the Act of January twenty-first, nineteen hundred and three, relating to the militia, shall be allowed to retain its ancient privileges, subject, nevertheless, to all duties required by law of militia : Provided, That said organizations may be a part of the National Guard and entitled to all the privileges of this Act, and shall conform in all respects to the organization, discipline, and training of 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 as. signed to higher units, as the President may direct, and shall be subject to the orders of officers under whom they shall be serving. Sec. 63, act of June 3, 1916 (39 Stat. 198); 32 U. S. C. 192.
That pursuant to section 63 of the National Defense Act of June 3, 1916, as amended, the First Corps Cadets, antedating, and continuously existing in the State of Massachusetts since, the Act of May 8, 1792, now designated as the Second Battalion, Two hundred and eleventh Artillery, Antiaircraft, Coast Artil. lery Corps, First Corps Cadets, Massachusetts National Guard, hereby declared to be such a corps as is defined in said section 63 for all the 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. Said First Corps Cadets is hereby further declared to be entitled to a lieutenant colonel in command, and a major second in command; and said officers, when federally recognized, shall receive, in accordance with the provisions of said National Defense Act, and the Pay Readjustment Act of June 10, 1922, the pay ity.-*
of their respective grades: Provided, That nothing in this section or other provisions of law shall be deemed to be in derogation of any other ancient privileges to which said First Corps Cadets is entitled under the laws, customs, or usages of the State of Massachusetts. Sec. 6, act of June 6, 1924 (43 Stat. 471); 32 U. S. C. 193.
R. S. 232 and R. S. 1625-1660 were repealed by sec. 25 of the act of Jan. 21, 1903 (32 Stat. 780). 1266a. Appointment of officers, National Guard of the United States; author
Such appointments in grades below that of brigadier general shall be made by the President alone, and general officers by and with the advice and consent of the Senate. Sec. 38, added to act of June 3, 1916, by seo. 4, act of June 15, 1933 (48 Stat. 155); 32 U. S. C. 18.
1266b. Appointment of officers, National Guard of the United States; period of service.-Officers in the National Guard of the United States shall be appointed for the period during which they are federally recognized in the same grade and branch in the National Guard : Provided, That an appointment in force at the outbreak of war shall continue in force until six months after its termination; And provided further, That such officer shall be entitled to be relieved from active Federal service within six months after its termination if he makes application therefor. Sec. 38, added to act of June 3, 1916, by sec. 4, act of June 15, 1933 (48 Stat. 155); 32 U. 8. O. 19.
1266c. Appointment of National Guard officers and warrant officers in National Guard of the United States; Federal recognition.—The provisions of this Act shall not apply to any person hereafter appointed as an officer of the National Guard unless he first shall have successfully passed such tests as to his physical, moral, and professional fitness as the President shall prescribe. The examination to determine such qualifications for appointment shall be conducted by a board of three commissioned officers appointed by the Secretary of War from the Regular Army or the National Guard of the United States, or both. The examination herein provided for may be held prior to the original appointment or promotion of any individual as an officer or warrant officer and if the applicant has been found qualified, he may be issued a certificate of eligibility by the Chief of the National Guard Bureau, which certificate, in the event of appointment or promotion within two years to the office for which he was found qualified, shall entitle the holder to Federal recognition without further examination, except as to his physical condition.
Upon being federally recognized such officers and warrant officers may be appointed in the National Guard of the United States. Sec. 75, act of June 3, 1916 (39 Stat. 202); scc. 12, act of June 15, 1933 (48 Stat. 158); 32 U. S. C. 113.
1266d. Appointment of National Guard officers and warrant officers in National Guard of the United States; grades and branches.--The President is authorized to appoint in the same grade and branch in the National Guard of the United States any person who is an officer or warrant officer in the National Guard of any State, Territory, or the District of Columbia and who is federally recognized in that grade and branch: Provided, That acceptance of appointment in the same grade and branch in the National Guard of the United States, by an officer of the National Guard of a State, Territory, or the District of Columbia, shall not operate to vacate his State, Territory, or District of Columbia National Guard office. Officers or warrant officers of the National Guard who are in a federally recognized status on the date of the approval of this Act shall take the oath of office herein prescribed and shall be appointed in the National Guard of the United States in the same grade and branch without further examination, other than physical, within a time limit to be fixed by the President, and shall in the meantime continue to enjoy all the rights, benefits, and privileges conferred by this Act. Sec. 73, act of June 3, 1916 (39 Stat. 201); sec. 11, act of June 15, 1933 (48 Stat. 158); 32 U. S.C. 113a. For oath of office referred to, see 1294, post.
1266e. Appointment of officers, National Guard; classes eligible.-Persons hereafter commissioned as officers of the National Guard shall not be recognized as such under any of the provisions of this Act unless they shall have been selected from the following classes, and shall have taken and subscribed to the oath of office prescribed in the preceding section of this Act; officers or enlisted men of the National Guard; officers, active or retired, reserve officers, and former officers of the Army, Navy, or Marine Corps, enlisted men and former enlisted men of the Army, Navy, or Marine Corps who have received an honorable discharge therefrom; graduates of the United States Military and Naval Academies; and graduates of schools, colleges, universities, and officers' training camps, where they have received military instruction under the supervision of an officer of the Regular Army who certified their fitness for appointment as commissioned officers; and for the technical branches or Staff Corps and departments, such other civilians as may be specially qualified for duty therein. Sec. 9, act of June 3, 1916 (39 Stat. 201); sec. 41, act of June 4, 1920 (41 Stat. 781); 32 U. S. C. 111.
For oath prescribed in the "preceding section," see 1294, post.
1268. Arms, equipment, and uniform.-The National Guard shall, as far as practicable, be uniformed, armed, and equipped with the same type of uniforms, arms, and equipments as are or shall be provided for the Regular Army. Sec. 82, act of June 3, 1916 (39 Stat. 203); scc. 17, act of June 15, 1933 (48 Stat. 160); 32 U. S. C. 31.
The wearing of the duly prescribed uniform of the United States Army, Navy, or Marine Corps, or any distinctive part of such uniform, or a uniform similar in any part to a distinctive part of said duly prescribed uniforms, by any person not an officer or enlisted man of the United States Army, Navy, or Marine Corps, was prohibited by sec. 125 of this act, 2148, post.
See 2154, post, as to wearing the uniform of the National Guard.
Provisions for issue of arms, uniforms, equipment, and supplies to the National Guard are found in 2027, 2058, 2082, post.
1269. Caretakers.--That the funds allotted by the Secretary of War for the support of the National Guard shall be available for the purchase and issue of forage, bedding, shoeing, and veterinary services, and supplies for the Government animals issued to any organization, and for animals owned or hired by any State, Territory, District of Columbia, or National Guard organization, not exceeding the number of animals authorized by Federal law for such organization and used solely for military purposes, and for the compensation of competent help for the care of material, animals, armament, and equipment of organizations of all kinds, under such regulations as the etary of War may prescribe: Provided, That the caretakers hereby authorized to be employed shall not exceed five for any one organization, except heavier-than-air squadrons, for each of which a maximum of thirteen is authorized, who shall be paid by the United States disbursing officer for each State, Territory, and the District of Columbia.
The compensation paid to caretakers who belong to the National Guard, as herein authorized, shall be in addition to any compensation authorized for members of the National Guard under any of the provisions of the National Defense Act.
Under such regulations as the Secretary of War shall prescribe, the material, animals, armament, and equipment, or any part thereof, of the National Guard of any State, Territory, or the District of Columbia or organizations thereof, may be put into a common pool for care, maintenance, and storage; and the employment of caretakers therefor, not to exceed fifteen for any one pool, is hereby authorized.
Caretakers heretofore detailed or employed in pools shall be deemed to have been regularly detailed or employed as such under the law and regulations; and all payments heretofore or hereafter made therefor are hereby validated and authorized.
Commissioned officers of the National Guard shall not be employed as caretakers, except that one such officer not above the grade of captain for each heavier-than-air squadron may be employed. Either enlisted men or civilians may be employed as caretakers, but if there are as many as two caretakers in any organization, one of them shall be an enlisted man.
The Secretary of War shall, by regulations, fix the salaries of all caretakers hereby authorized to be employed and shall also designate by whom they shall be employed. Sec. 90, act of June 3, 1916 (39 Stat. 205); sec. 46, act of June 4, 1920 (41 Stat. 783); sec. 5, act of June 6, 1924 (43 Stat. 471); sec. 1, act of May 28, 1926 (44 Stat. 673); act of Apr. 21, 1928 (45 Stat. 440); sec. 6, act of June 19, 1935 (49 Stat. 392); 32 U. S. 0.42.
That moneys hereafter appropriated under the provisions of the National Defense Act, as amended, for compensation of help for care of material, animals, armament, and equipment in the hands of the National Guard of the several States, Territories, and the District of Columbia shall be available for the hire of caretakers who may also perform clerical duties incidental to their employment, and such moneys may be used as supplemental to money appropriated by the several States, Territories, and the District of Columbia for the support of the National Guard: Provided, That nothing herein contained shall be construed to prevent the utilization of the services of such caretakers on duties other than those indicated above, if such additional services do not interfere with the complete performance of the duties for which they are employed under the provisions of this Act: Provided further, That payments heretofore made for said help which now stand disallowed or would hereafter be disallowed but for this Act are hereby ratified and validated as to the disbursing officers making the same in such amounts only as are approved by the Secretary of War, whose determination shall be final and conclusive, and the Comptroller General of the United States is hereby directed to allow credit in the accounts of said disbursing officers for and on account of such payments in said amounts: And provided further, That nothing herein shall be construed to prevent the collection from the personnel concerned of any amounts determined by the Secretary of War to be due the United States. Act of June 25, 1938 (52 Stat. 1173); 32 U.S. C. 420.
Provision for purchase by the Secretary of War of animals for issue to the National Guard is found in 2043, post.
1270. Command of joint maneuvers with the Regular Army.--When any part of the National Guard participates in encampments, maneuvers, or other exercises, including outdoor target practice, for field or coast-defense instruction at a United States military post, or reservation, or elsewhere, if in conjunction with troops of the United States, the command of such military post or reservation and of the officers and troops of the United States on duty there or elsewhere shall remain with the commander of the United States troops without regard to the rank of the commanding or other officer of the National Guard temporarily engaged in the encampments, maneuvers, or other exercises. Sec. 95, act of June 3, 1916 (39 Stat. 207); 32 U. 8. C. 72.
1271. Commissions of officers; National Guard of the United States.-All persons appointed officers in the National Guard of the United States are reserve officers and shall be commissioned in the Army of the United States. Sec. 38, added to act of June 3, 1916, by sec. 4, act of June 15, 1933 (48 Stat. 155); 10 U. S. C. 355.
1272. For text of this section as published in the 1929 Edition, see 1333b, post.
1273. Courts-martial; classified.—Except in organizations in the service of the United States, court-martial in the National Guard shall be of three kinds: namely, general courts-martial, special courts-martial, and summary courtsmartial. They shall be constituted like, and have cognizance of the same subjects, and possess like powers, except as to punishments, as similar courts provided for by the laws and regulations governing the Army of the United States, and the proceedings of courts-martial of the National Guard shall follow the forms and modes of procedure prescribed for said similar courts. Sec. 102, act of June 3, 1916 (39 Stat. 208); 32 U. 8. C. 91.
Notes of Decisions Constitutionality and jurisdiction. -"Public of the Armies of the United States (Mo. St. danger" as used in constitutional provision Ann. secs. 13831, 13846, 13847 et seq., pp. under which court-martial is allowed in case 5095, 5101, 5103 et seq. ; Const. art. 2, secs. arising in militia while in active service in 10, 12, 27, 28, 30; art. 5, secs. 6, 7; art. 6, time of war or public danger held to apply sec. 1; art. 13, sec. 1 et seq. ; sec. 2). Id. where militia was called because of emer- Whenever any portion of National Guard is gency created by a flood (Const. art. 2, sec. called or are on duty pursuant to authority 12). McKittrick v. Brown (Mo., 1935), 85 of the Governor, a "public danger" within S. W. (20), 385.
meaning of Constitution exists and, by statProvisions in Constitution guaranteeing ute, articles of war governing Army of the an accused right of jury trial in civil courts United States shall under such circumstances interpose no constitutional obstacle to enact- be enforced and as to offenses committed durment of statutes authorizing trial of persons ing that time courts-martial possess jurisin military service by court-martial, in cases diction exercised by like courts under articles arising in the militia when in actual service of war (Mo. St. Ann. sec. 13831, p. 5095 ; in time of public danger found and declared 10 U. S. C. A, secs. 1564, 1565, 1568; Const. by the Governor, especially where the stat- art. 2, sec. 12). Id. utes conform to regulations for government
1274. General courts-martial.-General courts-martial of the National Guard not in the service of the United States may be convened by orders of the President, or of the governors of the respective States and Territories, or by the commanding general of the National Guard of the District of Columbia, and such courts shall have the power to impose fines not exceeding $200; to sentence to forfeiture of pay and allowances; to a reprimand; to dismissal or dishonorable discharge from the service; to reduction of noncommissioned officers to the ranks; or any two or more of such punishments may be combined in the sentences imposed by such courts. Sec. 103, act of June 3, 1916 (39 Stat. 208); 32 U. 8. C. 92.
Notes of Decisions Jurisdiction.—Court-martial held to have punishable by court-martial in time of peace no jurisdiction to try prisoner on charge of (Mo. St. Ann. sec. 3984, p. 2788; 10 U. S. deliberately committing a homicide while C. A. secs. 1508, 1564). McKittrick 0. prisoner was on duty as member of State Brown (Mo., 1935), 85 S. W. (20) 385. militia in flood area, since the charge was Court-martial held to have jurisdiction to first-degree murder, a capital offense, and not try prisoner for willfully but without deliber