### §104. Units: location; organization; command

(a) Each State, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands 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, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands. 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, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands 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, §1234(b)(1), (2), Sept. 29, 1988, 102 Stat. 2059; Pub. L. 109–163, div. A, title X, §1057(b)(2)–(4), Jan. 6, 2006, 119 Stat. 3441.)

| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
| --- | --- | --- |
| 104(a)104(b)104(c) | 32:6.32:5 (1st sentence).32:5 (less 1st sentence). | June 3, 1916, ch. 134, §§64, 65 (proviso), 68, 39 Stat. 198–200. |
| 104(d)104(e)104(f) | 32:8.32:10 (proviso).32:16. | June 3, 1916, ch. 134, §60; June 4, 1920, ch. 227 subch. I, §36; restated June 15, 1933, ch. 87, §6, 48 Stat. 156. |

104(b)

104(c)

32:5 (1st sentence).

32:5 (less 1st sentence).

104(e)

104(f)

32:10 (proviso).

32:16.

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".

#### **Editorial Notes**

#### Amendments

2006—Subsec. (a). Pub. L. 109–163, §1057(b)(4), substituted "State, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands" for "State or Territory and Puerto Rico".

Subsec. (c). Pub. L. 109–163, §1057(b)(2), substituted "State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands" for "State and Territory, Puerto Rico, and the District of Columbia".

Subsec. (d). Pub. L. 109–163, §1057(b)(3), substituted "State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands" for "State or Territory, Puerto Rico, or the District of Columbia".

1988—Subsec. (a). Pub. L. 100–456, §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, §1234(b)(1), struck out "the Canal Zone," after "Puerto Rico,".

#### **Statutory Notes and Related Subsidiaries**

#### Council of Governors

Pub. L. 110–181, div. A, title XVIII, §1822, Jan. 28, 2008, 122 Stat. 500, provided that: "The President shall establish a bipartisan Council of Governors to advise the Secretary of Defense, the Secretary of Homeland Security, and the White House Homeland Security Council on matters related to the National Guard and civil support missions."

#### Comptroller General Assessments of National Guard Management

Pub. L. 107–314, div. A, title V, §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, §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

Act Aug. 10, 1956, ch. 1041, §32, 70A Stat. 633, 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."

#### **Executive Documents**

#### Ex. Ord. No. 13528. Establishment of the Council of Governors

Ex. Ord. No. 13528, Jan. 11, 2010, 75 F.R. 2053, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 1822 of the National Defense Authorization Act of [sic] 2008 (Public Law 110–181), and in order to strengthen further the partnership between the Federal Government and State governments to protect our Nation and its people and property, it is hereby ordered as follows:

Section 1. Council of Governors.

(a) There is established a Council of Governors (Council). The Council shall consist of 10 State Governors appointed by the President (Members), of whom no more than five shall be of the same political party. The term of service for each Member appointed to serve on the Council shall be 2 years, but a Member may be reappointed for additional terms.

(b) The President shall designate two Members, who shall not be members of the same political party, to serve as Co-Chairs of the Council.

Sec. 2. Functions. The Council shall meet at the call of the Secretary of Defense or the Co-Chairs of the Council to exchange views, information, or advice with the Secretary of Defense; the Secretary of Homeland Security; the Assistant to the President for Homeland Security and Counterterrorism; the Assistant to the President for Intergovernmental Affairs and Public Engagement; the Assistant Secretary of Defense for Homeland Defense and Americas' Security Affairs; the Commander, United States Northern Command; the Chief, National Guard Bureau; the Commandant of the Coast Guard; and other appropriate officials of the Department of Homeland Security and the Department of Defense, and appropriate officials of other executive departments or agencies as may be designated by the Secretary of Defense or the Secretary of Homeland Security. Such views, information, or advice shall concern:

(a) matters involving the National Guard of the various States;

(b) homeland defense;

(c) civil support;

(d) synchronization and integration of State and Federal military activities in the United States; and

(e) other matters of mutual interest pertaining to National Guard, homeland defense, and civil support activities.

Sec. 3. Administration.

(a) The Secretary of Defense shall designate an Executive Director to coordinate the work of the Council.

(b) Members shall serve without compensation for their work on the Council. However, Members shall be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law.

(c) Upon the joint request of the Co-Chairs of the Council, the Secretary of Defense shall, to the extent permitted by law and subject to the availability of appropriations, provide the Council with administrative support, assignment or detail of personnel, and information as may be necessary for the performance of the Council's functions.

(d) The Council may establish subcommittees of the Council. These subcommittees shall consist exclusively of Members of the Council and any designated employees of a Member with authority to act on the Member's behalf, as appropriate to aid the Council in carrying out its functions under this order.

(e) The Council may establish a charter that is consistent with the terms of this order to refine further its purpose, scope, and objectives and to allocate duties, as appropriate, among members.

Sec. 4. Definitions. As used in this order:

(a) the term "State" has the meaning provided in paragraph (15) [now (17)] of section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101(15) [now 101(17)]); and

(b) the term "Governor" has the meaning provided in paragraph (5) of section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122(5)).

Sec. 5. General Provisions.

(a) Nothing in this order shall be construed to impair or otherwise affect:

(1) the authority granted by law to a department, agency, or the head thereof; or

(2) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.