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LESSONS LEARNED FOR JUDGE ADVOCATES

Center for Law and Military Operations (CLAMO)

The Judge Advocate General’s Legal Center and School

United States Army

Charlottesville, Virginia 22903-1781
CENTER FOR LAW AND MILITARY OPERATIONS

Director

LTC Ted Martin, USA

Deputy Director

MAJ Sandra Branom, USA

Director, Domestic Operations

MAJ Corey Thomas, ARNGUS

Drilling Individual Mobilization Augmentee

LTC Joe Moreno, USAR

Maritime Operational Law

LCDR Jeremy Snellen, USN

Joint Operational Law

Maj Jon Stevens, USMC

Advanced Operational Law Fellow

LCDR Jim Zoll

Coalition Exchange Officer, United Kingdom

Lt Col Charles P. Larkin

The Judge Advocate General established the Center for Law and Military Operations 

(CLAMO) in 1988 at the direction of the Secretary of the Army. CLAMO is a joint, 

interagency, and multinational legal center located at The Judge Advocate General’s Legal 

Center and School on the campus of the University of Virginia in Charlottesville. 

CLAMO’s mission is to facilitate constant improvement of legal support to military 

operations by first, collecting and synthesizing data relating to legal issues arising in 

military operations, second, identifying trends and connecting subject matter experts 

(SMEs) working the same issues, and third, translating operational law issues and trends 

into products. By accomplishing this mission, CLAMO helps to facilitate the development 

of doctrine, organization, training, materiel, leadership, personnel, and facilities as these 

areas affect the military legal community. CLAMO’s vision is to serve as the most 

responsive resource provider for operational legal professionals in both the classified and 

unclassified environments, disseminating current best practices and timely lessons learned 

provided by the operational force, and serving as expert analysts of emerging legal issues.

The contents of this publication are not to be construed as official positions, policies, 

or decisions of the Federal Government, the Department of Defense, the U.S. Armed 

Forces, or any agencies, activities, commands, units, or personnel thereof. CLAMO 

welcomes and solicits suggestions and contributions of relevant operational law material 

from the field. You may contact CLAMO at (434) 971-3145 (COMM), 521-3145 (DSN), via 

E-mail at usarmy.pentagon.hqda-tjaglcs.mbx.clamo-tjaglcs@mail.mil or by regular mail at 

600 Massie Road, Charlottesville, Virginia 22903-1781. You may also use this same 

information to request copies of this publication or other CLAMO products. 
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FORWARD
CENTER FOR LAW AND MILITARY OPERATIONS

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PREFACE

The purpose of this publication produced by the Center for Law and Military Operations

(CLAMO) is to timely provide active and reserve component judge advocates with lessons 

learned and other material that they may refer to during a disaster response. The desired endstate is increased readiness. Material for this publication was gathered from active and reserve 

component judge advocates and other agency attorneys who participated in the relief operations 

that took place nationally and internationally for Hurricanes Harvey, Irma, and Maria from 

August through October of 2017. The active component commands and activities include the 

National Guard Bureau (NGB), ARNORTH, NORTHCOM, SOUTHCOM, USAREC, as well as 

U.S. Coast Guard Districts 7 and 8. This work would not be possible without the several States 

and territories that supported the hurricane responses and provided feedback to CLAMO. Lastly, 

this publication also incorporates relevant comments made during more than fifty hours of 

interviews, hundreds of hardcopy or electronic documents provided, and E-mails forwarded by 

over sixty contributors listed in the acknowledgments section. This publication would not have 

been possible without the contribution of all concerned.

As you navigate this publication, you will be presented with multiple practice tips and 

other useful pieces of information that will enable you to provide timely and accurate advice to 

commanders, or effectively train service-members during a disaster response. There are also 

multiple appendices. These appendices were carefully created or chosen to either provide you 

with a more in-depth understanding of a particular area of law or policy, or give you quickreferences and templates that will not only save time, but will also point you in the right 

direction. The appropriate appendices and their relevance will be referred to throughout this 

publication. Note that Appendix A captures additional observations and tips worthy of 

mentioning that may not be covered in-depth in the other sections.

While this publication largely covers the laws, policies, and best practices that govern 

domestic responses during major disaster or emergencies, Section K will also address foreign 

disaster relief as there were some DoD personnel who responded to the international damage 

caused by Hurricanes Irma and Maria. Different rules apply when dealing with international

versus domestic disaster responses. For instance, the multiple statuses of the National Guard 

under State and Federal law only come into play domestically. Also, many fiscal authorities are 

different, and, as will be discussed further in this publication, unlike international operations, the 

rules of engagement (ROE) do not apply domestically. These differences have been taken into 

account, and CLAMO has completed an after action report (AAR) addressing the DoD 

international response to the 2017 hurricanes. You may review the AAR by clicking here. 

Additional information on foreign humanitarian assistance can be found in Chapter 18 of the 

Operational Law Handbook (17th Edition). Click here for the Operational Law Handbook 

(CAC required). 

The observations and comments reported in this publication are those of the legal 

personnel who deployed with designated units. The issues, discussions, and conclusions 

presented in this publication do not necessarily represent the views of CLAMO, the JAG Corps, 
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the respective Geographic Combatant Commander (GCC), the National Guard Bureau (NGB), or 

the units/commands interviewed.
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TABLE OF CONTENTS

A. INTRODUCTION 8

B. DISASTER RESPONSE OPERATIONS AND THEIR CONTEXT

B.1—How It All Works: The Act, Plan, and Systems 9

B.2—The System in Action 13

C. EVACUATION

C.1—Necessary Conditions 16

C.2—Safe Haven Factors 17

C.3—Allowances 18

D. REQUEST FOR ASSISTANCE (RFA)

D.1—Immediate Response Authority (Federal Commanders) 19

D.2—Immediate Response Authority (National Guard Commanders) 20

D.3—Immediate Response Authority (Naval Ship Commanders) 22

D.4—Recall of the Reserve Component 23

D.5—D.C. National Guard Involvement (CG Authority and Funding) 27

D.6—32 U.S.C. § 502(f) Status 32

D.7—National Guard Weapons and Ammunition 32

D.8—National Guard Linguist to T-10 Units 35

D.9—Medical Personnel 35

D.10—Use of the Active Guard and Reserve 37

D.11—Search and Rescue 39

D.12—Mortuary Affairs 39

D.13—Placing Augmentees to the NGB Joint Enabling Team on Orders 40

E. COMPACTS AND AGREEMENTS

E.1—Legal Status of Foreign Forces 41

E.2—National Guard Provision of Logistics Support to Foreign Forces 42

E.3—DoD Usage of State Owned Facilities 44

E.4—EMAC and the D.C. National Guard 45

E.5—EMAC and Law Enforcement 45

E.6—National Guard Status under EMAC 46

E.7—Healthcare Providers under EMAC 47

E.8—Credentials/Licensure Requirement for HCPs 47

F. DOMESTIC IMAGERY/INCIDENT AWARNESS & ASSESSMENT

F.1—Generally 49

F.2—Unmanned Aircraft System Usage 52

F.3—Capture and Collection of Images by DoD 54

F.4—Combatant Commander’s Authority to Collect Domestic Imagery 55
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G. USE OF GOVERNMENT PROPERTY

G.1—Use of a National Guard Armory to Support Disaster Response Efforts 56

G.2—DoD Logistics Support to the National Guard 57

G.3—Non-DoD Federal Employee Usage of the Commissary 58

G.4—Governor Transportation on DoD Platforms 59

G.5—National Guard Personnel Travel on MilAir 60

G.6—Civilian Reporter Transportation on MilAir 61

G.7—Space-A Flights Used by non-DoD Persons 62

G.8—Delivery of Donated Goods 65

G.9—National Guard Use of Federal Equipment or Supplies 66

G.10—USCG Transportation of Civilian Prisoners 68

G.11—USCG Transportation of non-USCG Personnel 69

G.12—Approval Authority for a USN Facility as an ISB 71

G.13—Non-DoD Civilian Usage of Navy Lodging 72

G.14—Non-DoD Civilian Usage of the Navy Exchange 72

G.15—Non-DoD Doctor Usage of DoD Medical Tents 73

G.16—DoD Donation of Excess Medicine to Civilians 74

G.17—Title-5 Personnel Eligibility for Space-Required Transportation 74

G.18— Non-DoD and other service Aircrafts U.S. Navy Ships 75

G.19—Approval Authority for Support Installation Designation 76

H. FISCAL LAW

H.1—Procurement of Bottled Water 77

H.2—First Responder Usage of USCG Procured Gasoline 78

H.3—USN Portable Galley Used by Military Personnel on Per Diem 80

H.4—Economy Act Implications (USCG Food Request to the USN) 80

I. STANDING RULES FOR THE USE OF FORCE (SRUF)

I.1—Weapons Carry for T-10 Personnel 81

I.2—Search of Evacuees When Boarding Federal Aircraft 82

J. MARITIME

J.1—DoD Contracts with non-U.S. Flagged Ships 84

J.2—Coast Guard Boarding Team Security at a USCG Installation 85

J.3—USCG Arrests Made under ESF #13 86

J.4—USCG Receipt of a Mission Assignment under ESF #10 88

J.5—Foreign Cruise Ship Transportation of U.S. Citizen Evacuees 90

J.6—Investigation of Civilian Death onboard a USN Ship 91

J.7—USCG Payment for USCG Personnel Lodging 92

J.8—USCG Conduct of Welfare Checks and Provision of Supplies 93

K. FOREIGN DISASTER RELIEF

K.1—Foreign Civilian Evacuation 94

K.2—American Citizen Evacuation 95
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K.3—Transfer of Goods to Affected Countries and Military Partners 96

K.4—Synchronization of Security Cooperation and Foreign Disaster Relief 98

K.5—Understanding Foreign Humanitarian Assistance and DSCA 101

K.6—Joint Task Force Considerations and Diplomatic Notes 103

K.7—Rules of Engagement and Arming Considerations 105

L. MISCELLANEOUS QUESTIONS AND ANSWERS 107

M. ACRONYMS, TERMS, AND DEFINITIONS 115

N. REFERENCES AND RESOURCES 135

APPENDICIES

APPENDIX A: ADDITIONAL OBSERVATIONS AND TIPS 142

APPENDIX B: DSCA AND NGCS CHECKLISTS 149

APPENDIX C: THE ADJUTANTS GENERAL 152

APPENDIX D: DUAL STATUS COMMANDERS 154

APPENDIX E: EMERGENCY MANAGEMENT ASSISTANCE COMPACT 157

APPENDIX F: CONUS EVACUATIONS 161

APPENDIX G: JRSOI (JP 3-35, Chapter 6) 170

APPENDIX H: STATUTORY AUTHORITY FOR ACCESSING THE RC 188

APPENDIX I: RESERVE COMPONENT UTILIZATION AUTHORITIES 190

APPENDIX J: NG ADDITIONAL TRAINING UNDER 32 U.S.C. 502(f)(1) 191

APPENDIX K: SECURITY AND LAW ENFORCEMENT AUTHORITIES 193

APPENDIX L: ESF #13 ACTIVATION FOR HURRICANE HARVEY 196

APPENDIX M: CIVIL AIR PATROL DOMESTIC IMAGERY 199

APPENDIX N: TRANSPORTATION OF CHARITABLE DONATIONS 204

APPENDIX O: DISTRICT OF COLUMBIA NATIONAL GUARD 207

APPENDIX P: DEFENSE SUPPORT OF CIVIL AUTHORITIES SIMPLIFIED 212
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APPENDIX Q: SRUF (CJCSI 3121.01B) SIMPLIFIED 217

APPENDIX R: TOP 15 IRA QUESTIONS AND ANSWERS 222
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A. INTRODUCTION

There are five key elements that characterize the 2017 hurricanes. First, the warm Pacific 

system that was expected for 2017 never formed. The result was a much lower wind shear that 

could break apart early forming Atlantic storms. Second, Atlantic temperatures were higher than 

normal which led to led to rapid intensification of storms. Third, the 2017 hurricanes occurred 

without a break in-between. Harvey overlapped with Irma. Irma overlapped with Jose. Jose 

overlapped with Maria. Fourth, for the first time since 2007, two hurricanes made landfall at 

Category 5 intensity. Hurricane Irma was the strongest storm ever recorded in the Atlantic 

Basin. Lastly, from the Caribbean Islands to the southernmost portions of Florida, Hurricanes 

Irma and Maria hit locations difficult to evacuate and access.

The destruction caused by Hurricanes Harvey, Irma, and Maria was horrific. In late 

August 2017, Hurricane Harvey left Texas and Louisiana with approximately $200B in damage, 

roughly 30,000 citizens displaced, and 17,000 rescues performed. In early September 2017, 

Hurricane Irma left the U.S. Virgin Islands, Puerto Rico, and Florida with approximately $65B in 

damage, five million citizens evacuated, and over five million citizens without power. Hurricane 

Irma also struck the Caribbean Leeward Islands of Barbuda, St. Maarten, and the British Virgin 

Islands. After Irma, unfortunately the torment was not over for Puerto Rico and the U.S. Virgin 

Islands. In late September, Hurricane Maria added to the damage caused by Hurricane Irma by 

causing billions of dollars in additional damage, increased power outages, and at least 45 deaths.

The response to all three hurricanes from the State and local governments, the Federal

government, and our civilian partners was nothing short of phenomenal. The FY17 hurricane 

response involved 43 States and resulted in the activation of more than 50,000 members of the 

National Guard. The Coast Guard resolved over 1,269 aids to navigation discrepancies, handled 

290 pollution cases, and located and assessed more than 3,623 grounded vessels, with more than 

1,585 removed to date. SOUTHCOM as part of the concurrent Foreign Humanitarian Assistance 

mission, was specifically authorized to provide urgent lifesaving transportation assistance, 

logistics, engineering, air traffic control support, and intelligence, surveillance, and 

reconnaissance throughout the Caribbean when requested by affected host nation governments 

and tasked through the United States Agency for International Development. The Special 

Purpose Marine Air-Ground Task Force SOUTHCOM was designated as the Joint Task Force 

Leeward Islands and was given the Foreign Disaster Assistance mission. The Air Force 

provided personnel and aircraft to carry equipment, supplies, and people needed for the mission. 

Additionally, legal professionals from across the globe served at a moment’s notice. 

Over 60 judge advocates and Federal civilian attorneys served during the disaster response. 

These judge advocates and civilian attorneys were from multiple entities including but not 

limited to the National Guard Bureau, the State National Guards, the U.S. Navy, U.S. Marine 

Corps, U.S. Coast Guard, ARNORTH, NORTHCOM, SOUTHCOM, FEMA, and U.S. Army 

Reserve Command. While we cannot predict the date of the next major disaster, we can ensure 

our readiness when the date arrives.
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B. DISASTER RESPONSE OPERATIONS AND THEIR CONTEXT

B.1—How It All Works: The Act, Plan, and Systems

The Stafford Act, 42 U.S.C. §§ 5121-5207, was passed in 1988 and made effective in 

May of 1989. It was passed subsequent to specific findings and declarations of Congress. More 

specifically, Section 101 of the Act states, “The Congress hereby finds and declares that (1) 

because disasters often cause loss of life, human suffering, loss of income, and property loss and 

damage; and (2) because disasters often disrupt the normal functioning of governments and 

communities, and adversely affect individuals and families with great severity; special measures, 

designed to assist the efforts of the affected States in expediting the rendering of aid, assistance, 

and emergency services, and the reconstruction and rehabilitation of devastated areas, are 

necessary.” By passing the Act, Congress intended, “to provide an orderly and continuous 

means of assistance by the Federal Government to State and local governments in carrying out 

their responsibilities to alleviate the suffering and damage which result from such disasters.” 

The lead Federal agency for the Stafford Act is the Federal Emergency Management 

Agency (FEMA). Before FEMA takes action under the Stafford Act, the President of the United 

States (POTUS) must make one of two declarations, 1) a major disaster declaration, or 2) an 

emergency declaration. Under the Act, a major disaster is defined as, “any natural catastrophe

(including any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, 

earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of 

cause, any fire, flood, or explosion, in any part of the United States, which in the determination 

of the President causes damage of sufficient severity and magnitude to warrant major disaster

assistance under this Act to supplement the efforts and available resources of States, local 

governments, and disaster relief organizations in alleviating the damage, loss, hardship, or 

suffering caused thereby.” An emergency is defined as, “any occasion or instance for which, in 

the determination of the President, Federal assistance is needed to supplement State and local 

efforts and capabilities to save lives and to protect property and public health and safety, or to 

lessen or avert the threat of a catastrophe in any part of the United States.” 

A declaration by POTUS, which is normally in response to a Governor’s Request For 

Assistance, enables FEMA to take action under the Stafford Act. Major disaster declarations

trigger long-term Federal recovery programs. Some of these programs are matched by State 

programs and designed to help disaster victims, businesses, and public entities. Emergency 

declarations are more limited in scope and without the long-term Federal recovery programs. 

Stafford Act funding also becomes available. Stafford Act funding is not available for a 

Governor’s declaration of emergency. With that said, DoD support under Immediate Response 

Authority will not be delayed or denied based on the inability or unwillingness of the civil

authority to make a commitment to reimburse the DoD.

Before the President may declare a declaration, a couple actions must occur. First, 

FEMA and State representatives complete a Preliminary Damage Assessment. “The preliminary 

damage assessment documents the impact of the event, estimates initial damage, establishes a 
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foundation for the governor to request assistance, and provides background for FEMA's analysis 

of the request.” (DSCA Handbook, GTA90-01-020, para. 3.9.1) Second, the Governor requests 

assistance. The Governor’s request must state that “the Governor has taken appropriate action 

and directed execution of the State Emergency Operations Plan, certify that the incident is of 

such severity and magnitude that [S]tate and local resources are inadequate, include a damage 

estimate, describe the [S]tate and local resources committed to response and recovery, and 

describe the requested assistance and agree to cost-sharing provisions.” (DSCA Handbook, 

GTA90-01-020, para. 3.9.1)

Third, “FEMA reviews the request and makes a recommendation.” (DSCA Handbook, 

GTA90-01-020, para. 3.9.1) In this phase of the process, the Governor‘s request is addressed to 

the President through the FEMA Regional Administrator. (DSCA Handbook, GTA90-01-020, 

para. 3.9.1) The FEMA Regional Office completes analysis of request and issues a 

recommendation to FEMA Headquarters. (DSCA Handbook, GTA90-01-020, para. 3.9.1) 

FEMA Headquarters reviews the Governor’s request to ensure that it is compliant with the 

Stafford Act requirements listed above. (DSCA Handbook, GTA90-01-020, para. 3.9.1) Then, 

the FEMA Administrator recommends a course of action to the President. (DSCA Handbook, 

GTA90-01-020, para. 3.9.1) The last step in the Presidential disaster declaration process is taken 

when, if warranted, the President makes a Major Disaster or Emergency Declaration. (DSCA 

Handbook, GTA90-01-020, para. 3.9.1) If a declaration is issued, then assistance is made 

available under the Stafford Act, and a Federal Coordinating Officer (FCO) is designated to 

oversee disaster operations. (DSCA Handbook, GTA90-01-020, para. 3.9.1) FEMA coordinates 

the Federal response to a disaster and issues mission assignments to other Federal agencies. A 

mission assignment is a work order issued by FEMA Operations to a Federal agency directing 

completion of a specific task, and citing funding, other managerial controls, and guidance. A 

mission assignment is only issued during the Emergency Response Phase of a DSCA operation 

and involves only non-permanent work. Also, a mission assignment is generally issued and 

obligated in order to make resources available to address estimated, immediate mission-critical 

needs and is frequently updated. As the need for a particular mission assigned activity is 

assessed, mission assignment funding may be supplemented or de-obligated as required. 

Distinguished, a mission assignment task order is generally used to provide specifics for a broad 

statement of work (e.g., delivery sites for water). Mission assignment task orders prevent the 

issuance of multiple mission assignments for the same statement of work. A mission assignment 

task order will be prepared to direct specific activities within the scope of a mission assignment.

Mission assignment task orders may include personnel, resource movement, and locations for 

delivery and duty stations. Lastly, mission assignment task orders are the tactical equivalent of 

the FRAGO where follow on orders/instructions are issued from an original base order

(previously existing document that directs an overall action).

Also note that once a Stafford Declaration has been made, T-10 Reserve Components 

may be ordered to duty under 10 U.S.C. § 12304. When a Governor requests Federal assistance

in response to a major disaster or emergency, the Secretary of Defense may, without the consent 

of the member affected, order any unit, and any member not assigned to a unit organized to serve 

as a unit, of the Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve to 

active duty for a continuous period of not more than 120 days to respond to the Governor’s 
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request. Even though the Stafford Act and the statute authorizing the recall of the reserves 

during a national emergency were in place, September 11, 2011 proved that they were not 

enough.

In February 2003, President Bush issued Homeland Security Presidential Directive 5, 

“Management of Domestic Incidents,” “to enhance the ability of the United States to manage 

domestic incidents by establishing a single, comprehensive national incident management 

system.” Homeland Security Presidential Directive 5 directed the Secretary of Homeland 

Security to develop the “National Incident Management System.” The National Incident 

Management System “provide[s] a consistent nationwide approach for Federal, State, and local 

governments to work effectively and efficiently together to prepare for, respond to, and recover 

from domestic incidents, regardless of cause, size, or complexity. “To provide for 

interoperability and compatibility among Federal, State, and local capabilities, the NIMS . . . 

include[s] a core set of concepts, principles, terminology, and technologies covering the incident 

command system; multi-agency coordination systems; unified command; training; identification 

and management of resources (including systems for classifying types of resources); 

qualifications and certification; and the collection, tracking, and reporting of incident 

information and incident resources.” (Appendices C and D)

A key element of the National Incident Management System is the Incident Command 

System. The Incident Command System is “[a] standardized on-scene emergency management 

construct specifically designed to provide for the adoption of an integrated organizational 

structure that reflects the complexity and demands of single or multiple incidents, without being 

hindered by jurisdictional boundaries. The Incident Command System is the combination of 

facilities, equipment, personnel, procedures, and communications operating within a common 

organizational structure, designed to aid in the management of resources during incidents. It is 

used for all kinds of emergencies and is applicable to small as well as large and complex 

incidents. The Incident Command System is used by various jurisdictions and functional 

agencies, both public and private, to organize field-level incident management operations.” (IS0100.b, Incident Command System Instructor Guide, p 19) The Incident Commander and 

Incident Command are part of the Incident Command System. The Incident Commander is 

“[t]he individual responsible for all incident activities, including the development of strategies 

and tactics and the ordering and the release of resources. The Incident Commander has overall 

authority and responsibility for conducting incident operations and is responsible for the 

management of all incident operations at the incident site.” (IS-0100.b, Incident Command 

System Instructor Guide, p 18) The Incident Command is, “[t]he Incident Command System 

organizational element responsible for overall management of the incident and consisting of the 

Incident Commander (either single or unified command structure) and any assigned supporting 

staff.” Unified Command is one of the key ICS concepts. Unified Command is, “[a]n Incident 

Command System application used when more than one agency has incident jurisdiction or when 

incidents cross political jurisdictions. Agencies work together through the designated members 

of the Unified Command, often the senior persons from agencies and/or disciplines participating 

in the UC, to establish a common set of objectives and strategies and a single Incident Action 

Plan.” (IS-0100.b, Incident Command System Instructor Guide, p 25) 
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In addition to directing the development of the National Incident Management System, 

Homeland Security Presidential Directive 5 also directed the Secretary of Homeland Security to 

develop and administer the National Response Plan. The National Response Plan “. . . 

integrate[d] Federal Government domestic prevention, preparedness, response, and recovery 

plans into one all-discipline, all-hazards plan . . . . The National Response Plan, using the 

National Incident Management System, . . . with regard to response to domestic incidents, 

provide[d] the structure and mechanisms for national level policy and operational direction for 

Federal support to State and local incident managers and for exercising direct Federal authorities 

and responsibilities, as appropriate.”

The National Response Framework superseded the National Response Plan. The 

National Response Framework builds upon the National Incident Management System 

coordinating structures to align key roles and responsibilities across the Nation, linking all levels 

of government, non-governmental organizations (NGOs), and the private sector. The National 

Response Framework provides specific guidance on how the Nation conducts all-hazards 

responses. The National Response Framework is designed to ensure that local jurisdictions 

retain command and control authority over response activities within their jurisdictional areas. 

The National Response Framework contains “response doctrine.” (National Response 

Framework, https://www.fema.gov/media-library-data/1466014682982-

9bcf8245ba4c60c120aa915abe74e15d/National_Response_Framework3rd.pdf, last accessed 

April 13, 2018) “Response doctrine defines the basic roles, responsibilities, and operational 

concepts for response across all levels of government and with [non-governmental organizations] 

NGOs and the private sector.” (Course: IS-800.B - National Response Framework, An 

Introduction, https://emilms.fema.gov/IS800B/lesson1/is800b_Print.htm, last accessed April 13, 

2018)

The five key principles of the response doctrine are “(1) engaged partnership, (2) tiered 

response, (3) scalable, flexible, and adaptable operational capabilities, (4) unity of effort through 

unified command, and (5) readiness to act.” (The National Response Framework at 5, 

https://www.fema.gov/media-library-data/1466014682982-

9bcf8245ba4c60c120aa915abe74e15d/National_Response_Framework3rd.pdf, last accessed 

April 13, 2018) Tiered response means that “incidents must be managed at the lowest possible 

jurisdictional level and supported by additional capabilities when needed.” (Id.) When a major 

disaster occurs, the local government in the affected area has the responsibility as first 

responders. Once the local government becomes overwhelmed, then they may call upon the 

State for support. Once the State engages, the Governor may decide to place the State’s National 

Guard on State Active Duty orders to support the response effort. When State Active Duty 

orders are implemented, the Governor acts as the commander-in-chief of the State’s National 

Guard and the State pays for all expenses. At this juncture, if the State’s resources are 

overwhelmed, the Governor may call upon resources from other States pursuant to the 

Emergency Management Assistance Compact, Public Law 104-321. Each State and territory has 

ratified the Emergency Management Assistance Compact. (Appendix E for more information) 

Once the Governor has declared a state of emergency and other procedural requirements under 

the Stafford Act have been met, the Governor may submit a request for Federal assistance. The 
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aforementioned is the essence of a tiered response under the National Response Framework. 

Once Federal assistance is approved, each Federal department leads or supports an Emergency 

Support Function.

Emergency Support Functions are part of the specific guidance found within the National 

Response Framework. The fourteen (14) Emergency Support Functions are “used by the Federal

Government and many State governments as the primary mechanism at the operational level to 

organize and provide assistance. Emergency Support Functions align categories of resources and 

provide strategic objectives for their use. Emergency Support Functions utilize standardized 

resource management concepts such as typing, inventorying, and tracking to facilitate the 

dispatch, deployment, and recovery of resources before, during, and after an incident.” (the 

FEMA Instructor Guide to the National Response Framework p 25) Emergency Support 

Functions #5, Emergency Management, is the primary Emergency Support Functions when 

dealing with major disasters such as floods, typhoons, and hurricanes is Emergency Support 

Functions # 5. Emergency Support Functions annexes “present the missions, policies, structures, 

and responsibilities of Federal agencies for coordinating resource and programmatic support to

States, tribes, and other Federal agencies or other jurisdictions and entities when activated to

provide coordinated Federal support during an incident.” (the FEMA Instructor Guide to the 

National Response Framework, p. 25)

Homeland Security Presidential Directive-8, “National Preparedness,” established 

policies to strengthen U.S. preparedness to prevent and respond to threats and actual domestic 

terrorist attacks, major disasters, and other emergencies by requiring a national domestic allhazards preparedness goal, establishing mechanisms for improved delivery of Federal

preparedness assistance to State and local governments, and outlining actions to strengthen the 

preparedness capabilities of Federal, State, and local entities. Homeland Security Presidential 

Directive-8 Annex I, “National Planning,” formally establishes a standard and comprehensive 

approach to national planning. It is meant to provide guidance for conducting planning in 

accordance with the Homeland Security Management System in the National Strategy for 

Homeland Security of 2007. Planning is one of the eight national priorities listed in the National 

Preparedness Guidelines and it is a target capability across all homeland security mission areas.

B.2—The System In Action

Once the incident occurs locally, the trigger provision of support is the Request For 

Assistance. There are three instances when a Request for Assistance may arise. First, a State or 

local civil authority may submit a Request For Assistance to a local commander (active or 

reserve component). The request may be written or oral and later followed by a writing. [DoD

Directive (DoDD) 3025.18 para 4.d, “All requests for DSCA shall be written, and shall include a 

commitment to reimburse the Department of Defense in accordance with . . . the Stafford Act, . . 

. the Economy Act, or other authorities except requests for support for Immediate Response, and 

mutual or automatic aid . . . .”] Second, a Federal agency may request assistance from another 

Federal agency. Here, the Request For Assistance must be in writing. Third, the Governor of an 

affected State may submit a Request For Federal Assistance to the President of the United States.
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Who qualifies as a “civil authority?” A civil authority is a person elected or appointed to 

a position within the governments of the United States (U.S.), 50 states, District of Columbia, 

Puerto Rico, U.S. Virgin Islands, Guam, other U.S. territories and possessions, or any political 

subdivision thereof. What does “imminently serious conditions” mean? Based on the judgment 

of the military commander or DoD component head using the information available to them at 

the time, imminently serious conditions arise when a civil authority requests assistance to save 

lives, prevent human suffering, or mitigate great property damage and time does not permit 

approval from a higher authority within the United States. For the Federal military, the “higher 

authority” is the Secretary of Defense (SecDef). For the National Guard, the “higher authority” is 

the State’s Adjutant General. (Appendix C) Who qualifies as a “commander?” A commander is 

a commissioned or warrant officer who, by virtue of rank, assignment, and pursuant to official 

orders, exercises primary command authority over a military organization or prescribed 

territorial area, which under official regulation is recognized as a command. What about 

reimbursement? Should reimbursement be requested? Unless a statutory exception applies, 

military commanders and or DoD officials must request reimbursement from the civil authority 

who requests and receives assistance.

Support provided under Immediate Response Authority should be provided on a costreimbursable basis, where appropriate or legally required, but will not be delayed or denied 

based on the inability or unwillingness of the requester to make a commitment to reimburse DoD 

or the National Guard. If National Guard personnel are responding in their State Active Duty

status in support of a State agency, then the State is already paying the bill. Thus, the only 

reimbursement necessary is for usage of Federally procured equipment and or supplies, which 

should be worked through the State’s United States Property and Fiscal Officer. It is important 

to note that the inability or unwillingness of the civil authority to commit to reimbursement is not 

reason enough to refuse to provide assistance at the local level under Immediate Response 

Authority. If a commander within DoD is providing assistance under Immediate Response 

Authority, should the commander also provide a unit account number where the civil authority 

may directly pay funds? No. Federal personnel receiving reimbursements from non-Federal

civil authorities “shall deposit the money in the Treasury as soon as practicable without 

deduction for any charge or claim.” [31 U.S.C. § 3302(b), “the Miscellaneous Receipts Statute,”

and 31 U.S.C. § 9701, “Fees and Charges for Government Services and Things of Value”]

Reimbursement from Federal entities is made to the DoD organization providing the support in 

accordance with the Economy Act.

When exercising Immediate Response Authority, what are the reporting requirements? 

There must be immediate notification to the National Joint Operations and Intelligence Center 

and, for the National Guard serving in an authorized T-32 status, to the National Guard 

Coordination Center (NGCC). (DoDD 3025.18 and CNGBI 1302.01) At a minimum, the 

notification should include the following information: (1) civil authority requesting the support 

and the time the request was received; (2) type of support requested; (3) description of the 

incident; (4) number, by type, of assets or installation support provided; (5) status of personnel 

(military, civilian, or contractor); (6) duration of support; and (7) cost of the support. 
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In the second instance, a Federal agency may request assistance from another Federal

agency. Here, the Request for Assistance must be in writing. Third, the Governor of an affected 

State may submit a Request for Assistance for Federal assistance. When the Governor of an 

affected State submits a Request for Assistance for Federal assistance, the Governor does not

submit the Request for Assistance direct to the POTUS. Rather, the Request For Assistance

process begins with FEMA, as representative for the Federal government, and State 

representatives completing a Preliminary Damage Assessment. The Preliminary Damage 

Assessment documents the impact of the event and estimates initial damage. The Preliminary 

Damage Assessment also establishes a foundation for the State’s Governor to request assistance. 

Last, the Preliminary Damage Assessment provides background for FEMA’s analysis of the 

request. Once the Preliminary Damage Assessment is complete, the State’s Governor submits a 

written Request for Assistance that 1) states that the Governor has taken appropriate action and 

directed execution of the State Emergency Operations Plan, 2) certifies that the incident is of 

such severity and magnitude that State and local resources are overwhelmed, 3) includes a 

damage estimate, 4) describes the State and local resources committed to response and recovery, 

and 5) describes the assistance requested and cost-sharing provisions.

Next, FEMA reviews the request and makes a recommendation. For the Request For 

Assistance to enter the FEMA review process, the Governor’s request must be addressed to the 

POTUS through the FEMA Regional Administrator. The FEMA Regional Office completes

analysis of the Request For Assistance and issues a recommendation. Next, the FEMA 

Headquarters reviews the Request For Assistance to ensure compliance with the Stafford Act 

requirements. Once complete, the FEMA Administrator recommends a course of action to the 

POTUS. After the FEMA review process is complete, the POTUS decides whether to issue a 

major disaster or emergency declaration. If the POTUS issues a declaration, then Federal

assistance is made available under the Stafford Act, and a Federal Coordinating Officer is 

appointed. The FCO is a senior FEMA official who manages and coordinates Federal resource 

support activities related to Stafford Act disasters and emergencies. The POTUS appoints a 

Federal Coordinating Officer after a recommendation by the FEMA Administrator and the 

Secretary of Homeland Security. The Federal Coordinating Officer executes Stafford Act 

authorities, including committing FEMA resources and giving mission assignments to other 

Federal departments and agencies. The Federal Coordinating Officer also plays a significant role 

in managing the financial aspects of DSCA.

On March 19, 2018, DoDD 3025.18, Defense Support of Civil Authorities, was updated. 

In addition to many important changes, the update removes the term “civil support” from the 

definition of DSCA. Judge Advocates should be aware that the National Guard provides civil 

support to civil authorities regularly and that, in most cases, the civil support provided by the NG 

is not governed by the DSCA policy. Thus, the civil support provided by members of the NG 

while in their State Active Duty status or regular drill/annual training status under Title 32 (T-32) 

§ 502(a) statuses should not be confused with defense support within the context of DoDD

3025.18. However, there are two exceptions. First, DSCA applies to members of the National 

Guard when “under Federal command and control [T-10 status].” (DoDD 3025.18, para 2.b) 

DSCA also applies to members of the National Guard “when the Secretary of Defense 
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determines that it is appropriate to employ National Guard personnel in T-32 status to fulfill a 

request for DSCA.” (DoDD 3025.18, para 2.b) “The Secretary of Defense requests the

concurrence of the Governors of the affected States, and those Governors concur in the 

employment of National Guard personnel in such status.” (DoDD 3025.18, para 2.b) When this 

narrow exception under T-32 is exercised, even though the DSCA policy applies to members of 

the National Guard, the Posse Comitatus Act does not. When serving in their T-32 status, 

command and control of the National Guard remains with the State while funding is provided by 

the Federal government. In contrast, the Posse Comitatus Act applies to the National Guard 

when serving in their T-10 status. In this instance, funding for and command and control of 

members of the National Guard transfers to the Federal government. 

If the DoD has a mission to perform law enforcement within a State, then the activities 

must be performed in strict compliance with The Posse Comitatus Act, Chapter 18 of Title 10 of 

the United States Code (Crimes and Criminal Procedure), section 1970 of title 2 of the United 

States Code (Assistance by Executive Departments and Agencies to the United States Capitol 

Police), DoD Instruction (DoDI) 3025.21 (Defense Support of Civilian Law Enforcement

Agencies), and other Federal laws, including those protecting the civil rights and civil liberties of 

individuals, as applicable. While the PCA applies to the Army, Navy, Air Force, and Marine 

Corps (and their respective T-10 reserves), it never applies to the Coast Guard, even when placed 

under DoD command. The Coast Guard’s law enforcement authority is not limited to the water 

and may be exercised ashore under certain conditions. (Appendix K)

C. EVACUATION

C.1—Necessary Conditions

Issue: What conditions must be met for the designated official to order an evacuation? What is 

the triggering event?

Authority(ies): Joint Travel Regulation, Chapter 6 (Evacuations); 37 U.S.C. 475a (Travel and

Transportation Allowances: Departure Allowances); 5 U.S.C. 5725 (Transportation Expenses:

Employees Assigned to Dangerous Areas); DoDD 3025.14 (Evacuation of U.S. Citizens and

Designated Aliens from Threatened Areas Abroad)

Discussion: Many U.S. Army Recruiting Command battalions did not know that the hurricanes 

would affect their area until a few days before the hurricanes made landfall. One of the primary 

issues that arose was when the evacuation order should be issued and what event triggered the 

issuance. One battalion employed its S-4 Weather and Safety Specialist to retrieve historical 

data from previous major disasters similar in nature and brief the command team on the threat. 

This information enabled credible recommendations about possible decision points. 

A major concern was that critical resources such as fuel and necessary supplies, as well 

as modes of transportation, would be limited when the civilian population attempted to evacuate 

thus impeding their departure. Under paragraph 0601 of the Joint Travel Regulation, “The 

authority to evacuate an area depends on whether it is in the CONUS, a non-foreign location
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OCONUS, or a foreign location.” Table 6-2 indicates that, for DoD components including 

service-members dependents, civilian employees, and civilian employee dependents, either the 

Secretary of Defense (or his or her designee), the Secretary of the service concerned, the Head of 

the Component (or his or her designee), the Commander of the Installation or the Coast Guard 

District Commander, or the Commander, head, chief, or supervisor of the organization or office

may order or authorize an evacuation within their area of authority. For foreign locations, “[t]he 

DoS decides when the United States evacuates personnel from a foreign location.” [Joint Travel 

Location, Chapter 6, para 060101(D)] “A Service-member is placed on a temporary duty (TDY) 

order or permanent change of station (PCS) order rather than placed in an evacuation status when 

required to leave a permanent duty station (PDS).” (Joint Travel Location, Chapter 6, para 

060102) 

An evacuation may be ordered from an area “threatened by unusual or emergency

Circumstances.” (Joint Travel Location, Chapter 6, Introduction Paragraph) For the U.S. Army 

Recruiting Command, the affected battalions conducted after action reviews and recommended 

that the military evacuation authority should not wait until the civil authorities issue an 

analogous evacuation determination. The act of not waiting serves to mitigate the risk of scarce 

resources upon actual evacuation. (Appendix F)

Conclusion: According to Chapter 6 of the Joint Travel Regulation, certain named Government 

personnel have the authority to order an evacuation. Timing is based on the totality of the 

circumstances at the time the decision is made.

C.2—Safe Haven Factors

Issue: What factors should a commander consider when identifying a safe haven?

Authority(ies): Joint Travel Regulation, Chapter 6 (Evacuations); 37 U.S.C. 475a (Travel and

Transportation Allowances: Departure Allowances); 5 U.S.C. 5725 (Transportation Expenses:

Employees Assigned to Dangerous Areas); DoDD 3025.14 (Evacuation of U.S. Citizens and

Designated Aliens from Threatened Areas Abroad)

Discussion: The commander who orders the evacuation is also authorized to designate the safe 

haven for evacuees. A safe haven is a temporary location to which a dependent is sent during an

evacuation and service-members are sent on temporary duty orders. The designation of a safe 

haven serves several purposes, to include personnel accountability, property availability, the 

ability of the brigade/battalion to dedicate its resources to maximize impact to the largest number 

of affected persons, etc. Although dependents are not required to evacuate to the designated safe 

haven, reimbursement of travel expenses may be limited to those costs that would have been 

incurred to travel to the safe haven. (Appendix F)

For example, the establishment of a single safe haven for persons who evacuated Puerto 

Rico during Hurricane Maria allowed the U.S. Army Recruiting Command battalion to surge 

capability to the safe haven to provide assistance and conduct a needs assessment of recruiters 
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and their dependents. Identifying a safe haven near a military installation was helpful to ensure 

the evacuees had access to medical and legal support. Additionally, the Education Services 

Specialist reached out to school districts in the safe haven and garnered their support to allow 

children to enroll in school and bypass many of the standard requirements.

The command learned that it was very difficult to designate one location as the safe

haven because of limited resources such as hotel rooms. Room availability became an issue 

because the major disaster was predicted to cover a vast geographical area thereby causing the 

evacuation of a large number of civilians. Such an evacuation led to an increased demand for a 

limited number of hotel rooms. For natural disasters affecting a large number of civilians, it is

recommended that safe havens be designated in several metropolitan areas.

Conclusion: Some of the factors that a commander should consider when identifying safe

havens are property/room availability, proximity to the hurricane, ability to account for military 

personnel, and the ability of the command to assist the evacuees.

C.3—Allowances

Issue: Once an evacuation is ordered, are service-member dependents authorized rental cars for

local transportation at the safe haven?

Authority(ies): Joint Travel Regulation, Chapter 6 (Evacuations); 37 U.S.C. 475a (Travel and

Transportation Allowances: Departure Allowances); 5 U.S.C. 5725 (Transportation Expenses:

Employees Assigned to Dangerous Areas); DoDD 3025.14 (Evacuation of U.S. Citizens and

Designated Aliens from Threatened Areas Abroad)

Discussion: First, to receive allowances during an ordered evacuation, a service-member’s

dependents must meet the criteria outlined in Section 0602 of the JTR. Also, service-members 

are placed on TDY or PCS orders when required to evacuate their duty location. A civilian 

employee can be evacuated, placed on a TDY order, or reassigned to a new permanent duty 

station. The JTR provides no authority for support to contractors during an evacuation. (JTR, 

para 060102) A service-member’s dependents may be eligible for evacuation allowances. Those 

allowances are computed based upon the duration of stay at the safe haven, as detailed in Section 

060205 of the JTR. However, the service-member’s dependents are not authorized rentals cars 

for local transportation at the safe haven. Instead, a local travel allowance of $25 per day for 

each family is authorized if the dependent did not transport a personally owned vehicle to the 

safe haven. (Appendix F)

Conclusion: Table 6-16, Transportation Allowances for a Dependent during Evacuation, of the 

JTR addresses the issue of rental cars for dependents. Further, it is important for the servicing 

OSJA to disseminate guidance that identifies persons eligible for assistance during the 

evacuation and the type of assistance available. If the OSJA is unable to issue such guidance 

prior to evacuation, then coordination should be made with the OSJA nearest the safe haven to 

ensure that all service-members and evacuees understand their eligibility and entitlements. 

Coordination should include National Guard judge advocates.
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D. REQUEST FOR ASSISTANCE (RFA)

D.1—Immediate Response Authority (Federal Commanders)

Issue: May a Federal military commander exercise Immediate Response Authority without a

Request For Assistance from a civil authority?

Authority(ies): DoDD 3025.18 (Defense Support of Civil Authorities); DoDM 3025.01, Vol. 2

(Defense Support of Civil Authorities: Incident Response)

Discussion: During Hurricane Harvey, Marine Forces Reserve units entered the JOA without 

mission assignments associated with their capabilities. The Special Purpose Marine Air-Ground

Task Force also brought several units to support its operational force that could not be used for 

mission assignments. In this case, no such request existed and this created a need to “pull” that 

force, or a portion of it, under a mission assignment, to provide an authority for their 

employment, coverage for their liability under the Federal Tort Claims Act, and at least some

reimbursement for their deployment.

During the response to Hurricane Irma, there were many questions about the

commander’s ability to use Immediate Response Authority to save lives and prevent human 

suffering. For example, the question was asked whether the captain of a ship could respond 

under Immediate Response Authority if it “came across” a distress call. There also seemed to be 

confusion about what required a Search and Rescue Mission Assignment from FEMA under 

emergent circumstances. For both, it depends on the specific circumstances. Generally, even 

without a Search and Rescue Mission Assignment, the Federal commanders, including Naval 

commanders, may take action if the requirements listed within DoDD 3025.18 are met. With 

that said, commanders must clearly understand Immediate Response Authority as listed in DoDD 

3025.18 and DoDM 3025.01, Vol. 2, paragraph 5.4 which states, “Immediate [R]esponse 

[A]uthority does not authorize DoD officials to provide support without a request from a civil 

authority. Some other examples of DoD support that are not covered by [I]mmediate [R]esponse 

[A]uthority include: (1) Support provided in accordance with existing Memorandums of 

Agreement or Mutual Aid Agreements (e.g., local firefighting, ambulance response). See Section 

4 of Volume 1 of this manual for additional information concerning interagency support 

agreements and Mutual Aid Agreements; (2) Support provided in accordance with a FEMA 

Mission Assignment; and (3) Support of civilian law enforcement activities.”

Conclusion: No. A Federal military commander may not exercise Immediate Response 

Authority without a Request For Assistance from a civil authority. Without a request from a 

civil authority or a mission assignment from FEMA, if Federal forces are pre-positioned outside 

of the anticipated area of operation, especially if those forces are pre-positioned in another State 

and not on a Federal military base, then the Federal forces may be performing outside their 

official capacities, which raises reimbursement and liability issues. 
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Installation and unit commanders—across the DoD—must be instructed on the 

requirements and limitations of Immediate Response Authority. Systemic disregard of the 

requirement for a request from competent civil authority, resulting in units entering the joint 

operations area without an approved mission assignment creates unnecessary confusion that cuts 

against unity of effort. For those on the T10 staff for the Dual Status Commander, getting an 

accounting of Immediate Response Authority activity within the first seventy-two (72) hours is 

critical in assessing the mission assignments and submission of Request for Forces because it is 

likely these forces will be Category IV under the DSCA Execute Order requiring Secretary of 

Defense approval.

D.2—Immediate Response Authority (National Guard Commanders)

Issue: May members of the National Guard, already in a duty status, respond under a

commander’s Immediate Response Authority?

Authority(ies): DoDD 3025.18 (Defense Support to Civil Authorities); 32 U.S.C. § 502(f);

DepSecDef Memo, “Guidance for the Utilization of Immediate Response Authority for DSCA in 

Complex Catastrophes,” 9 December 2013; CNGBI 1302.01 (Guidance for Members Performing 

Duty Under the Authority of 32 U.S.C. § 502(f))

Discussion: In response to a Request For Assistance from a civil authority, under imminently 

serious conditions and if time does not permit approval from higher authority, DOD officials, 

(most typically installation commanders) may provide an Immediate Response by temporarily

employing the resources under their control, subject to any supplemental direction provided by

higher headquarters, to save lives, prevent human suffering, or mitigate great property damage

within the United States. Immediate Response Authority does not permit actions that would

subject civilians to the use of military power that is regulatory, prescriptive, proscriptive, or

compulsory.

As the principle authority for and during State emergencies, the State Governor may 

direct a State Immediate Response using National Guard personnel under State command and 

control (including personnel in a T-32 status) in accordance with State law. However, National 

Guard personnel not already serving in a status, will not be placed in or extended in Title 32 

status to conduct State Immediate Response activities. Therefore, if National Guard personnel 

were conducting Annual Training and the Immediate Response mission extends beyond the end 

date of the Annual Training orders, at the end date of the Annual Training order National Guard 

personnel must terminate T-32 orders. If the State desires the National Guard personnel to

continue the Immediate Response activity, the State must place the National Guard personnel in 

a State Active Duty status.

It is National Guard Bureau policy that any Immediate Response be reported to National 

Guard Bureau as soon as possible. More specifically, Chief of the National Guard Bureau 

Instruction 1302.01, para. 4.e states that, “Commanders directing members in a 32 USC 502(f) 

duty status must immediately notify the National Guard Coordination Center.”
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An Immediate Response ends when the necessity giving rise to the response is no longer 

present (e.g., when there are sufficient resources available from State, local, and other Federal

agencies to respond adequately and that agency or department has initiated response activities) or 

when the initiating DoD official or a higher authority directs an end to the response.

No later than 72-hours after the Immediate Response Authority was exercised, the 

commander must provide a reassessment to the Chief of the National Guard Bureau in order to 

continue the use of personnel in a T-32 status. This reassessment must find that continued 

support is needed to save lives, prevent human suffering, or mitigate great property damage. 

Chief of the National Guard Bureau must approve Immediate Response activities that last longer 

than 72-hrs.

All incremental costs involved with military personnel in Federal service responding in 

Immediate Response are reimbursable to the DoD. However, support will not be delayed or

denied due to lack of commitment to reimburse.

In Immediate Response situations, maximum efforts must be made to replace Active 

Guard Reserves members, Full-time National Guard Duty-Operational Support/Full-time 

National Guard Duty-Civil Disturbance/Civil Support Team members, and technicians with 

traditional members in an appropriate duty status.

As to authorized missions, anything that entails saving lives, preventing human suffering, 

or mitigating great property damage, and does not violate the restrictions discussed below may 

be performed. Specific authorized missions may include transporting the injured, fighting fires,

moving critical supplies, distributing food and water, moving rubble or debris (if circumstances

qualified), etc. Each mission should be considered on a case-by-case basis.

Personnel must clearly understand the rule against the performance of law enforcement. 

DoDD 3025.18, paragraph 4.i states, “Immediate [R]esponse authority does not permit actions 

that would subject civilians to the use of military power that is regulatory, prescriptive, 

proscriptive, or compulsory.” Thus, if the National Guard personnel are in their State Active 

Duty status versus their T-10 status, then those individuals may be assigned an LE support 

mission because they are not subject to DoD authority. (Appendix K)

Conclusion: Yes, members of the National Guard who are already in a duty status may respond 

under a commander’s Immediate Response Authority. However, if the [I]mmediate [R]esponse 

extends beyond 72-hours, Chief of the National Guard Bureau authorization is required. 

PRACTICE TIP: Even if the support provided by the National Guard was not pursuant to a 

commander’s Immediate Response Authority, the National Guard may still provide civil support 

in their Federal training status. National Guard assets may be made available under current 

training plans if applicable under 32 U.S.C. § 502(a) or (f)(1). The Office of the Chief Counsel 

for the National Guard Bureau has advised that National Guard members should be in an 

operational duty status if (1) the mission involves reasonable likelihood of use of force against 
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civilians, or (2) the security risk is so high that the service-members are armed for force 

protection.

Further, note that in 2010, the word “local” was intentionally removed from the definition 

of Immediate Response Authority in DoDD 3025.18. This action was taken to give commanders 

greater flexibility to use their [I]mmediate [R]esponse authority to assist civil authorities located 

beyond the immediate area of the installation. Further, JP 3-28 at pages II-5 and 6 states, “The 

distance from the incident to the DOD office or installation is not a limiting factor for the 

provision of support under Immediate Response Authority. However, DOD officials should use 

the distance and the travel time to provide support as a factor in determining DOD’s ability to 

support the request for Immediate Response. The scale of the event should also be a determining 

factor for whether or not to provide support to incidents that are several miles, possibly hundreds 

of miles, away from the installation under Immediate Response Authority. In some cases of 

catastrophic incidents, the demands for life-saving and life-sustaining capabilities may exceed 

both the State’s and the United States Government’s ability to mobilize sufficient resources to 

meet the demand. In these circumstances, installations and facilities that are not directly 

impacted should be prepared to provide Immediate Response support if they are able to save 

lives, prevent human suffering, or prevent great property damage.”

Lastly, the definition of DSCA also includes DoD contract personnel. (the glossary of 

DoDD 3025.18) Knowledge of this part of the definition may prove beneficial when 

determining whether contract personnel may provide support to civil authorities.

D.3—Immediate Response Authority (Naval Ship Commanders)

Issue: Do Commanders of U.S. Naval vessels have Immediate Response Authority? 

Authority(ies): DoDD 3025.18 (DSCA); CJCS DSCA EXORD para. 3.I.7; Office of the Chief 

of Naval Operations Instruction 3440.16E; 14 U.S.C. § 141 (Cooperation with Other Agencies, 

States, Territories, and Political Subdivisions)

Discussion: When Navy ships began arriving in the Virgin Islands and Puerto Rico (USS 

Kearsarge/USS Oak Hill) and off the coast of Key West (USS Iwo Jima/USS New York), there 

was a question of whether DoD had the authority to conduct Search and Rescue missions without 

a FEMA Search and Rescue Mission Assignment. In addition to these broader categories, for 

example, a question came up regarding dropping water to located survivors until they could be 

picked up by helicopter and whether this would be considered “save lives and prevent human 

suffering.” A Mission Assignment from FEMA is always the best practice and ideally DoD 

would conduct all operations pursuant to an Mission Assignment. The Mission Assignment is 

also vital for recoupment of costs to DoD, and generally DoD will not be able to receive 

recoupment without a Mission Assignment. However sometimes urgent requirements and the 

general pace of DSCA operations do not allow for a Mission Assignment. During this period 

DoD relied upon two different authorities to conduct Search and Rescue—Immediate Response 

Authority and USCG § 141 authority. 
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Immediate Response Authority can be a valuable tool in disaster response, but 

requirements do exist and JAGs should guard against Immediate Response Authority being 

stretched beyond its regulatory intention. In response to a request from a competent civil 

authority, under imminently serious conditions and if time does not permit approval from higher 

authority, DoD officials (most typically installation commanders) may provide an Immediate 

Response by temporarily employing the resources under their control to save lives, prevent 

human suffering, or mitigate great property damage within the US. However, Immediate 

Response Authority does not allow for actions that would subject civilians to the use of military 

power that is regulatory, prescriptive, or compulsory. Separately, any decision by a commander 

exercising Immediate Response Authority to temporarily deploy resources requires notification 

to the National Joint Operations and Intelligence Center. Moreover, commanders may not 

normally continue support under Immediate Response Authority beyond 72 hours. When using 

this authority DoD commanders shall reassess whether there remains a continued need for a DoD 

response as soon as practicable, but no later than 72 hours after the Request For Assistance was 

received. Lastly, if there has already been a disaster declaration by POTUS and a FEMA 

coordinating cell—then scrutinize the use of Immediate Response Authority heavily, as it is 

intended to be a short term measure filling the gap in FEMA coordination time (DoDD 3025.18, 

Chairman of the Joint Chiefs of Staff DSCA Execute Order para. 3.I.7; Office of the Chief of 

Naval Operations Instruction 3440.16E; TJAGLCS DOMOPS Handbook (2015 ed.), Ch. 2). 

In addition to Immediate Response Authority, there is authority for DoD forces to 

conduct Search and Rescue under the standing USCG Search and Rescue mission, if they request 

DoD help. For Search and Rescue purposes, 14 USC § 88 grants the USCG broad jurisdiction 

to: (a) Render aid to distressed persons, vessels, and aircraft on and under the high seas and on 

and under the waters over which the US has jurisdiction; (b) Perform any and all acts necessary 

to rescue and aid persons and protect and save property; (c) Take charge of and protect all 

property saved from marine or aircraft disasters, or floods, at which USCG is present; and, (d) 

Furnish clothing, food, lodging, medicines, and other necessary supplies and services to persons 

succored by the USCG. They may also render aid to persons and protect and save property at 

any time and at any place at which USCG facilities and personnel are available and can be 

effectively utilized. 14 USC § 88 has no geographical limitations. As it relates to Navy tasking 

under USCG authority, 14 USC § 141 provides that the USCG may, with the consent of the head 

of the agency concerned, avail itself of such employees, advice, information, and facilities of any 

federal agency, State, territory, or political subdivision thereof, as may be helpful in the 

performance of its duties. 

Conclusion: Yes. Commanders of U.S. Naval vessels have Immediate Response Authority.

D.4—Recall of the Reserve Component (Army Reserve)

Issue: May T-10 reservists be recalled to support the Federal response to domestic disasters? 

Are there additional restrictions for the National Guard?
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Authority(ies): 10 U.S.C. § 12302 (Army Reserve, Navy Reserve, Marine Corps Reserve, and

Air Force Reserve: order to active duty to provide assistance in response to a major disaster or

emergency); U.S. Army Reserve Command OPORD 18-046, Annex C, Appendix 3; DoDD 

3025.18 (Defense Support of Civil Authorities); DoDI 1215.06 (Uniform Reserve, Training, and 

Retirement Categories for the Reserve Components); DoDI 1235.11 (Management of Individual 

Mobilization Augmentees); DoDI 3025.23 (Domestic Defense Liaison with Civil Authorities)

Discussion: Under 10 U.S.C. § 12302(a), when the President of the United States has declared a 

national emergency, “or when otherwise authorized by law, an authority designated by the 

Secretary concerned may, without the consent of the person concerned, order any unit, and any 

member not assigned to a unit organized to serve as a unit, in the Ready Reserve under the 

jurisdiction of that Secretary to active duty for not more than 24 consecutive months.” However, 

this recall authority should not be confused with a commander’s authority under Immediate 

Response Authority. To determine the appropriate pay status of Army Reservists, see U.S. Army 

Reserve Command OPORD 18-046 or the most current OPORD for Army Reserve all-hazards 

DSCA issued by U.S. Army Reserve Command .

Regardless of status, the 72-hour reassessment rule listed in DoDD 3025.18 applies. The 

rule requires that, once commanders have responded under their Immediate Response Authority

and 72-hours have passed, they must report their status to higher command. Active component

reports must be submitted to the Combatant Commander of the appropriate combatant command 

and the National Joint Operations and Intelligence Center. National Guard reports must be 

submitted to the Chief of the National Guard Bureau via the National Guard Communication 

Center. Note that the 72-hour reassessment does not mean that the assistance must halt. Instead, 

support provided to a commander’s Immediate Response Authority may continue beyond the 72-

hour point so long as the commander assesses the situation and determines that “imminent 

serious conditions” remain and that the assistance is still required. 

DoDI 1215.06 is very clear on how the Reserve Component may provide DSCA. Note 

that this rule is exclusive of the National Guard when serving in their State Active Duty status 

over which the DoD has no jurisdiction. The policy states, “DSCA may be provided through RC 

Service-members participating with Federal, State, and local civil agencies only when requested 

and approved by the Secretary of Defense or other designated official. . . . The primary basis for 

R[eserve] C[omponent] participation is to meet DoD program requirements and therefore costs 

of the program are paid by the DoD Component, except when the R[eserve] C[omponent]

service-members are supporting an approved R[equest] F[or] A[ssistance] with reimbursement 

from the requesting department or agency, including Federal Emergency Management Agency 

(FEMA) mission assignments in support of a Presidentially declared emergency or disaster. In 

these cases, costs will be on a reimbursable basis in accordance with [DoDD 3025.18].” 

(paragraph 2.a of DoDD 3025.18)

For the Naval Reserve, once Hurricane Harvey approached (29 Aug 17), reservists that 

were available began to arrive on site and to augment the existing units located at Naval Station 

Norfolk. Once Hurricane Irma made landfall and it became evident that 24/7 operations would 

be necessary, the issue became the lack of available funding. U.S. Fleet Forces Command began 
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exploring the possibility of getting reserve support through 10 USC § 12302(a), which allows for

involuntary recall to support the Presidential disaster declaration under the Stafford Act. 

Involuntary recall of reservists requires Secretary of the Navy (SecNav) approval (delegated for 

recall of up to 30 days by SecDef Memo dated 7 Mar 13; beyond 30 days requires SecDef 

approval). This meant that the request had to be approved by SecNav, but the request had to 

begin as a Request for Forces to NORTHCOM. The SecDef memorandum requires this step in

the process to validate the need for the requested forces. The Request for Forces was submitted 

to and approved by NORTHCOM. Subsequently, NORTHCOM released a Request for Forces

approval message. 

The request was then forwarded to SecNav where a funding source was identified and the 

request approved. The result was that ten reservists were activated to support the Maritime 

Operations Center. Note that the position of the Office of the Secretary of Defense was that a 

State signature on a FEMA Mission Assignment was not required prior to approving involuntary 

mobilization of reserve forces under 10 USC 12302(a). Additionally, several Navy Emergency 

Preparedness Liaison Officers were involuntarily recalled. Navy Emergency Preparedness 

Liaison Officers are reservists who are in a special category known as Individual Mobilization 

Augmentees under DoDI 1235.11. The Navy Emergency Preparedness Liaison Officers does not 

have an active duty counterpart. Instead, the Navy Emergency Preparedness Liaison Officers 

Program is 100% comprised of reserve component Individual Mobilization Augmentees. 

Initially there was confusion over who needed to fund and who must submit a Request for 

Forces. Navy Emergency Preparedness Liaison Officers are not a service program, but part of a 

SecDef Program under DoDI 3025.23 (Domestic Defense Liaison with Civil Authorities). 

Moreover, 10 USC 12302(a) was specifically enacted to activate units and individuals most 

capable of rapid response to save lives and mitigate human suffering responding to a declaration 

of a major disaster or emergency under the Stafford Act (e.g. Emergency Preparedness Liaison 

Officers /Navy Emergency Preparedness Liaison Officers). After examination of this issue, it

was determined that a Request for Forces was required by NORTHCOM.

Conclusion: Yes. T-10 reservists may be recalled to support the Federal response to domestic 

disasters. However, this should not be confused with a commander’s Navy Emergency 

Preparedness Liaison Officers. Commanders may not bring members of the reserve component 

on orders in any status for the specific purpose of providing civil support under the commander’s 

Immediate Response Authority. Also, Army Reserve Unit Commanders must ensure that all 

personnel conducting operations under Navy Emergency Preparedness Liaison Officers are in a 

paid duty status [U.S. Army Reserve Command OPORD 18-046, Annex C, Appendix 3, para 

3(c)(5.a)].

There are additional restrictions for the National Guard. DoDI 1215.06 strictly prohibits

National Guard performance of Annual Training in response to an emergency. “AT will not be 

performed in response to an emergency by order of the governor in support of civil authorities, 

including those emergencies when a presidentially declared disaster qualifies a State for 

reimbursement of associated preparation or recovery costs through a lead Federal agency. By 

exception, AT may be used in response to a State or Federal emergency that occurs during a pre-
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planned annual training event when, at the discretion of the Adjutant General, the work 

performed satisfies or complements the unit's wartime mission or annual training objectives.” 

(DoDI 1215.06, encl. 3, para. 4.a(1)) However, National Guard personnel on Inactive Duty 

Training may provide Operational Support in accordance with DoDI 1215.06, encl 3., para.

2.a.(1) which states “Units or individuals that participate in IDT may provide support to mission

requirements (i.e., OS) as a result of the training.” Unlike Full Time National Guard Duty –

Annual Training, there is no prohibition in DoDI 1215.06 to rescheduling Inactive Duty 

Training. The activities performed must still constitute training. The operational support benefit 

gained by the State is incidental.

______________________

Issue: May the Selected Reserve and certain Individual Ready Reserve members be

involuntarily recalled to support the Federal response to domestic disasters? 

Authority(ies): 10 U.S.C. § 12304(a) (Selected Reserve and certain Individual Ready Reserve

members; order to active duty other than during war or national emergency); Secretary of 

Defense Memorandum, Delegation of Authority under Title 10, U.S.C., Section 12304(a), 7 Mar 

2013

Discussion: Approximately one week following landfall of Hurricane Harvey, reservists from 

the Department of the Navy and U.S. Army were activated under 10 USC 12304(a), and began to 

arrive at the U.S. Northern Command, Office of the Staff Judge Advocate. Their purpose was to 

augment the staff. As Hurricanes Irma and Maria occurred, multiple, simultaneous responses 

from the total force were required. Also, 24/7 staff operations continued. It became apparent 

that additional reservists were needed to support the 24/7 manning requirement. The issue was 

that reserve funding had been exhausted. Therefore, the ability to recall reserves under 10 

U.S.C. § 12304(a) was considered.

The authority to involuntarily recall reservists was delegated to the services by SECDEF 

Memorandum, Delegation of Authority under Title 10, U.S.C., Section 12304(a), 7 Mar 2013. 

This delegation meant that the recall request had to go to service secretary. However, the request 

had to begin as a request for forces to U.S. Northern Command. The SECDEF memorandum 

requires this step in the process to validate the need for the requested forces. The request for 

forces was submitted and approved by U.S. Northern Command. Next, U.S. Northern Command 

released a request for forces approval message. The package was then forwarded to the service 

secretary where a funding source was identified and the request approved. A State signature is 

not required on a FEMA mission assignment prior to approving involuntary mobilization of 

reserve forces under 10 USC 12304(a).

10 U.S.C § 12304 states as follows: “Selected Reserve and certain Individual Ready 

Reserve members; order to active duty other than during war or national emergency. (a) 

Authority.— Notwithstanding the provisions of section 12302(a) or any other provision of law, 

when the President determines that it is necessary to augment the active forces for any named 

operational mission or that it is necessary to provide assistance referred to in subsection (b), he 

may authorize the Secretary of Defense and the Secretary of Homeland Security with respect to 
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the Coast Guard when it is not operating as a service in the Navy, without the consent of the 

members concerned, to order any unit, and any member not assigned to a unit organized to serve 

as a unit of the Selected Reserve (as defined in section 10143(a) of this title), or any member in 

the Individual Ready Reserve mobilization category and designated as essential under 

regulations prescribed by the Secretary concerned, under their respective jurisdictions, to active 

duty for not more than 365 consecutive days.”

Secretary of Defense Memorandum, Delegation of Authority under Title 10, U.S.C., 

Section 12304a, 7 Mar 2013, states as follows: “¶ 2: The Secretaries of the Military Departments 

may further delegate this authority, but only to civilian subordinates who are appointed to their 

offices by the President, by and with the advice and consent of the Senate. This delegated 

authority may be exercised only after a Governor requests Federal assistance in responding to a 

declaration of a major disaster or emergency (as those terms are defined in section 102 of the 

Robert T. Stafford Disaster Relief and Emergency Assistance Act (title 42, U.S.C., section 

5122), by the President and in support of a request for forces from the responsible Combatant 

Commander. The intent of this delegation is to issue orders to units and individuals most capable 

of rapid responses to save lives and mitigate human suffering . . . .”

Conclusion: Yes. Under 10 U.S.C § 12304(a), the Selected Reserve and certain Individual 

Ready Reserve members may be involuntarily recalled to support the Federal response to

domestic disasters. The approval of the request for forces process should include the SECDEF 

approval to use these forces, as restricted under the DSCA Execute Order or other DoD 

instructions. In the event of DoD delegation of authority for one instance, a separate request and 

DoD approval would need to be submitted for separate instances. The 2017 hurricane season 

highlighted this gap because the domestic response overlapped with an international support 

effort. For example, if a request for forces is approved for a Military Police Battalion or a Group 

5 unmanned aircraft system, then all of the authorities to fully employ these resources should 

also be provided. A Group 5 unmanned aircraft system is the largest class of system with a 

maximum gross takeoff weight greater than 1,320 pounds and a normal operating altitude greater 

than 18,000 feet.

D.5—D.C. National Guard Disaster Response (Commanding General 

Authority and Funding)

Issue: Does the Commanding General of the National Guard of the District of Columbia have 

the authority to order members of the National Guard of the District of Columbia to provide 

assistance under the “training” or “other duty” clauses found in 32 U.S.C. Section 502(f)?

Authority(ies): 32 U.S.C. § 502(f); DoDI 1215.06 (Uniform Reserve, Training, and Retirement

Categories for the Reserve Components); DoDD 3025.18 (DSCA); EO 11485 (Supervision and 

Control of the National Guard of the District of Columbia); Title 49 of the District of Columbia 

Code, Subtitles I and III (District of Columbia Military Organization; Military Compacts)
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Discussion: First, in accordance with EO 11485, “The Secretary of Defense [...]is authorized 

and directed to supervise, administer and control the Army National Guard and the Air National

Guard of the District of Columbia (hereinafter “National Guard”) while in militia status. The

Commanding General of the National Guard shall report to the Secretary of Defense or to an

official of the Department of Defense designated by the Secretary on all matters pertaining to the

National Guard. Through the Commanding General, the Secretary of Defense shall command 

the military operations, including training, parades and other duty, of the National Guard while 

in militia status. Subject to the direction of the President as Commander-in-Chief, the Secretary

may order the National Guard under Title [4]9 of the District of Columbia Code to aid the civil

authorities of the District of Columbia.” Also, under D.C. Code 49-409, the President of the 

United States is the Commander-in-Chief of the D.C. National Guard. Second, it is important to 

understand that each normal day of “drill” for a member of the National Guard counts as one 

“period.” A member of the National Guard gains credit for two “periods” during a normal drill 

weekend, Saturday and Sunday. 

The aforementioned sheds light on the statement found in enclosure 3, paragraph 2.a.2(a) 

of DoDI 1215.06, “the 48 annual periods of IDT [inactive duty training] are regularly scheduled 

IDT as authorized for members of the Ready Reserve pursuant to requirements in section 10147 

of [Title 10] or section 502(a) of [Title 32].” Chief of the National Guard Bureau Instruction

(CNGBI) 1302.01 states, “Commanders may order members performing duty under 32 U.S.C. § 

502(f) to respond to an emergency in accordance with the Immediate Response Authority in 

reference [DoDI 3025.18] and State law. Commanders directing members in a 32 U.S.C. § 

502(f) duty status under this authority must immediately notify the National Guard Coordination 

Center (NGCC). The C[hief] [of the] N[ational] G[uard] B[ureau] must approve the use of 

N[ational] G[uard] members in a 32 U.S.C. § 502(f) duty status for Immediate Response

activities exceeding 72 hours.”

Therefore, when all of the rules are read in the proper context, under administrative

authority delegated by SecDef, the Commanding General, D.C. National Guard , may order 

members of the D.C. National Guard to provide assistance under the “training or other duty”

clause found in 32 U.S.C. § 502(f)(1). (Appendix O)

Conclusion: Yes, if authority has been delegated by SecDef, then the Commanding General of 

the D.C. National Guard has the authority to order members of the D.C. National Guard to 

provide assistance under the training” or “other duty” clauses found in 32 U.S.C. Section 502(f).

PRACTICE TIPS: Further, the “training or other duty” clause in 32 U.S.C. § 502(f)(1) has 

proven to be somewhat confusing. Therefore, the following sample uses are provided: 

Current counterdrug missions are conducted under 32 U.S.C. § 112 which authorizes the 

funding for National Guard counterdrug program and directs the actual duty is to be performed 

pursuant to 32 U.S.C. § 502(f). Innovative Readiness Training is conducted under 10 U.S.C. § 

2012 and 32 U.S. § 508 where both rules allow the DoD to support certain organizations if such 

assistance is authorized by a provision of law, other than § 2012 or § 508, and is not in 

competition with a commercial entity and/or the provision of such assistance is beneficial to 
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military training. National Guard members perform such duty in a Title 32 status. 10 U.S.C. § 

12310(c) which provides that Weapons of Mass Destruction/Civil Support Teams (CSTs) may 

perform missions under 32 U.S.C. § 502(f).

During Hurricane Harvey, certain members of the Air National Guard deployed in their 

32 U.S.C. § 502(f)(1)(B) status for “training,” converted to their State Active Duty status when 

employed in the Area of Operation, then converted back to their 32 U.S.C. § 502(f)(1)(B) status 

for redeployment. During the deployment, the Airmen would perform tasks that were essential 

to their war-training to ensure their readiness (Mission Essential Task List - METL) which 

allowed them to be placed in their status under 32 U.S.C. § 502(f)(1)(B). Once in the Area of 

Operation, their tasks performed were not part of their Mission Essential Task List. As a result, 

they converted from their status under 32 U.S.C. § 502(f)(1)(B) to their State Active Duty status. 

Once their mission in the AO was complete, they converted back to their 32 U.S.C. § 

502(f)(1)(B) and performed mission essential tasks for redeployment. Some may ask, “Why 

don’t the personnel stay in their State active duty status the entire time?” When members of the 

National Guard serve in their 32 U.S.C. § 502(f)(1) status, funding comes from the home State’s 

training budget which makes sense because the functions performed are within the servicemember’s Mission Essential Task List to the benefit of that State’s National Guard. When 

responding to disasters or emergencies in other States, once the service-members from the 

supporting State arrive in the affected State, they are no longer training. Instead, they are 

performing tasks in support of another State. As a result, they switch from their T-32 status to 

State Active Duty so the affected State may properly account for expenses incurred as required 

for FEMA reimbursement. 

In accordance with regulations prescribed by the Secretary of the Army or Secretary of 

the Air Force, requests under 32 U.S.C. § 502(f)(1) may be submitted from the State to SecDef. 

Also, the “training” performed may incidentally benefit an operational mission. Under 32 U.S.C. 

§ 502(f)(2), the training or other duty performed may be in support of operations or missions led 

by the DoD. If the training or other duty is performed under 32 U.S.C. § 502(f)(2), then it is at 

the request of the POTUS or SecDef. 

Further, SecDef may delegate authority to the Chief of the National Guard Bureau to 

approve members of the National Guard to perform training or other duty under 32 U.S.C. § 

502(f)(1). Funding for 32 U.S.C. § 502(f)(1) comes out of the State’s training funds. These 

funds are federally appropriated funds. If serving under 32 U.S.C. § 502(f)(2), then additional 

funding is provided by the Federal government. 

_____________________

Issue: Is it a violation of the Purpose Statute if, under 32 USC 502(f)(2)(A), someone other than

the POTUS or the Office of the Secretary of Defense requests and approves the D.C. National 

Guard to provide support to another State or territory in response to a Request For Assistance?

Authority(ies): 31 U.S.C. § 1301(a) (The Purpose Statute); 32 USC 502(f)(2)(A); Executive 

Order 11485 (Supervision and Control of the National Guard of the District of Columbia)
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Discussion: The Purpose Statute states that, “Appropriations shall be applied only to the objects

for which the appropriations were made except as otherwise provided by law.” For there to be a

violation of the Purpose Statute, appropriated funds must be used for an unintended or

unauthorized purpose as set by Congress. 32 USC 502(f)(2) states, “The training or duty ordered 

to be performed in paragraph (1) may include the following: (A) Support of operations or

missions undertaken by the member’s unit at the request of the President or Secretary of 

Defense.” For contextual purposes, it is also necessary to understand the content of Section 1 of 

Executive Order 11485 which states, “The Secretary of Defense, except as provided in section 3,

is authorized and directed to supervise, administer and control the Army National Guard and the 

Air National Guard of the District of Columbia (hereinafter “National Guard”) while in militia 

status. . . . Through the Commanding General, the Secretary of Defense shall command the 

military operations, including training, parades and other duty, of the National Guard while in 

militia status.” Section 3 states, “The Commanding General and the Adjutant General of the 

[D.C.] National Guard will be appointed by the President. The Secretary of Defense, after 

consultation with the Attorney General, shall at such times as may be appropriate submit to the 

President recommendations with respect to such appointments.” Therefore, if a valid R[equest] 

F[or] A[ssistance] exists, and should the Commanding General approve the D.C. National Guard

to provide support to any other State or territory, such an act is not a violation of the Purpose 

Statute if the Commanding General was provided with such authority by the Secretary of 

Defense. (Appendix O)

Conclusion: No. There is no violation of the Purpose Statute if, under 32 USC 502(f)(2)(A),

someone other than the POTUS or the Office of the Secretary of Defense (OSD) requests and

approves the D.C. National Guard to provide support to another State or territory in response to a 

Request For Assistance if the person, such as the Commanding General of the D.C. National 

Guard, was provided with such authority by the Secretary of Defense.

_____________________

Issue: In response to a valid Request For Assistance, is it a violation of the Purpose Statute 

and/or the Anti-Deficiency Act for the D.C. National Guard to use its personnel appropriated 

funds to send and sustain personnel during disaster response efforts? 

Authority(ies): 31 U.S.C. § 1301(a) (The Purpose Statute); 32 U.S.C. § 502(f)(1); The Stafford 

Act, 42 U.S.C. § 5121, et. seq.

Discussion: The Purpose Statute, 31 U.S.C. § 1301(a), states that, “Appropriations shall be

applied only to the objects for which the appropriations were made except as otherwise provided

by law.” In this instance, a major disaster was declared by POTUS under Section 102 of the

Stafford Act, 42 U.S.C. § 5122(2). In accordance with the Act and upon POTUS declaration,

Federal funds are made available for expenditure in direct support of the event. These funds may 

be provided by FEMA directly to the State(s) effected by the disaster or to a Federal

agency/activity for distribution to supporting States in accordance with the authorized purpose. 

In this case, FEMA provided National Guard Bureau, a Federal activity, with funds to expend by 

distribution to supporting States in accordance with the purpose. D.C. National Guard wished to 
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support the Puerto Rico National Guard within the confines of the current Request For 

Assistance process and sought funding from the National Guard Bureau. In the alternative, the 

D.C. National Guard was willing to use its personnel appropriation to send D.C. National Guard 

personnel in support of the mission for training purposes. 

Unless otherwise authorized by law, funds appropriated by Congress to the National 

Guard for personnel may be expended only for the purposes stated. This particular appropriation 

may be used for National Guard personnel “while undergoing training, or while performing drills 

or equivalent duty or other duty . . . .” D.C. National Guard desired to send National Guard 

service-members to support the hurricane response efforts under 32 U.S.C. § 502(f)(1)(B). The 

pertinent section of the law states, “Under regulations to be prescribed by the Secretary of the

Army or Secretary of the Air Force, as the case may be, a member of the National Guard may be

ordered to perform training or other duty in addition to that prescribed under subsection (a).” 

Subsection (a) covers assembly for required drill and instruction, and participation in training. 

Therefore, if the D.C. National Guard was to use its personnel funds to send and sustain 

personnel during hurricane response efforts under 32 USC 502(f)(1)(B), so long as the 

Commanding General had proper authority delegated by SecDef, there would be no violation of 

the Purpose Statute nor the Anti-Deficiency Act.

Conclusion: No. It is not a violation of the Purpose Statute nor the Anti-Deficiency Act for the 

D.C. National Guard to process a request through the National Guard Bureau Joint Information 

Exchange Environment because the funds expended to support the National Guard hurricane

response to the States were allocated to National Guard Bureau for the specific purpose of 

funding the very type of activities that the D.C. National Guard sought to perform in the US

Virgin Islands and Puerto Rico.

PRACTICE TIP: In 2005 during the response to Hurricane Katrina, the Chief of the National

Guard Bureau responded to a request from the Commanding General of the National Guard for 

the District of Columbia. The request was for authorization to deploy D.C. National Guard 

service-members to support the hurricane response efforts while in their T-32 training status 

under the provisions of 32 U.S.C. § 502(f)(1). The Chief of the National Guard Bureau

recommended approval of the request so long as the service-members were performing Mission 

Essential Task List-related tasks. In addition, approval was subject to the availability of funds. 

While provision of the support may be legal, commanders are faced with other factors such as 

unit capabilities, cost, and availability. Commanders may also be faced with questions such as 

whether there are other State National Guards closer to the incident with same or similar

capabilities? Are the necessary personnel from the other State National Guards available and

ready to go? Can those other State National Guards provide support with service-members in

their State Active Duty status versus T-32? Thus, while provision of support by certain units 

may make sense legally, it may not make sense operationally.
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D.6—32 U.S.C. § 502(f) Status

Issue: In response to a major disaster or emergency, may members of the National Guard serve 

in an “operational support” status under 32 U.S.C. § 502(f)(2)?

Authority(ies): 32 U.S.C. § 502(f)(2); DoDI 3025.22 (Use of the National Guard for DSCA);

DoDI 1215.06 (Uniform Reserve, Training, and Retirement Categories for the Reserve

Components); Chief of the National Guard Bureau Instruction 3000.04 (National Guard Bureau 

Domestic Operations)

Discussion: Historically, the National Guard has been used in a status other than State Active 

Duty when responding to a major disaster or emergency. In fact, for most large disaster or

emergency responses where the POTUS has made the proper declarations, National Guard

personnel transition between State Active Duty and T-32 status depending on the situation, 

requests, approvals, and authorities. Under DoDI 3025.22, if DoD receives a reimbursable 

request from a Federal department, agency, or qualifying entity pursuant to the DoD DSCA 

policy (DoDD 2025.18), and the National Guard is chosen as the sourcing solution pursuant to a 

Combatant Commander’s Request for Forces, there is concurrence from the applicable State 

Governor(s), and there is a determination by SecDef to approve the use of the National Guard in 

a duty status pursuant to section 502(f) of Title 32 for DSCA to respond to the approved request, 

then the National Guard may provide operational support in a section 502(f)(2) status. Under 

DoDI 1215.06, “The purpose of FTNGD-OS is to provide the necessary skilled manpower assets 

to support existing or emerging requirements pursuant to section 502(f). . . .” Knowledge of this 

information helps to solidify the validity of National Guard personnel serving in a status under 

502(f) when supporting disaster response efforts.

Conclusion: Yes. In response to a major disaster or emergency, members of the National

Guard may serve in an “operational support” status under 32 U.S.C. § 502(f)(2). 

D.7—National Guard Weapons and Ammunition

Issue: When responding to a Request For Assistance from a civil authority, may members of the

National Guard bear arms? If so, what are the rules that govern transportation of their weapons

and ammunition across State lines?

Authority(ies): 18 U.S.C. § 1385 (Posse Comitatus Act); National Guard Regulation 500-5 

(National Guard Law Enforcement and Mission Assurance Operations); DoDI 3025.21 (Defense 

Support to Civilian Law Enforcement Agencies); DoD 4500.9-R-Part II [The Defense Transport 

Regulations]; Public Law 104-321 (Emergency Management Assistance Compact); National 

Guard Regulation 500-5 (National Guard Law Enforcement Support and Mission Assurance 

Operations)

Discussion: This issue is rooted in the Posse Comitatus Act, State law, and Federal

transportation regulations. First, 18 U.S.C. § 1385 states, “Whoever, except in cases and under 

circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any 
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part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be 

fined under this title or imprisoned not more than two years, or both.” Sometime later, Congress 

passed 10 U.S.C. § 275 which instructed SecDef to issue policy “to ensure that any activity 

(including the provision of any equipment or facility or the assignment or detail of any 

personnel) under this chapter does not include or permit direct participation by a member of the 

Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity 

unless participation in such activity by such member is otherwise authorized by law.” Among 

other policies, SecDef issued DoDI 3025.21, “Defense Support to Civilian Law Enforcement 

Agencies.” The policy does not apply to “N[ational] G[uard] personnel in State [A]ctive [D]uty 

or [T]itle 32, U.S.C. . . ., status.” (Appendix K)

Second, National Guard Regulation 500-5, paragraph 3-1.a states, “It is the policy of the 

Department of Defense and the National Guard Bureau that the National Guard shall cooperate 

with and provide military assistance to civil authorities as directed by and consistent with 

applicable State and Federal laws, policies, directives and executive orders. This military 

assistance to civil authorities includes domestic law enforcement support and mission assurance 

operations.” The regulation goes on to state that, “State laws and policies govern the use of 

National Guard Soldiers and Airmen in support of domestic law enforcement support and 

mission assurance operations while serving in [S]tate active duty and US Code, Title 32 

statuses.” When the Act and policies are read together, it becomes clear that National Guard 

personnel may bear arms when responding to a Request For Assistance from a civil authority in 

their State Active Duty and T-32 statuses.

Third, as to transporting National Guard weapons and ammunition across State lines 

when on orders to support a disaster response, the Defense Transport Regulations, DoD 4500.9-

R-Part II, provides the “policies, procedures, and responsibilities for the movement of DoDregulated Hazardous Material by all modes, military and commercial, operated by DoD-affiliated

personnel.” (Ch. 204, para. A(2)) The Defense Transport Regulations includes the National 

Guard within its definition of military personnel drivers that can be licensed with Hazardous 

Material training endorsements. (para. B(3)(b)) The Defense Transport Regulations

characterizes ammunition, explosives, and munitions as Hazardous Material. (para.A(2)) The 

movement of Hazardous Material via commercial surface means “must comply with local, State,

Federal (49 CFR), and international laws and regulations and [Status-of-Forces Agreements] 

SOFA, [Standard North Atlantic Treaty Organization (NATO) Agreements] STANAG, [Host 

Nation] HN, and DoD Component/Service/Agency HQ publications.” (para. C(2)) However, the 

regulation does not mention the obligation for military transporters to comply with local and 

State laws and regulations if transportation is arranged by military vehicle surface movement off 

the installation. 

In accordance with the Defense Transport Regulations, “Transportation units and Service 

tactical and combat units must adhere to the requirements of 49 CFR when moving HAZMAT 

over public highways for the purpose of transportation.” (Defense Transport Regulations, Part 

II, at para. C(5)(c)) Based on a reading of Part II, Chapter 204 of the Defense Transport 

Regulations, provided the military surface movement unit complies with the requirements of the 
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Defense Transport Regulations, and where required by 49 Code of Federal Regulations, then the

transportation of ammunition across State lines should not require additional State authorization. 

For purpose of interpreting the Hazardous Materials Regulations, the National Guard Bureau

focal point for coordinating the movement of the Hazardous Material may request additional 

information from the DoD Services Hazardous Material Focal Point listed in figure 204-2 of 

chapter 204. 

National Guard personnel serving on State Active Duty status are not operating under 

Federal regulations, nor are they performing a Federal purpose. Thus, when performing in their 

State Active Duty status, National Guard personnel should not look to Defense Transport 

Regulations. Because the National Guard falls under the State’s laws, it would be prudent for the 

State to coordinate transit between States. At this point, the language contained in the 

Emergency Management Assistance Compact must be addressed. National Guard Regulation

500-5, paragraph 5-3(e)(5) states, “All members authorized to carry firearms must have received 

training, achieved service qualification standards, and possess a current qualification testing on 

the type of firearm to be carried.” It would make good practice that, along with the other training 

that a service-member must take before participating in a domestic response, that verification of 

weapons qualification becomes part of the training checklist.

Public Law 104-321, the Emergency Management Assistance Compact, does not provide 

the authorization for National Guard personnel to conduct law enforcement missions. Arrest

authority is specifically exempted from the scope of the compact. Article IV of the Model

Emergency Management Assistance Compact states, “Each party [S]tate shall afford to the

emergency forces of any party [S]tate, while operating within its [S]tate limits under the terms 

and conditions of this compact, the same powers, except that of arrest unless specifically 

authorized by the receiving [S]tate, duties, rights, and privileges as are afforded forces of the 

[S]tate in which they are performing emergency services.” Emergency forces will continue 

under the command and control of their regular leadership, but the organizational units will come 

under the operational control of the emergency services authorities of the State receiving 

assistance. As to the use of military force, Article XIII of the Emergency Management 

Assistance Compact states, “Nothing in this compact shall authorize or permit the use of military 

force by the National Guard of a [S]tate at any place outside that [S]tate in any emergency for 

which the President is authorized by law to call into Federal service the militia, or for any 

purpose for which the use of the Army or the Air Force would in the absence of express statutory

authorization be prohibited under section 1385 of Title 18.”

To specifically address the issue of cross-State Law Enforcement Agency mission 

support, some States have entered into supplemental agreements between the sending and 

receiving States, which specifically authorizes the National Guard personnel from the sending 

State to perform Law Enforcement activity, which includes bearing arms.

Conclusion: Yes. When responding to a Request For Assistance from a civil authority, 

members of the National Guard may bear arms in their home-State and in other States supported 

so long as 1) they receive the proper training and obtain the proper qualifications beforehand; 2) 

adhere to the Defense Transport Regulations when applicable; and 3) the States enter into a 
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supplemental Law Enforcement agreement if the support provided is pursuant to the Emergency 

Management Assistance Compact.

D.8—National Guard Linguist to T-10 Units

Issue: Should National Guard Counterdrug personnel (Spanish speaking linguists) be integrated 

into an active component unit responding to a Request For Assistance in Puerto Rico?

Authority(ies): 32 U.S.C. § 112 (Drug Interdiction and Counter-Drug Activities); Chief of the 

National Guard Bureau Instruction 3100.01A (National Guard Counterdrug Support)

Discussion: In accordance with 32 U.S.C. § 112, the National Guard receives appropriated 

funds to support National Guard personnel in the performance of “drug interdiction and 

counterdrug support” as a primary purpose. However, National Guard counterdrug personnel on 

Full Time National Guard Duty-Counterdrug (Operational Support) orders pursuant to 32 U.S.C. 

§ 112, are required to, in addition to performing “drug interdiction and counterdrug activities,”

perform training and to maintain their military skills as required by para. (b)(2). The funding 

provided includes the cost of training necessary to perform training activities associated with 

their primary Military Occupational Specialty. In the actual instance, the request to the National 

Guard came from an active component engineer battalion. In response to Hurricane Irma, the 

battalion planned to provide support in Puerto Rico and requested that the Puerto Rico National 

Guard provide 4 Spanish speaking linguists. It became evident that it was more practical to use 

the Puerto Rico National Guard as the sourcing solution - either using M-Day members in a 

training status, other Full Time National Guard Duty status, or State Active Duty, as the case 

may be, by providing incidental support, non-interference support, or “Immediate Response” (if 

requested by a civil authority).

Conclusion: No. As it specifically pertains to this fact pattern, instead of integrating into the 

active component unit responding to the Request For Assistance in Puerto Rico, the Puerto Rico 

National Guard Counterdrug personnel provided the necessary interface in their State Active 

Duty status.

D.9—Medical Personnel

Issue: May Civilian Directors of Psychological Health personnel employed under Title 5 of the 

United States Code travel on TDY to support a request for behavioral health assistance?

Authority(ies): Title 5 of the United States Code (Government Organization and Employees); 

32 U.S.C. § 709 (Technicians: Employment, Use, Status); 10 U.S.C. § 10503 (Functions of the

National Guard: Charter); 28 U.S.C. § Chapter 171 (Tort Claims Procedure; 5 C.F.R.

(Administrative Personnel); 20 C.F.R. Part 10 (Claims for Compensation Under The Federal

Employees’ Compensation Act, As Amended); DoDI 1400.25 (DoD Civilian Personnel

Management System); DoDD 5105.77 (National Guard Bureau); Chief of the National Guard 

Bureau Instruction 1701.01 (Manpower and Organization Policies and Standards)
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Discussion: Unlike civilians employed as Technicians under Title 32 of the United States Code 

(T-32), civilians employed under Title 5 of the United States Code (T-5) are not constrained by 

the statutory [Technician Act, see 32 U.S.C. § 709(a)] restrictions to organize, administer, 

instruct, or train the National Guard. Further, T-5 civilian employees are not limited to 

maintenance and repair of supplies issued to the National Guard or the armed forces nor the 

performance of additional duties as assigned by competent authority on a noninterference basis. 

Therefore, in this context, T-5 civilian employees have greater potential use for a broad spectrum 

of missions than T-32 Technicians.

The Position Description for Directors of Psychological Health providers States the 

primary purpose of this position is to provide operations related leadership consultation, direct 

client services, community capacity building, preventive, remedial and support services aimed at 

improving and sustaining the psychological health of National Guard Members and their 

families. The Position Description also provides that clinical and administrative duties should 

focus on outreach, education and prevention, and needs based psychosocial assessment, 

diagnosis and short-term problem resolution. Directors of Psychological Health are also tasked

with the provision of or referral for evidence-based interventions. Furthermore, per the Position 

Description, the Directors of Psychological Health is to ensure clinical mental health services 

provided are integrated with other counseling and support services available at the installation, 

Federal, State, and territorial level, as well as military and non-military organizations (i.e. 

Military OneSource, Military and Family Life Consultants, and the TRICARE Network). The 

scope appears to be within the terms of the Directors of Psychological Health Position 

Description.

T-5 civilian employees are covered by the Federal Tort Claims Act, 28 U.S.C. § 1346, 

2671-2680. The scope of a TDY mission to support a request for behavioral health assistance 

appears to be within the scope of employment for the Directors of Psychological Health Position 

Description. Subsequently, should a Directors of Psychological Health be sued in their official 

capacity while performing within the scope of their official duties, they are likely to be 

substituted, and represented by the Department of Justice. The Department of Justice has also 

historically represented T-5 and T-32 professionals in malpractice and licensure complaints 

when the professional was acting within the scope of their employment.

Conclusion: Yes. Directors of Psychological Health Personnel employed under T-5 may travel 

on TDY to support a request for behavioral health assistance so long as the support is provided 

within the scope of their employment.

_____________________

Issue: What is the scope of medical treatment that DoD healthcare providers may provide to

non-DoD personnel, both under Immediate Response Authority and other authority? May DoD 

bring patients to U.S. Navy ships for medical treatment?

Authority(ies): Bureau of Medicine and Surgery Instruction 6320.103; Navy Regulations 0924; 

Office of the Chief of Naval Operations Instruction 6400.1C/Marine Corps Order 6400.1
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Discussion: Several legal questions arose regarding the provision of medical services under 

Immediate Response Authority and beyond. Additionally, the USS Comfort arrived in Puerto 

Rico later in relief operations and began accepting patients onboard. Bureau of Medicine and 

Surgery Instruction 6320.103, Section 1, provides that “patients who require emergent care to 

prevent undue suffering or loss of life or limb as deemed by the MTF [medical treatment facility]

treating physician, but whose eligibility is questionable, will be provided treatment as necessary 

to stabilize the patient.” Enclosure (2) of the Instruction goes on, under the heading Civilian 

Emergencies, to clarify that “[i]n an emergency, any person who is authorized care in Navy 

MTFs to prevent undue suffering or loss of life or limb. Care will be limited to that necessary 

only during the period of the emergency. If further treatment is indicated, initiate action to 

transfer the patient to a private physician or civilian treatment facility as soon as possible. 

Charges for medical care will be at the full reimbursable rate”; except that “civilians treated 

during a declared state of emergency will not be charged for outpatient care and charged only the 

subsistence rate if they are provided inpatient care.” Furthermore, Navy Regulation 0924 

addresses medical and/or dental care to persons not in the naval services. 

Navy Regulation 0924 provides that the senior officer present may require the officers of

the Medical Corps and Dental Corps under his or her authority to render emergency professional

aid to persons not in the naval service when such aid is necessary and demanded by the laws of

humanity or the principles of international courtesy. Also applicable is Office of the Chief of 

Naval Operations Instruction 6400.1C/MCO 6400.1, enclosure (3), which provides that in lifethreatening emergencies, the Independent Duty Corpsman should follow basic life support 

guidelines.

Conclusion: Yes. Medical treatment to save life or limb is authorized if deemed necessary by 

the Medical Treatment Facility treating physician or the senior medically qualified official on 

scene. In addition, patients may be brought onboard U.S. Navy ships to receive treatment to save 

life or limb. Medical treatment beyond emergency and stabilization care requires a Mission 

Assignment from FEMA.

D.10—Use of the Active Guard and Reserve

Issue: May personnel in the Active Guard Reserve program be used in disaster response?

Authority(ies): 10 USC 101 (Definitions); 10 USC 12310 (Reserves: For Organizing,

Administering, etc., Reserve Components); 32 USC 112 (Drug Interdiction and Counter-drug

Activities); 32 USC 328(b) (Active Guard and Reserve Duty: Governor’s authority); DoDD

3025.18 (Defense Support of Civil Authorities); National Guard Regulation (Army Regulation) 

600-5 (The Active Guard Reserve (AGR) Program Title 32, Full Time National Guard Duty 

Management); Air National Guard Instruction 36-101 (Air National Guard Active Guard 

Reserve Program); Chief of the National Guard Bureau Instruction 1302.01 (Guidance for

members performing duty under the authority of 32 USC 502(f))
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Discussion: Members of the Active Guard Reserve program may perform their primary Active 

Guard Reserve functions during Domestic Operations. These authorized functions stem from the 

statutory and regulatory authority of members in the program. Under the provisions of 10 U.S.C. 

§ 101(d)(6)(A), Active Guard Reserve duty means active duty or Full-Time National Guard Duty 

performed by a member of a reserve component of the Army or Air National Guard or Full-Time 

National Guard Duty performed by a member of the National Guard for a period of 180 

consecutive days or more “for the purpose of organizing, administering, recruiting, instructing, 

or training” the reserve components. (National Guard Regulation (Army Regulation) 600-5, The 

Active Guard Reserve Program, Section II, Air National Guard Instruction 36-101, Air National 

Guard Active Guard Reserve Program, para. 3.1)

Members of the Active Guard Reserve program may perform other duties when 

specifically authorized by statute, such as when assigned to a Civil Support Team. National 

Guard Regulation (Army Regulation) 600-5, para. 3-4c (Emergency operations and State Active 

Duty) specifies, “[A] request from the President or Secretary of Defense is not required for units 

composed entirely of AGR members or units established by law performing specific functions in 

emergency situations, such as Civil Support Teams. Performing those functions in response to 

the specified emergency situations falls within their normal AGR duties.” (Air National Guard 

Instruction 36-101, para. 7.10.1.6) Members of the program may also perform other than

primary duties on a non-interference basis. 32 U.S.C. § 328(b) elaborates on the duties of 

service-members on T-32 Active Guard Reserve orders. Additionally, both National Guard 

Regulation (Army Regulation) 600-5 at paragraph 3-4, and Air National Guard Instruction 36-

101at paragraph 7.10.1, similarly specify that members of the Active Guard Reserve program

may perform other duties to the extent that doing so does not interfere with the performance of 

their primary Active Guard Reserve duties.

Lastly, members of the Active Guard Reserve program may support disaster response 

pursuant to a commander’s Immediate Response Authority. DoDD 3025.18, paragraph 4g, 

defines “Immediate Response Authority.” While National Guard Regulation (Army Regulation)

600-5 is silent on the issue of AGR use in Immediate Response, ANGI 36-101, para. 7.10.2.1 

states, “AGRs may support an Immediate Response situation. Contingency situations of an 

emergency nature, where AGR Airmen are employed under the Immediate Response doctrine, 

shall be reported to the Chief, National Guard Bureau (CNGB) as soon as practicable to permit 

reassessment of whether there remains a necessity to employ them under that authority.” Active 

Guard Reserve personnel performing Immediate Response must not do so for more than 72-

hours unless specifically approved by the Chief of the National Guard Bureau.

Conclusion: Yes. Members of the Active Guard Reserve program may be used in disaster 

response under four categories: 1) To perform their primary Active Guard Reserve duties of 

organizing, administering, recruiting, instructing, and training the reserve components; 2) To 

perform Statutory exceptions to Active Guard Reserve personnel’s enumerated duties, such as 

Civil Support Teams; 3) To perform other than primary duties, on a non-interference basis vis a 

vis their primary duties; and 4) After receipt of a request from a civil authority, to perform duties 

under a commander’s Immediate Response Authority in an effort to save lives, prevent human 

suffering, or mitigate great property damage.
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D.11—Search and Rescue

Issue: Can the U.S. Navy assist the USCG with conducting maritime Search and Rescue

missions?

Authority(ies): 14 U.S.C. § 141 (Cooperation with Other Agencies, States, Territories, and

Political Subdivisions)

Discussion: The USS KEARSARGE, a USN Wasp-class amphibious assault ship, was in the 

vicinity of the U.S. Virgin Islands after Hurricane Irma struck. The ship was prepared to engage 

in hurricane relief efforts, however, it had not yet received formal tasking from its chain of

command. Absent tasking from higher, or a situation in which the ship’s commander could 

utilize Immediate Response Authority, some other source of authority was needed to allow the 

ship to assist in the relief effort.

Knowing the location and capabilities of the USS KEARSARGE , the USCG submitted a 

Request For Assistance to the ship under 14 U.S.C. § 141. The request was to support the USCG 

in the performance of the Search and Rescue mission. 14 U.S.C. § 141 provides that the USCG 

may, with the consent of the head of the agency concerned, avail itself of such officers and 

employees, advice, information, and facilities of any Federal agency, State, territory, or political 

subdivision thereof, or the District of Columbia as may be helpful in the performance of its 

duties. Once this request was made, the USS KEARSARGE was able to assist with Search and 

Rescue missions.

As the response effort matured, efforts were made to coordinate with FEMA to ensure 

they had awareness of the activities being conducted by the USS KEARSARGE . The ultimate 

goal was to have the USS KEARSARGE receive a USS KEARSARGE from FEMA for the 

work it was conducting. This Mission Assignment would provide specific tasking that would 

best assist the unified response effort and provide for reimbursement from FEMA.

Conclusion: 14 U.S.C. § 141 provides that the USCG may avail itself of such officers and 

employees, advice, information, and facilities of any Federal agency as may be helpful in the 

performance of its duties. The DoD has stringent controls on the use of DoD assets during 

domestic response operations. There may be some lag time between the arrival of DoD assets

and a FEMA Mission Assignment which will provide the authority and funding to operate. 14 

U.S.C. § 141 is a tool that can be used during that gap to provide authority for quick engagement 

of DoD assets.

D.12—Mortuary Affairs Assistance

Issue: During a disaster response, can DoD provide mortuary affairs assistance to process,

recover, and transport civilian remains?
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Authority(ies): DoDD 1300.22 (Mortuary Affairs Policy); DoDD 3025.18 (DSCA); Joint 

Publication (JP) 4-06 (Mortuary Affairs)

Discussion: FEMA requested mortuary affairs assistance and the question arose as to whether 

this was a service DoD could provide. Specifically, the DoD was requested to process, recover, 

and transport civilian remains. According to paragraph 3.k. of DoDD 1300.22, it is DoD policy 

to provide mortuary affairs support and transportation for civilian remains in the U.S. through 

DSCA assistance, when such assistance is approved and directed in accordance with DoDD 

3025.18 (DSCA). Chapter VII of JP 4-06 discusses the provision of mortuary affairs support in 

more detail. The primary legal concerns with providing mortuary affairs support to civil 

authorities under DSCA is ensuring that the DoD personnel are acting under the leadership and 

coordination of the State’s Medical Examiner or Coroner who possesses jurisdictional authority 

over decedents within the State. 

DoD mortuary affairs personnel are also limited in that they must receive appropriate 

authorization from the Medical Examiner or Coroner to perform any tasks. Further, DoD 

mortuary affairs personnel cannot perform decedent recovery tasks that entail entering civilian

homes without the presence of law enforcement or Medical Examiner or Coroner personnel. In 

short, all authority in this area rests with the State’s Medical Examiner or Coroner, and the DoD 

personnel, as it is with all DSCA, are providing support to the Medical Examiner or Coroner. 

Additionally, the mortuary affairs team is a Cat IV resource. Therefore, the NORTHCOM J3

can only validate the request. After validation, the request must be sent to the Joint Staff (JS) 

and the Office of the Secretary of Defense for approval before forces are assigned to the task.

Conclusion: Yes. The DoD can provide mortuary affairs assistance during DSCA operations 

upon receipt of approval from the Office of the Secretary of Defense. 

D.13—Placing Augmentees to the National Guard Bureau Joint Enabling 

Team on Orders

Issue: May augmentees to the National Guard Bureau Joint Enabling Teams be placed on orders 

and serve in an Active Duty Operational Support-Reserve Component status?

Authority(ies): 10 U.S.C. § 12301(d); 10 U.S.C. § 12310(a)-(b); 10 U.S.C. § 10503

Discussion: The National Guard Bureau Joint Enabling Teams operate under National Guard 

Bureau authorities, perform duties as authorized under Title 10 of the United States Code and

include Title 10 Active Guard Reserve personnel as authorized under 10 U.S.C. § 12310. In 

part, members of the Joint Enabling Teams serve as the Chief of the National Guard Bureau’s 

eyes and ears on the ground. The members are organized to support National Guard Bureau

functions and duties, including those listed in 10 U.S.C. § 10503. Accordingly, National Guard 

Bureau Joint Enabling Teams personnel are distinguishable from the State forces operating under 

the Emergency Management Assistance Compact. National Guard personnel operating pursuant 

to the Emergency Management Assistance Compact routinely perform hurricane response 

missions in the affected State. Those missions are conducted generally in State Active Duty 
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status, and, in some limited cases, in a T-32 status. If the National Guard Bureau requests 

augmentees from the States to support the National Guard Bureau Joint Enabling Teams mission, 

the National Guard Bureau may do so and then provide the augmentees with orders under Title 

10.

Conclusion: Yes. Augmentees to the National Guard Bureau Joint Enabling Teams may be 

placed on orders pursuant to 10 U.S.C. § 12301(d) and 10 U.S.C. § 12310(a)-(b).

E. COMPACTS AND AGREEMENTS

E.1—Legal Status of Foreign Forces

Issue: Does the North Atlantic Treaty Organization Status of Forces Agreement apply to a 

North Atlantic Treaty Organization nation’s overseas territories and principalities? 

Authority(ies): North Atlantic Treaty, 4 Apr 1949; Agreement between the Parties to the North 

Atlantic Treat regarding the Status of their Forces (North Atlantic Treaty Organization Status of 

Forces Agreement ), 19 Jun 1951; United Kingdom Ministry of Defense Diplomatic Note dated 

10 Sep 2017; United States Department of State memorandum for Department of Defense 

Executive Secretary, Subject: Request [F]or [A]ssistance to UK Hurricane Relief Operations 

dated 11 Sep 2017; British Embassy Washington DC, Diplomatic Note No. 69, dated 15 Sep 

2017 

Discussion: During the U.S. disaster response efforts in the U.S. Virgin Islands the British 

Royal Marines arrived without any apparent notification to the Dual-Status Commander and 

staff. It transpired that coordination had been conducted at diplomatic levels and between the 

relevant staffs. However, internal communication of the issues and coordination lagged behind 

the British Royal Marines arrival. On arrival, were the British Royal Marines subject to the 

duties and protections of the North Atlantic Treaty Organization Status of Forces Agreement? 

Both the North Atlantic Treaty Organization Treaty and the North Atlantic Treaty 

Organization Status of Forces Agreement refer to geographical coverage. Article 6 of the NATO 

Treaty describes the geographical applicability of the treaty, under Article 5, as “the territory of 

any of the Parties in Europe or North America...on the territory of or on the Islands under the 

jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer.” 

Article XX of the North Atlantic Treaty Organization Status of Forces Agreement states that the 

“present agreement shall apply only to the metropolitan territory of a Contracting Party.” While 

the term metropolitan territory is not defined in the North Atlantic Treaty Organization Status of 

Forces Agreement, it is accepted as referring to the home territories of the Parties, excluding 

overseas territories. The U.S. Virgin Islands are an organized unincorporated United States 

territory. Considering both the North Atlantic Treaty Organization Treaty and the North Atlantic 

Treaty Organization Status of Forces Agreement, the U.S. Virgin Islands are not part of the 

metropolitan United States and are not geographically within the area covered by the North 

Atlantic Treaty Organization Treaty. Therefore, neither authority applies.
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Having established that the North Atlantic Treaty Organization Status of Forces 

Agreement did not apply, it was necessary to consider alternative means of achieving similar 

protections for British personnel operating from the U.S. Virgin Islands. After initial discussions 

and consideration of the merits of pursuing a Memorandum of Understanding to establish 

protections for the British Royal Marines in the U.S. Virgin Islands, consensus was reached 

between Chairman’s Legal Office, DoD General Counsel, USNORTHCOM SJA Office and 

USOUTHCOM SJA Office to allow the British to pursue Status of Forces Agreement

protections under an exchange of Diplomatic Notes. These discussions also included reference 

to the State Department and to the British Embassy Washington.

A Diplomatic Note is a two-part exchange process (request and acceptance) that is 

generally conducted between the State Department and the corresponding Foreign Ministry. The 

British Embassy in Washington, D.C. submitted Diplomatic Note No. 69 on 15 Sep 2017 to the 

State Department requesting appropriate protections for British personnel. Events proceeded 

faster than the Diplomatic Note process. The Diplomatic Note remained outstanding for the 

duration of the British presence. That it remained outstanding illustrates the time that may be 

required for the processing and negotiation of such arrangements.

Conclusion: Neither the North Atlantic Treaty Organization Treaty nor the North Atlantic 

Treaty Organization Status of Forces Agreement apply south of the Tropic of Cancer or outside 

of metropolitan areas of the Parties to those authorities. Therefore, consideration must be given 

to early engagement with the State Department through the relevant Geographical Combatant 

Command. 

PRACTICE TIP: Atlantic hurricanes are likely to include some sort of international response, 

which may include our North Atlantic Treaty Organization allies with territory in the Caribbean 

(France, the Netherlands, and the United Kingdom in particular). Geographical Combatant 

Command Judge Advocates should understand the legal protection for US and foreign forces 

operating within their respective Areas of Operational Responsibility and territories, especially 

regarding bordering countries noting that as an example France and The Netherlands share the 

landmass of Saint Martin [Saint Martin/Saint Maarten] but the only international airport is on the 

Dutch side. Geographic Combatant Command Judge Advocates should also engage with their 

foreign liaison officers to establish early coordination for events such as these, particularly in 

annually occurring events such as hurricane season. It cannot be assumed that other nations will 

deploy legal elements forward and therefore the relevant point of contact is likely to be in 

national capitals. The Centre de Planification et de Conduite des Operations Paris is the French 

central planning center. The Permanent Joint Headquarters London is the British Combatant 

Command.

E.2—National Guard Provision of Logistics Support to Foreign Forces

Issue: May the National Guard provide logistical support to foreign forces? 
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Authority(ies): DoD Directive 2010.9 (Acquisition and Cross-Servicing Agreements), 28 Apr 

2003; CJCSI 2120.01 (Acquisition and Cross-Servicing Agreements), 21 May 2015; 10 U.S.C. § 

2341-42 (Authority to Acquire Logistics Support, Supplies, and Services for elements of the 

Armed Forces Deployed outside the United States); National Guard Regulation 130-6/ Air 

National Guard Instruction 36-2, United States Property and Fiscal Officer Appointment, Duties 

and Responsibilities, 1 Jul 2007. United Kingdom Ministry of Defense Diplomatic Note dated 10 

Sep 2017; United States Department of State memorandum for Department of Defense Executive 

Secretary, Subject: Request [F]or [A]ssistance to United Kingdom Hurricane Relief Operations 

dated 11 Sep 2017, USA-GBR-02 Acquisition and Cross Servicing Agreement (8 Jan 2007).

Discussion: During the U.S. disaster response efforts in the U.S. Virgin Islands the British 

Royal Marines arrived in the U.S. Virgin Islands as a staging location to conduct relief 

operations to the nearby British Virgin Islands. When the British Royal Marines arrived on St. 

Croix and asked for assistance, the U.S. Virgin Islands National Guard did not quite know how 

to fulfill the requests. For example, was the request from the British Royal Marines 

reimbursable under the Stafford Act? In the case of the United Kingdom, the U.S. has an 

international agreement called an Acquisition and Cross-Servicing Agreement.

DoD Directive 2010.9 and CJCSI 2120.01 provide complete details on responsibilities 

and procedures for acquiring and transferring logistics support, supplies, and services under the 

authority of 10 U.S.C. § 2341 and 2342. Acquisition and Cross-Servicing Agreements when 

concluded between the US and another country or international organization (such as the North 

Atlantic Treaty Organization or the United Nations) is applicable worldwide to acquire logistics 

support, supplies, and services directly from or provide them to a foreign government or 

international organization. Compensation for acquisitions or transfers under these arrangements 

may be either on a cost-reimbursement basis or by exchange of supplies or services of equal 

value. These agreements establish principles and provisions for effecting required support, but 

do not bind either party to any particular monetary value or number of transactions.

Form 1-3a (rev. 06/05/2017), Acquisition and Cross Servicing Agreement /Mutual 

Logistics Support Order Form, is used to document the transaction for reimbursement purposes. 

United States Fleet Forces N413 has officers authorized to sign these forms on behalf of the US 

Navy. The form also requires the signature of an officer authorized to sign on behalf of the 

foreign military (in this case, it was a person from the United Kingdom Ministry of Defense). 

The National Guard cannot conclude an Acquisition and Cross Servicing Agreement with 

a foreign government. However, in coordination with the Geographic Combatant Command J4 

Acquisition and Cross Servicing Agreement Program Manager, the State/territory designated 

Acquisition and Cross Servicing Agreement manager, and the United States Property and Fiscal 

Officer, the National Guard has a process similar to active components to provide reimbursable 

logistical support to U.S. Acquisition and Cross Servicing Agreement partners as described in 

detail above. 
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Conclusion: Yes. The National Guard may, with proper coordination through the Geographic

Combatant Command J4, provide logistical support to foreign forces if there is an applicable 

Acquisition and Cross-Servicing Agreement. 

PRACTICE TIP: Executing the Acquisition and Cross Servicing Agreement is a logistics 

function. The subject matter expert will be the Geographic Combatant Command J4 Acquisition 

and Cross Servicing Agreement Manager, and likely the component command logistics officer 

depending on their experience level. Judge advocates can help by understanding the parameters 

of the agreement relative to the situation and knowing the relevant POCs and the documents 

necessary to process requests for support from foreign governments. Ensuring the command’s 

Acquisition and Cross Servicing Agreement Manager is aware of the activity so they can provide 

the paperwork to ensure reimbursement is key. It is also important to reinforce with your supply 

personnel that they must accurately account for the cost of all goods provided and services 

rendered to foreign militaries during operations. Commands should specify the same in all 

orders/FRAGOs and identify support to or from a foreign government or organization. With all 

initial Acquisition and Cross Servicing Agreement order(s), the costs are estimated and not final 

until the supply personnel ensure final costs. This is significant because some countries believe 

the original order is the final costs, which usually is not the case.

E.3—DoD Usage of State Owned Facilities

Issue: May the DoD enter into an agreement with the State National Guard to use State 

resources and facilities as the T-10 logistics tail is developing within the joint operations area 

(JOA)?

Authority(ies): 10 U.S.C. § 2679 (Installation-Support Services: Intergovernmental Support

Agreements); DoDI 4000.19 (Support Agreements)

Discussion: Under 10 USC § 2679, a component of the DoD may enter into a support

agreement with a State or local government to provide supplies, services, or resources. Under 

DoDI 4000.19, paragraph 2.b.2, “Support agreement approval authority is the DoD Component 

commander, commanding officer, or director. DoD Components may delegate this function in 

accordance with the concerned Component’s policy.” Also, the DoD agrees to reimburse the 

State for the support provided. In accordance with DoDI 4000.19, Encl. 3, a DoD component 

may enter into a support agreement with “a [S]tate or local government for support of the 

National Guard in accordance with Title 32 [of the United States Code.]” When reimbursement 

is contemplated, the type of agreement entered must be a Memorandum of Agreement. Here, 

during both Hurricanes Harvey and Maria, Federal military personnel ran out of end user 

logistics before ARNORTH, the Joint Force Land Component Command, could establish lines of

communication. These personnel were responding under the commander’s Immediate Response 

Authority and later worked under FEMA Mission Assignments. As a result, there was a shortfall 

in sustainment as the theater matured.
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Conclusion: Yes. Under 10 U.S.C. § 2679 and DoDI 4000.19, the DoD may enter into an

agreement with the State National Guard for use of State resources and facilities so long as an

Memorandum of Agreement is entered where the DoD agrees to reimburse the State.

E.4—EMAC and the D.C. National Guard

Issue: Does the Emergency Management Assistance Compact exclude the District of Columbia 

National Guard from accepting support from other States?

Authority(ies): Pub. L. No. 104-321 (The Emergency Management Assistance Compact); DC

Code, Title 7, Section 7-2331, Chapter 23A (Emergency Management Assistance Compact)

Discussion: Under the Emergency Management Assistance Compact , the term “State” is 

defined as, ‘‘. . . the several [S]tates, the Commonwealth of Puerto Rico, the District of 

Columbia, and all U.S. territorial possessions.” The Compact goes on to state, ‘‘On behalf of the 

Governor of each [S]tate participating in the compact, the legally designated [S]tate official who 

is assigned responsibility for emergency management will be responsible for formulation of the 

appropriate interstate mutual aid plans and procedures necessary to implement this compact.”

The Emergency Management Assistance Compact does not replace Federal assistance. 

Instead, the Emergency Management Assistance Compact acts to complement Federal resources 

or to provide resources when an event does not warrant Federal assistance. The Emergency 

Management Assistance Compact is triggered by a requesting State through a gubernatorial 

declaration of emergency and a Request For Assistance made through the National Emergency 

Management Association the organization that administers the Emergency Management 

Assistance Compact. (Emergency Management Assistance Compact website at 

www.emacweb.org)

Conclusion: No. The Emergency Management Assistance Compact does not exclude the District 

of Columbia National Guard from accepting support from or providing support to other States.

E.5—Emergency Management Assistance Compact and Law Enforcement

Issue: For National Guard members of supporting States performing Law Enforcement 

functions in a supported State, are the tort liability protections found in the Emergency 

Management Assistance Compact forfeited when the States enter into a Law Enforcement

Memorandum of Understanding supplemental to the Emergency Management Assistance 

Compact?

Authority(ies): Pub. L. No. 104-321 (The Emergency Management Assistance Compact)

Discussion: In pertinent part, paragraph 3 of the model supplemental agreement to the EMAC

states, “The State of ____A______ agrees that the _____B_____ National Guard personnel

operating in ____A______ shall have the same powers, authority and immunities as
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_____A_____ soldiers and airmen, including the power of arrest.” Paragraph 5 of the model 

agreement goes on to state, “Except as otherwise expressly provided within this Memorandum of 

Agreement, the provisions of the Emergency Management Assistance Compact are incorporated 

herein by reference and shall apply.” The Emergency Management Assistance Compact 

contains language that speaks to the tort liability protections afforded to National Guard 

personnel. The model supplemental agreement to the Emergency Management Assistance 

Compact incorporates those protections by reference. (Appendices E and K)

Conclusion: No. For National Guard members of supporting States performing Law 

Enforcement functions in a supported State, the tort liability protections found in the Emergency 

Management Assistance Compact are not forfeited when the States enter into a Law 

Enforcement Memorandum of Understanding supplemental to the Emergency Management 

Assistance Compact because the supplemental agreement incorporates the protections by 

reference.

E.6—National Guard Status under Emergency Management Assistance 

Compact

Issue: If a State deploys members of the State’s National Guard in response to a Request For 

Assistance under the Emergency Management Assistance Compact, does this mean that the 

service-members must be in a State Active Duty status only (versus Title-32)?

Authority(ies): Pub. L. No. 104-321 (The Emergency Management Assistance Compact), Title 

32 of the United States Code

Discussion: “States deploy National Guard resources in SAD and T-32 under EMAC.”

(National Emergency Management Association (website at www.emacweb.org) The National 

Emergency Management Association goes on further to state, “SAD and T-32 are duty statuses. 

Duty statuses are not a mechanism for a deployment outside of the home-State. EMAC serves as 

that mechanism and provides protections (tort liability, workers compensation, etc.) for the 

deploying forces. To authorize T-32 [status], the Governor of a State must request and receive

approval for the use of T-32 DoD funds from the Secretary of Defense. In that case, the EMAC

mission is needed as the deployment mechanism and the funding for the mission is from the 

DoD. A State may also use their T-32 training dollars to pay for the missions. In some States, 

the EMAC REQ-A must be completed in order to get the T-32 training dollars reimbursed from 

the DoD (if funds are available). In either case, the EMAC mission is needed as the deployment 

mechanism. As a note, reimbursement of the T-32 training dollars is not guaranteed; it must be 

approved by DoD. The deployment of resources outside of the State without EMAC may be a 

violation of the Anti-Deficiency Act.”

According to the Emergency Management Assistance Compact Operations Manual, 

Article XIII entitled Additional Provisions, “The National Guard deploys through EMAC under 

both Title 32 and State Active Duty for humanitarian purposes . . . .” Lastly, when reviewing the 

Emergency Management Assistance Compact website for information concerning allowable 

National Guard statuses under the Emergency Management Assistance Compact, one may find 
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that National Guard personnel may operate under the Emergency Management Assistance 

Compact in both State Active Duty and T-32 status. 

(https://www.emacweb.org/index.php/national-guard, last accessed on 12 February 2018).

Conclusion: No. If a State deploys members of the State’s National Guard in response to a

Request For Assistance under the Emergency Management Assistance Compact, deployment 

does not mean that the service-members must be in a State Active Duty status only. The 

members may be in their T-32 status as well.

E.7—Healthcare Providers under Emergency Management Assistance 

Compact

Issue: Under Emergency Management Assistance Compact, may healthcare providers practice

in a State other than the State in which the provider is licensed?

Authority(ies): Pub. L. No. 104-321 (The Emergency Management Assistance Compact); 10 

U.S.C § 1094(d) (The Medical Malpractice Immunity Act; 10 U.S.C. § 1089 (The Gonzalez Act)

Discussion: The Model Emergency Management Assistance Compact legislation includes a 

provision allowing those who hold a license from a supporting State to be considered licensed, 

certified, or permitted in the supported State. Officers and employees of the supporting State are 

considered agents of the supported State for liability purposes. See for example §252.926-927, 

Fla. Stat. (2015); GA Code § 38-3-81 (2014) Art. VVI; S.C. Code Ann. §25-9-20 Art. V-VI.; 

N.C.G.S. § 166A-45. Medical asset deployment and set-up is a lengthy process and could take 

days before medical capabilities are established and ready to receive patients. During disaster 

response operations, judge advocates should be aware of the rules governing healthcare provider 

tort liability and immunity, both State and Federal. When medical healthcare providers from the 

active component are involved, 10 U.S.C § 1094(d), the Medical Malpractice Immunity Act, and 

10 U.S.C. § 1089, the Gonzalez Act, come into play.

Lastly, if there are material/legal differences between the licensing and definitions of

healthcare provider, physician assistant, and healthcare profession, then each must be specifically

addressed before the individuals are placed on orders to provide care.

Conclusion: Yes. Healthcare providers may practice in a State other than the State in which the 

provider is licensed. However, such service is subject to any additional legal restrictions applied 

by the supported State.

E.8—Credentials/Licensure Requirement for Healthcare Providers

Issue: During disaster response efforts, may DoD Healthcare Providers treat local civilians even 

though they do not meet local medical credential/licensure requirements? What about the 

liability out-of-State, of non-DoD medical health providers?
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Authority(ies): 10 USC § 1094 (Licensure Requirement for Health-Care Professionals) (as 

amended by NDAA FY12); Appendix 16 to Annex H and DoDI 3025.24 DoD Public Health and 

Medical Services in Support of Civil Authorities; Pub. L. No. 104-321 (The Emergency 

Management Assistance Compact); The Good Samaritan Laws of each State/Territory; 28 U.S.C. 

§ 1346, 2671-2680 (The Federal Tort Claims Act)

Discussion: Navy medical providers were not licensed or credentialed in Puerto Rico or the 

U.S. Virgin Islands, which is where they were to provide treatment to non-DoD personnel. The 

DoD Healthcare Providers from the Navy desired verification that they could practice in those 

territories without meeting local credential/license requirements. The short answer was that as 

long as Navy medical providers are properly licensed, they may practice their professions at any 

location authorized by SecDef. 

Applicable here is Title 10 USC § 1094 (amended by the NDAA FY12) and Appendix 16 

to Annex H and DoDI 3025.24, DoD Public Health and Medical Services in Support of Civil 

Authorities. DoD military, civilian, and contract medical personnel who have a current, valid, 

and unrestricted license to practice medicine, osteopathic medicine, dentistry, or another health 

profession and who are properly licensed under Title 10 U.S.C. §1094(d) may practice their 

profession on non-DoD personnel at any location authorized by the SecDef. This authorization 

is implied when the SecDef approves a request for medical units to deploy to the scene of a

disaster/emergency pursuant to a Request For Assistance from civil authorities. In the event that 

an issue arises while a Healthcare Provider is providing medical care within the scope of his/her 

duties, he/she will be protected by the Federal Tort Claims Act and will not face personal 

liability. However, this provision only allows DoD Healthcare Providers to practice under the 

auspices of the Military Treatment Facility, another DoD facility in the affected State, or in a 

Federal civilian facility as opposed to practicing in a private medical facility. Private medical 

facilities grant privileges directly. Military Healthcare Providers may not practice in a private 

facility without privileges.

In terms of Navy Corpsmen, while DoDI 3025.24 does not directly address medical 

personnel that are not required to have a license, according to the ARNORTH Legal Advisor and 

FEMA Legal Counsel, Corpsmen are still authorized to provide emergency lifesaving care to 

civilians during DSCA operations under a DoD-approved FEMA Mission Assignment or under 

Immediate Response Authority. When operating under either authority, the Corpsmen are within 

the scope of their employment for Federal Tort Claims Act purposes, and thus shielded from 

personal tort liability concerns.

For out-of-State, non-DoD medical health providers, they should not be liable for any 

negligence as a result of their actions, provided that they are acting within the scope of their 

duties in response to an actual or potential disaster. When it is established that the Military 

Healthcare Provider’s actions are within the scope of their duties, liability, if any, shifts to either 

State or Federal government. First, under the Emergency Management Assistance Compact, 

Article VI, out-of-State practitioners are considered “agents of the requesting State for tort 

liability and immunity purposes; and no party State or its officers or employees rendering aid in 
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another State pursuant to this compact shall be liable on account of any act or omission in good 

faith.” Willful misconduct, gross negligence, or recklessness are outside the scope of the 

Emergency Management Assistance Compact's coverage.

There is also the possibility that the Military Healthcare Provider is practicing at a private

medical facility. Should this occur, there must be a memorandum of agreement in place with the 

facility, and it is likely that the Military Healthcare Provider would receive coverage under the 

private facility's malpractice insurance coverage. Prior to allowing military medical personnel to 

perform duties in civilian facilities, please contact National Guard Bureau-Judge AdvocateLitigation to coordinate the details.

When addressing the U.S. Virgin Islands specifically, section 42 of Title 27 (otherwise 

known as the “The Good Samaritan Law”) states that “no person who voluntarily and 

gratuitously renders emergency assistance to a person in need thereof, shall be liable for civil 

damages for any personal injuries or property damage which result from acts or omissions by 

such person in rendering emergency assistance, which may constitute ordinary negligence; 

Provided, however, That such immunity does not apply to acts or omissions constituting gross, 

willful or wanton negligence.” (Appendix E)

Conclusion: During disaster response efforts, DoD Healthcare Providers may treat local 

civilians even though they do not meet local medical credential/licensure requirements so long as 

the medical providers are properly licensed under 10 USC § 1094. Generally, the same holds 

true for out-of-State, non-DoD medical health providers, so long as they are acting within the 

scope of their duties. 

F. DOMESTIC IMAGERY/INCIDENT AWARNESS & ASSESSMENT

F.1—Generally

Issue: During the response to a major disaster or emergency, may the National Guard and or T10 forces use Incident Awareness and Assessment and/or Domestic Imagery assets?

Authority(ies): DoDD 5200.27 (Acquisition of Information Concerning Persons and

Organizations not Affiliated with the Department of Defense); AF Instruction 14-104 (Oversight 

of Intelligence Activities); AR 381-20 (Army Counterintelligence Program); DoD 5240.1-R

(Procedures Governing the Activities of DoD Intelligence Components that Affect United States

Persons); DoD Manual 5240.01 (DoD Intelligence Activities); AR 380-13 (Acquisition and 

Storage of Information Concerning non-Affiliated Persons and Organizations); CJCS DSCA 

Execute Order 071415Z Jun 13

Discussion: Under AFI 14-104, Domestic Imagery is defined as, “satellite and airborne imagery 

of any part of the United States, its territories, or possessions to a 12NM [nautical miles] seaward

limit of these land areas.” If the Domestic Imagery capture involves the Intelligence Component, 

then it is referred to as Incident Awareness and Assessment. When the Incident Awareness and
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Assessment capture is in support of a DSCA mission and the Intelligence Component is Title 10

(T-10), then the Secretary of Defense is the approval authority. However, if the Intelligence 

Component is a member of the National Guard serving in either a State Active Duty or Title 32 

(T-32) status, then a Proper Use Memorandum must be submitted through the National Guard 

Bureau J2 approval.

Also, prior to any submissions to SecDef, NORTHCOM requires a review for proper use

for all domestic imagery under its instruction, NORAD and USNORTHCOM Instruction 14-3, 

Domestic Imagery. This applies to imagery collected by both intelligence and non-intelligence 

platforms. NORTHCOM distinguishes the review for domestic imagery collection that involves 

the use of Defense Intelligence Component capabilities as a Proper Use Memorandum (e.g., 

Global Hawk, P-8, P-3, etc.) and collection that does not involve use of a DoD intelligence 

community capability as a Domestic Imagery Legal Review (e.g., Civil Air Patrol, UH-60, etc.). 

Additionally, satellite imagery, collected both by National Technical Means and commercial 

sources under the authorities and licensing of the National Geospatial Agency, may only be 

collected and used as provided in an annual Proper Use Memorandum approved by the National 

Geospatial Agency. Non- National Geospatial Agency Proper Use Memorandum or Domestic 

Imagery Legal Review can be prepared by NORTHCOM or components for a specific event, or 

for annual period to cover matters such as natural disasters (e.g., hurricanes, tornadoes, floods,

earthquakes, etc.), Search and Rescue, or tailored to a specific natural disaster or event. The 

Proper Use Memorandum or Domestic Imagery Legal Review not only specifies what type of 

imagery will be collected, but its purpose and who may receive the imagery.

During the DSCA response to Hurricanes Harvey, Irma, and Marie, Proper Use

Memoranda and Domestic Imagery Legal Reviews by components and NORTHCOM were 

utilized, many overlapping. AFNORTH has standing Proper Use Memoranda and Domestic 

Imagery Legal Reviews for disasters and Search and Rescue, but contained limitations that the 

platforms were under the Command and Control of AFNORTH. NAVNORTH prepared 

individual Proper Use Memoranda for each hurricane, and NORTHCOM prepared Proper Use

Memoranda to cover all NORTHCOM components and DOD forces allocated or allotted to the 

NORTHCOM DSCA response. The process for submission and approval of the Proper Use

Memoranda and Domestic Imagery Legal Reviews was efficient. However, the Proper Use

Memoranda and Domestic Imagery Legal Reviews only constitute a review of how domestic 

imagery collected can be used, and they do not provide authority for the collection. Various 

authorities can be leveraged for collection of domestic imagery, but each may have limitations 

on what can be collected how it can be used and who it can be shared with.

The current Chairman of the Joint Chiefs of Staff (CJCS) DSCA Execute Order allows 

collection of domestic imagery by Civil Air Patrol as a volunteer civilian auxiliary of the Air 

Force with or without a Mission Assignment or Request For Assistance from the Lead Federal

Agency, and a Domestic Imagery Legal Review covers how that imagery may be used and 

disseminated. (CJCS DSCA Execute Order 071415Z Jun 13, paragraph 1.H.) “The Secretary of 

the Air Force has delegated approval authority to the First and Eleventh Air Force commanders 

for Air Force-assigned civilian auxiliary of the Air Force missions such as situational awareness, 

damage assessment, evacuation monitoring, and light airlift.” (CJCS DSCA Execute Order 
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071415Z Jun 13, paragraph 1.H.) In similar fashion, the DSCA Execute Order reveals that, 

“IAA [incident awareness and assessment] resources may be requested to support first 

responders and decision makers in the following missions: situational awareness, damage 

assessment, evacuation monitoring, SAR [search and rescue], CBRNE [chemical, biological, 

radiological, nuclear, environmental] assessment, hydrographic survey, and dynamic ground 

coordination. The use of IAA [incident awareness and assessment] assets should integrate with 

capabilities form other Government and commercial capabilities.” (CJCS DSCA Execute Order 

071415Z Jun 13, paragraph 3.C.4.J) If capabilities of the DoD Intelligence Community are

utilized as part of the domestic imagery collection for other than foreign intelligence or 

counterintelligence purposes (e.g., DSCA), it is referred to as Incident Awareness and

Assessment, and requires a Mission Assignment or Request For Assistance from the Lead 

Federal Agency before it may be employed. (CJCS DSCA Execute Order 071415Z Jun 13, 

paragraphs 3.C.2.I and 3.C.4.J; Appendix M of this publication)

Specific guidance is provided on the rules applicable to Incident Awareness and

Assessment collection, retention, and dissemination of Incident Awareness and Assessment

imagery. For DoD intelligence components, CJCS DSCA Execute Order, paragraph 3.C.2.I ,

directs that, “IAA [incident awareness and assessment] must be conducted IAW [in accordance 

with] all intelligence oversight requirements including [DoD 5240-1-R, Procedures Governing 

the Activities of DoD Intelligence Components that Affect United States Persons].” The 

retention of Incident Awareness and Assessment imagery collected under this authority is

limited. Imagery must be purged from intelligence databases and files after DSCA operations

are complete. Justified requests to retain Incident Awareness and Assessment products in 

exception to the above guidance must be routed for legal review and must clearly explain why 

the products must be retained.

The CJCS DSCA Execute Order, paragraph 3.C.2.I, authorizes “traditional intelligence 

capabilities to conduct DSCA missions for non-intelligence purposes.” CJCS DSCA Execute 

Order 071415Z Jun 13, paragraph 3.I.10.B., permits the Combatant Commander to utilize 

manned aerial imagery assets (does not distinguish between DoD Intelligence Community and 

non- DoD Intelligence Community assets) within the Area of Responsibility (Civil Air Patrol as

a volunteer civilian auxiliary of the Air Force aircraft, the Incident Awareness and Assessment

aircraft sourced under paragraph 3.C.2.I, or aircraft transiting the Area of Operation to image 

geography only (not to observe human activity) without need for further SecDef approval. Use 

and dissemination of imagery collected under this authority is determined by the Combatant 

Commander.

As noted, the requirement for a review for proper use of domestic imagery is separate 

from the authorities to collect domestic imagery. When a Mission Assignment or Request For 

Assistance is received from the Lead Federal Agency by NORTHCOM for imagery and Incident 

Awareness and Assessment capabilities, the Lead Federal Agency pays for that imagery support 

under the Stafford Act. However, when the Combatant Commander decides to collect domestic

imagery without an Mission Assignment or Request For Assistance from the Lead Federal 

Agency under other authorities [CJCS DSCA Execute Order 071415Z Jun 13, paragraph 1.H 
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(Civil Air Patrol as a volunteer civilian auxiliary of the Air Force); paragraph 3.C.2.I (one 

Incident Awareness and Assessment capable AC - usually P-3 or P-8); or paragraph 3.I.10.B 

(manned aerial assets within the Area of Operation), for the Combatant Commander’s situational 

awareness and DSCA planning], NORTHCOM must fully fund the domestic imagery collection, 

processing and production.

Conclusion: Yes. Under DoDD 5200.27, the National Guard in their State Active Duty or T-32 

status, and or T-10 forces, may use Incident Awareness and Assessment and or Domestic 

Imagery assets during a DSCA response effort. However, before such assets are used, T-10 

forces must send a Proper Use Memorandum to NORTHCOM for approval. National Guard 

personnel in their State Active Duty or T-32 status must send a Proper Use Memorandum to the 

National Guard Bureau J2. 

F.2—Unmanned Aircraft System Usage

Issue: May the DoD use unmanned aircraft systems (UAS) for Domestic Imagery or Incident 

Awareness and Assessment when providing support to civil authorities after declaration of a 

major disaster? What about the National Guard?

Authority(ies): DepSecDef Policy Memo 15-002; DoDD 3025.18 (DSCA); Chief of the 

National Guard Bureau Instruction 7500.00 (Domestic use of National Guard Unmanned Aircraft 

Systems)

Discussion: Under the authorities listed, SecDef approval is required for the use of Unmanned 

Aircraft Systems for Incident Awareness and Assessment during disaster relief. Requests to 

SecDef also require a concept of operations (CONOPs) and a certificate of authorization (COA) 

from the Federal aviation administration (FAA). DepSecDef Policy Memorandum 15-002 

allows for one exception and that is for the use of UAS in support of SAR with NORTHCOM 

approval and a FAA COA. These specific SAR missions must involve distress and potential loss 

of life and be coordinated by the Air Force Rescue Coordination Center (AFRCC), Alaska 

Rescue Coordination Center (AKRCC), or Joint Rescue Coordination Center (JRCC)-Pacific. 

“Specifically, the following commanders may approve the use of DoD UAS on an 

AFRCC/AKRCC/JRCC-Pacific coordinated mission with a properly issued SAR mission 

number after a determination that UAS would be the best platform to assist in the SAR mission 

and that its use would not interfere with the primary military duties of the unit concerned:

• Commander, U.S. Northern Command, through the Commander, Air Forces Northern, 

in the delegated role of Inland SAR Operations Coordinator for the continental United 

States Search and Rescue Region;

• Commander, U.S. Northern Command, through the Commander, Alaskan Command, as 

SAR Operations Coordinator for the Elmendorf Search and Rescue Region, landmass of 

Alaska; or

• Commander, U.S. Pacific Command, in the role of SAR Coordinator for the landmass 

of Hawaii, in close coordination with the U.S. Coast Guard.”
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Public affairs use of Unmanned Aircraft Systems follows the same guidance; SecDef 

approval is required to fly a Unmanned Aircraft Systems for public affairs purposes (along with 

other requirements previously mentioned). Of note, armed DoD Unmanned Aircraft Systems

may not be used in the United States for other than training, exercises, and testing purposes. 

DoD Unmanned Aircraft Systems may not be used for Federal, State, or local Immediate

Response.

Similar restrictions exist for members of the National Guard in that, “Unless permitted by 

law and approved by the Secretary of Defense (SecDef), NG personnel using UAS for domestic 

operations may not conduct surveillance on U.S. persons. This restriction includes using any 

domestic UAS as part of an authorized DoD response to a lawful request from another Federal

department or agency.” (CNGBI 7500.00, para. 4.a) Further, “all information acquired, 

retained, and disseminated during domestic Army National Guard (ARNG) and Air National 

Guard (ANG) UAS employment will be IAW guidance from the Chief of the National Guard 

Bureau (CNGB) and DoD.” (CNGBI 7500.00, para. 4.b) More importantly, “UAS may not be 

used for Federal, State, or local Immediate Response.” (CNGBI 7500.00, para. 4.c)

The question has been asked, “But what if the NG personnel are in their SAD status? 

Seeing that they are State employees, doesn’t that status make them exempt from the necessity of 

receiving SecDef approval?” Chief of the National Guard Bureau Instruction 7500.00, paragraph 

4 states, “SecDef approval is required for all domestic UAS operations unless specified in this 

instruction, law, or other guidance (including Homeland Defense, Defense Support of Civil 

Authorities, NG civil support, and Counterdrug operations and missions conducted by NG 

personnel in a State Active Duty or Title 32 status).” (CNGBI 7500.00, para. 4.f) Also, 

“Governors in States where UAS assets are fielded may not employ UAS without SecDef

approval; however, Governors may consider UAS employment in their planning for disaster 

response activities.” (CNGBI 7500.00, para. 4.g)

Conclusion: Generally, DoD and National Guard personnel, regardless of status, may not use 

Unmanned Aircraft Systems for Domestic Imagery or Incident Awareness and Assessment when 

responding to a major disaster. However, for the DoD, there are certain exceptions provided in 

DepSecDef Policy Memo 15-002 and DoDD 3025.18. These strict guidelines must be observed 

and adhered to. (DepSecDef Policy Memo 15-002) Strict guidelines must also be followed by 

the National Guard operating Unmanned Aircraft Systems in their State Active Duty or Title 32 

statuses. (Chief of the National Guard Bureau Instruction 7500.00, para 4) 

PRACTICE TIP: During a disaster response within the several States, refrain from using the 

terms “intelligence, surveillance, and reconnaissance” (ISR) or “intelligence preparation of the 

battlefield” (IPB). The DoD and the National Guard are not gathering intelligence or performing 

recon, and there is no battlefield. The appropriate term is incident awareness and assessment 

(IAA).
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F.3—Capture and Collection of Images by DoD

Issue: May DoD personnel capture and collect images of disaster victims?

Authority(ies): DoDD 5200.27 (Acquisition of Information Concerning Persons and

Organizations Not Affiliated with DoD); AR 380-13 (Acquisition and Storage of Information

Concerning non-Affiliated Persons and Organizations)

Discussion: During the Puerto Rico relief effort, Civil Affairs Information Support Element

(CAISE) and combat camera (ComCam) units were assigned to support the Public Affairs

Officer (PAO) team on the ground by not only disseminating emergency information to the

affected populace, but also capturing imagery of ARNORTH, DoD and other military reliefbased activities. The issue was that the subject targets of the imagery captured were all NonDoD Affiliated Persons, and the effort, therefore, fell within the restrictions of DoDD 5200.27

and AR 380-13, both of which address the acquisition of information on non-DoD affiliated

persons. 

DoDD 5200.27 para. 3.1 states, “DoD policy prohibits collecting, reporting, processing, 

or storing information on individuals or organizations not affiliated with the Department of 

Defense, except in those limited circumstances where such information is essential to the 

accomplishment . . .” of the following DoD missions: “protection of DoD functions and 

property,” “personnel security,” and “operations related to civil disturbance.” (DoDD 5200.27, 

para 4) Paragraphs 2(a) and (b) of AR 380-13 state, “Department of the Army policy prohibits 

acquiring, reporting, processing or storing of information on persons or organizations not 

affiliated with the Department of Defense, except under those circumstances authorized in 

paragraphs 6 and 7 below when such information is essential to accomplish Department of Army 

missions. All information–gathering activities are subject to overall civilian control and general 

supervision by the Secretary or Under Secretary of the Army.” Paragraph 6 of AR 380-13 

provides six exceptions to the general rule, none of which seem to align with the desire to collect 

images of disaster victims. Paragraph 7 of AR 380-13 governs operations related to civil 

disturbance. While a civil disturbance may occur during or after a major disaster, a Civil 

Disturbance Operation (CDO) during or after a major disaster that also requires DoD 

involvement is uncommon.

Conclusion: Generally, DoD personnel may not capture and collect images of disaster victims

unless the capture and collection squarely falls within one of the strict exceptions outlined in 

DoDD 5200.27 and AR 380-13. (Domestic Imagery or Incident Awareness and Assessment

issue discussed in section F.1)

___________________

Issue: May DoD personnel use video feed to monitor the military staging area for force

protection purposes?

Authority(ies): DoDD 5200.27 (Acquisition of Information Concerning Persons and

Organizations Not Affiliated with DoD)
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Discussion: Paragraph 4.1 of DoDD 5200.27 grants DoD personnel the authority to acquire

information related to protection of DoD property/equipment. Check to determine whether the 

video feed has the resolution capability to capture identifiable information of persons. The key 

here is to ensure that the view is of the area where the government property is exclusively 

located so that, if the video captures identifiable information of persons, then the capture is 

within the constraints of DoD policy. (Appendices G and M)

Conclusion: Yes. DoD personnel may use video feed to acquire information related to

protection of DoD property/equipment.

F.4—Combatant Commander’s Authority to Collect Domestic Imagery

Issue: May the Commander, U.S. Northern Command collect domestic imagery of geography

without a mission assignment or Request For Assistance from a lead federal agency?

Authority(ies): CJCS DSCA Execute Order 071415Z Jun 13, paragraph 1.H (CAP AF AUX), 

paragraph 3.C.2.I (one IAA capable AC - usually P-3 or P-8), paragraph 3.I.10.B (manned aerial 

assets within the AOR)

Discussion: The review requirement for proper use of domestic imagery is distinct from the 

authorities to collect domestic imagery. When U.S. Northern Command receives a mission 

assignment or Request For Assistance from a lead federal agency, and that assignment or request 

is for imagery and incident awareness and assessment capabilities, the lead federal agency funds

the assignment under the Stafford Act. The Commander, U.S. Northern Command may exercise 

other than the Stafford Act to accomplish the same objective independent of a mission 

assignment or Request For Assistance from a lead federal agency. The specific authority can be 

found in paragraphs 1.H, 3.C.2.I, and 3.I.10.B of the CJCS DSCA EXORD. 

Dissemination of the domestic imagery or information outside U.S. Northern Command 

and its components can become problematic in the analysis of dissemination authorities. When 

the Combatant Commander utilizes CJCS DSCA EXORD, paragraph 3.I.10.B authority to 

collect domestic imagery of geography, the primary intended purpose is to gain situational 

awareness of changes that may adversely affect logistics for disaster support if requested. The 

observations include changes in terrain, roads, and bridges. Utilization of paragraph 3.I.10.B

authority, incidentally provides the Combatant Commander with situational awareness of matters 

such as damage, flooding, bridge and highway obstructions, as well as movement and locations 

of groups of people who may require search and rescue assistance. 

Conclusion: Yes. The Commander, U.S. Northern Command may collect domestic imagery of 

geography without a mission assignment or Request For Assistance from a lead federal agency. 

Due diligence must be exercised to ensure that the scope and purpose of the domestic imagery 

collection stays within the scope of paragraphs 1.H, 3.C.2.I, and 3.I.10.B of the CJCS DSCA 

Execute Order. Otherwise, the original intended purpose of the domestic imagery collection, 
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situational awareness for the Combatant Commander, may have the appearance of support of the 

lead federal agency without a Request For Assistance or mission assignment.

G. USE OF GOVERNMENT PROPERTY

G.1—Use of a National Guard Armory to Support Disaster Response Efforts

Issue: May a National Guard Armory be used to support their Immediate Response to a major 

disaster or emergency?

Authority(ies): DoDD 3025.18 (DSCA); Chief of the National Guard Bureau Instruction

(CGNBI) 3000.04 (National Guard Bureau Domestic Operations); AR 140-483 (Army Reserve 

Land and Facilities Management)

Discussion: Under DoDD 3025.18, a commander is authorized to use Immediate Response

Authority in response to a Request For Assistance from a civil authority. (para. 1.e) More 

specifically, “in response to a [R]equest [F]or [A]ssistance from a civil authority, under

imminently serious conditions and if time does not permit approval from a higher authority, DoD

officials may provide an Immediate Response by temporarily employing the resources under

their control, subject to any supplemental direction provided by higher headquarters, to save 

lives, prevent human suffering, or mitigate great property damage within the United States.” 

(para 4.i) 

The policy also recognizes the authority of State officials “to direct a state Immediate 

Response using National Guard personnel under their control . . . .” (para 4.j) Depending on the 

agreement that the supported State has with the Federal government and or the National Guard of 

that State or territory, an armory used by the National Guard constitutes a resource under the 

control of the local commander. As such, subject to meeting the required conditions, the local 

commander may use of their armory under their Immediate Response Authority.

Such a use was necessary in Puerto Rico and the U.S. Virgin Islands where local citizens 

needed to use the armories as safe havens. Lastly, CNGBI 3000.04 enclosure A states, that the 

CNGB will “Coordinate with Federal agencies, States, and Combatant Commands for use of NG 

elements and resources for domestic operations including Defense Support of Civil Authorities 

(DSCA), NG Civil Support (NGCS), Homeland Defense (HD), and Homeland Security (HLS).”

Conclusion: Yes. Under DoDD 3025.18 and CNGBI 3000.04, a local commander who controls 

a National Guard Armory may use the armory to support their Immediate Response to a major 

disaster or emergency.

Note that Immediate Response Authority is not the proper authority to cite when 

attempting to use armories or reserve centers as shelters. Instead, start with AR 140-483, para. 5-

14(l)(1), “Army Reserve facilities may be used during natural disasters to help the local 

community during relief operations.”
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G.2—DoD Logistics Support to the National Guard

Issue: May the DoD provide support to a National Guard unit by exercising a Memorandum of

Agreement? If so, does the status of the National Guard unit have an effect on the support

provided by the DoD?

Authority(ies): 10 U.S.C. § 2679 (Installation-Support Services: Intergovernmental Support

Agreements); DoDI 4000.19 (Support Agreements)

Discussion: Under 10 U.S.C. § 2679, a component of the DoD may enter into a Memorandum 

of Agreement with a State or local government to provide supplies, services, or resources. The 

DoD component must already be providing the supplies, services, or resources requested. 

However, the services provided may not include “security guard or fire-fighting functions.” 

Lastly, the supporting agency may be reimbursed for the support provided.

Also, in accordance with DoDI 4000.19, Encl. 3, a DoD component may enter into a

support agreement with “a [S]tate or local government for support of the National Guard in

accordance with Title 32 [of the United States Code.]” Because the DoD component seeks

reimbursement in this case, the type of agreement entered must be a Memorandum of Agreement 

(MOA) versus a Memorandum of Understanding (MOU). In paragraph 2.b.2, the policy goes on 

further to state that, “Support agreement approval authority is the DoD Component commander, 

commanding officer, or director. DoD Components may delegate this function in accordance 

with the concerned Component’s policy.”

Conclusion: Yes. 10 U.S.C. § 2679 and DoDI 4000.19 authorize the DoD to provide

reimbursable support to a National Guard unit through a Memorandum of Agreement if, 1) The 

DoD component already provides the supplies, services, or resources requested; 2) The services 

provided do not include security guard or fire-fighting functions; 3) The service is provided to a 

National Guard unit in its T-32 status versus State Active Duty (SAD) or T-10 status; and 4) The 

terms and responsibilities of the agreement are documented using a Memorandum of Agreement.

PRACTICE TIP: A similar situation may arise with the Logistics Civil Augmentation 

Program. As one of the many civil augmentation programs within the Services, the Logistics 

Civil Augmentation Program is an external support contract administered under the Army 

Logistics Civil Augmentation Program. (JP 4-10, Operational Contract Support) In a disaster 

response, if FEMA has already paid for equipment and bedding to be used in a base camp and 

there are vacant beds, check with the FEMA attorney to determine whether the beds are only for 

Federal personnel or whether they are for National Guard personnel as well. When National

Guard personnel are responding under Emergency Management Assistance Compact, they most 

often serve in their State Active Duty status. While service-member sustainment is a matter for 

commanders to decide, lack of sustainment for members of the National Guard could lead to 

state lawsuits. The same is not the case for members of the active component.
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G.3—Non-DoD Federal Employee Usage of the Commissary

Issue: May non-DoD Federal employees serving in the U.S. Territories and Possessions 

(including their dependents) use the Federal commissaries and exchanges in emergency

situations?

Authority(ies): 41 C.F.R. § 302-2.12; 41 C.F.R. § 302-3.209; Under Secretary of Defense for 

Personal and Readiness Policy Memorandum dated 7 May 2008, “Commissary and Exchange 

Access by Department of Defense (DoD) Civilian employees, U.S. Government Contractor 

employees and non-DoD U.S. Federal Government Employees Assigned to U.S. Territories and 

Possessions”; DoDI 1330.17 (DoD Commissary Program); DoDI 1330.21 (Armed Services 

Exchange Regulations); Memorandum from U.S. Department of Justice, Drug Enforcement 

Administration, to CDR USNORTHCOM, dated 24 Aug 17; Memorandum from U.S. District 

Court, District of Puerto Rico, U.S. Probation and Pretrial Office, to DCDR USNORTHCOM, 

undated; Under Secretary of Defense for Personal and Readiness Policy Memo, SUBJECT: 

Commissary and Exchange Access by Department of Defense (DoD) Civilian Employees, U.S. 

Government Contractor Employees and non- DoD U.S. Federal Government Employees 

Assigned to U.S. Territories and Possessions, dated 7 May 2008

Discussion: Under DoDI 1330.17, non-DoD Federal employees serving in the U.S. Territories 

and Possessions (including their dependents) are barred from usage of the Federal commissaries 

and exchanges. However, in emergency situations, “Commanders of an overseas geographic 

combatant command (CCDR) may grant temporary access to commissary locations overseas and 

outside U.S. territories and possessions to U.S. Government employees assigned to duties in an 

overseas location (including non-appropriated fund civilian employees) and non-host nation 

military and civilian personnel providing direct support to humanitarian relief efforts for the 

duration of disaster relief operations.” In the case of the U.S. Virgin Islands and Puerto Rico, 

while they are U.S. Territories, they are also considered “overseas” under the policy. For the 

U.S. Virgin Islands and Puerto Rico, the impacts of Hurricanes Irma and Maria were declared

major disasters, which also makes them emergency situations for purposes of the policy. As 

such, CCDR USNORTHCOM had the authority to grant non-DoD Federal employees, and their 

dependents, temporary access to Federal commissaries and exchanges.

Also, paragraph 5.p, Enclosure 2, of DoDI 1330.17, Combatant Commanders may 

authorize a deviation from the policy to permit Non-DoD U.S. Federal employees serving in the 

U.S. territories and possessions provided the following criteria are met: “(1) The employee is 

serving under a service agreement as defined by Title 41, C.F.R. § 302-2.12, or a tour renewal 

agreement IAW Title 41 C.F.R. § 302-3.209; (2) Granting access will alleviate individual 

hardship due to extraordinarily difficult living conditions, excessive physical hardship, or 

notably unhealthful conditions; and (3) Granting access will fit into and support a web of 

security precautions essential to ensure the safety and security of the individual employee who is 

subject to current and specific threat conditions, such as hostile or imminent danger.” The policy 

goes on to state that, “Deviations will not be granted for a period of more than 2 years. 

Delegation of this authority outside the Military Department Secretariat or Combatant Command 

headquarters concerned is prohibited.”
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Conclusion: Yes. Under DoDI 1330.17, Combatant Commanders have the authority to grant 

non-DoD Federal employees, and their dependents, temporary access to Federal commissaries 

and exchanges while serving in the U.S. territories and possessions.

G.4—Governor Transportation on DoD Platforms

Issue: May a Governor fly on a C-17, or any other DoD aircraft, from CONUS to the U.S. 

Virgin Islands and Puerto Rico?

Authority(ies): DoDI 4515.13 (Air Transportation Eligibility); 32 U.S.C. § 502(f)(1)(B)

Discussion: Under DoDI 4515.13, a Governor, in the instant case, may travel using a DoD

aircraft under one of three scenarios:

The Emergency Management Assistance Compact can specify either T32 or State Active 

Duty for the status of the military members supporting (aircrew) and cost to reimburse is $0.00. 

Under DoDI 4515.13, the Governor and The Adjutant General (TAG) are approved travelers. 

According to paragraph 3.6.u, entitled, Other Individuals Not Affiliated with the DoD,

“Individuals who are not otherwise eligible for transportation in accordance with this section 

may be authorized space-required transportation in the following circumstances: . . . (10) State 

National Guard Officials—When travel is for official duty connected with National Guard 

activities, travel may be in and between the CONUS, Puerto Rico, Guam, U.S. Virgin Islands, or 

the States of Alaska and Hawaii only. Officials may include the State governors, lieutenant 

governors, adjutants general, and assistant adjutants general for such travel.” If T-32 aircrew are 

authorized under the Emergency Management Assistance Compact, then the answer is simply 

yes, and the T-32 mission is executed. If the cost for the C-17’s was captured, the supported 

State/territory, Puerto Rico in this instance, is to pay the cost share of 75%. DoDI 4515.13, 

Section 3, also allows the Governor to travel on the platform. Because the DoDI already 

authorizes the Governor’s travel, no additional approval is needed so long as all requirements 

listed within the policy are met.

The active component (T-10) has the ability in DoDI 4515.13 to move equipment such as

“[p]assengers, cargo, and human remains airlift requirements necessary to execute the

responsibilities in Title 10, U.S.C. This includes White House Support Missions, foreign

nationals, and other Federal executive, judicial, or legislative departments or agencies and nongovernmental directed missions not otherwise addressed in DoDD 4500.56, DoDI 4500.57, or 

this issuance. Transportation to support drug law enforcement activities from funded DoD 

counter-drug appropriations; transportation in support of foreign and U.S. disaster relief and 

humanitarian assistance activities; transportation to support responses to civil emergencies; 

hostage repatriation; and support to civilian law enforcement agencies.” (table 4) The language 

for cargo is a little less straightforward. Title 10 missions may support disasters as “at-will” and 

or “already-scheduled” missions. For Air National Guard missions, the support is allowed on 
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“already-scheduled” missions. Approval Authorities are the Secretary of Defense, Deputy 

Secretary of Defense or Department of Defense Executive Secretary.

Under 32 U.S.C. § 502(f)(1)(B), to allow a Governor to travel on a DoD aircraft, a 

preposition move with the training nexus may be executed.

Conclusion: Yes. A Governor may fly on a DoD aircraft if traveling 1) pursuant to the 

Emergency Management Assistance Compact; 2) with a T-10 unit under an “at-will” or 

“already-assigned” mission; or 3) pursuant to a preposition move with the training nexus under 

32 U.S.C. § 502(f)(1)(B). Flying the aircraft for humanitarian assistance may also be authorized

under DoDI 4515.13, but note that the training mission must have been previously scheduled if 

using NG assets.

G.5—National Guard Personnel Travel on MilAir

Issue: In what status may National Guard personnel travel to the U.S. Virgin Islands when on 

official business if by military aircraft (MilAir)? Can military aircraft transport members of the 

National Guard in their State Active Duty status when the members are responding to a major 

disaster? May Active Guard Reserve (AGR) operate outside the continental United States 

(OCONUS) in T-32 status with only a travel order? Is the U.S. Virgin Islands considered 

OCONUS?

Authority(ies): DoDI 4515.13 (Air Transportation Eligibility); DoDD 4500.56 (DoD Policy on

the use of Government Aircraft and Air Travel); The Joint Travel Regulation (JTR); NG PAM 

95-5 (Use of National Guard Aircraft); Chief of the National Guard Bureau Instruction 1002.01

(Official Military Travel outside U.S. Areas)

Discussion: Territories and possessions of the US specifically includes the U.S. Virgin Islands 

(excluding the former Trust Territories of the Pacific Islands, which are foreign areas for JTR 

purposes). (JTR Appendix A, pg A-29, A-45, version dated 09/01/17) NG PAM 95-5, para. 4-1, 

requires ARNG members to be on T-10 orders “when on land outside the U.S., its territories, or 

possessions.” The phrase “on land” means that ARNG personnel may fly to or from Alaska, 

Hawaii, Guam, Puerto Rico, or the U.S. Virgin Islands in their T-32 status so long as they do not

land in non-U.S territory. Chief of the National Guard Bureau Instruction 1002.01, paragraph 

4.a.1, reiterates the same and states, “N[ational] G[uard] military personnel can travel on official 

business between U.S. areas in Title 32 duty status only if they do not land on foreign territory 

while transitioning between U.S. areas. IAW [in accordance with] this policy, NG members may 

travel to or between Alaska, Hawaii, Guam, Puerto Rico, or the U.S. Virgin Islands in a Title 32 

duty status, but may not transit any point not in a U.S. area while traveling between U.S. areas.”

DoDD 4500.56 establishes policies for the transportation of DoD passengers and

cargo and the use of government aircraft. “Every effort shall be made to minimize travel costs.”

Para 4(f) requires reimbursement through the Economy Act for “transportation for other 

executive agencies of the Federal Government.” DoDI 4515.13 implements DoDD 4500.56 and 

is the policy on air transportation eligibility for the DoD. DoDI 4515.13, para. 1.3.j reiterates 
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Economy Act reimbursement for transportation provided to other executive agencies of the U.S. 

Government (USG). In accordance with Air National Guard Instruction 10-201, 1.4.1, “[t]he 

DoD is prohibited by law from providing airlift for any non-DoD activity unless it is: (1) of an 

immediate emergency/lifesaving nature, (2) in direct support of the DoD mission, (3) specifically 

authorized by statute, or (4) it is requested by the head of an executive agency of the Federal

government.” Paragraph 1.4.1.1. of the policy states, “[t]he Assistant Deputy Under Secretary of 

Defense for Transportation Policy (ADUSD/TP) is the approving authority for transportation 

requests pursuant to the Economy Act.”

Members of the Active Guard Reserve may operate in T-32 status with a Travel Order in 

U.S. Virgin Islands because, even though the U.S. Virgin Islands is considered OCONUS, it is 

also considered non-foreign OCONUS area. The Joint Travel Regulations defines OCONUS as 

“locations outside the continental U.S. (CONUS).” The Joint Travel Regulations defines 

CONUS as, “The 48 contiguous States and the District of Columbia. This definition specifically 

excludes the [S]tates of AK and HI as they are not part of the contiguous States and are included

in the definition of Non-Foreign, OCONUS locations.” The Joint Travel Regulations defines 

Non-foreign OCONUS Area as, “The [S]tates of AK and HI, the Commonwealths of Puerto Rico 

and the Northern Mariana Islands, Guam, the U.S. Virgin Islands, and U.S. territories and 

possessions (excluding the former Trust Territories of the Pacific Islands, which are foreign areas 

for JTR purposes).” 

Conclusion: When traveling to the U.S. Virgin Islands via military aircraft on official business, 

members of the National Guard may be in their T-32 status so long as they do not land in nonU.S territory. They may also travel on military aircraft in their State Active Duty status as well 

however, the travel must be “(1) of an immediate emergency/lifesaving nature, (2) in direct 

support of the DoD mission, (3) specifically authorized by statute, or (4) it is requested by the 

head of an executive agency of the Federal government.” Lastly, members of the National 

Guard may operate in the U.S. Virgin Islands under their approved travel orders because, even 

though the U.S. Virgin Islands is considered OCONUS, it is also considered non-foreign 

OCONUS area.

G.6—Reporter Transportation on MilAir

Issue: Is a reporter an eligible passenger aboard MilAir if the travel is at the request of the 

PAO?

Authority(ies): DoDI 4515.13 (Air Transportation Eligibility); DoDD 4500.56 (DoD Policy on

the use of Government Aircraft and Air Travel); DoDI 5122.08 (Use of DoD Transportation

Assets for Public Affairs Purposes); The Joint Travel Regulation (JTR); CJCS DSCA Execute 

Order 071415Z Jun 13

Discussion: Under DoDI 4515.13, paragraph 8.2.c, “Unless [the Assistant to the Secretary of 

Defense (Public Affairs)] ATSD(PA) approval is required per DoDI 5122.08, the Offices of 

Public Affairs for each Military Department and the Office of Information, Department of the 
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Navy, are authorized to monitor, control, and approve public affairs transportation by their 

respective units for the following: . . . (2) Representatives of information media individually or in 

groups in connection with assignments to cover military events, ... or military operations.”

Under DoDI 5122.08, paragraph 3.b, “[u]nless specifically authorized to travel on a nonreimbursable basis pursuant to paragraph 3.c, media and individuals other than media involved in 

approved P[ublic] A[ffairs] activities (referred to in this instruction as “non-government 

personnel”) will be required to reimburse the DoD for travel at the prevailing commercial rate 

(i.e. full coach fare) available to the general public between the day the travel was planned and 

the day the travel occurred. The DoD Components will require agreement for reimbursement 

from passengers prior to providing transportation. Procedures for reimbursement are included in 

Enclosure 4 of DoDD 4500.09E (Reference (e)), and DoD 7000.14-R, Volumes 11A and 11B 

(Reference (f)).”

The policy goes on to state, “[n]on-reimbursable travel may be authorized for media and 

non-government personnel when:

(1) All of the following conditions are met:

(a) Travel is determined to be primarily in the interest of the DoD;

(b) Commercial transportation is not available or is otherwise inadequate to fulfill

mission objectives, or the individual is in immediate danger of loss of life, limb, or sight; 

and

(c) Travel on DoD transportation assets is on a space-available [(Space-A)], noninterference basis on previously scheduled flights to the maximum extent that is possible; 

OR

(2) The transportation mission or asset is an integral part of the media coverage or is needed to 

accomplish a Public Affairs objective; OR

(3) The safety and security of DoD-accredited news media movement would be unduly

compromised when travelling without DoD assistance.” (para. 3.c)

Conclusion: Yes. Unless Assistant to the Secretary of Defense (Public Affairs) approval is 

required, a reporter is an eligible passenger aboard MilAir when requested by the Public Affairs 

Officer. Note that in accordance with DoDI 5122.08, the Assistant to the Secretary of Defense 

(Public Affairs) only approves requests for Public Affairs travel related to (1) Travel requested 

for Public Affairs purposes by other government agencies or foreign governments, and (2) Intertheater media travel. (DoDI 5122.08, para. 4). Also, OPNAVINST 5720.2M, para. 3.b, 

authorizes the senior naval operational commander present to embark individuals in the public 

interest or for humanitarian reasons.

G.7—Space-A Flights Used by non-DoD Persons

Issue: Can Space-A flight be used by family members of drilling guardsmen (M-Day)? What

about for non-DoD relief workers?

Authority(ies): DoDI 4515.13 (Air Transportation Eligibility); The Joint Travel Regulation; 

CJCS DSCA EXORD 071415Z Jun 13
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Discussion: Under DoDI 4515.13, unless an exception applies, dependents of military members 

may travel space-available only when accompanied by the sponsor. (DoDI 4515.13, sec. 4.9) 

For an exceptions, see Section 3 of DoDI 4515.13. Unaccompanied dependent travel not

otherwise covered under DoDI 4515.13 must be approved by the Chief of the National Guard 

Bureau (CNGB) in accordance with the exception to policy requirements set forth in section 12.2 

of DoDI 4515.13 which provides the following, “All requests must include: a. Purpose for the 

transportation being requested. b. Justification explaining why the transportation is in the best 

interest of the DoD or of the DoD Component concerned . . . . c. The cost of commercial airlift 

and a statement explaining why commercial transportation resources are not available or, if 

available, cannot meet the mission requirement. (Cost alone is insufficient justification for not 

using commercial transportation service. d. The estimated cost of DoD airlift by aircraft type. e. 

A statement that the requested transportation is on a space-required or a non-interference basis 

and whether it will be provided on a reimbursable or non-reimbursable basis to the organization 

or individual receiving the transportation. . . . (2) If the transportation is to be provided on a nonreimbursable basis to the organization or individual, the request must include a justification 

explaining why the transportation will not be reimbursed.”

For Space-Available flights, DoDI 4515.13, Sec. 12.2 provides that travel on a 

noninterference basis may be approved by CNGB subject to a finding that the transportation is in 

the best interest of the NG. However, approval of this request may result in opening the utilized 

DoD aircraft to additional eligible space-available travelers at the point of departure which may 

also result in the evacuation of numerous individuals on a much larger scale than expected and 

could lead to additional issues associated with a larger scale space-available movement of 

additional travelers.

For Space-Required flights, providing space-required transportation to the M-Day family

members requires an authorized evacuation from a competent authority. The Joint Travel 

Regulations indicates an evacuation must be caused by unusual/emergency circumstances, which

include, among other things, natural disasters. (Joint Travel Regulations , chap. 6, part A) An 

evacuation applies to a dependent who permanently resides at a member's former Permanent 

Duty Station vicinity following the member's assignment elsewhere if the dependent's departure 

is authorized/ordered by competent authority from the Permanent Duty Station vicinity at which 

the dependent permanently resides and the dependent actually moves to an authorized safe haven 

designated by that authority. (Joint Travel Regulations , chap. 6, part A)

The Chairman of the Joint Chiefs of Staff (CJCS) Defense Support of Civil Authorities 

(DSCA) Execute Order (EXORD) dated 071415Z Jun 13, para 4.A.3, provides, “non-DoD 

personnel and equipment are authorized on DoD aircraft during DSCA operations with an

approved R[equest] F[or] A[ssistance].” The DSCA EXORD contemplates that other Primary

Agencies will issue Requests for Assistance for DoD to support these emergency airlift 

operations. With concurrence from FEMA, Mission Assignments (e.g., 4339DR-PR-DOD-05) 

could be leveraged to support this activity.
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Under Chapter 12 of DoDI 4515.13, Combatant Commanders (CCDR) or their designees 

may, after making the justifications and determinations required by paragraph 12.2 of that 

instruction, authorize transportation of passengers, cargo, and human remains necessary to 

execute the responsibilities of the CCDR concerned and in the interest of the DoD. (rule 18 in 

Table 4) Non- reimbursable travel may be approved only on a noninterference basis on 

previously- scheduled DoD aircraft. Unfortunately, such approvals are limited to a case-by-case 

basis only and will not be on a recurring basis. As a result, if this option is exercised, SecDef 

approval for a more general exception authorizing Space-A travel of non-DoD passengers 

evacuating should be pursued.

For Space-A and CCDR/SecDef exception listed above, diversion of Space-A flights for 

the convenience of the passengers is not authorized since “[n]o additional funds may be used or

flight hours performed to provide transportation under the space-available travel program.” 

(DoDI 4515.13, para. 4.1) Thus, if authorized, non-DoD Space-A passengers will be responsible 

for making their own return or connecting flights.

In many instances during the response to Hurricanes Irma and Maria, DoD hurricane 

relief flights delivered cargo and passengers, then returned to the United States nearly empty. 

Many Puerto Rico National Guard members, in their State Active Duty status, worked long hours 

in support of relief efforts. The Adjutant General (TAG) of the Puerto Rico National Guard 

asked whether existing Space-A DoD airlift capacity could be utilized to transport Puerto Rico 

National Guard dependents to CONUS, without their sponsor, so the Puerto Rico National Guard

members could remain in Puerto Rico and focus on relief efforts without concern for their 

families. FEMA requested similar support for other disaster relief workers. There are four 

options for making DoD airlift, active component or National Guard, available to assist with the 

such requests:

(1) Operate under a valid mission assignment from FEMA.

(2) Utilize existing DoDI Space-A authorities for a portion of the passengers.

(3) Obtain approval from the affected Combatant Commander(s) (CCDRs).

(4) Obtain approval from the appropriate waiver authority under DoDI 4515.13, Table 4.

Options (1) and (4) may be used for evacuation of all National Guard dependents 

regardless of whether the National Guard members are in Title 10, 32, or SAD status. Option (2) 

only allows for evacuation of National Guard dependents when the member is in a Title 10 or 

Title 32 Full-Time National Guard Duty (FTNGD) status for more than 29 days. Option (3) only 

allows for evacuation on aircraft assigned to the affected CCDR from whom authorization was 

received (e.g. CDR USNORTHCOM can authorize transport on aircraft under USNORTHCOM 

control).

Conclusion: It depends. For the family members of an M-Day service-member to travel

using space-required transportation, 1) an emergency circumstance must be present; 2) an

evacuation must have been authorized/ordered by competent authority; and 3) a safe haven must 

have been designated. Also, existing Space-A DoD airlift capacity may be utilized to transport 
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dependents of NG members without their spouses, or other non-DoD relief workers, to CONUS 

so long as one of four options listed above are exercised.

PRACTICE TIP: Note that under an approved Mission Assignment for disaster evacuation, 

non-DoD personnel may be transported on DoD aircraft so long as the transportation occurs as

prescribed DoDI 4515.13, DoDI 6000.11, and the CJCS DSCA Execute Order unless an

exception is granted by SecDef. Also, the policy should be clear about not only who may be

transported on board DoD aircraft but what may be transported as well (e.g. personal weapons, 

ammunition, and pets). At a minimum, the policy should outline 1) the number and type of pets 

that may be transported; and 2) whether firearms may or may not be transported and if so,

whether such is allowable with or without ammunition. It is also advisable to translate the

policy, and other material, for areas that may be fluent in other languages like Spanish.

G.8—Delivery of Donated Goods

Issue: May the National Guard airlift disaster relief supplies, donated by private citizens, in

support of hurricane relief efforts?

Authority(ies): CNGBI 3000.04 (National Guard Bureau Domestic Operations); 42 U.S.C. §

5192(a)(1) (Federal Emergency Assistance); 42 U.S.C. § 5170(a) (Procedure for Declaration); 44

C.F.R. § 206.2(a)(18) (Federal Disaster Assistance); DoD Manual (DoDM) 3025.01, Volume 2 

(DSCA Incident Response); ANGI 10–201 (Air Transportation); NG Pamphlet (PAM) 95–5

(Use of National Guard Aircraft)

Discussion: Under NGB policy, when performing disaster relief operations, the Governor/TAG 

is empowered to employ Army National Guard/Air National Guard aircraft (Federally procured) 

on State Active Duty, using State funds, and under the command of the Governor pursuant to 

State law. If State law permits, disaster relief operations on State Active Duty may include the 

transport of disaster relief supplies donated by private citizens. The use of Army National Guard 

aircraft is governed by the requirements of NG Pamphlet (PAM) 95–5, and Air National Guard

aircraft are still governed by the requirements of Air National Guard Instruction 10–201.

The Stafford Act authorizes the President (POTUS) to “direct any Federal agency, with 

or without reimbursement, to utilize its authorities and the resources granted to it under Federal

law” in support of State and local response efforts for emergencies (42 U.S.C. § 5192(a)(1)) as 

well as State and local response and recovery efforts for major disasters (42 U.S.C. § 5170(a)). 

This tasking authority, delegated to the FEMA Administrator, is carried out through a Mission 

Assignment. A Mission Assignment is a work order issued to a Federal agency directing

completion by that Agency of a specific task and citing funding, other managerial controls and

guidance (44 C.F.R. § 206.2(a)(18)).

In the case of the U.S. Virgin Islands and Puerto Rico, the POTUS declared Hurricane 

Maria a major disaster for both. (FEMA-4339-DR, dated 20 Sep 17 & FEMA-4340-DR, dated 

20 Sep 17) Subsequently, FEMA issued Mission Assignments to the DoD to support response 
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and recovery efforts for major disasters. Once FEMA approves a Mission Assignment to the 

DoD for the transport of disaster relief supplies donated by private citizens, then to involve the 

National Guard, the DoD would need to determine whether the NG airlift is the best sourcing 

solution for the Mission Assignment in accordance with DoDM 3025.01, Volume 2.

The transport of disaster relief supplies, donated by private citizens, by National Guard

airlift on T-32 training orders could raise questions related to the appropriate use of Government

resources and the extent to which the National Guard’s airlift of private donations may compete 

with local commercial enterprise. Questions related to the endorsement of non-Federal entities 

could also arise if the donations were associated to an identifiable private, non-governmental, or 

corporate group. Therefore, as it relates to T-32, transportation of the donations should be

provided under T-32 operational support versus training. (Appendix N)

Section 6 of DoDI 4515.13 identifies ten categories of cargo that are eligible for transport 

on DoD aircraft. Transportation eligibility includes “[h]umanitarian cargo transported under the 

authority contained in Sections 402 and 2561 of Title 10, U.S.C. and similar programs.” Further, 

“[a]ll other cargo [is eligible] when authorized by the Secretary of Defense, or designee, or other 

approval authority in Section 12 of this issuance or DoDI 4500.57.” Note that “other approval 

authority” in Section 12 includes the Chief of the National Guard Bureau, or designee. The 

Chief of the National Guard Bureau may approve “other cargo” but only in accordance with the 

requirements set forth in Section 12.2 of DoDI 4515.13 and Table 4, Item 9 therein. 

Reimbursement may be required. (DoDI 4515.13, Section 11)

Conclusion: Yes. Provided specific authority exists, the National Guard may airlift disaster 

relief supplies, donated by private citizens, in support of hurricane relief efforts in a State Active 

Duty or T-32 operational support status. (Appendix N)

G.9—National Guard Use of Federal Equipment or Supplies

Issue: May National Guard personnel in a State Active Duty Status use Federally procured

equipment or supplies?

Authority(ies): 32 U.S.C. § 702 (Issue of Supplies to State National Guard); 32 USC § 708 

(Property and Fiscal Officers); DoDI 1225.06 (Equipping the Reserve Forces); DoDD 5105.77 

(National Guard Bureau); AR 5-13 (Total Army Munitions Requirements and Prioritization 

Policy); AR 700-131 (Loan, Lease, and Donation of Army Material); AFI 23-119; NGR 500-5/ 

ANGI10-208 (National Guard Law Enforcement Support and Mission Assurance Ops)

Discussion: Under 32 U.S.C. § 702, “the service Secretaries may buy or manufacture and, upon 

requisition of the governor of any State, . . . issue to its Army National Guard and Air National

Guard, respectively, the supplies necessary to uniform, arm, and equip that Army National Guard

[ARNG] or Air National Guard [ANG] for field duty.” AR 700-131, paragraph 1-4.n, states, 

“State Adjutants General (ARNG) are responsible for approving loans and leases of ARNG 

equipment in accordance with the approval authority in table 2-1. The NGB is responsible for 

approving loan requests prior to submission to [major commands] MACOMs for Army 
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equipment to be used by [S]tate NGB units.” Table 2-1 authorizes loan or lease of DoD 

equipment to civil authorities (State and local governments) so long as there is a loan or lease 

agreement in place along with the proper bonds and insurances. Further, “in emergency disaster 

relief cases, bonds and insurance will be provided within 5 days after receipt of the material.”

Under DoDD 5105.77, the primary authority for Federally supplied equipment rests with 

the Chief of the National Guard Bureau (CNGB). The CNGB exercises this authority through the 

United States Property and Fiscal Officers located in each State or territory. 

Under NGR 500-5/Air National Guard Instruction 10-208, paragraph 5-5.c., Use of 

Equipment During State Active Duty Missions, “State Adjutants General have authority to use 

Federal property issued to the National Guard of their State during periods of civil disturbance 

and other emergency conditions declared by the governor. If required, States may coordinate 

directly with other States for temporary loan of Federal property required for a particular 

emergency response. United States Property and Fiscal Officers are responsible for making 

coordination including reimbursements and reporting.” (Appendix C) The regulation goes on to 

state, “The [S]tate is liable for reimbursement (or replenishment in kind) to the Federal

Government through the USPFO when Federal property is used by National Guard personnel,

serving in [S]tate active duty status, when ordered by the governor to respond to emergencies 

related to civil disturbances, natural disasters, or other incidents. Reimbursement or 

replenishment requirements include: (1) Repair parts expended in the objective area, other than 

for fair wear and tear. (2) Petroleum, oils, and lubricants expended for direct mission 

accomplishment. (3) Incremental costs attributed to direct mission support . . . . (4) Equipment 

reimbursement costs are specified in AR 700-131 for the use of Army National Guard equipment 

and in AFI 23-119 for use of Air National Guard equipment.” (para. 5-5.d)

Regarding ammunition AR 5-13, 2-1.t.4.a identifies “operational loads” as “a 

commander’s daily operating requirements. They include munitions that Army units require to 

support or conduct a broad range of day–to–day operational missions, for example, installation 

Explosive Ordinance Disposal (EOD), Special Reaction Team (SRT) operations, ceremonies, 

quarry operations, guard force missions, force protection, Special Forces, pre-deployment site 

surveys, and so on.” National Guard Regulation 500-5/Air National Guard Instruction 10-208, 

paragraph 5-6 states, “National Guard personnel providing law enforcement support will not 

possess or use non-issued or personally owned firearms or ammunition while in a Title 32 or 

Title 10 status. The only weapons authorized for use in domestic law enforcement support 

operations while in a Title 32 or Title 10 status are Federally owned military weapons listed on 

the unit’s property books. The only ammunition authorized for use in domestic law enforcement 

support operations while in a Title 32 or Title 10 status is ammunition issued through the military 

supply system.” (Appendix K)

Per AR 700-131, paragraph 4–2, “The Army may loan arms and accouterments to 

civilian authorities and to civilian activities in the following instances: (1) For use by Federal

agencies or departments in protection of public money and property (10 USC 4655).”
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Conclusion: Yes, subject to certain requirements, National Guard personnel in a State Active 

Duty Status may use Federally procured equipment or supplies. Ultimate authority rests with the 

CNGB who enforces the authority through the United States Property and Fiscal Officers within 

the State.

G.10—USCG Transportation of Civilian Prisoners

Issue: May USCG aircraft and personnel be used to transport prisoners who needed to be

relocated from a prison in the U.S. Virgin Islands?

Authority(ies): 14 U.S.C. § 141 (Cooperation With Other Agencies, States, Territories, and

Political Subdivisions)

Discussion: Hurricane Irma severely damaged detention facilities in the U.S. Virgin Islands

rendering them unsuitable to house prisoners. The U.S. Virgin Islands needed assistance moving 

a number of prisoners from these facilities to facilities located elsewhere in U.S. territory. The 

USCG detachment aboard USS KEARSARGE was asked to investigate the legal considerations 

resulting from the use of DoD or USCG aircraft to move these prisoners (actual convicted 

persons) to a suitable detention facility.

14 USC § 141 would have allowed the USCG to assist with this request. Under that 

statute the “USCG may, when so requested by proper authority, utilize its personnel and facilities 

to assist any... State, Territory, possession, or political subdivision thereof... to perform any 

activity for which such personnel and facilities are especially qualified.” The limit on USCG 

authority to assist other agencies is governed by the “especially qualified” standard.

To determine whether USCG personnel and/or facilities are especially qualified, the 

specific skill set, derived from its organic and statutorily authorized missions, that will be used to 

conduct the mission must be analyzed. USCG personnel are especially qualified to transport 

prisoners. C-130 aircraft are often used to transport detainees from Central America to locations 

throughout the U.S. for prosecution in federal courts. Federal agents, including Coast Guard 

Investigative Service agents, on those flights are responsible for the care and custody of the 

detainees during the transport. Thus, a C- 130 with Coast Guard Investigative Service (CGIS) 

agents onboard would be a way by which the USCG could assist with this request.

However, it is unlikely that Coast Guard Investigative Service agents would have the 

authority to take custody and detain prisoners serving sentences issued by a judge of the U.S. 

Virgin Islands. Therefore, any transport conducted under § 141 authority would also require law 

enforcement officials from the U.S. Virgin Islands to be aboard the aircraft as well. These local 

law enforcement officials would be responsible for maintaining custody of the prisoners and 

Coast Guard Investigative Service agents would assist them during the transport.

In this situation however, 14 USC § 141 was not the best mechanism for achieving the 

desired result. Using the FEMA Mission Assignment process was the better way to address this 

need. First, the Mission Assignment process would allow the USCG to receive reimbursement 
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for the money expended to complete the mission. Second, FEMA who has visibility on the 

totality of the response effort would be given the opportunity to select the appropriate agency to 

complete the mission and ensure unity of effort. USCG aviation assets were limited during the 

response and FEMA would be in a position to determine if this would be the best use of the 

asset.

Ultimately, a request by the U.S. Virgin Islands was made to FEMA. FEMA assigned a 

Mission Assignment to the DoD to conduct the transport. A USAF C-17 was used along with 

local law enforcement to complete the mission. No USCG assistance was required.

The use of DoD to complete this mission could have had Posse Comitatus Act 

implications. Under the Posse Comitatus Act and DoD regulations, DoD personnel cannot 

directly participate in law enforcement. This includes any support that is regulatory, proscriptive, 

or compulsory. Having DoD personnel take custody of prisoners would violate the DoD 

regulations. However, merely using a DoD aircraft for transport of prisoners under the control of 

proper local authorities did not violate the regulations. National Guard assets on State Active 

Duty (SAD) or in a Title 32 status would have been another viable option for this mission and 

would eliminate the Posse Comitatus Act concerns as the Posse Comitatus Act does not apply to 

the National Guard unless acting in a Title 10 status.

Conclusion: During a response effort, requests for assistance could arrive at a Federal agency

through many different channels. When the response is being coordinated by FEMA after a

Stafford Act disaster declaration, it is important to ensure that FEMA is aware of these requests 

to ensure unity of effort and proper asset utilization. The USCG had the authority and the means 

to assist with this request, however, FEMA made the determination that the request should be

handled by a different agency. Additionally, prior to using 141 authority, the potential to receive

reimbursement through a Mission Assignment should be considered.

G.11—USCG Transportation of non-USCG Personnel

Issue: What regulations govern the use of USCG aircraft to transport USCG and non-USCG

personnel during a response?

Authority(ies): Commandant, United States Coast Guard Instruction (COMDTINST) M3710.1 

(Air Operations Manual which contains the USCG Policy on use of aircraft); Office of 

Management and Budget Circular A-126 (Improving the Management and Use of Government 

Aircraft; 41 CFR §300-304; DHS Management Directive 0020.1 series (Aviation Management 

and Safety)

Discussion: During the response to each of the hurricanes, key USCG personnel needed to use

USCG aircraft to conduct official business related to hurricane response efforts. Additionally,

there were numerous requests to allow non-USCG personnel to travel onboard USCG aircraft.

These requests came from multiple sources to include leadership from federal, state, and local

agencies participating in response efforts. USCG lawyers were sometimes called upon to
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determine if a particular use of an aircraft complied with applicable laws and regulations.

USCG Policy on use of aircraft is contained in Air Operations Manual. The manual states:

Carrying passengers and cargo on Coast Guard aircraft is strictly regulated. Because of

the cost of operating aircraft and the public scrutiny of passenger transportation, it is

necessary to ensure passengers who ride on Coast Guard aircraft do so in the

Government’s interest and that it is the most cost-effective means.

The basic policy for transportation on Coast Guard aircraft is contained in OMB Circular

A-126, Improving the Management and Use of Government Aircraft and 41 CFR §300-

304. This policy is interpreted by DHS Management Directive (MD) 0020.1 (series),

Aviation Management and Safety, which provides guidance for all aircraft operated

within the Department of Homeland Security, including Coast Guard aircraft. Coast

Guard-specific interpretation and policy are contained in Chapter 5 of this Manual.

In order to provide an opinion of whether a particular request is authorized or prohibited, 

Chapter 5 of the Air Operations Manual must be reviewed.

Chapter 5 describes four basic categories of aircraft use: (1) Mission Requirements Use, 

(2) Required Use, (3) Other Transportation for the Conduct of Official Business, and (4) 

NonOfficial Transportation. Many of the flights following a storm will fall into the Mission

Requirements Use or Other Transportation for the Conduct of Official Business categories.

Mission Requirements Use entails the use of USCG aircraft to carry out official 

responsibilities as authorized or required by statute. Commanding Officers of USCG air stations 

and cutters with aircraft embarked or deployed have the authority to designate personnel or cargo 

aboard a USCG aircraft as mission essential. This authority can be delegated no lower than the 

operations officer. Most flights during storm response will fall into this category. Other 

government agency personnel may fly aboard a flight on an approved mission to cooperate with 

or in support of federal, state or local government agencies.

A key authority that allows non-USCG personnel to travel onboard USCG aircraft is 

contained in Chapter 5, Section D.3 of the Air Operations Manual. When a flight is scheduled to 

meet Mission Requirements, passengers and cargo may travel aboard on space-available basis 

when: (1) the aircraft is already scheduled for an official purpose, (2) transportation requirements 

are not exceeded (e.g. a larger aircraft is not required), and (3) the transportation results only in

minor additional cost to the government.14 The Air Operations Manual then lists recurring

categories of passengers who are authorized to fly under this authority. These categories include

personnel belonging to federal, state, and local government, disaster relief personnel, and

representatives of the media.

Flights that do not meet the Missions Requirements Use criteria will often fall under the 

Other Transportation for the Conduct of Official Business category. Official transportation of

personnel or cargo for the conduct of DHS or USCG business that is not also Mission
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Requirements Use shall be authorized as the primary purpose of the flight only when such use is

either cost effective or if no commercial airline or aircraft service, including charter, is

reasonably available to effectively fulfill the transportation requirement. Flights originating

outside the National Capitol Region require advanced approval, in writing, from the Area

Commander.

D7 obtained approval in writing from the Atlanta Area Commander prior to the arrival of

Hurricane Irma.15 This approval allowed the D7 Commander, the Sector Command Cadre, and

D7 subject matter experts to use USCG aircraft to conduct official business related to the

response effort for the duration of the response. This capability provided critical airlift

capabilities to meet and engage with key leadership and ensure successful response efforts.

Conclusion: Commandant Instruction Manual M3710.1, the Air Operations Manual which 

contains the USCG Policy on use of aircraft, governs the use of USCG aircraft to transport 

USCG and non-USCG personnel during a response. During a hurricane response, key USCG 

personnel will often need to use USCG aircraft to conduct official business. Having advanced 

authorization to use aircraft in this manner from the appropriate approval authority will expedite 

this capability. Additionally, non-USCG personnel will make requests to fly aboard USCG 

aircraft. These requests will often be time sensitive and require legal review. USCG attorneys 

should be aware of the regulations governing the use of aircraft.

G.12—Approval Authority for a USN Facility as an Incident Support Base

Issue: Who is the approval authority for the use of a USN facility as an Incident Support Base?

Authority: CJCS DSCA EXORD 191905Z Aug 11 (section 4.B.1); OPNAVINST 3440.16E

(Navy Defense Support of Civil Authorities Program)

Discussion: As FEMA began staging for Harvey relief operations, the Agency requested use of

NAS Corpus Christi (Cabaniss) as an Incident Support Base for housing FEMA personnel and 

supplies. The issue with Incident Support Bases during relief operations was whether or not U.S. 

Fleet Forces Command could approve use of a base as an Incident Support Base. Note that a 

FEMA Mission Assignment is the first requirement. Per the CJCS DSCA EXORD (section 

4.B.1), approval authority belonged to Combatant Commander NORTHCOM with Service 

Secretary concurrence. The Service Secretaries must approve, along with the Combatant 

Commander, to minimize any adverse effect on the installation commander’s priority mission

requirements.

OPNAVINST 3440.16E was cited as the reference which delegated the authority to 

approve the use of an installation as an Incident Support Base to the Commander of U.S. Fleet 

Forces Command. OPNAVINST 3440.16E, paragraph 6.a, designates U.S. Navy North

(NAVNORTH)/ Commander of U.S. Fleet Forces Command the principle planning agent in 

CONUS, Alaska, Puerto Rico, and U.S. Virgin Islands for all Navy DSCA operations and gives 

operational control (OPCON) of region commanders in support of DSCA operations. As this was 
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a Chief of Naval Operations instruction, it was still not clear whether it delegated the authority to 

authorize the use of an installation as an Incident Support Base. Missing was the delegation of 

authority from the Secretary of the Navy (SECNAV) to the CNO. The Office of the Chief of 

Naval Operations (OPNAV) was not aware of any delegation of authority from SECNAV to 

Chief of Naval Operation to authorize the use of our bases for Incident Support Bases. 

NAVNORTH coordinated with OPNAV and it was determined that the Deputy Assistant 

Secretary of the Navy for Energy, Installations, and Environmental held the Incident Support 

Base approval authority. After further coordination, this authority was delegated to the Office of 

the Chief of Naval Operations, Operations and Plans Division (OPNAV N31) for the purposes of 

Harvey relief and later for Irma as well.

Conclusion: The Deputy Assistant Secretary of the Navy for Energy, Installations, and 

Environmental holds Incident Support Base approval authority. This authority may be delegated. 

For Hurricanes Harvey and Irma, Deputy Assistant Secretary of the Navy for Energy,

Installations, and Environmental delegated Incident Support Base approval authority to OPNAV

N31.

G.13—Non-DoD Civilian Usage of Navy Lodging

Issue: May FEMA/non-DoD Civilian first responders use Navy Gateway Inns and Suites for 

lodging located on board a military installation?

Authority: Commander, Navy Installations Command (CNICINST) 11103.18 (Lodging 

Instruction)

Discussion: FEMA requested use of Navy Gateway Inns and Suites for first responders on the 

Incident Support Base. FEMA/civilians are not normally authorized patrons. However, table 2.1 

of CNICINST 11103.18 (24 Sep 15), Enclosure (1), addresses guests of the Armed Forces as 

determined by a Commanding Officer. The instruction provides that a Commanding Officer

may designate individuals or groups as “Guests of the Armed Forces” when extending lodging 

privileges is determined by the Commanding Officer to be in the best interests of the Department 

of the Navy (DoN) or DoD.

Conclusion: Yes. Under CNICINST 11103.18, a Commanding Officer has the authority to 

authorize non-DoD civilians to rent rooms at Navy Gateway Inns and Suites as guests of the 

Armed Forces.

G.14—Non-DoD Civilian Usage of the Navy Exchange

Issue: May FEMA/non-DoD Civilian first responders use the Navy Exchange to purchase food 

and supplies for personal use?

Authority: DoDI 1330.21 (Armed Services Exchange Regulations)
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Discussion: FEMA personnel utilizing a Navy base as an Incident Support Base /Responder 

Base Camp requested use of the Navy Exchange on base to purchase food and supplies for 

personal use. Armed Services Exchange Regulations are contained in DoDI 1330.21. There are 

fairly clear delineations for unlimited access, limited use, temporary personnel, etc. For 

exchanges, there are no specific exceptions for FEMA/non-DoD civilian personnel. Non-DoD 

agencies are allowed to purchase items from the exchange for agency use, but not for the use of

individuals. Access is allowed for USG employees who “reside” on base. In the instance of the 

2017 hurricane response, Commanding Officer, Naval Air Station Corpus Christi issued an 

emergency authorization that granted the FEMA personnel lodged on base with temporary use of 

the Exchange and the Commissary. If the stay on base was to be long-term, then a patronage 

deviation would have been sought under DoDI 1330.21, para. 6.5.3, which allows the secretaries 

of the military departments to “...grant deviations with regard to authorized patron privileges for 

individuals or classes/groups of persons at specific installations.” Patronage deviation requests 

are handled by the Assistant Secretary of the Navy, Manpower and Reserve Affairs [ASN 

(M&RA)] and may not be further delegated.

Conclusion: Yes. FEMA/non-DoD Civilian first responders may use the Navy Exchange to 

purchase food and supplies for personal use subject to the issuance of an emergency 

authorization by the Commanding Officer of the installation.

G.15—Non-DoD Doctor Usage of DoD Medical Tents

Issue: May non-DoD doctors utilize Area Support Medical Company tents to treat patients 

given storm damage to hospital?

Authority(ies): DoDI 6200.03 (Public Health Emergency Management Within the Department

of Defense); DoDI 1100.21 (Voluntary Services in the DoD); 31 U.S.C. § 1342 (The Voluntary 

Services Statute)

Discussion: Army medical personnel on the ground in St. Thomas were asked by local doctors 

if they could provide medical care from the Area Support Medical Company tent hospital (as the 

hospital in St. Thomas was not mission capable, it had no power). There was a question of

privileges necessary to practice in a DoD Medical Treatment Facility and who could grant these 

privileges.

Under DoDI 6200.03, enclosure 4, paragraph 3, the commander of a Medical Treatment 

Facility is allowed to supplement available staff with the use of volunteers. In addition, the 

Medical Treatment Facility commander may grant credentials and privileges to the volunteers, 

with appropriate documentation (the instruction contains some guidance on licensing

documentation, but discretion is left to the Medical Treatment Facility official). The other issue 

was that US Virgin Island doctors wanted to bill patients for their services, this is not allowable 

when acting as volunteers for the DoD. Volunteers under this arrangement are considered 

employees of the DoD to the extent provided in DoDI 1100.21 (Voluntary Services in the DoD), 

and that instruction contains some additional procedures and guidance on documenting the 
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relationship. Finally, all public health emergency privileges shall immediately terminate once

the emergency has alleviated; however, the Medical Treatment Facility may choose to terminate 

these privileges prior to that time.

Conclusion: Yes. Under DoDI 6200.03, so long as local doctors possess the appropriate 

licenses and credentials, the Area Support Medical Company (Medical Treatment Facility) 

commander may grant the doctors authority to utilize Area Support Medical Company tents to 

treat patients. Further, as an exception to 31 U.S.C. § 1342, the doctors may only provide 

medical care as a volunteer service. However, while serving as a volunteer, the doctors are 

essentially DoD employees. As a result, the doctors may not bill the patients for treatment 

provided in the Medical Treatment Facility.

G.16—DoD Donation of Excess Medicine

Issue: May DoD donate excess medicine and other supplies to the local population?

Authority(ies): 10 U.S.C. § 2557 (Excess Nonlethal Supplies: Availability for Humanitarian

Relief, Domestic Emergency Assistance, and Homeless Veterans Assistance)

Discussion: The USS OAK HILL had excess medicine and other supplies onboard and desired 

to donate the excess to the people of St. Thomas. The excess included medicine (antibiotics) due 

to expire 2-5 months after distribution, children’s Tylenol, and Motrin. Under 10 U.S.C. § 2557, 

the donated supplies must be “non-lethal” and purchased with DoD funds. The donation also 

requires a custody transfer between DoD/DLA and DHS/FEMA and there cannot be an 

outstanding request by another DoD entity for the same materials.

Conclusion: Yes. Under 10 U.S.C. § 2557, DoD may donate excess medicine and other 

supplies to the local population so long as the donated supplies are “non-lethal” and purchased 

with DoD funds.

G.17—Title 5 Personnel Eligibility for Space-Required Transportation on 

DoD Aircraft

Issue: Are Title 5 (T-5) personnel, specifically, civilian Wing Directors of Psychological 

Health, eligible for space-required transportation on DoD aircraft to the U.S. Virgin Islands?

(note: This issue is not the same as the issue found in D.9 of this publication in that D.9 raises 

the issue of whether the T-5 Director of Psychological Health may travel TDY in support of the 

hurricane response effort, whereas the issue here is whether the person is eligible for spacerequired transportation on a DoD aircraft during the response effort.)

Authority(ies): DoDI 4515.13 (Air Transportation Eligibility); The Joint Travel Regulation

Discussion: Under current DoD policy, T-5 individuals must be traveling under official PCS,

TDY, or TAD orders. DoD policy indicates that the following three categories of individuals are 

eligible for space-required transportation:
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“(1) Civilian employees of DoD Components traveling under official PCS, TDY, TAD orders or

on rest and recuperation or FEML travel. (2) . . . . (3) Civilian employees who have defaulted 

on their transportation agreement..., but only when commercial transportation is unavailable. 

Travel orders will require the employee to pay the transportation costs before travel at the USG 

non-DoD tariff rate. Such costs may be reimbursed in cash. (DoDI 4515.13 para. 3.6.b) (Note: 

In other words, if the individual has defaulted on their transportation agreement, then he/she is 

eligible but only when commercial air is unavailable – employee required to pay transportation 

costs before travel; proponent should ascertain whether each individual traveler is in default of 

his/her transportation agreement; if so, apply this guidance).

For civilian employees of other USG Agencies, see section 3.6(g) of the DoDI which 

states, “Employees... of Other USG Agencies are eligible for space-required transportation. 

Space-required transportation is chargeable: (1) To the sponsoring DoD Component at the USG 

DoD tariff rate for employees of other USG agencies when traveling for or in the interests of the 

DoD and when approved in accordance with Section 12 of this issuance.”

Conclusion: Yes. T-5 personnel are eligible for space-required transportation on DoD aircraft 

in accordance with DoDI 4515.13, sec. 3.6b, Civilian Employees of DoD Components.

G.18—Non-DoD and other service Aircrafts U.S. Navy Ships

Issue: Can U.S. Army, Air Force, USCG, and non-DoD civilian helicopters land on U.S. Navy 

(USN) ships? 

Authority(ies): OPNAVINST 3100.8B, para 4.b.3 (Deck Landing Operations by Civilian 

helicopters with Civilian pilots on U.S. Navy Vessels); Naval Air Engineering CenterEngineering-7576 (NAEC-ENG-7576) (Shipboard Aviation Facilities Resume); Naval Air 

(NAVAIR) 00-80T-122 (governs operating procedures for ships and aircraft); NAVAIR 00-80T106 [Aviation Assault Ships (governed by the general purpose amphibious assault ship 

(LHA)/multiple purpose amphibious assault ships (LHD) landing helicopter assault/landing 

helicopter Naval Air Training and Operating Procedures Standardization (LHA/LHD NATOPS)]

Discussion: As hurricane relief operations progressed, requests were made to embark civilian,

US citizens on DoD aircraft for the purpose of evacuation from the U.S. Virgin Islands and

Puerto Rico to the continental United States. U.S. ship flight decks are rated for all 

Army/AF/USCG helicopters. The question then becomes whether the crew is qualified to land 

on the United States Ship flight deck. In general, all USCG crews are qualified to land on United 

States Ship flight decks. In many cases, Army/AF crews may be qualified to land on United 

States Ship flight decks as well. It is not clear how many, if any, non-DoD flight crews (e.g., 

FEMA) are qualified to land on a United States Ship flight deck. However, in the event they are 

not qualified to land, the fleet commander may grant a waiver to allow non-qualified crews to 

land on United States Ship flight decks.
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For Hurricane Irma, the Commander of the U.S. Fleet Forces Command released a 

message (DTG 091800Z SEP 17), authorizing military (non-Navy) and civilian aircraft to land, 

shutdown, and refuel on board naval vessels – as this authority is with the U.S. Fleet Forces

Commander. The Commander of the U.S. Fleet Forces Command also delegated to the Strike 

Group Commanders Expeditionary Strike Group-2 and Carrier Strike Group-10 (ESG-2 and 

CSG-10) the authority to approve flights for civilian personnel in aircraft under their respective 

control for DSCA.

Conclusion: Yes. Army/Air Force/USCG, and non-DoD civilian helicopters may land on USN

ships. However, the landing also depends on 1) whether the platform is a civilian or DoD 

aircraft and 2) the qualifications of the crew flying the aircraft. Also, considerations included 

whether the flight decks were certified for each type of helicopter, and whether the crews were 

certified for

shipboard landing. In this instance, the flight decks of the ships involved were certified for all

Air Force, Army, and USCG helicopters as well as certain civilian helicopters flown by FEMA. 

If the crews are not certified to land on a Navy ship, the fleet commander may issue a waiver. 

Because the crews were not certified to land on a Navy ship, the NAVNORTH commander

issued a waiver.

G.19—Approval Authority for Support Installation Designation

Issue: Who has the approval authority to designate an installation as a base support installation

(also known as an installation support base)?

Authority(ies): Specific Delegation of Authority Issued from the Deputy Assistant Secretary of 

the Navy (Energy, Installations, and Environment) to the Office of the Chief of Naval 

Operations, Operations and Plans Division (no standing authority exists at this time)

Discussion: During the 2017 hurricane response, Office of the Chief of Naval Operations 

Instruction 3440.16E was cited by U.S. Navy North Command as the policy that delegates base 

support installation designation authority the Commander, United States Fleet Forces Command. 

In actuality, the instruction designates the Commander, US. Navy North Command or the 

Commander, United States Fleet Forces Command as the principle-planning agent in the 

continental United States, Alaska, Puerto Rico, and U.S. Virgin Islands for all Navy Defense 

Support of Civil Authorities operations. The instruction also assigns operational control of 

region commanders in support of Defense Support of Civil Authorities operations. 

Because this is a Chief of Naval Operations instruction, base support installation 

designation authority is not specifically address. Missing from the instruction is a delegation of 

authority from Secretary of the Navy to the Chief of Naval Operations. Further, the Office of the 

Chief of Naval Operations was not aware of any delegation of base support installation 

designation authority from the Secretary of the Navy to the Chief of Naval Operations. As a 

result, U.S. Navy North Command coordinated with the Office of the Chief of Naval Operations 

where it was determined that the Deputy Assistant Secretary of the Navy (Energy, Installations, 

and Environment) held the authority to designate an installation as a base support installation. 
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After further coordination, this authority was delegated to the Office of the Chief of Naval 

Operations, Operations and Plans Division, for the specific purposes of Hurricane Harvey relief 

operations. The same action was later taken for Hurricane Irma relief operations. There was no 

permanent delegation of authority of this nature from the Secretary of the navy to the Chief of 

Naval Operations.

Conclusion: The Deputy Assistant Secretary of the Navy (Energy, Installations, and

Environment) has the approval authority to designate an installation as a base support 

installation. This authority may be delegated. At the time of this publication, specific 

delegation parameters were unknown. Tracing derivative authorities is critical to understanding 

the legal landscape. Each component should create a similar authorities matrix that captures the 

authorities available to each component command based on their various roles.

H: FISCAL LAW

H.1—Procurement of Bottled Water

Issue: May units purchase bottled water for usage during a hurricane response? What about

individual purchases using their travel card?

Authority(ies): DoD Financial Management Regulation, vol. 10, ch. 12, para. 120304; AFI 65-

601, vol. 1, para. 4.58; AR 30-22, para. 5-19 (Army Food Program)

Discussion: Under the DoD Financial Management Regulation and AFI 65-601, bottled water 

may be purchased where the public water is unsafe or unavailable. AR 30-22 goes further and 

discusses the need to obtain approval from HQDA prior to purchasing bottled water, except in 

the context of a deployment / contingency.

Overall, the agency must administratively determine that the best way to provide the 

water is by using bottled water. (Dept. of the Army – Use of Appropriations for Bottled Water, 

B-310502, Feb. 4, 2008, 2008 U.S. Comp. Gen. LEXIS 38; Dept. of the Army, Military Surface

Deployment and Distribution Command – Use of Appropriations for Bottled Water, B- 318588,

Sept. 29, 2009 (allowing purchase of bottled water for use at temporary work sites where potable

water is not available) Also, the Financial Management Regulation, Volume 10, paragraph

120320, authorizes the use of appropriated funds for the procurement of special drinking water 

when it is necessary, from the government standpoint, in multiple situations to include when the 

public water is unsafe for human consumption.

In the case of the U.S. Virgin Islands, the Virgin Island National Guard, the “agency” 

was in the position to determine whether the water was unpotable and/or unsafe for human 

consumption. Upon receipt of such a determination, the State-NG United States Property and 

Fiscal Officer should rely on the aforementioned authorities to procure enough water to support 

the service-members working in support of the mission.
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As to individuals purchasing bottled water using their travel card and then seeking

reimbursement in the Defense Travel System, such is not advised because not only is the 

procurement of bottled water normally a personal expense, but procuring bottled water using the 

travel card then seeking reimbursement via Defense Travel System is not covered in the Joint 

Travel Regulations nor the Government Travel Charge Card manual 

(https://www.defensetravel.dod.mil/site/govtravelcard.cfm).

Conclusion: Service-members are not advised to use their government travel cards to purchase

bottled water and then later seek reimbursement via Defense Travel System because such an act 

is not covered by the Joint Travel Regulations nor the Government Travel Charge Card manual.

For members of the National Guard, always check matters similar to this one with the

State’s U.S. Property and Fiscal Officer. It is never safe to assume that the usage of appropriated 

funds to procure bottled water is authorized without checking with the U.S. Property and Fiscal 

Officer first. Even if an opinion of the Government Accountability Office provides that 

procurement is authorized, the opinion is not binding on the DoD. Instead, it is advisory. 

Further, the command may be more stringent, not less stringent than the law. What this means is 

that even if a Government Accountability Office opinion provides that using appropriated funds 

to procure bottled water is authorized in conditions that are exactly like the one(s) you are facing, 

your command can be more stringent and still bar the procurement. Again, check with the U.S. 

Property and Fiscal Officer before using appropriated funds to procure bottled water for any 

purpose.

H.2—First Responder Usage of USCG Procured Gasoline

Issue: May USCG owned gasoline be provided to USCG first responders to fill the tanks of 

their Personally Owned Vehicles?

Authority(ies): 43 U.S. Op Atty. Gen. 293, 302-303; 31 U.S.C. § 1342 (The Voluntary Services 

Statute)

Discussion: Because of the devastation caused by Hurricane Maria, there was, among many 

other issues, a fuel shortage. This fuel shortage presented problems for USCG Sector San Juan

personnel. The lack of fuel on the island made it difficult, if not impossible for Sector personnel

to fill their Personally Owned Vehicles and therefore jeopardized their ability to arrive for duty. 

Failure of Sector personnel to arrive for duty would limit the USCG ability to conduct 

operations, including hurricane Maria response efforts, as well as man the base to provide for 

sufficient protection and security for government property.

Eventually, a truck filled with 5,500 gallons of gasoline was delivered to Sector San Juan. 

This fuel was purchased by the USCG and was intended to be used to conduct USCG operations. 

The operational commander also sought to allow Sector personnel to fill their Personally Owned 

Vehicles with the gasoline so that they could get to and from work. Blanket approval to provide 

fuel to members for seven days was sought. USCG District-7 legal and the Office of General 
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Law were asked to provide a legal opinion as to whether this use of the fuel was lawful. Using 

the analysis below, it was determined that providing fuel to essential personnel was authorized.

There is no authorization or appropriation for the Coast Guard to provide fuel to 

employees for their travel to and from work. Local travel at a member’s permanent duty station 

is a personal expense that must be borne by the employee. However, underlying this lack of 

specific appropriation is the “Necessary Expense” doctrine. This doctrine allows the spending 

agency reasonable discretion to determine how to carry out the objectives of existing 

appropriations. [6 Comp. Gen. 619, 621 (1927)] There is no precise formula for what will 

qualify, but the expenditure must be more than merely desirable or important to the agency. [34 

Comp. Gen. 599 (1955)] 

The Comptroller General has upheld the use of appropriated funds for personal expenses 

in extreme emergencies. Cases in which this has been permitted seem to hinge on the 

unpredictable nature of the emergency (i.e. riot, blizzard or hurricane) that threatens the agency's 

ability to save lives or protect government property. When weather has been the driving force, 

inclement weather is not enough. Conditions must arise to a state of emergency where human 

life is in jeopardy.

The conditions in Puerto Rico post-Maria went far beyond inclement weather. Based on 

these conditions D7 legal and the office of maritime and international law concluded emergency 

conditions existed. Failure to provide the gasoline to employees would effectively shut down 

Coast Guard operations, which include the statutory mission of saving life and property as well 

as the duty to protect the Federal property at the Coast Guard base. As such, distribution of 

USCG owned gasoline to operationally necessary personnel was authorized.

However, given the nature of this exception to the appropriation law, a blanket approval 

for seven days might be too broad. The legal offices recommend the following:

1) Allow for the distribution of gasoline to operationally essential employees for 48 

hours. After 48 hours, the approving official should re-certify that the conditions are still 

such that continuing to provide the fuel for another 48 hours is required to conduct Coast

Guard operations. This permission should not be extended past 48 hours unless

circumstances change. Furthermore, if it is determined earlier that the provision of gas is 

no longer necessary, then it should be suspended immediately.

2) Keep a detailed log of all fuel that is distributed. This is both to provide proof of our

use if audited and to prevent any one individual from taking more gas than is necessary to 

conduct operations.

3) Quality control must be exercised over the gas that is distributed. Thus, only

operationally essential personnel should be given gas. Those receiving gas must be

informed that any personal use of the gas during the emergency circumstances must be

limited to only bare necessities. Under this view, dependents should not be given gas
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unless it is determined that doing so is necessary to save life or property. To the extent

possible, these determinations should be documented.

Conclusion: During extreme emergencies, where human life is in jeopardy, appropriated funds 

may be used for personal expenses. When emergency circumstances such as those faced by 

Sector San Juan personnel exist, USCG attorneys will be asked to quickly provide opinions on 

all manner of legal issues. Here, an in-depth knowledge of fiscal law by USCG attorneys

provided the operational commander with the tools necessary to ensure that critical operations 

could continue. In addition to opining that the use of fuel as described was lawful, USCG 

attorneys also provided important recommendations on how to account for the fuel and when to 

reassess the necessity of continued distribution.

H.3—USN Portable Galley Used by Military Personnel on Per Diem

Issue: May the USN pay for a portable galley to feed personnel receiving temporary shelter on

base, and are military personnel utilizing the portable galley required to pay for their meals?

Authority(ies): Navy Supply (NAVSUP) P-486 (Food Services Management)

Discussion: Navy Supply P-486 authorizes “situational feeding” which includes “emergency 

and disaster feeding.” Accounting procedures for disaster feeding is covered in the Expenditures 

and Accounting section of the policy. The Commander, Navy Region Southeast declared the

aftermath of Hurricane Irma to be a disaster feeding situation, declaring that an emergency or

disaster existed, and subsistence must be provided to personnel other than those normally

authorized to be subsisted. Word was initially passed that military and DoD civilian personnel

were not required to pay for their meals. In addition, Commander, Navy Region Southeast staff 

advised that those personnel on Commuted Rations could remain on Commuted Rations during 

disaster feeding (without paying for meals). In this case, Commander, Navy Region Southeast

made the proper disaster declaration, but it was determined that meals should be paid for by all 

of those able to pay, or meals would be recorded for collection later. Commuted Rations were 

not affected, but those receiving them are required to pay for meals, either on the spot or later. In 

this case, power was completely out on the base, so no funds could be collected at the point of 

purchase.

Conclusion: Yes. NAVSUP P-486 authorizes “disaster feeding” of personnel (paid for by the

Navy). However, military personnel receiving the meals are required to reimburse the Navy for

the meals just as if they were served in a galley.

H.4—Economy Act Implications (USCG Food Request to the USN)

Issue: What are the Economy Act implications, if any, for a USCG request to the USN for 10

days of food supplies?

Authority(ies): 31 U.S.C. § 1535 (The Economy Act)
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Discussion: The Economy Act allows Federal agencies to share goods or services while also

providing a mechanism for reimbursement. The head of an agency may place an order under the 

Economy Act if: (a) Amounts of the desired materials are available; (b) Procurement of the

materials via the Economy Act is in the best interest of the USG; and, (c) The ordered goods or

services cannot be provided by contract with a commercial entity as conveniently or cheaply. 

Payment to the providing agency must be made in advance or promptly after delivery. 

Conclusion: The Economy Act authorizes Federal agencies to share goods or services and

provides the mechanism for reimbursement.

I: STANDING RULES FOR THE USE OF FORCE (SRUF)

I.1—Weapons Carry for T-10 Personnel

Issue: May Federal military personnel (T-10) carry weapons while providing support to civil

authorities?

Authority(ies): CJCS DSCA EXORD, para. 3.I; DoDD 5210.56 (Arming and the Use of 

Force); NORTHCOM DSCA EXORD, para. 3.L.15.A; CJCSI 3121.01B, encls N and L

Discussion: Per the CJCS DSCA EXORD, “forces with assigned weapons may deploy with

weapons stored; however, weapons will not be carried during DSCA operations unless

authorized by SecDef. The CCDRs will establish and control arming levels if the carrying of 

weapons has been authorized by SecDef. DoD personnel providing security for stored weapons

and ammunition or classified material requiring armed security by separate DoD directive,

[including DoDD 5210.56, Arming and the Use of Force] may carry their weapons while

performing their normal security duties.” (para. 3.I.13.a)

There is an exception within the regulation that allows forces that carry weapons as part 

of their daily duties to continue to remain armed; however, they can be used only to protect the 

forces they are supporting (e.g., T10 convoys, medical personnel delivering supplies).

Units arriving in the Joint Operations Area have varying levels of experience in DSCA

operations. For this reason, commanders must ensure that the personnel are properly trained and 

that the orders from Joint Staff or NORTHCOM are clear with respect to the arming of T-10 

forces during a DSCA operation.

The same holds true for Field Ordering Officers or other T-10 personnel when

performing DSCA within the several States (including the territories and possessions of the 

United States). A Field Ordering Officer can be armed with approval from the SecDef. SecDef

approval is required before any T-10 forces may be armed during a DSCA event. (the DSCA 

EXORD) There are certain authorizations contained in DoDD 5210.56 for which the Field 

Ordering Officer does not qualify. Therefore, if someone like the Field Ordering Officer needs 
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protection when performing DSCA, that protection may only be provided by someone who 

meets the requirements set forth in DoDD 5210.56.

Conclusion: It depends. Normally, Federal military personnel are not authorized to carry 

weapons during a DSCA operation. However, the authorities listed provide for a few narrow 

circumstances where such is permissible. 

PRACTICE TIP: The Rules of Engagement do not apply in civil support operations within the 

several States. For National Guard judge advocates, review the home-State’s Rules for the Use 

of Force (RUF) and ensure that it is up to date.

I.2—Search of Evacuees When Boarding Federal Aircraft

Issue: May Federal military forces assist Coast Guard Law Enforcement personnel as they 

search evacuees and their belongings prior to boarding a DoD aircraft?

Authority(ies): DoDI 3025.21, Defense Support of Law Enforcement Agencies; CJCS DSCA 

EXORD 071415Z Jun 13

Discussion: During Hurricane Harvey, the judge advocates for the Texas Air National Guard 

received a call from a deployed active component judge advocate. The active component judge 

advocate asked whether members of the Air Force Security Force could assist Coast Guard Law 

Enforcement as they searched the belongings of evacuees prior to boarding an Air Force C-130. 

“Unless specifically authorized by law, no DoD personnel in a Title 10, United States code 

(USC), status will become involved in direct civilian law enforcement activities, including, but 

not limited to , search, seizure, arrest, apprehension, stop and frisk, surveillance, pursuit, 

interrogation, investigation, evidence collection, security functions, traffic or crowd control, or 

similar activities, except in cases and under circumstances expressly authorized by the President, 

Constitution, or act of Congress. Unit commanders will ensure their Title 10 personnel are 

briefed on [DoDD 5210.56, Arming and the Use of Force; DoDI 3025.21, Defense Support of 

Law Enforcement Agencies; CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules 

for the Use of Force for U.S. Forces] before they deploy.” (CJCS DSCA EXORD 071415Z Jun 

13, paragraph 3.I.9) Except as authorized in enclosures 3 and 4 of the policy, DoDI 3025.21 also 

prohibits T-10 personnel from providing search and seizure assistance to civilian law 

enforcement personnel. [DoDI 3025.21, Enclosure 3, para. 1.c(1)(b)] This instance does not 

involve civilian law enforcement personnel. Instead, the personnel performing the searches were 

U.S. Coast Guard and there are no facts presented that would lead one to reasonably believe that 

the U.S. Coast Guard personnel were overwhelmed, incapable, or inadequately performing the 

searches of the evacuees. Thus, in the absence of additional facts, there was no immediate need 

nor authorized reason for T-10 personnel to assist the U.S. Coast Guard personnel with the 

searches. 

Enclosure 3, paragraph 1.d, of DoDI 3025.21 discusses the use of DoD personnel to 

operate or maintain equipment. Here, T-10 Air Force personnel were used to operate Federal

equipment, a C-130. “The use of DoD personnel to operate or maintain, or to assist in operating 
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or maintaining, equipment shall be limited to situations when the use of non-DoD personnel for 

operation or maintenance of such equipment would be unfeasible or impractical from a cost or 

time perspective and would not otherwise compromise military preparedness of the United 

States.” Here, civilians were being evacuated as a result of Hurricane Harvey. In the wake of a 

major disaster like Hurricane Harvey, civilian evacuation is necessary and time is of the essence 

to save lives and prevent human suffering. There is no argument as to whether the T-10 

personnel were the appropriate sourcing solution to operate the C-130. 

In this evacuation, the point of contention arose when debating the ability of the T-10 

personal to support Coast Guard Law Enforcement in the search of civilians and their belongings 

that were to be transported. While T-10 personnel operation of the C-130 was authorized, DoDI 

3025.21, Enclosure 3, para. 1.d(1), states that T-10 “assistance may not involve DoD personnel 

directly participating in a law enforcement operation (as described in paragraph 1.c. of this 

enclosure.)” [DoDI 3025.21, Enclosure 3, para. 1.d(1)] 

Conclusion: As it relates to this fact pattern as presented, Federal military forces could not 

assist Coast Guard Law Enforcement personnel as they searched evacuees and their belongings 

prior to boarding the C-130 because to do so would have violated Federal law and DoD policy. 

This analysis does not apply to the State military department, which governs the National Guard 

in their State Active Duty and T-32 statuses. Thus, members of the National Guard in the State 

Active Duty and T-32 statuses, may assist the USCG in the performance of the searches. 

Enclosure 4 of DoDI 3025.21 is “DoD Support of CDO [civil disturbance operations].” Lastly, 

while not applicable in this occurrence, there are instances where direct assistance (e.g., search, 

seizure, and arrest) by T-10 personnel is authorized. (DoDI 3025.21, Enclosure 3, para. 1.b)

PRACTICE TIP: One may wonder about the difference in this scenario and searches of 

civilians and their property performed by T-10 personnel as the civilians enter Federal

installations. T-10 law enforcement personnel may search civilians and their property as they 

enter Federal installations incident to the Military Purpose Doctrine. DoDI 3025.21, paragraph 

1.b(1), states, “Categories of active participation in direct law-enforcement-type activities (e.g., 

search, seizure, and arrest) that are not restricted by law or DoD policy are: (1) Actions taken for 

the primary purpose of furthering a DoD or foreign affairs function of the United States, 

regardless of incidental benefits to civil authorities. This does not include actions taken for the 

primary purpose of aiding civilian law enforcement officials or otherwise serving as a subterfuge 

to avoid the restrictions of the Posse Comitatus Act.” The primary purpose of T-10 personnel 

searching civilians and their possessions as they enter Federal installations furthers the DoD 

function of protecting DoD property and personnel. The question in the case of a mission 

assigned to the DoD by FEMA in response to a major disaster is, “What is the DoD’s 

independent military purpose for the search of evacuees and their possessions as they board the 

C-130?” One may answer that the independent military purpose is the protection of the DoD 

equipment, the C-130, and military personnel, the T-10 Air Force aviators operating the C-130. 

Were the T-10 personnel authorized to protect the C-130 and the T-10 personnel operating the 

aircraft? Yes. Under the Military Purpose Doctrine, protecting the Federal equipment and 

personnel could have meant refusing to allow the evacuees to board regardless of the searches 
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performed by the U.S. Coast Guard. However, this action would have had detrimental, longreaching consequences. To engage in searching the evacuees and their possessions would trigger 

the Posse Comitatus Act. Cases such as U.S. v Chon, 210 F.3d 990 (2000), provide the 

appropriate analysis. In Chon, the DoD “independent primary purpose” argument was upheld 

because the DoD had reason to believe that Chae Wan Chon, and others, had committed a crime 

involving the Federal equipment before the DoD performed the investigation. In this instance, 

the DoD had no reason to believe that any of the evacuees had committed a crime involving the 

C-130. Therefore, a search of the evacuees and their possessions would not be authorized. Also, 

paragraph A.2.2.2 of the DSCA Handbook for Tactical Level Commanders, GTA90-01-020, 

warns that the Military Purpose Doctrine “must be used with caution. It does not include action 

taken with the primary purpose of directly and actively aiding civilian law enforcement officials 

that is prohibited by the PCA. As long as the DoD unit is performing a legitimate military or 

foreign affairs function, then any law enforcement benefit to civil law enforcement authorities 

will be considered ‘incidental’ and would not be a violation of the PCA.”

J: MARITIME

J.1—DoD Contracts with non-U.S. Flagged Ships

Issue: May the DoD contract with non-U.S. flagged ships to support the demand for hurricane

relief supplies during a disaster response?

Authority(ies): “The Jones Act” 46 U.S.C. § 883 (Merchant Marine Act of 1920)

Discussion: The Jones Act is a federal statute that provides for the promotion and maintenance 

of the American Merchant Marine. Among other purposes, the law regulates maritime 

commerce in US waters and between US ports. Section 27 of the Jones Act deals with cabotage 

and requires that all goods transported by water between US ports be carried on US-flag ships, 

constructed in the US, owned by US citizens, and crewed by US citizens and US permanent 

residents. The Jones Act had no practical effect on DoD, but was an issue for Puerto Rico as the 

Act does not allow foreign flagged ships to transport relief supplies from one coast of the US to 

another (including territories). This was important because it appeared there was a need to 

contract non-US flagged shipping to keep up with the demand for hurricane relief supplies. 

Requests for waivers of the Act and its provisions are reviewed by DHS on a case-by-case basis, 

and can only be granted based on interest of national defense. Historically, waivers have only 

been granted in cases of national emergencies and/or upon the request of SECDEF. The Act was 

waived by DHS for hurricane response during hurricane Harvey and Irma in the continental US, 

but was not waived for Puerto Rico. This became an issue because there was a perception that 

this was hindering Hurricane Maria recovery efforts in Puerto Rico. The Act was eventually 

waived for Puerto Rico. The U.S. Virgin Islands, although a US territory, are exempt from the 

Act as it specifically states they are outside of the US Customs territory. 

Conclusion: The DoD may contract with non-U.S. flagged ships to support the demand for

hurricane relief supplies during a disaster response only if a waiver is received from the DHS.
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J.2—Coast Guard Boarding Team Security at a USCG Installation

Issue: May a Coast Guard boarding team be used to provide a security presence on a Coast 

Guard installation that lacks security due to all other personnel being evacuated?

Authority(ies): 14 U.S.C. § 93 [Commandant (USCG), General Powers]; Commandant 

Instruction Manual 16247.1 (The Maritime Law Enforcement Manual); UCMJ Art. 9(e); 10 

U.S.C. § 809(e); 18 U.S.C. § 1382

Discussion: Hurricane Irma was predicted to make landfall along the Florida Keys. As a result,

the D7 Commander placed all active duty members attached to Sector Key West on TDY orders

and evacuated all dependents. Only the Sector Commander remained behind. The Sector

Commander, along with some members of the local government, rode the storm out in a local

hotel.

The storm caused extensive damage throughout the keys to include damage to Sector Key 

West and USCG housing on Key West. The Sector Commander observed damage to the fencing 

along the perimeter of the Sector which posed a security risk. Given the lack of running water 

and electricity in the aftermath of the storm, he was concerned about the potential for 

unauthorized persons coming onto USCG property seeking access to relief items as well as 

potential looting.

Because all personnel were sent TDY, there was no security presence at the Sector. There 

were however, multiple USCG cutters nearby with boarding teams onboard. These cutters were

conducting storm avoidance in the gulf and quickly arrived on scene after the storm passed. The

Sector Commander, in need of a security presence at the Sector, requested that Boarding Team

Members from the nearby cutters be utilized for security. D7 legal was asked to provide an

opinion on whether boarding teams could be used to provide security on Sector Key West.

D7 legal opined that this was a permissible use of USCG boarding teams. The individual 

unit commanding officer has the ultimate responsibility for the security of their command. 14 

U.S.C. §§ 93(a)(2) and (a)(10) provide commanding officers the inherent authority to establish 

and maintain the security of their unit and USCG shore facilities. This authority allows the 

Sector Commander to use boarding team members to provide security for the facility.

Any use of force by Boarding Team Members conducting security shall be done in 

accordance with the Maritime Law Enforcement Manual. In an enforcement situation, security 

personnel may use only that level of force necessary to control and terminate unlawful 

resistance, and to preclude any further physical confrontation against law enforcement personnel 

or other persons.

Unless otherwise directed by the Commanding Officer as detailed in Chapter 4.B.3.e of 

the Maritime Law Enforcement Manual, personnel may exercise individual self-defense, which 

includes the defense of other persons. Additionally, Commanding Officers always retain the 
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inherent right and obligation to exercise unit self-defense in response to active aggression or 

imminent danger.

Authority for military law enforcement officials to detain civilians has been inferred from 

UCMJ Art. 9(e), 10 U.S.C. § 809(e) and from 18 U.S.C. § 1382 (makes punishable the entry 

onto a military installation for any purpose prohibited by law or regulation, or after having been

removed therefrom). The authority is limited to the confines of the military facility. This

authority is derived from the power to maintain order, security, and discipline on a military

reservation as is necessary to military operations. Should detention occur, arrangements should

be made as soon as practicable to transfer the detained individuals to appropriate civilian or

federal law enforcement personnel.

Conclusion: Yes. The unit Commanding Officer has the authority to use a Coast Guard 

boarding team to provide a security presence on a Coast Guard installation that lacks security 

due to all personnel being evacuated. However, the personnel involved should follow the Coast 

Guard use of force policy. (Chapter 4 of the Maritime Law Enforcement Manual) Anytime the 

majority of personnel are evacuated or sent TDY from their unit, installation security could 

become an issue. It is recommended that units review contingency security plans and have a 

plan in place for these situations. Prior to any contingency units should coordinate the process 

used to detain individuals who unlawfully enter military facilities.

J.3—USCG Arrests Made under Emergency Support Function #13 (ESF-13)

Issue: May Coast Guard Investigative Service Special Agents make arrest for violations of State 

law when mobilized under Emergency Support Function-13, Public Safety and Security?

Authority(ies): Federal laws do not grant authority for Coast Guard Investigative Service

Special Agents to make arrests for violations of State law. However, State laws may provide 

such authority. [14 U.S.C. § 141 (Cooperation with other Agencies, States, territories, and 

Political Subdivisions)]

Discussion: In the wake of Hurricane Harvey, the State of Texas made a Stafford Act request 

for Federal support to assist with public safety. FEMA granted the request and issued a Mission

Assignment to DHS under Emergency Support Function-13. To assist FEMA, DHS sent out a 

request to its agencies to provide 1,500 Federal Law Enforcement Officers (FLEO) in support of 

Harvey response operations. The Office of Maritime and International Law was able to obtain 

greater clarification on the nature of the request and determined that the capabilities required 

were those that align with Coast Guard Investigative Service duties and functions rather than 

those of uniformed CG Law Enforcement forces such as Maritime Safety and Security 

Team/Maritime Security Response Team (MSST/MSRT). As a result, 40 Coast Guard 

Investigative Service special agents were selected to meet the DHS Emergency Support 

Function-13 request.

Prior to their deployment, Coast Guard Investigative Service needed to determine the

deploying special agents’ law enforcement authority within the States of Texas and Louisiana. 
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Specifically, questions arose regarding the authority for agents to make arrests for violations of 

State law. Counsel for Coast Guard Investigative Service conducted this research and drafted an 

opinion outlining the authority. The opinion was based, in part, on a DOJ memo written for the 

Bureau of Alcohol, Tobacco, Firearms and Explosives addressing State and local deputation of 

Federal Law Enforcement Officers during Stafford Act deployments generally, as well as a 

memo written by the acting Emergency Support Function-13 coordinator addressing the issue as 

it specifically related to Harvey.

Ultimately, Coast Guard Investigative Service Counsel concluded that Coast Guard 

Investigative Service Special Agents could exercise arrest authority for felony-level, State 

criminal offenses during Harvey response operations utilizing each State’s citizen’s arrest 

authority. The analysis began with the premise that authority for Federal Law Enforcement 

Officers to conduct arrests must be expressly conferred by statute. No Federal law, to include 

the Stafford Act, confers the authority for Federal Law Enforcement Officers to make arrests for 

violations of State law. However, this authority need not be conferred by a Federal statute. 

Instead, State law may provide the necessary authority. Some States have deputation laws, 

which confer arrest authority upon Federal Law Enforcement Officers, while others have laws 

granting all citizens the power to arrest in particular circumstances.

Texas law confers limited peace officer authority upon certain Federal Law Enforcement 

Officers. Under the statute, select Federal Law Enforcement Officers are designated “special 

investigators” and granted the powers of arrest, search, and seizure for felony offenses. Coast 

Guard Investigative Service Special Agents are not among the Federal Law Enforcement 

Officers included in the statute and therefore this authority did not apply to them. However, 

Texas law does permit private citizens to exercise arrest authority for felony offenses committed 

in their presence. Thus, Coast Guard Investigative Service Special Agents were able to utilize 

the authority granted to private citizens in order to make arrests for certain violations of State 

law.

Louisiana does not confer peace officer authority to any Federal Law Enforcement 

Officer by statute, but it does have laws that allow deputation by acts of certain State officials. It 

was unclear whether State officials would utilize these laws to confer law enforcement authority 

to Coast Guard Investigative Service Special Agents mobilized to assist, however, just like in 

Texas, this was not necessary to provide the agents with arrest authority. Like Texas, Louisiana 

permits a private person to make an arrest for a felony violation of State law. The Louisiana 

statute is actually more permissive in that it does not require the crime to have been committed in 

the presence of the person making the arrest. It does however, require the prisoner to be turned 

over to a peace officer immediately. Had Coast Guard Investigative Service Special Agents 

needed to exercise the power of arrest in Louisiana, this statute provided the authority. 

(Appendices K and L)

Conclusion: Major hurricane response efforts will often create a need for Federal Law 

Enforcement Officers to mobilize pursuant to an Emergency Support Function-13 MA. When 

this mobilization includes Coast Guard Investigative Service Special Agents, USCG attorneys 
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should be prepared to carefully review State deputation laws as well as State citizen’s arrests 

laws in order to determine the scope of law enforcement authority conferred to the deploying 

agents as well as any prerequisites to deputation. USCG attorneys should be searching for 

specific grants of authority that provide a basis for enforcing that particular State’s laws. It is a 

State-by-State analysis because each State must have the legal framework in place to authorize

Federal Law Enforcement Officers actions.

J.4—USCG Receipt of a Mission Assignment under Emergency Support 

Function #10

Issue: May the Coast Guard (USCG) receive an Emergency Support Function-10 (Oil and 

Hazardous Materials Response) Mission Assignment and reimbursement from FEMA to remove 

derelict and abandoned vessels located on Federal land?

Authority(ies): 44 CFR Section 206.208(c)(2) (Federal Disaster Assistance); 43 U.S.C. §§

1301-1315 (The Submerged Lands Act); 48 U.S.C. § 1705(b); 33 U.S.C. § 409; 33 CFR Part 

245

Discussion: Hurricanes Irma and Maria caused numerous recreational vessels to wash up 

onshore on Federal land. Some of these vessels were located on U.S. Navy (USN) property and 

others on property owned by the Department of the Interior. Representatives from these 

agencies contacted the USCG seeking any assistance that could be provided in their removal. 

The USN and Department of the Interior were hoping that FEMA would either provide funding 

directly or issue the USCG an Emergency Support Function-10 Mission Assignment that would 

allow the USCG to coordinate the vessel and debris removal. Assignment of the mission was not 

possible as Stafford Act funding is not the appropriate source for a DoD Mission Assignment to 

perform debris removal or hazmat mitigation on Federal land. FEMA cannot reimburse costs 

incurred by another Federal agency for work performed pursuant to disaster assistance 

authorities independent of the Stafford Act, or if any part of the requested work falls within the 

statutory authority of another Federal agency. [44 CFR Section 206.8(b); 44 CFR Section

206.208(c)(2)] The DoD Office of Director of Ocean Engineering & Supervisor of Diving and

Salvage (SUPSALV) has the statutory authority for removal of vessels and debris on DoD

property. Similarly, the DOI has statutory responsibility for the removal of vessels and debris on

DOI property. Therefore, FEMA could not issue Mission Assignments for the cleanup and 

removal of vessels located on Federal land.

In addition to the vessels onshore, there were many sunken, abandoned, and derelict 

vessels located in the waters adjoining Federal land. D7 legal was tasked with determining 

whether Federal property extends into the water. The Submerged Lands Act provides the answer 

to this question. (43 U.S.C. §§ 1301-1315) Under the Submerged Lands Act, title and 

ownership of submerged lands and resources within 3 geographic miles of the coast line was 

granted to the States. Thus, the waters adjoining Federal property are owned by the State, and 

therefore FEMA would not be prohibited from issuing an Emergency Support Function-10 

Mission Assignment to assist with oil and hazardous material removal in these waters.
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This outcome, however, did not hold true for the waters adjoining Department of the 

Interior land at Virgin Islands National Park. The U.S. specifically retained the rights to the 

submerged lands surrounding Virgin Islands National Park . [48 U.S.C. § 1705(b)(x)] 

Therefore, the same regulation that prohibited FEMA from issuing an MA to remove vessels 

onshore on Federal land also prohibited the removal of vessels in the water surrounding Virgin 

Islands National Park. The Department of the Interior had the authority to remove and was 

responsible for the removal of these vessels. The Department of the Interior would be required 

to use their own funds or seek a supplemental appropriation if it lacked sufficient resources to 

conduct the removal.

There seemed to be some confusion as to why FEMA was unable to fund these activities. 

This may have stemmed from the fact that the Army Corps of Engineers, a Federal entity, was 

conducting salvage operations in the vicinity and the classification of the land, or submerged

land (State or Federal), was immaterial in determining whether they had the authority to act. 

Under Title 33, maintaining, dredging or disposition of materials on, over and under a Federally 

navigable channel falls under the authority of the Army Corps of Engineers. (33 U.S.C. § 409; 

33 CFR Part 245) Therefore, notwithstanding whether the channel is in the internal (State) 

waters, in the territorial seas (TTS), or elsewhere, the Army Corps of Engineers has authority, 

funding and the obligation to perform hazmat/debris removal in that Federal waterway. 

However, that authority is limited to the navigable channel and other Federally navigable waters 

where the obstruction poses a hazard to navigation (e.g., turning basins). (33 CFR Part 245) 

Therefore, if the area in question is outside the Federally controlled area, the Army Corps of 

Engineers would not be the proper source of funding.

During the Irma response, FEMA opened the Disaster Response Fund and authorized

Federal disaster funding to the State of Florida to conduct vessel removal. Subsequently, an 

ESF-10 Mission Assignment was issued to the USCG to assist the State of FL in performing 

debris/hazmat removal in State waters, outside of the Army Corps of Engineers controlled areas. 

Pursuant to the Federal/State Agreement, Florida was subject to a 10% cost share for these 

operations. This agreement however, did not cover the removal of debris on Federal land 

because it was prohibited by FEMA regulations as discussed above.

The Oil Spill Liability Trust Fund was discussed as another possible source of funding to 

assist USN and Department of the Interior, however this funding source was also not the 

appropriate vehicle to remove vessels and debris on Federal Land. The Oil Pollution Act of 

1990 does provide Federal funding for hazmat removal in the absence of a responsible party, but 

hazmat removal does not typically result in the removal of an entire vessel. In most cases, 

hazmat is removed from the sunken or derelict vessel and the vessel will remain where it is.

Ultimately, both USN and Department of the Interior were responsible for removal of 

vessels on land that fell under their respective jurisdictions. The Department of the Interior was 

also responsible for the removal of vessels in the waters surrounding Virgin Islands National 

Park. USCG attorneys were instrumental in communicating the authorities under which this 

removal could be accomplished, the limitations on those authorities, and also the lack of 
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authority, to USCG leadership as well as our Federal partner agencies. Additionally, the advice

provided by USCG attorneys was coordinated prior to release, thus ensuring a consistent 

message.

Conclusion: Under 44 CF Section 206.208(c)(2), FEMA cannot provide reimbursement for any

work that falls within the statutory authority of another Federal agency. Post storm, other 

Federal agencies will likely reach out to the USCG seeking assistance for the removal of vessels 

and debris. To determine what, if any, assistance the USCG can provide, an understanding of the

limitations imposed by FEMA regulations and Oil Pollution Act 90 is needed. The location of 

the vessels and debris is one important factor that could limit funding and authority to assist. 

Prior to making commitments to other agencies or providing advice to senior USCG leaders, 

USCG attorneys should ensure the issues have been run through the legal technical chain to 

ensure consistent advice and messaging.

J.5—Foreign Cruise Ship Transportation of U.S. Citizen Evacuees

Issue: Can foreign cruise ship’s embark passengers needing evacuation from St. Thomas and

transport them to Puerto Rico?

Authority(ies): 46 U.S.C. § 55103 (Passenger Vessel Safety Act)

Discussion: St. Thomas received extensive damage as a result of Hurricane Irma. A local hotel

hired a ferry from Puerto Rico to assist in evacuating guests from the hotel. The ferry only took

guests from the hotel, leaving behind many others who desired to evacuate. In response to this

situation, a major cruise line volunteered to provide a cruise ship that would either evacuate

individuals from St. Thomas to Puerto Rico, or moor alongside in St. Thomas and act as a 

floating hotel. The cruise ship was not a U.S. flagged vessel. This raised questions regarding the

application of the Passenger Vessel Safety Act.

The Passenger Vessel Safety Act provides that “no foreign vessel shall transport 

passengers between ports or places in the United States, either directly or by way of a foreign 

port. . . .” The Passenger Vessel Safety Act protects U.S. shipping interests by providing a “legal 

structure that guarantees a coastwise monopoly to American shipping and thereby promotes 

development of the American merchant marine.”

The Passenger Vessel Safety Act further provides that the transportation of passengers 

between U.S. points is reserved for coastwise-qualified vessels. Pursuant to section 55103, “a 

vessel may not transport passengers between ports or places in the United States to which the 

coastwise laws apply, either directly or via a foreign port, unless the vessel: (1) is wholly owned 

by citizens of the United States for purposes of engaging in the coastwise trade; and (2) has been 

issued a certificate of documentation with a coastwise endorsement under chapter 121 of [Title 

46] or is exempt from documentation but would otherwise be eligible for such a certificate and 

endorsement.” Thus, foreign flagged vessels and U.S. vessels that do not have a coastwise 

endorsement on their document are prohibited from transporting passengers between ports where 

the coastwise laws apply.
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A foreign cruise ship transporting passengers from St. Thomas to Puerto Rico would not 

violate the Passenger Vessel Safety Act because the coastwise laws do not apply to the U.S. 

Virgin Islands. The Passenger Vessel Safety Act applies to the U.S., including the island 

territories and possessions of the U.S. However, the coastwise laws generally do not apply to 

American Samoa, the Northern Mariana Islands, or the U.S. Virgin Islands. Therefore, transport 

between St. Thomas and Puerto Rico by a foreign cruise ship is not prohibited by the Passenger 

Vessel Safety Act.

Similarly, using the cruise ship as a floating hotel, even if it were to enter International 

Waters for a period of time, would not be prohibited by the Passenger Vessel Safety Act. 

Assuming the passengers would at some point disembark back in St. Thomas, the use of the 

cruise ship on this manner would be considered a “cruise to nowhere.” A “cruise to nowhere” is 

the transportation of passengers from a U.S. point to the high seas or foreign waters and back to 

the same point from which the passengers embarked, assuming the passengers do not go ashore, 

even temporarily, at another U.S. point. This is not considered coastwise transportation.

Conclusion: A foreign cruise ship transporting passengers from St. Thomas to Puerto Rico 

would not violate 46 U.S.C. § 55103, the Passenger Vessel Safety Act, because the coastwise 

laws do not apply to the U.S. Virgin Islands. Hurricanes that strike islands in the Caribbean will 

often require the evacuation of large numbers of people. When cruise lines or other private 

entities seek to assist by providing vessels that will transport evacuees to or from U.S. territories, 

USCG attorneys will need to understand what, if any, limitations are imposed on these vessels 

under the Passenger Vessel Safety Act.

J.6—Investigation of Civilian Death onboard a USN Ship

Issue: What are the legal/investigation requirements following the death of a local civilian 

patient onboard a USN ship?

Authority(ies): BUMEDINST 5360.1 (Decedent Affairs Manual); 

COMNAVSURFPAC/COMNAVSURFLANT INSTRUCTION 6000.1 (Shipboard Medical 

Procedures Manual); BUMEDINST 6010.13 (Quality Assurance Program)

Discussion: A civilian (non-DoD) elderly woman died from cardiac arrest while onboard the 

USS COMFORT (COM). Her death was the first of several civilian deaths onboard a Navy ship. 

The question was whether a legal investigation was required. Per Medical Treatment Facility 

Standard Operating Procedure, and the Navy Bureau of Medicine and Surgery policy, a “Code 

Review” is required. A Code Review is a medical comprehensive review conducted by multiple 

subject matter experts in areas of care that the patient would have received. The legal findings 

from that review are that the standard of practice was met and the patient received comparable 

practice and care as would have been conducted/received at a CONUS facility. The Code 

Review meets both the Navy Bureau of Medicine and Surgery and JAG Manual Preliminary 

Inquiry [JAGMAN (PI)] requirements. The Code Review documents the information required 
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for a Litigation Report. In this case, codes 11 (Admiralty) and 15 (Claims) were notified. 

Generally, medical malpractice law would apply. However, because there was no evidence 

malpractice, Code 11 only requested the name of the patient for their records, and required no 

further investigation.

Conclusion: Navy Bureau of Medicine and Surgery policy requires a Code Review for any 

death onboard a navy hospital ship. This is a medical review conducted by subject matter 

experts to determine whether the level of care was the same the patient would have received in a 

CONUS medical facility.

J.7—USCG Payment for USCG Personnel Lodging

Issue: May the USCG pay for hotel rooms near the duty station for District-7 (D7) personnel 

when emergency conditions make commuting dangerous?

Authority(ies): Joint Travel Regulation (JTR), para. 020602

Discussion: After Irma passed through Florida, conditions in Miami made it unsafe for D7

command center watch standers to commute from their homes to the Brickell Federal Building

for duty. For that reason, D7 sought to book hotels rooms close to the building. D7 legal was

asked for an opinion on whether the USCG could use funds to pay for these hotel rooms.

D7, in concurrence with the Office of General Law (LGL), concluded that JTR 020602 

allowed for the issuance of TDY orders, to include lodging, for the watch standers and therefore 

the hotel rooms could be purchased using USCG funds. JTR 020602 is entitled “TDY within the 

PDS limits under emergency circumstances.” It states that competent authority may authorize 

travel and transportation allowances for a service member who performs duty: (a) during 

emergencies that threaten injury to human life or damage to Federal Government property, (b) at 

a location within the PDS limits, (c) at other than at the Service member’s residence or normal 

duty location, and (d) at overnight accommodations used for duty.

The Miami area had not fully recovered from the damage sustained by Hurricane Irma. 

Poor roads, localized flooding, downed power lines, and debris all stood to make travel to and 

from the Brickell building potentially hazards for USCG members. Furthermore, acquiring 

gasoline for vehicles was still difficult due to short supply. Therefore, an emergency situation 

existed that fulfills the criteria in subsection (a) above. The remaining conditions were also met 

and therefore the watch standers were able to receive TDY orders until conditions improved.

It was noted, however, that this should not be seen as a long-term solution. Additionally, 

this opinion was not driven by a habitability assessment of an individual’s home, but on the

determination that an emergency situation that threatens human life exists in the Miami area.

Conditions in Miami needed to be continually reassessed, and once the emergency had passed,

use of this authority would no longer be authorized.
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Conclusion: Yes. The USCG may pay for hotel rooms near the duty station for D7 personnel

when emergency conditions make commuting dangerous because the Joint Travel Regulations, 

paragraph 020602, allows for the issuance of TDY orders, to include lodging, during emergency 

circumstances.

J.8—USCG Conduct of Welfare Checks and Provision of Supplies

Issue: May USCG personnel conduct welfare checks and provide essential supplies to nonmilitary dependent family members of USCG personnel who remained on Puerto Rico?

Authority(ies): 14 U.S.C. § 88(b)(1) (Saving Life and Property)

Discussion: Puerto Rico was devastated by Hurricane Maria. Roads, electricity, potable water,

and communication systems were destroyed throughout the island. Reconstruction of the

commonwealth's infrastructure took many months. As a result, the distribution of relief supplies

and ability of off-island family members to reach their relatives was extremely limited.

Numerous USCG personnel asked that USCG responders on the ground in Puerto Rico conduct

welfare checks on relatives. The D7 Commander issued an evacuation order for USCG

employees and dependents. However, non-dependent immediate family (grandparents and their 

descendants) members were not covered by the evacuation order. Many of the requests for

welfare checks were for non-dependent immediate family members who lived in remote parts of

the island, isolated from the distribution of relief supplies.

The D7 legal office was asked whether USCG personnel and resources could be used to 

conduct welfare checks on non-dependent immediate family members. Additionally, advice was 

sought regarding whether aid could be provided to these non-dependent immediate family 

members if they were found in need of lifesaving supplies.

D7 ultimately concluded that the USCG has the authority to conduct these welfare 

checks. The goal of the USCG's Search and Rescue program is to prevent loss of life in every 

situation where USCG actions and performance could possibly be brought to bear.43 14 U.S.C. § 

88, allows the USCG to render aid to persons and protect and save property at any time and at 

any place at which USCG facilities and personnel are available and can be effectively utilized. 

Additionally, the statute mandates the Commandant make full use of all available and qualified 

resources, including the Coast Guard Auxiliary, in rendering aid under this subsection in 

nonemergency cases. Lastly, in the maritime environment, the USCG may furnish clothing, food, 

lodging, medicines, and other necessary supplies and services to persons succored by the USCG.

The situation on Puerto Rico presented a threat to life and property. The threat of loss 

was not immediate in all cases, but was often unpredictable. Each resident's ability to survive 

depended on the resources they had at their home, their location on the island, the status of 

communication and transportation infrastructure in the surrounding area, and the emergency 

responder's ability to reach and communicate with them. The USCG is authorized to use its 

resources and capabilities to save lives wherever and whenever it can. Welfare checks were 
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necessary to determine if these residents of Puerto Rico were threatened by loss of life. While 

not explicitly authorized in the U.S. Code, the distribution of food and supplies is cited as an 

example of the type of aid the USCG may provide at sea. Because the USCG has the authority to 

render aid necessary to save lives ashore, it is reasonable for the USCG to also distribute supplies 

to people succored ashore if they need the supplies to survive.

Conclusion: 14 U.S.C. § 88(b)(1) allows the USCG to render aid to persons and protect and 

save property at any time and at any place at which USCG facilities and personnel are available

and can be effectively utilized. The USCG Search and Rescue authority is broad and the full 

extent of that authority was utilized in this case. Providing information to USCG members about 

the status of their family was a laudable goal and the comfort in knowing that family members 

were ok would certainly increase members’ mission effectiveness. This should be balanced 

against the need to ensure USCG personnel and assets are ready and available to serve the public 

at large.

K. FOREIGN DISASTER RESPONSE

K.1—Foreign Civilian Evacuation

Issue: What is the process for the DoD to support evacuation of civilians located on foreign 

islands during hurricanes?

Authority(ies): USNORTHCOM CONPLAN 3729-12 (International Disaster Response); 10 

U.S.C. § 404 (Foreign Disaster Assistance); EO 12966 (Foreign Disaster Assistance); E0 12163 

(Administration of Foreign Disaster Assistance and Related Functions); DoDD 5100.46 

(Foreign Disaster Relief)

Discussion: On 5 Sep 2017, while serving on shift, a judge advocate was presented a 

Diplomatic Note from the Bahamas requesting civilian evacuation support for several islands. 

The issue was understanding how the process works. The Department of State is the principal 

agency for coordinating international disaster response, and the U.S. Agency for International 

Development, along with its office of Foreign Disaster Assistance, performs the actual 

coordination. For DoD support to foreign governments, the U.S. Agency for International 

Development/Office of U.S. Foreign Disaster Assistance will submit a request to the Executive 

Secretary, Office of the Secretary of Defense. The Secretary of Defense, through Joint Staff, 

will then task the U.S. Northern Command with providing support. 

Executive Order 12966 governs the implementation of 10 U.S.C. § 404. Section 2 of the 

Executive Order states that, “The Secretary of Defense shall provide disaster assistance only:

(a) at the direction of the President; or (b) with the concurrence of the Secretary of State; or (c) in 

emergency situations in order to save human lives, where there is not sufficient time to seek the 

prior initial concurrence of the Secretary of State, in which case the Secretary of Defense shall 

advise, and seek the concurrence of, the Secretary of State as soon as practicable thereafter.”
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Paragraph 4 of DoDD 5100.45 states that, “It is DoD policy that: a. DoD shall respond 

to foreign disasters in support of the U.S. Agency for International Development pursuant to 

E.O. 12163 and section 2292(b) of [T]itle 22, U.S.C. . . . b. In accordance with [Executive 

Order 12966], DoD Components shall provide disaster assistance in support of U.S. [Foreign 

Disaster Relief] efforts only: (1) At the direction of the President; (2) When the Secretary of 

Defense or a designee approves, with the concurrence of the Secretary of State, a [R]equest [F]or 

[A]ssistance from another Federal department or agency; or (3) In emergency situations in order 

to save human lives, where there is not sufficient time to seek the prior concurrence of the 

Secretary of State, in which case the Secretary of Defense shall advise and seek the concurrence 

of the Secretary of State as soon as practicable thereafter.”

Conclusion: The process for the DoD to support evacuation of civilians located on foreign 

islands during hurricanes is as stated above. In this particular instance, the DoD did not provide 

the requested support. Instead, the Bahamas evacuated civilians by using chartered civilian 

airliners. Ideally, all offers and requests for support involving foreign nations should be 

coordinated through normal diplomatic channels before U.S. Northern Command receives a task 

to execute. An important lesson learned is that the special binational command relationship 

between the United States and Canada does not change the involvement of the Department of 

State in processing offers and requests for support.

K.2—American Citizen Evacuation

Issue: During a disaster, must American citizens located in foreign lands reimburse the 

Department of State if the Department of State bears the evacuation costs up front?

Authority(ies): 22 U.S.C. § 2671 (Emergency Expenditures); 22 U.S.C. § 2715 (Procedures 

Regarding Major Disasters and Incidents Abroad Affecting United States Citizens)

Discussion: Many American citizens were located in Dominica when Hurricane Maria made 

landfall. 22 U.S.C. § 2671 authorizes emergency expenditures by the Department of State to 

evacuate “United States Government employees and their dependents,” as well as “private 

United States citizens or third-country nationals, on a reimbursable bases to the maximum extent 

practicable.” 22 U.S.C. § 2715 states that, “In the case of a major disaster or incident abroad 

which affects the health and safety of citizens of the United States residing or traveling abroad, 

the Secretary of State shall provide prompt and thorough notification of all appropriate 

information concerning such disaster or incident and its effect on United States citizens to the 

next-of-kin of such individuals.” 

Because of the § 2671 reimbursement requirement and fear of having to pay great sums 

of money, most of the American citizens were declining to be evacuated via DoD helicopter lift. 

The Department of Defense did not require the American citizens to complete a DS-5528

(Evacuee Manifest and Promissory Note) for the American citizens to board the helicopters and 

be evacuated to the nearest seaport of debarkation or aerial port of debarkation. The DoD did not 

require reimbursement either. The DS-5528, is designed for use when the U.S. Government 
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evacuates employees and their dependents, private U.S. citizens, and Third Country Nationals 

from a designated crisis location when their lives are endangered by war, civil unrest, natural 

disaster, or other similar events. In the event of a U.S. government-coordinated evacuation, 

American citizen evacuees complete a DS-5528 to receive travel assistance from the crisis 

location to the Foreign Safe Haven, or from the crisis location directly to the United States. 

Loans issued using the DS-5528 are not drawn from Consular Affairs funds. As a result, the post 

must request approval through Consular Affairs, Office of Special Counsel before instructing 

evacuees to complete this form.

22 U.S.C. § 2671 requires the Department of State to seek reimbursement of 

transportation costs from the American citizens evacuated in the amount that the evacuee “would 

have been charged for a reasonable commercial air fare immediately prior to the events giving 

rise to the evacuation.” In practice, provided it is to the benefit of the evacuee, the Department 

of State assigns the amount based on the cost of a reasonable commercial fare on a comparable 

mode of transportation. For example, if a ferry is chartered, then the cost of a ticket on a ferry is 

considered for reimbursement purposes. The Department of State does not bill evacuees for 

transportation costs who fall under Chief of Mission authority. In addition to serving as a loan 

agreement, Part 2 of the DD-5528, the form also serves as the official manifest of each 

evacuation transport(s) and as a liability acknowledgement. The DD-5528 also provides an 

opportunity for the evacuee to execute a Privacy Act Waiver. This is why it is critical for the 

consular officer to complete Part 3 and Part 4 of every form. 

Conclusion: Yes. During a disaster, American citizens located in foreign lands must reimburse 

the Department of State if the Department of State bears the cost of evacuation up front. 

American citizens requesting evacuation are to fill out the DD-5528 prior to being evacuated.

K.3—Transfer of Goods to Affected Countries and Military Partners

Issue: May the Department of Defense transfer goods to affected countries and military 

partners? 

Authority(ies): 10 U.S.C. § 2557 (Excess Nonlethal Supplies: Availability for Humanitarian 

Relief, Domestic Emergency Assistance, and Homeless Veterans Assistance); 10 U.S.C. § 404 

(Foreign Disaster Assistance); DoD Directive 2010.9 (Acquisition and Cross-Servicing 

Agreements), 28 Apr 2003; CJCSI 2120.01 (Acquisition and Cross-Servicing Agreements), 21 

May 2015; DoD Directive 5100.46 (Foreign Disaster Relief)

Discussion: If the federal military is attempting to transfer materials to another country or to 

foreign citizens during a foreign disaster relief mission, such a transfer may be conducted under 

an Acquisition Cross Servicing Agreement, a Mission Tasking Matrix from the Office of United 

States Foreign Disaster Assistance, or under the excess property declaration process. Should a

Joint Task Force attempt to transfer materials to a foreign country or foreign citizens using any 

other method, then violations of the Purpose Statute may occur. Such an error may also lead to 

improper accounting of the transferred material during redeployment auditing. 
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Pursuant to foreign disaster relief operational doctrine, ideally every requirement is

facilitated through a Mission Tasking Matrix. A Mission Tasking Matrix is a tool used by the 

office of United States Foreign Disaster Assistance to request field-level assistance from the 

Department of Defense. However, situations quickly arise when support is not included within 

an existing Mission Tasking Matrix request and/or the Office of United States Foreign Disaster 

Assistance is not able or does not agree with issuing a new Mission Tasking Matrix. These are 

tactical level support items that the Joint Task Force Commander may view as necessary to 

adequately support other partners (e.g., providing MREs to a partner force for sustainment 

purposes). The Office of United States Foreign Disaster Assistance tends to be frugal with 

Mission Tasking Matrixes because they do not want to be obliged to reimburse unless the 

support was definitely necessary, or they might not view the type of support as a unique military 

capability. The Office of United States Foreign Disaster Assistance also has many coordination 

requirements, not just with the affected host nation but also with the UN Cluster, and all of these 

stakeholders are sensitive to the appearance of an over-militarized response effort. 

Acquisition Cross Servicing Agreements can be another viable option in the foreign 

disaster relief context. Normally the J4 will lead this process but judge advocates support 

substantially. The benefit of the Acquisition Cross Servicing Agreement is speed, at least 

relative to other options, and exchange or payment does not need to be completed for one year. 

Having a bilateral Acquisition Cross Servicing Agreement in place with a country essentially 

represents an “agreement to agree” on a reimbursable exchange of services or logistics at a future 

date. Usually the agreements will call for equal-value-exchanges or replacement-in-kind. Then,

when an actual exchange (i.e., Acquisition Cross Servicing Agreement order/transaction) is 

agreed upon and signed off on, that is similar to writing a sole-source government contract. If all 

the Acquisition Cross Servicing Agreement requirements are not met, or if the orders are not 

done properly, then it will create problems for the Combatant Commander later. AFRICOM and 

CENTCOM were recently audited by the DoD Inspector General revealing issues with many of 

their Acquisition Cross Servicing Agreement transactions of the last few years. 

Ideally, during Joint Task Force Leeward Islands operations, bilateral Acquisition Cross 

Servicing Agreement agreements would have been in place up front with the host nation(s) and 

all other conceivable supporting partners. SOUTHCOM is trying to get more Acquisition Cross 

Servicing Agreement agreements in place, but it is more complicated than it might appear. The 

Acquisition Cross Servicing Agreement process requires an advance agreement to exchange with 

the partner nation. Because the necessity for disaster response cannot always be predicted, 

having an advance agreement can be difficult. Further, the foreign may not know the amount of 

materials available for transfer to the United States, and the value of those materials. The Joint 

Task Force strongly recommended the provision of real-time federal support to the partner force 

to execute the operation. There is a tension between process and reality. Joint Task Force 

Leeward Islands/SOUTHCOM eventually detailed the Acquisition Cross Servicing Agreement

process in the EXORD (MOD 009, 23 Sep 17) because of confusion (some MREs were actually 

handed out without the correct approval signature). As of this writing, paperwork is still ongoing 

for a couple Joint Task Force Leeward Islands Acquisition Cross Servicing Agreement
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exchanges. Some other Acquisition Cross Servicing Agreement orders were explored that just 

could not be worked out under operational timelines. 

The final avenue to transfer materials to a partner force in the Foreign Disaster Relief 

context is the excess property process under 10 U.S.C. § 2557. This process was not used by 

Joint Task Force Leeward Islands during operations. It was considered in St. Martin/Saint 

Maarten, but the Acquisition Cross Servicing Agreement process was determined more suitable. 

In Dominica the Joint Task Force had excess MREs and wanted to use the excess property

process. Soon into staffing, it became apparent that U.S. forces in Puerto Rico had an 

outstanding request for MREs. Filling such a need will always trump giving the MREs away. 

Conclusion: For the judge advocate advising a Joint Task Force Commander during a foreign 

disaster relief operation, the Acquisition Cross Servicing Agreement process should be 

understood. An exchange should not be overpromised or committed without socializing the 

proposal with appropriate Combatant Command officials or their representatives. Also guard 

against the Joint Task Force staff getting creative with solicitations. The foreign partner should 

ask for assistance that is genuinely needed, not the other way around. Establish a relationship 

with the Combatant Command Acquisition Cross Servicing Agreement program manager as 

quickly as possible. Determine who the appropriate signing officials are for DoD and for partner 

forces. For DoD, ideally this will be delegated to someone in the Joint Task Force J4; but it 

might not have been delegated and/or the J4 might not have authority to approve materials 

owned by all the services (i.e., understand that the services are the materials providers). If 

possible, judge advocates should also be trained on and have access to the Global Automated 

Tracking and Reporting System, which is an automated tool that tracks and provides visibility on 

worldwide Acquisition Cross Servicing Agreements. 

In terms of Mission Tasking Matrixes, often the judge advocate is faced with a scenario 

where the Joint Task Force asks whether the activity is included within a Mission Tasking 

Matrix, to which the Office of United States Foreign Disaster Assistance may respond saying 

that the activity is not included, and therefore no Overseas humanitarian, Disaster, and Civic Aid 

funding may be used. Whether the activity may still be performed may still be in question and 

would likely hinge on whether the Joint Task Force can present a persuasive case that the activity 

must be performed to accomplish another necessary goal (which could possibly be a Mission 

Tasking Matrix). The judge advocate must also ensure the Joint Task Force Commander knows 

whether Overseas Humanitarian, Disaster and Civic Aid funding will be available if that lesser 

activity is performed. There will not be Overseas Humanitarian, Disaster and Civic Aid

reimbursement for it. 

K.4—Synchronization of Security Cooperation and Foreign Disaster Relief

Observation: Either there should be better integration with the Office of United States Foreign 

Disaster Assistance or additional DoD policies should be created to further address foreign 

disaster relief in-depth. 

Authority(ies): DoD Directive 5100.46 (Foreign Disaster Relief)
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Discussion: Carrying on from the above discussion on provision of materials to foreign partners 

during an Foreign Disaster Relief operation, it is noteworthy that often these are the same partner 

forces for which DoD has ongoing security cooperation and/or Building Partner Capacity (BPC) 

programs. In the Caribbean, this is normally members of the Regional Security System (RSS). 

While carrying out those programs, U.S. military units do have the authority to provide MREs, 

transport, and other materials when needed to adequately support partners and accomplish 

training objectives. Hence in the context of an actual Foreign Disaster Relief operation where a 

real world imperative exists, when working with some of those same partners, it is frustrating 

when Joint Task Force personnel inform those partners that support is not authorized. It 

undermines the overall goals of those security cooperation programs, many of which are 

specifically intended to build capacity for responding to disasters. DoD wants to remain the 

partner of choice in the Caribbean and it is in U.S. national security interest to do so. Moreover, 

the holistic strategy of all those DoD programs and the long-term SOUTHCOM vision on 

Foreign Disaster Relief is for our regional partners to shoulder more of the disaster response 

burden. If DoD cannot bring those partners on the scene of actual operations and practice with 

them then it will be difficult to achieve these strategic goals. 

One example is with Military Aircraft (MILAIR). Pursuant to SOUTHCOM regulations 

(SC Regulation 45-1, Use of Military Aircraft and Foreign Aircraft), partner force personnel are 

not authorized on U.S. military aircraft absent an Acquisition Cross Servicing Agreement, 

Mission Tasking Matrix, or when flying Space “A” on previously scheduled flights. Joint Task 

Force-Leeward Island wanted to fly Jamaican forces into Dominique but authority did not exist 

to do so. Therefore, the Joint Task Force staff had to facilitate their transport by another partner 

country (Canada). Another example involved the lack of synchronization of Noncombatant 

Evacuation Operations and the provision of relief. Note, evacuations of American citizens in the 

affected countries was not mandatory, merely voluntary. DoD sent aircraft to these countries to 

pick up Americans, and there was a desire to load relief materials on to the aircraft for the sake 

of efficiency and speed. DoD was not able to pre-coordinate a Mission Tasking Matrix so this 

was not done. Separate flights/aircraft had to transport these materials. There should have been 

a way to work this out, presuming all of these materials were needed, either with better prior 

coordination with the Office of United States Foreign Disaster Assistance or via more flexible 

DoD authorities. As a general rule, neither the military or the Office of United States Foreign 

Disaster Assistance should push in logistics and materials to an affected country (i.e., “pull not 

push”) but that maxim sometimes works against the speedy provision of life-saving supplies. In 

the immediate aftermath of a disaster the needs are predictable (e.g., drinking water, medical 

supplies). The optic also caused a negative reaction amongst some of the local population. 

There was a feeling that the US could get in fast to rescue Americans, but that we were not 

prioritizing the provision of life-saving supplies. 

However, USAID/Office of United States Foreign Disaster Assistance have equities on 

this issue too and are hesitant to agree on a broadening of DoD authorities during a Foreign 

Disaster Relief operation. In the example above, where the Jamaicans who had to be flown into 

Dominica by someone other than the United States, they turned out not being capable of 
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contributing measurably to the relief efforts. The Jamaican force did not have the ability to 

sustain or transport themselves, so then the Joint Task Force had to try and find avenues to do 

that for them. Moreover, as the Office of United States Foreign Disaster Assistance emphasized 

afterward, the host nation officials in Dominica were not aware that those Jamaican military 

forces were being brought into the country. Foreign Disaster Relief authorities are limited, 

especially for foreign militaries, because those forces are meant to fill a gap in local capacity for 

a short duration. Those gaps are identified by the host nation, then routed through an 

international coordination mechanism (UN cluster typically), and then provided to the Office of 

United States Foreign Disaster Assistance, who may ask DoD to help if needed. Often Joint 

Task Force officials on the ground do not appreciate the complexity of all the machinations 

behind the Mission Tasking Matrixes process. Another point the Office of United States Foreign 

Disaster Assistance makes is that a Foreign Disaster Relief operation is not a training 

environment. The goal is the timely provision of life-saving aid. The Office of United States 

Foreign Disaster Assistance also points out that when unique military assistance is truly needed 

making it work is not a problem. What the Office of United States Foreign Disaster Assistance

will not do is create Mission Tasking Matrixes to bring in military partners when it is not even 

clear they will be able to contribute. For all those reasons, tying to procure additional authorities 

for DoD will be viewed by many non-military stakeholders as running afoul of well-established 

guidelines and norms for the civilian led execution of Foreign Disaster Relief and could make 

on-scene management more difficult. 

But this is not to suggest that DoD equities are not substantial or that a compromise 

cannot be reached. From the DoD perspective a Foreign Disaster Relief operation is not just 

about providing aid, it is about avoiding a strategic loss during the most prescient time for 

security cooperation and enabling our partners in the Caribbean to build disaster response 

capacity, so that the United States does not have to respond as often. In addition to tangible 

support to partners, SOUTHCOM would also like the ability to outsource Mission Tasking 

Matrixes to partner forces (and then DoD still receives the Overseas Humanitarian, Disaster and 

Civic Aid reimbursement). If this process can mature it would contribute to security cooperation 

goals, aid partners in disaster preparedness, and achieve operational objectives at the same time. 

Any potential DoD authority expansion would likely be some type of mil-to-mil, nonreimbursable DoD authority, but one that also required Office of United States Foreign Disaster 

Assistance concurrence. The Office of United States Foreign Disaster Assistance concurrence 

would prevent DoD from conducting parallel, independent operations which could run cross 

purposes to other relief efforts. In the wake of Joint Task Force – Leeward Island operations in 

2017, SOUTHCOM is exploring options for more DoD authority during FDR operations to fill 

this gap, though SOUTHCOM is just one player in wider discussions between the Defense 

Security Cooperation Agency (DSCA), Office of the Secretary of Defense for Special 

Operations/Low Intensity Conflict, USAID, and DoS. There are a few possible authorities 

contained with the FY17 NDAA, which ushered in significant reforms and consolidations for 

DoD security cooperation programs. In particular, 10 USC §§321 & 331 seem to contemplate 

DoD support in this type of scenario, but those authorities have yet to be used in the Foreign 

Disaster Relief context, nor are there any corresponding instructions, doctrine, or funding. 

Section 331, which is actually a consolidation/re-codification of global lift and sustain authority, 

is probably the most realistic because: it allows SECDEF to designate operations for which 
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support may be provided (which could be done in Foreign Disaster Relief authorization memo); 

specifically includes logistical support, supplies, and services to a friendly country; and it 

requires Secretary of State concurrence. 

Recommendations: It seems the legal framework exists for use of additional, yet limited DoD 

authorities for providing support to partner forces during a Foreign Disaster Relief operation. 

The challenge is getting concurrence from all of the USG stakeholders and figuring out how to 

execute the authorities. There are also good arguments for DoD just synchronizing operations 

better with the Office of United States Foreign Disaster Assistance on the ground, for example 

by also ensuring staff are co-located during a Foreign Disaster Relief operation, which Joint Task 

Force – Leeward Island was not. As of this writing decisions have not been made on these 

issues, but Judge Advocates need to understand the background and history of these discussions. 

SOUTHCOM has a good argument for “getting to yes” this time around because significant 

funding is appropriated for Foreign Humanitarian Assistance and Building Partner Capacity 

programs in the Area of Operation, but then when there is an actual disaster those foreign 

partners cannot contribute absent U.S. support. The other important takeaway for judge 

advocates going forward, assuming more authorities materialize, is to guard against DoD mission 

creep and unilateral Foreign Disaster Relief activities during a crisis. If DoD gets approval to 

use §331, but a Joint Task Force fails to adequately coordinate with the Office of United States 

Foreign Disaster Assistance and/or conducts independent activities that end up undermining 

overall relief efforts, then that authority might go away again. 

K.5—Understanding Foreign Humanitarian Assistance and DSCA

Observation: When deploying to support a foreign disaster relief mission, judge advocates 

should be prepared to answer questions regarding defense support of civil authorities, and vice 

versa. 

Authority(ies): DoD Directive 3025.18 (Defense Support of Civil Authorities); DoD Directive 

5100.46 (Foreign Disaster Relief); 28 U.S.C. § 1346, 2671-2680 (Federal Tort Claims Act)

Discussion: While Joint Task Force –Leeward Island HQ was in Puerto Rico, Hurricane Maria 

struck the island. FEMA representatives were already in Puerto Rico. They requested that 

USMC personnel assist with a few tasks (i.e., clearing roads of debris, cleaning up around public 

facilities, etc.). The Joint Task Force CDR desired to support these requests and was fairly 

forward leaning in wanting to get USMC personnel out of their hotels to do something. 

Furthermore, the Joint Task Force CDR wanted the USMC personnel to perform work in 

uniform and for it to be photographed by the public affairs staff. Naturally a bit of legal versus 

operator tension arose, but the judge advocates stood firm in advising that Joint Task ForceLeeward Island only had authority to conduct Foreign Disaster Relief operations and not Defense 

Support of Civil Authorities, unless approved by the proper channels (i.e., Mission Assignment 

(MA) routed through NORTHCOM). 
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Allowing USMC personnel to conduct Defense Support of Civil Authorities while on 

orders to perform a Foreign Disaster Relief mission would likely have violated the Purpose 

Statute, which then could have led to a violation of the Anti-Deficiency Act if the Purpose 

Statute violation could not have been corrected. To correct a Purpose Statute violation, the 

proper funding must have existed in the right account in the right amount at the time of the 

violation, and the proper funding must exist in the right account in the right amount at the time of 

the correction. Also, an accident or injury occurred involving a civilian while the Marines were 

performing debris removal, then the protections of the Federal Tort Claims Act may not have 

been available because the Marines would not have been performing within the scope of their 

orders/duties when the accident or injury occurred. The debris removal did not constitute a “72-

hour” life and limb emergency under DoDD 5100.46, nor an Immediate Response Authority

scenario governed under DoDD 3025.18. Clearing debris cannot normally be justified as an 

immediate life-saving activity (unless clearing road to a hospital or something similar). Also 

relevant was that this was post-disaster declaration by the Governor, which placed coordinating 

authority with FEMA and would have enhanced scrutiny toward any Immediate Response 

Authority activities. Ultimately, in the midst of discussions over this issue the Joint Task Force

judge advocates engaged with SOUTHCOM OSJA, who also weighed in. No USMC personnel 

conducted DSCA type activities in uniform. SOUTHCOM soon after included an EXORD 

MOD that clarified the coordinating requirements for DSCA activities in Puerto Rico (MOD 

006, 20 Sep 17). This guidance clarified that Joint Task Force–Leeward Island should only 

provide DSCA assistance when tasked by SOUTHCOM (which would then coordinate with 

NORTHCOM) and that all FEMA requests in Puerto Rico needed to be directed to the 

NORTHCOM J3. 

The eventual judge advocate advice was that Marines could choose to go out on their 

own accord (“off-duty” assistance), in civilian clothes, and clear debris or whatever else seemed 

practical to do, so long as these activities did not interfere with any official duties. Public affairs 

staff could photograph Marines in civilian clothes helping in Puerto Rico if desired. The only 

appropriate tasks Joint Task Force–Leeward Island personnel could officially undertake in 

Puerto Rico were those necessary to advance the Joint Task Force–Leeward Island mission. For 

example, USMC personnel could clear debris if it inhibited transit from the hotel lodging to the 

Air NG facility. 

Recommendations: The takeaway for judge advocates is not to assume Foreign Disaster Relief

and DSCA questions are always going to be clearly segmented. When deploying to support an 

Foreign Disaster Relief mission, be prepared to answer questions on DSCA too, and vice versa. 

During this hurricane season there were several judge advocates that deployed not knowing 

whether they would be supporting a foreign disaster relief mission or a defense support of civil 

authorities mission (e.g., Navy judge advocates sortieing out on ships), so they had to be 

prepared for either. This is where preparation pays great dividends—creating checklists,, 

keeping an SJA running estimate (CLAMO OpLaw Quarterly, 17-3, pgs. 8-11), maintaining a 

good Smart-book for deployers, and quickly establishing good communication links with the 

other legal players in an operation. 
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K.6—Joint Task Force Base Considerations and Diplomatic Notes

Observation: During a typical foreign disaster relief operation, the Joint Task Force 

Headquarters should be at a location near the affected country, and the Joint Task Force Forward 

Element should be co-located with the Office of United States Foreign Disaster Assistance staff 

in the affected country. 

Discussion: DoS will lead negotiations with foreign governments on these matters, but more 

advanced planning by DoD would alleviate some of the last minute, ad hoc island hopping Joint 

Task Force-Leeward Island undertook in order to provide Foreign Disaster Relief support. For 

example, when it became obvious Hurricane Maria would cause severe damage to Puerto Rico, 

the Joint Task Force staff literally just pulled out a map and started making phone calls, as an 

agreed upon contingency HQ had not been adequately planned for. DoD needs more preplanning for Foreign Disaster Relief Joint Task Force basing and more agreements in place with 

Caribbean countries. The most significant input DoD has into the DoS negotiations on basing is 

probably on Joint Task Force facility requirements and recommendations on the location of 

HQ/FWD bases. Some issues emanating from Joint Task Force–Leeward Island operations for 

consideration follow. 

Puerto Rico is a good staging base because of Air NG facilities there, but it is also 

vulnerable, as this hurricane season revealed. SOUTHCOM planners knew Hurricane Maria 

would hit Puerto Rico when the decision was made to base the HQ there, but the extent of the 

damage was hard to predict so SOUTHCOM accepted the risk. However, one of the risks that 

did not get adequate attention, and one which DoD probably dodged a bullet on, was the optic of 

USMC personnel evacuating from Puerto Rico in order to support a foreign country, all while 

Puerto Rico was in the beginning stages of a challenging response themselves. The Joint Task 

Force Public Affairs Officer did create a well thought out, synchronized message regarding this 

exfiltration. But notwithstanding, given how the politics of the DSCA Puerto Rico response 

intensified, DoD is fortunate that the public or media did not direct more scrutiny toward the 

Joint Task Force when leaving Puerto Rico to provide relief to Dominica. 

Having the Joint Task Force HQ outside of the affected mission country alleviates these 

requirements for the staff and personnel who do not need to physically travel to the mission 

country. So in a lot of ways staging in a nearby country, as in Puerto Rico or Martinique, allows 

for a lighter footprint, eases manpower requirements, and creates a close logistics hub. Even if 

the Joint Task Force HQ is in a nearby country, there will still be a sizeable FWD element in the 

mission country. If a decision is made that arms are required for FWD personnel then that needs 

to be contained within Diplomatic Notes. For Joint Task Force-Leeward Island, the French side 

of St. Maarten required security, but it was especially difficult to get licenses for arms, which 

they required. The Dutch side was more secure and the Dutch allowed arms without much 

negotiation. Eventually on the French side, the French asked for a list of armed personnel, their 

passport numbers, and their weapons serial numbers. They provided a verbal approval subject to 

receipt of the list, and the SJA sent the list through DoS channels. 
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Once again, this is a DoS function with the Joint Task Force staff providing input, but 

Judge Advocates end up being the chief liaison with DoS. The French were hardest to procure 

Diplomatic Notes from because all matters had to be negotiated back in Paris through the U.S. 

Embassy. There is also an odd political dynamic between local island government authorities 

and officials back in Paris. They do not always see eye to eye. After a few days of operations, 

the Joint Task Force did get formal Diplomatic Notes for St. Maarten and they allowed for armed 

personnel. On Guadeloupe and Martinique, which were French territories that the Joint Task 

Force used as staging areas for Foreign Disaster Relief operations into Dominica, the 

access/arms process worked smoother, but formal Diplomatic Notes were never finalized. 

Before the Joint Task Force arrived in Martinique, traveling from Puerto Rico and Curaçao, the 

Joint Task Force presented a list (complied by the J1 and coordinated with the U.S. Embassy in 

Paris via the Joint Task Force-Leeward Island Political Advisor (POLAD)) of all personnel 

entering Martinique with weapons, the corresponding weapons serial numbers, and passport 

numbers. Perhaps Joint Task Force-Leeward Island Judge Advocates could have elevated the 

Diplomatic Notes issue higher, but repeated attempts were made and it just was not enough of a 

priority, so operations had to proceed without finalized Diplomatic Notes. Verbal and informal 

emails confirming Diplomatic Clearance (DIPCLEAR) create uncertainty in operations. For 

example, when the USNS Spearhead arrived off-shore and their staff asked for a physical copy 

of their authorities to be in Martinique and Guadeloupe, the Joint Task Force-Leeward Island

SJA was only able to provide verbal confirmation that the Joint Task Force was authorized to be 

in the Joint Operating Area in order to transport personnel and equipment. Another Diplomatic 

Notes related problem arose when the Joint Task Force COOP’ed in Curacao (Dutch lower 

Caribbean region) after Hurricane Maria hit Puerto Rico. Curacao was chosen because of access 

and due to its location out of the path of any potential storms. But there were no permissions 

from the Dutch to actually provide Foreign Disaster Relief support from Curacao. It was not 

apparent until the HQ set up on Curacao that the United States did not have the authority to do 

anything except counter-drug operations. Joint Task Force-Leeward Island staff attempted to 

broker a compromise, but DoS was adamant that the Dutch had not provided permission to 

conduct Foreign Disaster Relief operations out of Curacao and it would take too long, or they 

were unwilling, to agree to official Diplomatic Notes with these permissions (even though the 

Dutch were one of the recipients of Foreign Disaster Relief support). Hence, the Joint Task 

Force had to engage in rapid ad hoc planning once again in order to find a staging area (the 

distance between Curacao and Dominica was also a factor). Several countries did make it known 

they would allow access, so basing options became available quickly. 

The communication issues between the Office of United States Foreign Disaster 

Assistance and the Joint Task Force might have been alleviated if their HQs were co-located. 

Not only was the Joint Task Force-Leeward Island HQ in Puerto Rico, while the Office of 

United States Foreign Disaster Assistance Disaster Assistance Response Team (DART) was on 

the ground in St. Martin/St. Maarten, but the Joint Task Force-Leeward Island FWD was not 

even at the same location as the Disaster Assistance Response Team. Joint Task Force-Leeward 

Island and Disaster Assistance Response Team leadership just did not spend enough time 

together. All of the interaction was via e-mail and phone. The situation was rife for disconnects 

and contributed to inadequate Liaison Officer alignment (though at the action officer level, or the 

tactical level of execution, the Office of United States Foreign Disaster Assistance and the Joint 
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Task Force worked well together). Having the Office of United States Foreign Disaster 

Assistance and Joint Task Force staff work together is very important because although the 

Mission Tasking Matrix process might seem straightforward, in reality it tends to be complex. 

Requests can change quickly, times can change, and in general information is fluid/incomplete. 

When co-located and sitting next to each other, these little changes are workable, when you pull 

those functions apart it adds time to the coordination process. 

Recommendations: Based on the above considerations, during a typical FDR operation the 

Joint Task Force HQ should be at a location nearby the affected country and the JTF FWD 

element should be co-located with the Office of United States Foreign Disaster Assistance the 

Office of United States Foreign Disaster Assistance staff in the affected country. The SJA needs 

to be a player in recommending co-location with the Office of United States Foreign Disaster 

Assistance staff, as he/she is in a strong position to explain Mission Tasking Matrix coordination 

problems that occur when the staff is not co-located. Ideally Diplomatic Notes with potential 

FDR staging countries would be in place in advance of operations. They could still be structured 

so as to not be activated without host nation approval. That is the SOUTHCOM desired end 

state. But as the process is not that refined/mature yet, Judge Advocates in Foreign Disaster 

Relief operations need to sync with DoS during staging negotiations in order to clarify Joint Task 

Force requirements and anticipate issues that could impact operations (e.g., arming, security, 

nature of permissions). 

K.7—Rules of Engagement and Arming Considerations

Observation: Absent unusual circumstances or a truly non-permissive environment, judge 

advocates should advise that the military’s limited, supporting role in a foreign disaster 

relief/foreign humanitarian assistance operation is best accomplished with a light security

posture. 

Authority(ies): CJCSI 3121.01B (Standing Rules of Engagement/Standing Rules for the Use of 

Force)

Discussion: Foreign disaster relief is performed to assist other countries in saving human lives. 

The Joint Task Force Commander should ensure that all military personnel are safe. However, 

ensuring their safety does not mean that all military personnel should be armed nor is such 

required by CJCSI 3121.01B. It is acceptable to have a Quick Reaction Force (QRF) or to rely 

on host nation law enforcement for security if they can provide it. Judge advocates should assist

the Joint Task Force Commander in understanding that assuming certain risk on the Rules of 

Engagement is what the other stakeholders and the host nation are expecting from the U.S. 

military. Arming all military personnel can undermine the strategic goals of foreign disaster 

relief. After the force protection plan is decided upon, then the judge advocate facilitates by 

liaising with the Department of State to ensure the proper Diplomatic Notes/approvals for arms 

are present and by training on rules of engagement. The goal of a judge advocate supporting 

foreign disaster relief should be to facilitate approval/Diplomatic Notes, identify personnel to be 

armed, and have permits in their hands prior to deployment into the affected country. 
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The Rules of Engagement developed for Joint Task Force Leeward Islands personnel 

were very basic. Those rules were also the same rules that the Special Purpose Marine AirGround Task Force had been operating under in Honduras for the previous five months (e.g., no 

collective self-defense, no defense of property). These were the typical Rules of Engagement for

a foreign humanitarian assistance/foreign disaster relief mission. Thus, all Special Purpose 

Marine Air-Ground Task Force personnel had received training on the Rules of Engagement 

specific to the mission in Honduras. Roughly 90% or more of the Joint Task Force Leeward 

Islands personnel were part of the Special Purpose Marine Air-Ground Task Force. 

Furthermore, since the Joint Task Force Leeward Islands Headquarters was first in Puerto Rico 

versus in Martinique, the judge advocates did not review the Rules of Engagement training for 

all staff as required. The judge advocates did provide briefs on the Rules of Engagement to 

personnel leaving from the headquarters into the mission countries. Rules of Engagement briefs 

were also included in the confirmation briefs given to personnel prior to any new Mission 

Tasking Matrix or major Joint Task Force movement. Personnel undertaking missions within the 

affected countries were also provided Rules of Engagement cards tailored to

SOUTHCOM/Foreign Disaster Relief. 

Recommendations: For Joint Task Force Leeward Islands, the matters regarding arming 

authority and the Rules of Engagement were handled well with no legal or policy issues arising. 

Judge advocates have the ability to shape the initial rules of engagement and force protection 

decisions. Absent unusual circumstances or a truly non-permissive environment, the goal should 

be to advise that the military’s limited, supporting role in a foreign disaster relief/foreign 

humanitarian assistance operation is best accomplished with a light security posture. 
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L: MISCELLANEOUS QUESTIONS AND ANSWERS

Note: Below are additional questions that were asked during the 2017 disaster response. While 

the fact patterns did not lend themselves to an in-depth discussion in this publication, the answers 

will enable judge advocates to provide consistent, accurate, and timely answers to unfamiliar 

issues.

Q: Can we use Unmanned Aircraft Systems?

A: See paragraph 4.o of DoDD 3025.18 Defense Support of Civil Authorities (DSCA). 

No, unless SECDEF approval is received. Exception: DEPSECDEF Policy 

Memorandum 15-002 allows for use of UAS in support of SAR with NORTHCOM approval. 

Q: Can media embark on USN/USMC helicopters?

A: See DoD 4515.13-R, Air Transport Eligibility, Chapter 3, and DoDI 5435.2 Delegation of 

Authority to Approve Travel In and Use of Military Carriers for Public Affairs Purposes

Yes. Per the DoDI, when traveling within one geographic AOR, the COCOM 

Commander or their designee is authorized to approve and provide dedicated airlift or blocked 

seats for non-government personnel and accredited media aboard already scheduled flights. The 

travel must primarily be in the interest of the DoD and enable coverage of operations or PA 

activities supporting current operations subject to the specified conditions.

Q: Can civilians embark in Navy ships?

A: Yes. See paragraph 3. b. of Office of the Chief of Naval Operations Instruction 5720.2M 

which states “Nothing contained in this instruction diminishes the authority of the senior Naval 

Operational Commander present to embark individuals in the public interest or for humanitarian 

reasons.” Depending on the facts and/or situation, United States Fleet Forces Command may 

give specific direction; ensure you’re keeping United States Fleet Forces Legal in the loop. 

Q: When NG are operating in SAD outside of their State, how can they determine whether 

their license to practice healthcare is recognized by the receiving State? 

A: Qualified NG Military HealthCare Professionals (MHCPs) operating in State Active Duty

pursuant to an Emergency Management Assistance Compact may have their medical licenses 

recognized in the relevant jurisdiction (drawing from Article VI of Model Emergency 

Management Assistance Compact); however, the relevant Emergency Management Assistance 

Compact needs to be referenced to determine whether it covers medical practice, and what, if 

any conditions or restrictions apply to the scope of practice. When operating in State Active 

Duty status, the supporting State must look to the receiving State’s Emergency Management 

Assistance Compact and any accompanying State laws, Executive orders or conditions to 

determine restrictions or scope of practice. 
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Q: How are out-of-State Military HealthCare Professionals credentialed?

A: In addition to having a valid license, a Military HealthCare Professional must have privileges 

to practice in specific medical disciplines at a designated location. Privileges set forth the 

Military HealthCare Professionals’ authorized scope of activity. Military HealthCare

Professionals are credentialed at their home Military Treatment Facility (MTF). 

When operating outside of their jurisdiction, Military HealthCare Professionals must be 

granted privileges. When supporting a fixed DoD facility, the Military HealthCare Professional

receives privileges from the supported Military Treatment Facility commander. A Military 

HealthCare Professionals serving in the field is granted privileges by the Task Force - Medical 

Commander. The Military HealthCare Professional is responsible for providing Inter-facility 

Credentials Transfer Brief (ICTB) to the receiving privileging authority. Some private medical 

facilities grant privileges directly to Military HealthCare Professionals. DoD would likely need a 

Memorandum of Agreement with the facility through which the Military HealthCare

Professionals would be granted privileges. Military HealthCare Professionals should be covered 

under the facility’s malpractice insurance coverage.

Q: What provisions under the U.S. Virgin Island’s Code applies to out-of-State healthcare 

providers?

A: Under section 1056 of Title 23 of U.S. Virgin Island Code (VIC), “Whenever any person 

holds a license, certificate, or other permit issued by any State party to the compact evidencing 

the meeting of qualifications for professional, mechanical, or other skills, and when such 

assistance is requested by the receiving party State, such person shall be deemed licensed, 

certified, or permitted by the State requesting assistance to render aid involving such skill to 

meet a declared emergency or disaster, subject to such limitations and conditions as the governor 

of the requesting State may prescribe by executive order or otherwise.”

Q: Does status State Active Duty v. T32 impact medical malpractice coverage?

A: Yes. IAW 28 USC 2671, Military medical practitioners performing duties under 502 may be 

covered by the Federal Tort Claims Act for medical malpractice claims arising from treatment 

provided within the course and scope of their employment. Military medical providers 

performing duty under State Active Duty through the Emergency Management Assistance 

Compact will be extended the same liability coverage as provided under State law to emergency 

response medical personnel of the receiving State while responding to a State domestic 

emergency.

Q: Does the Health Insurance Portability and Affordability Act (HIPAA) apply?

A: The Health Insurance Portability and Affordability Act may or may not apply, depending 

upon whether one is a Covered Entity or Business Associate. Assuming that the Health Insurance 

Portability and Affordability Act does apply, Military HealthCare Professionals and HealthCare

Professionals may share patient information as necessary to provide treatment; to identify, locate 

and notify family members, guardians, or anyone else responsible for the individual’s care of the 

individual’s location, general condition, or death; or to prevent or lessen a serious and imminent 

threat to the health and safety of a person or the public -- consistent with applicable law and the 

provider’s standards of ethical conduct.
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Q: Can fuel procured with appropriated funds be used for NG vehicles currently being 

operated by the members in their State Active Duty status?

A: Yes. Typically, fuel is a State expense (the United States Property and Fiscal Officer sends it 

out with a full tank and expects it to return with a full tank.). However, the United States 

Property and Fiscal Officer can set up a method to track the fuel costs, and the State will 

technically reimburse later. Alternatively, the DOD Financial Management Regulation has a 

'with fuel' rate that would remove the need to track the fuel used by NG members while serving 

in their State Active Duty status. Also, the State may go to the Federal Coordinating Official to 

coordinate for fuel, and Federal Coordinating Official may then provide a Mission Assignment to 

the State’s NG for fuel supply from State Guard to the supported State.

Q: Is the NG authorized to transport prisoners?

A: It depends. FEMA will provide a MA to the Federal Coordinating Official. ESF 13 has 

responsibility for that function through the U.S. Marshals Service, FBI, and/or Federal Bureau of 

Prisons. If that is not an acceptable sourcing solution, the FEMA Mission Assignment can go to 

DoD for sourcing to either T10 or NG. NG might be able to transport prisoners in a T32 status if 

it is valid training (validated by G3/J3/A3 per CNGB 502f1b authorization) but other issues such 

as liability, Federal Tort Claims Act, passenger eligibility, and Federal Aviation Administration

prohibition of firearms on aircrafts would need to also be considered.

Q: What is FEMA’s sustainment plan for Emergency Management Assistance Compact

NG forces in the absence of the supported State’s capability to provide the same?

A: FEMA can issue expedited funding to the grantee to support the requested logistics 

requirements. In the case of the U.S. Virgin Islands, the grantee was the Virgin Islands 

Emergency Management Agency. FEMA writes a project worksheet which includes the 

statement of work detailing what the funding may be used for, a list of what is needed, and a cost 

associated with requirements. The funds are then transferred to the Virgin Islands Emergency 

Management Agency as the grantee. The supported State’s Office of the Adjutant General 

(State/Territorial Military Department) must submit a request to the Virgin Islands Emergency 

Management Agency in order for the Virgin Islands Emergency Management Agency to 

disburse those funds to the Office of the Auditor-General. The Virgin Islands Emergency 

Management Agency then sets up a Federal budget for these funds and will be able to post 

checks from that budget. To access these funds, the supported State’s Office of the AuditorGeneral must provide supporting documentation to substantiate a drawdown of funds. The 

Office of the Auditor-General will request support through the Property & Procurement Office in 

the supported State. State/territorial procedures for procuring supplies and services are used by 

the purchasing and procurement department. The checks will be issued to the Office of the 

Auditor-General which will make the purchases and then submit verification of the funds spent 

in the form of copies of purchase orders, invoices, etc.

Q: What if I would like to give in support of victims of a hurricane?

A: DoD employees interested in providing financial assistance may use FEMA’s website to 

learn more about how to assist (https://www.fema.gov/volunteer-donate-responsibility). DoD 

employees may also donate to organizations assisting with hurricane recovery efforts through the 
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Combined Federal Campaign. All persons may also contact the National Voluntary 

Organizations Active in Disaster (NVOAD). Interface with non-Governmental Organizations 

(NGOs) as well as with companies in the private sector is a formal part of the National Incident 

Management System (NIMS). National Voluntary Organizations Active in Disaster is a 

consortium of approximately 50 national organizations and 54 State/territory equivalents. The 

organizations in the consortium share knowledge and resources throughout the disaster cycle 

(preparation, response, and recovery) to help disaster survivors and their communities. From an 

operational perspective during a disaster, National Voluntary Organizations Active in Disaster 

typically sends reps to the DHS/FEMA National Response Coordination Center (NRCC) to 

represent the voluntary organizations and assist in response coordination. The web page for 

National Voluntary Organizations Active in Disaster provides great info for anyone wishing to 

help (https://www.nvoad.org).

Q: What are legitimate training activities that members of the National Guard may 

perform that may also provide ancillary support to operational missions or activities, 

including disaster response?

A: DoDI 1215.06 recognizes that training activities undertaken by the Reserve Components may 

support Federal operations or missions so long as the training missions are legitimate. In their 

status under 32 U.S.C. § 502(a) (normal drilling status), members of the National Guard may 

perform 1) inactive duty training/annual training (IDT/AT) activities that provide ancillary 

support to an operational mission and 2) DCSA training in accordance with NGR 350-1 for those 

units assigned a DSCA mission. When operating in their status under 32 U.S.C. § 502(f), NG 

members may perform mission assurance activities which are any and all actions necessary or 

appropriate to safeguard Federal resources provided to the National Guard (property, equipment, 

information etc.). In the status, the members may also perform training or other duty (other than 

IDT/AT) that provides an ancillary benefit to an operational mission. Examples include a nonotice mission essential task list (METL) training assembly for individuals or units which may 

also provide incidental benefit to an operational mission (medical support, force protection 

activities, aviation proficiency, etc.).

State National Guard units must ensure that NGR 350-1 and ANGI 36-2001 are followed 

with regard to changes or amendments to their training plan. National Guard members already in 

a duty status (e.g., full-time National Guard duty-operational support (FTNGD-OS) or FTNGD 

active guard and reserve (FTNGD-AGR)) may provide ancillary support IAW CNGBN 1401. 

However, National Guard personnel will not be placed in or extended in Title 32 status to 

conduct State Immediate Response activities. Finally, performance of these training activities 

does not preclude members of the National Guard from performing Immediate Response

activities IAW DoDD 3025.18.

Q: When a technician is ordered to serve in State Active Duty status, may that technician 

be placed on Law Enforcement Leave (LEL)?

A: It depends on what duties that technician will be performing. As an overview, when you 

order a technician into SAD status with other members of his/her responding unit, the technician 

may elect one of the following types of leave to cover his/her absence: annual leave (AL), leave 

without pay (LWOP), comp time/leave, or the 22 days of leave provided under 5 USC 6323(b), 
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also known as Law Enforcement Leave. Military leave (120 hours) under 5 USC 6323(a) may 

not be used while on SAD. Also technicians will not use sick leave or excused leave (admin 

leave) to perform SAD.

Law Enforcement Leave may only be used when the technician is actually “providing 

military aid to enforce the law or for the purpose of providing assistance to civil authorities in the 

protection or saving of life or property or the prevention of injury.” (5 USC 6323(b)) Thus, a 

technician can be put on Law Enforcement Leave for work such as participating in rescue work, 

firefighting, or putting sand into bags. The State Active Duty orders should state why the 

technician is on Law Enforcement Leave orders (e.g., rescue work, firefighting, reinforcing a 

levee). More information on this subject may be found at Technician Personnel Regulation 

(TPR) 630, Chapter 9.

Q: May homeland response force (HRF) personnel already in a 32 U.S.C. § 502(f) 

FTNGDOS status deploy out-of-State on the same set of orders for non-primary HRF 

purposes?

A: No. The service members must have a break in orders and then either receive a new set of 

orders under 32 U.S.C. § 502(f) or be placed in a State active duty (SAD) status. In accordance 

with the proper policy, CNGBI 1302.01, “Members performing duty under the authority of 32 

U.S.C. § 502(f) will not perform duties that are not specific requirements of the mission for 

which the members were ordered to duty. If circumstances require a change of duty, 

Commanders must amend/curtail the current order. A member whose tour was 

amended/curtailed removing the member from duty under 32 U.S.C. § 502(f) authority for a 

specific mission requires a new order to return to the original mission. Commanders will not 

amend/curtail or divide for multiple periods for any 32 U.S.C. 502(f) order for the purpose of 

avoiding pay for typical non-duty days.”

Q: Do the United States Property and Fiscal Officers (USPFO’s) have any duties and 

responsibilities during DSCA operations?

A: Yes. Because United States Property and Fiscal Officers must account for all Federal

property and funding in the possession of their State’s National Guard, it is essential that the 

United States Property and Fiscal Officers have access to timely and accurate information at all 

times; even during a DSCA operation. The United States Property and Fiscal Officer position is 

defined by a statute [32 U.S.C. § 708 (Property and Fiscal Officers)], and further implemented 

by policy and regulation [DoDI 1200.18 (The USPFO Program); NGR 130-6/ ANGI 36-2 

(United States Property and Fiscal Officer Appointment, Duties, and Responsibilities)]. The 

oversight responsibilities of United States Property and Fiscal Officers are shaped by the 

complex statutory and regulatory structure of contract and fiscal law. The United States Property 

and Fiscal Officers represent the CNGB in each State in all matters relating to Federal funding 

and property procured with Federal funds. 
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Q: May the Captain of the Port have Coast Guard vessels physically move unoccupied 

vessels blocking a Federal channel?

A: 50 U.S.C. § 192 and 33 U.S.C. § 1232 provide the Captain of the Port with broad authority. 

An implementing regulation is located at 33 CFR § 6.04-8 which provides that the Captain of the 

port may supervise and control the movement of any vessel and shall take full or partial 

possession or control of any vessel or any part thereof, within the territorial waters of the United 

States under his jurisdiction, whenever it appears to him that such action is necessary in order to 

secure such vessel from damage or injury, or to prevent damage or injury to any vessel or 

waterfront facility or waters of the United States, or to secure the observance of rights and 

obligations of the United States. Therefore, vessels blocking a Federal channel that meet the 

criteria above may be moved. It should be noted that the movement of a vessel by the Coast 

Guard should be avoided if possible due to risk of liability incurred for taking such action. 

Having the owners move vessels voluntarily or the issuance of Captain of the Port Orders 

directing the movement of vessels is the preferable course of action.

Q: May the active or reserve component accept donations of food, supplies, fuel, or other 

items from individual civilians or private companies while providing civil support?

A: Here, the best course of action is to thank the source for their generosity but not accept the 

gift. Even though acceptance of a gift may be permitted by a regulatory exception, it is never 

inappropriate and frequently prudent for a service member to decline a gift offered by a 

prohibited source or because of the appearance that the gift was offered to a small group on the 

basis of official position or rank. Also note that, while an acceptable gift may initially seem 

harmless and in good spirit, the giving may quickly grow to an unintended, unacceptable level 

which may, by that time, have much greater second and third-order effects when the servicemember attempts to reject the gift after having accepted them previously. Direct all potential 

donors to the State Department of Emergency Management. They will be able to point the 

persons in the right direction where their gifts are actually allowed. (Appendix N)

Q: May the active component service-member use a DFAC located on a National Guard 

base or vice versa when providing civil support?

A: If the service-member is collecting per diem while providing civil support, then any meal 

provided by the Government must be accounted for. In this instance, the rule is no different than 

it would be regularly which is, a service-member may not collect per diem for a meal and then 

receive a free meal provided by the Government. If the service member is paying for the meal at 

the DFAC but at a reduced rate, then the same must be accounted for. The Defense Travel 

System is specifically set up to address this issue. Also consider whether meals ready to eat 

(MREs) were purchased and provided for the service member. All of these matters must be 

considered when attempting to answer this question.

Q: May foreign sovereigns provide assistance to civil authorities during a major disaster?

A: Possibly. There were a number of foreign governments who sought to lend support to TX 

during the Hurricane Harvey response. This foreign involvement raised a host of issues, 

operationally and legally. Each volunteer force came with its own challenges, but perhaps the 

most challenging was the Singaporeans who were in Texas pursuant to a training agreement with 

the United States. The President of the Untied States approved their assistance in the operation. 
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However, guidance was not passed to the Department of State, the Department of Homeland 

Security, the Department of Defense, nor the State of Texas. The necessary guidance included 

the President’s intent on employment of the Singaporean forces (C2, logistics, etc.). As a result, 

there was confusion in light of the fact that there was no existing agreement between the 

Government of Singapore and the United States outlining such support. In addition, the Texas 

NG staff was concerned with the Singaporean forces’ ability to execute these missions safely. 

This concern was fueled further when the Singaporean forces, taking direction from the 

Singapore Minister of Defense, landed 4 Chinooks at an airfield near Houston. Because other 

usage of Singaporean helicopters had already been preapproved in a governing U.S. State 

Department Status of Forces Agreement, Texas was able to incorporate the Singaporean 

assistance under that agreement. Ultimately, the Texas National Guard used the Chinooks to 

support an existing mission assignment, and mitigated any safety concerns by limiting the 

Singaporean Chinooks to flying one at a time with their pilot accompanied by one of the Texas 

instructors at all times.

The process to staff such a request, first, ensure open discussion between the active and 

reserve component judge advocates about this matter. Second, the Governor’s office must route 

requests for aid from foreign sovereigns through the U.S. Department of State’s Crisis 

Management Office (CMO) (crisismanagement@state.gov; 202-647-7640). The Crisis 

Management Office reviews offers, determines whether to accept proposed aid, then relays to 

FEMA for coordination. 

In similar fashion to the above, a Texas lobbyist inquired as to whether Texas could 

utilize UK military reservists as part of the recovery effort. The Texas Air National Guard

notified the Governor’s office of the request and provided them instructions on how to process 

the request through proper channels. Note that the assistance provided by the foreign sovereign 

does not fall under a commander’s Immediate Response Authority nor DSCA. Why? Because 

the foreign commanders are not governed by DoD regulations. Liability is a matter that must be 

addressed. Thus, if there is nothing in place, contact the Governor’s office to draft liability 

waivers and have them singed before the foreign government begins to provide assistance. Just 

like any T-10 assistance provided, funding, status of forces agreements, diplomatic notes, 

country-specific rules and operational constraints, logistics, and command and control must be 

addressed and integrated into the total plan. Lastly, prior to and after disasters impacting the 

Caribbean Islands, the U.S. Northern and Southern Commands should establish communications, 

especially between State Foreign Policy Advisors, to ensure that these issues are spotted in 

advance.

Q: May members of the National Guard from a supporting State carry their personal 

concealed weapons while providing civil support in a supported State?

A: If the members of the National Guard will be serving in their State Active Duty status, then 

the answer is not the same for all States. The Emergency Management Assistance Compact 

between each State supported by the guidance provided by the State’s Adjutant General will 

govern. However, if the personnel seeking to carry their personally owned firearms will also be 

performing law enforcement functions in the supported State while in a T-32 or T-10 status, then 
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the answer becomes much clearer. NGR 500-5/ ANGI 10-208, paragraph 5-6 states, “National 

Guard personnel providing law enforcement support will not possess or use non-issued or 

personally owned firearms or ammunition while in a Title 32 or Title 10 status. The only 

weapons authorized for use in domestic law enforcement support operations while in a Title 32 

or Title 10 status are federally owned military weapons listed on the unit’s property books. The 

only ammunition authorized for use in domestic law enforcement support operations while in a 

Title 32 or Title 10 status is ammunition issued through the military supply system.” 

Q: May members of the National Guard receive tuition reimbursement when they must 

leave class due to being placed on SAD orders to support disaster response?

A: It depends. The laws of each State will govern. For instance, in Texas, Texas Education 

Code §54.006 states that, in pertinent part, “any member currently enrolled in a public technical 

institute, public junior college, public senior college or university, medical or dental school, or

public State college may either (1) withdraw from school and receive a refund or (2) be excused 

from absences due to active military service.” 

Q: May U.S. Marines use a private building or facility for DSCA response operations (at 

no charge to the USG)?

A: The Anti-Deficiency Act generally prohibits receiving voluntary benefits that augment 

appropriated funds. However, it is not a violation to accept gratuitous services where an 

advanced written agreement is executed that (1) states that the services are offered without 

expectation of payment, and (2) expressly waives any future pay claims against the government 

(Government Accountability Office Decision B-324214). Unless specifically excepted by 

Federal law or DoD policy, form of payment also includes any non-monetary benefits such as 

public advertisement or endorsement by the DoD or its personnel. In this particular instance, 

Google/Loon offered the 26th Marine Expeditionary Unit use of their facility and hangar at the 

Jose Aponte De La Torre Airfield to support relief efforts. During DSCA operations, short-term 

leasing may be a necessary option depending on location and duration. No occupation of private 

land or facilities is authorized without specific legal authority. Real property support may be 

obtained from the General Services Administration (GSA), US Army Corps of Engineers, Naval 

Facilities Engineering Command, Air Force Civil Engineer Center, or other USG departments 

and agencies. The offer from Google/Loon to gratuitously use the facility constitutes specific 

legal authority; consent is legal authority. The usage does not give rise to an unauthorized 

trespass or non-consensual occupation. However, the Anti-Deficiency Act generally prohibits 

receipt of voluntary benefits that augment congressionally appropriated funds. Moreover, 

pursuant to Joint Publication 3-28 (DSCA) specifically clarifies that, “DoD forces [conducting 

DSCA] will rely on DoD facilities for support to the maximum extent possible.” However, it is 

not a violation to accept gratuitous services where an advanced written agreement is executed 

that (1) states that the services are offered without expectation of payment, and (2) expressly 

waives any future pay claims against the government (Government Accountability Office

Decision B-324214). 
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M: ACRONYMS, TERMS, AND DEFINITIONS

Note: Some of the acronyms used in disaster response may directly conflict with the terms 

recognized by the DoD in the April 2018 edition of the DoD Dictionary of Military and 

Associated Terms. For example, in the DoD Dictionary of Military and Associated Terms, the 

acronym “ICP” is accepted to mean Inventory Control Point and Intertheater Communications 

Security Package. However, in the October 2017, third edition, of the National Incident 

Management System, issued by FEMA, the acronym “ICP” is accepted to mean Incident 

Command Post. The various acronyms and terms that judge advocates may encounter when 

performing Defense Support of Civil Authorities (DSCA) or National Guard Civil Support 

(NGCS) are listed below for your reference and use. Some of the acronyms and terms are the 

same as listed in the DoD dictionary and some are different.

Activation An order to active duty, for units and individuals (other than for 

training) in the Federal service pursuant to statutory authority 

granted to POTUS, Congress, or the service secretaries. Reservists 

can be activated involuntarily or voluntarily with their consent 

(Guardsmen also need the consent of their governor).

ADCON Administrative Control

Anti--Deficiency Act Prohibits any government officer or employee from making or 

authorizing an expenditure or obligation in advance of or in excess 

of an appropriation, making or authorizing an expenditure or 

incurring an obligation in excess of a formal subdivision of funds, 

or in excess of amounts permitted by regulations prescribed under 

31 USC 1514(a); or from accepting voluntary services, unless 

authorized by law.

Arming Orders State of preparedness to use force; NOT the AUTHORITY to use 

force once a member is faced with a threat.

BTM Boarding Team Member

BUMEDINST Bureau of Medicine and Surgery Instruction

C2 Command and Control

C3 Command, Control, and Communication

CAISE Civil Affairs Information Support Element

CAP Civil Air Patrol (Appendix M)
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CCDR Combatant Commander

CERT Community Emergency Response Team. One of the coordinating 

structures in the National Response Framework (NRF) to aid 

preparedness and response.

CJCS Chairman, Joint Chiefs of Staff

CNGB Chief of the National Guard Bureau

CNGBI Chief of the National Guard Bureau Instruction

CNGBM Chief of the National Guard Bureau Manual

COCOM Combatant Command

COMCAM Combat Camera

COP Common Operating Picture

CSG Carrier Strike Group

CST Civil Support Team. Civil Support Teams (CSTs) are a part of 

each State's National Guard and are frequently called out to 

investigate suspicious substances that are discovered in the course 

of other organizations' routine activities, such as during a response 

by the police or in mail handling by the Post Office.

CUSFFC Commander, United States Fleet Forces Command

DCE Defense Coordinating Element. Consists of a staff and military 

liaison officers in order to facilitate coordination and support to 

activated Emergency Support Functions (ESFs). The DCO has a 

DCE of core staff and military Liaison Officers to facilitate 

coordination and support to activated ESFs.

DCO Defense Coordinating Officer. The DCO, a Title 10 Active Duty 

officer appointed by the DoD, is assigned to each FEMA region 

and may work at the Regional Response Coordination Center, at 

the FEMA regional office, or may pre-deploy to an incident 

command site. A DCO will generally be involved in DoD's 

response to DSCA. If Federal military forces deploy, the DCO will 

normally deploy to the Joint Field Office (JFO) location. The DCO 

coordinates DoD support to the Primary Agency. The DCO serves 

as DoD’s single POC at the JFO for the Unified Coordination 
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Group (UCG). With few exceptions, DSCA requests originating at 

the JFO will be coordinated with and processed through the DCO. 

The DCO may have a Defense Coordinating Element (DCE). 

Responsibilities include processing requirements for military 

support, forwarding mission assignments to the appropriate 

military organizations through DoD-­‐designated channels, and 

assigning military liaisons, as appropriate, to activated Emergency 

Support Functions (ESFs). DoD has assigned DCOs at each of the 

ten DHS/FEMA regions. The DCO validate mission assignments,

identifies emerging Title 10 requirements, and determines 

transition criteria with lead Federal agency (LFA). The DCO also 

has liaison officers (LNOs) with the dual status commander (DSC) 

for situation awareness and coordinated actions.

DI Domestic Imagery. “Any imagery collected by airborne platforms 

and satellites (national or commercial) that cover the land areas of 

the 50 United States, the District of Columbia, and the territories 

and possessions of the US, to a 12 nautical mile seaward limit of 

these land areas.” (AFI 14-104). Also see DoDD 5200.27 which 

further describes DI as, “aerial reconnaissance with imagery over 

the US that does not involve the intelligence community (IC).” 

DIC Defense Intelligence Component

DILR Domestic Imagery Legal Review

DoD Department of Defense

DSC Dual Status Commander. A DSC serves in both Title 10 and Title 

32 capacity, and can therefore serve to better unify the Federal and 

NG forces involved in the response. The National Defense 

Authorization Act of 2012 stated that when Federal forces and the 

NG are employed simultaneously ISO civil authorities, 

appointment of a DSC should be the usual C2 arrangement. DSCs 

receive orders from both the State and Federal chains of command, 

and thus serve as a vital link between the two sides. They can be 

appointed in one of two ways: an active duty Army or AF officer 

may be detailed to the Army National Guard or Air National 

Guard; or, an Army or ANG member may be ordered to active 

duty. SECDEF must authorize dual status, and the State Governor 

must consent to the status.

DSCA Defense Support of Civil Authorities. Support provided by US 

Federal military forces, DoD civilians, DoD contract personnel, 
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DoD component assets, and NG forces (when the SecDef, in 

coordination with the governors of the affected States, elects and 

requests to use those forces in Title 32, United States Code, status) 

in response to requests for assistance from civil authorities for 

domestic emergencies, law enforcement support, and other 

domestic activities, or from qualifying entities for special events.

Economy Act The Economy Act, 31 U.S.C. § 1535 authorizes interagency 

orders between Federal agencies after consideration of four factors: 

(1) Funds are available; (2) The head of the requesting agency or 

unit decides the order is in the best interest of the United States 

(U.S.) Government; (3) The agency or unit to be asked to fill the 

order is able to provide the ordered goods or services; and (4) The 

head of the agency decides that ordered goods or services cannot 

be provided as conveniently or economically by a commercial 

enterprise. The ordering agency must reimburse the performing 

agency for the costs of supplying the goods or services. 31 U.S.C. 

§ 1536 specifically indicates that the servicing agency should 

credit monies received from the ordering agency to the 

“appropriation or fund against which charges were made to fill the 

order.” See also 41 U.S.C. § 6307 (providing similar intra-DOD 

project order authority, and DOD FMR, vol. 11A, ch.3 (providing 

policies and procedures for Economy Act orders). Pursuant to 10 

USC 377, the support provided between Federal agencies under 

these authorities is reimbursable under the Economy Act, unless 

the support is provided in the normal course of training or 

operations, or the support results in a substantially equivalent 

training value. 

EMAC Emergency Management Assistance Compact. The Emergency 

Management Assistance Compact is a non-binding, collaborative, 

congressionally approved interstate mutual aid compact that 

provides a legal structure by which States affected by an 

emergency may request assistance from other States. Signatories to 

the compact resolve potential legal and financial obstacles that 

States might otherwise encounter as they provide assistance to the 

stricken State or States. Since being ratified by Congress and 

signed into law, in 1996, (Public Law 104-321), 50 States, the 

District of Columbia, Puerto Rico and the U.S. Virgin Islands have 

enacted legislation to become members of EMAC. The compact 

establishes immunities, authorities, and liabilities for missions 

executed under its authority. It allows the States to rely upon each 

other in responding to, among other things, emergencies such as 

man-made or natural disasters, insurgencies, or enemy attack.
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Emergency Any situation in which Federal assistance is required to save lives, 

protect health and property, or mitigate or avert a catastrophe. 

POTUS authority is a little more limited in scope and time for 

emergencies than for Major Disaster. The Stafford Act authorizes 

POTUS to declare an Emergency, but not a Major Disaster sua 

sponte with respect to an emergency that involves an area for 

which the U.S. exercises exclusive or preeminent responsibility 

and authority.

Emergency Declaration The Emergency Declaration is limited in how it can help and does 

not include long-term Federal recovery programs of a major 

disaster declaration.

EO Executive Order

EO 12656 Executive Order 12656. This EO mandates that the heads of 

Federal agencies plan for continuity of gov’t in the event of a 

national emergency. Provided for the Federal Response Plan 

(FRP), which has been superseded by the National Response 

Framework (NRF) under the National Preparedness System (NPS). 

Assigns national security emergency preparedness responsibilities 

to Federal departments and agencies.

EO 13618 Executive Order 13618. Directs SecDef to oversee the 

development, testing, implementation, and sustainment of national 

security and emergency preparedness communications that are 

directly responsive to the national security needs of the President, 

Vice President, and senior national leadership.

EOC Emergency Operations Center (local or State). EOCs coordinate 

information and resources for affected local/State government to 

support incident management activities. EOCs maintain a current 

operating picture and communications capability with internal and 

external resources. The EOC is able to take advantage of assets 

from throughout the jurisdiction to respond to the incident and is 

activated if first responders are unable to contain an incident at the 

scene.

EPLO Emergency Preparedness Liaison Officer. A senior reserve officer 

who represents their Service at the appropriate joint field office 

(JFO) conducting planning and coordination responsibilities in 

support of civil authorities. The EPLO helps coordinate DoD 

emergency resources and supports the DCO. Maintains a current 

operating picture and communications capability with internal and 
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external resources. The EOC is able to take advantage of assets 

from throughout the jurisdiction to respond to the incident and is 

activated if first responders are unable to contain an incident at the 

scene.

ESF Emergency Support Function. Part of the National Response 

Framework (NRF). ESFs are Federal coordinating structures that 

group resources and capabilities into functional areas that are most 

frequently needed in a national response. ESFs can identify 

personnel and resources to support prevention, preparedness, 

response, recovery, and mitigation operations, as well as how those 

military resources are to be integrated into disaster response 

operations. There are 14 ESFs in the NRF.

ESG Expeditionary Strike Group

EST Emergency Support Teams. Federal personnel deployed to area of 

disaster or emergency. EST is principal interagency group that 

supports the Federal Coordinating Officer (FCO) in coordinating 

overall Federal disaster assistance.

FCO Federal Coordinating Officer. The FCO is a senior FEMA official 

who manages and coordinates Federal resource support activities 

related to Stafford Act disasters and emergencies. POTUS 

appoints an FCO after a recommendation by the FEMA 

Administrator and Secretary of HS. The FCO executes Stafford 

Act authorities, including committing FEMA resources and giving 

mission assignments to other Federal departments and agencies. 

The FCO also plays a significant role in managing the financial 

aspects of DSCA.

FDRC Federal Disaster Recovery Coordinator

FEMA Federal Emergency Management Agency. Under DHS. 

Responsible for reducing loss of life and property and protecting 

USA from all hazards (natural, terrorism, man-made).

FEMA Branch Director A FEMA Branch Director has functional or geographic 

responsibility for major parts of the Operations or Logistics 

functions.

FEMA Division Supervisor A FEMA Division Supervisor is located within the ICS 

organization between the Branch and the Task Force/Strike Team. 
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Divisions are used to divide an incident into geographical areas of 

operation.

First Responders Local fire, medical and police personnel under the command of the 

Incident Commander. The private sector and voluntary 

organizations provide direct support to affected and host 

communities through solicited and unsolicited cash and in-kind 

donations, including goods, services, and skilled and unskilled 

labor. DHS/FEMA through the American Red Cross (ARC) 

manages volunteers.

FLIR Forward Looking Infrared Radar

FMV Full Motion Video

FOB Forward Operating Base. An airfield used to support tactical 

operations without establishing full support facilities.

FRC Federal Resource Coordinator. The FRC manages Federal

resource support activities related to non-Stafford Act incidents 

when Federal-to-Federal support is requested from DHS by 

another Federal agency. Requesting agencies will appoint a senior 

official to work in coordination with the FRC as part of the UCG.

FRP Federal Response Plan. The FRP has been superseded by the NRF.

GAR Governor’s Authorized Representative. The GAR, who in most 

cases is also the State Coordinating Officer (SCO) under a Stafford 

Act response, represents the governor of the State. The GAR/SCO 

is most often a senior leader in the State’s emergency response 

organization, and is a member of the UCG.

HSI/MSI Hyper/Multi-Spectral Imaging

HSPD-5 Homeland Security Presidential Directive-5. Directs the Secretary 

of Homeland Security to develop and administer the National 

Incident Management System and the National Response 

Framework.

IAA Incident Awareness and Assessment. The use of intelligence, 

surveillance, and reconnaissance Department of Defense (DoD) 

intelligence capabilities for domestic, non-intelligence activities 

approved by the Secretary of Defense (SecDef), such as search and 

rescue (SAR), damage assessment, and situational awareness.
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IC Incident Commander. The IC is generally the most experienced 

local responder who remains the IC until voluntarily giving up 

command or being replaced by a more qualified official. This 

individual is responsible for all incident activities, including the 

development of strategies and tactics and the ordering and the 

release of resources. The IC has overall authority and 

responsibility for conducting incident operations and is responsible 

for the management of all incident operations at the incident site. 

The IC usually answers to the local Mayor.

ICP Incident Command Post. The field location at which the primary 

tactical-­‐level, scene incident command functions are performed. 

May be co‐located with incident base or other incident facilities. 

The Incident Commander or Unified Command is located at the 

ICP.

ICS Incident Command System. Part of the National Incident 

Management System (NIMS). ICS works at the tactical level, 

organizing on-­‐scene ops. 

IMAT Incident Management Assistance Team. The appropriate 

Command and General Staff personnel assigned to an incident. 

The IMAT is located in the JFO and supports the FCO. It works 

closely with other ESF staffs, branch directors, and division 

supervisors.

IO Information Operations

IOF The first facility from which the IMAT manages incident-level 

operations. It is a temporary facility until a more suitable facility is 

secured for the JFO.

IR Infrared

IRA Immediate Response Authority. DoD response at the municipal, 

county, or tribal level is provided under IRA. State have this same 

authority when seeking to use their National Guards. (DoDD 

3025.18, para 4.h) When time does not permit prior approval from 

higher headquarters, then local military commanders or responsible 

officials of other DoD components may, in imminently serious 

conditions and upon request from local authorities, provide support 

to save lives, prevent human suffering, or mitigate great property 

damage. For the Federal military, it is important to note that no 

law enforcement activities are authorized under IRA. The same 
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does not hold true for the National Guard in their SAD or T-32 

status. Local T10 and NG Commanders have Immediate Response 

Authority.

ISB Incident Support Base. A tailorable, temporary location used for 

staging forces, sustainment and/or extraction into and out of an 

operational area. In anticipation of an incident occurrence or in the 

immediate aftermath, FEMA may establish one or more ISBs near 

the incident area by pre-positioning commodities from a FEMA 

Distribution Logistics Center in anticipation of requests from State 

partners. The function of an ISB is to ensure rapid response to a 

disaster by pre-positioning resources in safe proximity to a disaster 

impacted area. The FEMA HQ LMD or the Resource Support 

Section of the National Response Coordination Staff controls ISBs. 

An ISB may be converted to a staging area after a declaration is 

made if the ISB is located within the incident boundaries. Once 

stocked, ISBs primarily distribute resources to FSAs but could 

send them to a State staging area or to points of distribution when 

requested. An ISB may also provide temporary support services, 

such as food and billeting, for personnel before their assignment, 

release, or reassignment. In addition, the ISB may serve as a place 

for out-processing following demobilization as personnel await 

transportation. (Appendix G)

Insurrection Act The Insurrection Act of 1807 governs the deployment by the 

President within the United States of Federal military personnel to 

quell lawlessness, insurrection, and rebellion. The law is intended 

to circumscribe the President's ability to use military force in 

enforcing civil law to narrowly defined conditions. Actions taken 

under the Insurrection Act are exempt from the provisions of the 

Posse Comitatus Act (PCA). The implementation of the 

Insurrection Act is allowed when a condition exists that hinders the 

execution of State and Federal laws within a State.

JDOMS Joint Domestic Operations and Military Support

JFO Joint Field Office. The JFO is the primary Federal incident 

management field structure. It is a temporary facility established 

locally to coordinate Federal, State, tribal, and local gov’ts, as well 

as private sector and NGOs, with primary responsibility for 

response and recovery. JFOs can issue mission assignments. The 

JFO uses the Incident Command System (ICS) structure but does 

not manage on-scene ops. Rather, it provides support to on-scene 
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efforts and conducts broader support ops that extend beyond the 

incident site.

JIC Joint Information Center. The JIC supports the coordination of 

local, State, tribal, and Federal governments and private sector 

communications with the public and serves as the media center for 

press briefings. It is also the central point for coordination of 

incident information, public affairs activities, and media access to 

information regarding the latest incident.

JOC Joint Operations Center. JOC is the focal point for all investigative 

law enforcement activities during a terrorist or other significant 

criminal incident. JOC is managed by an FBI Special Agent in 

Charge (SAC). JFO becomes a component of the JFO when the 

JFO is established.

JRSOI Joint Reception, Staging, and Onward Integration. A phase of 

joint force projection occurring in the operational area during 

which arriving personnel, equipment, and materiel transition into 

forces capable of meeting operational requirements. (Appendix G)

JTFC Joint Task Force Commander. Based on the size and type of 

incident, a COCOM/CC may utilize a JTF to command Title 10 

forces responding to the event. If a JTF is established, its C2 

element will be co-located with the Principal Federal Officer 

(PFO) at the Joint Field Office (JFO) to ensure coordination and 

unity of effort. A JTF/CC exercises OPCON of all allocated DoD 

resources (excluding USACE resources, NG forces in State Active 

Duty (SAD) or Title 32 status, and in some circumstances, DoD 

forces in support of the FBI). The use of a JTF C2 element does 

not replace the requirement for a Defense Coordinating Officer 

(DCO)/Defense Coordinating Element (DCE) at the JFO interfaced 

with the Unified Coordination Group (UCG). Rather, the JTF 

command element will work with UCG members to ensure that 

there is a clear understanding of the roles of military resources 

involved in the operation.

JTR Joint Travel Regulations

LDRM Local Disaster Recovery Manager

LEA Law Enforcement Agency
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LEPC Local Emergency Planning Committee. One of the coordinating 

structures in the National Response Framework (NRF) to aid 

preparedness and response.

LFA Lead Federal Agency. In the majority of domestic emergency and 

disaster response ops, DHS will serve as the LFA to which DoD 

lends its support.

LOD Legal Operations Detachment

LSO Legal Support Office

MA Mission Assignment. The vehicle used by the Department of 

Homeland Security/Emergency Preparedness and 

Response/Federal Emergency Management Agency to support 

Federal operations in a Stafford Act major disaster or emergency 

declaration that orders immediate, short-term emergency response 

assistance when an applicable State or local government is 

overwhelmed by the event and lacks the capability to perform, or 

contract for, the necessary work.

MAA Mutual Aid Agreement. Mutual aid agreements exist between 

emergency responders to provide assistance across jurisdictional 

boundaries. (also commonly referred to as Mutual Aid Assistance 

Agreements)

MACOM Major Army Command

MACS Multi-Agency Coordination System. Part of the National Incident 

Management System (NIMS). MACS coordinates activities above 

the field level and can be either formal or informal.

Major Disaster Any natural disaster, fire, flood, or explosion when such acts cause 

damage of sufficient severity to warrant Federal disaster 

assistance, as determined by POTUS. Once the POTUS declares a 

major disaster, long-term Federal recovery programs and response 

assets under the Stafford Act are triggered. Some of the programs 

and assets are matched by State programs and designed to help 

disaster survivors, businesses, and public entities.

MATO Mission Assignment Task Order. A MATO is used to provide 

specifics for a broad statement of work (e.g., delivery sites for 

water); prevents the issuance of multiple mission assignments for 

the same statement of work; will be prepared to direct specific 
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activities within the scope of a mission assignment; may include 

personnel, resource movement, and locations for delivery and duty 

stations; the tactical equivalent of the FRAGO where follow on 

orders/instructions are issued from an original base order 

(previously existing document that directs an overall action).

MCO Marine Corps Order

MEU Marine Expeditionary Unit

MOA/MOU Memorandum of Agreement/Memorandum of Understanding. 

Memoranda of Agreement (MOAs) and Memoranda of 

Understanding (MOUs) establish and arrange mutual aid assistance 

agreements. When there is a MOA/MOU, its specific nature will 

be affected by the situation at that given location. 

Mobilization The process of bringing all national resources to a state of 

readiness for war or national emergency; it includes activated the 

Reserve Component. Levels of mobilization include selective 

mobilization, partial mobilization, full mobilization, and total 

mobilization.

MOC Maritime Operations Center

National Guard The National Guard [Army National Guard (ARNG) and Air 

National Guard (ANG)] is a military Reserve organization that is 

different from the Federal Reserve component because it belongs 

to the various States and territories on a day-to-day basis. 

Members of the National Guard normally serve in either their State 

Active Duty status (SAD; State funded State controlled) or status 

under Title 32 of the United States Code (T-32; Federally funded, 

State controlled). However, the National Guard may also be called 

to Federal duty (“Federalized”) under T-10 of the United States 

Code (T-10; Federally funded, Federally controlled) [Army 

National Guard of the United States (ARNGUS) and Air National 

Guard of the United States (ANGUS)]. (Appendices H, I, and J)

NC DSC JEC U.S. Northern Command dual Status Command Joint Enabling 

Capacity. The tailor made Title 10 (T10) staff of the DSC and 

exercises mission command of T10 forces. Has LNOs with the 

DCO for situation awareness and coordinated actions.

NCP National Oil and Hazardous Substances Pollution Contingency 

Plan. NCP sets out procedures for preventing and responding to 
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oil discharges into navigable waters and release of hazardous 

substances into the environment.

NDAP Non-DoD Affiliated Person

NDRF National Disaster Recovery Framework. The NDRF provides 

guidance to promote effective recovery from incidents. The NDRF 

introduces four new terms: Federal Disaster Recovery Coordinator 

(FDRC), State or Tribal Disaster Recovery Coordinators (SDRCs 

or TDRCs), Local Disaster Recovery Manager (LDRM), and 

Recovery Support Functions (RSFs).

NECP National Emergency Communications Plan

NG National Guard

NGA National Geospatial Agency

NGB The National Guard Bureau

NGCC National Guard Coordination Center

NG--CERFP National Guard Enhanced Response Force Package. At least one 

package in each FEMA Region. Provides governors or combatant 

commander with capabilities to extract victims from a 

contaminated area, provide patient and casualty decontamination, 

and perform medical triage. Can operate in SAD, T32 and T10 

statuses. (Appendices H, I, and J)

NGO Non‐Governmental Organization

NGCS National Guard Civil Support. Support provided by the National 

Guard while in a State Active Duty status or Title 32 status to civil 

authorities for domestic emergencies, designated law enforcement, 

and other activities. 

NGR National Guard Regulation

NGT National Technical Means

NICC National Infrastructure Coordinating Center. Monitors the 

Nation’s critical infrastructure and key resources on an ongoing 

basis. During an incident, the NICC provides a coordinating forum 

to share info across infrastructure and key resource sectors. It is 
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both an operational component of DHS and a watch ops element of 

the NOC.

NIMS National Incident Management System. The NIMS framework 

forms the basis for interoperability and compatibility that enables a 

diverse set of public and private organizations to conduct wellintegrated and effective emergency management. It is the system 

managed by DHS to unify Federal, State, and local gov’t efforts to 

prepare for, respond to, and recover from domestic events. 

Provides structure and mechanism for establishing national level 

policy and operational direction regarding Federal support to State 

and local incident managers.

NMF National Mitigation Framework. The NMF establishes a common 

forum for coordinating and addressing how the Nation manages 

risk through mitigation capabilities. 

NOC National Operations Center. In the event of a disaster/emergency, 

the NOC acts as the principal ops center for coordinating and 

integrating info from NOC components to provide situational 

awareness for the gov’t. The NOC also serves as the national 

fusion center, collecting info on threats and hazards across the 

entire integrated NPS. The reference to the NOC in the DOPLAW

Handbook is to the DHS NOC.

NPF National Prevention Framework. The NPF provides guidance to 

leaders at all levels of gov’t, private and non-profit sector partner, 

and individuals, on how to prevent or stop a threatened or actual 

act of terrorism.

NPS National Preparedness System

NRCC National Response Coordination Center. NRCC is a multiagency 

coordination center located at FEMA HQ. When activated, its 

staff coordinates overall Federal support for major 

disasters/emergencies. FEMA maintains the NRCC as a 

component of the NOC for incident support ops. The NRCC can 

issue mission assignments.

NRF National Response Framework. Organizes governmental response 

to disasters/incidents in US, territories and possessions. NRF is 

always in effect and can be implemented at any time. NRF is 

made up of the base document, Emergency Support Functions 

(ESFs), Support Annexes, and Incident Annexes. The NRF 

presents the guiding principles that enable all response partners to 
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prepare for and provide a unified national response to disasters and 

emergencies. It establishes a comprehensive, national, all-hazards 

approach to domestic incident response.

NRIA Nuclear/Radiological Incident Annex of the NRF

NRP (obsolete) National Response Plan. The NRP was superseded by the NRF, 

which is now part of the NPS. 

NRT National Response Team. NRT plans and prepares response 

actions for National Contingency Plan (NCP).

NTM National Technical Means

OPCON Operational Control

OPNAVINST Office of the Chief of Naval Operations Instruction

OSC On-Scene Coordinator or On-Scene Commander

PCA Posse Comitatus Act (18 USC § 1385). Means “power of the 

county.” Defined in common law to refer to all those over the age 

of 15 upon whom a sheriff could call for assistance in preventing 

any type of civil disorder. 

PDS Permanent Duty Station

PFO Principal Federal Official. The Secretary of Homeland Security is 

the PFO for coordination of all domestic incidents requiring 

multiagency Federal responses. Secretary may elect to designate a 

single field rep to serve as his or her primary representative to 

ensure consistency of Federal support and overall effectiveness of 

the Federal incident mgmt.

POD Point of Distribution. Location where the public comes to obtain

emergency supplies following a disaster. The need for a POD is

based on lack of infrastructure to support normal distribution of 

food, water, or other supplies.

PPD-8 Presidential Policy Directive-8. Guidance that seeks to strengthen 

the security and resilience of the United States through systematic 

preparation for the threats that pose the greatest risk to U.S. 

security, including acts of terrorism, cyber-attacks, pandemics, and 

catastrophic natural disasters.
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Private Sector/Volunteers The private sector and voluntary organizations provide direct 

support to affected and host communities through solicited and 

unsolicited cash and in-kind donations, including goods, services, 

and skilled and unskilled labor. DHS/FEMA through the American 

Red Cross (ARC) manages volunteers.

PSMA Pre-Scripted Mission Assignments. Emergency Support Function 

(ESF) assignments prepared in advance to facilitate a more rapid 

response and standardize process of developing mission 

assignments. Mission assignments are issued from three FEMA-­‐

managed entities: Joint Field Offices (JFOs), Regional Response 

Coordination Centers (RRCCs), and the National Response 

Coordination Center (NRCC).

PUM Proper Use Memorandum

RC Reserve Component. The RC consists of 1) the reserves of the 

Army, Air Force, Navy, and Marine Corps, and 2) the National 

Guard [Army National Guard (ARNG) and Air National Guard 

(ANG)].

REPLO Regional Emergency Preparedness Liaison Officer. REPLOs are 

Title 10 Service Reserve personnel assigned to the FEMA regions. 

RFA Request For Assistance. To initiate the IRA, a Request For 

Assistance must come from some civil authority such as the 

mayor, chief of police, fire chief, sheriff, chief of emergency 

management, or tribal authority. This request may initially be 

made verbally; however, for Mission Assignment tracking and 

funding purposes, a follow-up in writing is desired.

RFF Request for Forces. The DCO sends the MA to the NORTHCOM 

CCDR for approval. The NORTHCOM CCDR approves routine 

requests that can be executed with her CAT 1-3 units who are at 

the BSI. If the request is not routine or the NORTHCOM CCDR 

does not have the units capable of executing the MA, the 

NORTHCOM staff validates the MA and sends the MA and a 

Request For Forces (RFF) though the Joint Staff J35 (JS J35) to the 

SECDEF for approval. If the SECDEF approves the MA, the JS 

J35 sources the unit through the services and the unit is OPCON to 

NORTHCOM. The unit deploys to the BSI and reports to the 

JFLCC-FWD. The T-10 unit that executes the MA is OPCON to 

the DSC. When the T-10 unit completes the MA to the satisfaction 

of the IC, they are released to the DSC.
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RRCC Regional Response Coordination Center. FEMA maintains an 

RRCC in each of its 10 regional offices. When activated, RRCC’s 

are multi-­‐agency coordination centers staffed in anticipation of or 

response to an incident. They operation under the direction of the 

FEMA Regional Administrator. RRCC staff coordinates response 

efforts and maintains connectivity with FEMA HQ, State EOCs, 

and other Federal and State coordination centers. The UCG will 

assume responsibility for coordinating Federal response activities 

at the incident level once established, freeing the RRCC to address 

other incidents. RRCCs can issue mission assignments.

RRF Resource Request Form. If the State cannot resolve a response 

problem with its own resources, then the State may request Federal

resources by submitting a Resource Request Form (RRF) to the 

FEMA operations officer in the IOF/JFO. FEMA Ops will staff 

the RRF to find a solution from its own internal assets or from any 

of the ESFs. If it is determined that a DOD resource is needed to 

resolve the issue, the RRF will be staffed to the DCE for 

validation. Once the RRF has been validated, FEMA Ops, in 

concert with DCE Ops, crafts a Mission Assignment (MA). The 

SCO and FCO sign the completed MA.

RSF Recovery Support Function. Six RSFs provided for in the National 

Disaster Recovery Framework; provides a structure to facilitate 

problem solving, improve access to resources, and foster 

coordination. Similar in concept to the Emergency Support 

Functions (ESFs).

SA Situational Awareness

SAD State Active Duty. When the governor of a State mobilizes the 

National Guard, the forces are typically in State Active Duty 

(SAD) status under command and control of the governor and paid 

for with State funds. SAD forces conduct all missions in 

accordance with the needs of the State and within the guidelines of 

State laws and statutes. SAD is not the same as the status of 

National Guard personnel under T-32. 

 

SAR Search and Rescue. In the information technology context, the 

acronym SAR stands for Synthetic Aperture Radar.
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SCO State Coordinating Officer. The SCO is appointed by the governor 

to coordinate State response and recovery operations with the 

Federal government. As an incident escalates, the SCO will work 

with the FCO to formulate State requirements, including those that 

are beyond State capability.

SDRC State Disaster Recovery Coordinator

SED State Emergency Duty; could include National Guard personnel 

serving in their SAD, T-32, or AGR (Active Guard and Reserve) 

statuses. (Appendices H, I, and J)

SEOC State Emergency Operations Center. A physical location at which 

the coordination of information and resources to support domestic 

incident management activities takes place and normally located at 

the State capital.

SEPLO State Emergency Preparedness Liaison Officer. SEPLOs are Title 

10 Reserve personnel who perform duty in the State EOC. As 

subject matter experts in their States, they serve as DoD liaisons 

for DSCA to State and Federal agencies and maintain situational 

awareness within the State. On a daily basis, they build 

relationships to facilitate mission accomplishment.

SERC State Emergency Response Commission. One of the coordinating 

structures in the National Response Framework (NRF) to aid 

preparedness and response. SERCs manage LEPCs and State 

Disaster Planning Advisory Committees.

SFLEO Senior Federal Law Enforcement Official. The SFLEO is the 

senior LE official from the agency with primary jurisdictional 

responsibility. SFLEA directs the intelligence and investigative 

LE ops related to the incident and supports the LE component of 

the on-scene Unified Command. In the event of a terrorist incident, 

this will normally be the FBI SAC for incident area.

SI Sensitive Information

SIOC Strategic Information and Operations Center. SIOC is the FBI’s 

worldwide EOC. It maintains SA over threats and provides FBI 

HQ, field offices, and overseas legal attaches with timely 

notification of strategic info. It shares info with EOCs at all other 

levels of gov’t. It provides C3 and COP for managing FBI

responses worldwide. In the event of an incident, the SIOC 
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establishes the HQ command post and develops connectivity to 

field command posts and Joint Operations Centers (JOCs).

SJFHQ State Joint Force Headquarters. A joint headquarters for the 

State’s Army and Air National Guard forces, normally located in 

the State capital region.

Stafford Act 42 USC 5121 et seq., implemented in the Federal Acquisition 

Regulation (FAR) at Subpart 26.2, provides for assistance from the 

Federal gov’t to States in the event of emergencies or natural or 

other disasters. Stafford Act is the primary legal authority for 

Federal emergency and disaster assistance to State and local 

gov’ts. The Act delegated to POTUS emergency powers that may 

be exercised in the event of a declared major disaster or 

emergency. Stafford Act assistance is given upon request from a 

governor when governor certifies that State lacks resources and 

capabilities to manage incident without Federal assistance. The 

Act lists roles and responsibilities and outlines types of assistance 

States may receive. POTUS may provide accelerated Federal

assistance in absence of governor’s request where necessary to 

save lives, prevent human suffering, or mitigate severe damage as 

long as prompt coordination with the State occurs. FEMA is the 

Lead Federal Agency for Stafford Act responses. FEMA’s actions 

generally driven by requests from State/local governments. 

Authorizes POTUS to appoint Federal Coordinating Officer 

(FCO); requests governor designate State Coordinating Officer 

(SCO). The Act also authorizes POTUS to establish Emergency 

Support Teams (ESTs). 

TACON Tactical Control

TAG The Adjutant General. This military officer is part of either the 

Army or Air National Guard and serves as the commanding 

general of that State’s guard as well as a member of the Governor’s 

cabinet. In the case of the National Guard for the District of 

Columbia (DCNG), there is no Governor. Instead, there is a 

Commanding General (a 2-Star General Officer) appointed by the 

President of the United States. This person directly liaisons with 

the SecDef on matters concerning the DCNG. Also appointed is a 

TAG (a 1-Star General Officer) who works for the Commanding 

General.

UAS Unmanned Aircraft System 
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UCG Unified Coordination Group. This group is comprised of senior 

leaders from Federal and State interests, and in certain 

circumstances, tribal gov’ts, local jurisdictions, and the private 

sector. UCG members must have significant jurisdictional 

authority and responsibility over the response at issue. UCG 

focuses on the mission – not on managing on-scene ops, but 

providing support to those ops. Where incidents affect multiple 

jurisdictions or the entire nation, multiple JFOs and UCGs may be 

established. The UCG will assume responsibility for coordinating 

Federal response activities at the incident level once established, 

freeing the RRCC to address other incidents. Governor’s 

Authorized Representative (GAR)/State Coordinating Officer 

(SCO) is a member of the UCG.

UCS Unified Coordination Staff. The UCS is led by the UCG.

USACE U.S. Army Corps of Engineers

USFF United States Fleet Forces Command

USG United States Government

USPER United States Person. A United States citizen; an alien known by 

the concerned intelligence agency to be a permanent resident alien; 

an unincorporated association substantially composed of United 

States citizens or permanent resident aliens; or a corporation 

incorporated in the United States, except for those directed and 

controlled by a foreign government or governments.

USS United States Ship
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N. REFERENCES AND RESOURCES

Note: All of the references below can be found in the Regionally Aligned Forces (RAF) 

repository. The repository is CAC enabled. Once inside, click on “USNORTHCOM,” then 

“United States,” then “Domestic Operations.” Click here for the RAF Repository (CAC 

required). Another great resource that provides more in-depth information on domestic 

operations is the Domestic Operational Law Handbook. Click here for the DOPLAW 

Handbook (CAC required).

DSCA and NGCS Authorities

 10th Amendment, U.S. Constitution

 Article 2, Section 2, U.S. Constitution (Powers of the POTUS as Commander in Chief)

 Article 4, Section 4, U.S. Constitution (Federal Government Protection of the States 

Against Invasion and Domestic Violence)

 Executive Order 11485 (Supervision and Control of the National Guard of the District of 

Columbia)

 Secretary of Defense Memorandum, “Supervision and Control of the National Guard of 

the District of Columbia”

 5 U.S.C. § 6323 (Military Leave: Reserve and National Guardsmen) (5 U.S.C. § 5519 

(Crediting Amounts Received for Certain Reserve or National Guard Service)

 10 U.S.C. § 275 (Restrictions on Direct Participation by Military Personnel)

 10 U.S.C. § 251-255 (Insurrection Statutes)

 10 U.S.C. § 2557 ( Excess nonlethal supplies: availability for humanitarian relief, 

domestic emergency assistance, and homeless veterans assistance (Excess property 

donation))

 14 U.S.C. § 88 (Saving Life and Property)

 14 U.S.C. § 93 (Commandant (USCG), General Powers)

 18 U.S.C. § 1385 (Posse Comitatus Act)

 28 U.S.C. § 1346, 2671-2680 (Federal Tort Claims Act)

 31 U.S.C. § 1535, 1536 (Economy Act)

 42 U.S.C. § 5121, et. seq. (Stafford Act)

 32 CFR Part 185 (Defense Support of Civil Authorities)

 33 U.S.C. § 701n (Emergency Response to Natural Disasters)

 44 CFR Part 206 (Federal Disaster Assistance)

 Emergency Support Function 13, FEMA (Public Safety and Security)

 National Incident Management System, Federal Emergency Management Agency 

(FEMA)

 National Response Framework, FEMA

 National Disaster Recovery Framework, FEMA

 Pre-Scripted Mission Assignments Catalogue, FEMA

 Mission Assignment Guide, FEMA

 Emergency Management Assistance Compact (Public Law 104-321)

 Emergency Management Assistance Compact Operations Manual, National Emergency 

Management Association (NEMA)
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 International EMAC Operations Manual, NEMA

 CJCS STANDING DSCA EXORD 071415Z Jun 13

 CJCSI 3121.01B (Standing Rules for Use of Force)

 Joint Pub 3-28 (Defense Support of Civil Authorities)

 DoDD 1200.17 (Managing the Reserve Components as an Operational Force)

 DoDD 3020.40 (Mission Assurance, Defense Critical Infrastructure Program)

 DoDD 3025.18 (Defense Support of Civil Authorities)

 DoDD 4500.56 (DoD Policy on the use of Government Aircraft and Air Travel)

 DoDD 5105.77 (National Guard Bureau)

 DoDD 5210.56 (Arming and the Use of Force)

 DoDI 1100.21 (Voluntary Services in the DoD)

 DoDI 1200.18 (The United States Property and Fiscal Officer Program)

 DoDI 1215.06 (Uniform Reserve, Training, and Retirement Categories for the Reserve 

Components)

 DoDI 1235.12 (Accessing the Reserve Components)

 DoDI 3001.02 (Personnel Accountability in Conjunction with natural or Manmade 

Disasters)

 DoDI 3025.16 (Defense Emergency Preparedness Liaison Officer (EPLO) Programs)

 DoDI 3025.21 (Defense Support to Civilian Law Enforcement Agencies)

 DoDI 3025.22 (The Use of the National Guard for DSCA)

 DoDI 4515.13 (Air Transportation Eligibility)

 DoDI 6055.17 (DoD Emergency Management Program)

 DoDM 3025.01, Vol 1 (Defense Support of Civil Authorities: Overview)

 DoDM 3025.01, Vol 2 (Defense Support of Civil Authorities: Incident Response)

 DoDM 3025.01, Vol 3 (Defense Support of Civil Authorities: Pre-Planned DoD Support 

of Law Enforcement Agencies, Special Events, Community engagements, and Other 

Non-DoD Entities)

 ATP 3-28.1, MCWP 3-36.2, NTTP 3-57.2, and AFTTP 3-2.67 (Multi-Service Tactics, 

Techniques, and Procedures for DSCA)

 AFI 10-801 (Defense Support of Civil Authorities)

 AFPD 10-8 (Defense Support of Civil Authorities)

 ANGI 10-201 (Air Transportation)

 ANGI 36-2001 (Management of Training and Operational Support Within the Air 

National Guard)

 AR 95-1 (Flight Regulations)

 OPNAVINST 3440.16E (Navy Defense Support of Civil Authorities Program)

 JAGINST 5800.7F [Chapter IV (Claims) and Chapter XI (Admiralty and Maritime Law)]

 MCO 3440.7A (Marine Corps Support to Civil Authorities (No longer available. Now 

see MCWP 3-36.2))

 CNGBI 1302.01 (Guidance for Members Performing Duty Under the Authority of 32 

USC § 502(f))

 CNGBI 3100.01A (National Guard Counterdrug Support)

 CNGBI 3000.01 (Joint Enabling Team)

 CNGBI 3000.04 (National Guard Bureau Domestic Operations)
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 CNGBI 7100.00 (Training of JFHQ State Personnel, JOC, State Emergency Operations 

Center for Domestic Ops)

 CNGBN 1401 (Guidance for use of National Guard Members in Full-Time Duty 

Programs Title 32 (T32) Active Guard Reserve, T32 Full-Time national Guard Duty 

Operational Support (FTNGDOS) and Full-Time national guard Duty Counter Drug 

(FTNGDCD) Military Technicians for Conus Contingency Situations)

 NGR 10-4 (State Defense Forces)

 NGR 350-1 (Army National Guard Training)

 NGR 500-3 (Weapons of Mass Destruction Civil Support Team Management)

 NGR 500-5 (National Guard LE Support and Mission Assurance Ops)

 USNORTHCOM STANDING DSCA EXORD 102345Z Feb 11

 COMDTINST M16247.1 (The Maritime Law Enforcement Manual)

 Domestic Operational Law Handbook (CLAMO Publication)

Incident Awareness and Assessment (IAA)/Information and Intelligence

 DoD 5240.1-R (Procedures Governing the Activities of DoD Intelligence Components 

That Affect United States Persons) 

 DoDD 5240.01, DoD Intelligence Activities

 DoDD 5200.27 (Acquisition of Information Concerning Persons and Organizations Not 

Affiliated with The Department of Defense)

 Deputy Secretary of Defense Policy Memorandum 15-002 (Guidance for the Domestic 

Use of Unmanned Aircraft Systems (SAR Exception))

 DODM 5240.01 (Procedures Governing the Conduct of DoD Intelligence Activities)

 AR 380-13 (Acquisition and Storage of Information Concerning non-Affiliated Persons 

and Organizations)

 AR 381-20 (Army Counterintelligence Program-CLASSIFIED)

 AFI 14-104 (Oversight of Intelligence Activities)

 CNGBI 2000.01B (National Guard Intelligence Activities)

 CNGBI 2400.00A (Acquisition and Storage of Information Concerning Persons and 

Organizations not Affiliated with the Department of Defense)

 CNGBI 7500.00 (Domestic Use of National Guard Unmanned Aircraft Systems)

 CNGBM 2000.01 (National Guard Intelligence Activities)

 NGA NSGM FA 1806, Revision 5 (Domestic Imagery)

 NORTHCOM Instruction (N-NCI) 14-3

Cyber

 PPD-41 (United States Cyber Incident Coordination, 26 July 2016)

 PPD-20 (U.S. Cyber Operations Policy (unclassified release, Fact Sheet on PPD-20, 

January 2013)

 National Security Strategy, 27 May 2010

 National Military Strategy (Issued by the Chairman of the Joint Chiefs of Staff, 8 Feb 

2011)

 National Cyber Incident Response Plan (December 2016)

 Final Report of the Cybersecurity Subcommittee: Part I—Incident Response (June 2016)
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 JP 3-12(R) (Cyberspace Operations)

 Defense Strategy for Operating in Cyberspace July 2011)

 Secretary of Defense (SECDEF) Memorandum, “Establishment of a Subordinate Unified 

U.S. Cyber Command Under U.S. Strategic Command for Military Cyberspace 

Operations,” (23 June 2009)

 Directive-Type Memorandum (DTM) 17-007 (Interim Policy and Guidance for Defense 

Support to Cyber Incident Response) (dated 21 June 2017)

 Deputy Secretary of Defense (DepSecDef) Policy Memorandum (PM) 16-002, Cyber 

Support and Service Provided Incidental to Military Training and National Guard Use of 

DOD Information Networks, Software, and Hardware for State Cyberspace Activities, 24 

May 2016

 DoD Cyber Strategy 2015

 DoD Strategy for Homeland Defense and Defense Support of Civil Authorities (February 

2013)

 National Guard Cyber Strategy (published 5 Jan 2018)

 CNGBI 6001.00 (National Guard Bureau Cybersecurity Program)

Material and Supplies

 32 USC § 708 (Property and Fiscal Officers)

 DoDI 1225.06 (Equipping the Reserve Forces)

 DoDI 1330.21 (Armed Services Exchange Regulations)

 AR 700-131 (Loan, Lease, and Donation of Army Material)

Search and Rescue (SAR)

 14 U.S.C. § 88 (Search and Rescue)

 14 U.S.C. § 141 (Cooperation with Other Agencies, States, Territories, and Political 

Subdivisions)

 DoDI 3003.01 (DoD Support to Civil Search and Rescue (SAR))

 NTTP 3-50.1 (Navy SAR Manual)

 AR 500-2 (Search and Rescue Operations)

Government Contracting and Fiscal Law

 31 U.S.C. § 1341-44, 31 U.S.C. § 1350-51; 31 U.S.C. § 1511-19 (collectively referred to 

as the Anti-Deficiency Act)

 10 U.S.C. § 114 (Authorizations and Appropriations)

 10 USC § 2306 (Multi-Year Contracting)

 10 U.S.C. § 2341 (Authority to Acquire Logistic Support, Supplies, and Services for 

Elements of the Armed Forces Deployed Outside the United States)

 41 U.S.C. § 11 (The Feed and Forage Act)

 FAR Part 18 (Emergency Acquisitions)

 FAR 52.232-18 and 19 (The Subject to Availability of Funds Clauses)

 31 U.S.C. § 1301 (The Purpose Statute)

 31 U.S.C. § 1515 (Exceptions to Exceeding an Apportionment)

 31 U.S.C. § 1502 (The Time Statute, includes “Bona Fide Needs”)

 31 U.S.C. § 1558 (Availability of Funds after a Bid Protest)
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 31 U.S.C. § 3302(b) (The Miscellaneous Receipts Statute)

 CJCSI 2120.01D (Acquisition and Cross-Servicing Agreements)

 DoDD 2010.9 (Acquisition and Cross-Servicing Agreements)

 DoDI 4000.19 (Support Agreements)

 DOD FMR, Vol 14, Ch. 10, para. 100404 (Funding Correction)

 NGB PAM 37-1 (Financial Management Guide for National Guard Executives)

 AFI 65-601 (Financial Management: Budget Guidance and Procedures)

 DoD Reg. 7000.14-R, Volume 11A (Financial Management Regulation) (See specifically

Chapters 1, 3, and 4. These chapters provide procedures for reimbursement for support 

provided pursuant to the Economy Act, including if used during major disasters and 

emergencies. The chapters also provide policies and procedures for establishing 

appropriate fees for authorized services that DoD organizations perform.)

 DoD Reg. 700.14-R, Vol. 12 (Financial Management Regulation) (See specifically

chapter 23. This chapter specifies incremental costs that are eligible for reimbursement, 

including for DoD support in response to major disasters and emergencies.)

 GAO Principles of Federal Appropriations Law (The Red Book) 

 AR 27-20 (Claims)

 DA PAM 27-162 (Claims Procedures)

Medical

 10 USC § 2557 (Excess Nonlethal Supplies: Availability for Humanitarian Relief, 

Domestic Emergency Assistance, and Homeless Veterans Assistance)

 JP 4-06 (Mortuary Affairs)

 DoDD 1300.22 (Mortuary Affairs Policy)

 DoDI 3025.24 (DoD Public Health and Medical Services in Support of Civil Authorities)

 DoDI 6200.03 (Public Health Emergency Management within the Department of 

Defense)

 Emergency Support Function 8, FEMA (Public Health and Medical Services)

 BUMED Global Health Engagement Volunteer Guidebook

 BUMEDINST 3104.2A (Use of Personally Owned Imaging and Recording Devices)

 BUMEDINST 6010.30 (Credentialing and Privileging Program)

 OPNAVINST 5090.1 (Environmental Readiness Program Manual: Disposing of Medical 

Waste)

 OPNAVINST 6210.2A (Quarantine Regulations of the Navy)

 Guiding Principles for Conducting Monitoring and Evaluation (M&E) for Medical 

Stability Operations (MSOs)

Civilians

 31 U.S.C. § 1342 (The Voluntary Services Statute)

 5 U.S.C. § 593, 5 U.S.C. § 3111, 10 U.S.C. § 1588, 10 U.S.C. § 2602, 10 U.S.C. § 1491, 

10 U.S.C. § 1044, 10 U.S.C. § 10212, 33 U.S.C. § 569(c) (Exceptions to the Voluntary 

Services Statute)

 DoDI 1100.21 (Voluntary Services in the DoD)

 OPNAVINST 5720.2M (Embarkation in United States Naval Ships)
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 OPNAVINST 3100.8B (Deck Landing Operations by Civilian Helicopters with Civilian 

Pilots on U.S. Navy Vessels)

 OPNAVINST 5380.1C (Acceptance and Use of Voluntary Service in the Navy)

Media 

 DoD 4515.13-R, Air Transport Eligibility

 DoDI 5435.2 Delegation of Authority to Approve Travel In and Use of Military Carriers 

for Public Affairs Purposes

Online Training:

 Joint Knowledge Online Training Opportunities (CAC enabled)

o DSCA Overview

 Course # T-US020

o Cyber

 JKO Course T-US1220 (International Legal Framework for Cyber 

Defense)

 JKO Course P-US1101 (Joint Staff Officer Cyberspace Operations 

Awareness)

 FEMA online courses (first five courses are prerequisites for JOC-TC for the National 

Guard) (https://training.fema.gov, see “Independent Study”)

o IS 75

o 100.b

o 200.a

o 700.a

o 800.b

 Intelligence and Intelligence Collection

o Doctrine Networked (DOCNET) Education and Training Courses: 

http://www.dtic.mil/doctrine/docnet/courses/intelligence/intel.htm

 2.0 (Joint Intelligence)

 2-01.3 (Joint Intelligence Preparation of the Operational Environment)

o DOCNET Podcast 2-0 (Joint Intelligence): 

http://www.dtic.mil/doctrine/docnet/podcasts/JP_2-0/podcast_JP_2-0.htm

 Specifically for members of the National Guard

o Executive Joint Domestic Operations Course (Exec JDOC, NG specific)

 For enrollment, call the POC at NGB, Mr. Tom Newman at (719) 332-

6159, or e-mail him at thomas.g.newman.ctr@gmail.mil. (current as of 

20180217)

o The Joint Operations Center (JOC) Training Course (JOC-TC): 

https://gkoportal.ng.mil/joint/J3/D05/NGJ372/JOC101/SitePages/Home.aspx

o The Joint Staff Training Course (JSTC): 

https://gkoportal.ng.mil/joint/J3/D05/NGJ372/JSTC/SitePages/Home.aspx

[student receives 1.5 Joint Qualified Officer (JQO) points]. Prior to applying for 

the JSTC, the student must complete the web-based Joint Domestic Operations 

Course (JDOC). To be enrolled in JDOC, send an e-mail to n-nc.peterson.nncj7.mbx.j723-omb@mail.mil. 
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o The Joint Reception Staging and Onward Movement Integration (JRSOI) 

Training Course: 

https://gkoportal.ng.mil/joint/J3/D05/NGJ372/JRSOI/SitePages/Home.aspx

 Suggested web-based FEMA courses to take prior to attending the JRSOI 

TC

• IS 75

• 100.b

• 200.a

• 700.a

• 800.b

o The Joint Action Officer Integration Course (JAOIC): 

https://gkoportal.ng.mil/joint/J3/D05/B02/JAOIC/default.aspx

o The NG J3/Director of Military Support (JG/DOMS) Course: 

https://gkoportal.ng.mil/joint/J3/D05/B02/J3DOMS/default.aspx

Resident Courses:

 DSCA hosted by U.S. Army North:

o DSCA Phase I is a 6-hr course taken online via JKO: T-US010, Defense Support 

of Civil Authorities 

(https://jkodirect.jten.mil/html/COI.xhtml?course_prefix=J3S&course_number=T

-US010) 

o DSCA Phase II is a one-week resident course hosted by U.S. Army North at select 

locations through the United States. Students must submit an application to 

attend.

 For the National Guard, registration can be found in Guard Knowledge 

Online (GKO): 

(https://gkoportal.ng.mil/joint/J3/D05/B02/DSCAPhaseII/SitePages/Home

.aspx)

 The NGB POC is Ms. Terral L. Williams (terral.l.williams.ctr@mail.mil, 

(703) 607-0926. (current as of 20180217)

o For regular Army and Army National Guard personnel, upon completion of 

DSCA I and II, the service member is eligible to apply for and receive the 

personnel development skills identifier (PDSI) Code D7A, “DSCA Specialist.”

 FEMA Resident Courses

o ICS 300 

o ICS 400

 Cyber

o The Cyber Law Course through the National Defense University’s College of 

Information and Cyberspace (free for DoD active duty military personnel)
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APPENDIX A

ADDITIONAL OBSERVATIONS AND TIPS

1. Immediate Response Authority (IRA): Commanders and judge advocates must 

understand the requirements and nuances of the commander’s IRA.

2. Emergency Management Assistance Compact (EMAC): All States and territories 

should have a clear understanding of how the EMAC works, its intended usage, and how 

National Guard units deploy under the Compact. It is also worth discussing whether 

other memorandums of agreement (MOAs) should be entered for Puerto Rico and the 

U.S. Virgin Islands to further outline sustainment and the logistics tail. Understand how 

reimbursement under EMAC works. Under EMAC, supporting States use their National 

Guards to respond in State Active Duty (SAD) status with the expectation that the 

supported State will reimburse the supporting State for their costs. The supported State is 

also to provide logistical and certain sustainment support to the supporting State. 

However, when the supported State cannot meet its reimbursement requirements under 

EMAC, then, if the proper declarations have been made, such as 100% reimbursement to 

the affected State for their costs, then FEMA may engage.

3. Communication (Internal): As soon as the first National Guard unit is deployed under 

EMAC, and a major disaster or emergency is declared, there should be a daily sync for all 

judge advocates. 

4. Communication (External): Be aware of and support consistent messaging. For 

instance, if the general public wonders why the National Guard cannot use their aircraft 

to transport everyone out of the affected area, the judge advocate can be a major help to 

the commander and PAO by providing competent advice on the rules that govern.

5. Daily Logs: Prepare a common log accessible to all JAGs/paralegals so that all legal 

events are recorded and accessible for reference. Know the relevant POCs and the 

documents necessary to process when requests for support from foreign governments are 

received. The Department of State is one POC. Ensuring the command’s ACSA manager 

is aware of the activity so they can provide the paperwork to ensure reimbursement is 

key. It is also important to reinforce with your supply personnel that they must 

accurately account for the cost of all goods provided and services rendered to foreign 

militaries during operations. It may be helpful for the command to cover this matter in 

all orders/FRAGOs specifying support to or from a foreign government or organization. 

Even though arrival of foreign forces may be coordinated between various entities, the 

local National Guard judge advocate must also be included to provide adequate legal 

support concerning the arrival of an armed foreign force into US territory.

6. Unity of Effort/Whole Community Concept: The National Incident Management 

System (NIMS) and the National Response Framework (NRF) are rooted in a tiered 

response, which promotes unity of effort and the whole community concept. This 

concept means that the first responders to a major disaster or emergency flows come from 

the local level, then the State, and lastly, Federal government. The DoD serves in a 

support role when providing support to civil authorities. When a commanders attempt to 

exercise their IRA, there must first be a Request For Assistance from a civil authority. If 

not operating under IRA, then there must be a mission assignment (MA) from the Federal
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Emergency Management Agency (FEMA) operating under the Stafford Act or a Request 

For Assistance from a lead Federal agency (LFA) under the Economy Act.

7. Civilian Partners: It is possible that some of our civilian partners will not fully 

understand how the military plans, coordinates, or accounts for its forces. Judge 

advocates must know which agencies they will be interacting with, their key people, their 

battle rhythms, and, for law enforcement agencies, their RUFs. Be prepared to assign 

liaisons to the Governor’s legal staff and/or the State attorney general’s office to enhance 

communications. 

8. Roles: All parties supporting a disaster response must clearly understand their roles and 

the roles of others. Understanding matters such as who has command and control, who 

has the authority to make tactical decisions, and who to call with specific issues are 

critical to mission success. (Appendix D)

9. Status: Judge advocates should understand the different funding streams based on 

service-member status, the effect that status has on Federal reimbursement, and the effect 

that status has on the ability of service-members to perform certain activities. 

(Appendices H, I, and J)

10. Funding and Fiscal Law: Be familiar with the proper procedures to receive 

reimbursement from FEMA under the Stafford Act and from other lead Federal agencies 

under the Economy Act. Know how to navigate the fiscal law analysis and understand 

the “color of money.” Familiarize yourself with the funding vehicles available and 

review Federal Acquisition (FAR) Part 18, Emergency Acquisitions. Brush up on the 

differences between “obligation” and “commitment.” During emergency response 

operations, a private entity may ask you whether you want “X,” “Y,” or “Z.” Make sure 

you understand whether a cost to the government is involved and the limits of your 

authority. The judge advocate rarely has the authority to obligate the government.

11. Training and Briefs: Judge advocates must be trained in DSCA and civil support before 

the incident happens. All legal disciplines are incorporated. Also, For National Guard 

judge advocates, brief the personnel arriving under the Emergency Management 

Assistance Compact (EMAC) on the State/territory RUF. Ensure that all military 

personnel know and understand their legal status (T-10, T-32, or State Active Duty). 

Brief the commander on the status of all personnel participating in the operation and 

advise the significance thereof. At a minimum, provide status reports to the SJA about 1) 

criminal incidents; 2) disciplinary/administration/prosecutorial actions; 3) claims against 

the U.S. Government; and 4) number of personnel receiving legal assistance and in what 

specific areas. (Appendices E, H, I, and J)

12. The Safe Haven Program: Currently, the safe haven program does not include 

evacuation of the dependents of National Guard personnel. 

13. Planning: When dealing with a disaster response to water-locked locations like Puerto 

Rico, the U.S. Virgin Islands, Guam, and Hawaii, consider the legal and policy issues that 

may arise if the governments cannot function as a result of the storm. Also, contemplate 

the laws triggered when conducting maritime transportation of equipment and supplies 

versus the most common methods, land and air. Prepare your Domestic Operations 

Smart Book ahead of time. Feel free to include matters that are specific to your command 

or State. Include samples of forms, and points of contact. Ensure that your rules for the 
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use of force (RUF) and Standards of Conduct are updated. If you are T-10, see CJCSI 

3121.01B, the Standing Rules for the Use of Force. If you are National Guard serving in 

State Active Duty or T-32 status, the RUF must align with State law. Have available DoD 

Directive (DoDD) 3000.3, “Policy for Non-Lethal Weapons”; DoDD 5210.56, “Arming 

and the Use of Force”; DoDD 5525.5, “Defense Support of Civilian Law Enforcement 

Agencies”; DoDD 5240 1-R, “Activities of DoD Intelligence Components that Effect 

U.S. Persons”; and the Current Chairman of the Joint Chiefs of Staff (CJCS) Standing 

DSCA Executive Order. Also have copies of this publication and the DOPLAW 

Handbook ready to go. Lastly, if unit personnel live in the area affected by the disaster, 

work with the staff to ensure that they coordinate shelter support and determine the 

availability of other needed support services such as commissary, Post Exchange, 

daycare, etc. Otherwise, accountability of personnel may become very difficult. If the 

disaster is serious enough, the emergency management office may be destroyed. The 

personnel normally participating in the disaster response may also be victims. 

Communication, both internet and telephone, may be down. Be prepared. (Appendix B)

14. Manning 24/7 Operations: Manning a joint operations center (JOC) within the States or 

the National Guard Coordination Center (NGCC) at the NGB can require 24/7 operations 

for a period of time lasting beyond initial expectations. To that end, judge advocates in 

positions of leadership must seek to understand the scope of the mission, how long the 

mission may last, and then project the numbers and capabilities of judge advocates and 

paralegals under their command, along with equipment, and supplies that may be needed 

to source the mission. 

15. Optics: Uniformed or not, the personnel providing support should not appear as an 

invading force. It is always important to keep in mind that no one in a domestic event is 

the “enemy.” The area of operation (AO) is not overseas where uniformed military 

personnel are engaging a foreign threat. For T-10 forces, the standing rules for use of 

force (SRUF) are applicable as found in Chairman of the Joint Chiefs of Staff Instruction 

(CJCSI) 3121.01B. For the National Guard in their State Active Duty (SAD) or T-32 

statuses, rules for use of force set by each State govern. The rules of engagement (ROE) 

have no application when the DoD is providing support to civil authorities within the 54 

States and territories. The mindset is different. It is the judge advocates responsibility to 

join with the command team to reinforce the differences in training briefs and throughout 

the mission. Pay close attention to personnel who have recently redeployed from theater 

because they may have a more difficult time switching from the “in theater” frame of 

mind. This different mindset may also affect the type of protective gear worn and the 

firearms issued. For example, a service-member may be directed to use soft body armor 

under their uniform instead of hard body armor over it. A service-member may be issued 

an M-9 sidearm versus an M-4 rifle. The uniform and arming choices can be tools to 

advance the mission to help ensure that it is seen by all as one of support to civil 

authorities versus one of war against the enemy. To that end, operation plans (OPLANs), 

operation orders (OPORDs), and other documents should be scrubbed for war references 

such as “ROE,” “enemy,” “combatant,” “war,” “prisoner of war” etc. Conversely, 

civilians may be referred to using terms like “peaceful,” “protestors,” “victims,” 

“evacuees,” or “citizens.” The OPORD/OPLAN has annexes. The judge advocate is 
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involved with writing a portion of Annex C (operations) and Annex F (sustainment). The 

judge advocate should also review the base order. (AR 27-1; FM 1-04; FM 6-0)

16. Rules for Use of Force (State and Federal): National Guard judge advocates should 

review their State’s laws and any local laws related to carrying a lawful/concealed 

weapon. For example, if a State permits citizens to carry a weapon openly, seeing a 

citizen carrying a weapon during an operation needs to be covered during RUF briefings 

and vignettes. The judge advocate should also review the State’s laws regarding use of 

force for protection of personal property, State property, and Federal property (if 

applicable). Although arming of T-10 forces in the joint area of operation was not 

authorized, the matter of standing rules for the use of force training requirements should 

be clarified in the DSCA EXORD. Clarification, by either the Joint Staff or U.S. 

Northern Command, will ensure consistent training standards for employed forces, 

mitigate risk of violations, and avoid duplication of effort. To facilitate unity of effort, 

the training should capture mission-specific differences between T-10 and State 

commanded National Guard forces in the joint operations area. For all personnel, 

regardless of component, rules for the use of force cards should be prepared in advance of 

any emergency to ensure that they are ready for review, approval, and distribution when 

needed. 

17. Social Media/Disparaging Conduct Rules: The misuse of social media by servicemembers can affect operational security, morale, and the political environment for the 

civilian authorities we are supporting. In a world where everyone has a smart phone, 

commanders should address what is and is not appropriate conduct on social media. If 

necessary, commanders may order service-members to refrain from taking pictures, 

posting comments on social media, or posting information indicating where they are 

working inside the AO. The misuse of social media may lead to operational security 

issues that may jeopardize the mission and place others in danger. Similarly, servicemembers should also be ordered to not make any disparaging or improper statements to 

members of the public or the media that would bring discredit upon the DoD, their 

service, their State National Guard, their unit, or themselves. Commanders may 

document these orders and the service-member’s understanding of these orders using 

Department of the Army (DA) Form 4856, which can be signed by each service-member 

during their Joint Reception, Staging, and Onward Integration (JRSOI) briefs. [“DA 

Form 4856 Social Media and General Orders Counseling Language” template (or service 

equivalent) and Appendix G]

18. Medical Liability: Review the State’s Good Samaritan statute and civil/criminal 

liability statute(s) when military forces are activated. Maintain current copies of relevant 

statutes in the local Office of the Staff Judge Advocate Domestic Operations (OSJA 

DOMOPS) Smart Book. Draft a memo that can be handed out/briefed to medical 

providers/service members to alleviate liability concerns. 

19. Service-member Rights: For National Guard judge advocates, be prepared for some 

service-members to have issues with their civilian employers. Review the State’s 

military statutes for rights afforded to service-members. Brief members on these rights 

during their JRSOI briefs. Also brief members on all statutes affecting members while in 

State active duty status. Maintain current copies of relevant statutes in the local OSJA 
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DOMOPS Smart Book. Uniformed Services Employment and Reemployment Rights 

Act (USERRA) and the Service-members Civil Relief Act (SCRA) do not apply to 

members while serving in their State Active Duty (SAD) status but similar State statutes 

may provide service-members with like protections. Be prepared to call civilian 

employers to educate them on relevant State statutes. For members who are also first 

responders or law enforcement personnel in their civilian jobs, their civilian employers 

may assert that they need the member more than the military. As these situations arise, 

brief the commanders so they may determine the next course of action (COA). 

20. Domestic Imagery and Incident Awareness and Assessment. Communication 

between subordinate and enabler JAs with NORTHCOM and other information

operations stakeholders is critical to ensure compliance with applicable statutory and/or 

regulatory requirements, and to avoid duplication of effort. As the need for imagery is 

predicable, much of this coordination can be done prior to the hurricane season, but 

must—in any case—continue throughout the hurricane season on a regular basis. Also, 

note that counter-intelligence (CI) personnel may not be directed/ordered to serve as 

“ground sensors” by taking pictures or documenting certain activities such as route 

clearance requirements. There is a material difference between “directed” versus 

“incidental” domestic collection activities. Pursuant to the DSCA EXORD, only the 

CCDR can direct the use of intelligence personnel for non-intel purposes. For DoD 

assets to use aerial imagery in support of civilian law enforcement agencies, there must 

be prior approval by OSD. This approval is required because a separate PCA analysis 

must occur before the images are released. Lastly, here is a quick tip about the difference 

in use of a PUM versus a DILR. DILRs are used when there are no intelligence assets or 

capabilities used. PUMs are just the opposite.

21. The National Guard Bureau (NGB) Joint Enabling Team. The National Guard 

Bureau (NGB) Joint Enabling Team (JET) is available to provide critical NGB joint staff 

expertise to support the State during a crisis event. JETs come prepared with the 

equipment necessary to ensure proper communication and connectivity to ensure a 

successful mission without imposing a burden on the State. The JET will arrive selfsufficient and self-sustaining. JETs may be composed of representatives from J1, J2, J3, 

J4, J6, and Public Affairs. JETs will include the NGB expertise requested by the State. 

In addition, Support Cells to the NGB JETs may be also be attached. Cell members may 

include administrative NCOs, judge advocates, EMAC subject matter experts, and Air 

Coordinating Officers.

22. Technician Law Enforcement Leave. Know the rules governing placement of 

technicians on TDY and the effect on their status. [5 U.S.C. § 6323(b); 5 U.S.C. § 5519]

23. Family Readiness Plan. In case of a hurricane or flood, the service-members and their 

families may also be victims. If such is the case, know the legal implications of placing 

the service-members on orders while leaving their families without sufficient care.

24. Child Custody/Child Support. Be prepared to advise service-members on the rules 

governing child custody and child support. What if the service-member has legal custody 

of the child and the child must be evacuated while the service-member stays in the 

affected area on orders? What if the service-member’s ability to pay is materially affected 

by nature of being placed on State Active Duty orders for an extended period of time?
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25. Landlord/Tenant Law. In the aftermath of a hurricane, landlord/tenant laws become 

very important. What if the service-member is renting property that is now uninhabitable 

and the landlord demands full rent? What if the service-member is renting property that is

inhabitable but is ordered TDY to a safe haven?

26. Homeowners Insurance Claims. Ensure that your service-members have read the small 

print in their homeowner’s insurance policy. The terms of some policies read such that, 

once the homeowner makes a claim, the mortgagee/lender has a right to determine how 

those funds are used.

27. FEMA Individual Disaster Assistance. FEMA disaster assistance may provide support 

to victims as they recover from a major disaster. The types of assistance provided may 

be for the individual’s home (primary residence only), medical and dental, child care, 

funeral and burial, essential household items, moving and storage, or some vehicle 

related expenses. For more information, see the FEMA website at

https://www.fema.gov/individual-disaster-assistance.

28. Legal Personnel placement in JTF Headquarters to Facilitate Judge Advocate Unity 

of Effort. During the Hurricane Harvey response, the joint enabling cell was co-located 

with the Texas National Guard staff at the JFHQ located at Camp Mabry, TX. Similarly, 

in Florida, the joint enabling cell was co-located with the Florida National Guard JFHQ 

located at Camp Blanding, Florida. This co-location proved invaluable as staff

counterparts could easily and quickly coordinate with one another, which expedited the 

orders process and eventual deployment of the appropriate troops to complete the task at 

hand. This was particularly important in TX, as the state was not accustomed to Federal 

forces sharing the joint operations area. Also, this was the first time that the Governor of 

Texas approved a Dual Status Commander so judge advocates were not very familiar 

with how DoD DSCA authorities enabled the Federal response. Co-location also allowed 

crosstalk between legal and operations staff to ensure that all parties understood the 

relevant operational constraints (e.g., RUF, policy). 

Past AARs have recommended that the T-10 judge advocate should be co-located 

with the National Guard judge advocate. During the response to Hurricane Harvey, the 

T-10 judge advocate was positioned next to the T-10 Deputy, directly outside the office 

of the Dual Status Commander. This positioning allowed the T-10 judge advocate to 

gain visibility on issues as they were brought to the T-10 Deputy’s attention. The T-10 

judge advocate would then communicate with the judge advocate from the Texas 

National Guard on any issues that required legal coordination. The judge advocate from 

the Texas National Guard was in the same building as the T-10 judge advocate. Colocation of the T-10 judge advocate with the T-10 Deputy is more beneficial than being 

co-located with the judge advocate from the National Guard so long as effective 

communication and coordination still occur. 

29. Application of the Dual Status Commander Doctrine. During Hurricane Harvey, the 

Dual Status Commander was responsible for a robust compliment of both NG and T10 

forces. Texas, being vast in terms of size and capability of its NG forces, was only in 

need of some very specific T-10 capabilities (e.g., high water vehicles), and appeared to 

have very little difficulty assembling the National Guard forces it required to accomplish 
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most of the consequence management missions that arose. Moreover, this was a land 

operation with the Joint Force Land Component Commander in an operational control 

role of the T-10 forces and the Dual Status Commander in a tactical control role. The 

result was a doctrinally consistent approach to C2 throughout the joint operations area. 

Different from Hurricane Harvey, Hurricanes Maria and Irma resulted in the 

activation of three Dual Status Commanders. However, few T-10 units were under the 

tactical control of the Dual Status Commanders located in Florida and Puerto Rico. No 

T-10 units were under the tactical control of the Dual Status Commander in the U.S. 

Virgin Islands. Due to the relatively small size of the islands and their populations, 

coupled with the devastating and widespread damage to the infrastructure throughout the 

islands, the National Guards were challenged to assemble their forces expediently. In the 

U.S. Virgin Islands and Puerto Rico, a small fraction of the forces called to duty were 

able to report in the early days of the response. As a result, the response was delayed—at 

least to some extent—while the National Guard leadership attempted to establish 

communications, and accountability of personnel/equipment. This was further 

complicated by the remote locations of U.S. Virgin Islands and Puerto Rico, which also 

affected the ability for EMAC forces to arrive quickly.

Unlike in Hurricane Harvey in Texas, the response efforts to Hurricanes Irma and 

Maria in the U.S. Virgin Islands and Puerto Rico was initially led by the Joint Force 

Maritime Component Commander. NAVNORTH, as the component command 

responsible for DSCA operations, did not relinquish tactical control of the T-10 forces in 

the joint operations area to the Dual Status Commander. Instead, NAVNORTH relied on 

their ship’s staff—to include judge advocates—to meet their needs. As a result, support 

from U.S. Northern Command was not required since the Dual Status Commanders were 

not used.

While the 2012 NDAA states that the DSC concept should be the “usual and 

customary” course of action when the DoD engages in support of civil authorities, it may 

not always be the best or most appropriate command and control (C2) arrangement. The 

appropriateness of the C2 arrangement depends on the circumstances of the disaster in 

question. This is particularly true for OCONUS disasters where 1) members of the 

National Guard may be just as affected as the local population and 2) EMAC forces 

would not be as responsive as for a disaster as they would be in CONUS. While there 

may have been good reason to not place the T-10 forces under the C2 of the Dual Status 

Commanders in the hurricane response in the U.S. Virgin Islands and Puerto Rico, either 

the doctrine should change to be more flexible, NAVNORTH should be compelled to 

more closely follow doctrinal procedures, or NORTHCOM should consider more 

thoroughly whether a DSC is the appropriate C2 arrangement when the Joint Force 

Maritime Component Commander is the operational control authority, or a remote island

is the situs of a disaster response. In the event of policy deviation, appropriate 

coordination with Office of the Secretary of Defense should be made.
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APPENDIX B

DSCA AND NGCS CHECKLIST

I. DSCA Defined: Support provided by the DoD forces (when the Secretary of Defense, in 

coordination with the governors of the affected States, elects and requests to use those forces 

in a T-32 status) in response to requests for assistance from civil authorities for domestic 

emergencies, law enforcement support, and other domestic activities, or from qualifying 

entities for special events.

II.National Guard Civil Support (NGCS) Defined: Support provided by the National Guard 

while in a State Active Duty status or Title 32 status to civil authorities for domestic 

emergencies, designated law enforcement, and other activities. 

III. Command and Control (C2)

 DoD: In response to major disasters or emergencies, the Federal military is typically 

not in charge of the incident. Instead, when the DoD is engaged, it normally serves in a 

direct support role. A commander’s civilian counterpart is the Incident Commander 

(IC) or a member of the Unified Command. Unified command is an application of the 

National Incident Management System (NIMS)/Incident Command System (ICS) when 

there is more than one agency with incident jurisdiction or when incidents cross 

political jurisdictions. In the unified command, entities develop a common set of 

objectives and strategies, which provides the basis for a single incident action plan.

 National Guard: When members of the National Guard are serving in their State 

Active Duty (SAD) or Title 32 (T-32) statuses, C2 remains with the Governors of the 

respective States and territories. The exception is the District of Columbia (D.C.) 

because D.C. does not have a Governor. As such, C2 of the D.C. National Guard 

(DCNG) rests with the Secretary of Defense (SecDef). SecDef commands DCNG 

military operations through the Commanding General (a 2-star General Officer). The 

Commanding General works with and through the Adjutant General (TAG, a 1-star 

General Officer). If directed by the President as Commander-in-Chief, SecDef may 

order the DCNG under Title [4]9 of the District of Columbia Code to provide support to 

the civil authorities of the District of Columbia. (Executive Order 11485) Finally, 

when members of the National Guard are serving in their Title 10 (T-10) status, C2 

transfers to the Department of Defense with POTUS serving as Commander-in-Chief.

IV.Phase I: Assessment, Preparation, and Mobilization

 The Commanding General, or, in the case of the National Guard, The Adjutant General 

(TAG), will issue the operational order (OPORD) or operational plan (OPLAN).

 The OPORD/OPLAN has annexes. The judge advocate (JA) is to be involved with 

writing a portion of Annex C (operations) and Annex F (sustainment), and reviewing 

the base order. (AR 27-1; FM 1-04, FM 6-0, The Operational Law Handbook ch. 23 

(2017))

 Log into JAGCNET, go to academic departments in TJGALCS, and download the most 

recent desk or hand books for Fiscal Law, Contract Law, Domestic Operational Law, 
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Operational Law, and Administrative Law

 If you are in the National Guard, log into Guard Knowledge Online (GKO), search the 

site for “domestic operations.” Download any relevant and useful information.

 If serving in a T-10 status, create a tri-fold pamphlet from CJCSI 3121.01B, the 

Standing Rules for the Use of Force (SRUF). Brief everyone, including the commander, 

on the SRUF and provide everyone with a copy of the pamphlet before deployment.

 If serving under T-32 or SAD status, the Rules for the Use of Force (RUF) must align 

with the laws of the State or Territory. Draft or obtain a copy of the RUF. Coordinate 

with State agencies and ensure accuracy. Create a tri-fold pamphlet of the RUF. Brief 

everyone, including the commander, on the RUF and provide everyone with a copy of 

the pamphlet before deployment!

 Have available DoD Directive (DoDD) 3000.3, “Policy for Non-Lethal Weapons”; 

DoDD 5210.56, “Arming and the Use of Force”; DoDD 5240 1-R, “Activities of DoD 

Intelligence Components that Effect U.S. Persons”; DoDM 5240.01, “Procedures 

Governing the Conduct of DoD Intelligence Activities”; DoDD 5148.13, “Intelligence 

Oversight”; and the Current Chairman of the Joint Chiefs of Staff (CJCS) Standing 

DSCA Executive Order (EXORD)

 Review funding, demobilization, and entrance and exit strategies by component and 

duty status.

 Familiarize yourself with Federal Acquisition Regulation (FAR) Part 18, Emergency 

Acquisitions.

V.Phase II: Deployment

 For members of the National Guard serving in their State Active Duty (SAD) or T-32 

status, contact the Liaison Officer (LNO) at State Emergency Operations Center (EOC) 

and police headquarters to coordinate legal aspects of deployment. For personnel 

serving under T-10, including the National Guard when “Federalized,” make liaison 

with your counterpart who will be located with the Defense Coordinating Officer 

(DCO).

 For National Guard JAs, brief the forces arriving under the Emergency Management 

Assistance Compact (EMAC) agreements on the State/territory RUF. (if applicable)

 Stick close to the commander. Serve as a trusted resource. Maintain situational 

awareness of mission execution and ensure unit activities are consistent with the law.

 Be forward thinking. Be prepared to advise the SJA of the need for additional SJA 

personal or of the need to deploy additional personnel with the advance party. (if 

necessary)

 Ensure that all military personnel know their legal status (T-10, T-32, or SAD) and 

limits of their authorities. Brief the commander on the status of all personnel 

participating in the operation and advise of the significance thereof.

 Provide status reports to higher headquarters including, at a minimum the following: 1) 

Criminal incidents; 2) Disciplinary/administrative/prosecutorial actions; 3) Claims 

against the U.S. Government; 4) Number of personnel receiving legal assistance.

VI. Phase III: Support of Civil Authorities

 Continue to advise commanders and staff on legal matters.

 Verify that proposed Mission Assignments (MAs) are legally permissible, approved, 

and executed according to applicable references and restrictions.

 Ensure personnel involved in Military Support to Civilian Law Enforcement Agencies 

(MSCLEA) comply with the guidance and limitations found in the Posse Comitatus 
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Act, SRUF, and Intelligence Oversight rules and restrictions.

VII.Phase IV: Re-Deployment/Demobilization

 Clear all legal actions before re-deployment.

 Close all civil/military actions before re-deployment.

 Contact the Center for Law and Military Operations (CLAMO) at TJAGLCS to help 

prepare an After Action Report (AAR) and lessons learned. The general phone number 

for CLAMO is (434) 971-3145. CLAMO may also be contacted via NIPR at 

usarmy.pentagon.hqda-tjaglcs.mbx.clamotjaglcs@mail.mil and SIPR 

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APPENDIX C

THE ADJUTANTS GENERAL

In accordance with CNGBI 3000.04, The Adjutants General (TAGs) of the Several States

are the commanders, and in almost all cases, the ultimate authority for non-Federalized National 

Guard forces. TAGs are vital in the proper performance of and complete accounting for all civil 

support provided by the members of their State’s National Guard (NG). When operating in their 

State Active Duty (SAD) status, TAGs answer almost exclusively to the Governors, subject to 

property accountability, reimbursement standards and applicable State and Federal law. Federal

aspects of property accountability, reimbursement, and funding are managed through the United 

States Property and Fiscal Officer (USPFO) of each State. TAGs are key to ensuring the 

situational awareness needed by the National Guard Communication Center (NGCC) to enable 

the Chief of the National Guard Bureau (CNGB) to serve as an advisor to the Chairman of the 

Joint Chiefs of Staff on the non-Federalized NG. Additionally, TAGs must ensure adherence to 

applicable statutes and regulations as mandated. In certain States, the Adjutant General is not 

only the Chief Military Officer, but may serve as a Senior Executive in Emergency Services as 

well. It is imperative that TAGs authorized these types of responsibilities perform each duty 

singularly making sure to adhere to applicable standards when performing their NG related 

functions.

Some of the tasks performed by TAGs are as follows:

- Generally exercises the command authority of the Governor over State National Guard units 

and forces within their jurisdiction, in accordance with applicable State laws.

- Typically serves, in accordance with State law, as the principal advisor to the Governor on 

military matters.

- Directs and oversees the daily activities of the State National Guard in order to accomplish the 

statutory and regulatory functions assigned.

- Supports the CNGB who serves in an advisory role to senior leaders of the Department of 

Defense and other Federal agencies.

- Supports the Secretary of Defense and the CNGB in their requirement to prepare an annual plan 

for the military response to natural disasters, acts of terrorism, and other man-made disasters and 

terrorist by gathering and submitting required information from their respective State or territory.

- Supports the Secretary of Defense and the CNGB in preparing the Annual Report on National

Guard and Reserve Component Equipment and Quarterly Personnel and Unit Readiness reports.

- Maintains the training and readiness of their assigned forces to conduct all assigned State and 

Federal missions.

- Monitors the implementation of policy and ensures that all directed actions are completed in a 

timely manner.

- Revises existing State documents or develops implementing documents as necessary.

- Complies with the reporting requirements needed for civil support provided by the State’s 

National Guard.

- Prepares and submits plans for National Guard Domestic Operations (NGDO) as directed.

- Supports the CNGB who serves as the channel of communications between the several States 

and the Secretary of Defense on matters relating to the National Guard. 
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- Operates and maintains a Joint Operations Center (JOC) with the capability to receive and 

respond to classified messages.
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APPENDIX D

DUAL STATUS COMMANDERS

The statutory authority to appoint dual-status commanders (DSC) can be found in 32 

U.S.C. §§ 315, 325. Section 315 governs the detail of regular members of the Army and Air 

Force to duty with the National Guard whereas Section 325(a)(2) provides the authority for a 

National Guard officer to also serve as an active duty officer as well. Thus, a DSC is a 

commander who may, by law, serve in two statuses, Federal and State, simultaneously. In State 

status, the DSC is a member of the State chain of command, subject to the orders of the 

Governor and the Adjutant General (TAG) of the DSC’s State, and, on their behalf, exercises 

command of assigned State National Guard forces. In Federal status, the DSC is a member of 

the Federal chain of command, subject to the orders of the President, the Secretary of Defense, 

and the supported Combatant Commander (the Commander, U.S. Northern Command, when in 

the forty-eight contiguous States, Alaska, the District of Columbia, and the territories of Puerto 

Rico and the U.S. Virgin Islands; or the Commander, U.S. Pacific Command, when in Hawaii 

and the territory of Guam); and, on their behalf, exercises command of assigned Federal military 

forces. In simpler terms, a dual-status commander is responsible for performing two separate 

and distinct, but related, jobs with two separate and distinct teams for two separate and distinct 

bosses, all at the same time.

The intended benefit of appointing a DSC is to facilitate unity of effort between State 

National Guard forces, operating on behalf of a Governor, and Federal military forces, operating 

on behalf of the President, the Secretary of Defense, and the supported Combatant Commander 

in achieving common objectives in a disaster response or in securing a national event. Because 

the DSC receives orders from both the State and Federal chains of command, and commands 

State and Federal forces in the DSC’s separate and distinct statuses, the DSC may work with 

both the Adjutant General and the supported Combatant Commander to minimize any potential 

conflict between State and Federal orders. If a conflict cannot be resolved, the Secretary of 

Defense or the Governor retain the authority to terminate the DSC’s appointment and dual-status 

authorization. The DSC may also promote synchronization between the two separate chains of 

command to achieve common objectives more effectively and efficiently.

By law, only an officer of the Army National Guard or Air National Guard or a 

commissioned officer of the Regular Army or Regular Air Force may serve as a DSC. 

Consistent with a 2010 arrangement between the Secretary of Defense and the Council of 

Governors on behalf of the Governors of the States, officers will normally be considered as 

candidates to serve as a DSC only if they have completed specialized training and certification, 

which is jointly managed by the Commander, U.S. Northern Command, and the Chief, National 

Guard Bureau.

To establish a DSC, the Secretary of Defense, acting on the authority delegated to him by 

the President on April 14, 2011, enters into a memorandum of agreement (MOA) with the 

Governor of a State. This MOA establishes mutually acceptable terms for DSC appointment and 
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employment. To expedite appointment of DSCs, DoD has established standing MOAs with 51 

of the 54 States and territories.

Dual Status Commander Frequently Asked Questions

Question: May a commissioned officer of the U.S. Navy or U.S. Marine Corps be appointed to 

serve as a DSC?

Answer: No. Currently, the law permits only an officer of the Army National Guard or Air 

National Guard or a commissioned officer of the Regular Army or Regular Air Force to be 

appointed as a DSC.

Question: May an officer of the Army Reserve or Air Force Reserve be appointed to serve as a 

DSC?

Answer: No. Currently, the law permits only an officer of the Army National Guard or Air 

National Guard or a commissioned officer of the Regular Army or Regular Air Force to be 

appointed as a DSC.

Question: Is it usual and customary to appoint an officer of the Army National Guard or Air 

National Guard to serve as a DSC?

Answer: The selection of the best officer to be appointed to serve as a DSC is considered on a 

case-by-case basis and takes into account the unique circumstances and operational requirements 

of the disaster or event at hand.

Question: Who decides whether or not to appoint a DSC?

Answer: Whether to appoint a DSC is a mutual decision by the Secretary of Defense and the 

Governor of a State.

Question: In the case of a disaster that affects multiple States, may the Secretary of Defense and 

the Governors of the affected States appoint a single DSC to command all National Guard and 

Federal military forces responding to the disaster in each of the affected States?

Answer: No. Although Federal laws do not prohibit the appointment of a multi-state DSC, as a 

general matter, State laws do. To be appointed to serve as a multi-State DSC, an officer would 

have to hold a commission in the National Guard of each of the States in which the DSC would 

exercise command. Generally, State laws do not permit an officer of the National Guard of a 

State to hold a commission in another State at the same time. Therefore, a single DSC cannot be 

appointed to command all National Guard and Federal military forces responding to a disaster in 

multiple States. Instead, a separate DSC would have to be appointed to command in each of the 

affected States.

Question: Does the appointment of a DSC grant the Governor of a State the authority to give 

orders to Federal military forces or the President the authority to give orders to a State’s National 

Guard forces?

Answer: No. Consistent with the Constitution and laws of the United States, the Governor of a 

State has no authority to give orders to Federal military forces and, unless National Guard forces 
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are either called into Federal service or ordered to Federal active duty, the President has no 

authority to give orders to a State’s National Guard forces.

Question: How much discretionary authority does the DSC have to use National Guard and 

Federal military forces to carry out the separate orders of the Governor of a State (or the State’s 

Adjutant General) and the President (or Secretary of Defense or supported Combatant 

Commander)?

Answer: The DSC may only use State National Guard forces to carry out the orders of the 

Governor of a State (or the State’s Adjutant General). Likewise, the DSC may only use Federal

military forces to carry out the orders of the President (or Secretary of Defense or supported 

Combatant Commander).

Question: May the Governor of a State use a DSC to request additional DoD forces or 

equipment?

Answer: No. The appointment of a DSC does not change the procedures pertaining to the 

Governor of a State's requests for Federal assistance, including DoD assistance. Consistent with 

current laws and procedures, the Governor of a State requests Federal assistance from the 

primary Federal agency (e.g., the Federal Emergency Management Agency for disaster 

responses, U.S. Customs and Border Protection for border security, the U.S. Secret Service for 

national special security events, and the Department of Health and Human Services for public 

health emergencies).

Question: May the President (or the Secretary of Defense) use a DSC to Federalize the National 

Guard or authorize National Guard duty in a title 32 status?

Answer: No. Current law and policies do not permit the use of a DSC to Federalize the 

National Guard or authorize National Guard duty in a title 32, U.S. Code, status. 

Question: May the Governor of a State use a DSC to request additional DoD forces or 

equipment?

Answer: No. The appointment of a DSC does not change the procedures pertaining to the 

Governor of a State's requests for Federal assistance, including DoD assistance. Consistent with 

current laws and procedures, the Governor of a State requests Federal assistance from the 

primary Federal agency (e.g., the Federal Emergency Management Agency for disaster 

responses, U.S. Customs and Border Protection for border security, the U.S. Secret Service for 

national special security events, and the Department of Health and Human Services for public 

health emergencies).
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APPENDIX E
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APPENDIX F
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APPENDIX G

JOINT RECEPTION, STAGING, ONWARD MOVEMENT, AND 

INTEGRATION (JRSOI)
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APPENDIX H
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APPENDIX I
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APPENDIX J

ADDITIONAL ARMY NATIONAL GUARD TRAINING UNDER 32 U.S.C. 

§ 502(f)(1)
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APPENDIX K

SECURITY AND LAW ENFORCEMENT AUTHORITIES
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APPENDIX L

EMERGENCY SUPPORT FUNCTION #13 ACTIVATION FOR 

HURRICANE HARVEY

(FEMA REGION VI)
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APPENDIX M
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ANNEX N
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APPENDIX O

DISTRICT OF COLUMBIA NATIONAL GUARD

Note: This paper was modified from the material submitted by Mr. Robert Gonzales from the 

Office of the Staff Judge Advocate, ARNORTH.

References.

a. Title 10 United States Code §§ 331-335, Insurrection Act 

b. Title 10 United States Code §§ 12301-12304, Reserve Component

c. Title 10 United States Code § 12406, National Guard in Federal Service

d. Title 18 United States Code § 1385, Use of Army and Air Force as Posse Comitatus

e. Title 32 United States Code § 502(d)(3), Required Drills and Field Exercises

f. District of Columbia Code Title 5 § 5-129.03

g. District of Columbia Code Title 7 § 7-2331

h. District of Columbia Code Title 49 §§ 49-301, 49-304, 49-404, 49-409

i. Executive Order (E.O.) 11485, dated 1 October 1969

j. Secretary of Defense Memorandum, Subject: Supervision and Control of the National 

Guard of the District of Columbia, dated 10 October 1969

k. B-176491 July 17, 1972, 52 Comptroller General 35

l. NORAD/NORTHCOM Instruction 10-127, Support to Dual-Status Commander Led 

Joint Task Force, 13 October 2015

m. National Guard Domestic Operations Manual, 20 May 2008

History and Mission. In 1802, the Congress of the United States enacted legislation officially 

establishing the District of Columbia (D.C.) Militia, which today is known as the D.C. National 

Guard (DCNG). The mission of the DCNG is to protect life, property, and the interests of the 

District of Columbia during civil emergencies; to provide ceremonial support on national 

occasions (e.g., State funerals, inaugurations, and parades); and, when Federalized, to serve as an 

integral component of the Nation's military forces. The DC Army National Guard is composed 

of the 74th Troop Command, the 260th Regiment Regional Training Institute (Officer Candidate 

School), the 1-224th Aviation Security and Support Battalion, the 1-126th General Support 

Aviation Battalion, the 257th Army Band, the Mobilization Augmentation Command (MAC), 

District of Columbia Medical Command, Detachment 4 Operational Support Airlift Command, 

and the Recruiting and Retention Battalion. The 33rd Weapons of Mass Destruction Civil 

Support Team, a joint Army and Air unit, is able to deploy rapidly to any incident in the District 

of Columbia, or local area, and assist local first-responders in determining the nature of an 

attack, provide medical and technical advice, and pave the way for the identification and arrival 

of follow-on State and Federal military response assets. 

The Air National Guard, 113th Wing's primary mission is training of air combat and 

operational airlift crews for national defense. Because the District of Columbia lacks an 

installation with a runway, all of the DC Air Guard units, except for those elements supporting 

JFHQ, are located at Andrews Air Force Base, MD, the home of DC Air Guard units since 1946. 
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Specifically, the 113th Wing provides a 24/7 ready response force of F-16 fighters for the 

defense of the National Capital Region through its Air Sovereignty Alert mission. The unit was 

not designated as an Air Sovereignty Alert force for the NCR until September 11, 2001. On that 

day, the 113th Wing fighters were among the first to be overhead the Nation’s Capital, and have 

been since. The wing’s 201st Airlift Squadron, also based at Andrews AFB, has a unique mission 

within the Air National Guard. With its C-38 Astra and C-40 Boeing 737 aircraft, the unit’s 

mission is to fly members of Congress, high-ranking civilian leaders and Defense Department 

officials around the globe. Members of Congress frequently fly with the 201st as do other leaders 

in Washington. Other DCANG units include the 121st Fighter Squadron and the 231st Combat 

Communications Squadron.

Command and Control. In accordance with (IAW) D.C. Code Title 49 § 49-409 passed by 

Congress, the President of the United States is at all times the Commander-in-Chief of the 

DCNG. Executive Order (E.O.) 11485, dated 1 October 1969, delegated presidential authority 

to command, supervise, administer, and control the DCNG to the Secretary of Defense (SecDef). 

By Reference j, the SecDef further delegated this authority, as it pertains to the D.C. Army 

National Guard (DCARNG) to the Secretary of the Army, and as it pertains to the D.C. Air 

National Guard (DCANG) to the Secretary of the Air Force. Both Secretaries may, but have not, 

further delegated this authority to their respective Assistant Secretary for Manpower and Reserve 

Affairs. As an exception to this delegation of authority, whenever any part of the DCNG, be it 

the DCARNG or DCANG, is used to support civil authorities, the Secretary of the Army 

commands and controls the DCNG. 

Commanding General. In accordance with E.O. 11485 and D.C. Code Title 49 § 49-301, 

command of DCNG military operations is exercised through the Commanding General of the 

DCNG rather than through an Adjutant General as is the practice in all of the States and 

Territories. The Commanding General of the DCNG is appointed by the President. An officer 

appointed to serve as the Commanding General must be Federally recognized by the Senate in a 

general officer grade to so serve. 

Adjutant General. In accordance with D.C. Code Title 49 §§ 49-304, an Adjutant General may 

also be assigned by the President. The Adjutant General is subordinate to and subject to the 

orders of the Commanding General. 

Requests for Civil Support. The Mayor of the District of Columbia has no formal command 

authority over the DCNG. D.C. Code Title 49 § 103, provides that the Mayor, or the United 

States Marshal for the District of Columbia, or the National Capital Service Director, may 

request the President for assistance. As a matter of practice, though, whenever any of these three 

officials desires civil support from the DCNG, a request is submitted to the Commanding 

General of the DCNG, who notifies the Secretary of the Army. Pursuant to E.O. 11485, the law 

enforcement policies to be used by DCNG military forces when aiding the civil authorities of the 

District are established after consultation between the Department of Defense and the Attorney 

General. The following seven steps set forth the process employed in considering a request by 

civil authority for assistance (although simplified into seven steps, this process involves 

coordination with numerous intra-Pentagon offices and the Department of Justice): 
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Step 1. The Mayor, or United States Marshal for the District of Columbia, or the National 

Capital Service Director, determines there exists a potential requirement for DCNG 

support or an emergency requiring support and submits a written request for such to the 

Commanding General, DCNG;

Step 2. The Commanding General, DCNG, notifies the Secretary of the Army of the 

request and advises the Secretary as to whether the DCNG is capable of providing all or 

part of the support requested and whether such support is appropriate;

Step 3. The Secretary of the Army consults with his Army General Counsel and the 

Attorney General on the extent of support to be rendered;

Step 4. The Attorney General advises the Secretary of the Army on alternatives;

Step 5. The Attorney General and the Secretary of the Army establish mission parameters 

and the law enforcement policies to be employed by the DCNG in providing support;

Step 6. The Secretary of the Army makes the mission decision; and,

Step 7. The Commanding General, DCNG, advises the District’s civil authorities of 

Secretary of the Army’s decision.

In his advice to the SecDef and the Secretary of the Army regarding employment of the 

DCNG in support of civil authority, the Attorney General routinely refers to D.C. Code Title 49 

§ 49-404, as authority for the DCNG to aid civil authority in its status as a subset of the enrolled 

militia as defined by the D.C. Code.

Duty Status. The DCNG performs all missions in either a Title 10 or Title 32 status. 

Title 49 of the D.C. Code. Title 49 implements the District of Columbia Militia Act of 1889. It 

authorizes the three officials identified above to request the President to order out the militia to 

aid the civil authorities in suppressing a public disturbance. When the DCNG is mobilized under 

these circumstances it acts in a “militia status” on behalf of the District. Although this Title 49 

duty status is similar to State Active Duty (SAD) status, it has never been used because the 

Congress, until recently, has never provided funds in the D.C. budget to pay DCNG personnel 

serving in this status. Although the D.C. Act 16-389 (June 2, 2006), “Fiscal Year 2007 Budget 

Request Act” provided funds, the current D.C. Code is functionally obsolete in that it does not 

provide a mechanism to pay DCNG personnel for duty, or to reimburse expenses, or to provide 

any coverage for injury, death, or disability while in a Title 49 duty status.

Title 32 of the U.S. Code. Historically, the DCNG has always provided civil support to the 

District in a Title 32 training status. The Secretary of the Army has broad authority to determine 

what constitutes appropriate “training” for credit and compensation under Title 32 U.S.C. § 

502(d)(3). In his role of rendering decisions on questions involving the use of, and 

accountability for, public funds, the Comptroller General has previously opined in 52 Comp Gen 

35 (1972) that in view of the Secretary’s broad discretion in this regard, there would be no 

objection should the Secretary consider as annual training under Title 32, a State’s use of the 

National Guard for disaster relief. The Comptroller General’s opinion suggests, however, that 

the Secretary must first determine that the duty in question constitutes proper and adequate 
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training for the units involved. These same criteria may be applied in assessing whether the 

duties to be performed by members of the DCNG in support of the civil authority constitutes 

proper and adequate training, such that the execution of such duties in a Title 32 status and the 

payment of participating guardsmen from Title 32 appropriated funds, is appropriate. The fact 

that the DCNG’s performance of such a “training” mission produces a collateral “operational” 

benefit does not, in itself, render the mission objectionable.

Title 5 of the D.C. Code. Whenever service in a Title 32 status in support of the District civil 

authority may involve the exercise of law enforcement-like functions, the Secretary of the Army 

and the Attorney General consent to the providing of such support is subject to the Mayor’s 

designation of members of the DCNG as “special privates” pursuant to D.C. Code Title 5 § 5-

129.03. This provision of the law allows the Mayor, upon “any emergency of riot, pestilence, 

invasion, insurrection, or during any day of public election, ceremony, or celebration” to appoint 

from among the citizens “special privates without pay;” who while so serving possess the powers 

and privileges, and perform the duties of a District of Columbia Metropolitan Police Officer. 

When performing such duties, DCNG personnel wear an emblem authorized by the Mayor, 

which is a special brassard. Title 32 orders issued to DCNG personnel include authority to act 

under the provisions of Title 5 of the D.C. Code. Although they have “special private” status, 

DCNG Guardsmen remain under the command and control of their superior military officers at 

all times. However, with a view towards maximizing unity of effort, the Commanding General 

of the DCNG and the Chief of the District of Columbia Metropolitan Police Department 

coordinate their respective command structures and personnel.

Title 10 of the U.S. Code. Pursuant to Title 10 U.S.C. § 12302, the DCNG has been Federalized 

in support of operations such as Operations Desert Storm, Desert Shield, Enduring Freedom, 

Iraqi Freedom, and Noble Eagle. In addition, pursuant to Title 10 U.S.C. § 12406, the President 

may call the Army and Air National Guard into active Federal service whenever there is a 

rebellion or danger of a rebellion against the authority of the Government of the United States or 

whenever the President is unable, with the regular forces, to execute the laws of the United 

States. The President may also call the National Guard into active Federal service pursuant to 

the Insurrection Statutes, Title 10 U.S.C. §§ 331-335. The Insurrection Act was employed to 

order the DCNG into active Federal service to complement Federal troops deployed to quell the 

disorder associated with the rioting in the District that ensued after the death of Dr. Martin 

Luther King in April 1968. 

Posse Comitatus Act (PCA) Application. Although the chain-of-command of the DCNG, 

whether operating in a Title 10 or Title 32 status, always runs through the Department of 

Defense to the President, the applicability of the proscriptions of the PCA, depends on the status 

of each individual DCNG service member and his chain-of-command within the DCNG. If the 

service member and his DCNG chain of command are serving in a Title 10 status, they are 

considered part of the “Army or Air Force” for PCA purposes and are subject to the PCA’s 

prohibition on participation in the enforcement of civil laws. On the other hand, if the service 

member and his DCNG chain of command are in a Title 32 status, they are not considered part of 

the “Army or Air Force” and thus are not subject to PCA restrictions. 
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Intelligence Oversight Application. Whether in a Title 10 or Title 32 status, all members of the 

DCNG must comply with all Department of Defense and National Guard policies pertaining to 

the collection and transmission of information on U.S. persons and with all other Federal

intelligence oversight provisions. 

Emergency Management Assistance Compact (EMAC). The District of Columbia enacted 

EMAC legislation in the Omnibus Anti-Terrorism Act of 2002, effective October 17, 2002, D.C. 

Law 14-194, D.C. Code §§ 7-2331 et seq. (2005 Supp.). The Mayor triggers the EMAC by 

declaring an emergency in the District. However, the EMAC does not authorize the Mayor to 

call out or activate the DCNG. Normally, all State National Guard assistance under EMAC is 

provided in a SAD status, unless the SecDef approves Title 32 status. Because the DCNG does 

not have a working SAD or equivalent status, whenever it leaves the District to perform a 

mission under EMAC, it must do so in a Title 32 status, with a view towards performing training 

that comports with the service member’s Military Occupational Specialty (MOS) or Air Force 

Specialty Code (AFSC), and subject to the prior approval of the Secretary of the Army. 

Furthermore, DCNG support pursuant to EMAC has traditionally been provided pursuant to a 

Memorandum of Understanding (MOU) with the supported States. Currently, DCNG maintains 

EMAC MOU’s with States in Federal Emergency Management Agency (FEMA) Region III: 

Delaware, Maryland, Pennsylvania, Virginia, and West Virginia. 

Civil Support Team. The 33rd Civil Support Team (CST) is a component of the Army National 

Guard element of the DCNG. The 22 members of the DCNG CST serve in full-time Title 32 

Army Guard Reserve (AGR) status. The DCNG CST is fully operational and was certified by 

the SecDef on 6 April 2007. 

Dual Status Commander. IAW the National Guard Domestic Operations Manual, dated 20 

May 2008, and NORAD/NORTHCOM Instruction 10-127, dated 13 October 2015, the SecDef 

may authorize and the Commanding General of the District of Columbia National Guard may 

consent to a District of Columbia National Guard officer or an active duty Regular Army or Air 

Force officer to serve in both a Federal and district status as a dual status commander.

Request for a Stafford Act Declaration. In lieu of a governor, the mayor of DC may request 

the President to issue a major disaster declaration or an emergency declaration under the Robert 

T. Stafford Disaster Relief and Emergency Assistance Act.
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APPENDIX P

DSCA SIMPLIFIED

Note: This information was modified from the material submitted by Mr. Robert Gonzales from 

the Office of the Staff Judge Advocate, ARNORTH.

The National Response Framework provides the Local-State-Federal response sequence. The 

legal basis for this National Response Doctrine is the Tenth Amendment to the Constitution. As 

a general rule, the Federal Government must wait for Local/State officials to request Federal

assistance. When Federal assistance includes Department of Defense (DOD) participation, such 

involvement must be exercised under proper authority.

I. PRESIDENTIAL AUTHORITY

1. Although the President has the Constitutional and inherent authority to direct DOD to perform 

DSCA missions, he relies primarily on his statutory authority under the Robert T. Stafford 

Disaster Relief and Emergency Assistance Act of 1988. There are five ways he may exercise 

this statutory authority. 

 a. Major Disaster Declaration: issued in response to a request from a Governor for a natural 

catastrophe or any catastrophe as a result of a fire, flood, or explosion.

 b. Emergency Declaration (State): issued in response to a request from a Governor for any 

occasion where Federal assistance is needed to save lives, protect public health or property, or 

lessen the threat of a catastrophe. 

 c. Emergency Declaration (Federal): issued by the President unilaterally for an emergency 

that primarily involves a Federal function, property, or personnel.

 d. Accelerated Federal Assistance and Support Authority: post-declaration unilateral 

assistance by the President to save lives, prevent human suffering, or mitigate severe damage.

 e. DOD Emergency Work Authority: pre-declaration assistance exercised in response to a 

request from a Governor, but only for DOD support to perform “emergency work” for a period 

not to exceed 10 days.

2. When the President issues a declaration, it will identify the counties covered and initiate the 

FEMA Action Request Form (ARF)/Mission Assignment (MA) process for Federal agencies, 

including DOD, to provide assistance.

II. SECRETARY OF DEFENSE AUTHORITY

The Secretary of Defense (SECDEF) is the authority to approve all DSCA ARFs, including those 

from FEMA. He has delegated some authority to the Assistant Secretary of Defense for 

Homeland Defense and Global Security (ASD (HD/GS)) (DODD 5111.13), Combatant 

Commanders (CCDR) (DSCA EXORD, 071415Z Jun 13), and military commanders and 

responsible civilian officials of DOD agencies (DODD 3025.18) as follows: 

1. Immediate Response Authority (IRA) (DODD 3025.18: In response to a request from a civil 

authority, under imminently serious conditions when time does not permit obtaining approval 
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from the SECDEF or his designee, military commanders and DOD civilian officials may take 

immediate action to save lives, prevent human suffering, or mitigate great property damage. 

a. Any person directing a response under IRA must “immediately” notify the National Joint 

Operations and Intelligence Center (NJOIC) of the details of the response at

njoic.battlecaptain@js.pentagon.mil or 703-692-4595. For Army and Navy units, this means 

within two hours of the decision to provide assistance.

b. Reassessment of continued IRA must be done NLT the 72-hour point after the request was 

received to determine if further assistance is needed. 

c. IRA will not be delayed or denied because of inability of the requester to reimburse DOD.

d. IRA does not authorize DOD forces to perform law enforcement functions.

2. Mutual Aid Agreements (MAA) (DODI 6055.06): Commanders may execute MAA’s with 

the local community for emergency fire, medical, hazmat, and rescue services and personnel (see 

also DODI 6055.17). 

III. DSCA VALIDATION CRITERIA

All DSCA requests will be evaluated by DOD approving/ recommending officials using the 

following six CARRLL validation criteria (DODD 3025.18). 

1. Cost: How much will DOD assistance cost? Who will reimburse DOD for the assistance it 

provides?

2. Appropriateness: Is DOD the best option? Is another Federal agency or commercial 

enterprise better suited than DOD to provide the assistance? 

3. Risk: What are the potential health and safety risks to DOD forces? Can they be mitigated?

4. Readiness: Will the assistance have an adverse impact on a unit’s readiness, training, or 

deployment mission?

5. Legality: Can the assistance be provided IAW the law? If prohibited, is there a legal 

exception?

6. Lethality: Is there any potential for the use of lethal force by or against DOD forces? Will the 

SECDEF authorize the carrying of weapons?

IV. ARMING AUTHORITY

1. DOD personnel are not authorized to carry individual service weapons during a DSCA 

mission unless authorized by the SECDEF or by DODD 5210.56.

2. When the SECDEF authorizes the carrying of weapons, the CCDR retains the authority to 

establish and control the arming level/weapons status policy. 
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V. POSSE COMITATUS ACT (PCA)

(Title 10 USC 1385)

1. The major limitation on the DSCA authorities described above is the PCA. The PCA (and 

Encl 3 to DODI 3025.21) prohibits active duty members of the Army, Air Force, Navy, and 

Marine Corps from performing law enforcement functions, unless expressly authorized by the 

Constitution or an Act of Congress. 

2. The PCA prohibitions also apply to members of the Reserves and National Guard personnel 

when in an active duty (Title 10) status, and civilian and contract personnel under the command 

and control of a Title 10 officer.

3. The PCA prohibition does not apply to members of the National Guard when in a non-Federal

status, either State Active Duty (SAD) or Title 32. It also does not apply to members of the 

Coast Guard at any time or to any service member when acting in his/her private capacity.

4. The types of direct/active law enforcement functions the PCA prohibits are: arrest, 

apprehension, search, seizure, surveillance, security patrols, traffic control, crowd control, riot 

control, evidence collection, interrogation, acting as an undercover agent, and any other activity 

where civilians are subjected to military authority that is regulatory, proscriptive, or compulsory. 

VI. CONSTITUTIONAL AND ACT OF CONGRESS EXCEPTIONS TO 

THE PCA

1. The Constitutional exception to the PCA resides with the President when he determines DOD 

forces are needed to perform law enforcement functions in order to fulfill his obligations under 

Article II of the Constitution to respond promptly in time of war, insurrection, or other serious 

national emergency. He could exercise this Constitutional exception by issuing a(n):

a. National Emergency Declaration. 

b. Martial Law Proclamation.

c. Executive Order to protect Federal property, functions, or personnel, or conduct 

homeland defense ops.

2. There are at least twenty-five Acts of Congress that create exceptions to the PCA. The five 

primary ones are:

a. Military Support for Civilian Law Enforcement Agencies (Title 10 USC 371-382) 

allows the SECDEF or designated Secretary (Encl 3 to DODI 3025.21) to approve 

indirect, passive support to civilian law enforcement authorities, such as providing 

information concerning a violation of State or Federal laws, loaning military equipment, 

providing personnel to operate and/or maintain the loaned equipment, and providing 

basic training or expert advice. 

b. Military Purpose Doctrine (Title 10 USC 375) allows DOD forces who are performing 

a military function to provide an “incidental” benefit to law enforcement authorities as 

well, such as a security patrol on a DOD-controlled area located off-post to protect DOD

equipment and property that also serves as a deterrent to any criminal activity in the area.

c. Insurrection Statutes (Title 10 USC 331-334) allows the President to use DOD forces

to restore law and order in a State under three circumstances: (1) insurrection against a 

State Government when requested by the State Legislature or, if not in session, the State 

Governor. (2) rebellion against the US Government that makes it impracticable to 
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enforce US laws by judicial proceedings. (3) domestic violence that hinders the 

execution of Federal or State laws that protect individual Constitutional rights and the 

State is either unable or refuses to provide protection.

d. Emergency Situations Involving WMD (Title 10 USC 382) allows the SECDEF and 

Attorney General (AG) to jointly determine an emergency exists and then allows the 

SECDEF to provide DOD forces to only the AG to detect, disable, dispose of any type of 

WMD and to perform law enforcement functions when necessary for the immediate 

protection of human life and civilian law enforcement authorities are not capable of 

taking action.

e. Prohibited Transactions Involving Nuclear Materials (Title 18 USC 831) allows the 

SECDEF and AG to jointly determine an emergency exists and then allows the SECDEF 

to provide DOD forces to only the AG to perform certain law enforcement functions to 

prevent the unlawful possession, transfer, use, disposal, or dispersal of nuclear material.

VII. USE OF INCIDENT AWARENESS AND ASSESSMENT (IAA) 

ASSETS

1. Commanders may request CCDR approval for the use of intelligence capabilities for nonintelligence purposes in support of DSCA activities. The following seven IAA capabilities have

been pre-approved by the SECDEF for DSCA uses: (a) situational awareness, (b) damage 

assessment, (c) evacuation monitoring, (d) search and rescue, (e) CBRNE assessment, (f) 

hydrographic survey, and (g) dynamic ground coordination.

2. Any request for imagery products requires compliance with NORAD and NORTHCOM 

Instruction 14-3. 

3. Requests must include either a Proper Use Memorandum (PUM) or Domestic Imagery Legal 

Review (DILR) and be submitted thru G2 channels to NC-J23M. 

VIII. UNMANNED AIRCRAFT SYSTEMS (UAS)

SecDef approval is required for all domestic use of UAS (including by the National Guard), 

except for search and rescue (SAR) missions involving potential loss of life that may be

approved by a Combatant Commander. 

IX. ECONOMY ACT (Title 31 USC 1535)

1. When there is no Presidential declaration under the Stafford Act, the Economy Act is the 

authority for one Federal agency to request assistance from another Federal agency on a 

reimbursable basis. 

2. Reimbursement under the Economy Act is for “total” costs. Reimbursement under the 

Stafford Act is for “incremental” costs (para. C.9.3.3 of DOD 3025.1M).

3. The Economy Act is also the basis for the statement “Federal agencies will not compete with 

commercial businesses.” Actually, a Federal agency should not compete with a business that can 

provide goods and services more economically or conveniently. 
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X. DUAL STATUS COMMANDER (DSC)

1. Title 32 USC 325 allows a National Guard (NG) officer to serve and command in both a 

Federal and non-Federal status in order to provide unity of effort and a common operating 

picture for both chains of command in a JTF.

2. An active duty Title 10 officer may also be designated a DSC under Title 32 USC 315. The 

SECDEF must approve a Title 10 officer to accept a commission offered by a Governor into 

his/her State NG.

3. IAW the NDAA FY12, a DSC should be the usual and customary C2 arrangement when 

Federal and State forces are employed simultaneously for a DSCA event.

4. The President delegated his full DSC approval authority to the SECDEF. The Governor of 

the designated NG officer must consent.

5. The DSC serves both the President and the Governor, but not simultaneously. He holds two 

hats, a Federal hat and a non-Federal hat, one in each hand, but he wears only one hat at a time. 

See NC Instruction 10-127.

XI. EMERGENCY MANAGEMENT ASSISTANCE COMPACT (EMAC)

1. EMAC is a non-binding agreement by its member States to assist one another to manage a 

disaster or an emergency after the Governor of the affected State has issued a State of 

Emergency Declaration.

2. All 50 States, the District of Columbia, Puerto Rico, Guam and the Virgin Islands are 

members of EMAC.

3. EMAC does not authorize the use of armed National Guard forces from one State to perform 

civil disturbance and law enforcement operations in another State. This type of assistance may

be accomplished through a Memorandum of Understanding signed by the Governors. 4. The 

MOU should cover command relationship, immunity, arming level policy, law enforcement 

authority, and the State Rules for the Use of Force (RUF). 

XII. STANDING RULES FOR USE OF FORCE (SRUF)

1. The SECDEF-approved SRUF are in Enclosures L and N to CJCSI 3121.01B, 13 June 2005, 

and applies to all Title 10 forces performing any type of DSCA and land homeland defense 

mission on US territory.

2. Commanders have a responsibility to teach and train the SRUF. Units should not deploy 

from home station until personnel are briefed on the SRUF and provided with an SRUF card or 

brochure. 
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APPENDIX Q

SRUF SIMPLIFIED

Note: This information was modified from the material submitted by Mr. Robert Gonzales from 

the Office of the Staff Judge Advocate, ARNORTH.

The SECDEF has approved the following SRUF for use in all DSCA and homeland defense 

operations. Commanders at all levels have the responsibility to teach and train on these rules. 

Units will be briefed on these rules prior to deployment from home station for any DSCA or 

homeland defense mission.

RULE 1: LIMITATIONS ON THE USE OF FORCE

A SOLDIER will use force of any kind only as a last resort and, if used, the force should be the 

minimum necessary to control the situation, to accomplish the mission, or in self-defense or 

defense of others/property.

Rule 1.1: Reasonable - Any use of force must be reasonable in intensity, duration, and 

magnitude to counter the threat based on all of the circumstances.

Rule 1.2: Safety - Exercise due regard for the safety of innocent bystanders when using any type 

of force.

Rule 1.3: Warning Shots - Warning shots are NOT authorized.

RULE 2: DE-ESCALATION

When time and circumstances permit, a SOLDIER will give a threatening force warnings and an 

opportunity to withdraw or stop the threatening actions before using force.

Rule 2.1: Avoid Confrontation - Avoid confrontation with individuals who pose no threat to the 

unit, to non-DOD persons in the vicinity, or property secured by DOD forces.

Rule 2.2: Notify CLEA - Increase self-defense posture and notify civilian law enforcement 

authorities (CLEA) or security agency personnel as soon as practicable if confrontation appears 

likely, civilians are acting in a suspicious manner, or immediately after a confrontation.

RULE 3: INDIVIDUAL SELF-DEFENSE

A SOLDIER may exercise individual self-defense in response to a hostile act or demonstrated 

hostile intent.
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Rule 3.1: Limit on Self-Defense - A COMMANDER may limit individual self-defense by 

members of his unit.

RULE 4: UNIT SELF-DEFENSE

A COMMANDER always has the inherent right and obligation to exercise unit self-defense in 

response to a hostile act or demonstrated hostile intent. Hostile act is an attack or other use of 

force against the US, US forces or other designated persons or property. Hostile intent is the 

threat of imminent use of force against the US, US forces or other designated persons or 

property. Both also include either force used directly or the threat of force, respectively, to 

preclude or impede the mission and/or duties of US forces, including the recovery of US 

personnel or vital USG property.

RULE 5: USE OF NON-DEADLY FORCE

A SOLDIER may use non-deadly force to stop a threat and it is reasonably necessary:

to control a situation and accomplish the mission,

to provide protection for himself and other DOD personnel,

to defend non-DOD persons in the vicinity, but only IF directly related to the assigned

mission, or

to defend designated protected property.

RULE 6: USE OF DEADLY FORCE IN SELF-DEFENSE, DEFENSE OF 

OTHERS, AND DEFENSE OF DESIGNATED PROPERTY

A SOLDIER may use deadly force only when all lesser means have failed or cannot reasonably 

be employed AND it reasonably appears necessary:

to protect DOD forces when a commander reasonably believes a person poses an 

imminent threat of death or serious bodily harm,

to protect yourself and other DOD forces from the imminent threat of death or serious 

bodily harm,

to protect non-DOD persons in the vicinity from the imminent threat of death or serious 

bodily harm, but only IF directly related to the assigned mission,

to prevent the actual theft or sabotage of assets vital to national security or inherently 

dangerous property, and

to prevent the sabotage of a national critical infrastructure.

 

Rule 6.1: Use of Deadly Force NOT Authorized – Deadly force is not authorized to disperse a 

crowd, to stop looting, to enforce a curfew, or to protect non-designated property.

RULE 7: USE OF DEADLY FORCE AGAINST A SERIOUS OFFENSE

A SOLDIER may use deadly force, but only IF it is directly related to the assigned mission AND 

it reasonably appears necessary:
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to prevent a serious crime against any person that involves imminent threat of death or 

serious bodily harm (murder, armed robbery, aggravated assault or arson),

to prevent the escape of a prisoner where probable cause indicates he has committed or 

attempted to commit a serious offense and would pose an imminent threat of death or 

serious bodily harm to DOD forces or others in the vicinity,

to arrest or apprehend a person who, there is probable cause to believe, has committed a 

serious offense that involved imminent threat of death or serious bodily harm.

RULE 8: USE OF DEADLY FORCE AGAINST A VEHICULAR THREAT

A SOLDIER may fire his weapon at a moving land or water vehicle when he reasonably believes 

the vehicle poses an imminent threat of death or serious bodily harm to DOD forces or to nonDOD persons in the vicinity, but only IF doing so is directly related to the assigned mission. 

RULE 9: INSPECTION OF PERSONNEL ENTERING AND EXITING 

AREA

A SOLDIER may inspect individuals and property, per command security guidance, prior to 

granting that person or property entry inside a DOD perimeter or secured area and upon leaving 

such an area.

 Rule 9.1: Denied Access - An individual or property that does not meet the command 

security requirements for entry may be denied access inside a DOD perimeter or secured area. 

 

RULE 10: TEMPORARY DETENTION OF THREATENING PERSONNEL

A SOLDIER may temporarily detain an individual:

who has gained unauthorized access inside perimeters or other secured areas,

who refuses to depart such an area after being denied access,

who otherwise threatens the safety and security of DOD forces, property secured by DOD 

forces, or non-DOD persons in the vicinity but only IF their defense is directly related to 

the assigned mission. 

Rule 10.1: Search - Detained individuals, vehicles, and property may be searched as a force 

protection measure.

Rule 10.2: Released to CLEA - Detained individuals and any secured property will be released 

to CLEA at the earliest opportunity consistent with mission accomplishment.

RULE 11: PURSUIT AND RECOVERY OF STOLEN PROPERTY

A SOLDIER may pursue and recover stolen assets vital to national security or inherently 

dangerous property if: CLEA or security forces are not reasonably available to recover them, 
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and Commander, USNORTHCOM, has pre-authorized the pursue and recovery mission, and the 

pursuit is immediate, continuous, and uninterrupted.

Rule 11.1: Contact CLEA - DOD forces will contact CLEA as soon as practicable to inform 

them of the theft/pursuit.

RULE 12: REPORT VIOLATIONS OF THE SRUF

A SOLDIER will IMMEDIATELY report any violation of or non-compliance with the SRUF to 

the chain of command, Inspector General, Judge Advocate, Chaplain, or any commissioned 

officer with information concerning who, what, when, where, and why. 

Commander’s SRUF Responsibilities

RULE 1: TEACH AND TRAIN

A COMMANDER must teach, train, and implement the SRUF to his Soldiers prior to 

deployment from home station for any mission.

RULE 2: UNIT SELF-DEFENSE

A COMMANDER retains the inherent right and obligation of unit self-defense and defense of 

other DOD forces in the vicinity in response to a hostile act or demonstrated hostile intent.

RULE 3: INDIVIDUAL SELF-DEFENSE

A COMMANDER may limit the right of individual self-defense. 

RULE 4: COORDINATE SRUF

A COMMANDER will coordinate the SRUF with civilian law enforcement authorities (CLEA) 

or contract security forces when operating in conjunction with them to ensure a common 

understanding. Any RUF issues that cannot be resolved will be forwarded to the SECDEF thru 

the chain of command and CJCS. 

RULE 5: IMMINENT THREAT

A COMMANDER will determine if a threat of death or serious bodily harm by an individual or 

motor vehicle is imminent based on an assessment of all the circumstances. If he determines 

such a threat is imminent, deadly force is authorized to stop the threat.
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RULE 6: INHERENTLY DANGEROUS PROPERTY

A COMMANDER may designate DOD property or property having a DOD connection as 

inherently dangerous. This includes weapons, ammunition, explosives, portable missiles, 

rockets, chemical agents, and special nuclear materials.

RULE 7: PURSUE AND RECOVER

A COMMANDER may not authorize forces to pursue and recover stolen assets vital to national 

security or inherently dangerous property unless delegated this authority by the CDR, 

USNORTHCOM. Any pursuit must be immediate, continuous, and uninterrupted.

 

RULE 8: MISSION-SPECIFIC RUF

A COMMANDER may request SECDEF-approval of mission-specific RUF based on mission 

requirements thru the chain of command and CJCS. A COMMANDER of a unit detailed to 

another Federal agency will ensure his unit is operating under a common mission-specific RUF 

approved by the SECDEF and the Federal agency. 

RULE 9: IMPOSED RESTRICTIONS

A COMMANDER may impose restrictions to the SECDEF-approved SRUF or mission-specific 

RUF, but must notify SECDEF thru the chain of command and CJCS of imposing the restrictions 

as soon as practicable. 

RULE 10: INVESTIGATE VIOLATIONS

A COMMANDER will IMMEDIATELY report any suspected violation of or non-compliance 

with the SRUF thru the chain of command to CDR, USNORTHCOM, ATTN: SJA; investigate 

any suspected violation of or non-compliance with the SRUF; and preserve all evidence.
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APPENDIX R

TOP 15 IRA QUESTIONS AND ANSWERS

Note: This information was modified from the material submitted by Mr. Robert Gonzales from 

the Office of the Staff Judge Advocate, ARNORTH.

The SECDEF has delegated some of his DSCA authority to Federal military commanders, Heads 

of DoD components, and responsible DoD civilian officials. One of these delegations is 

provided in paragraph 4i of DODD 3025.18 and is known as Immediate Response Authority

(IRA).

I. IRA IAW DODD 3025.18

In response to a “request for assistance” from a “civil authority,” under “imminently 

serious conditions” and when time does not permit approval from “higher authority,” Federal

military “commanders,” Heads of DoD Components, and responsible DoD civilian officials may 

provide an Immediate Response by temporarily employing the resources under their control, 

subject to any supplemental direction provided by higher headquarters, to save lives, prevent 

human suffering, or mitigate great property damage within the United States. This is known as 

Immediate Response Authority (IRA). 

IRA does not permit actions that would subject civilians to the use of military power that 

is regulatory, prescriptive, proscriptive, or compulsory. In other words, IRA does not authorize 

DoD personnel to perform direct/active law enforcement functions in violation of the Posse 

Comitatus Act. 

1. Can assistance be provided under IRA without a “request for assistance” from a civil 

authority?

No. There must be a request for assistance from a civil authority.

2. Who qualifies as a “civil authority?”

A civil authority is a person elected or appointed to a position within the governments of the US, 

State, District of Columbia, Puerto Rico, Virgin Islands, Guam, US territories, or any political 

subdivision thereof.

3. What is the proper form for a “request for assistance?”

A civil authority may make an initial oral request, but it must be followed up in writing that 

includes a statement concerning reimbursement to DoD. See Questions 9 and 10.

4. What does “imminent serious conditions” mean?

It means “emergency conditions in which, in the judgment of the military commander or DoD 

official, immediate and possibly serious danger threatens the public and prompt action is needed 

to save lives, prevent human suffering, or mitigate great property damage.” IRA may be used 

from a small incident to a complex catastrophe.
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5. Who is “higher authority?”

For purposes of IRA, higher authority is the SecDef.

6. Who qualifies as a “commander?”

A commander is a commissioned or warrant officer who, by virtue of rank, assignment, and 

pursuant to official orders, exercises primary command and UCMJ authority over a military 

organization or prescribed territorial area, which under official regulations is recognized as a 

command. A request for assistance should be directed to the installation commander or other 

appropriate DoD official responsible for the installation or facility.

7. Can a higher headquarters provide supplemental direction on IRA?

Yes. A higher headquarters may supplement the DoD directive provisions of IRA. 

8. What are examples of assistance that can be provided under IRA?

a. Assisting with the rescue, evacuation, and emergency medical treatment of casualties.

b. Maintaining or restoring emergency medical capabilities; safeguarding the public health. 

c. Assisting with the emergency restoration of essential public services and utilities, including 

firefighting, water, communications, transportation, power, fuel. 

d. Assisting with emergency clearance of debris, rubble, and explosive ordnance from public 

facilities and other areas to permit rescue or movement of people and restoration of essential 

services.

e. Monitoring and decontaminating radiological and chemical effects; controlling contaminated 

areas.

f. Managing biological effects and submitting reports through the national warning and hazard

control systems.

g. Roadway movement planning.

h. Collecting and distributing water, food, essential supplies on the basis of critical priorities.

i. Performing damage assessments.

j. Providing interim emergency communications. 

k. Providing medical countermeasures distribution support.

l. Providing explosive ordnance disposal IAW DODD 3025.18, DODI 3025.21, and Parts 260-

270 of Title 40, Code of Federal Regulations.

II. REIMBURSEMENT

Support provided under IRA should be provided on a cost-reimbursable basis, where 

appropriate or legally required, but will not be delayed or denied based on the inability or 

unwillingness of the requester to make a commitment to reimburse DoD.

9. Must reimbursement be requested?

Yes. Commanders and DoD officials must notify the civil authority that support provided under 

IRA is on a cost-reimbursable basis, unless non-reimbursement is authorized by law. 
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10. Can IRA assistance be provided even though the civil authority indicates it cannot reimburse 

DoD?

Yes. The inability or unwillingness to reimburse DoD is not a show-stopper for support under 

IRA.

11. How is reimbursement made?

Reimbursement from non-Federal civil authorities is made to the US Treasury IAW Title 31 

USC Sections 3302/9701. Reimbursement from Federal entities is made to the DoD

organization providing the support IAW the Economy Act.

III. DISTANCE

DODD 3025.18 does not specify a maximum allowable distance from the installation or 

facility to the location where assistance is needed. DoD officials must exercise good judgment 

based on available information and resources in determining the maximum allowable distance 

from the installation or facility to where the Immediate Response may take place. Factors to 

consider are sustainment, transportation, communications, mission impact, and increased risk. 

12. How far away can IRA assistance be provided?

The word “local” was intentionally removed from the previous definition of IRA to give 

commanders and DoD officials the flexibility to respond to a request for an incident that 

occurred hundreds of miles away from the installation, as long as the response is otherwise 

“immediate.” 

IV. Duration of IRA

An Immediate Response shall END when the necessity giving rise to the response is no 

longer present (e.g., when there are sufficient resources from State, local, and other Federal

agencies to respond adequately and that agency or department has initiated response activities) or 

when the initiating DoD official or a higher authority directs an END to the response. 

The DoD official directing a response under IRA shall reassess whether there remains a 

necessity to continue a response under this authority as soon as practicable but, if Immediate 

Response activities have not yet ended, NLT 72 hours after the request for assistance was 

received. 

13. Is IRA assistance limited to 72 hours?

No. The official who approved IRA may approve continued assistance beyond 72 hours if his 

72-hour assessment determines continued assistance is necessary because “imminent serious 

conditions” still exist. Notify the National Joint Operations and Intelligence Center (NJOIC) of 

the decision to continue assistance under IRA. 
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V. REPORTING REQUIREMENT

The DoD official directing a response under IRA must “immediately” notify the NJOIC 

through the unit’s higher headquarters and chain of command of the details of the response at 

jnoic.battlecaptain @js.pentagon.mil or 703-692-4595. 

14. How soon is “immediately?”

“Immediately” means within two hours of the decision to provide assistance. The NJOIC will 

inform the ASD (HD&GS), ASD(Public Affairs), Joint Staff J33, Geographic Combatant 

Command, and National Guard Bureau.

15. What information needs to be submitted in the report to the NJOIC?

The CJCS DSCA EXORD requires that the notification to the NJOIC include the following:

a. civil authority requesting DoD support and the time the request was received.

b. type of support requested.

c. description of the incident.

d. number, by type, of DoD assets or installation support provided.

e. status of DoD personnel (military, civilian, or contractor). 

f. duration of support, and 

g. cost of the DoD support. 

VI. IRA and the US Army Reserve

1. IAW USARC OPORD 18-046, Annex C, Appendix 3, paragraph 3c(5)(a) all Army Reserve 

personnel conducting operations under IRA will be in a paid duty status. Paid status will be 

either RST, ATA, ECT, ADT. 

2. Participation in an unpaid status for “points only” is not authorized.

3. IAW USARC OPORD 18-046, Annex C, Appendix 3, paragraph 3c(2)(b), in the event 

Immediate Response Authority (IRA) occurs, 2 hours after the response is initiated, notify Army 

Reserve command elements, ARNORTH AREC, NORTHCOM ARET, FEMA Regional 

Defense Coordinating Officer, FORSCOM Watch, Army Operations Center, and the NJOIC and 

AOC. 

VII. IRA and CATASTROPHIC INCIDENT

Joint Publication 3-28 on DSCA at page II-5/6 states: 

“(5) The distance from the incident to the DOD office or installation is not a limiting factor 

for the provision of support under Immediate Response Authority. However, DOD officials 

should use the distance and the travel time to provide support as a factor in determining 

DOD’s ability to support the request for Immediate Response. (6) The scale of the event 

should also be a determining factor for whether or not to provide support to incidents that are 
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several miles or hundreds of miles away from the installation under Immediate Response 

Authority. In some cases of a catastrophic incident, the demands for life-saving and lifesustaining capabilities may exceed both the State’s and USG’s ability to mobilize sufficient 

resources to meet the demand. In these circumstances, installations and facilities that are not 

directly impacted should be prepared to provide Immediate Response support if they are able 

to save lives, prevent human suffering, or prevent great property damage.” 
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ACKNOWLEDGMENTS

This publication is a tribute to every judge advocate, warrant officer, non-commissioned officer, 

legal specialist, civilian employee, and their families who selflessly served in or in support of the 

disaster response operations for Hurricanes Harvey, Irma, and Maria. CLAMO—while 

assuming full responsibility for any errors contained in this publication—gratefully 

acknowledges the assistance of the following individuals: 

BG Christian A. Rofrano, COL Erin McMahon, NGB Mr. Max Gonzalez, NGB

NGB LTC Pat Butler, NGB Lt Col Rhea Lagano, 

Lt Col Marc Koblentz, NGB MAJ Jose Gonzalez- NORTHCOM

LTC Robert Kavanaugh, NGB Rodriguez, NGB LTC Stephen Faherty, NGB 

MAJ Hugo Teufel, NGB LSO MAJ Paul Robson, NGB LSO

Mr. Charles Young, NGB Mr. Rob Goodin, NGB LTC Rich Sudder, NGB LSO

CPT Christopher Dearing, Mr. Kevin Shriner, NGB Ms. Catherine Tringali, 

NGB Mr. Dan S. Zevitz, NGB FLNG

LTC Steven Glymph, DC LTC Jeffrey Wood, AR LTC William O’Conner, PR 

ARNG ARNG ARNG

LTC Michael McCann, NC CPT Erica Francis, FL COL Lance Hamilton, 

ARNG ARNG ARNORTH

Maj Raju Viyas, TX ANG Col (Ret.) Nathan R. MAJ Sean Rogers, 

LTC Geraldine Vaval, VI Mellman, MO ANG ARNORTH

ARNG Lt Col Yvette Yarborough, CPT Justin Groom, 

CDR Ian Wexler, TX ANG ARNORTH

NORTHCOM Lt Col Sonya Batchelor, TX Ms. Gloria White, 

LTC Joshua Kessler, ANG ARNORTH

NORTHCOM Maj Mike Kirkland, TX LTC Todd Hanks, 

LTC Nagesh Chelluri, ANG ARNORTH

NORTHCOM Mr. Robert Gonzales, CPT Brian Chinchar, 

Lt Col Paul Dawson, ARNORTH ARNORTH

NORTHCOM CPT Felix Martinez, CPT Matthew Reiglesperber, 

CDR Brandy Parker, ARNORTH ARNORTH

NORTHCOM CPT Kevin O’Neil, NGB Mr. Kevin Kapitan, 

CDR Brian McNamara, DLA MAJ John Harwood, ARNORTH

Capt Phoebe Riner, ARNORTH Mr. Jim Patterson, 

SPMAGTF SC Mr. John Weis, ARNORTH ARNORTH

Mr. Joel Doolin, FEMA LCDR Travis Emge, USCG Mr. R. Curtis “Crash” 

Region II Capt Ari Tessler, 3rd MAW McNeil, AFNORTH

CPT Hugh Murray, CLAMO CPT J. Hunter Whyte, CPT David Muray, CASCOM

CDR Mary Murphy, USAREC MAJ Kevin Lasagna, OCAR

NAVNORTH CDR Patrick Lahiff, CDR Michael Cintron, USCG

Maj James Burkart, NAVNORTH LCDR Katie Worstell, 

MARFORNORTH CDR George Lucier, NAVNORTH

LCDR Allison Ward, NAVNORTH

 NAVNORTH