Chapter 3. State Military Reserve Act of California Military And Veterans Code >> Division 2. >> Part 2. >> Chapter 3.

Whenever any part of the National Guard of this State is in active federal service, or when Congress so consents thereto, the Governor is hereby authorized to organize and maintain within this State during such period, under such regulations as the Secretary of Defense of the United States may prescribe for discipline in training, such military forces as the Governor may deem necessary to defend and for the security of this State; provided, however, the Governor may authorize the organization and maintenance of such forces at cadre strength at any time. Such forces shall be composed of officers commissioned or assigned, and such qualified citizens or aliens who have declared their intentions to become citizens as shall volunteer for service therein, supplemented, if necessary, by members of the unorganized militia enrolled by draft or otherwise as provided by law. Such forces shall be additional to and distinct from the National Guard and shall be known as the State Military Reserve. Such forces shall be uniformed under such conditions and subject to such regulations as the Governor may prescribe.

The Governor is hereby authorized to prescribe rules and regulations not inconsistent with the provisions of this chapter governing the enlistment, organization, administration, equipment, maintenance, training, and discipline of forces. The rules and regulations, insofar as the Governor deems practicable and desirable, shall conform to existing law governing and pertaining to the National Guard and the rules and regulations adopted thereunder and shall prohibit the acceptance of gifts, donations, gratuities, or anything of value by those forces or any member of those forces from any individual, firm, association, or corporation by reason of that membership. Section 167 shall at no time apply to the forces herein authorized except that all officers, warrant officers, and enlisted men and women on active duty with the Office of the Adjutant General shall be appointed by the Governor, with consideration of the recommendation of the Adjutant General. All officers, warrant officers and enlisted men and women on active duty under Section 167 who are ordered into federal service by federal authority during the emergency or who are ordered by state authority to perform duty with the forces herein authorized shall not thereby lose the rights and privileges provided in Section 167 and shall be restored to those rights and privileges upon completion of that service or duty. Members of the California National Guard not ordered to federal service or who are not required to perform federal service or who have been deferred from federal duty may perform service as members of the California National Guard on state active duty on behalf of the forces herein authorized and may be compensated as provided in Sections 320 and 321.

Officers and warrant officers of the forces herein authorized on active duty in the service of the state shall receive the same pay and allowances as officers of similar grade in the Army of the United States. An officer, warrant officer or enlisted man or woman of the forces herein authorized may, with his or her consent, be detailed for duty and may be paid compensation in any grade lower than the officer, warrant officer, or enlisted man or woman actually holds; provided, the officer, warrant officer or enlisted man or woman voluntarily waives all compensation in excess of the lower grade in which he or she is detailed to duty. Whenever an officer or warrant officer of the forces herein authorized is detailed for special duty in any matter relating to those forces, by order of the Governor, he or she shall be allowed the same pay and allowances as officers or warrant officers of similar grade in the Army of the United States and actual traveling expenses. An enlisted man or woman similarly detailed shall be allowed the same pay and allowances as enlisted men and women of similar grade in the Army of the United States and actual traveling expenses, except that family allowances shall not be allowed those enlisted men and women. An officer, warrant officer or enlisted man or woman of the forces herein authorized may, with his or her consent, be detailed for special duty without expense to the state, except and provided, however, he or she may be paid his or her actual traveling expenses. In addition to the pay and allowances authorized in this code, personnel of the forces created herein having administrative functions connected therewith may be paid not more than twenty dollars ($20) per month for the performance of those duties according to rules and regulations adopted by the Adjutant General. All enlistments of members of the active militia may be extended by the Adjutant General if necessary during the existence of a national emergency.

Enlisted persons of the forces herein authorized on active duty in the service of the State shall receive the same pay and allowances, except family allowances, as enlisted persons of similar grade in the Army of the United States.

(a) For the use of the State Military Reserve, the Governor may submit requisitions to the United States Secretary of Defense for any arms and equipment in the possession of and excess to or not required by the Department of the Army or alloted or available to the State Military Reserve. The Governor may provide arms and equipment to the State Military Reserve which are not furnished by the Department of the Army and are required in the defense of the state. The Governor may make available to the State Military Reserve armories and other state premises, property, supplies, and equipment as may be available.
  (b) The members of the State Military Reserve may be male or female and are members of the state militia for purposes of this code.
  (c) All unexpended balances appropriated for the use of the California National Guard or the Adjutant General and not required by the California National Guard or the Adjutant General may be expended by the Adjutant General for the use and benefit of the State Military Reserve and its members. Section 255 does not apply to the State Military Reserve.

Such forces shall not be required to serve outside the boundaries of this State except:
  (a) Upon the request of the Governor of another state, the Governor of this State may, in his discretion, order any portion or all of such forces as may be then in actual service to assist the military or police forces of such other state who are actually engaged in defending such other state. Such forces may be recalled by the Governor at his discretion.
  (b) Any organization, unit or detachment of such forces upon order of the officer in immediate command thereof, may continue in fresh pursuit of insurrectionists, saboteurs, enemies or enemy forces beyond the borders of this State into another state until they are apprehended or captured by such organization, unit, or detachment or until the military or police forces of the other state or the forces of the United States have had reasonable opportunity to take up the pursuit or to apprehend or capture such persons if such other state shall have given authority by law for such pursuit by such forces of this State. Any such person who shall be apprehended or captured in such other state by an organization, unit or detachment of the forces of this State shall without unnecessary delay be surrendered to the military or police forces of the state in which he or she is taken or to the United States. Such surrender shall not constitute a waiver by this State of its rights to extradite or prosecute such person for any crime committed in this State.
  (c) Pursuant to the provisions of the National Defense Act of 1916, as amended, and such amendments as may be made thereto hereafter.

Any military forces or organization, unit or detachment thereof, of another state who are in fresh pursuit of insurrectionists, saboteurs, enemies or enemy forces may continue such pursuit into this State until the military or police forces of this State or the forces of the United States have had a reasonable opportunity to take up the pursuit or to apprehend or capture such persons and are hereby authorized to arrest or capture such persons within this State while in fresh pursuit. Any such persons who shall be captured or arrested by the military forces of such other state while in this State shall without unnecessary delay be surrendered to the military or police forces of this State to be dealt with according to law. This section shall not be construed so as to make unlawful any arrest in this State which would otherwise be lawful, and nothing contained in this section shall be deemed to repeal any of the provisions of the Uniform Act of the Fresh Pursuit of Criminals.

No person shall, by reason of his or her enlistment or commission in any such forces, be exempted from military service under any law of the United States. Sections 230 and 232 to 237, inclusive, apply to commissioned officers; Section 225 applies to warrant officers; and Sections 252, 253, 254 and 260, except subdivision (b) of Section 260 apply to enlisted personnel of the forces authorized herein. However, no provision of this code shall prevent the transfer, by order of the Governor, at any time, of any member of those forces to a reserve list created in the office of the Commanding General of the State Military Forces.

No civil organization, society, club, post, order, fraternity, association, brotherhood, body, union, league, or other combination of persons or civil group shall be enlisted in such forces as an organization or unit.

No person shall be commissioned or enlisted in such forces who is not a citizen of the United States or who has not declared his or her intention to become such citizen or who has been expelled or dishonorably discharged from any military or naval organization of this State, or of another state, or of the United States.

(a) The Uniform Code of Military Justice (Chapter 47 (commencing with Section 801) of Title 10 of the United States Code) and the rules and regulations adopted thereunder, together with the Manual for Courts-Martial, United States, 1984 (Executive Order 12473 of April 13, 1984, as amended), are hereby adopted as part of this code and shall be applicable to and govern the State Military Reserve.
  (b) No officer or enlisted person of the State Military Reserve may be arrested on any warrant, except for treason or a felony, while going to, remaining at, or returning from a place he or she is ordered to attend for military duty. Every officer and enlisted person of the State Military Reserve is, during his or her service, exempt from service upon any posse comitatus and from jury duty.

In all cases in which any officer, warrant officer or enlisted man or woman of the State Military Reserve, when organized or authorized as a cadre or otherwise, when in the performance of ordered duty, or when ordered into the active service of the state, is wounded, injured, disabled, or killed in active service, or in the performance of ordered duty and in line of duty, the officer or warrant officer or enlisted man or woman or the dependents of that officer or warrant officer or enlisted man or woman shall be entitled to receive compensation from the state in accordance with the provisions of Division 4 (commencing with Section 3201) of the Labor Code. In all such cases, such an officer, warrant officer, enlisted man or woman shall be held and deemed to be an employee of the state. The compensation to be awarded to any such officer, warrant officer, enlisted man or woman shall be ascertained, determined, and fixed upon the basis of his or her average income from all sources during the year immediately preceding the date of the injury or death or the commencement of the disability, but the compensation shall in no case exceed the maximum prescribed in Division 4 (commencing with Section 3201) of the Labor Code. In the determination of the benefits to be awarded any member of the State Military Reserve or his or her dependents under the provisions of this section it shall be conclusively presumed that the average yearly earning of the injured or deceased member is not less than two thousand five hundred dollars ($2,500). Any injury, death, or disability shall be deemed to have been suffered in line of duty unless the same resulted from misconduct or disobedience of lawful orders by the injured or deceased member.

All members of said forces are hereby declared to be engaged in military service within the meaning of that term as used in Article XXIV of the Constitution of this State and are exempt from civil service.

All of the rights, privileges and benefits provided in Sections 394 and 395 of this code are hereby extended to members of said forces while in the active service of this State.

This chapter may be cited as the State Military Reserve Act.

Sections 9, 16, 141, 176, 188, 230, 361, 366, 389, 395.1, 395.01, 395.2, 395.02, 395.3, 395.03, 395.4, 395.5, 395.05, 395.06, 395.8, 411, 421, 423, 439, 612, 640, 641, 642, 643, 643.1, 644, 645, 646, 647, 648, and 649 apply to, and include, the forces authorized herein.

This chapter shall take effect on the day following the day on which the National Guard or any part thereof is in federal service or on the day following the day on which Congress consents to the organization and maintenance of said forces, whichever event first occurs shall be the effective date hereof, and shall be effective forthwith upon approval by the Governor with respect to the authority granted in this act to the Governor to organize and maintain said forces at cadre strength at any time.