Duty Status Implications of National Guard Members

National Guard units have two missions.

The first is a federal or state mission to provide units organized, equipped, and trained to function efficiently in the protection of life and property and the preservation of peace, order and public safety under competent orders of federal or state authorities.

The second is a federal mission to develop, maintain, and provide the Air Force and Army with operationally ready units to augment the active duty forces upon mobilization, and support of Department of Defense peacetime operations.

The three duty status options for members of the National Guard are:

1. State active duty under state law

2. Active federal service under Title 10 U.S.C.

3. Inactive Duty Training or Full-Time National Guard duty under Title 32 U.S.C.

Members of the National Guard are part of the state militia. While the unit is organized, armed, and equipped wholly or partly at federal expense and is federally recognized, it remains a state organization under the command and control of state authorities, except when federalized.

If the anticipated activity is purely a state function, liability for injury to members is strictly a matter of state law, and there is no protection under the Federal Tort Claims Act. In addition, the state will likely be responsible for loss or damage to equipment and may have an obligation to reimburse the federal government for these losses.

 If the member is in “active federal service” under Title 10, the member has all the protections and responsibilities of an active duty member. The member is subject to the Uniform Code of Military Justice and may be punished under its rules.

The member may be subject to various ethics prohibitions, and the member is covered by the Uniformed Services Employment and Reemployment Rights Act and the Servicemembers Civil Relief Act (SCRA).

When serving under Title 32, the member generally has the same rights and benefits as members serving on active federal service under Title 10 for a like period of time, with the exception that Title 32 members are not covered by SCRA. Members of the National Guard generally perform their training and schools in Title 32 status.

A Guardsman who commits a crime may be prosecuted under the UCMJ and/or state laws. 

Commanders in a Title 32 status have no command nor UCMJ authority over members deployed in a Title 10 status.