cool site…

I think I’m the first to break this so enjoy your last 15 minutes Zamudio, I hope your pension/school money lasted… Poster Boy for the Army National Guard Stewart Zamudio was interviewed by a website called nocureforthat.com, I won’t …

I know we’re discussing “nits” here, but this is not quite correct.

PERPICH v. DEPARTMENT OF DEFENSE, 496 U.S. 334 (1990)
[Sorry, I mistyped the date of the decision in my earlier post]

…the en banc court agreed with the District Court’s conclusion that “Congress’ army power is plenary and exclusive” and that the State’s authority to train the militia did not conflict with congressional power to raise armies for the common defense and to control the training of federal reserve forces. 880 F.2d 11, 17-18 (1989).

…The Governor argues that this interpretation of the Militia Clauses has the practical effect of nullifying an important state power that is expressly reserved in the Constitution. We disagree. It merely recognizes the supremacy of federal power in the area of military affairs. 22 The Federal Government provides virtually all of the funding, the material, and the leadership for the State Guard units.

In other words, according to the USSC, Congress controls the guard because the Guard is part of the federal reserve forces.

There are two titles in the US Code that apply to the Guard: Title 10 and Title 32 of the U.S. Code. Title 10 does not apply here.

32 USC Sec. 101 defines the army national guard as:

(B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I of the Constitution;
(C) is organized, armed, and equipped wholly or partly at Federal expense; and
(D) is federally recognized.

BTW, this does not mean that the state cannot have its own militia. Such militias are not part of the National Guard and the state is responsible for paying the entire freight. I believe that Texas is one such state that has a seperate state militia in addition to the National Guard. Texans are free to correct me if I’m wrong.

Section 110 states: “The President shall prescribe regulations, and issue orders, necessary to organize, discipline, and govern the National Guard.”

This means that the President is the Commander-in-Chief of the National Guard, even though the Guard is nominally at the beck and call of the state’s governor when not in federal service.

Section 326 states:

In the National Guard not in Federal service, there are general, special, and summary courts-martial constituted like similar courts of the Army and the Air Force. They have the jurisdiction and powers, except as to punishments, and shall follow the forms and procedures, provided for those courts. Punishments shall be as provided by the laws of the respective States and Territories, Puerto Rico, and the District of Columbia.

This means that military justice shall be uniform nationwide including in every state and territory, Puerto Rico [and Guam], and DC, irrespective of whether the National Guard of a state is in federal service or not.

Section 327:

(a) In the National Guard not in Federal service, general, special, and summary courts-martial may be convened as provided by the laws of the respective States and Territories, Puerto Rico, and the District of Columbia.

(b) In the National Guard not in Federal service –

(1) general courts-martial may be convened by the President;

(2) special courts-martial may be convened –

(A) by the commanding officer of a garrison, fort, post,camp, air base, auxiliary air base, or other place where members of the National Guard are on duty; or

(B) by the commanding officer of a division, brigade,
regiment, wing, group, detached battalion, separate squadron, or other detached command; and

(3) summary courts-martial may be convened –

(A) by the commanding officer of a garrison, fort, post,
camp, air base, auxiliary air base, or other place where
members of the National Guard are on duty; or
(B) by the commanding officer of a division, brigade,
regiment, wing, group, detached battalion, detached squadron, detached company, or other detachment.

(c) The convening authorities provided under subsection (b) are in addition to the convening authorities provided under subsection (a).

This places the mechanism of disclipline under courts martial and not under the state courts. This does not immunize members of the Guard from state courts, it just establishes the structure for disclipline inside of the Guard, and that structure is identical to that of the US Army.

And one more cite, also from Section 327:

Pub. L. 107-314, div. A, title V, Sec. 512(e), Dec. 2, 2002, 116

Stat. 2537, provided that:

“(1) The Secretary of Defense shall prepare a model State code of military justice and a model State manual for courts-martial to recommend to the States for use with respect to the National Guard not in Federal service. Both such models shall be consistent with the recommendations contained in the report that was issued in 1998 by the Department of Defense Panel to Study Military Justice in the National Guard not in Federal Service.

“(2) The Secretary shall ensure that adequate support for the preparation of the model State code of military justice and the model State manual for courts-martial (including the detailing of attorneys and other personnel) is provided by the General Counsel of the Department of Defense, the Secretary of the Army, the Secretary of the Air Force, and the Chief of the National Guard Bureau.”

So, what does this all mean? In sum, the National Guard, irrespective of whether or not it is in federal service or not, is a FEDERAL entity that is funded by and controlled by Congress. It is required to follow the UCMJ in discliplining troops, though each state may enact their own punishments. The state code of military justice does have flexibility but it cannot conflict with the UCMJ, or the Guard for that state will be defunded, their equipment repossesed, and no longer recognized.

The current model state code of military justice is a word document at http://www.ngb.army.mil/jointstaff/ps/ja/conference/2007/MODEL_STATE_CODE_OF_MILITARY_JUSTICE.doc

Articles 88 is identical with the UCMJ.

So, in summary, as New York’s code of military justice is identical with the UCMJ, and as the President of the United States can order a court martial (as well as anyone else he so delegates), EITHER the Guard of state of New York can prosecute OR the DOD can.

Bottom line: As Zamudio made his remarks in uniform, he may be prosecuted for his disparaging remarks about the President. And in my opinion, should be.

C

Don’t enlist until Bush is gone

I enlisted when Carter was President (you know, the one who was responsible for starting all of the Islamic mess we are now having to deal with), and I felt great apprehensions about enlisting while Carter was President.

I kind of thought, “Don’t enlist until Carter is gone”.

The difference between then and now, though, is that we had a “world citizen” in the White House back then, and a TRUE AMERICAN in the White House now.

Give him his wish. Send him over to Afghanistan. I am sure the others serving there would be glad to see him.

Wade on September 16, 2007 at 2:51 PM

I am sure the others in his unit would be pleased for the activation of the unit.

Seriously — is this not the sorriest excuse for a soldier you’ve ever seen in your life?

Christoph on September 16, 2007 at 1:32 PM

He can’t even keep his hair cut right.

He’s pretty typical of people who are not in for the service, so much as for the free benefits. When they actually have to be and act military they get all whiney and flakey.

But he did have what it takes to be a good model.

Christoph on September 16, 2007 at 10:47 AM

True.

No, only if federalized. Otherwise he’s subject to NY state regulations, but not UCMJ. Believe it or not.

Christoph on September 16, 2007 at 10:58 AM

Each state has it’s own state UCMJ and/or equivalent which they are supposed to enforce themselves. But this doesn’t meant each state enforces it’s own rules in the same way as other states or in the same way as the feds.

Mouthy people like the guy “model” noted above are generally temporary members that either quite or are eventually asked to leave.

Remember this is a volunteer force. The folks that make trouble for the other volunteers are often encouraged to voluntarily leave.

I never went overseas so my views are not tainted with war visions…

This makes him morally superior.

Seriously — is this not the sorriest excuse for a soldier you’ve ever seen in your life?

I never went overseas so my views are not tainted with war visions,

Wait doesn’t he mean “I never was in Iraq so I don’t know wtf I’m talking about first hand.”

but with war stories from fellow soldiers.

Shall I take it as more anonymous military sources???

But if on active orders he is then answerable to Federal violations under the Uniform Code of Military Justice. So in the unlikely event during a drill weekend he might shoot is mouth of in uniform in front of a camera and we own his butt.

No, only if federalized. Otherwise he’s subject to NY state regulations, but not UCMJ. Believe it or not.

Wade on September 16, 2007 at 9:54 AM
Lawrence on September 16, 2007 at 9:57 AM

But he did have what it takes to be a good model. Which makes him thoroughly qualified to sit-down in front of a four-star general and the President and give them both a lecture on military strategy.

Is there any reason to believe the federal government has jurisdiction over him? (re: your analysis) Isn’t he New York’s problem?

Christoph on September 15, 2007 at 8:04 PM

The way things currently work, if he is breaking a federal military rule while in uniform then it is 99.99% certain that he is breaking a National Guard rule. However, jurisdiction of enforcement of the rules falls to New York if he is not currently under federal orders.

Usually, either Guard, Reserve, or Active, when we get people like this running their mouth against the government and/or military while in uniform, they usually have an ax to grind.

They are usually people who do not have what it takes to be a good leader or soldier and are making excuses blaming the military for their personal short-comings, rather than simply take responsibility for improving themselves.

In 1903 Congress enacted the Dick Act (AKA the “Militia Act”) that created the National Guard. Prior to 1903 there was no section of the armed forces known as the National Guard, though there was a “National Guard Association,” an association (or lobby) of private and state militias that existed at that time. Subsequently, the Dick Act has been revised several times.

The Association wanted federal recognition (and federal money). The Department of the Army wanted direct control over training and equipping. It was a win-win.

Second, the National Guard is *not* the Militia mentioned in Article 1, section 8, and the Second Amendment. The National Guard is part of the ORGANIZED militia, which by statute (see 13 USC 311) is the National Guard and Naval Militia.

The Militia is defined as:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Third, the National Guard is under complete and plenary control of Congress, see: Perpich v. DOD, (1970). The governors of the states may call them up in response to emergencies, such as civil unrest or disaster, but the Guard is first and foremost a creation of the Congress and reports to it.

This has ramifications concerning the UCMJ and its applicability. While a member of the Guard is on active duty, whether for drill or for disaster relief, the UCMJ applies. Remember, the UCMJ is how discipline is enforced in the military. When the member of the Guard is not activated or drilling, the UCMJ does not apply because the member is a civilian.

Of course, other provisions of the US Code and individual state laws apply, as they do to every citizen.

As to the twerp in question, I have no way of knowing if he was on active duty or not. Hence, he may be guilty of violating several provisions of the UCMJ, such as disparagement, or not. If he was activated, (or drilling) then I hope he IS prosecuted for disparagement or conduct unbecoming.

Okay, that was my 2 cents….

baldilocks on September 15, 2007 at 9:13 PM

Great post, some people should learn decorum. No need to call names, when no one was attacking.

That tells you where he is.

IQ of a pee brain

Of course, when I left DLI, I had been in only a year, and had to wait until I finished GAFB to become a PO3. And nobody took me seriously until I put on PO2, after my 3rd test.

My husband, btw, was (is) an Eagle Scout, and was bumped to E-3 at the end of boot camp. That bahstahd made PO1 in just under 6 years… My point being that a bump ahead in rate early on may or may not be an advantage or disadvantage, as there are other factors (job skills, command, test-taking ability) that come into play. : )

…except the average kindergarten student has a sense of shame that would prevent such nonsense. Check out Hooper’s post on today’s DC events, particularly this photo. What boundaries exist? Are there never any repercussions? Not even for this?……

BadgerHawk on September 16, 2007 at 12:34 AM

Thanks for clarifying.