Written By Spring 2022 M-VETS Student Advisor Stephanie Whiteley.
The Army National Guard is unique from the other military branches. Unlike the active-duty Army or the Army Reserves, Army National Guard Servicemembers (“SMs”) play a dual role. They support both state and federal missions. Whether a SM responds to a state or federal mission determines which part of the United States Code applies.
State Missions
Primarily, SMs support their state though training and response to specific missions. These activities fall under Title 32 U.S.C. (“Title 32”)[1] Each year, SMs maintain their training and readiness requirements through inactive duty for training (“IDT”) and annual training.[2] As needed, SMs are placed on Full-Time National Guard Duty (“FTNGD”) to support specific missions.[3] Under 32 U.S.C. § 502(f), SMs have provided support to border security missions and “COVID-19 response efforts,” as well as other missions.[4]
SMs also conduct state active duty. SMs on state active duty have been used to protect critical infrastructure, to provide disaster response, and to respond to civil disorders.[5] Unlike Title 32 status, where SMs are “under state control but [have] pay and benefits provided by the federal government,” SMs on state active duty are treated like state employees.[6] In state active duty missions, pay and benefits are provided according to state law.[7]
In both Title 32 status and state active duty missions, SMs return home to their civilian jobs and part-time National Guard duties as soon as domestic emergency or mission has ended.
Issues Encountered in State Missions
SMs deployed on state missions encounter several issues. First, SMs on state active duty are treated as state employees. Meaning, they “receive pay, benefits, and retirement credit according to [the] state’s employment laws.”[8] This can be especially problematic if SMs are sent on multiple state active duty missions because SMs must have a minimum of twenty “good years” of federal service credit to retire from the National Guard with federal service benefits.[9] To obtain twenty “good years” SMs must receive a minimum of fifty service points a year.[10] State active duty does not provide service points that count towards a “good year” for federal service retirement.[11] Also, SMs do not receive Basic Allowance for Housing, Tricare health insurance, or accrual for GI Bill benefits.[12] Unlike other missions, where SMs have appropriate support for their families while on orders, the lack of these benefits makes it more difficult for SMs families to handle affairs in their absence. Especially for SMs that receive a pay-cut when responding to state activity duty missions.[13]
Second, SMs on state active duty can experience uncertainty regarding deployment. In other missions, the length of the orders is clear – often nine months to a year, depending on the mission. Also, SMs often receive notice, which gives SMs time to settle their affairs.[14] In state active duty missions, the length of the orders can change based on the state’s need. For the most part, state active duty is only for a short period of time.[15] However, there are instances where the state’s need has resulted in long-term deployments.
Operation Lone Star, Texas National Guard’s response to the border crisis, was initially intended to be a short-term deployment of three to six months.[16] However, SMs deployed under Operation Lone Star “are [now] mobilized on year-long orders.”[17] Additionally, SMs only received days’ notice of the deployment, rather than the months or years’ notice SMs received on other missions.[18] Lack of proper planning on the part of the Texas National Guard also caused pay issues for soldiers, as the appropriate administrative steps often were not completed prior to the Operation Lone Star deployments.[19]
Federal Missions
Additionally, SMs deploy for the federal government. These deployments fall under Title 10 U.S.C. (“Title 10”). Unlike Title 32 deployments, which are limited to stateside deployments, SMs can deploy overseas or to the Continental United States (“CONUS” or “stateside). When SMs are deployed under Title 10 “control passes from the governor of the affected units and personnel to the President of the United States.”[20] SMs on Title 10 orders over thirty days then receive benefits similar to active duty SMs.[21]
SMs have the ability to volunteer for Title 10 orders based on location, tour length, Military Occupational Specialty, and mission.[22] SMs can volunteer for Active Duty for Operational Support-Reserve Component (“ADOS-RC”) tours. ADOS-RC tours are often “used in situations where the Active Army has a mission requirement for which no Active Army soldiers with the requisite skills and experience are reasonably available.”[23] SMs can also volunteer for Contingency Operation for Active Duty Operational Support (“CO-ADOS”) tours. “CO-ADOS is used when the active duty (support) mission requirement is the result of a wartime contingency situation.”[24] Common CO-ADOS tours include support to Operation Inherent Resolve[25] and Operation Enduring Freedom.[26]
These voluntary mobilizations provide SMs the ability to strengthen their skillsets at a time and place of their choosing. However, SMs generally experience a variety of issues when “deployed” stateside under Title 10 orders.
Issues Encountered in Federal Stateside Missions
First, SMs have been asked to concurrently fulfill both Title 32 and Title 10 duties by their home unit. This problem occurs because SMs are still attached to their home unit in their state, while assigned to the Title 10 unit. Because the SM is still attached to the home unit, the home unit requires the SM to meet certain readiness and training requirements.
For a SM unfamiliar with the United States Code (effectively, most SMs) home units that wish to meet readiness and training requirements may attempt to task SMs to fulfill Title 32 (state) duties while assigned to a unit under Title 10 orders. Per 32 U.S.C. § 325, a SM cannot fulfill Title 32 duties while on Title 10 orders unless: (1) the President of the United States authorizes service in both Title 32 and Title 10 status; and (2) the Governor of the State consents to service in both duty statues.[27]
Although this is in the United States Code, this is not a well-known rule amongst the Army National Guard (“ARNG”). As a result, SMs unaware of this rule can be pressured into completing state duties – typically IDT, because their home unit has requested it. When SMs adhere to this request, they are not only violating the United States Code, but they are also violating Army Regulations, and, likely, the requirements of their Title 10 units.[28]
Second, SMs often experience delays in processing when they attempt to renew their Title 10 orders. For SMs to volunteer for stateside Title 10 mobilizations, The Adjutant General (“TAG”) of their state must release the SM from state duties.[29] This process is cumbersome and is often delayed because SMs must wait for a series of approvals before the SM can be released from state duties.[30]
To ensure the state meets the Army readiness requirements, the TAG will typically release a SM for 365 days. As a result, SMs experience this cumbersome process for a significant portion of every year they wish to remain on orders. If the state is encumbered by a state mission, this process is delayed even further, as the SM requesting a stateside Title 10 mission is moved to the bottom of the queue. SMs that fail to plan for delays in processing, can end up with a break in service (i.e., can end up without pay) while waiting for orders to process.
Conclusion
Overall, the Army National Guard is a unique part of the military. However, it comes with unique problems that SMs (and sometimes the units) are often unaware of until the problem occurs to them. Although SMs are, for the most part, unaware – efforts by the states to educate SMs and to streamline processes may prevent some issues associated with state active duty or with federal missions from occurring in the first place.
[1] 32 U.S.C. §§ 301-506.
[2] IDT is a monthly requirement. SMs report to their unit one weekend a month to maintain readiness requirements and conduct any necessary training. Annual training is two weeks long and often occurs in the summer. Guard FAQS, Army Nat’l Guard (last accessed May 15, 2022), https://www.nationalguard.com/guard-faqs.
[3] Congressional Research Service, Reserve Component Personnel Issues: Questions and Answers, 20 (Nov. 2, 2021), https://sgp.fas.org/crs/natsec/RL30802.pdf.
[4] Id.
[5] “[S]hortly after September 11, 2001, some governors called up…the National Guard to protect critical infrastructure in their states, such as nuclear power plants, water treatment facilities, and bridges, from potential terrorist attacks.” Id.
[6] Id. at 19-20.
[7] Id. at 19.
[8] Shane Ostrom, Your Benefits: Title 10 vs. Title 32 vs. the State, MOAA (Mar. 23, 2020), https://www.moaa.org/ content/publications-and-media/moaa-blog/your-benefits-title-10-vs.title-32-vs.-the-state/.
[9] Id.
[10]Id.
[11] Id.
[12] Steve Beynon, State Orders are a Con-Federalizing the National Guard Should be the go-to for Most Missions Moving Forward, Mil. Times (May 22, 2020), https://www.militarytimes.com/opinion/commentary/2020/05/22/ state-orders-are-a-con-federalizing-the-national-guard-should-be-the-go-to-for-most-missions-moving-forward/
[13] Davis Winkie & James Barragan, Deplorable Conditions, Unclear Mission: Texas National Guard Troops Call Abbott’s Rushed Border Operation a Disaster, The Tex. Trib. (Feb. 1, 2022), https://www.texastribune.org/ 2022/02/01/texas-national-guard-border-operation-lone-star-abbott/
[14] Id.
[15] Guard FAQS, supra note 2.
[16] “Operation Lone Star ballooned from a lean 1,000-volunteer [mobilization] to a mandatory mobilization of up to 10,000 members of the Texas Military Department.” Id.
[17] Davis Winkie, Guard Troops can Unionize on State Active Duty, DOJ Says, Army Times (Jan. 25, 2022), https:// www.armytimes.com/news/your-army/2022/01/25/guard-troops-can-unionize-on-state-active-duty-doj-says/
[18] Davis Winkie & James Barragan, supra note 13.
[19] Id.
[20] Congressional Research Service, supra note 3, at 19.
[21] Id.
[22] Guard Tours, Nat’l Guard (last accessed May 15, 2022), https://www.nationalguard.mil/About-the-Guard/Army-National-Guard/Resources/Soldier-Resources/Guard-Tours/.
[23] Id.
[24] Id.
[25] Operation Inherent Resolve address the threat posed by Islamic State of Iraq and al Sham (“ISIS”) in Iraq and Syria. As the threat posed by ISIS has declined, Operation Inherent Resolve has focused on long-term regional stability. About CJTF-OIR, Operation Inherent Resolve (last accessed May 15, 2022), https://www.inherentresolve.mil/About-CJTF-OIR/.
[26] Operation Enduring Freedom primarily refers to the efforts in Afghanistan to combat Taliban forces. DoD News Defense Media Activity, After 13 Years, Operation Enduring Freedom Concludes in Afghanistan, Nat’l Guard (Dec. 29, 2014), https://www.nationalguard.mil/News/Article-View/Article/576922/after-13-years-operation-enduring-freedom-concludes-in-afghanistan/
[27] 32 U.S.C. § 325.
[28] Most commands require SMs stay within three hours (or 120 miles) of their unit while on Title 10 status in case an emergency requires SMs to report to duty on short-notice. SMs that attempt to fulfill Title 32 duties while on Title 10 status often have to travel outside of the three hour (or 120 mile) limit. Leaves and Passes, AR 600-8-10 (2020) (stating commanders may establish a distance or commuting time for SMs based on safety and established recall requirements).
[29] Active Duty for Missions, Projects, and Training for Reserve Component Soldiers, AR 135-200 (2020), https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN30084-AR_135-200-000-WEB-1.pdf.
[30] Id.