Code of Virginia

Code of Virginia
Title 44. Military and Emergency Laws
10/29/2020

Article 3. National Guard in General.

§ 44-25. Organization; composition of units.

Except as otherwise specifically provided by the laws of the United States, the organization of the National Guard, including the composition of all units thereof, shall be the same as that prescribed for the active army, air force and navy, subject in time of peace to such general exceptions as may be authorized by the Secretary of Defense.

1930, p. 952; Michie Code 1942, § 2673(15); 1958, c. 393; 1964, c. 227.

§ 44-26. Location of units and headquarters.

The Governor shall determine and fix the location of the units and headquarters of the National Guard within the Commonwealth.

1930, p. 953; Michie Code 1942, § 2673(16); 1958, c. 393.

§ 44-27. Appointment and promotion of officers.

All officers of the National Guard shall be appointed and commissioned by the Governor, through the Adjutant General.

Within the organization, insofar as practicable, all appointments and promotions shall be based on professional qualifications, efficiency, length of service in grade, length of commissioned service, and demonstrated command and staff ability at the appropriate level, and will be effected only when an appropriate vacancy exists in the applicable table of organization and equipment or table of organization or distribution.

1930, p. 953; Michie Code 1942, § 2673(17); 1958, c. 393; 1964, c. 227; 1970, c. 662; 2011, cc. 572, 586.

§ 44-28. Qualifications of commanding or staff officers.

No person shall be appointed a commanding or staff officer unless such person shall have had federally recognized commissioned military service, nor shall any officer be appointed who fails to qualify as to fitness for military service under such regulations as the Secretary of Defense shall prescribe. Such officers may hold their positions until they have reached the age or length of service as prescribed in existing or subsequently amended National Guard regulations, unless separated from the service prior to that time by reason of resignation, disability, withdrawal or termination of federal recognition or commission, or upon finding of a legally convened court-martial.

1930, p. 953; Michie Code 1942, § 2673(18); 1958, c. 393; 1970, c. 662.

§ 44-29. Qualifications of National Guard officers.

The qualifications of National Guard officers shall be as prescribed in current and subsequently amended National Guard regulations.

1930, p. 953; Michie Code 1942, § 2673(19); 1958, c. 393.

§ 44-30. Tests as to fitness for officers; examining board.

No person shall hereafter be appointed an officer of the National Guard unless such person first shall have successfully passed such tests as to physical, moral, and professional fitness as the President shall prescribe. The examination to determine such qualifications for commission shall be conducted by a board of three commissioned officers appointed by the Secretary of Defense from the active army or the National Guard, or both.

1930, p. 954; Michie Code 1942, § 2673(20); 1958, c. 393; 1964, c. 227; 1970, c. 662.

§ 44-31. Relative rank of officers.

Relative rank among officers of the same grade shall be determined according to current and subsequently amended Department of Defense and National Guard regulations.

1930, p. 954; Michie Code 1942, § 2673(21); 1964, c. 227.

§ 44-32. Oath of National Guard officers.

Commissioned officers of the National Guard shall take and subscribe to the following oath of office:

"I............................… do solemnly swear that I will support and

defend the Constitution of the United States and the Constitution of the
Commonwealth of Virginia, against all enemies, foreign and domestic; that I
will bear true faith and allegiance to the same; that I will obey the orders
of the President of the United States and of the Governor of the Commonwealth
of Virginia; that I make this obligation freely, without mental reservation or
purpose of evasion, and that I will well and faithfully discharge the duties
of the office of..............................… in the National Guard of the

United States and of the Commonwealth of Virginia, upon which I am about to

enter; so help me God."

1930, p. 954; Michie Code 1942, § 2673(22); 1958, c. 393.

§ 44-32.1. Administration of oaths of office and enlistment.

Any duly commissioned officer or warrant officer of the Virginia National Guard or any commissioned officer of any of the armed services of the United States may administer the oaths of office and enlistment to prospective officers and enlisted personnel desirous of becoming members of the Virginia National Guard and the National Guard of the United States. Any duly commissioned officer of the Virginia Defense Force, when called into service by the Governor, may administer oaths to prospective officers and enlisted personnel desirous of becoming members of the Virginia Defense Force.

1947, p. 143; Michie Suppl. 1948, § 2673(22a); 1958, c. 393; 1979, c. 647; 2011, cc. 572, 586.

§ 44-33. Elimination and disposition of officers.

At any time the moral character, capacity, and general fitness for the service of any National Guard officer may be determined by an efficiency board of three commissioned officers senior in rank to the officer whose fitness for service shall be under investigation, said board to be appointed by the Adjutant General and convened on his order. If the findings of such board be unfavorable to such officer and be approved by the Adjutant General, such officer shall be discharged. Commissions of officers of the National Guard may be vacated upon resignation, if approved by the Adjutant General, absence without leave for three months, upon the recommendation of an efficiency board, pursuant to sentence of a court-martial, upon physical disqualification, when convicted of a felony in a civil court, when appointed or inducted into the armed forces of the United States, when federal recognition is withdrawn from such officer or from the unit to which assigned, upon reaching maximum age limitation, and when it has been determined that an officer is subversive or disloyal. Officers of the Virginia National Guard rendered surplus by the disbandment of their organization shall be placed in another unit, providing an appropriate vacancy exists, otherwise such officers shall be separated from the Virginia National Guard and automatically revert to the reserve.

1930, p. 954; Michie Code 1942, § 2673(23); 1958, c. 393; 1964, c. 227; 1970, c. 662.

§ 44-34. Repealed.

Repealed by Acts 1958, c. 393.

§ 44-35. Enlistments in National Guard.

Enlistments in the National Guard shall be as prescribed in existing or subsequently amended National Guard regulations.

1930, p. 954; Michie Code 1942, § 2673(25); 1958, c. 393.

§ 44-36. Enlistment contract and oath.

Enlisted persons shall not be recognized as members of the National Guard until they shall have signed an enlistment contract and taken and subscribed to the oath of enlistment prescribed by present or subsequently amended National Guard regulations; or such oath of enlistment as shall be prescribed by the Governor of Virginia for members of the Virginia Defense Force.

1930, p. 955; Michie Code 1942, § 2673(26); 1958, c. 393; 2011, cc. 572, 586.

§ 44-37. Discharge of enlisted persons.

An enlisted person discharged from service in the Virginia National Guard shall receive a discharge in writing. The form and classification of such discharge shall be as prescribed by existing or subsequently amended National Guard regulations.

1930, p. 955; Michie Code 1942, § 2673(27); 1958, c. 393.

§ 44-38. Membership continued in National Guard after termination of federal service.

When inducted into the active military service of the United States and thereafter discharged or separated from the armed forces, all persons so inducted and thereafter discharged or separated shall resume their membership in the Virginia National Guard and shall continue to serve therein as though their service had not been so interrupted.

1930, p. 955; Michie Code 1942, § 2673(28); 1958, c. 393.

§ 44-39. Uniforms, arms and equipment.

The National Guard shall, as far as practicable, be uniformed, armed, and equipped with the same type of uniform, arms, and equipment as are or shall be provided for the armed forces of the United States.

1930, p. 955; Michie Code 1942, § 2673(29); 1958, c. 393.

§ 44-39.1. Possession of handguns by members at National Guard facilities.

To the extent permitted by federal law and by the terms of any contract between the Virginia National Guard and a privately owned facility, any member of the Virginia National Guard who possesses a valid concealed handgun permit issued pursuant to Article 6.1 (§ 18.2-307.1 et seq.) of Chapter 7 of Title 18.2 shall be permitted to possess a concealed handgun owned by such member at all facilities of the Virginia National Guard and at all privately owned facilities under contract with the Virginia National Guard. Nothing herein precludes the commanding officer of any member from prohibiting such member from possessing a concealed handgun while such member is participating in any training or other exercises where the commanding officer determines that (i) such possession would interfere with the conduct of such training or other exercises, (ii) such possession may result in mission impairment, or (iii) the member is unfit to carry a handgun.

2016, c. 740.

§ 44-40. Discipline and training.

The discipline and training of the Virginia National Guard shall conform to that of the Armed Forces of the United States, and to that end, the Manual for Courts-Martial, United States, including but not limited to the Uniform Code of Military Justice as now existing or subsequently amended, is hereby incorporated as a part of the military laws of Virginia except where in conflict with other provisions of this chapter. Officers and soldiers of the National Guard shall have such powers in the performance of their duty under this title as officers and soldiers of the active armed services have in the performance of like duty under the Uniform Code of Military Justice and Manual for Courts-Martial, United States. However, should a person commit an offense punishable under the criminal laws of Virginia, then prosecution under the criminal laws shall bar prosecution under this chapter. The Adjutant General shall by regulation adapt to state usage the provisions and terminology of the Manual for Courts-Martial, United States, including but not limited to the Uniform Code of Military Justice.

1930, p. 955; Michie Code 1942, § 2673(30); 1958, c. 393; 1976, c. 399; 1984, c. 7; 1987, c. 32.

§ 44-40.01. Nonjudicial disciplinary proceedings.

Service members of the Virginia National Guard, not in federal service, are subject to nonjudicial punishment pursuant to Part V of the Manual for Courts-Martial, United States. A commander's authority to impose nonjudicial punishment shall not include the authority to impose correctional custody, arrest in quarters, restriction, or extra duties. Reduction in rank shall not be imposed if the service member has more than 10 years of military service and is in the rank of E-5 or above. When nonjudicial punishment is to be imposed by a commanding officer of the rank of major or above, a service member shall not be allowed to demand trial by court-martial in lieu of nonjudicial punishment. Service members shall retain all appeal rights available under the Manual for Courts-Martial, and the appeal shall include a review for abuse of discretion and legal sufficiency of the evidence.

2015, c. 194.

§ 44-40.1. Persons subject to the Virginia military laws.

All members of the Virginia National Guard are subject to the military laws of Virginia when under orders to be present for duty under Title 32 of the United States Code or while in a state active duty status.

1976, c. 399; 2011, cc. 572, 586.

§ 44-40.2. Administration of oaths and taking of sworn statements by commissioned officers.

In addition to those powers set forth in § 44-40, commissioned officers in the Virginia National Guard may administer oaths and take sworn statements in connection with any investigation required by law or regulation pertaining to the Virginia National Guard in the performance of their duties.

1987, c. 32.

§ 44-41. Armory drills, inactive training, annual active duty training, etc.

Training, including inactive training, armory drills, annual active duty for training, active duty training and other exercises, shall be conducted in accordance with existing or subsequently amended National Guard regulations.

1930, p. 955; Michie Code 1942, § 2673(31); 1958, c. 393; 1964, c. 227.

§ 44-41.1. Failure to report; etc.

If any person, being an active member of the Virginia National Guard, in violation of valid orders, fails to initially report to his appointed place of duty at the appointed time of duty under Title 32 of the United States Code or for state active duty, or having initially reported absents himself without leave, he shall be guilty of a Class 4 misdemeanor. A warrant for such offense may be sworn by any officer of the unit to which the soldier or airman who failed to report, or absented himself, is assigned. Any such warrant shall be withdrawn upon the written request of the soldier or airman's commanding officer.

1977, c. 315; 1978, c. 342; 1983, c. 65; 1984, c. 206; 2011, cc. 72, 108.

§ 44-41.2. Sharing of information with Virginia Employment Commission upon separation.

The Adjutant General shall, in consultation with the Commissioner of the Virginia Employment Commission, establish a program under which the Department of Military Affairs shall, upon request of a member of the Virginia National Guard, provide information on the member to the Virginia Employment Commission, including (i) the individual's name; (ii) the date, or anticipated date, of the individual's discharge, separation, or release from the Virginia National Guard; (iii) the characterization, or anticipated characterization, of the individual's discharge from the Virginia National Guard; (iv) the individual's level of education; (v) contact information for the individual; (vi) the individual's military job classification and list of military training and certifications; (vii) the individual's civilian skills, training, and certification, as self-selected by the individual; and (viii) the industry, employment sector, profession, or other career classification, as self-identified by the individual, in which the individual will seek employment.

Nothing in this section shall be construed to limit the collection and maintenance of information for records required to be kept by the Virginia Employment Commission pursuant to 16VAC5-32-10 or pursuant to any other regulation adopted in accordance with § 60.2-111.

2014, cc. 42, 302.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

The Virginia General Assembly is offering access to the Code of Virginia on the Internet as a service to the public. We are unable to assist users of this service with legal questions nor respond to requests for legal advice or the application of the law to specific facts. Therefore, to understand and protect your legal rights, you should consult an attorney.

The Code of Virginia online database excludes material copyrighted by the publisher, Michie, a division of Matthew Bender. Copyrighted material includes annotations and revisors' notes, which may be found in the print version of the Code of Virginia. Annotated print copies of the Code of Virginia are available in most Virginia public library systems, from LexisNexis (1-800-446-3410), and from West, a Thomson-Reuters business (1-800-344-5008).