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Committee
Report on the New Jersey Naval Militia Joint Command (NJNMJC) to The
Adjutant General
Legal
The Staff Judge Advocate (SJA) finds the Study
/ Report to be legally sufficient in that it
complies with the directive of the New Jersey Legislature set forth in
L. 2004, c. 300 (S 2309 and
A 3019). In addition, the SJA finds the recommendations to be consistent
with the findings and
the findings to be supported by the evidence considered by the committee
as well as the general
knowledge of the committee members not subject to dispute.
In response to a request from The Adjutant General regarding
the legal validity of the structure
of the NJNMJC, the Office of the Attorney General, Division of Law, rendered
a legal opinion
concluding that under New Jersey law it is permissible for the NJNMJC
to serve as the command
group for both the Naval Militia and the State Guard. The opinion also
concluded that as a
matter of state law the structure of the NJNMJC does not prohibit the
Naval Militia from
obtaining available federal resources. However, the opinion did not answer
federal questions of
law and added that the federal government may reach a different conclusion
regarding whether
the structure would comply with the statutory requirements for obtaining
federal resources. The
opinion stated that a structure where the Naval Militia is not in a joint
command with the State
Guard would enhance the likelihood of obtaining federal resources and
that any change in
structure is a policy decision and not a legal question under state law.
The SJA concurs with that
opinion.
The SJA recommends promulgation of draft regulations
concerning the administration,
discipline, training and standards of the NJNMJC. The SJA cautions that
the regulations be
consistent with and reflect the policy found in applicable statutes
and regulations: Naval Militia -
10 U.S.C. 311, 10 U.S.C. 7851 through 7854, N.J.S.A. 38A:1-1 and 38A:-3,
N.J.S.A. 38:8-1, and
the State Guard - 32 U.S.C. 109, N.J.S.A.. 38A:1-1 and 38A:1-3, and
National Guard Regulation
(NGR) 10-4.
The SJA also advises that since both the Naval Militia
and the State Guard are considered
components of the “organized militia of New Jersey,” N.J.S.A.
38A:1-1(a) and 38A:1-3(a), the
New Jersey statutes that pertain to the “militia” or “organized
militia” (e.g., N.J.S.A. 38A,
Chapter 4 - Personnel of the Organized Militia - General Provisions;
Chapter 5, Officers;
Chapter 6, Enlisted Members), would apply to the Naval Militia and
the State Guard.
Regarding the State Guard, the SJA further advised that
the regulations should not fall outside
the general scope of the mission and organization outlined in NGR 10-4
(State Defense Forces).
For example, NGR 10-4, paragraph 5a, states that “the mission of
a State Defense Force, as
conceived by these regulations, is to provide an adequately trained
and organized State military
reserve force which would be under the exclusive control of the governor.
It would be capable
of accomplishing those State emergency responsibilities normally assigned
to the National
Guard, when that force is federalized or otherwise not available to
the needs of the governor. In
addition, they would be available to perform any such missions as the
governor directs, within
Federal and State laws concerned.”
Regarding State Guard organization,
NGR 10-4, paragraph 6a, states that the operations and
activities of a State Defense Force (State Guard) “are supplemental
to the state mission of the
National Guard during peacetime and are considered to be of a constabulary
nature and not that
of combat forces.” Paragraph 6 of the regulation provides that “priority
for any future Federal
support” will be given to those states whose State Guard “is
considered most appropriate to
accomplish the general missions outlined” in the regulation
(paragraph 6b). The SJA advises
that any regulations should comply with the guidance set forth in
NGR 10-4.
In a final review of this report, the Attorney General
found that the Naval Militia and the State
Guard may not be called to active or inactive duty to provide aid
to localities in circumstances
which may threaten or are a danger to the public health, safety
and welfare. (N.J.S.A.38A:3-6.1
See Appendix C) A statutory change will be needed for the NJNMJC
to fully participate in the
homeland security mission as a force multiplier and as envisioned
in this report. |
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