HOUSE BILL NO. 371
AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2
AN ACT TO MODERNIZE THE LAWS RELATING TO THE DELAWARE NATIONAL GUARD.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):
Section 1. Repeal Chapters 1, 3, 5, 7, and 9 of Title 20 of the Delaware Code in their entirety and enact new Chapters 1, 3, 5, 7, and 9 of Title 20 to read as follows:
"CHAPTER 1. DELAWARE NATIONAL GUARD
SUBCHAPTER 1. General Provisions
§101. State Militia; Name.
The active militia of this State shall be organized and known as the Delaware National Guard and shall be subject at all times to the orders of the officers thereof.
As used in this chapter:
(a) 'National Defense Act' means an Act of Congress, entitled, An Act for making further and more effectual provisions for the national defense, and for other purposes" approved by the President, June 3, 1916. and any and all acts and amendatory and supplementary thereto.
(b) 'Company' applies to and Indicates the infantry, headquarters, supply, air force, field artillery, engineer, signal, field hospital, machine gun, ambulance and field bakery units, corresponding In general organization to a company of infantry.
(c) 'Regiment' and 'battalion"apply to any organization of any arm of the service equal in organization to a regiment or battalion of Infantry. or so denominated by law.
§103. Conformity With Federal Statutes; Powers of the Governor.
The National Guard of this State shall conform to federal statutes and regulations relating to and governing the armed forces of the United States, insofar as they are applicable and not inconsistent with the Constitution of the State of Delaware or the provisions of this title.
The Governor of the State of Delaware shall be the Commander-in-Chief of the National Guard, except as to any part thereof called or ordered into federal service.
The Governor of this State, as Commander-In-Chief. may make such changes from time to time in matters or organization. administration and discipline as may be necessary to conform to the requirements made by Congress for participation in federal appropriations for the National Guard.
§104. Rules and RegulationsLPromulgation,_5cope and Effect.
In order to carry out this chapter, the Commander-in-Chief may, upon the recommendation of the Adjutant General, or a board of officers appointed by him or her for that purpose. make and publish rules and regulations for the government, discipline and exercise of the Delaware National Guard. or from time to time authorize by proclamation the making and publishing of such rules and regulations by the Adjutant General. Such rules and regulations shall, so far as practicable, conform to the rules and regulations of the United States Army and United States Air Force; and when promulgated shall have the force of law.
§105. Uniforms Arms and Equipment.
The National Guard of the State of Delaware shall be uniformed, armed and equipped, as nearly as practicable, in accordance with federal statutes and regulations in relation to uniforms, arms and equipment.
§106. Disbanding of Unit Incapacitated to Discharge Its Duties.
If it appears to the Commander-in-Chief that a company of the Delaware National Guard has failed to comply with the requirements of the law so that it is Incapacitated to discharge the duties required
of it, such company may be disbanded by the Commander-in-Chief.
§107. Bills and Allowances; How Paid,
No bill or allowance, on account of the Delaware National Guard, authorized by this chapter. shall be paid by the State Treasurer unless the bill or allowance is itemized and its contents duly certified to by the Adjutant General or by an officer designated by him or her. The Adjutant General shall be permitted to draw his or her warrant on the State Treasurer to pay current expenses from funds which may be appropriated for such purpose.
§108. Donations to the National Guard.
Any county, municipality or corporation in this State may appropriate money out of the treasury of such municipality, county, or corporation, donate any other valuable thing or grant or lease any land belonging to it for the purpose of aiding the Improvement of the Delaware National Guard.
The money so appropriated, other valuable thing donated, or the land so granted or leased to the Delaware National guard, shall be, so far as practicable, expended or disposed of by the State Department of Military Affairs in such manner and under such lawful conditions as the donor may direct.
SUBCHAPTER 11. DEPARTMENT OF MILITARY AFFAIRS
§121. Military Department Established.
The National Guard of the State of Delaware, and the Delaware State Defense Forces and Delaware Militia, when not in the service of the United States, shall be governed and their affairs administered pursuant to the laws of this State, and the laws of the United States, by the Governor as Commander-in-Chief, through the Department of Military Affairs, which is hereby established and which shall consist of the Adjutant General as its chief executive and such other officers, warrant officers and enlisted personnel and civilian employees as the laws of the State of Delaware or the laws of the United States may direct or permit. The Department of Military Affairs shall be a department of the executive branch of government in alike manner as all other such departments.
§122. The Adjutant General; Appointment and Qualifications.
(a) The Governor shall a point an Adjutant General with the advice and consent of the Senate who shall hold office at the pleasure of the Governor.
(b) To be eligible for appointment to the office of Adjutant General a person must have served as a commissioned officer of the Delaware National Guard or the Armed Forces of the United States.
§123. The Powers and Duties of the Adjutant General.
The Adjutant General shall be responsible to the Commander-in-Chief, for carrying out the policies of the Commander-in-Chief, and shall issue orders In his or her name. To accomplish this end the Adjutant General shall have the following duties and the powers necessary to effectuate the same:
(a) Supervise all troops, arms and branches of the Delaware National Guard, Delaware State Defense Forces,and Militia with such supervisory powers as arc necessary covered primarily all duties pertaining to their organization, armament. discipline, training, recruiting, inspection, pay, subsistence and supplies.
(b) Supervise the receipt, preservation, repair. distribution. issue and collection of all arms and military stores of this State.
(a) Maintain records of all officers and enlisted personnel of the Delaware National Guard, Delaware State Defense Forces, and Delaware Militia if called to duty, and keep on file in his or her office or a place designated by him or her copies of all orders. reports, and communications relevant thereto.
(a) Negotiate and enter contracts on behalf of the Department of Military Affairs under his or her jurisdiction as necessary to effectuate the purposes of this chapter; including retirement, disability and group health benefits in accordance with appropriations therefor; to enter into agreements with the Secretary of Defense of the United States or other appropriate officials for withholding sums from the compensation of such civilian employees for contributions to such benefit programs.
(a) Have a seal of office, which shall be delivered to his or her successor at the completion of his or her term of office. Such seal shall be approved by the Commander-In-Chief and shall be affixed to official documents and papers as deemed appropriate by the Adjutant General.
(a) Assist deceased service personnel's families and former service personnel or their dependents in adjusting their claims with the government and arrange for proper military funerals for service personnel from Delaware who are killed in action, or during active duty, or who die overseas and are brought back to the United States for burial.
(g) perform such other and further duties as may be required by the Commander-in-Chief.
(h) The Adjutant General shall receive an annual salary as appropriated by the General Assembly.
(i) Furnish the proper officers of the United States Government such reports and other information as from time to time is deemed necessary.
§124. Appointment of Assistant Adjutant General
The Adjutant General will be assisted by an Assistance Adjutant General of the Army National Guard in the Department of Military Affairs and an Assistant Adjutant General of the Air National Guard in the Department of Military Affairs. They shall hold the rank of Brigadier General. Such individuals shall be appointed from the active or retired list of the Army National Guard and Air National Guard respectively by the Adjutant General and shall have served as a commissioned officer of the Delaware National Guard or Armed Forces of the United States and shall serve at the pleasure of the Adjutant General.
§1. Duties of Assistants in Absence or Disability of the Adjutant General.
In case of absence or disability of the Adjutant General to perform the duties of his office, the Commander-In-Chief shall designate of the Assistant Adjutants General to serve as the Adjutant General.
§2. Service Officers; Appointment and Duties.
The Adjutant General shall designate two individuals of the clerical force of the Department of Military Affairs as Service Officer and Assistant Service Officer, who shall assist any active or former member of the Delaware National Guard or any resident of this State who has served in the Armed Forces of the united States or their husbands, wives, children or dependents in adjusting their claims with the government arising from such service.
§ 127. Military Staff of Governor.
The Military Staff of the Governor shall consist of the Adjutant General, the Assistant Adjutants General, and such personal Aides-de-Camp as the Governor may select. Commissioned officers of the Delaware National Guard if detailed as Aides-de-Camp, shall be relieved of ordinary duties while actually on duty with the Governor but shall continue to be paid as if on ordinary duty.
§128. Duties of Department of Minter/ Affairs.
The Department of Military Affairs shall assist the Adjutant General in carrying out the duties of that office and shall also consult with him or her in carrying out the following duties:
(a) Making such changes in the military organization of the Delaware National Guard as are necessary from time to time to conform to the requirements of the laws of the United States and the directives of the National Guard Bureau.
(b) Fix the location of units and headquarters of the Delaware National Guard and shall, subject to the approval of the National Guard Bureau, transfer, attach, consolidate or inactivate any organization or unit when in its Judgment the efficiency of the Delaware National Guard presently existing will be increased thereby.
(c) Establish awards and decorations and approve the design therefore.
§129. Commissioned Officers: Warrant Officers; Oath and Term of Appointment.
All officers known as commissioned officers, and warrant officers, appointed under and by authority of this chapter shall, before entering, upon the duties of their several and respective offices, take and subscribe the oath as prescribed by the National Defense Act for officers or warrant officers, as applicable, for officers of the National Guard, and shall hold their appointments in conformity therewith.
§130. Regulations as to Appointment of Officers and Other Matters.
The Governor of this State may issue such regulations governing the appointment of officers in the National Guard of this State and such other matters pertaining to the National Guard as may be necessary In order to conform to the requirements made by Congress for participation in federal appropriations for the National Guard.
§131. Enlistment and Oath.
Enlistment and oath of enlistment in the National Guard of this State shall be inconformity with the provisions of the National Defense Act and any amendments thereto.
§132. Discharge of Enlistment Personnel.
The discharge of enlisted personnel from the National Guard of this State shall be inconformity with the National Defense Act and any amendments thereon governing the discharge of enlisted personnel.
§133. Retirement of officers and enlisted Personnel.
(a) Any commissioned officer of the Delaware National Guard who has reached the age of 64 years shall be placed upon the retired list by the Commander-in-Chief.
(b) Any commissioned officer of the Delaware National Guard who has faithfully served as an officer of the Delaware National Guard for a period of not less than 10 years may at his or her own request be retired from active service; or if a commissioned officer who has not served as such for the full length of time provided in this subsection shall become permanently disabled to perform his or her duties, that officer may, upon her or her own application and at the discretion of the Commander-in-Chief, be so retired.
(c) Any warrant officer or enlisted person having served faithfully for a period of 15 years, or becoming disabled in the service, may be retired from active service M the discretion of the Commander-in-Chief.
(d) All officers and enlisted personnel who shall have served actively 25 years or more in the Delaware National Guard may upon their own request be placed upon the retired list, at the grade next higher to that held by them at the time of their application, in recognition of long and faithful service.
§134. Rights of Retired Officers and Enlisted Personnel.
Retired officers and enlisted personnel shall be borne on the roster of the Delaware National Guard as so retired and shalt be entitled to war the uniform of the highest grade attained by them on all occasions of ceremony. Retired officers may, at the discretion of the Commander-in-Chief, with their consent be temporarily placed on active duty.
§135. Oaths and Affirmations; Who May Administer; False Swearing.
(a) General, field, commissioned and warrant officers may administer oaths and affirmations in all matters appertaining to or concerning the Delaware National Guard service, but in no case shall they charge any fee or compensation therefor.
(b) Whoever falsely swears or falsely affirms to any oath or affirmation administered pursuant to this section shall be deemed guilty of perjury, second degree, a class E felony.
§136. Use of State Armories and Arsenals; Rentals.
(a) The Adjutant General shall determine the use of Armories and Arsenals by military units of the Delaware National Guard.
(b) The Adjutant General may enter into, on behalf of the State, leases and contracts for the use of any state owned Armory, arsenal or military reservation upon such terms and conditions and for such duration as he or the deems advisable; provided, such use or occupation of any such property shall not Interfere with the operation of such property by the armed forces of this State.
(c) All rentals received for the use of any such property shall be forwarded to the Adjutant General and be used to pay for the Maintenance Utilities and other expenses associated with such use of said armories.
(d) No order shall be paid by the State Treasurer unless approved by the Adjutant General, or by an officer or employee designated by him or her, or unless an itemized bill or statement showing in detail the items to be paid under such order shall be attached and the contents thereof certified to be correct.
(e) The Adjutant General shall have full authority to make application to the National Guard Bureau for federal funds to improve or maintain any armory, arsenal or military reservation of this State.
SUBCHAPTER III. PROPERTY: ACCOUNTABILITY, MISAPPROPRIATION AND INJURY.
§141. Responsibility of Officer Receiving Property or Funds.
(a) Any officer receiving state or federal property or funds for military sue shall be liable under the appropriate regulations for the proper safeguarding of such property or funds. He shall not be discharged from his responsibility therefor until he has properly accounted for such property or fund, either by appropriate receipt from his successor in command or an other officer authorized to receive the same, for the articles received by him in good order and condition, reasonable wear, and use excepted: or by satisfactory proof to the Adjutant General that any and all articles not so accounted for had been properly expended in the service; or defaced or destroyed through the misconduct of any person and that reasonable efforts had been made by said officer to recover or prosecute for the same.
(b) The officer succeeding to the command of the company or detachment shall be likewise liable under appropriate regulations to the State as prescribed in subsection (a) of this section, for the safekeeping and return of all property of the State or of the United States. in possession of said company or detachment, upon the terms and conditions imposed upon the officer from whom the property was received.
(c) The Adjutant General shall be empowered to enter suit against any officer in the name of the State. for the value of such property of the State or United States as may have been defaced. injured, lost or destroyed, after having been received by such officer and which has not been properly accounted for by him or her.
§142. Arms and Property to be Deposited on Order of Proper Officer; Penalty.
(a) All arms, equipment or other property furnished to organizations of the Delaware National Guard shall, when required by the Adjutant General or the commanding officer of any unit be deposited in the armory of the unit.
(b) Any person to whom such property was issued failing to deposit or return any article of such property unless properly accounted for within 10 days after said person shall have been notified by written notice from the commanding officer to return it to the armory shall be assessed damages in an amount of double the value of the property thus illegally detained. which assessment shall become a Judgment of the court and entered upon its records as such. The court is empowered to use its civil contemp power to enforce payment of this assessment.
(1) Notice under this section shall be given either by personal delivery thereof to the person to be notified or by deposit of such notice in the United States mail in an envelope with postage prepaid. addressed to such person at his or her address as shown by the records of the Delaware National Guard.
(2) The giving of notice by mail is complete upon the expiration of four days after such deposit of such notice. proof of the giving of notice in either such manner may be made by the certificate of any officer or employee of the Delaware National Guard or affidavit of any person over 18 years of age, naming the person to whom such notice was given and specifying the time, place and manner of the giving thereof.
(d) When any arms, equipment or other property furnished to organizations of the Delaware National Guard are lost or damaged by the act or neglect of any officer or enlisted person, deduction may be made to the amount of such loss or damage from any pay or allowance that may be or become due, under this chapter. to such officer or enlisted person.
§143. Recovery of Arms and Property of Disbanded Company.
Upon disbandment of any company or organization which has received arms. equipment or any other property of the State or of the United States for military purposes the commanding officer of such company or organization shall be responsible for the return of the same to the custody of a duly authorized officer of the State.
The Adjutant General shall take the necessary legal proceedings in the name of the State or direct that proper legal proceedings be taken. as provided for in Section 142 of this Title unless the property is properly accounted for.
§144. Enforcement Jurisdiction.
(a) The Justice of the Peace Courts shall have jurisdiction to enforce the provisions of this subchapter.
(b) The Delaware National guard may appear in Justice of the Peace Court by and through any officer designated by the Adjutant General for the purposes of enforcing this subchapter.
SUBCHAPTER IV. COURTS-MARTIAL AND SENTENCES
§151. Kinds of Courts-Martial; Proceedings.
Courts-martial shall be of three kinds, namely General, Special and Summary. They shall be constituted like similar courts-martial of the Army and Air Force. They shall have the same Jurisdiction and powers, except as to punishments, as do the similar courts-martial.
They shall follow the forms and procedures provided for those courts. All charges and specifications shall be laid under some one or more of the Articles of the Uniform Code of Military Justice, except for certain specified offenses. These Articles, as amended, shall be of the same force and effect in any proceedings before any court martial of this State as if the same had been enacted at length in this section.
§152. General Courts-Martial.
(a) General courts-martial in the Delaware National Guard may by convened by order of the Governor.
(b) A general court-martial may sentence to-
(1) A fine of not more than $300 for a single offense.
(2) Forfeiture of the member's base pay for up to 180 paid duty days.
(3) A reprimand.
(4) Dismissal, dishonorable discharge, or a bad conduct discharge. (5), Reduction of any noncommissioned officer or enlisted person to any rank. (6) Any combination of these punishments.
(c) Any sentence imposed by a general court-martial shall not become effective until approved by the Commander-in-Chief.
§153. Special Courts-Martial.
(a) When not in Federal service, the commanding officer of a garrison, fort, post. camp, air base, auxiliary air base, or other place where troops are on duty, or of a brigade, regiment, wing group, detached battalion, separate squadron. or other detached command. may convene special courts-martial. Special courts-martial may also be convened by superior authority.
(b) A special court-martial has the same powers of punishment as a general court-martial, except that a fine imposed by a special court-martial may not be more than $150 for a single offense.
(c) Any sentence imposed by a special court-martial shall not become effective until acted upon by the appointing authority.
§154. Summary Courts-Martial.
(a) When not In Federal service, the commanding officer of a garrison, fort, post. camp. air base, auxiliary air base. or other place where troops are on duty, or of a regiment. wing, group, detached battalion, detached squadron, detached company, or other detachment, may convene a summary court-martial consisting of one commissioned officer. The proceedings shall be Informal.
(b) A summary court-martial may sentence to-
(1) A fine of not more $75 for a single offense.
(2) Forfeiture of the member's base pay for up to 20 paid duty days.
(3) Reduction of any noncommissioned officer or enlisted person to any rank within the promotional authority of the appointing authority.
(4) Any combination of these punishments.
(c) Any sentence imposed by a summary court-martial shall not become effective until acted upon by the appointing authority.
§155. Confinement in Lieu of Fines.
When not in Federal service, a General or Special Court-Martial may. instead of Imposing a fine, sentence to confinement for not more than 10 days, the serving of which can only be required during regularly scheduled assemblies of the unit to which the offender is assigned.
Any such sentence must be specifically approved by the Adjutant General prior to its execution.
§156. Sentences Which Require Governor's Approval.
When not in Federal Service, sentence of dismissal, dishonorable or bad conduct discharge from the service imposed by court-martial shall not be executed until approved by the Governor.
§157. Warrants and Subpoenas.
(a) When not in Federal service, the president of a court-martial or a summary court officer may-
(1) Issue a warrant for the arrest of any accused person who, having been served personally or by certified mail with a copy of the charges, and a written order by the convening authority to appear before the court, disobeys said order.
(2) Issue subpoenas duces tecum and other subpoenas.
(3) Enforce by attachment the attendance of witnesses and the production of books and papers.
(4) Sentences for a refusal to be sworn or to answer. as provided for in actions before civil courts.
(b) Any warrant issued pursuant to this section any be executed by the sheriff or the county wherein the proceeding is pending, or any constable or other law enforcement officer therein, or by a military policeman or provost marshall so designated by the Adjutant General.
§158. Disobedience of Subpoenas.
Every witness not appearing obedience to such subpoenas when duly served and not having a sufficient or reasonable excuse shall forfeit to the State a sum of not less than 825 nor more than 8100 for each default, as determined by a Justice of the Peace upon motion therefor.
§159. Payment of Fines.
Upon the finding of any court-martial or summary court imposing any fine, and upon the approval of the finding by the officer appointing the court, the fine or fines so imposed shall be and become at once payable to the judge advocate in the case of general or special courts-martial and to the summary court officer in the case of summary court-martial.
§160. Fines Paid to Delaware National Guard Courts-Martial Fund.
All fines and forfeitures imposed and collected through the sentence of courts-martial or non-judicai punishment shall be forwarded to the Adjutant General and by him or her paid over to the Delaware National Guard Courts-Martial Fund.
§161. Confinement in Jails.
The warden of any prison shall receive and confine all military offenders when delivered by the sheriff or a constable under the proper certificate of commitment of a general, special or summary court-martial for and during the term of sentence as set forth In the commitment.
§162. Violation of Duties by Sheriffs Constables and Wardens.
Whoever, being a sheriff, constable or prison warden neglects or refuses to:
(a) Execute any process; or
(b) Make proper return of all fines and penalties collected; or shall be fined 8100 for each such offense for the use of this State.
§163. Non-Judicial Punishment.
Any commanding officer of the Delaware National Guard, not in Federal service, may, in addition to or In lieu of admonition or reprimand, impose non-Judicial punishment in a like manner and to the extent prescribed by Article 15 of the Uniform Code of Military Justice, Manual for Courts-Martial, United States, 1968 as amended, as adopted by regulation of the Delaware national Guard.
SUBCHAPTER V. CALLING OUT OF NATIONAL GUARD
§171. When Governor May Call Out Guard.
When it is necessary to use any military force for public defense against foreign or domestic violence, or to provide for the protection of the lives or property of the people of this State, or in times of imminent danger of foreign or domestic violence, epidemic or breach of the public peace or of Immenent danger to the lives or property of the people of this State, The Governor, as commander-In-Chief, shall have the power according to the emergency to call out any regiment, battalion, company, or any part thereof for any such purpose.
§172. Proclamation of State of insurrection.
Whenever any portion of the Delaware National Guard is employed in aid of the civil authority, the Governor, if in his or her Judgment the maintenance of law and order will thereby be promoted, may be proclamation declare the county or city in which the troops are serving or any specified part thereof, to be in a state of insurrection.
§1. Requisition for Military Force; Neglect to Respond to Notice.
All requisitions for military force shall be made known to the forces whose services are required by the commanding officer thereof and upon refusal of those notified to attend the summons and perform the duty required, they shall be liable to such punishment as a general court-martial may determine.
§174, Field Maneuvers. Target Practice or Review.
The Commander-in-Chief may order into service the forces organized under this chapter for field maneuvers, target practice or review, at such places in this State as he or she deems best suited for the purpose when funds appropriated for such purpose are available.
§175, Exemption from Arrest; Right-of-Way.
No person belonging to the military forces of this State shall be arrested on any civil process while going to, remaining at or returning from any place at which he or she may be ordered to attend for military duty when the Delaware National Guard has been called out upon state duty.
Any portion of the Delaware National Guard parading or performing any duty according to law shall have the right-of-way in any street or highway through which they may pass. The carriage of the United States mails, the legitimate functions of the police and the progress and operation of fire engines and fire departments shall not be interfered with thereby.
§176, Rules Governing Troops When Called Into Service.
Whenever the troops are called into active federal duty, the officers and personnel shall be governed by the regulations of the United States Army and United States Air Force.
§1, Bounds From Which Civilians Are Excluded; Offenses of Civilians; Penalties; Jurisdictions.
After the Delaware National Guard has been called out pursuant to the provisions of this subchapter, the commanding officer thereof may fix certain bounds within which no spectator may enter without leave.
Whoever intrudes within the limits fixed under this section, when forbidden to do so; or
Whoever, after entering within such limits by permission, conducts himself or herself in a disorderly manner; or
Whoever resists a sentry or guard acting under orders to prevent such entry or disorderly conduct;
Shall be fined not less than S10 nor more than $100 and the costs of prosecution and civil contempt processes may be used to obtain payment of same.
Whoever violates this section may be arrested by the commanding officer or by his or her order. Justices of the Peace shall have Jurisdiction of offenses under this section.
§178 Immunity From Civil and Criminal Liability.
(a) Neither this State, nor the National Guard of the State, nor, except in cases of wilful misconduct, gross negligence or bad faith, the officers, members, agents or representatives thereof, engaged in any state duty pursuant to this subchapter, shall be liable, either civilly or criminally, for the death of or injury to persons, or for damage to property, as a result of such activity.
(b) The National Guard of the State and the officers, members, agents and representatives thereof, engaged in any state duty pursuant to this subchapter or of Chapter 31 of this Title, shall have the authority to enforce any and all laws of this State and any and all ordinances of any municipality wherein such service is performed and shall be considered as officers of this State and of such municipality.
(c) if the National Guard of this State or any officer, member, agent or representative thereof is prosecuted by civil or criminal action, whether State or federal, for an act committed or performed by such organization or person while engaged in any state duty, pursuant to this subchapter or of Chapter 31 of this Title, all the expense of the defense of such action or actions, including, without limitation, attorney's fees, witnesses', fees for the defense, defendant's court costs and all costs for transcripts of records and abstracts thereof on appear by the defense, shall be paid by the State, provided that the Attorney General of the State shall be first consulted in regard to, and approve, of the selection of the attorney for the defense: and, provided, further, that the Attorney General of the State may, if he or she sees fit, assume the responsibility for the defense of such member and conduct the same personally or by any one of his or her assistants. The expenses of such defense shall be paid by the State Treasurer from any moneys not otherwise appropriated, upon warrants therefor signed by the Adjutant General and countersigned by the Attorney General.
(d) If as a result of criminal or civil action based all, or in part, on federal law, the national Guard of the State or any officer, member, agent or representative thereof is subject to liability which would not result if this section were applicable, such agency or person shall be completely indemnified and held harmless by the State.
(e) For purposes of the section. no officer, member, agent or representative of the National Guard of the State shall be held to have acted in bad faith, with gross negligence or with wilful misconduct if such person believed at the time of such act that such act was reasonably necessary to comply with this subchapter or Chapter 31 of this Title, or any order, rule or regulation promulgated pursuant to such subchapter and chapter or protect himself or herself other persons or property.
SUBCHAPTER VI. SERVICE PAY. DISABILITY COMPENSATION AND COMPANY APPROPRIATIONS
§181. Service Pay and Expenses During Emergency Service.
(a) For every day of service while on State duty on account of an emergency, as listed in Section 171 of this title. each enlisted member of the Delaware National Guard shall receive a sum equal to twice the per diem pay and allowances that military personnel of like grade and length of service in the United States Army would be entitled to receive for a similar period of service. Each officer or warrant officer of the Delaware National Guard shall receive a sum equal to twice the per diem pay and allowances that military personnel of like grade and length of service in the United States Army would be entitled to receive for a similar period of service.
(b) Service pay for such emergencies and any expenses incidential to mobilization shall be paid by the State Treasurer from any moneys not otherwise appropriated, upon warrants therefor signed by the Adjutant General and countersigned by the Governor.
§182. Disability and Death Benefits for Iniury or Death Occurring in Service of the State.
(a) As used in this section, the phrase "service of the State includes duty pursuant to Section 171 of this Title as well as attendance at military school under proper orders, participating in armory drill, special ceremonies, and field training unless otherwise designated by the United States Government.
(b) If any officer or soldier belonging to any regiment, company, or detachment of the Delaware National Guard is wounded or disabled in the service.of the State when called Into such service the member shall receive compensation from the State at the rate provided In Chapter 23 of Title 19, for the type of injuries sustained.
(c) If any officer or enlisted member of the Delaware National Guard Is killed in the service of the State. a pension shall be awarded to the spouse or next of kin, as the case may be, in accordance with the provisions of Section 2330 of Title 19.
(d) Such compensation or pension shall be based either upon civilian earning capacity or wages or upon military pay scale. whichever is greater.
(e) Any such compensation or pension shall be paid by the State Treasurer from any moneys not otherwise appropriated upon warrants therefor signed by the Adjutant General and Countersigned by the governor.
§ 183 Uniform and Equipment Allowances for Officers.
Any Individual who is commissioned or appointed an officer or warrant officer in the Delaware National Guard shall receive at the conclusion of the first year of service as such officer or warrant officer provided the member has performed 85 percent of duty during such year. the sum of $100 to assist in defraying the cost of uniform and equipment and thereafter shall receive annually the sum of $50 for such purposes.
§184. Unit Fund Grant.
The Delaware National Guard shall receive an appropriation annually for the units funds of said Guard. The funds received shall be allocated to each unit fund on a proportional basis based upon the unit's authorized strength. Any such funds shall be expended by the unit in accord with all applicable United States Army or United States Air Force Regulations.
§185. Exemption from State Merit System.
Personnel employed the State to support the operations and Maintenance of the National Guard shall be exempt from the State Merit System and shall be paid in accordance with like positions of the Military Technician Programs of the Department of Defense. Such employees shall be governed in a like manner in accordance with the rules and regulations which pertain to the Federal Military Technician Program.
§186. Compensation for Unused Sick Leave.
Any National Guard Technician who, under the National Guard Technician Act of 1968, elected to retain their State retirement benefits and who retired after January 1, 1969, shall be compensated for their accumulated unused sick leave in the same manner as State merit system employees.
CHAPTER 3. STATE DEFENSE FORCES
§301. Establishment and Composition.
(a) The Governor may organize such military forces within this state in addition to the Delaware National Guard as he deems necessary for the defense of this State. Such forces shall be distinct from the Delaware National Guard and shall be Known as The Delaware State Defense Forces. Such military forces shall be uniformed and comprised of officers and enlisted personnel who shall be citizens of this State who shall volunteer for such service.
(b) The Delaware State Defense Forces shall not be called into Active State Service unless the Delaware National Guard or a part therefor has been called into Active Federal Service.
(c) The Governor may organize a command staff for the Delaware State Defense Forces which staff shall develop plans for mobilization of said force.
(d) The Command Staff of the Delaware State Defense Forces may maintain lists of volunteers for service in such forces and develop an organizational structure for such forces when called to Active Service.
(e) Nothing contained herein shall prohibit the Delaware State Defense Forces from meeting on a voluntary basis at no cost to the state when not in Active Service.
§302. Rules and Regulations prescribed by the Governor.
(a) The Governor may prescribe rules and regulations for the administration, organization, equipment, training. discipline and maintenance of the Delaware State Defense Forces.
(b) The rules and regulations adopted pursuant hereto should conform as far as possible with the rules and regulations applicable to the Delaware National Guard.
§303. Pay and Allowances.
(a) The Delaware State Defense Forces shall, when called into Active State Service, be compensated as provided for by the Executive Order calling forth the forces.
(b) The Delaware State Defense Forces, when called into Active State Service, shall in no event be compensated in a manner exceeding the compensation paid members of like rank and length of service of the United States Army for such service.
(c) The Command Staff may be compensated at a rate set by the Governor for their expenses when meeting to develop mobilization plans; but shall not be compensated in excess of the base compensation paid an active duty member of like rank and length of service of the United States Army for a similar period of service.
(d) No funds may be paid to any member of the State Defense Forces unless specifically appropriated for such purpose.
§304. Arms and Equipment.
The Governor may enter such agreements as are necessary to procure arms and other equipment for use by the State Defense Forces.
§305. Use of State Qefense Forces Outside of Delaware.
(a) The Delaware State Defense Forces shall not be required to serve outside the boundrles of the State except:
(1) Upon the request of the governor of another state, the Governor of this State may, in his or her discretion, order any portion or all of such forces to assist the military or police forces of such other state who are actually engaged in defending such other state
(2) Any organization, unit or detachment of The Delaware State Defense Forces, upon order of the officer in immediate command thereof, may continue in fresh pursuit of insurrectionist, saboteurs, enemies or enemy forces beyond the borders of this State into another state until they are apprehended or captured by such organization, unit or detachment or until the military or police forces of the other state or the forces of the United States have had a reasonable opportunity to take up the pursuit or to apprehend or capture such persons; provided, that such other state shall have given authority by law for such pursuit by such forces of this State.
(b) Any such person who is apprehended or captured in such other state by an organization, unit or detachment of the forces of this State shall without unnecessary delay be surrendered to the military or police forces of the state which taken or to the United States, but such surrender shall not constitute a waiver by this State of its right to extradite or prosecute such person for any crime committed in this State.
§306. Permission to Military Forces of Other States to Pursue and Arrest Persons in Delaware.
(a) Any military forces or organization, unit or detachment thereof, of another state who are in fresh pursuit of insurrectionists, saboteurs, enemies or any enemy forces may continue such pursuit into this State until the military or police forces of this State or the forces of the United States have had reasonable opportunity to take up pursuit or to apprehend or capture such persons.
(b) Such military forces or organization, unit or detachment thereof, may arrest or capture such persons within this State while in fresh pursuit.
(c) Any such person who is captured or arrested by the military forces of such other state while in this State shall without unnecessary delay be surrendered to the military or police forces of this State to be dealt with according to law.
(d) This section shall not be construed so as to make unlawful any arrest in this State which would otherwise be lawful and nothing contained in this section shall be deemed to repeal any of the provisions of the Uniform Law on Fresh Pursuit, as contained in Title 11.
§307. Federal Service.
Nothing in this chapter shall be construed as authorizing the Delaware State Defense Forces or any part thereof to be called, ordered or in any manner drafted, as such, into military service of the United States, but no person shall by reason of his or her enlistment or commission in any such forces be exempted from military service under any law of the United States.
§308. Freedom From Arrest and Exemption From Jury Duty.
No officer or enlisted member of the Delaware State Defense Forces shall be arrested on any warrant, except for treason or felony, while going to, remaining at or returning from a place where ordered to attend for military duty.
Every officer and enlisted member of the Delaware State Defense Forces shall, during Active State Service, be exempt from service upon any posse comitatus and from Jury duty.
CHAPTER 5. WAR RECORDS
§501. War Records to be Maintained.
(a) The Adjutant General of this State shall make such agreements or contracts as are appropriate to preserve all war records, colors, standards, and battle flags as are or shall become the property of the State of Delaware.
(b) The Adjutant General shall make such agreements as are appropriate with the Division of Historical and Cultural Affairs to gather, preserve and display the war records and relics of this State.
(c) The Adjutant General shall do everything possible to gather and complete the war records of this State and to preserve the memory of the heroic deeds of the military personnel of this State.
Chapter 7. MEDALS AND MILITARY DECORATIONS
§701. Conspicuous Service Cross.
(a) The Governor may present, in the name of the State, a Conspicuous Service Cross to any person serving in the military or naval forces of the United States of America or of the State who shall have distinguished himself or herself in any capacity as provided in this section.
(b) The Conspicuous Service Cross shall be a bronze Maltese Cross. one (1) inch long, with the coat of arms of the State in miniature in the center thereof and the words For Conspicuous Service" Inscribed on the arms of the cross. The reverse shall be plain. The cross shall be suspended by a ribbon one and three eighth inches in width and one and three eighth inches in length of red with a gray strip of half inch in width in the center.
(c) The Conspicuous Service Cross may be awarded to any person serving in the military or naval forces of the United States of America or of the State who has performed conspicuous act of valor or who has rendered conspicuous service above the ordinary requirements of duty well done. The medal shall be awarded upon the recommendation of the same board that awards the Medal of Military Merit.
(d) Only one medal may be awarded to any one person. For each service subsequent to the service for which a medal has been awarded, a gold star three sixteenths of an inch in diameter may be given to any person to whom the medal his been awarded, which star shall be affixed to the ribbon of the medal.
§702. Delaware Distinguished Service Medal.
(a) The Delaware Distinguished Service Medal shall be a medal of bronze, one and one quarter inches in diameter. On the obverse is the First Regiment Flag with the outline of the State of Delaware overstamped on it. The words "For Distinguished Service" are inscribed around the face of the medal. The reverse is plain. The medal shall be suspended by a silk ribbon one and three eighth Inches In width and one and three eighth inches in length of gold with four bands of blue, two one sixteenth inch outer bands and two one 'eighth inch inner bands.
(b) The Delaware distinguished Service medal may be awarded to any person serving in the military or naval forces of the United States of America or of the State who has rendered distinguished service to the Delaware National Guard. The award may be awarded to individuals for single acts which distinguish service members from contemporaries or for long and distinguished service, which clearly separate the members from others of comparable grade and time of service. The medal shall be awarded upon the recommendation of the same board that award the Medal of Military Merit.
(c) Only one medal may be awarded to any one person. For each additional award, a numeral three sixteenths of an inch in diameter shall be given to the one who has earned the medal, which shall be affixed to the ribbon of the medal.
§703. Medal for Military Merit.
(a) The Medal for Military Merit shall be a medal of bronze, one and one quarter inches In diameter. On the obverse is the coat of arms of the State around which is inscribed "For Military Merit." The reverse is plain. The metal shall be suspended by a silk ribbon one and three eighth inches in width and one and three eighth Inches in length of gray with a band of red one quarter inch in width in the center.
(b) This medal may be awarded under the following conditions:
(1) For long and faithful service, in which case a bronze bar with these words will be placed on the ribbon of the medal, to be awarded to officers and enlisted members who have completed 10 or more years of faithful service and attended at least 75 percent of their drills and camps of instruction during that time. Time spcnt in the federal service shall count in the computation of time;
(2) For proficiency in military studies: To be awarded to such officers and enlisted members who complete a course of military studies consisting of at least 80 hours of instruction and who are designated as 'honor' or 'distinguished' graduates.
(3) To such officers and enlisted members who distinguish themselves by performing their military duties in a manner which brings credit to themselves or the Delaware National Guard.
(c) This medal shall be awarded upon the recommendation of a board of three officers and two enlisted members appointed by the Adjutant General. This medal may be awarded for any meritorious military activity not enumerated above. provided such award is approved by the Governor.
(d) Only one medal shall be awarded to any one person. For each service subsequent to the above, a numeral three sixteenths of an inch In diameter shall be given to the one who has earned the medal, which shall be affixed to the ribbon of the medal.
§704. Medal for Service in Aid of Civil Authority.
(a) The Medal for Service in Aid of Civil Authority shall be a bronze medal one and one quarter inches in diameter. On the obverse a mailed fist grasping a Roman sword, the sword vertical, point up: upon the point of the sword the scales of Justice. The words "For Service in Aid of Civil Authority, in circular from inscribed thereon. The medal shall be suspended by a ribbon one three eighth inches in width and one and three eighth inches in length in blue with a bank of gold one quarter inch wide through the center.
(b) This medal may be awarded to officers and enlisted members of the Delaware National Guard who have been called upon by the Governor to assist the civil authorities in the preservation of law and order. It may be awarded to former officers and enlisted members who have had service as specified above and who have been honorably discharged from the Delaware National Guard.
(c) Only one medal shall be awarded to any one person. For each Service in Aid of Civil Authority subsequent to the one that earns the medal, a numeral three sixteenths of an inch in diameter shall be affixed to the ribbon.
§705. Minor Awards and Ribbons.
The Adjutant General may award such minor awards and ribbons for distinguished or meritorious service or actions as he shall by regulation provide.
CHAPTER 9. MISCELLANEOUS MATTERS RELATING TO
§901. curial of Indigent Service Members,
The Adjutant General shall provide out of funds appropriated to the Delaware National Guard for the proper Interment of each and every indigent soldier, sailor or marine who shall have served in the Army, Navy or Air Force of the United States in any war in which it has been engaged and been honorably discharged therefrom, who shall at the time of his or her death be a resident of this State leaving insufficient means to defray the expenses of interment,
§902. Procedure and Conditions for Burial Payments.
Whenever the commander of the nearest post representing the war in which the applicant was engaged shall be notified of the death of any such indigent soldier, sailor or marine and shall upon careful investigation ascertain that the person so dying was not possessed of sufficient means to defray the expenses of interment, the post commander shall appear in person before a notary public and make affidavit to this effect. The affidavit together with a copy of the discharge certificate of the soldier, sailor, or marine, or in the event that no copy of discharge certificate is available, then a certified record of service shall be presented to the Adjutant General who shall make appropriate arrangements for interment.
§903. Military Funerals for Service Members Brought from Overseas.
To assist our heroic service personnel and their families who made the supreme sacrifice there is appropriated for the expense of conducting military or naval funerals of deceased service members from Delaware brought from overseas the sum of $125 per funeral, the same to be paid on the warrants of the Adjutant General when approved by the Governor from funds appropriated therefor.
§904. Unlawful Use of Insignia of Veterans' Organizations: Penalties.
Whoever, not being a member of the Grand Army of the Republic, the Union Veteran Legion, The United Spanish War Veterans. The Veterans of Foreign Wars, The American Legion, The American Legion Auxiliary. Sons of the American Legion. 40 et 8, 8 et 40, or any other service or ex-service unit, auxiliary or organization. wears, uses, exhibits or displays any badge, button or other insignia of any of such organizations with intent to make it appear that he or she is a member of any of such organizations or entitled to any of the benefits or advantages resulting from membership therein, shall, for each such offense, be fined not more than $200, or shall be imprisoned not more than 10 days, or both.
§905. Leaves of Absence for Members of Reserve on Temporary Active Duty.
(a) If any employer fails to comply with any provisions of Federal or State law relating to employment rights of Reservists or National Guard Members, the employee may, at his or her election. bring an action at law for damages for such non-compliance or such other relief as is appropriate in the Superior Court of Delaware.
(b) Any National Guard member who is called to state active duty shall be entitled to the same rights, privileges, and protections with respect to his or her employment as such member would have had if called for military training under Federal law protecting Reservists and National Guard members."
Approved May 22, 1984.