Report | April 30, 2014

Evaluation of Department of Defense Interaction with State Defense Forces

DODIG-2014-065

Who Should Read This Report

Representatives from the Under Secretary of Defense for Policy; Assistant Secretary of Defense for Homeland Defense and America’s Security Affairs; Chief, National Guard Bureau; and Commander, United States Northern Command should read this report.

What We Recommend

A.     The Under Secretary of Defense for Policy, in coordination with the Office of General Counsel, clarify the position of the Department and characterize the level of coordination and interaction between the DoD Components and State Defense Forces permissible by statute.

B.     Chief, National Guard Bureau, modify National Guard Bureau Regulation 10-4, “Organization and Functions: National Guard Interaction with State Defense Forces,” to state that State Defense Forces be considered as any other State agency with respect to State Defense Forces preparation for and participation in Federal responses, and the related use of Federal equipment, excepting the specific restrictions of section 109(d), title 32, United States Code.

Synopsis

Authorization for states to maintain State Defense Forces (SDF) are outlined in section 109, title 32, United States Code (32 U.S.C. § 109 [2013]). They are probably the least well-known military element operating in the U.S. Initially established by Congress in the early 20th century[1] and authorized in their current form in 1955,[2] there were active SDF in 22 states and Puerto Rico, as of March 2014. These forces had an estimated aggregate membership of about 14,000[3] and performed missions ranging from ceremonial guards during state events to assisting first-responders during state emergencies.

The purpose of this assessment was to review the effectiveness of DoD interaction with SDF. We found that the status of SDF varied among the states choosing to establish them, and the interaction between DoD and the 23 SDF was not properly defined. Improved DoD/SDF cooperation and interaction was impeded by two critical aspects.

Improper and overly restrictive implementation of the statute establishing SDF nearly prohibited DoD interaction with or support of those forces.[4] A correct interpretation of the language differentiates voluntary, state-maintained “other troops” from the dual-function National Guard. Accordingly, as state organizations, SDF would not be eligible for Federal benefits, such as pensions and access to the Federal military healthcare system. However, this prohibition did not prohibit DoD from sharing with SDF any equipment or other resources acquired with Federal funds providing it furthers DoD missions.

The Office of the Secretary of Defense and DoD agencies lacked policy outlining the sharing and loaning of DoD equipment or other guidance governing DoD interaction with SDF. The only current policies directly addressing SDF was National Guard Regulation 10-4, “Organization and Functions: National Guard Interactions with State Defense Forces,” November 2, 2011, applicable only to the National Guard, and Army Regulation 670-1, “Wear and Appearance of Army Uniforms and Insignia,” February 3, 2005, Rapid Action Revision (RAR), issue date May 11, 2012. Recent changes to policy controlling combined disaster response of DoD, the National Guard, and other state actors did not include discussion of SDF.

Recommendations, Management Comments, and Our Response

Recommendation A

Under Secretary of Defense for Policy, in coordination with the Department of Defense Office of General Counsel, clarify the position of the Department with regard to what efforts are legally permissible for coordination and interaction between DoD organizations and State Defense Forces, and if permitted, characterize the nature of the coordination and interaction.

Office of the Under Secretary of Defense for Policy

The Under Secretary of Defense for Policy non-concurred with our recommendation, stating that “a consistent definition of the permissible use of DoD resources for SDFs is prescribed in 31 U.S.C. §1301(a), which provides: ‘Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.’”

Our Response

We considered the management comments partially responsive. The intent of our recommendation was to alleviate observed inconsistency in the interpretation and application of the language contained in section 109(d), title 32, United States Code. U.S. States that chose to create SDF gave them a variety of missions leading to unique interactions with DoD Components, primarily the National Guard. 

While we still think that the Office of the Under Secretary of Defense for Policy should clarify and communicate to State Adjutants General the mechanism by which they can obtain a consistent interpretation of the permissible use of Federal resources by SDF, we accept management’s analysis of the risk associated with their proposed course of action.

Recommendation B

Chief, National Guard Bureau, modify National Guard Bureau Regulation 10-4, “Organization and Functions: National Guard Interaction with State Defense Forces,” to establish that State Defense Forces be considered as any other State agency with respect to State Defense Forces preparation for and participation in Federal responses, and the related use of Federal equipment, excepting the specific restrictions of section 109(d), title 32, United States Code.

Office of the Under Secretary of Defense for Policy

The Under Secretary of Defense for Policy non-concurred with our original recommendation to develop and publish guidance for DoD Components governing interactions with SDF. Management stated that SDF were “treated like other State government entities that DoD may interact with, and there are provisions in force that address DoD Components’ interactions with State entities, citing DoD Directive 1100.20, “Support and Services for Eligible Organizations and Activities Outside the Department of Defense,” as an example.

Our Response

The comments from the Under Secretary of Defense for Policy were partially responsive. We met with the Deputy Under Secretary of Defense for Homeland Defense Strategy and Force Planning, who asserted that additional DoD policy was not necessary. However, management agreed that, while SDF were unique in several ways, interaction with DoD Components should be at least on-par with other State agencies. In response, we have modified and redirected the recommendation to the Chief, National Guard Bureau, recommending that the Bureau change the regulation governing National Guard/SDF interaction to state that SDF be considered as any other State entity, excepting those specific restrictions stated in section 109(d), title 32, United States Code. 

 
[1] Public Law 64–85, Section 61(b), “The National Defense Act of 1916.”
[2] Public Law 84-364, “To Authorize the States to Organize and Maintain Stated Defense Forces, and for Other Purposes, 1955.”
[3] Data as of 2005 in “Why More States Should Establish State Defense Forces,” The Heritage Foundation, February 28, 2012 http://www.heritage.org/research/reports/2012/02/why-more-states-should-establish-state-defense-forces.
[4] Section 109(d), title 32, United States Code (32 U.S.C. § 109 [2013]), pg. 2, states that, “A member of a defense force…is not…entitled to pay, allowances, subsistence, transportation, or medical care or treatment, from funds of the United States.”