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Laws: General Provisions

1. "Active militia" means the organized and uniformed military forces of this state known as the "North Dakota national guard" and the reserve militia when called to active service.
 
2. "Active service" means state active duty in case of public disaster, riot, tumult, breach of the peace, resistance of process, or the threat thereof, whenever called in aid of civil authorities, or under martial law, or at encampments, whether ordered by state or federal authorities, and includes the performance of any other duty requiring the entire time of the organization or person, except when called or drafted into the federal service by the president of the United States. The term includes service in case of, or to prevent, insurrection, riot, or invasion under the order of the commander in chief communicated through proper military channels.
 
3. "Military forces of this state" means those individuals in the active militia.
 
4. "Militia" means a group of individuals defined in the Constitution of North Dakota.
 
5. "National guard" means that part of the military forces of this state which is organized, equipped, and federally recognized under the provisions of the National Defense Act, as amended, of the United States as the "national guard, air national guard, of the United States and the state of North Dakota". The term includes also the term "national guard of the state of North Dakota".
 
6. "On duty" includes periods of drill and of such other training and service as may be required under state or federal law, regulation, or order.
 
7. "Reserve militia" consists of all those individuals who are subject to service in the active militia and who are not serving in the national guard of this state.
 
8. "State active duty" means active service on behalf of the state under authority of the governor at the expense of the state.
 
9. "State defense force" means the group of individuals in the reserve militia in state active duty under chapter 37-12.1.
No armed military force from another state, territory, or district may enter this state for the purpose of doing military duty herein without the permission of the governor, unless such force is a part of the United States army or is acting under the authority of the United States of America.
The articles of uniform code of military justice governing the armed forces of the United States as codified in the Manual for Courts-Martial, United States, as effective through 2010, now in effect, are a part of this title so far as the same are applicable and not modified by any provision of this title. A person who commits an offense while on duty may be tried by a court-martial lawfully appointed even after such duty has terminated, and if found guilty, the accused must be punished according to the articles of uniform code of military justice and the rules and regulations governing the armed forces of the United States and within the limits prescribed in this title and by federal law for the courts-martial in the national guard. In any case in which the person alleged to have committed the offense could be charged either under the code of military justice or the civil law of this state, the officer whose duty it is to approve such charge, in the officer's discretion, may order the person charged or subject to being charged to be turned over to the civil authorities for trial. Whenever reference is made to the articles of uniform code of military justice, to the military service, or to the armed forces of the United States, such reference shall be deemed to include the military service of this state. The intent of this title and of all laws of this state affecting the military forces is to conform to all acts and regulations of the United States affecting the same subjects, and all laws of this state shall be construed to effect this purpose.
Whenever the governor orders the national guard or any portion thereof into the active service of the state in accordance with sections 37-01-04 and 37-01-06, the adjutant general shall determine and record the costs of the national guard in performing such service. Immediately following the termination of such active service, or prior thereto if it is deemed necessary by the adjutant general, the adjutant general shall make application to the state emergency commission for a grant of funds from the contingency fund or other available funds in the state treasury in an amount equal to the costs of the national guard in performing such service. Notwithstanding other provisions of chapter 54-16, it must be conclusively presumed upon the receipt of such application by the emergency commission from the adjutant general that an emergency exists, and such commission shall forthwith grant and direct the transfer to the credit of the national guard from the contingency fund or such other funds as may be available of an amount equal to that certified in such application by the adjutant general.
In case of insurrection, invasion, tumult, riot, breach of the peace, or imminent danger thereof, to provide a presence at state ceremonial events, to provide assistance to political entities in search and rescue efforts or to respond to a potential natural or environmental hazard or nuisance, or to perform training activities, the governor may order into the active service of this state any part of the national guard that the governor may deem proper. When the national guard of this state, or a part thereof, is called forth under the Constitution of the United States and the laws of the United States, the governor shall order out for service the remaining troops or such part thereof as may be necessary. If the number of available troops is insufficient, the governor shall order out such part of the reserve militia as the governor may deem necessary.
The state designation of an organization of the national guard which is absent from this state in the service of the United States may not be given to any new organization.
The governor, as commander in chief of the military forces of this state, may take any measure necessary to prevent or avert any impending disaster or calamity which threatens to destroy life or property in this state, or which may entail loss of life or property, or result in great suffering or hardship among the people of this state. In the event of any strike or lockout, or threatened strike or lockout, of the employees of any coal mine or public utility which threatens to endanger the life and property of the people of this state, the governor may commandeer and take for use during any such emergency any such coal mine or public utility together with the machinery, equipment, and appurtenances of any such mine or utility which may be necessary to save life and property. The governor may employ all help necessary for the operation of any such coal mine or public utility and may make and enter into all contracts required for the operation thereof. The governor may purchase any and all material necessary for operating any such coal mine or public utility and may sell and distribute the products or services thereof.
When the governor is required to take over and use any coal mine or public utility as provided in section 37-01-06, the governor may:
 
1. Use any of the facilities or offices of this state.
 
2. Command the services of the state militia.
If any portion of the militia is employed in aid of the civil authority, the governor, if in the governor's judgment the maintenance of law and order will be promoted thereby, may declare by proclamation the county or city in which the troops are serving, or any specified portion thereof, to be in a state of insurrection.
The commander in chief of the national guard of this state may issue an order providing suitable service medals or ribbons or marks of distinction for all officers and enlisted men who have served in the national guard for an aggregate period of five, ten, fifteen, and twenty years, respectively, and for a like service thereafter or for service on active duty with the armed forces of the United States. Such service medals or ribbons may also be awarded to any member of the armed forces of the United States who shall serve in an active duty capacity with the North Dakota national guard for a period of two or more years.
The governor, in the name of the legislative assembly, may present a military medal known as the "North Dakota legion of merit" to any member or former member of the North Dakota national guard who, in the discharge of the person's military duty, has been distinguished by outstanding service and twenty years of duty to the North Dakota national guard, and that person's community, state, and nation. Such medal may also be awarded to a member or former member of the armed forces of the United States or of the national guard of another state who performs outstanding service for the guard of this state. The medal must bear a suitable inscription and must be of military design as prescribed by the adjutant general. The medal must be awarded by the board of awards in the same manner as prescribed in section 37-01-10.
The governor, in the name of the legislative assembly of this state, may present a military medal, known as the "distinguished service medal", to any member or former member of the North Dakota national guard who in the discharge of the person's military duties has been distinguished by extraordinary heroism or devotion to duty or to a member or former member of the armed forces of the United States or the national guard of another state who performs outstanding and extraordinary service for the national guard of this state. Such medal must bear a suitable inscription and ribbon and must be of suitable military design. The award of a distinguished service medal must be made by a board of awards consisting of the adjutant general and senior officers of regiments or separate organizations of the national guard of this state. Such board must be instituted by a general order of the adjutant general's office prescribing rules and regulations for its meetings and method of procedure. Not more than one distinguished service medal may be awarded to any one person and no medals may be awarded or presented to any person whose service subsequent to the recommendations for award has not been honorable. For each succeeding citation, a person to whom a distinguished service medal has been awarded or presented previously is entitled to wear, as the adjutant general of the state may direct, a metal device attached to the ribbon of such distinguished service medal. In the event of the death of a person to whom a distinguished service medal has been awarded, the presentation must be made to the nearest of kin.
No person belonging to the active militia of this state may be arrested on any warrant, except for treason or felony, while going to, remaining at, or returning from any place which the person may be required to attend for military duty.
Members of the national guard or militia ordered into the active service of the state by any proper authority are not civilly nor criminally liable for any act or acts done by them in the  line of duty. Members of the national guard or militia ordered into active service of the state  must be presumed to be acting in the line of duty except in the case of willful misconduct or  gross negligence. When a suit or proceeding is commenced in any court against an officer of  the militia for any act done by such officer in the officer's official capacity in the discharge of any duty under the provisions of this title, or against any person acting under the authority or order of any such officer or by virtue of any warrant issued by any such officer pursuant to law, the defendant is entitled to legal representation provided by the attorney general, an assistant attorney general, or a judge advocate officer at no cost. The defendant in such action may require the person prosecuting or instituting the suit or proceeding to file security for the payment of the costs that may be awarded to the defendant therein. The defendant in all such cases may make a general denial and give the special matter in evidence. If the action is dismissed or a verdict or judgment is rendered against the plaintiff, the defendant shall recover treble costs in the action. 
Commanding officers of any portion of the national guard parading or performing any military duty in any street or highway may require any or all persons in such street or highway to yield the right of way, except that the carriage of the United States mail, the legitimate functions of the police, and the progress and operations of hospital ambulances and fire departments may not be interfered with thereby. The adjutant general may provide for the issuance of special identification plates to be placed upon the privately owned vehicles of members of the national guard in order to properly identify vehicles operated by such members. All persons who hinder, delay, or obstruct any portion of the national guard wherever parading or performing any military duty are guilty of a class B misdemeanor.
Any person belonging to the military forces of this state, going to or returning from any parade, encampment, drill, or meeting which the person may be required by law to attend, must be allowed to pass free through all toll gates and over all toll bridges and ferries, with the person's conveyance and with any military property of this state in the person's charge, if the person is in uniform or if the person presents an order for duty or a certificate of membership in the national guard. 

Repealed by S.L. 1977, ch. 113, § 1.

Any person who shall:
 
1. Secretly sell, dispose of, offer for sale, purchase, retain after a demand made by a commissioned officer of the national guard, or in any manner pawn or pledge any arms, uniforms, equipment, or other military property issued under the provisions of this title; or
 
2. Wear any uniform or any device, strap, knot, or insignia of any design or character used as a designation of grade, rank, or office, prescribed by law, or by general regulation duly promulgated, for the use of the national guard, or any device, strap, knot, or insignia similar thereto, unless the person is a member of the army or navy of the United States or of the national guard of this or any other state, a member of an association wholly composed of soldiers who have been honorably discharged from the service of the United States, or a member of the order of sons of veterans, is guilty of a class B misdemeanor.
Upon any occasion of duty, the commanding officer may place under arrest during the continuance of such duty any person who shall:
 
1. Trespass upon the campground, parade ground, armory, or other place devoted to such duty;
 
2. Interrupt or molest in any way or manner the orderly discharge of duty by those under arms; or
 
3. Disturb or prevent the passage of troops going to or returning from such duty.
 
In a place declared by proclamation of the governor to be in a state of insurrection, any person who shall:
 
1. Resist the execution of process;
 
2. Aid the rescue or escape of another from lawful custody or confinement; or
 
3. Resist a force ordered out by the governor to quell or suppress an insurrection, is guilty of a class C felony.
No body of people, other than the regularly organized units of the national guard and militia and the troops of the United States, may associate themselves together as a military company or organization or parade in public with firearms, and no municipality may raise or appropriate any money toward arming or equipping, uniforming or in any other way supporting, sustaining, or providing drillrooms or armories for, any such body of people. Associations wholly composed of soldiers honorably discharged from the service of the United States and members of the order of sons of veterans may parade in public with firearms on Decoration Day, upon the reception of any regiment or company of soldiers returning from service, or for the purpose of escort duty at the burial of deceased soldiers. Students in educational institutions where military science is a prescribed part of the course of instruction, with the consent of the governor, may drill and parade with firearms in public under the superintendence of their teachers. This section does not prevent any organization authorized to do so by law from parading with firearms nor prevent parades by the national guard of other states. Any person violating any provision of this section is guilty of a class B misdemeanor.
The governor may make such rules and regulations as deemed expedient for the government of the military forces of this state, but such rules and regulations must conform to the provisions of this title and, as nearly as practicable, to those governing the armed forces of the United States. When promulgated, such rules and regulations have the same force and effect as the provisions of this title and may not be repealed, altered, amended, or added to except by the commanding officer of the national guard with the approval of the governor.
All matters relating to the organization, discipline, and government of the national guard, not otherwise provided for in this title or in the general regulations, must be decided by the custom and usage of the armed forces of the United States.
Troops occupying a military district established under martial law, if necessary, may pursue, arrest, and subpoena persons wanted in said military district, anywhere within this state.
All officers and employees of this state or of a political subdivision thereof who:
 
1. Are members of the national guard;
 
2. Are members of the armed forces reserve of the United States of America;
 
3. Shall be subject to call in the federal service by the president of the United States; or
 
4. Shall volunteer for such service, when ordered by proper authority to active noncivilian employment, are entitled to a leave of absence from such civil service for the period of such active service without loss of status or efficiency rating. If such persons have been in the continuous employ of the state or political subdivision for ninety days immediately preceding the leave of absence, they shall receive twenty workdays each calendar year without loss of pay. In addition, any leave of absence necessitated by a full or partial mobilization of the reserve and national guard forces of the United States of America, or emergency state active duty, must be without loss of pay for the first thirty days thereof less any other paid leave of absence which may have been granted during the calendar year pursuant to this section. However, if leave is required for weekend, daily, or hourly periods of drill for military training on a day in which a public officer or employee is scheduled to perform the work of the state or of a political subdivision, the officer or employee must be given the option of time off with a concurrent loss of pay for the period missed or must be given an opportunity to reschedule the work period so that the reserve or national guard weekend, daily, or hourly drill or period of training occurs during time off from work without loss of status or efficiency rating.

 

Any person referred to in section 37-01-25, who within ninety days after receiving a discharge other than dishonorable from such active noncivilian service, and who is not physically or otherwise incapacitated to perform the duties of the position formerly held by the person, applies for such position held by the person at the time of entering such active service, must be given such position or one of like seniority, status, and pay, and is immune to discharge from said position except for cause, as defined by the department of veterans' affairs, for a period of one year after entering upon the duties of the person's civilian position. Any such person not so reemployed or who is discharged within a period of one year without cause, has the right of appeal to the department of veterans' affairs under such rules and regulations as the administrative committee on veterans' affairs may promulgate. If the department of veterans' affairs finds that such person was not reemployed or was discharged within one year without cause, it may order any officer or other appointing power to comply with the provisions of this chapter. If such person at the time of entering noncivilian service has been an officer or employee of the state of North Dakota or any political subdivision or city thereof, having a merit or civil service system with an appeal board, such appeal board has the same powers as are granted to the department of veterans' affairs in this section. In order to carry out the provisions of this chapter, the department of veterans' affairs is hereby authorized to contract and pay for technical or other services with any board, council, or commission established by such state agencies, departments, or divisions to administer such systems. Any person violating any of the provisions of this section is guilty of an infraction.

Repealed by omission from this code.

Any commissioned officer assigned to special duty by the governor or under the governor's authority must be paid duty pay for the time actually employed, and the officer's necessary traveling expenses and subsistence when such payment is authorized by the governor. Judge advocates must be paid such compensation as shall be approved by the governor for services in bringing any suits provided for in this title, and in actions or proceedings by habeas corpus, certiorari, or otherwise. All staff officers must be paid duty pay for special service ordered by competent authority with the approval of the governor. Enlisted persons on duty under orders of the governor, but not at the time serving with troops, shall receive the same rate of pay as is provided for the national guard when called into active service by the governor and their actual traveling expenses and subsistence.
Repealed by S.L. 1969, ch. 528, § 24.
Every member of the militia who is ordered out or ordered on duty, who volunteers, or who is drafted under the provisions of this title, who does not appear at the time and place designated by that person's commanding officer, the adjutant general, or the mustering officer, who does not produce a sworn certificate of physical disability from a physician in good standing showing that person's inability to appear, must be taken as a deserter and dealt with as prescribed in the uniform code of military justice of the United States.
The discipline, including the training, of the national guard must conform to the system which is prescribed by the Congress of the United States.
No officer of the militia may incur any expense whatsoever to be paid by this state, except such as is authorized in this title, without first obtaining the authority of the governor. In extreme emergencies, however, the commanding officer of any organization or detachment of the national guard may make purchases of such necessities as are absolutely required for the immediate use and care of that officer's command. A report of such action containing a statement of the articles purchased and the price thereof must be made forthwith through the channel of the adjutant general. The commander in chief shall be the auditor of all accounts for property purchased by the adjutant general, and the copies of the orders or contracts under which such purchases are made must be filed in the office of the paymaster general. All other military accounts payable by the state must be audited by the adjutant general. Military accounts thus audited must be paid by the paymaster general of the state from the proper appropriation made by the legislative assembly.
All contracts, pensions, commissions, leases, agreements, and similar actions taken, made, or entered into under previous statutes which, by their nature, custom, or usage, were continuing in effect remain in full force and effect.
An individual discharged from any branch of the armed forces of the United States may record, without payment of any fee, that individual's discharge from the armed forces, a certificate issued in lieu of the discharge, duly authenticated and certified copies of the discharge or certificate, or duly certified records of that individual's service and discharge from the armed forces in the office of the recorder of the county in which that individual resides, unless the board of county commissioners designates a different official. Any discharge document recorded by the recorder, or designated official, may be made available only to the following persons: the veteran, the parents, the veteran's next of kin, the veteran's legal representative, a county veterans' service officer, a veterans' organization service officer, the department of veterans' affairs, or a designee of the veteran.
If a recorder, or designated official, has recorded discharge papers without charging the recording fees provided by law, the recording is declared legalized. In no such case may the recorder, or designated official, be held responsible in cases in which filing fees have not been collected.
If a copy of any public record is required by any veteran or a veteran's guardian, dependent, or representative in connection with an application for benefits made available by federal or state laws, the official charged with the custody of such public record, without charge, shall provide a certified copy of such record upon request. This section is subject to the restrictions provided for in section 37-01-34.
The disability of minority of any person otherwise eligible for guaranty or insurance of a loan pursuant to the Servicemen's Readjustment Act of 1944 [Pub. L. 78-346; 58 Stat. 284], as amended, and of the minor spouse of any eligible veteran irrespective of the person's age, in connection with any transaction entered into pursuant to said Act as amended, is hereby removed, for all purposes in connection with such transaction including, but not limited to, incurring of indebtedness or obligations and acquiring, encumbering, selling, releasing, or conveying property, or any interest therein, and litigating or settling controversies arising therefrom, if all or part of any obligations incident to such transaction be guaranteed or insured by the administrator of veterans' affairs pursuant to such Act. This section may not be construed to impose any other or greater right or liabilities than would exist if such person and such spouse were under no such disability.
All income, collections, and reimbursements of the North Dakota national guard from the United States and from armory rentals must be deposited in the state treasury and credited to a national guard operating fund. The state treasurer, upon order of the director of the office of management and budget, shall make semiannual transfers from the general fund appropriation for the maintenance of the national guard to the national guard operating fund.
All expenditures of funds for the maintenance and operation of the national guard and the office of the adjutant general must be made upon vouchers signed and approved by the adjutant general or such other officer or official as may be designated by the adjutant general. Upon approval of such vouchers by the office of the budget, warrant-checks must be prepared by the office of management and budget for signature by the state auditor and state treasurer in accordance with such approved vouchers.
Each unit of the North Dakota national guard, upon approval of the adjutant general, is authorized to maintain a nonreverting unit fund for purposes as prescribed by federal law and regulations relating to unit funds of the federal military forces and to pay petty operating, equipment, and supply costs incurred by the individual units. All funds transferred by the adjutant general to the unit fund must be deposited in the unit fund and are hereby appropriated for the maintenance and operation of the unit funds. Unit funds may be expended upon authorization of the unit fund custodian designated by the adjutant general under guidelines established by the adjutant general.
1. A "veteran" is an individual who has served on continuous federalized active military duty for one hundred eighty days or the full period for which the individual was called or ordered to active military duty for reasons other than training, and who was discharged or released under other than dishonorable conditions. A discharge reflecting "expiration of term of service" or "completion of required service" or words to that effect qualifies the shorter term of service as making the individual a veteran.
 
2. A "wartime veteran" is an individual who served in the active military forces, during a period of armed conflict or who received the armed forces expeditionary or other campaign service medal during an emergency condition and who was discharged or released under other than dishonorable conditions. "Wartime veteran" also includes an individual who died in the line of duty in the active military forces, as determined by the armed forces.
 
3. Period of service dates for a wartime veteran begins with the date of any declaration of war by the Congress of the United States or presidential proclamation beginning hostilities or the beginning of an emergency condition recognized by the issuance of a presidential proclamation or a presidential executive order and in which the armed forces expeditionary medal or other campaign service medals are awarded according to presidential executive order and ending on a date prescribed by presidential proclamation or concurrent resolution of the Congress of the United States and dates determined by the United States department of defense.
 
4. Current uniform period of service dates for periods of armed conflict include:
 
a. The period beginning December 7, 1941, through December 31, 1946, known as world war II;
b. The period beginning June 27, 1950, through January 31, 1955, known as the Korean war;
c. The period beginning August 5, 1964, through May 7, 1975, known as the Vietnam war;
d. The period beginning August 2, 1990, through January 2, 1992, known as the gulf war; and
e. The period beginning September 11, 2001, and ending on a date prescribed by presidential proclamation or by Congress as the last day of operation Iraqi freedom or operation enduring freedom, whichever occurs later.
 
5. The department of veterans' affairs shall maintain a list of all period of service dates for emergency conditions in which the armed forces expeditionary medal has been awarded.
1. Any individual injured by an activity of the North Dakota national guard may submit a claim to the adjutant general. As used in this section, "claim" means a monetary demand upon the state for personal injury or property damage arising from activities of the national guard while on state active duty.
 
2. The adjutant general may approve a claim for less than two thousand five hundred dollars. If the claim is approved by the adjutant general, the adjutant general shall apply to the emergency commission for an amount from the contingency fund sufficient to pay the claim. It must be conclusively presumed upon the receipt of such application by the emergency commission that an emergency exists, and the commission shall direct the transfer of the requested amount to the adjutant general from the contingency fund. The adjutant general, upon receipt of the transfer from the contingency fund, shall pay the claim.
 
3. The adjutant general shall forward any claim exceeding two thousand five hundred dollars to the emergency commission with the adjutant general's recommendation. If the claim is approved by the emergency commission, it must be conclusively presumed that an emergency exists, and the commission shall direct the transfer of the approved amount to the adjutant general from the contingency fund. The adjutant general, upon receipt of the transfer from the contingency fund, shall pay the claim.
 
4. Decisions of the adjutant general or the emergency commission partially or totally denying a claim may not be appealed to any court of this state.
 
5. Claims may not be submitted to the legislative assembly unless the claim has been partially or totally denied by the adjutant general or the emergency commission.

 

1. Any World War II veteran who did not receive a high school diploma may apply for an honorary high school diploma, provided:
 
a. The veteran entered the United States armed forces between September 16, 1940, and December 31, 1946, prior to completing the necessary high school graduation requirements; and
b. The veteran was honorably discharged from the United States armed forces.
 
2. Any Korean conflict veteran who did not receive a high school diploma may apply for an honorary high school diploma, provided:
 
a. The veteran was a member of the United States armed forces between June 27, 1950, and January 31, 1955; and
b. The veteran was honorably discharged from the United States armed forces.
 
3. Any Vietnam conflict veteran who did not receive a high school diploma may apply for an honorary high school diploma, provided:
 
a. The veteran entered the United States armed forces between February 28, 1961, and May 7, 1975; and 
b. The veteran was honorably discharged from the United States armed forces.
 
4. In order to receive an honorary high school diploma, the veteran or a representative of the veteran shall complete an application on a form prescribed by the superintendent of public instruction. A county veterans' service officer shall certify the veteran's status as an honorably discharged veteran who served during the qualifying period to the superintendent of public instruction. The superintendent of public instruction shall forward the application to the school district in which the veteran last attended school before induction. If the school district no longer exists, the application must be forwarded to the school district that has jurisdiction. If a school district decides not to issue a diploma under this program, the veteran may apply to the superintendent of public instruction for the diploma.
 
5. The school district and the superintendent of public instruction shall review and either approve or deny each application received.
 
6. If a veteran who would have qualified for a diploma under this section is deceased, a family member of the veteran may apply for and, if approved, be awarded the veteran's honorary high school diploma.

 

A person called or ordered to active service for thirty consecutive days or longer has all of the protections afforded to persons in the military service of the United States under the Servicemembers Civil Relief Act, as effective through December 2003 [50 U.S.C. App. sections 501-596].