SENATE BILL 146
55th legislature - STATE OF NEW MEXICO - first session, 2021
INTRODUCED BY
William F. Burt
AN ACT
RELATING TO MILITARY AFFAIRS; AMENDING THE POWERS OF THE ADJUTANT GENERAL; AUTHORIZING ACTIVATION OF THE NATIONAL GUARD AND THE STATE DEFENSE FORCE IN THE CASE OF CERTAIN EVENTS; ESTABLISHING THE NEW MEXICO STATE DEFENSE FORCE; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NEW MEXICO MILITARY CODE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 20-1-4 NMSA 1978 (being Laws 1987, Chapter 318, Section 4) is amended to read:
"20-1-4. GOVERNOR TO BE COMMANDER-IN-CHIEF--ENFORCEMENT OF NEW MEXICO MILITARY CODE.--
A. The governor shall be the commander-in-chief of the military forces, except so much thereof as may be in the actual service of the United States, and may employ the military forces for the defense or relief of the state, the enforcement of its law and the protection of life and property therein.
B. The adjutant general shall be the commanding general of New Mexico, and the deputy adjutant general shall be the deputy commanding general of New Mexico.
[B.] C. Whenever the governor or acting governor is unable to personally perform the duties of commander-in-chief or whenever the governor so directs, the adjutant general or, in [his] the adjutant general's absence, the senior line officer of the national guard present for duty with the troops shall command the military forces.
[C.] D. The governor may appoint a staff consisting of the adjutant general and aides-de-camp of field grade or higher who shall be detailed from the national guard or the state defense force. The governor may designate honorarily other persons as colonels aide-de-camp.
[D.] E. The governor may, by executive orders, proclamations or regulations not inconsistent with law, enforce all the provisions of the New Mexico Military Code."
SECTION 2. Section 20-1-5 NMSA 1978 (being Laws 1987, Chapter 318, Section 5, as amended) is amended to read:
"20-1-5. ADJUTANT GENERAL--APPOINTMENT, POWERS AND DUTIES.--In case of a vacancy, the governor shall appoint as the adjutant general of New Mexico for a term of five years an officer who for three years immediately preceding the appointment as the adjutant general of New Mexico has been federally recognized as an officer in the national guard of New Mexico and who during service in the national guard of New Mexico has received federal recognition in the rank of colonel or higher. The adjutant general shall not be removed from office during the term for which appointed, except for cause to be determined by a court-martial or efficiency board legally convened for that purpose in the manner prescribed by the national guard regulations of the United States department of defense. The adjutant general shall have the military grade of major general and shall receive the same pay and allowances as is prescribed by federal law and regulations for members of the active military in the grade of major general, unless a different rate of pay and allowances is specified in the annual appropriations bill. The adjutant general may promulgate rules for the conduct of courts-martial and punishments under the Code of Military Justice. Such procedural rules shall be consistent with and carry into effect the New Mexico Military Code and afford reasonable due process to criminal defendants. The adjutant general shall:
A. prepare and publish, by order of the governor, such orders, rules and regulations, consistent with law, as are necessary to maintain the military forces in a state of efficiency in conformity with the needs of the state and the federal defense requirements;
B. supervise the receipt, preservation, repair, distribution, issue and collection of all arms and military equipment of the state;
C. supervise all personnel, organizations, facilities, equipment, supplies and funds of the military forces;
D. maintain records of all members of the military forces and keep on file in the adjutant general's offices copies of all orders, reports, regulations and communications received and issued by the adjutant general;
E. perform such other duties as may be required by the commander-in-chief; and
F. have a seal of office."
SECTION 3. Section 20-2-6 NMSA 1978 (being Laws 1987, Chapter 318, Section 13) is amended to read:
"20-2-6. GOVERNOR--CALL FOR FEDERAL OR STATE SERVICE--POWERS.--
A. When the national guard or a part thereof is called or ordered into active federal service under the constitution and laws of the United States and the numbers or composition of the national guard forces are insufficient to meet such call or order, the governor may order out and cause through the adjutant general to be enrolled into the organized militia such persons as may be required and expected to reasonably meet the federal call or order.
B. The governor may order out the organized militia when:
(1) the national guard or any significant portion thereof is called or ordered into active federal service and the remaining national guard forces are insufficient for the needs of the state; or
(2) the [total strength or composition of the national guard within the state is deemed by the governor to be insufficient] governor deems it necessary to meet a major disaster, experienced or anticipated. The governor is authorized to call into active state service the state defense force or any portion thereof as may be necessary for the protection and well being of the state. If the numbers or composition of the state defense force [be] is inadequate to meet the need, the governor [can] may call out and cause through the adjutant general to be enrolled from the unorganized militia such persons as are required to bring the organized militia up to strength."
SECTION 4. Section 20-3-2 NMSA 1978 (being Laws 1987, Chapter 318, Section 17, as amended) is amended to read:
"20-3-2. DEPARTMENT STRUCTURE--AUTHORITY OF ADJUTANT GENERAL.--
A. The department of military affairs [is composed of] consists of:
(1) the office of the adjutant general;
(2) three subordinate military divisions:
(a) the army national guard division;
(b) the air national guard division; and
(c) the state defense force division; and
[(3) one subordinate civil division, the civil air patrol division; and
(4) four] (3) five subordinate [support agencies] civil divisions:
(a) the selective service office;
(b) the state armory board;
(c) the civil air patrol division;
[(c)] (d) the state programs [office] division; and
[(d)] (e) the United States property and fiscal office and such other agencies, administrative staffs and clerical staffs necessary for departmental operation that the adjutant general may by regulation prescribe.
B. The adjutant general is the military chief of staff to the governor and is the head of the department of military affairs.
C. The adjutant general shall prescribe policies, rules and procedures for the orderly functioning of the department of military affairs, which may include subordinate organizational structures and lines of authority.
D. The adjutant general may employ such administrative, technical, clerical and other personnel as the adjutant general deems necessary and may fix the compensation of exempt personnel subject to the concurrence of the department of finance and administration.
E. The adjutant general may make expenditures from appropriations or from other funds available to the adjutant general for all purposes within Chapter 20 NMSA 1978.
F. The adjutant general is authorized to accept through the United States property and fiscal officer such equipment, supplies, arms, facilities and personnel support funding as may be authorized and appropriated by federal law.
G. The adjutant general shall be furnished suitable buildings, facilities, supplies and equipment for conducting the business of the department of military affairs to include the proper storage, repair and issuance of military property.
H. The adjutant general may appoint as assistant adjutants general one officer from each of the three military divisions in the department of military affairs. The officers appointed shall hold the rank of brigadier general during such appointment. The qualifications of each person so appointed shall meet the specific standards required for such appointment within Chapter 20 NMSA 1978 and any applicable federal standards or requirements. Once appointed, the assistant adjutants general shall serve at the pleasure of the adjutant general; their performance will be reviewed annually, in January, by the adjutant general; and if relieved, an assistant adjutant general shall revert to the rank previously held or to such higher rank to which promoted and federally recognized while serving as assistant adjutant general. The adjutant general may designate one federally recognized assistant adjutant general as deputy adjutant general. The deputy adjutant general shall serve on full-time active status for the state. In the incapacity or absence from the state of the adjutant general, the deputy adjutant general shall act in the adjutant general's stead. In the incapacity or absence from the state of both the adjutant general and the deputy adjutant general, the governor may call any assistant adjutant general to active service for the state. The assistant adjutants general shall perform all duties that may be required of them by the adjutant general. The adjutant general may delegate in writing to any of the assistant adjutants general such authorities and responsibilities as the adjutant general deems appropriate, consistent with the constitutions, laws and regulations of the state and of the United States. Assistant adjutants general, when on active status for the state, shall receive the same pay and allowances as are prescribed by federal law and regulations for members of the active military in the grade of brigadier general, unless a different rate of pay and allowances are specified in a general appropriation act of the New Mexico legislature.
I. The adjutant general shall appoint individuals to serve as [director] directors of the [one civil division and as head of each of the four support agencies] five subordinate civil divisions, except as stated in Section 20-9-1 NMSA 1978. The qualifications of each person so appointed shall meet the specific standards required for such appointment within Chapter 20 NMSA 1978 and any applicable federal standards or requirements.
J. There shall be allowed to the adjutant general a contingent and entertainment fund of two thousand five hundred dollars ($2,500) annually, plus such additional appropriations for carrying out the functions of the office as the legislature shall deem proper."
SECTION 5. Section 20-5-1 NMSA 1978 (being Laws 1987, Chapter 318, Section 32) is amended to read:
"20-5-1. NEW MEXICO STATE DEFENSE FORCE ESTABLISHED--NOT IN FEDERAL SERVICE--DEFINITIONS.--
A. The "New Mexico state defense force" is established as an element of the militia in the department of military affairs. The members and organizations of the former New Mexico state guard are transferred to the New Mexico state defense force on [the effective date of this act] April 10, 1987.
B. Nothing in Chapter 20 NMSA 1978 shall be construed as authorizing the New Mexico state defense force or any part thereof to be called, ordered or in any manner drafted by federal authorities into the military service of the United States, but no person by reason of [his] the person's enlistment or appointment in the state defense force shall be exempted from military service under any law of the United States.
C. The following definitions apply to the duty statuses under which members of the state defense force serve:
(1) "militia duty" means the performance of actual military service for the state in time of need when called by the governor or adjutant general following mobilization of the national guard. It may be performed by the standing cadre of the state defense force at any time so ordered [following] upon mobilization of the national guard. It may be performed by the unorganized militia following its call by the governor pursuant to Subsection B of Section 20-2-6 NMSA 1978 [of this chapter], in which case it shall include the post-call training of the New