South Carolina Code of Laws
(Unannotated)
Current through the end of the 2007 Regular Session
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Title 25 - Military, Civil Defense and Veterans Affairs
(1) "Officer"--Shall be understood to include commissioned officers and warrant officers, unless otherwise specified.
(2) "Enlisted men"--Shall be understood to designate members of the National Guard of this State other than officers and warrant officers.
(3) "Adjutant General"--Shall be understood to be the Adjutant and Inspector General.
(4) "The Assistant Adjutant General"--Shall be understood to be the Assistant Adjutant and Inspector General.
(5) "Military department"--Shall be understood as any office or activity of the State that controls or coordinates the activities of the militia, or any part of the militia.
(6) "National Guard"--Shall be understood to include the organized militia, both Army and Air.
(7) "Air National Guard"--Shall be understood to include those units of the organized militia that are Air Force type units and that are organized and trained as a Reserve of the United States Air Force.
(8) "Army National Guard"--Shall be understood to include those of the organized militia that are Army type units and that are organized and trained as a Reserve of the United States Army.
(9) "Military fund"--Any and all moneys appropriated by the General Assembly for the support of the militia and such other revenues as may be collected by the military department for military purposes.
(10) "State duty"--Duty performed by the militia, or any part of the militia, when such duty is ordered by proper State authority, in the event of war, insurrection, invasion, or imminent danger thereof, breach of the peace, tumult, riot, public disaster, or resistance to process.
(11) "State status"--Shall be understood to mean the military status of a member of the National Guard when not in the active military service of the United States.
(12) "Unit"--In the Army National Guard, shall be understood to be a company, battery, troop, detachment, or similar size Federally recognized entity, except that a headquarters is not to be construed as a unit.
In the Air National Guard, it shall be understood to be a single military organization having a mission, function, and a structure prescribed by competent authority.
(13) "Organization"--Any military element of the South Carolina Army National Guard composed of a headquarters with its assigned or attached subordinate commands. (Example--battalions, groups, brigades and higher commands.)
(14) "USPFO"--Shall mean United States property and fiscal officer.
(15) "Federal recognition or federally recognized"--Shall mean acknowledgment by the Secretary of the Air Force or the Secretary of the Army that an individual has been appointed to an authorized grade and position vacancy appropriate to his qualifications in the Air National Guard or the Army National Guard, and that he meets the prescribed Federal requirements for such grade and position.
(16) "Fully qualified"--Shall mean that an individual meets all physical, moral and professional requirements as may be prescribed by the United States Code, the National Guard Bureau and such other requirements that are or may be made a part of the military code of South Carolina and in addition that he has demonstrated qualities of leadership, ability and potential for appointment or promotion to the next higher grade.
(17) "Commissioned staff"--Officers assigned to a headquarters by TO/E to assist a commander in his exercise of command. The commander is not to be included in a "commissioned staff."
(18) "Unit maintenance fund" means funds collected by armory rentals, donations, military fines, and other minor sources of revenue with or without specific appropriation, and used for minor maintenance at facilities and controlled at the unit level.
The act of Congress approved June 3, 1916, entitled "An Act Making Further and More Effectual Provisions for the National Defense and for Other Purposes" and all acts presently amendatory thereto, the future amendatory acts thereof being subject to the approval of the State legislature, is hereby accepted by this State and the provisions of said act and amendments thereto are made a part of the military code. (Ref: Titles 32 & 10, United States Code).
SECTION 25-1-30. National Guard shall conform to Federal laws.
The Governor shall cause the National Guard of South Carolina always to conform to all such Federal laws and regulations as may from time to time be operative and applicable except where in conflict with the laws of this State.
SECTION 25-1-40. Applicability of Uniform Code of Military Justice.
Whenever any portion of the militia of the State is on duty under or pursuant to orders of the Governor or whenever any part of the militia is ordered to assemble for state duty, the systems, precedents, and procedures established in the Uniform Code of Military Justice for the governing of armed forces of the United States, so far as applicable and not in conflict with any rule or regulation herein prescribed, is considered in full force and regarded as a part of this chapter until such forces are duly relieved from such duty. Nothing in this section is construed as relinquishing the state's authority and jurisdiction in such matters. No punishment under this section extending to the taking of life shall in any case be inflicted except in time of actual war, invasion, or insurrection declared to exist by proclamation of the President of the United States or the Governor of this State, and then only after the approval of such sentence by the Governor. The Governor shall review the findings of all general courts-martial convened during such situations hereinabove recited.
The Governor or the adjutant general shall promulgate regulations not inconsistent with law as he may consider necessary to carry out the provisions of this chapter.
SECTION 25-1-60. Composition and classes of militia.
The militia of this State consists of all able-bodied persons over seventeen years of age who are: citizens of the United States residing within this State; citizens of the United States bound by law, lawful order, or contract to serve in the militia or military forces of this State; or persons who have declared their intention to become citizens of the United States and are bound by law, lawful order, or contract to serve in the militia or military forces of this State. The militia is divided into three classes: the National Guard, the organized militia, and the unorganized militia.
The National Guard of South Carolina shall consist of the commissioned officers, warrant officers, enlisted men, organizations, staffs, units, and departments of the regularly commissioned, warranted and enlisted militia of the State, organized and maintained pursuant to law.
SECTION 25-1-90. Service within State of military forces from another State.
No armed military force from another state, territory or district shall be permitted to enter the State for the purpose of doing military duty therein without the permission of the Governor, unless such force is part of the United States Army or is acting under the authority of the United States Government.
SECTION 25-1-100. Pension of members of National Guard wounded or disabled while in service of State.
Every member of the National Guard of South Carolina who shall be wounded or disabled while on duty in the service of the State or while reasonably proceeding to or returning from such duty shall be taken care of and provided for at the expense of the State, and, if permanently disabled, shall receive the like pensions or rewards that persons under similar circumstances in the military service of the United States receive from the United States. But no pension shall be granted by the State for any disability received while in the service of the United States or while proceeding to or returning from such service. Before the name of any person is placed on the pension roll under this section proof shall be made, under such regulations as the Governor may from time to time prescribe, that the applicant is entitled to such pension.
(1) The State Adjutant General's office shall present to the family of each deceased member of the South Carolina National Guard a flag of the State of South Carolina, appropriate for use as a burial flag, upon application of a member of the family of the deceased guardsman.
The Adjutant General shall prepare and furnish necessary application forms to the senior full-time employee in each armory of the State. Such application forms shall require such information as the Adjutant General deems necessary to determine the eligibility of the deceased for the flag provided for in this section.
(2) The provisions of this section shall apply to any individual who has served at least one year in the South Carolina National Guard, and who at the time of death was either an active, honorably discharged or retired member thereof.
(3) The Adjutant General shall promulgate necessary rules and regulations to implement the provisions of this section. Flags must be obtained from the United States when available, but if not so granted they must be purchased by the office of the Adjutant General from funds appropriated to that office.
SECTION 25-1-120. Military corporations; membership; purposes; powers; use of armories; sales of alcoholic beverages; application process.
The officers, the enlisted personnel, or the officers and enlisted personnel or support groups of an organization or unit of the National Guard of South Carolina may organize themselves into a corporation for social purposes and for the purpose of holding, acquiring, and disposing of that property, real and personal, as the military organizations may possess or acquire. The corporation may not engage in business and may not be required to pay a filing or license fee to the State.
These organizations may include:
(1) enlisted, officer, or all-ranks clubs;
(2) family support groups;
(3) auxiliary organizations;
(4) service branch organizations;
(5) battalion, brigade, or unit fund organizations;
(6) other such organizations that provide support to personnel and their families.
The corporations may raise funds and provide services, if retained funds are used for unit support, eleemosynary causes, or charitable purposes within their charter. The organizations may use armory or National Guard facilities, if there is no expense to the government. When any area of National Guard facilities is used, the National Guard and State shall have access to that area as needed or practical, and the use of that area by the corporation is not exclusive. Any sale of alcoholic beverages must conform to the limitations of sales under other provisions of law, except that sales within the unit, and not for profit, do not require licensing by the State.
The Adjutant General and the Secretary of State shall coordinate and make provisions to standardize applications for incorporation. No incorporation may be made under this article without the approval of the Adjutant General and the State Judge Advocate. All accounts and documents of the corporation organized under this article must be available for inspection and review by the Adjutant General.
SECTION 25-1-130. Effect of disbandment of military organization.
The dissolution or disbandment of any such unit as a military organization shall not operate to terminate the existence of any such corporation but its existence shall continue for the period limited in its articles of incorporation for the benefit of such corporation. Upon the dissolution or disbandment of any such unit which shall not have incorporated and which shall at the time of such dissolution or disbandment possess any funds or property, the title to such funds or property shall immediately vest in the State and the Adjutant General shall take possession thereof and dispose of the same to the best interest of the National Guard of South Carolina.
SECTION 25-1-150. Unauthorized wearing of military insignia.
It is unlawful for a person to wilfully wear the badge, button, insignia, or rosette of any military order or use any badge, button, insignia, or rosette to obtain aid, assistance, or other benefit or advantage, unless he is entitled to wear or use the military badge, button, insignia, or rosette.
A person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined in the discretion of the court or imprisoned not more than two years, or both.
SECTION 25-1-160. Landowners encouraged to make land and water areas available for military purposes; limited liability of owners.
(A) The purpose of this section is to encourage owners of land to make land and water areas available to the military department for training and operational purposes by limiting the owners liability toward military persons entering their land and water areas for training and operational purposes.
(B) For purposes of this section:
(1) "Land" means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant, or person in control of the premises.
(3) "Military purpose" includes, but is not limited to, any of the following, or any combination thereof: training, missions, operations, or support of training, missions, or operations.
(4) "Charge" means the admission price or fee asked in return for invitation or permission to enter or go upon the land.
(5) "Persons" means individuals regardless of age.
(C) Except as specifically provided in this section, an owner of land owes no duty of care to keep the premises safe for entry or use by persons who have sought and obtained his permission to use it for military purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for military purposes.
(D) Except as specifically provided in this section, an owner of land who permits without charge any person having sought permission to use his property for military purposes does not thereby:
(1) extend any assurance that the premises are safe for any purpose;
(2) confer upon the person the legal status of an invitee or licensee to whom a duty of care is owned;
(3) assume responsibility for or incur liability for any injury to person or property caused by an act of omission of any person using the property.
(E) Nothing in this section limits in any way any liability which otherwise exists:
(1) for grossly negligent, wilful, or malicious failure to guard or warn against a dangerous condition, use, structure, or activity;
(2) for injury suffered in any case where the owner of land charges persons who enter or go on the land for the recreational use thereof, except that in the case of land leases to the State or a subdivision thereof, any consideration received by the owner for such lease shall not be deemed a charge within the meaning of this section.
(F) Nothing in this chapter shall be construed to:
(1) create a duty of care or ground of liability for injury to persons or property; or
(2) relieve any person using the land of another for military purposes from any obligation which he may have in the absence of this chapter to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.
ARTICLE 3.
MILITARY DEPARTMENT
SECTION 25-1-310. Administration of State militia.
The militia of the State not in the service of the United States shall be governed and its affairs administered pursuant to law by the Governor, as commander-in-chief, through the military department, which shall consist of the Adjutant General as its executive head, Assistant Adjutants General, and such other officers and such enlisted men and civilian employees as the Adjutant General shall from time to time prescribe.
SECTION 25-1-320. Adjutant General; election and term; chief of staff; salary.
There shall be an Adjutant General elected by the qualified electors of this State at the same time and in the same manner and for the same term of office as other State officials. His rank shall be that of major-general. He shall hold office until his successor is elected and qualifies. He shall be ex officio chief of staff. He shall receive such annual salary as may be provided by the General Assembly.
SECTION 25-1-340. Vacancies in office of Adjutant General.
If the office of Adjutant General is vacated because of the death, resignation, or retirement of the Adjutant General prior to the normal expiration of his term of office, the Governor shall appoint an officer of the active South Carolina National Guard, who is at least the rank of lieutenant colonel, meets the eligibility requirements for a constitutional officer, and who has a minimum of fifteen years' active commissioned service in the South Carolina National Guard, to fill out the unexpired term of the former incumbent. The appointee, upon being duly qualified, is subject to all the duties and liabilities incident to the office and receive the compensation provided by law for the Adjutant General during his term of service.
SECTION 25-1-350. General powers and duties of Adjutant General.
The Adjutant General shall:
(1) Appoint the civilian employees of his department and he may remove any of them at his discretion;
(2) keep rosters of all active, reserve and retired officers of the militia of the State, keep in his office all records and papers required to be kept and filed therein and submit to the Governor each year a printed annual report of the operations and conditions of the National Guard of South Carolina;
(3) on the first day of July of each year, make a statement of the condition of the military fund, showing the amount thereof and setting forth in detail all receipts from whatsoever source and all expenditures of whatsoever nature and the unexpended balance thereof;
(4) cause the military law, the regulations of the National Guard of South Carolina and such other military publications as may be necessary for the military service to be distributed at the expense of the State to commands so that all personnel of the National Guard of South Carolina will have access to same;
(5) keep records on and preserve all military property belonging to the State;
(6) keep just and true accounts of all moneys received and disbursed by him;
(7) attest all commissions issued to military officers of this State;
(8) prepare and transmit all militia reports, returns and communications prescribed by acts of Congress or by direction of the Department of Defense;
(9) have a seal;
(10) make such regulations pertaining to the preparation of reports and returns and to the care and preservation of property in possession of the State for military purposes, whether belonging to the State or the United States, as in his opinion the conditions demand;
(11) attend the care, preservation, safekeeping and repairing of the arms, ordnance, accoutrements, equipment and all other military property belonging to the State or issued to the State by the government of the United States for military purposes, and keep accurate accounts thereof;
(12) issue such military property as the necessity of the services require and make purchase for that purpose. No military property shall be issued or loaned, except upon an emergency, to persons or organizations other than those belonging to the National Guard of South Carolina except to such portions of the unorganized militia as may be called out by the Governor;
(13) keep the reports and returns of troops and all other writings and documents required to be preserved by the State military headquarters;
(14) keep necessary records attesting to the service of individuals of South Carolina forces for the Spanish American War and all subsequent wars and insurrections. The Adjutant General is authorized to make a determination as to when old records have only historical value, and, therefore, transfer them to the State Archives Department for reference and preservation;
(15) those records and relics not required for efficient operation of the military department may be turned over to the Archives Department for preservation.
(16) with the consent of the Governor, have the discretion to order to active duty for not more than fifteen days a member of the National Guard or State Guard who consents to that order and for whose pay and allowances funds, as provided in Section 25-1-2200, are available to the Adjutant General without additional state appropriations.
The Adjutant General, with the approval of the Governor, may make such rules and regulations, not in conflict with the laws of this State, from time to time as he may deem expedient, and when promulgated such rules and regulations shall have full force and effect as the military code of the State. But the rules and regulations in force at the time of the passage of this Code shall remain in force until new rules and regulations are approved and promulgated.
The seal used in the office of the Adjutant General shall be the seal of his office and shall be delivered by him to his successor. Where deemed appropriate orders issued from his office shall be authenticated with such seal and copies, order, records and papers in his office, duly certified and authenticated under such seal, shall be evidence in all cases in like manner as if the originals were produced.
SECTION 25-1-380. Assistant Adjutant General for Army.
There shall be an Assistant Adjutant General for Army, with the rank of brigadier general, who shall be an assistant to the Adjutant General and who shall be appointed and commissioned by the Governor upon the recommendation of the Adjutant General at such salary as may be provided by the annual appropriations act. Such individual shall be appointed from the active or retired list of the Army National Guard and shall have a minimum of five years' active commissioned service in the South Carolina Army National Guard.
SECTION 25-1-390. Assistant Adjutant General for Air.
There shall be an Assistant Adjutant General for Air, with the rank of brigadier general, who shall be an assistant to the Adjutant General and who shall be appointed and commissioned by the Governor upon the recommendation of the Adjutant General at such salary as may be provided by the annual appropriations act. Such individual shall be appointed from the active or retired list of the Air National Guard and shall have a minimum of five years' active commissioned service in the South Carolina Air National Guard.
SECTION 25-1-400. Duties of Assistants during absence of Adjutant General.
In case of absence or inability of the Adjutant General to perform the duties of his office, the Governor shall designate one of the Assistant Adjutants General to serve as the Adjutant General.
SECTION 25-1-410. Audit and allowance of department expenses.
The expenses of the military department, necessary to the military service, shall be audited, allowed and paid as other military expenditures are audited, allowed and paid.
ARTICLE 4.
SOUTH CAROLINA EMERGENCY PREPAREDNESS DIVISION
SECTION 25-1-420. South Carolina Emergency Management Division of Office of Adjutant General; administration; duties.
There is established within the office of the Adjutant General the South Carolina Emergency Management Division.
The division must be administered by a director appointed by the Adjutant General, to serve at his pleasure, and such additional staff as may be employed or appointed by the Adjutant General.
The division is responsible for the implementation of the following:
(a) coordinating the efforts of all state, county, and municipal agencies and departments in developing a State Emergency Plan;
(b) conducting a statewide preparedness program to assure the capability of state, county, and municipal governments to execute the State Emergency Plan;
(c) establishing and maintaining a State Emergency Operations Center and providing support of the state emergency staff and work force; and
(d) establishing an effective system for reporting, analyzing, displaying, and disseminating emergency information.
(a) "Emergency Preparedness" shall mean the extraordinary actions of government in preparing for and carrying out all functions and operations, other than those for which the military is primarily responsible, when concerted, coordinated action by several agencies or departments of government and private sector organizations is required to prevent, minimize and repair injury and damage resulting from a disaster of any origin.
(b) "Emergency" shall mean actual or threatened enemy attack, sabotage, conflagration, flood, storm, epidemic, earthquake, riot or other public calamity.
(c) "South Carolina Emergency Management (Civil Defense) Organization" shall mean all officers and employees of state government, county government, and municipal government, together with those volunteer forces enrolled to aid them in an emergency and persons who may by agreement or operation of law be charged with duties incident to protection of life and property of this State during emergencies."
SECTION 25-1-440. Additional powers and duties of Governor during declared emergency.
(a) The Governor, when an emergency has been declared, as the elected Chief Executive of the State, is responsible for the safety, security, and welfare of the State and is empowered with the following additional authority to adequately discharge this responsibility:
(1) issue emergency proclamations and regulations and amend or rescind them. These proclamations and regulations have the force and effect of law as long as the emergency exists;
(2) declare a state of emergency for all or part of the State if he finds a disaster or a public health emergency, as defined in Section 44-4-130, has occurred, or that the threat thereof is imminent, and extraordinary measures are considered necessary to cope with the existing or anticipated situation. A declared state of emergency shall not continue for a period of more than fifteen days without the consent of the General Assembly;
(3) suspend provisions of existing regulations prescribing procedures for conduct of state business if strict compliance with the provisions thereof would in any way prevent, hinder, or delay necessary action in coping with the emergency;
(4) utilize all available resources of state government as reasonably necessary to cope with the emergency;
(5) transfer the direction, personnel, or functions of state departments, agencies and commissions, or units thereof, for purposes of facilitating or performing emergency services as necessary or desirable;
(6) compel performance by elected and appointed state, county, and municipal officials and employees of the emergency duties and functions assigned them in the State Emergency Plan or by Executive Order;
(7) direct and compel evacuation of all or part of the populace from any stricken or threatened area if this action is considered necessary for the preservation of life or other emergency mitigation, response, or recovery; to prescribe routes, modes of transportation and destination in connection with evacuation; and to control ingress and egress at an emergency area, the movement of persons within the area, and the occupancy of premises therein;
(8) within the limits of any applicable constitutional requirements and when a major disaster or emergency has been declared by the President to exist in this State:
(i) request and accept a grant by the federal government to fund financial assistance to individuals and families adversely affected by a major disaster, subject to terms and conditions as may be imposed upon the grant but only upon his determination that the financial assistance is essential to meet disaster-related expenses or serious needs that may not be met otherwise from other means of assistance;
(ii) enter into an agreement with the federal government, through an officer or agency thereof, pledging the State to participate in the funding of the financial assistance authorized in subitem (i) of this item, under a ratio not to exceed twenty-five percent of the assistance;
(iii) make financial grants to meet disaster related necessary expenses or serious needs of individuals or families adversely affected by a major disaster which may not otherwise be adequately met from other means of assistance. No individual or family may receive grants aggregating more than ten thousand dollars with respect to any single major disaster subject to the limitations contained in subitem (ii) of this item. The ten thousand dollar limit must annually be adjusted to reflect changes in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the United States Department of Labor; and
(iv) promulgate necessary regulations for carrying out the purposes of this item.
(b) The Governor is responsible for the development and coordination of a system of Comprehensive Emergency Management which must include provisions for mitigation, preparedness, response, and recovery in anticipated and actual emergency situations.
(c)(1) Any person who fraudulently or wilfully makes a misstatement of fact in connection with an application for financial assistance made available pursuant to item (8) of subsection (a) upon conviction of each offense, must be fined not more than five thousand dollars or imprisoned for not more than one year, or both.
(2) Any person who knowingly violates any regulation promulgated pursuant to item (8) of subsection (a) is subject to a civil penalty of not more than two thousand dollars for each violation.
(3) A grant recipient who misapplies financial assistance made available by item (8) of subsection (a) is subject to a civil penalty in an amount equal to one hundred fifty percent of the original grant amount.
(d)(1) The Governor must appoint the Public Health Emergency Plan Committee, consisting of representatives of all state agencies relevant to public health emergency preparedness, and, in addition, a licensed physician from the private sector specializing in infectious diseases, a hospital infection control practitioner, a medical examiner, a coroner from an urban county or the coroner's designee, a member of the judiciary, and other members as may be considered appropriate.
(2) Prior to the declaration of a public health emergency, the Governor must consult with the Public Health Planning Committee, and may consult with any public health agency and other experts as necessary. Nothing herein shall be construed to limit the Governor's authority to act without such consultation when the situation calls for prompt and timely action.
(e) The state of public health emergency must be declared by an executive order that indicates the nature of the public health emergency, the areas that are or may be threatened, and the conditions that have brought about the public health emergency. In addition to the powers and duties provided in this article and in Article 7, Chapter 3, Title 1, the declaration of a state of public health emergency authorizes implementation of the provisions of Chapter 4, Title 44, the Emergency Health Powers Act. The declaration authorizes the deployment and use of any resources and personnel including, but not limited to, local officers and employees qualified as first responders, to which the plans apply and the use or distribution of any supplies, equipment, and materials and facilities assembled, stockpiled, or arranged to be made available pursuant to this act.
SECTION 25-1-450. Duties of state, county, and municipal governments for mutual assistance in emergencies.
State, county and municipal governments shall cooperate in developing and maintaining a plan for mutual assistance in emergencies.
(1) State government shall be responsible for:
(a) Establishing policies and developing a plan and procedures to insure maximum utilization of all state resources to minimize loss of life and injury to the populace and destruction or damage to resources and facilities of the State during emergencies resulting from enemy attack or natural or man-made emergencies.
(b) Providing state forces and resources to support local governmental emergency operations and coordinating support with local governments from other sources, including the federal government and those unaffected counties of the State, and implement mutual assistance agreements with adjoining states.
(c) Assuming direction and control of area or local government emergency operations when requested by the county legislative delegation or their designees or when local government authority has broken down or is nonexistent or when the nature or magnitude of an emergency is such that effective response and recovery action is beyond local government's capability or when, in the event of a war emergency or declared natural or man-made emergency, state direction is required for implementation of a national plan.
(2) County and municipal governments shall be responsible for:
(a) Organizing, planning and otherwise preparing for prompt, effective employment of available resources of the county or municipality to support emergency operations of the municipalities of the county or to conduct emergency operations in areas where no municipal capability exists.
(b) Coordinating support to municipal emergency operations from other sources including state and federal assistance as well as support made available from other municipalities of the county.
(c) Developing and implementing a shelter/relocation plan to protect the populace from the hazards of a nuclear emergency and to provide for the congregate housing and care of persons displaced or rendered homeless as a result of a natural or man-made emergency.
SECTION 25-1-460. Loans for emergency and recovery operations.
When the General Assembly is not in session and emergency funds are required by counties or municipalities, the State Budget and Control Board may authorize loans for emergency and recovery operations to counties and municipalities not to exceed one and one-half million dollars to any single county or municipality from the reserve fund of the state treasury paid from that fund from any monies in that fund not appropriated for other purposes. Any monies so used must be drawn from the fund on warrants of the board repayable by the borrowing county or municipality and secured by the full faith and credit of the county or municipality involved. These loans may be made only when damage or destruction results from a disaster declared as a state of emergency by the Governor. The board may also reimburse state agencies for unbudgeted expenditures or expenditures otherwise unreimbursed by the federal government for emergency expenditures resulting from their participation in the disaster based on their assigned responsibilities promulgated in the South Carolina Comprehensive Emergency Preparedness Plan.
ARTICLE 5.
COMMISSIONED AND WARRANT OFFICERS GENERALLY
SECTION 25-1-510. Appointment, qualifications, and tenure.
All commissioned and warrant officers of the South Carolina National Guard shall be appointed and commissioned or warranted by the Governor. No person must be appointed and commissioned or warranted unless he is a citizen of the United States and meets federal residency requirements for the appointment. His age shall conform to the age requirements as set forth in the regulations issued by the National Guard Bureau and that are in effect at the time of appointment. Every commissioned or warrant officer must hold office under his commission or warrant until he has been regularly appointed and commissioned or warranted to another grade or office or until he has been regularly retired, discharged, dismissed, or placed in an inactive status.
SECTION 25-1-520. Certain personnel of The Citadel commissioned in unorganized militia.
All members of the board of visitors, administrative staff and faculty personnel of The Citadel, the Military College of South Carolina, shall be eligible to be commissioned officers in the unorganized militia of South Carolina and the Governor shall issue commissions to such of them as are designated by the college according to the rank prescribed by that institution. These commissions shall be prepared by the Adjutant General and shall bear the signatures of the Adjutant General and the Governor with the seal of the State and shall not entitle any person holding them to any pay or emolument by reason thereof unless he be assigned to duty with the National Guard of South Carolina by order of the Governor. In the event of such assignment the rank of such officer shall be junior to that of all other officers of the same grade of the National Guard of the State. The same rules and regulations provided for commissioned officers of the National Guard shall be applicable to officers commissioned under this section. Nothing in this chapter shall be in conflict with Section 59-121-50.
SECTION 25-1-530. Probationary and revocable appointment and promotion of officers.
Every appointment and promotion of any person as a commissioned or warrant officer in the National Guard of South Carolina shall be probationary and revocable by the Governor at will. Except that if the appointee shall have been extended Federal recognition for his grade during such probationary period, his commission or warrant no longer shall be probationary or revocable in that grade.
The oath of office for commissioned and warrant officers in the National Guard of South Carolina shall be substantially as follows: "I __________ do solemnly swear that I will support and defend the Constitution of the United States and the Constitution of the State of South Carolina against all enemies foreign and domestic; that I will bear true faith and allegiance to the same; that I will obey the orders of the President of the United States and the Governor of South Carolina; that I make this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office of __________ in the National Guard of the United States and of South Carolina upon which I am about to enter, so help me God."
SECTION 25-1-550. Requirement that officers take oath and give bond.
Every officer duly commissioned or warranted shall within such time as may be provided by law or by regulations take the oath of office prescribed by law and give bond, if required. In case of neglect or refusal to do so, he shall be considered to have resigned such office and a new appointment may be made as provided by law.
SECTION 25-1-560. Publication of relative rank list of officers.
Section 25-1-560. The Adjutant General shall maintain records reflecting a relative rank list of all active and inactive officers in the National Guard and shall publish those lists from time to time with the units but at least annually. Separate relative rank lists shall be maintained for Army National Guard and Air National Guard officers. When the effective date of federal recognition in any given grade is the same for two or more officers, seniority shall be governed by federal military law. When two or more officers are given an original federal recognition in any grade in the National Guard of South Carolina with the same effective date, the relative rank of such officers shall be determined according to federal military law.
SECTION 25-1-580. Officer in command of subordinate or detached unit or different units on duty together.
A commander may appoint an officer to command of a subordinate or detached unit. If none is appointed upon marches, guards or in quarters different organizations of the National Guard of this State join in or do state duty together, the officer highest in rank of the line by commission there on duty or in quarters shall command the whole and give orders for what is needful in the service unless otherwise specially directed by the Governor, according to the nature of the case.
SECTION 25-1-590. Retirement of officers and enlisted men.
Officers and enlisted men of the National Guard of South Carolina shall be retired by order of the commander-in-chief with a promotion of one grade, effective the date of retirement at the request of any officer or enlisted man upon completion of twenty or more years of honorable service in the National Guard of South Carolina, the Armed Forces of the United States, and reserve components thereof, except that the last ten years of such service must have been in the South Carolina National Guard, or in the National Guard of the United States and provided that the individual concerned was a member of the South Carolina National Guard at the time he was ordered to active duty in the National Guard of the U. S. status. But any commissioned officer holding the grade of major general shall, upon retirement, be retired in that grade; any warrant officer holding the grade of chief warrant officer shall, upon retirement, be retired in that grade; and any enlisted man holding the highest authorized enlisted grade shall, upon retirement, be retired in that grade.
Retired officers and retired enlisted men shall draw no pay or allowances except when placed on duty. They shall be subject to temporary detail by the commander-in-chief and while on such duty shall receive the same pay and allowances as officers and enlisted men of the same rank on the active list. On all occasions of duty or ceremony retired officers and enlisted men shall take rank below officers and enlisted men of the same grade on the active list.
The Governor may discharge any commissioned or warrant officer of the organized militia of South Carolina for any of the following reasons: (1) Upon muster out of the organization to which such officer is assigned; (2) acceptance of resignation of such officer; (3) removal of his actual residence to such distance from the station of his command as to render it impracticable for him to perform the duties of his office; or (4) failure to qualify or to maintain qualification for Federal recognition.
SECTION 25-1-620. Circumstances prohibiting resignation or discharge.
No officer shall be discharged or his resignation accepted while under arrest or against whom military charges have been preferred or until he shall have turned over to his successor or satisfactorily accounted for all State and Federal moneys and military property for which he shall be accountable or responsible.
SECTION 25-1-630. Officers authorized to administer oaths and act as notary.
(A) Officers are authorized and empowered to administer oaths and affirmations in all matters pertaining to or concerning the National Guard of South Carolina. Any person who shall falsely swear or affirm to any oath or affirmation before any such officer shall be guilty of perjury and upon trial and conviction thereof shall be sentenced for such offense as now provided by law for the crime of perjury.
(B) The persons named in subparagraph (C) have the general powers of a notary public in accordance with the authority of Title 10, United States Code, Section 1044a, and as provided in this section, in the performance of all notarial acts to be executed by:
(1) members of any of the armed forces;
(2) persons eligible for legal assistance under the provisions of 10 United States Code, Section 1044, regulations of the United States Department of Defense, this section, and Section 25-1-635;
(3) persons serving with, employed by, or accompanying the armed forces and National Guard of South Carolina or of any other state or territory of the United States, outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands; and
(4) persons subject to the Uniform Code of Military Justice, Chapter 47, Title 10, United States Code, outside the United States.
(C) Persons with the powers described in subsection (B) are:
(1) all judge advocates, including armed forces reserve judge advocates and judge advocates of the National Guard of South Carolina or of any other state or territory of the United States when not in a duty status;
(2) all civilian attorneys serving as legal assistance officers;
(3) all adjutants, assistant adjutants, and personnel adjutants, including reserve and National Guard members when not in a duty status; and
(4) all other members of the armed forces, including reserve and National Guard members when not in a duty status, who are designated by regulations of the armed forces or statute to have those powers.
(D) No fee may be paid to or received by any person for the performance of a notarial act authorized in this section.
(E) The signature of any person acting as a notary under the authority of Title 10, United States Code, Section 1044a or of this section, together with the title of that person's offices, is prima facie evidence that the signature is genuine, that the person holds the designated title, and that the person is authorized to perform a notarial act.
SECTION 25-1-635. Legal assistance to guard members and immediate family members; scope, duties, and limitations.
(A) For purposes of enhancing the readiness of National Guard personnel for mobilization or call up for state or federal service, legal assistance attorneys and judge advocates of the South Carolina National Guard who provide premobilization legal assistance and counseling to national guard personnel may also provide legal assistance and counseling to the immediate family members and dependents of members of the South Carolina National Guard when, in the opinion of the legal assistance, attorney or judge advocate, the legal assistant and counseling provided enhances the overall mobilization readiness of a member of the National Guard who has an obligation to provide for his family and dependents in his absence in the event of his mobilization.
(B) Subject to the availability of resources, the scope of the practice of law and the legal assistance attorney's duties and responsibilities authorized by this section are limited to advice and service regarding the following matters:
(1) Basic wills, trusts, and estate planning. Complex estate planning and drafting are not authorized by this section. Except when a legal assistance client is unable to communicate adequately, a will for one spouse may not be prepared based upon discussions with the other spouse without personal communication sufficient to establish the attorney-client relationship with the spouse for whom the will is prepared.
(2) Advice concerning the legal and practical implications of divorce, legal separation, annulment, custody, and paternity.
(3) Advice and document preparation, as appropriate, but not pleadings except as permitted by applicable service regulations.
(4) Advice and assistance, including communication, correspondence, and negotiations with another party or lawyer, on behalf of the client, may be provided as appropriate.
(5) Basic advice and assistance on federal, state, and local taxes may be provided as appropriate. Legal assistance attorneys will not prepare or sign returns.
(6) Advice and assistance relating to landlord and tenant matters, including review of personal leases and communication and correspondence in behalf of the client, may be provided as appropriate.
(7) Advice and appropriate assistance in connection with civil suits may be given. Procedures and requirements of small claims courts and other courts may be explained and appropriate referrals made. Except as permitted by applicable service regulations, court appearances and representation as attorney of record are not authorized by this section.
(8) Advice and assistance concerning the Soldiers' and Sailors' Civil Relief Act may be provided as appropriate pertaining to the protections afforded and the effect of the act on the client.
(9) Limited general advice may be provided regarding minor criminal matters and traffic offenses within the jurisdiction of the civilian courts. Serious criminal matters are not within the scope of legal assistance and will be referred to military defense counsel or private civilian attorneys, as appropriate.
(10) Advice and assistance may be given on powers of attorney, real estate, bankruptcy, contracts, consumer affairs, insurance, immigration, naturalization, and other areas if not inconsistent with legal assistance regulations. Advice and assistance regarding military matters may be provided subject to the limitations stated in applicable service regulations.
(C) Legal assistance is authorized for personal legal affairs only. Legal advice and assistance will not be provided regarding business ventures or regarding matters that are not of a personal nature.
(D) Legal assistance duties are separate and apart from responsibilities of trial counsel, defense counsel, or others involved in processing courts-martial, nonjudicial punishments, administrative boards or proceedings, and investigations. Unless otherwise directed by the Adjutant General or his designee, legal assistance attorneys may not assume defense counsel functions for their legal assistance clients. Members accused or suspected of offenses or conduct that may result in disciplinary or judicial proceedings under Title 25, the Uniform Code of Military Justice, or administrative discharges, must be referred to a defense counsel.
(E) If two or more eligible persons with conflicting interests seek legal assistance from the same legal assistance officer on the same matter, the party first establishing an attorney-client relationship will be provided representation. Other parties shall be advised that they are also eligible for assistance, but that it must be obtained from another source. Every effort will be made to refer the party with a conflicting interest to another legal assistance attorney or to a private civilian attorney.
(F) Legal assistance attorneys may not advise on, assist in, or become involved with, individual interests opposed to or in conflict with the interests of the State of South Carolina or the United States without the specific approval of the Adjutant General.
(G) Except when the client is unable to communicate adequately, advice or assistance will not be provided through third parties. In the absence of unusual or compelling circumstances, legal advice will not be provided over the telephone. This does not prohibit appropriate follow-up telephone discussions between the legal assistance attorney and the client.
(H) The legal assistance attorney may determine that the best interests of the client will be served by referring the case to a private civilian attorney. Referral may be for a variety of reasons, including expertise of the attorney or regulations that prohibit involvement of the legal assistance attorney. Should referral to a private civilian attorney be necessary, payment of legal fees is the client's responsibility. Except as otherwise provided by law, the State will not reimburse the individual or pay any expenses associated with the referral. Legal assistance attorneys shall not refer legal assistance clients to themselves in their private practice nor to their law firm.
(I) Services provided in the legal assistance program are at no cost to eligible personnel. Legal assistance attorneys, National Guard personnel, and civilian employees involved in providing service or advice in the legal assistance program are prohibited from accepting or receiving, in any manner, any fee or compensation other than their regular compensation for legal services provided to persons eligible for assistance under this section, and from receiving fees or compensation for the same matters about which they consulted with or advised the legal assistance client in an official capacity.
SECTION 25-1-640. Date of rank of certain former military officers.
Notwithstanding any other provision of law, former Regular and Reserve officers in any component of the Armed Forces appointed and commissioned in the South Carolina Army National Guard and former Regular and Reserve officers in any component of the Armed Forces appointed and commissioned in the South Carolina Air National Guard in the rank of captain, or first and second lieutenant shall be given a date of rank commensurate with their Regular or Reserve officer date of rank.
SECTION 25-1-650. Filling of vacancies in commissioned officer grades.
Whenever a vacancy occurs in commissioned officer grades for which provision is not otherwise made, it must be filled in accordance with regulations of the Military Department of South Carolina consistent with applicable federal law and with applicable regulations of the Department of the Army, Department of the Air Force, and National Guard Bureau.
ARTICLE 7.
COMMISSIONED AND WARRANTED OFFICERS - ARMY NATIONAL GUARD
SECTION 25-1-810. Promotions under Federal Personnel Act.
Whenever an officer who has been selected for promotion by a selective board convened under the provisions of Federal Personnel Act (Sections 3362 and 8366, Title 10, U. S. Code and subsequent legislation) is immediately faced with withdrawal of his federal status as a National Guard officer and transfer to the Army Reserve, he may be transferred or assigned to a suitable position vacancy in which he can be promoted, subject to concurrence of commanders concerned and approval of the Adjutant General.
(a) Brigadier general selection board. --A board shall be established by the Governor for the purpose of selecting qualified officers of the next lower grade to fill brigadier general officer vacancies in the South Carolina Army National Guard. The board shall consist of three general officers; composed of the Adjutant General and the active general officers of the South Carolina Army National Guard and if necessary the number of recently retired active general officers of the South Carolina Army National Guard necessary to constitute the board.
(b) Colonels. --A board shall be established by the Adjutant General for the purpose of selecting qualified officers of the next lower grade to fill colonel vacancies in the South Carolina Army National Guard. This board will consist of the five senior officers of the South Carolina Army National Guard, to include not over one officer from the State headquarters or one professional officer.
All officers and warrant officers, even though meeting the requirements for appointment or promotion, as established by law and regulations are subject to examination as prescribed by the Department of the Army.
SECTION 25-1-850. Transfer of officers within Army National Guard.
Authority shall be given the Adjutant General to make transfers of officers within the South Carolina Army National Guard. These transfers must be in the best interest of the South Carolina Army National Guard.
SECTION 25-1-860. Vacancy in staff of headquarters and headquarters detachment.
Whenever a vacancy shall have occurred in any grade in the staff of headquarters and headquarters detachment of the South Carolina National Guard, it shall be filled by those persons as the Adjutant General shall select.
SECTION 25-1-870. Vacancy in grade of major general.
Whenever a vacancy occurs in the grade of major general of the South Carolina Army National Guard, it must be filled by the promotion of a fully qualified officer within the South Carolina Army National Guard, subject to examination as prescribed by the Department of the Army. Should a fully qualified officer decline or fail to qualify, the promotion will be tendered to successive qualified officers.
SECTION 25-1-880. Vacancy in grade of brigadier general.
Except as hereinbefore provided in Section 25-1-860, whenever a vacancy occurs in the grade of brigadier general in the South Carolina Army National Guard, it must be filled by the promotion of the best qualified officer in the next lower grade within the South Carolina Army National Guard as may be determined by the Adjutant General and subject to examination as prescribed by the Department of the Army.
Except as hereinbefore provided in Section 25-1-860, whenever a vacancy shall have occurred in the grade of colonel in the South Carolina Army National Guard, it shall be filled by such fully qualified and best qualified officer in the next lower grade within the South Carolina Army National Guard as may be selected by the "Colonels Selection Board," subject to examination as prescribed by the Department of the Army.
SECTION 25-1-930. Vacancy in grade of warrant officer.
Whenever a vacancy shall have occurred in any grade of warrant officer in the Army National Guard of South Carolina it shall be filled by the appointment or promotion of a person recommended by the immediate commander, and approved by each commander in the chain of command and the Adjutant General. The applicant must be qualified in accordance with the requirements of the Department of the Army, the National Guard Bureau and such other requirements as may be imposed by the Adjutant General of South Carolina.
In the event the structure or organization of any National Guard unit or organization is changed or reorganized by the Department of the Army, the Adjutant General shall effect such change or reorganization that is to the best interest of the National Guard. Should such change or organization subsequently make inapplicable any sections of the military code, the Adjutant General shall promulgate such appropriate rules and regulations that shall have full force and effect as the military code of State.
ARTICLE 9.
COMMISSIONED AND WARRANT OFFICERS - AIR NATIONAL GUARD
Whenever an officer is selected for promotion by a selection board convened under the provisions of federal law, he may be tendered the first available vacancy in the South Carolina Air National Guard for which he is qualified regardless of the seniority of other officers of the same grade. If he is not assigned to a suitable position vacancy in which he can be promoted, he will be discharged and transferred to the Air Force Reserve under appropriate regulations.
Whenever new units shall have been organized in the South Carolina Air National Guard at a location distant from previously organized units, newly created officer vacancies shall be tendered first to officers of the South Carolina Air National Guard residing in close proximity to the new unit commensurate with grade and qualifications and then to other applicants qualified for assignment and Federal recognition in accordance with appropriate regulations. After one year from the date of organization of the new unit, vacancies shall be filled by the selection and promotion procedures outlined elsewhere in this chapter for the Air National Guard.
SECTION 25-1-1140. Vacancy in headquarters, Air National Guard.
Whenever a vacancy for an officer occurs in headquarters, South Carolina Air National Guard, it must be filled from among the officers of the South Carolina Air National Guard who are considered best qualified to fill the vacancy by the chief of staff, headquarters, South Carolina Air National Guard, and the Adjutant General. Assignment of an officer to headquarters, South Carolina Air National Guard, does not entitle him to promotion without regard to seniority rights specified elsewhere in this chapter. Position vacancies for enlisted personnel in headquarters, South Carolina Air National Guard must be filled as directed by the chief of staff, headquarters, South Carolina Air National Guard, subject to approval of the Adjutant General.
SECTION 25-1-1150. Vacancy in position of chief of staff, headquarters, Air National Guard; duties of chief of staff.
Whenever a vacancy occurs in the position of chief of staff, headquarters South Carolina Air National Guard it must be filled by promoting the fully qualified rated officer who has a minimum of five years commissioned service in the South Carolina Air National Guard and who is, in the opinion of the Adjutant General of South Carolina, considered to be the best qualified to fill the vacancy. Officers considered for this assignment must have served in a state status the next two years preceding the date the vacancy occurred. Active duty tours or schools of one year's duration or less shall count toward accrual of the two-year period specified in this section. In the event of federal mobilization of the majority of the South Carolina Air National Guard, the two-year requirement does not apply. The chief of staff shall supervise preparation of plans, policies, and programs for the Air National Guard units assigned to the State and advise and assist the Adjutant General in the execution of such of these plans, policies, and programs as he approves. If he is the senior Air National Guard officer in the State, he may be vested with the authority to command all Air National Guard units assigned to the State.
SECTION 25-1-1160. Vacancy in grade of colonel or higher.
Except as otherwise specifically authorized in this section, whenever a vacancy occurs in the grade of colonel or higher in the South Carolina Air National Guard, it must be filled by promoting the officer of the next lower grade in the South Carolina Air National Guard who is fully qualified for promotion and who is, in the opinion of the senior tactical Air National Guard commander, the chief of staff, headquarters, South Carolina Air National Guard, and the Adjutant General of South Carolina, considered to be best qualified to fill the vacancy notwithstanding seniority among those officers qualified to fill the vacancy.
SECTION 25-1-1190. Appointment of exceptionally qualified enlisted men.
Whenever exceptionally well qualified enlisted men of the South Carolina Air National Guard are approved for appointment in a commissioned grade by headquarters, United States Air Force, and the National Guard Bureau, they may be appointed to the first available vacancy for which they are qualified in the South Carolina Air National Guard without regard to seniority rights specified elsewhere in this article.
ARTICLE 11.
PROPERTY AND FINANCES GENERALLY
SECTION 25-1-1310. Duty of State to maintain and govern National Guard.
The duty of maintaining and governing the National Guard of South Carolina not in the service of the United States, rests upon the State, subject to the constitutional authority of Congress.
SECTION 25-1-1320. Expenses paid from National Guard appropriations.
All expenditures necessary to carry the provisions of this chapter into effect are hereby authorized to be incurred and paid out of the appropriations for the maintenance of the National Guard of South Carolina.
SECTION 25-1-1330. Annual settlements for Federal and State property.
(a) Federal property.--The Adjutant General shall coordinate with the USPFO to audit and effect annual settlements with responsible officers having federal property accounts. The USPFO shall cause the responsible party to prepare and submit proper adjustment documents to cover any discrepancies discovered during such audit. When it is determined by duly appointed reviewing authority that losses were incurred due to fault or negligence of the responsible party, he shall be held pecuniarily liable. When the responsible party has been held pecuniarily liable, the Adjutant General or the USPFO shall make demand on the responsible party for payment to the Treasurer of the United States for the specified amount. The Adjutant General shall enter or cause to be entered a suit on the bond of such party upon failure to comply with demand for payment, and may initiate collections actions as he considers appropriate.
(b) State property.--All property of a nonconsumable nature procured by the Adjutant General from state appropriated funds and like property purchased from unit maintenance funds must be accounted for as state property. Property donated from any sources for National Guard use must be considered state owned property. The Adjutant General shall maintain state property lists for all units and activities of the South Carolina National Guard. The Adjutant General shall cause state property accounts to be audited as he considers necessary. If the audit reflects shortages, the Adjutant General may cause an investigation to be made and take appropriate action. If such shortages are found to be due to the fault or negligence of the responsible party, the Adjutant General shall make demand on the responsible party for payment, to the military fund of South Carolina, for the specified amount. The Adjutant General shall enter or cause to be entered a suit on the bond of such party upon failure to comply with demand for payment, and may initiate collection actions for payment.
SECTION 25-1-1350. Requirements for sharing in appropriations.
No unit or activity shall participate in the annual allotment of the annual appropriation for the maintenance of the militia unless the proper officers of such organizations shall have rendered the required reports and returns for the preceding year, nor unless such organization participated in the required training or was excused by proper authority.
SECTION 25-1-1360. Disbursements of military funds.
All bills, claims and demands against the military fund shall be certified or verified in the manner prescribed by regulations promulgated by the Governor and shall be audited by the proper board of military auditors and, if allowed, shall be paid by the State Treasurer upon the warrant of the Adjutant and Inspector General from the military fund. But when the National Guard or any part thereof, or any other law-enforcement agency of the State government, is called into the service of the State in case of war, riot, insurrection, invasion, breach of the peace or in aid of the civil authorities, warrants for allowed pay and expenses for such service shall be drawn upon the general fund of the State Treasury and paid out of any moneys in such fund not otherwise appropriated. All military warrants shall be the obligation of the State and shall bear interest at the legal rate from the date of their presentation for payment.
(A) Each unit shall be entitled to such maintenance fund allowance as may be provided in the annual appropriations act as apportioned periodically. Unit maintenance funds from sources outside the annual appropriation must be regulated and audited by the Adjutant General.
(B) Facilities owned, leased, or under the control of the military department may be rented periodically. Such rental income, military fines, and other minor revenue sources may be deposited in unit maintenance funds. The Adjutant General shall promulgate regulations for a rental program and audit such funds.
SECTION 25-1-1380. Transportation and subsistence of militia on State duty.
There shall be provided by the State transportation for all officers and transportation and subsistence for all enlisted men who shall be lawfully ordered to State duty. Necessary transportation, quartermaster's stores and subsistence for troops when ordered on duty shall be contracted for by the proper officers and paid for as other military bills.
SECTION 25-1-1420. Unlawful purchase or receipt of military property.
If any person knowingly purchases or receives in pawn or pledge any military property of the State or of the United States he shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to imprisonment for a period not exceeding one year, or fined not exceeding one thousand dollars, or to both such fine and imprisonment.
SECTION 25-1-1430. Disposition of State military property unfit for use.
All military property of the State which after proper inspection shall be found unsuitable for use of the State shall be disposed of in such a manner as the Adjutant General shall direct and the proceeds thereof paid into the military fund of the State.
SECTION 25-1-1440. Adjutant General's caisson; maintenance and care.
The Adjutant General's Office shall expend from appropriated money each year any necessary and reasonable expenses associated with the maintenance and care of the Adjutant General's caisson. The Adjutant General may make its caisson available for the funeral of dignitaries and military-oriented activities and events. The Adjutant General may accept donations for the expenses associated with maintenance and care of the caisson. Excess money from donations may be carried forward each fiscal year by the Adjutant General to be used strictly for future costs associated with the maintenance and care of the caisson.
ARTICLE 13.
TRAINING FACILITIES
SECTION 25-1-1610. Acquisition of real estate for training facilities.
The Adjutant General of this State may receive on behalf of the State conveyances of real property suitable for the erection of any required training facility, provided that in accepting any such conveyance on behalf of the State, the State shall incur no liability for the purchase of such real estate unless it can be absorbed by the current appropriation for the operation of the military department.
SECTION 25-1-1620. Adjutant General to be manager and custodian of training facilities; rental or sublease of facilities.
The Adjutant General shall be the State custodian and manager of training facilities. No training facility shall be used for any other than a strictly military purpose without the recommendation of the officer in charge thereof and approval of the Adjutant General. Facilities owned by or leased for the military department may be rented or subleased when not in use for training under regulations promulgated by the Adjutant General.
SECTION 25-1-1630. Leasing of training facilities not owned by State or United States.
All training facilities and all property, real or personal, used by the National Guard and not owned by the State or the United States shall be leased or rented to this State upon such terms and conditions as shall be approved by the Adjutant General.
SECTION 25-1-1640. Maintenance of training facilities.
The Adjutant General shall be responsible for the proper maintenance of training facilities and is authorized to expend funds appropriated for this purpose.
SECTION 25-1-1650. Authority to sell obsolete armories; use of proceeds.
The Adjutant and Inspector General is hereby authorized to sell obsolete armories and retain such funds as realized therefrom in a special account with the State Treasurer. Funds from such special account shall be used for the construction of new armories, such construction to be under the supervision of the Adjutant and Inspector General of the State.
SECTION 25-1-1660. Transfer of surplus armories to political subdivisions.
The State Budget and Control Board may transfer to a political subdivision ownership of a national guard armory being replaced and declared surplus if the political subdivision has donated real property for use as a site for a replacement armory.
ARTICLE 15.
WHEN NATIONAL GUARD MAY BE CALLED TO SERVICE
SECTION 25-1-1810. National Guard subject to call by United States.
The National Guard of South Carolina or any part thereof shall be subject to call for Federal service at such times, in such manner and in such numbers as may from time to time be prescribed by the Congress of the United States.
SECTION 25-1-1820. Circumstances requiring active duty.
The National Guard shall not be subject to active duty other than training duty, except (a) in case of war, (b) in event or danger of invasion by a foreign nation, (c) there is a rebellion or danger of rebellion against the authority of the government of the United States, (d) the President issues orders to execute the laws of the United States, (e) for preventing, repelling or suppressing invasion, insurrection or riot, (f) for aiding civil officers in the execution of the laws, in which cases the Governor or local commander as provided for in Sections 25-1-1840 to 25-1-1880 shall order out for active service, by draft or otherwise, as many of the National Guard as necessity demands, or (g) during natural disaster or local emergency whenever the lives and property of the State's citizens are threatened.
SECTION 25-1-1830. Duty when called to suppress unlawful assembly.
When an armed force is called out for the purpose of suppressing an unlawful or riotous assembly it must obey the orders in relation thereto of the civil officer calling it out and render the aid required. The orders of the civil officer may extend to a direction of the general or specific mission to be accomplished and the duration of service by the National Guard, but the tactical direction of the troops, the kind and extent of force to be used and the particular means to be employed to accomplish the mission specified by the civil officers are left solely to the officers of the National Guard.
SECTION 25-1-1840. Authority of Governor to order out National Guard.
In the event of (a) war, insurrection, rebellion, invasion, tumult, riot or a mob, (b) a body of men acting together by force with intent to commit a felony, to offer violence to persons or property or by force and violence to break and resist the laws of this State or of the United States, (c) in case of the imminent danger of the occurrence of any of such events or (d) in the event of public disaster the Governor may order the National Guard of South Carolina or any part thereof into the active service of the State and cause them to perform such duty as he shall deem proper. The Governor may also upon the written request of the mayor of a city or the sheriff of a county within which a large public assemblage is to occur order out the National Guard or any part thereof to preserve order and keep people within bounds at such assemblage. In case the Governor shall be absent from the State or unavailable for any reason, the authority herein bestowed shall pass to the Adjutant General of the State.
SECTION 25-1-1850. Authority of Governor to order out National Guard when laws may not be enforced by judicial proceedings.
Whenever, by reason of unlawful obstructions, combinations or assemblages of persons or rebellion against the authority of the government of this State, it shall become impracticable, in the judgment of the Governor to enforce by the ordinary course of judicial proceedings the laws of the State within any county or counties of the State, the Governor may call forth the National Guard of the State or such parts thereof as he may deem necessary to enforce the faithful execution of the laws or to suppress such rebellion.
SECTION 25-1-1860. Governor's proclamation to disperse.
Whenever in the judgment of the Governor it may be necessary to use the military force under the provisions of Section 25-1-1850 the Governor shall forthwith, by proclamation, command such insurgents to disperse and retire peaceably to their respective abodes within a limited time.
SECTION 25-1-1870. Governor may take possession of utilities.
The Governor of the State when, in his judgment, the public safety may require it, may take possession of any or all utilities in the State, including communications and transportation facilities, their offices and appurtenances, their rolling stock, shops, buildings and all their appendages and appurtenances, may prescribe rules and regulations for the holding, using and maintaining of the aforesaid utilities in the manner most conducive to the interest and safety of the government and may place under military control all the officers, agents and employees of such utility or communication facility so that they shall be considered a part of the military establishment of the State, subject to all the restrictions imposed by the rules and articles of war.
SECTION 25-1-1880. Local commanding officer may order out National Guard.
In the event of insurrection, rebellion, invasion, tumult, riot, resistance to law or process or breach of the peace occurring in the vicinity of the station of any organization of the National Guard of South Carolina, the senior commanding officer of that station, whenever the exigencies of the situation are such as to render it impossible first to communicate with the Governor, or Adjutant General, may, upon request in writing by the sheriff of the county involved or an officer acting in his stead stating the facts and the nature of the service desired, order out the organization at that station or such portion thereof as he shall deem necessary and cause it to perform such duty as the circumstances shall require. In any such case such commanding officer shall immediately report what he has done and all of the circumstances of the case to the Governor and it shall be deemed that the action was taken by order of the Governor.
SECTION 25-1-1890. Call of unorganized militia to service in addition to National Guard.
In the event of or imminent danger of war, insurrection, rebellion, invasion, tumult, riot, resistance to law or process or breach of the peace, if the Governor shall have ordered into active service all of the available forces of the National Guard of South Carolina and shall consider them insufficient in numbers to properly accomplish the purpose, he may then in addition order out the unorganized militia or such portion thereof as he may deem necessary and cause them to perform such military duty as the circumstances may require.
SECTION 25-1-1900. Proclamation of state of insurrection.
Whenever any portion of the National Guard or militia is employed in aid of the civil authority, the Governor, if in his judgment the maintenance of law and order will thereby be promoted, may by proclamation declare the county or city in which the troops are serving or any specified portion thereof to be in a state of insurrection, rebellion, tumult, riot, resistance to law or process or breach of the peace.
SECTION 25-1-1920. Penalty for false certificate by physician.
Whenever any physician shall knowingly make and deliver a false certificate of physical disability concerning any member of the National Guard or militia who shall have been ordered out or summoned for active service, such physician shall thereby forfeit forever his license and right to practice in this State and shall be guilty of perjury.
An original enlistment in the National Guard must be for a period prescribed by applicable law and regulations of the Department of Defense.
SECTION 25-1-2120. Transmission of orders for duty.
Orders for duty may be oral or written. Officers and enlisted men may be warned for duty either (a) by stating the substance of the order, (b) by reading the order to the person warned, (c) by delivering a copy of such order to such person, (d) by leaving a copy of such order at his last known place of abode or business with some person of suitable age and discretion or (e) by mail directed to him at his last known place of abode or business. Orders may be transmitted by telegram or telephone. Such warnings may be given by any officer or enlisted man. The officer or enlisted man giving such warning shall, when required, make a return thereof, containing the names of persons warned and the time, place and manner of warning. Such returns shall be verified on oath and shall be prima facie evidence on the trial of any person returned as a delinquent of the facts therein stated.
SECTION 25-1-2170. Civil action or criminal prosecution against military personnel.
No action or proceeding shall be prosecuted or maintained against a member of a military court or officer or person acting under its authority or reviewing its proceedings on account of the approval of imposition or execution of any sentence, warrant, writ process or mandate of any military court, nor shall any officer or enlisted man be liable to a civil action or criminal prosecution for any act done while in the discharge of his military duty when such act is in the line of duty.
SECTION 25-1-2180. Assault upon military personnel.
Any person who unlawfully assaults, fires at or throws any missile at, against or upon any member or body of the National Guard or any civil officer or other person lawfully aiding them, while on active duty in the State or aiding in the enforcement of the laws under proper authority, shall be guilty of a misdemeanor and on conviction shall be liable to imprisonment in the State Penitentiary for a period of not more than two years in the discretion of the court.
SECTION 25-1-2190. Interference with employment of or practice of trade by guard member; penalty.
A person who, either by himself or with another, (a) wilfully deprives a member of the National Guard of South Carolina of his employment, (b) prevents such member from being employed, (c) obstructs or annoys a member or his employer in his trade, business or employment because he is such a member or (d) dissuades or attempts to dissuade any person from enlisting in such National Guard by threat of injury to him in his employment, trade or business shall be guilty of a misdemeanor and, on conviction thereof, shall be fined in a sum not exceeding one hundred dollars or imprisoned in the county jail not more than thirty days.
SECTION 25-1-2200. Pay of National Guard on active duty.
Whenever the National Guard or any part thereof shall be ordered to active State duty the officers, warrant officers and enlisted men shall, during the period of such active duty, receive the same pay and allowances as provided for the active Armed Forces of the United States.
An enlisted person may be discharged from the state military forces according to regulations adopted by the Adjutant General or pursuant to federal law or regulations. On termination of the appointment of an enlisted person in the state military forces, the enlisted person shall be given a certificate of discharge stating the character of the person's service.
In case of the death of any member of the South Carolina National Guard, his commanding officer shall immediately secure all his effects then in camp or military quarters and shall, in the presence of two other officers, make an inventory thereof which he shall transmit to the office of the Adjutant General.
SECTION 25-1-2250. Leaves of absence for public officers and employees.
Officers and employees of the State of South Carolina, and departments and subdivisions thereof, shall be entitled to military leave without loss of pay, seniority or efficiency rating, when attending National Guard encampments or schools for training, under proper authority, and on all other occasions when ordered to active duty, in the service of the State of South Carolina.
SECTION 25-1-2260. Continuance of court case when party or attorney on active duty.
It is the duty of a judge of a court of this State to continue a case in the court on or without motion when a party to it or his leading attorney is absent from court when the case is reached by reason of his attendance on active duty as a member of the National Guard or reserves. The case may proceed if the party, in the absence of his leading attorney, or the leading attorney, in the absence of the party, announces ready for trial on the call of the case. If counsel is absent, it shall be necessary for his client to make oath that he cannot safely go to trial without the absent attorney and, if a party is absent, his counsel shall state in his place that he cannot safely go to trial without his client."
Any member of the South Carolina National Guard who, at the direction of the Governor, enters state duty is entitled, upon honorable release from such duty, to all the reemployment rights provided for in this article.
SECTION 25-1-2320. Application for reemployment; restoration to previous position or appropriate alternative.
Upon release from state duty, the employee shall make written application to his previous employer for reemployment within five days of his release from duty or from hospitalization continuing after release. If the employee is still qualified for his previous employment, he shall be restored to his previous position or to a position of like seniority, status and salary, unless the employer's circumstances now make the restoration unreasonable. If the employee is no longer qualified for his previous employment, he shall be placed in another position, for which he is qualified, and which will give him appropriate seniority, status and salary, unless the employer's circumstances now make the placement unreasonable.
SECTION 25-1-2330. Judicial action for enforcement of rights.
Any employee may file a motion, petition, or other appropriate pleading in the circuit court of the county in which the employer's place of business is located requiring the employer to comply with the provisions of this article to compensate such employee for any loss of wages or benefits.
SECTION 25-1-2340. Provisions of article applicable to members of South Carolina State Guard.
The provisions of Sections 25-1-2310 through 25-1-2330, providing reemployment rights to members of the South Carolina National Guard shall also apply to members of the South Carolina State Guard who, at the direction of the Governor or by his authority, enter state duty and are honorably released from that duty.
ARTICLE 19.
CODE OF MILITARY JUSTICE FOR THE NATIONAL GUARD
SECTION 25-1-2410. Citation of Code of Military Justice.
This article may be cited as the "Code of Military Justice".
1. "Accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any person who has an interest other than an official interest in the prosecution of the accused;
2. "Adjutant general" means the officer defined in Section 25-1-10;
3. "Commander" includes commissioned officers and warrant officers exercising command authority;
4. "Duty status" means duty in the state military forces under an order issued by authority of law, and includes travel to and from duty;
5. "Enlisted member" means a person in an enlisted grade;
6. "Grade" means a step or degree, in a graduated scale of military rank, that is established and designated as a grade by law or regulation;
7. "Legal officer" and "judge advocate" means any commissioned officer of the state military forces designated to perform legal duties for a command;
8. "Military court" means a court-martial or a court of inquiry;
9. "Military forces" means the national guard of the State, as defined in Section 25-1-10, persons attached or assigned to state units, and any other military force organized under the laws of the State;
10. "Military judge" means an official of a general or special court-martial detailed in accordance with Section 25-1-2620;
11. "Oath: includes affirmation;
12. "Rank" means the order of precedence among members of the military forces;
13. "State judge advocate" means the commissioned officer responsible for supervising the administration of military justice in the military forces;
14. "Superior commissioned officer" means a commissioned officer superior in rank or command.
15. "Officer" means commissioned officers and warrant officers unless otherwise specified.
SECTION 25-1-2430. Person subject to Code of Military Justice.
The Code of Military Justice applies to all members of the military forces whether located within or without the territorial boundaries of the State of South Carolina while in an authorized duty status or during a period of time in which he was under lawful orders to be in a duty status, including such time as he was traveling to and from such duty. All members of the military forces are subject to this code while physically located on state or federal property even though not on authorized duty status.
SECTION 25-1-2440. Discharged person as subject to court-martial.
Subject to Section 25-1-2725, no person charged with having committed, while in a status as a member of the state military forces in which he was subject to this code, an offense in violation of this code may be relieved of amenability to trial by court-martial by reason of discharge or other termination of that status. Each person discharged from the state military forces who is later charged with having fraudulently obtained his discharge is, subject to Section 25-1-2725, subject to trial by court-martial on that charge and is after apprehension subject to the code while in the custody of the military for that trial. Upon conviction of that charge he is subject to trial by court-martial for all offenses under the code committed before the fraudulent discharge.
No person who has deserted from the state military forces may be relieved from amenability to the jurisdiction of this code by virtue of a separation from any later period of service.
SECTION 25-1-2450. Appointment of state judge advocate.
1. The adjutant general shall appoint an officer of the military forces as state judge advocate. To be eligible for appointment, an officer must be a member of the South Carolina bar. The state judge advocate shall hold such military grade and rank as designated by the adjutant general. Absent separate appointment, the senior judge advocate of the National Guard is the State Judge Advocate.
2. The adjutant general shall appoint judge advocates and legal officers who shall serve under the supervision of the state judge advocate.
3. To be eligible for appointment, judge advocates or legal officers must be members of the South Carolina bar.
4. The state judge advocate or his assistants shall make frequent inspections in the field of supervision of the administration of military justice.
5. Convening authorities shall at all times communicate directly with the state judge advocate or with judge advocates within their command in matters relating to the administration of military justice.
No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as staff judge advocate or legal officer to any reviewing authority upon the same case.
SECTION 25-1-2455. Military judges; appointment, qualifications, powers, duties.
(A) A military judge must be appointed by the Adjutant General from among the military forces. To be eligible for appointment as a military judge, the person must be:
(1) a member in good standing of the bar in at least one state;
(2) a judge advocate;
(3) an active member of the National Guard; and
(4) hold the rank of major or above.
(B) A military judge must not be under the supervision of the state judge advocate or any other judge advocate in the South Carolina National Guard. Nothing in this section changes the authority of the National Guard Bureau or the Judge Advocate Generals of the Army or Air Force over the military judge.
(C) Subject to any limitations imposed by the South Carolina Code of Laws, a military judge presides at all general and special courts-martial and has the same authority as a South Carolina Circuit Judge in General Sessions Court.
(D) A military judge must periodically review the military justice system and advise the Adjutant General on at least an annual basis of the state of military justice in the South Carolina National Guard.
(E) All contact between a military judge and the Adjutant General must comply with American Bar Association's Canons of Judicial Conduct and the applicable ethical standards for judges.
SECTION 25-1-2460. "Apprehension" defined; persons authorized to apprehend offenders.
For purposes of this code, " apprehension" is the taking of a person into custody. Any person authorized by this code to apprehend persons subject to the code, any marshal of a court-martial appointed pursuant to the provisions of the code, and any officer under the laws or regulations of the United States or of South Carolina, may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it. Commissioned officers, warrant officers, and noncommissioned officers may, subject to the laws of South Carolina, quell quarrels, frays, and disorders among persons subject to the code and apprehend persons subject to this code who take part therein.
SECTION 25-1-2470. Arrest and confinement, defined; use of reasonable force; powers of sheriffs.
For purposes of this code, "arrest" is the restraint of a person by an order, not imposed as a punishment for an offense, directing him to remain within certain specified limits. Confinement is the physical restraint of a person.
An enlisted member may be ordered apprehended or into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to the Code of Military Justice or through any person authorized by this code to apprehend persons. A commander may authorize warrant officers or noncommissioned officers to order enlisted members of his command or subject to his authority into arrest or confinement.
A commissioned officer or a warrant officer may be ordered apprehended or into arrest or confinement only by a commander to whose authority he is subject, by an order, oral or written, delivered in person, or by another commissioned officer. The authority to order such persons apprehended or into arrest or confinement may not be delegated.
No person may be ordered apprehended or into arrest or confinement except for probable cause.
This section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.
All reasonable force necessary to accomplish arrest, apprehension, or confinement may be used.
The power to restrain may be exercised prior or subsequent to court-martial or other disciplinary proceedings.
The sheriffs of the various counties of this State shall carry out the orders and directives of all courts-martial, including summary court officers.
SECTION 25-1-2480. Arrest or confinement; informing person of rights.
Any person subject to this code charged with an offense under this code may be ordered into arrest or, under extraordinary circumstances, into confinement; but when charged only with an offense normally tried by a summary court-martial, the person shall not ordinarily be placed in confinement.
When any person subject to this code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.
SECTION 25-1-2490. Place of confinement; expenses; reports.
Persons confined other than in a guardhouse, whether before or during trial by court-martial, must be confined in any place of confinement under the control of any of the federal armed forces, state military forces, or in any penal or correctional institution, detention facility, jail, or stockade under the control of the State or any of its political subdivisions. All expenses of the confinement must be paid as if the prisoner were committed to confinement by civilian state officials. Unless circumstances prohibit, the place of confinement must be in the prisoner's county of residence or the county in which the prisoner's unit is headquartered.
No provost marshal, commander of a guard, master-at-arms, warden, keeper, sheriff, supervisor, or officer of a place of confinement designated in the first paragraph of this section, may refuse to receive or keep any prisoner committed to his charge, when the committing person furnishes a statement, signed by him, of the offense charged against the prisoner.
Every commander of a guard, master-at-arms, warden, keeper, sheriff, supervisor, or officer of a place of confinement designated in the first paragraph of this section, to whose charge a prisoner is committed shall, within twenty-four hours after that commitment or as soon as he is relieved from guard, report to the commander of the prisoner the name of the prisoner, the offense charged against him, and the name of the person who ordered or authorized the commitment.
