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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (202 2)
HOUSE BILL 3902 By: Kannady
AS INTRODUCED
An Act relating to militia; amending 44 O.S. 2021,
Sections 21, 23, 24, 25, 45, 48, 49, 241, 2 43, 821,
and 875, which relate to the O klahoma Military Code;
clarifying personnel to staff joint forces
headquarters; providing for Adjutant General to
assign necessary persons to headquarters; clarifying
personnel in state military forces ; providing gender-
neutral language; modifying eligibility criteria for
Adjutant General; directing certain comparable rate
of compensation for Adjutant General; providing
gender-neutral language; mod ifying oath of office for
National Guard officers; updating g ender-neutral
language; clarifying personnel discharge procedures
by the Governor as Commander in Chief; authorizing
certain personnel matters to be decided according to
customs and state and federal regulations; removing
reference to certain regulations prescribed by the
Secretary of Defense; striking requirement that
personnel procedures be in conformity with certain
laws, rules, and regulations; prohibiting federal
officials from convening certain court-martial
proceedings without prior consent of the Governor;
requiring consent to be in writing and published by
Governor; authorizing Governor to reappoint certain
dismissed officers; providing for reappointment
procedures; directing Governor or Adjutant Ge neral to
prescribe certain regulations; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OK LAHOMA:
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SECTION 1. AMENDATORY 44 O.S. 2021, Section 21, is
amended to read as follows:
Section 21. The Military Department of the State of Oklahoma is
hereby established and shall be under the command and control of the
Governor as Commander in Chief, with the Adjutant General as the
executive and administrative head there of. The Military Department
shall be constituted of the state military forces, as defined by
Section 801 of this title, and is here by organized into a joint
headquarters which shall be identified as the joint forces
headquarters. The joint forces headqua rters shall be jointly
staffed by Army National Guard and Air National Guard personnel of
the state military forces who, under the authority and direction of
the Adjutant General, shall support and assist the Adjutant General
in the exercise of command and control over state military forces
when not activated for federal duty under Title 10 of the United
States Code. There shall be as signed to the joint force
headquarters, officers, enlisted personnel and civilian employees a s
may be considered necessary by the Governor as Commander i n Chief
and as may be authorized by law and Army National Guard regulations
and Air National Guard regu lations the Adjutant General .
SECTION 2. AMENDATORY 44 O.S. 2021, Section 23, is
amended to read as follows:
Section 23. The Governor of the state shall be the Commander in
Chief of the Militia, and as such shall have supreme com mand of the
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military forces of the state while in the service of the state or
until they are ordered and accepted into the actual service of the
United States within the meaning of C lauses 15 and 16 of Section 8
of Article I of the U nited States Constitution and Section 2 of
Article II of the United States Constitu tion. While in the service
of the state State of Oklahoma, he the Governor shall have power to
muster out any organization of the state military forces, discharge
enlisted men personnel, as provided herein, and perform such other
acts in keeping with the laws of the Commander in Chief , subject to
the laws of the United States and regulations prescribed by the
President of the United States . No armed military force from
another state or territory shall be permitted to enter t he state
without his permission of the Governor, unless such military force
be a part of the United States, or is acting under the authority of
the United States. No independent military organization, except as
a corps of cadets at the educational institu tions, shall be
permitted to bear arms without first securing pe rmission of the
Commander in Chief.
SECTION 3. AMENDATORY 44 O.S. 2021, Section 24, is
amended to read as follows:
Section 24. A. The Adjutant General shall be appo inted by the
Governor, by and with the advice and consent of the Senate, and
shall serve at the pleasure of the Governor.
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B. To be eligible to hold the office o f Adjutant General of
this state, at the time of appointment the a ppointee:
1. Shall be a federally recognized currently serving officer of
the Oklahoma National Guard and of the National Guard of the United
States for with no less than three (3) years of service in the
Oklahoma National Guard ; and
2. Shall possess at least the rank of Colonel ; and
3. If not already a general officer, shall be eligible for a
Certificate of Eligibility pursuant to federal law and applicable
regulations issued by the Chief of the National Guard Bureau .
C. If the Oklahoma National Guard is in active federal service
and no persons having the qualifications required in subsection B of
this section are available within the state, then the Governor may
appoint, subject to the advice and consent of the Senate, any
suitably qualified person who at any time in the precedin g ten (10)
years would have been qualified , as above, and who ha s served at
least two (2) years in active federal service in the grade of
Colonel or higher pursuant to the requir ements of subsection B of
this section.
SECTION 4. AMENDATORY 44 O.S. 2021, Section 25, is
amended to read as follow s:
Section 25. A. The Adjutant General shall have the rank of
Major General and devote full time to the duties of the office.
Regardless of whether or not the Adjutant General has been
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recognized federally at the rank of Major General at the time of
appointment by the Governor, the Adjutant General shall be
compensated at the same rate of pay and allowances afforded to a
Major General serving on federal, Title 10 active duty with the same
time in grade.
B. The Governor may appoint Assistant Adjutants Ge neral for
Army and Assistant Adjutants Gener al for Air to assist the Adjutant
General in the discharge and performance of his or her duties. When
appointing Assistant Adjutants General, the G overnor shall take into
consideration the number of such positio ns contemplated or
recommended by the Nation al Guard Bureau for manning the joint
forces headquarters of a state. Such Assistant Adjutants General
shall have the qualifications prescribed by law for the Adjutant
General and shall have the rank of Brigadie r General. The Assistant
Adjutants General appointed by the Governor shall be considered
staff officers and not commanders except that, in the discretion of
the Adjutant General, specific com mand or supervisory authority may
be delegated by the Adjutant G eneral to an Assistant Adjutant
General but such delegation shall be accomplished in writing and
shall be considered a military publication, as defined in Section
801 of this title (Article 1) .
C. Other general officers assigned to billets within the stat e
military forces, including certain billets within the joint forces
headquarters, shall be considered staff officers and not commanders
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except that, in the discret ion of the Adjutant General, specific
command or supervisory authority may be delegated by t he Adjutant
General to such general officers but such delegation shall be
accomplished in writing and shall be considered a military
publication, as defined in Sect ion 801 of this title (Artic le 1).
D. The Adjutant General may employ a state employee in t he
position of Executive Assistant and Progr ams Manager for the
Military Department of the state. Said position shall be
unclassified and exempt from the Oklahoma Personnel Act and the
Merit Rules for Employment, except leave regulations.
SECTION 5. AMENDATORY 44 O.S. 2021, Section 45, is
amended to read as follows:
Section 45. Oath for National Guard Officers. Each
commissioned officer, before entering upon the dut ies of his or her
office, shall take and subscribe to the follow ing oath, or such
other oath as may be required by National Guard Re gulations:
"I .........., do solemnly swear that I will support and defend
the Constitution of t he United States and the Con stitution of the
State of Oklahoma against all enemies, foreign and domestic; that I
will bear true faith and allegiance to the same ; that I will obey
the lawful orders of the President of the United States and the
Governor of the State of Oklahoma; that I make this obligation
freely, without any mental reservation or purpose of evasion, and
that I will well and faithfully discharge the dutie s of the office
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of ......., in the National Guard of the United States and the State
of Oklahoma upon which I am abou t to enter, so help me God."
SECTION 6. AMENDATORY 44 O.S. 2021, Section 48, is
amended to read as follows:
Section 48. Enlisted men personnel discharged from service in
the Oklahoma National Guard of this state shall receive a discharge
in writing in such form and with such classification as is or shall
be prescribed by National Guard regulations, and in time of peace
discharges may be given prior to the expiration of terms of
enlistment in the followi ng cases:
By sentence of a general court-martial; by direction of the
Governor on account of disability; on account of sentence of
imprisonment by a civil co urt whether suspended or not; on account
of a bona fide permanent change of residence to another st ate; and
for the purpose of enlisting in regular Army, Air Force, Navy, or
Marine Corps, and for such other causes as may be prescribed by
National Guard regulations or the Governor as Commander in Chief;
provided, that an enlisted man person who has not returned or
accounted for all of the public property for which he or she is
responsible, shall under no circumstances receive an honorable
discharge.
SECTION 7. AMENDATORY 44 O.S. 2021, Section 49, is
amended to read as follows:
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Section 49. All matters relating to organization, commissioning
and discharging of officers, enlisting and discharge of enlisted men
personnel, discipline, and government of the National Guard, not
otherwise provided in this code, shall may be decided by according
to the customs, regulations, and usage of the United States Army or
the United States Air Force or National Guard regulations.
SECTION 8. AMENDATORY 44 O.S. 2021, Section 241, is
amended to read as follows:
Section 241. The Governor, pursuant to the authority granted
the states by Section 109 of Title 32 of th e United States Code or a
successor provision, and under such regulations as the Secretary of
Defense may prescribe for discipline in training, is hereby
authorized to enlist, organize, maintain , equip and discipline such
military forces other than the Nat ional Guard as he or she may deem
necessary to defend the state. Such forces shall be uniforme d and
subject to Sections 1 through 117, Sections 208 through 237, and
Sections 800 through 946 of this title, insofar as such sections do
not conflict with Sect ions 241 through 250 of this title.
SECTION 9. AMENDATORY 44 O.S. 2021, Section 243, is
amended to read as follows:
Section 243. A. The Governor is hereby authorized to prescribe
rules and regulations governing the enlistment, o rganization,
administration, equipment, discipline and discharge of the personnel
of such military forces; to requisition from the Secretary of
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Defense such arms and equipment as may be in the p ossession of and
can be spared by the Department of Defense an d to extend thereto the
facilities of state armories, Armed Forces Reserve Centers,
readiness centers, logistics, aviation, and training facilities,
warehouses and their equipment and such other state premises and
property as may be available for the purpo se of drill and
instruction. Insofar as applicable the procedure for the
enlistment, organization, pay, maintenance, equipment and
disciplining of such forces shall be in conformity with the la w and
the rules and regulations governing and pertaining to th e National
Guard; provided, that the officers Officers and enlisted personnel
in the Oklahoma State Guard shall not receive any compensation or
monetary allowances fr om the state except when act ivated for state
active duty, as defined in Section 801 of thi s title, by order of
the Governor.
B. Members of the Oklahoma State Guard shall be considered part
of state military forces as defined in Section 801 of this title a nd
shall be subject to the O klahoma Uniform Code of Military Justice.
C. When prescribing the rules and regulation s governing
enlistment, organization, administration, equipment, discipline and
discharge of the personnel of the Oklahoma State Guard, the G overnor
shall issue such rul es and regulations in the form of an executive
order or in a series of such orders. An executive order or a series
of such orders prescribing the rules and regulations governing
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enlistment, organization, administration, equipme nt, discipline and
discharge of the personnel of the Oklahoma State Guard shall also be
published by the Adjutant G eneral as a military publication.
SECTION 10. AMENDATORY 44 O.S. 2021, Section 821, is
amended to read as follows:
Section 821. RESERVED. ARTICLE 21. Convening of court-martial
by federal officials .
In no case shall the President of the United States, the
Secretary of Defense, the Secretary of a military department, a
military officer serving on active duty within the meaning of Title
10 of the United States Code or any other federal official convene a
court-martial proceeding pursuant to the Oklahoma Military Code
unless prior consent has been granted by the Governor. Such
consent, if granted by the Governor, shall be accomplished in
writing and shall be published by the Governor.
SECTION 11. AMENDATORY 44 O.S. 2021, Section 875, is
amended to read as follows:
Section 875. ARTICLE 75. Restoration.
A. Under such regulations as the Adjutant General may
promulgate, all rights, privileges, and property affected by an
executed part of a court-martial sentence which has been set aside
or disapproved, exce pt an executed dismissal or discharge, shall be
restored unless a new trial or rehearing is o rdered and such
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executed part is included in a sentence imposed upon the new trial
or rehearing.
B. If a previously executed sentence of dishonorable or bad -
conduct discharge is not imposed on a new trial, the Adjutant
General shall substitute therefor a form of discharge authorize d for
administrative issuance unless the accused is to serve ou t the
remainder of his or her enlistment.
C. If a previously executed se ntence of dismissal is not
imposed on a new trial, the Adjutant General shall substitute
therefor a form of discharge au thorized for administrative issue,
and the commissioned officer dismissed by that sentence may be
reappointed pursuant to Sections 875 a nd 12203 of Title 10 of the
United States Code and any applicable regulations prescribed
thereunder by the President of the United States or the Secretary
concerned solely by the Governor to such commissioned grade and
with such rank as in the opinion of the Governor that former officer
would have attained had he or she not been dismissed. The
reappointment of such a form er officer shall be without regard to
the existence of a vacanc y and shall affect the promotion status of
other officers only insofar as the Governor may direct. All time
between the dismissal and the reappointment shall be cons idered as
actual service for all purposes, including the right to pay and
allowances.
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D. The Governor or Adjutant General shall prescribe
regulations, with such limitations as the Governor or Adjutant
General considers appropriate, governing eligibility f or pay and
allowances for the period after the date on which an executed part
of a court-martial sentence is set aside.
SECTION 12. This act shall become effective November 1, 2022.
58-2-8949 EK 01/17/22