1. (a) Manpower Requirements of National Guard Bureau.— The manpower requirements of the National Guard Bureau as a joint activity of the Department of Defense shall be determined in accordance with regulations prescribed by the Secretary of Defense, in consultation with the Chairman of the Joint Chiefs of Staff.

2. (b) Personnel for Functions of National Guard Bureau.—

   1. (1) In general.— The Chief of the National Guard Bureau may program for, appoint, employ, administer, detail, and assign persons under sections 2102, 2103, 2105, and 3101 of title 5, subchapter IV of chapter 53 of title 5, or section 328 of title 32, within the National Guard Bureau and the National Guard of each State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands to execute the functions of the National Guard Bureau and the missions of the National Guard, and missions as assigned by the Chief of the National Guard Bureau.
   2. (2) Administration through adjutants general.— The Chief of the National Guard Bureau may designate the adjutants general referred to in section 314 of title 32 to appoint, employ, and administer the National Guard employees authorized by this subsection.

   3. (3) Administrative actions.— Notwithstanding the Intergovernmental Personnel Act of 1970 (42 U.S.C. 4701 et seq.) and under regulations prescribed by the Chief of the National Guard Bureau, all personnel actions or conditions of employment, including adverse actions under title 5, pertaining to a person appointed, employed, or administered by an adjutant general under this subsection shall be accomplished by the adjutant general of the jurisdiction concerned. For purposes of any administrative complaint, grievance, claim, or action arising from, or relating to, such a personnel action or condition of employment:

      1. (A) The adjutant general of the jurisdiction concerned shall be considered the head of the agency and the National Guard of the jurisdiction concerned shall be considered the employing agency of the individual and the sole defendant or respondent in any administrative action.
      2. (B) The National Guard of the jurisdiction concerned shall defend any administrative complaint, grievance, claim, or action, and shall promptly implement all aspects of any final administrative order, judgment, or decision.
      3. (C) In any civil action or proceeding brought in any court arising from an action under this section, the United States shall be the sole defendant or respondent.
      4. (D) The Attorney General of the United States shall defend the United States in actions arising under this section described in subparagraph (C).
      5. (E) Any settlement, judgment, or costs arising from an action described in subparagraph (A) or (C) shall be paid from appropriated funds allocated to the National Guard of the jurisdiction concerned.

(Added Pub. L. 110–181, div. A, title XVIII, § 1812(b)(1), Jan. 28, 2008, 122 Stat. 497; amended Pub. L. 114–328, div. A, title IX, § 932, Dec. 23, 2016, 130 Stat. 2363; Pub. L. 115–232, div. A, title V, § 517, Aug. 13, 2018, 132 Stat. 1754.)

Editorial Notes

References in Text

The Intergovernmental Personnel Act of 1970, referred to in subsec. (b)(3), is Pub. L. 91–648, Jan. 5, 1971, 84 Stat. 1909, which is classified principally to chapter 62 (§ 4701 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4701 of Title 42 and Tables.

Prior Provisions

A prior section 10508, added Pub. L. 103–337, div. A, title IX, § 904(a), Oct. 5, 1994, 108 Stat. 2827, defined “State” for purposes of this chapter, prior to repeal by Pub. L. 104–106, div. A, title XV, § 1501(b)(7)(A), Feb. 10, 1996, 110 Stat. 496.

Amendments

2018—Subsec. (b)(1). Pub. L. 115–232 substituted “sections 2102, 2103, 2105, and 3101 of title 5, subchapter IV of chapter 53 of title 5, or section 328 of title 32,” for “sections 2103, 2105, and 3101 of title 5, or section 328 of title 32,”.

2016—Pub. L. 114–328 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

Statutory Notes and Related Subsidiaries

Number of Members of the National Guard on Full-Time Duty in Support of the Reserves Within the National Guard Bureau

Pub. L. 115–91, div. A, title IV, § 416, Dec. 12, 2017, 131 Stat. 1370, provided that:

1. “(a) Army National Guard of the United States.— As of the end of fiscal year 2019, and as of the end of each fiscal year thereafter, the number of members of the Army National Guard of the United States serving with the National Guard Bureau on full-time duty for the purpose of organizing, administering, recruiting, instructing, or training the reserve components may not exceed the number equal to six percent of the total number of members of the Army National Guard of the United States authorized for service on full-time duty for that purpose in that fiscal year.
2. “(b) Air National Guard of the United States.— As of the end of fiscal year 2019, and as of the end of each fiscal year thereafter, the number of members of the Air National Guard of the United States serving with the National Guard Bureau on full-time duty for the purpose of organizing, administering, recruiting, instructing, or training the reserve components may not exceed the number equal to six percent of the total number of members of the Air National Guard of the United States authorized for service on full-time duty for that purpose in that fiscal year.”