National Guard Association leader says Guard units controlled by governors until federally mobilized; reaction to Oklahoma Guard’s COVID vaccine controversy

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WASHINGTON (KFOR) – The President of the National Guard Association of the United States chimed in on who has authority over National Guard units, issuing the statement amid controversy over the Oklahoma National Guard’s defiance of the Pentagon’s COVID-19 vaccine mandate.

Retired Brig. Gen. J. Roy Robinson, the NGAUS president, said a state’s National Guard is controlled by its governor until activated for federal duty.

“The National Guard’s state and federal roles and the laws that govern them can certainly be complex to those outside the organization. But there is a bottom line: The National Guard is a predominantly part-time, state military force under the command and control of the governor until mobilized for federal duty by the president,” Robinson said. “The nation’s forefathers embedded the National Guard in the U.S. Constitution. The laws that govern the force today are in Title 32 of the U.S. Code. They have been refined by Congress over the decades to ensure the president has access to the National Guard when needed and it promptly returns to the governor when a federal mission is complete.”

The Oklahoma National Guard posted a quote from Robinson on Twitter and linked to his full statement.

Oklahoma’s Guard has recently been at odds with the U.S. Department of Defense, having shunned the Pentagon’s vaccine mandate.

President Joe Biden mandated military members be vaccinated against COVID-19.

Photo goes with story
Brig. Gen. Thomas H. Mancino. Photo from Gov. Stitt’s office.

However, Army Brig. Gen. Thomas Mancino, whom Gov. Kevin Stitt recently appointed as Adjutant General of the Oklahoma National Guard, issued a memo stating that Oklahoma Guard members are not required to get vaccinated, stating that “no negative administrative or legal action will be taken” against unvaccinated guardsmen, according to The Oklahoman, which obtained the memo.

U.S. Department of Defense officials said they have the authority to mandate the vaccines regardless.

“The Secretary [of Defense] has the authorities he needs to require this vaccine across the force and that includes the national guard,” said John Kirby, the Department of Defense’s press secretary. “He will respond appropriately.”

Mancino issued a statement this past weekend, defending the Oklahoma Guard’s new vaccine policy by citing Title 32 of the U.S. Code. That statement is as follows:

“This policy is not anti-vaccine. I and the Governor are both vaccinated. I encourage all our Oklahoma Guard Members to get vaccinated if they choose to do so. We want to educate and inform our Soldiers and Airmen so that they can make an informed decision regarding the DoD Vaccine Mandate.

Under Title 32, Congress established a dual framework for the National Guard. The states receive federal funding in return for being made available to the federal government when called to active duty by the President.

Under Title 32, the Oklahoma National Guard is a state-controlled and federally-funded entity and takes orders from the Governor and his designated chain of command. When mobilized by the President, under Title 10, the Oklahoma National Guard takes all orders from the President and his designated chain of command.

Failing to follow the Governor’s lawful orders while on Title 32 would be both illegal, unethical, and against our sworn oaths. Nothing in this order prevents anyone from taking the vaccine. Also, nothing in his order eliminates the Federal Requirement. The Governor is hoping for Federal Relief from Secretary of Defense Lloyd Austin and in the interim has granted state relief from this requirement.

Until a Guardsman is activated under Title 10, they follow the lawful commands of the Governor of the State of Oklahoma, who has not mandated the COVID-19 vaccine for Oklahoma Guard Members. Once activated to title 10 status, Guardsmen are subject to all Title 10 laws and mandates until returning to Title 32 status.

If you [Oklahoma Guard Members] are not mobilized on Title 10 orders, the only entity that can give you a “lawful” order – that is an order backed by the authority of law – is the Governor and his designated State chain of command.  That “law” is Title 32 U.S. code. This is easily seen by the fact that the UCMJ does not apply to you in Title 32 status. Instead, you are governed by the Oklahoma Code of Military Justice (OCMJ).

Therefore, Brig. Gen. Mancino provided the policy clarifying the Governor’s order that Soldiers and Airmen in the Oklahoma National Guard are relieved from this requirement until mobilized in accordance with the Constitution, the Law, and sworn oath.

The Governor’s request is with Secretary Austin for decision, and the National Guard Bureau has indicated it will conduct a legal review of our position. The proper venue for the resolution of these issues is the Governor’s office, Congress, and the Federal Executive branch. Not the court of public opinion in the press or on social media.”

BRIG. GEN. THOMAS MANCINO

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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