Reserve and National Guard Issues in Family Court Part 4. DISTINCTION: GUARD vs. RESERVE

Fourth in a series of articles addressing Reserve and National Guard Issues in Family Court

By Barry J. Bernstein*

     Throughout this series I have referred to the National Guard and Reserves collectively as the “Reserve Components (“RC”).  This is a term used by the federal government.  While there may appeared to be no distinction between them, that is only true for federal financial issues.  However, there are significant difference outside of federal financial issues.

     A National Guard Lieutenant Colonel and a Navy Reserve Commander have different titles and branches of service, but the same pay grade (“O-5”). With identical criteria for points, they receive the same federal retirement pay through DFAS.  All the RC servicemembers are paid through the Defense Finance and Accounting Service (“DFAS”). They are identical only for federal financial pay and retirement benefits.  

     Reserves (Army, Navy, Air Force, and Marine) generally fall under their respective branch of the military.  They are a creature of the 20th Century to augment the standing active military. Like their active-duty counterparts Reservists fall under Title 10 of the US Code of Laws.  Records are kept with the branch of the Armed Forces, usually under a “Reserve” major command of the branch of service.  The president is the Commander in Chief for Reservists.

      However, the National Guard is distinctive from the Reserves. The National Guard evolved from the “militia” in the 17th century, serving as a local force.  Where the Reserves had individual augmentees, the Militia would appear as units near their home.  The militia became the National Guard with the Dick Act at the at the turn of the century. 

     The National Guard inherited federal statutes from the “militia” and is under Title 32 of the US Code of Laws (not title 10).  The militia belongs to the states, unless activated into federal service.  Until activated, the respective governor is the Commander in Chief.

     DFAS directly pays Guardsmen for federal military duty (drills, mobilizations and federal active duty).  Basically, the federal government pays for the training in relation to the needs of the Army and Air Force as a miliary reserve, equal to the Reserves.  
  
     Guardsmen take an oath of office to support and defend the federal and state governments.  When the Guard is called to state active service (such as a hurricane or flood), they are in a non-federal status for pay or benefits, thereby no DFAS.  None of that time applies to the federal retirement.  The pay, retirement, and injury fall under state law.

     In South Carolina, additional benefits depend on when the service occurred (Pre- 1992 state pension up to $100 monthly; several periodic education benefits.  Guard license plates and other state benefits exist without there being major financial impact.
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     For purposes of Family Court, federal benefits are the same as the Reserves.  However, in some state there are additional benefits of National Guard service.  This may include a retirement pension, state fees waived, or education benefits. Dates of service determine the financial impact.

     Some, but not all states, have an additional militia, or State Defense Forces.  In South Carolina it is the SC State Guard.  There is no federal pay or benefit.  Any benefits are in state law.
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     While these articles are intended to inform you of unique issues of the military and veterans,  it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
    * The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.