A.R.S. tit. 26 | Title 26 — Military Affairs and Emergency Management

Chapter 1 Emergency and Military Affairs

Article 1 Emergency and Military Affairs

§ 26-101 Department of emergency and military affairs; organization; adjutant general; qualifications

(L22, Ch. 151, sec. 1. Eff. until 1/1/27)

A. The department of emergency and military affairs is established consisting of the division of emergency management and other divisions or offices as determined by the adjutant general pursuant to section 26-102, subsection C, paragraph 8.

B. The department consists of the adjutant general and such other officers, warrant officers, enlisted personnel and employees as deemed necessary.

C. The department shall be administered and controlled by the governor as commander-in-chief. The adjutant general shall be the director of the department.

D. The adjutant general shall be appointed by the governor pursuant to section 38-211 and shall serve at the pleasure of the governor. The person appointed shall be a citizen of the United States, have served two of the five years immediately preceding appointment in the national guard in the state or territory where the person is an assigned member and establish domicile in Arizona for residency purposes within ninety days after appointment. In appointing the adjutant general, the governor may give preference to a person who has served in the national guard of this state. At the time of the appointment, the person appointed shall have qualifications required by the United States department of defense for the adjutant general and shall attain federal recognition in a grade of at least brigadier general not later than two years after the appointment. Failure to meet these qualifications, failure to retain federal recognition or failure to meet the age provided by federal law relating to state adjutants general shall terminate the appointment.

E. The adjutant general shall receive compensation as determined pursuant to section 38-611 and shall devote full time to the office.

F. At the time of appointment, the adjutant general shall receive the state rank of major general and, at that time, shall become the ranking officer in the department of emergency and military affairs.

§ 26-101 (Version 2) Department of emergency and military affairs; organization; adjutant general; qualifications

(L25, Ch. 256, sec. 1. Eff. 1/1/27)

B. The department consists of the adjutant general and such other officers, warrant officers, enlisted personnel and employees as deemed necessary.

C. The department shall be administered and controlled by the governor as commander-in-chief. The adjutant general shall be the director of the department.

D. The adjutant general shall be appointed by the governor pursuant to section 38-211 and shall serve at the pleasure of the governor. The person appointed must:

Be a citizen of the United States.
Be a current resident of this state or establish domicile in this state for residency purposes within ninety days following appointment.
Meet either of the following criteria:

(a) Have served two of the five years immediately preceding appointment in the national guard in the state or territory where the person is an assigned member.

(b) Be a general officer who is currently serving, or a retired general officer who has been on retired status for not more than twenty-four months, and who has a minimum of five years of service in the rank of colonel or higher in the national guard in a state where the officer was assigned.

E. In appointing the adjutant general, the governor may give preference to a person who has served in the national guard of this state. At the time of the appointment, the person appointed shall have qualifications required by the United States department of defense for the

adjutant general and, if the person is not already a general officer, shall attain federal recognition in a grade of at least brigadier general not later than two years after the appointment. Before appointment, any person who is currently serving and who is notified that the person is being considered by the governor for appointment shall provide evidence, by the deadline stipulated, to the agency, department or office designated by the governor that the person is in good standing with current army or air force requirements, depending on the person's branch of service, for military service. If a retired general officer is selected for appointment to serve as the adjutant general, that general officer shall provide, within six months after the date of appointment, evidence to the office of the governor of good standing with current army or air force requirements, depending on the person's branch of service, for military service. A person's failure to meet these service standards or other qualifications within the time prescribed, failure to retain federal recognition or failure to meet the age provided by federal law relating to state adjutants general terminates the appointment.

F. The adjutant general shall receive compensation as determined pursuant to section 38-611 and shall devote full time to the office.

G. At the time of appointment, the adjutant general shall receive the state rank of major general and, at that time, shall become the ranking officer in the department of emergency and military affairs.

§ 26-102 Powers and duties of the adjutant general

A. The adjutant general shall serve as head of the department and, subject to the orders of the commander in chief, command the national guard of this state. The governor as commander in chief shall administer and control the national guard, and the adjutant general is responsible to the governor for executing all orders relating to the militia, organizing, activating, reactivating, inactivating and allocating units, recruiting personnel, public relations and disciplining and training the national guard and those members of the militia inducted into the service of this state as provided in this chapter. The adjutant general shall act as military chief of staff to the governor and as the commanding general of all branches of the militia. The adjutant general may belong to the national association and other organizations for the betterment of the national guard, subscribe to and obtain periodicals, literature and magazines of such other organizations and pay dues and charges from monies of this state appropriated for that purpose. Except for the authority expressly reserved for the governor, the adjutant general is responsible for emergency management, and all emergency activities are subject to the approval of the adjutant general.

B. The adjutant general, as the military chief of staff, shall:

Act as military advisor to the governor and perform, as the governor prescribes, military duties not otherwise designated by law.
Adopt methods of administration for the national guard that are not inconsistent with laws and regulations of the United States department of defense or any subdivision of the United States department of defense.
Supervise and direct the organization, regulation, instruction and other activities of the national guard.
Attest and record all commissions issued by the governor and maintain a register of all commissioned personnel.
Keep a record of all orders and regulations pertaining to the national guard and all other writings and papers relating to reports and returns of units comprising the national guard and militia.
Superintend the preparation of returns, plans and estimates required by this state, by the department of the army, air force or navy and by the United States secretary of defense.
Control the use of and care for, preserve and maintain all military property belonging to or issued to this state and pay from monies appropriated by the legislature for these purposes the necessary expenses for labor and material incurred in repairing military property.
Dispose of unserviceable military property belonging to this state, account for the proceeds and transmit the proceeds to the morale, welfare and recreational fund established by section 26-153.
Authenticate with the seal of the office of the adjutant general all orders and copies of orders issued by the adjutant general's office. An authenticated copy has the same force and effect as the original.
Present to the governor before each regular session of the legislature, or as otherwise required, an estimate of the financial requirements for state monies for operating the department and the national guard during the next fiscal year.

C. The adjutant general, as head of the department, shall:

Be the administrator of the department.
Coordinate the functions of the divisions and offices of the department.
Subject to title 41, chapter 4, article 4 and, as applicable, article 5, appoint, suspend, demote, promote or dismiss employees of the department. The adjutant general may delegate this authority.
Appoint an auditor for the department to conduct periodic financial and compliance audits of each division and office in the department and perform other duties as prescribed by law. At least annually the auditor shall audit accounts that are open for more than twelve months. The auditor shall determine within the department compliance with purchase and bidding procedures prescribed by law.
Adopt, with the approval of the governor, rules necessary for operating the department and for organizing, governing, arming, equipping, instructing and compensating the national guard and authorized employees. Rules that are adopted for the national guard and authorized employees pursuant to this paragraph shall be in force and effect when approved by the governor.
Establish and administer accounts for federal, state or other monies made available to carry out the functions of the department.
As deemed necessary, appoint to peace officer status members of the Arizona national guard who have been awarded a United States army military occupational specialty as military policeman or a United States air force specialty code as security policeman or who have served as a law enforcement officer in any branch of the United States armed forces or as a special agent of a military criminal investigative organization within the United States department of defense. Before appointment as peace officers, the individuals must successfully complete a course of study prescribed by the Arizona peace officer standards and training board. Individuals appointed as peace officers pursuant to this paragraph, when performing duties at facilities or on land operated or controlled by or under the jurisdiction of the adjutant general, have all the powers, privileges and immunities of peace officers provided by law. Individuals appointed as peace officers pursuant to this paragraph are not eligible to participate in funding provided by the peace officers' training fund established by section 41-1825 or in the public safety personnel retirement system.
Establish, abolish or reorganize the positions or organizational structure within the department, subject to legislative appropriation, if, in the adjutant general's judgment, the modification would make the operation of the department more efficient, effective or economical.
Submit to the governor, the president of the senate and the speaker of the house of representatives annually by September 1 a report for the department for the preceding fiscal year that includes:

(a) The strength and condition of the national guard.

(b) The business transactions of the department.

(d) The disposition of all military and civilian property on hand or issued.

(e) A description of the activity in the camp Navajo fund established by section 26-152.

(f) A detailed statement of the national guard postsecondary education reimbursement program pursuant to section 26-181, subsection D.

D. The adjutant general, with the approval of the governor, may:

Enter into contracts with individuals, this state, political subdivisions of this state or the federal government and its agencies to purchase, acquire, rent or lease lands, buildings or military materiel and take title in the name of this state for establishing and maintaining armories, subject to legislative appropriation for these purposes.
Procure and contract for procurement of equipment and its issuance to members of the militia inducted into the service of this state.
Enter into agreements and plans with the state universities, the community colleges or any educational institution supported by federal or state monies to promote the best interests of the national guard and military training of students of the institutions.
Lease property acquired under this chapter for any public purpose for a period of one year that is renewable.
Convey for any public purpose in the name of this state easements on real property acquired under this chapter.
Enter into contracts or agreements with the federal government that are deemed to be in the best interest of this state and the national guard.
Delegate the powers and duties prescribed in this section.
Adopt methods of security for the national guard reservations or facilities that are consistent with the laws, regulations or directives of the United States department of defense or any subdivision of the United States department of defense and the laws of this state.
Enter into a contract or agreement with an individual or political subdivision of this state to facilitate any of the following:

(a) Training.

(b) Emergency operations.

(d) Safety, including emergency and medical services.

(e) Movement or storage of aircraft.

(f) Recruitment and retention of personnel for the national guard of Arizona.

Subject to legislative appropriations, establish an educational program for persons who have previously dropped out of high school and who are under twenty years of age but who are not adjudicated delinquent. The educational program shall be designated "project challenge" and shall be conducted by the national guard of Arizona in a paramilitary environment. The goal of the educational program is to provide persons who are enrolled in the program with the knowledge and skills necessary to become productive citizens and to obtain a general equivalency diploma. In addition to monies appropriated for the program, the adjutant general may accept and spend monies from any other lawful public or private source to administer, operate and support the program.

§ 26-103 Department of emergency and military affairs employees; fingerprints; exemptions; definition

A. Employees shall submit the form prescribed in subsection D of this section to the department and, except as provided in subsection C of this section, shall submit a full set of fingerprints to the department of emergency and military affairs and the department of public safety for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

B. The department of emergency and military affairs may not disclose information obtained pursuant to subsection A of this section except to members of the department's staff solely for employment purposes.

C. A member of the national guard or an employee who holds a current security clearance pursuant to national guard laws and regulations is exempt from the fingerprinting requirements of subsection A of this section.

D. An employee shall certify on a form that is provided by the department of emergency and military affairs and notarized that the employee is not awaiting trial on or has never been convicted of or admitted in open court or pursuant to a plea agreement committing any of the offenses listed in section 41-1758.03, subsections B and C in this state or a similar offense in another state or jurisdiction.

E. The department of emergency and military affairs shall not allow a person to be employed on any national guard reservation or facility in any capacity if the person has not submitted a full set of fingerprints to the department of emergency and military affairs and the department of public safety within the first three days of employment for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544.

F. For the purposes of this section, "employee" means any person who works for the department of emergency and military affairs or any subdivision of the department of emergency and military affairs.

§ 26-104 Assistant adjutants general; appointment; qualifications

The governor shall appoint at least two assistant adjutants general of this state, one of whose branch of service is the army and one of whose branch of service is the air force. The governor may appoint additional assistant adjutants general if authorized by the chief national guard bureau. The assistant adjutants general must meet all of the following:

Be assigned in the national guard of this state and be appointed as general officers in the national guard of this state.
Receive federal recognition of their general officer rank within twenty-four months after appointment.
At the time of federal recognition, be in good standing with current army or air force standards or requirements, depending on the appointee's branch of service, for military service.

§ 26-105 Border security fund; exemption; reimbursement

A. The border security fund is established and consists of legislative appropriations, gifts, grants and other donations. The department of emergency and military affairs shall administer the fund. Monies in the fund are continuously appropriated to the department of emergency and military affairs and may be used for the following purposes:

Preventing human trafficking.
Preventing entry into the United States of:

(a) Aliens who are unlawfully present in the United States.

(b) Terrorists and instruments of terrorism.

Planning, designing, constructing and maintaining transportation, technology and commercial vehicle inspection infrastructure near this state's international border.
Clearing nonindigenous plants.
Administering and managing the construction and maintenance of a physical border fence.
Awarding grants to counties to provide housing in secure facilities.
Awarding grants to counties for prosecuting individuals who commit crimes listed in this subsection.

B. In addition to the appropriations prescribed in subsection A of this section, the department of emergency and military affairs may use up to $250,000 from the border security fund each fiscal year to administer this section. Notwithstanding any other law, the department of emergency and military affairs is authorized additional full-time equivalent positions paid from the appropriation made by this subsection to administer this section.

C. The department of emergency and military affairs must consult with the following entities before spending any monies from the fund for the purpose provided in:

Subsection A of this section, the department of public safety.
Subsection A, paragraph 3 of this section, the department of transportation.
Subsection A, paragraph 4 of this section, the Arizona department of forestry and fire management.
Subsection A, paragraph 5, 6 or 7 of this section, the department of administration.

D. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

E. The governor shall request the federal government to reimburse state monies spent from the fund pursuant to this section. The reimbursements shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

§ 26-107 Hazard mitigation revolving fund

The hazard mitigation revolving fund is established consisting of monies appropriated by the legislature and monies received from the federal government. Monies in the fund are continuously appropriated. The department of emergency and military affairs shall administer the fund. Monies in the fund shall be used in accordance with the guidelines established pursuant to the safeguarding tomorrow through ongoing risk mitigation act (P.L. 116-284; 134 Stat. 4869).

Article 2 Militia

§ 26-121 Composition of militia; persons exempt

The militia of the state of Arizona consists of all able bodied citizens of the state between the ages of eighteen and forty-five years and all residents of the state between such ages who have declared their intention to become citizens of the United States, except:

Persons exempted by the laws of the state or the United States.
Persons with a serious mental illness, totally blind persons and persons convicted of infamous crimes.
Judges and clerks of courts of record.
State and county civil officers holding office by election, and members of the legislature.
Members of the clergy.

§ 26-122 Components of militia

A. The militia is divided into the national guard of Arizona, the state guard when organized, and the unorganized militia.

B. The national guard consists of commissioned officers, warrant officers, enlisted personnel, organizations, staffs, corps and departments of the federally recognized and regularly commissioned, warranted and enlisted militia of the state, organized and maintained pursuant to law, and all members thereof honorably retired by age or disability.

C. The numerical strength, composition, distribution, organization, arms, uniforms, equipment, training and discipline of the federally recognized national guard shall be prescribed by the governor in conformity with the allocation of units to the state by the department of the army and the department of the air force of the United States.

D. The inactive national guard consists of commissioned, warranted and enlisted personnel relieved from assignment to the national guard by the adjutant general, or at their own request, under regulations prescribed by the department of national defense of the United States, and not reassigned to another component of the armed forces of the United States.

E. The unorganized militia consists of members of the militia not members of the national guard or state guard when organized.

§ 26-123 Maintenance of private troops prohibited; violation; classification

A. No person, partnership or corporation shall maintain troops under arms, but this section shall not be deemed to prohibit a business, plant or firm from maintaining armed guards for protection of their property from damage or loss, or formation of a state police or highway patrol, or the existence of county and municipal police forces and sheriff's posses.

B. Any person violating this section is guilty of a class 5 felony.

§ 26-124 Service by members of unorganized militia; volunteers during emergency; enrollment; selection; organizing selectees

A. When the governor proclaims an emergency, and, upon advice of the adjutant general, determines that the national guard does not have sufficient troops to meet the emergency, the governor may authorize the adjutant general to accept for service from the unorganized militia a specified number of volunteers.

B. If the governor deems an emergency of a nature that all or a large portion of the unorganized militia should be called into service of the state, he shall by proclamation order all members of the unorganized militia to enroll with the county recorder of the county in which they reside. The enrollment shall be in triplicate stating the full name, residence, age, occupation and previous service of each person enrolled. The rolls shall be verified by the enrolling officer who shall retain one copy and file one copy with the adjutant general and one with the clerk of the superior court of the county in which the person is enrolled. The persons called into service shall be determined by lot in accordance with a plan devised by the governor and implemented by him. The plan shall be patterned upon the latest selective service act of the United States and executive orders of the president issued to implement the law.

C. Upon mobilization for state purposes members of the unorganized militia shall be organized under the command of the officer the governor designates into units comparable to units of the national guard.

§ 26-125 Procedure to claim exemption from service; duty of county recorder; review by adjutant general

A. The county recorder shall take under oath the statement of any person claiming exemption from service under the provisions of section 26-121, and shall employ means he deems necessary to establish the exemption. The recorder shall, if satisfied the person is exempt, enter his name on the rolls and opposite the name make the notation "Exempt."

B. Determination of exemption by a county recorder or other enrolling officer is subject to review by the adjutant general, and his decision shall be final.

§ 26-126 Violations; classifications

A. A person who knowingly fails or refuses to give information or gives false information to the county recorder or other enrolling officer relating to a subject of inquiry under the provisions of this article is guilty of a class 2 misdemeanor.

B. A county recorder or other enrolling officer who knowingly fails or refuses to perform a duty prescribed by this chapter, or who falsifies a record pertaining thereto, is guilty of a petty offense.

§ 26-127 Discharge

A member of the militia who has been called to active duty may be discharged in accordance with rules and regulations prescribed by the governor.

Article 3 National Guard

§ 26-151 Acceptance of national defense act; adoption of other federal acts and regulations pertaining to national guard

A. The state accepts the benefits of sections 109 and 110 of the national defense act (32 United States Code sections 109 and 110). Officers who are required to comply with the provisions of the act shall be qualified as prescribed therein and shall be subject to its provisions pertaining to appointment and retirement.

B. The rules and regulations of the armed forces of the United States and the national guard, the national defense act, and other acts of Congress, including provisions relating to the establishment of financially self-supporting morale, welfare and recreational programs, as far as they apply to national guards of states, shall apply to the national guard of Arizona, as fully as if set forth and incorporated in this article.

§ 26-152 National guard fund; camp Navajo fund

A. The national guard fund is established consisting of monies appropriated to the national guard. The adjutant general shall administer the fund. On notice from the adjutant general, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund. Monies in the fund are continuously appropriated to the national guard and are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

B. The fund may be drawn on by the adjutant general, or the adjutant general's designee, for any purpose commensurate with the purpose and mission of the national guard.

C. The amount of the national guard fund appropriated for capital outlay or improvements shall be exempt from the provisions of section 35-190 relating to lapsing appropriations.

D. The adjutant general is authorized to utilize any national guard facility for commercial purposes. All proceeds from commercial activities shall be deposited, pursuant to sections 35-146 and 35-147, in a separate account in the national guard fund, and the monies are continuously appropriated to the department for the operation, maintenance, support and capital improvements of any national guard facility. Monies in the account are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

E. A camp Navajo fund is established for the operation, maintenance, capital improvements and personal services necessary for the national guard to operate a regional training site and storage facility at Bellemont. The fund consists of monies received from storage of commodities and services provided as approved by the adjutant general. The adjutant general shall administer the fund. On notice from the adjutant general, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund. Monies in the fund are continuously appropriated to the national guard and are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

F. After all budgeted operational, maintenance, support and capital improvement requirements are met at camp Navajo, the adjutant general may use the remaining monies in the camp Navajo fund to provide for the operation, maintenance, support and capital improvements of any national guard facility. For the purposes of this subsection, "facility" means all property under the control and administration of the adjutant general.

§ 26-153 Morale, welfare and recreational fund; sources of monies; exemptions

A. The morale, welfare and recreational fund is established as a state fund for morale, welfare and recreational activities and support personnel for the national guard. Support personnel are employees of the fund and not of this state. The adjutant general shall administer the fund subject to approval of the governor. Monies shall be deposited, pursuant to sections 35-146 and 35-147, in the fund from the following sources:

Monies transferred by the director of the department of transportation pursuant to section 28-2415.
Monies deposited pursuant to section 26-102, subsection B, paragraph 8 or monies generated from recycling activities consistent with federal recycling policies.
Gifts, donations and contributions to the department accepted by the adjutant general.
Any other nonappropriated monies received by the national guard from state and federal revenue producing military activities relating to morale, welfare and recreation.

B. Monies in the fund are from nonappropriated sources, are not subject to legislative appropriation and are exempt from the provisions of section 35-190 relating to lapsing of appropriations. The adjutant general may establish bank accounts for monies withdrawn from the fund to administer the operations of the morale, welfare and recreational programs.

C. On notice from the adjutant general, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

D. Expenditures of monies in the fund are subject to rules adopted by the department of emergency and military affairs and are exempt from the procurement code requirements of title 41, chapter 23.

§ 26-154 Organizational structure of national guard

The organization of the national guard shall be prescribed by the United States department of defense. It shall consist of units allocated to the state and recognized by the federal government and assigned by the secretary of defense or a subdivision of the department of defense.

§ 26-155 Enlistment; appointment of officers

A. Able-bodied residents of the state meeting the requirements for enlistment prescribed by the department of defense of the United States may, upon application, be enlisted as members of the national guard. They shall be enlisted in the manner prescribed by the Congress of the United States, the president or the secretary of defense, and shall take the oath prescribed for persons enlisting in the national guard of the United States.

B. Persons commissioned or warranted in the national guard shall meet the qualifications prescribed by the department of defense or any subdivision thereof, and are subject to provisions thereof relating to appointment and retirement.

§ 26-156 Pay of personnel

A. Officers and enlisted personnel of the national guard on state active duty by order of the governor or adjutant general shall receive the same pay and allowance, including longevity pay, as prescribed for respective grades in the armed forces of the United States. Personnel on state active duty for more than thirty consecutive days shall receive the same leave entitlements prescribed for the United States armed forces.

B. Service for longevity pay shall include all time served in the national guard of this state and in the armed forces and national guard of the United States and the organized reserve. In addition, enlisted personnel shall receive a salary recommended by the adjutant general and approved by the governor.

§ 26-157 Officer's uniform allowances

A newly commissioned or warranted officer in the national guard shall receive an allowance of two hundred fifty dollars for uniforms and related equipment on the date that the officer receives the commission or warrant. An officer on record as of January 1 of each year shall receive an additional two hundred fifty dollars on April 1 of that year for uniforms and related equipment.

§ 26-158 State active duty; employment benefits; travel allowances

A. Officers and enlisted personnel of the Arizona national guard while on state active duty exceeding thirty consecutive days by order of the governor or adjutant general shall be considered employees of this state and, subject to appropriation, are eligible for health and accident insurance benefits, including dependents, pursuant to section 38-651. On completing state active duty orders, a member of the Arizona national guard, including dependents, may not continue to receive benefits prescribed in this section.

B. Members of the national guard traveling at any time under official orders on business of the state shall be reimbursed for the cost of travel, expenses for lodging and meals as provided for state employees. The expense shall be paid from amounts appropriated for travel by the national guard.

§ 26-159 Powers of commanding officers; defense of officer to action based on act or omission

A. The commanding officer of troops under arms while in actual service may cause such troops to perform such military duties as he requires. He may place under arrest an officer or enlisted person who disobeys orders of superior officers, and any person trespassing on parade or camp grounds or interrupting or molesting the orderly discharge of duty of troops under arms. The commanding officer shall use his own discretion with respect to attacking or firing upon a mob or unlawful assembly, and his honest and reasonable judgment in the exercise of his duty shall be a complete defense, both civilly and criminally, for any act done while on such duty.

B. If an officer is made a party defendant in an action arising from acts or omissions while on military duty, the plaintiff in the action shall be required, upon motion of the defendant officer, to give security for costs in the amount of three hundred dollars.

C. The attorney general, upon request of the defendant officer, shall defend the action or assist in the defense thereof.

§ 26-160 Oaths or affirmations

Oaths or affirmations required in the military service shall be administered by any commissioned officer, or other officer authorized to administer oaths, and no charge shall be made therefor.

§ 26-161 Retirement; retention of commission after withdrawal of federal recognition

A. A commissioned officer, warrant officer or enlisted person who has served in the national guard for ten years may, upon application, be placed upon the retired list. Time served in the regular or volunteer armies of the United States or in the organized militia of another state shall be allowed in computing the length of service. Service in time of war shall be computed at twice the actual duration of such service.

B. An officer of the national guard whose federal recognition terminates or is withdrawn because of age or physical disability shall retain his commission and rank for life. He shall be an honorary member of the staff of the adjutant general and shall serve in an advisory capacity, but shall receive no compensation for such service.

§ 26-162 Discharge of officer; grounds and procedure

A commissioned or warrant officer of the national guard may be discharged for any of the following reasons and in the manner prescribed:

By voluntary resignation whereby the officer submits to the adjutant general a letter of resignation setting forth his reasons for separation from the service. The resignation shall not be accepted if separation is not justified by appropriate regulations of the national guard, army or air force of the United States, or if the officer is under arrest or being investigated preparatory to preferring charges against him, or until all property and money of the state or the United States charged to him or in his possession or care has been inventoried and an accounting made therefor.
By findings of a court-martial called for the purpose of trying the officer for a military offense, or in time of war or emergency for an offense both civil and military. The sentence shall not be executed until approved by the governor.
By order of the governor upon a finding by a board of officers that the officer to be separated from the service is inefficient and incapable of discharging the duties of a national guard officer in any assignment commensurate with his rank and experience, and upon the written request of the immediate superior of the officer to be separated. The board of officers shall be appointed by the adjutant general, and shall consist of officers of equal or senior rank to the officer to be separated.
By absence without leave for a period of thirty days.
By failure to pass a final type physical examination prescribed for officers of his grade and branch.

§ 26-163 Discharge of enlisted personnel; grounds; type of discharge

A. An enlisted member of the national guard may be discharged for fraudulent enlistment, or for any reason for which a member of the national guard of the United States may be discharged.

B. Upon discharge the enlisted member shall receive the type of discharge certificate to which the quality of his service entitles him under regulations of the national guard of the United States, the army of the United States or the air force.

§ 26-165 Service medals

A. An officer or enlisted person who has served as an active member of the national guard for a period of ten years shall be awarded a long service medal, and for twenty years service shall be awarded an exceptionally long service medal. At the completion of each period of three years after receiving either medal, a star shall be awarded the holder thereof.

B. The medals shall be awarded at the expense of the state by the governor, upon application approved by the adjutant general and subject to such rules and regulations as the adjutant general prescribes.

C. Officers and enlisted personnel of the national guard drafted into service of the United States shall be allowed credit as continuous service in the national guard for such service.

§ 26-166 Immunity of national guard members on active duty: arrest; civil actions; exemption from jury duty

A. A member of the national guard, unless charged with commission of a felony, shall not be arrested while on active duty with the national guard in camp, maneuvers or formations, or while engaged in armory drill, or while on the way to or from such duties.

B. In any civil action, a member of the national guard is entitled to the same immunity protection afforded public employees and law enforcement for acts that occur within the scope of the national guard member's duties if those acts are performed as a result of a direct order from a commanding officer or are otherwise consistent with current standard operating procedures and protocols.

C. A member of the national guard while on active duty shall not be liable for jury duty.

§ 26-167 Employment discrimination against national guard members prohibited; physical or economic duress to deter enlistment prohibited; violation; classification

A. A member of the national guard shall not, because of membership therein or absence from employment under competent military orders, be deprived of employment or prevented or obstructed in obtaining employment in his trade, occupation or profession, nor shall any person be dissuaded from enlisting in the military forces of the state or the United States by threat of or actual infliction of physical punishment or economic damage.

B. A person violating this section is guilty of a class 2 misdemeanor.

§ 26-168 Absence from employment for military duty; vacation and seniority rights; violation; classification; definition

A. An employer may not refuse to allow members of the national guard of this state or any other state or the United States armed forces reserves to take leaves of absence from employment for the purpose of complying with competent orders of this state, the other state or the United States for active duty or to attend camps, maneuvers, formations or armory drills. The leaves of absence may not affect vacation rights that employees otherwise have, except that an employer need not consider the period of absence as a period of work in determining eligibility for vacation and the amount of vacation pay to which the employee is entitled.

B. A member of the national guard of this state or any other state or the United States armed forces reserves may not lose seniority or precedence while absent under competent military orders. On return to employment, the employee shall be returned to the employee's previous position or to a higher position commensurate with the employee's ability and experience as seniority or precedence would ordinarily entitle the employee.

C. An officer or employee of this state, or any department or political subdivision of this state, who is a member of the national guard of this state or any other state or the United States armed forces reserves is entitled to leave of absence pursuant to section 38-610 from the individual's duties without loss of time or efficiency rating on all days during which the individual is engaged in field training as provided by this chapter. For the period of the leave of absence, the individual is entitled to pay as prescribed in section 38-610, subsection C, paragraph 3. For the purposes of this subsection, an officer or employee may not be charged military leave for days on which the individual was not otherwise scheduled for work.

D. When ordered to perform active duty or training by the competent orders of any state or the United States, members of the national guard or United States armed forces reserves have the protections afforded to persons under federal active duty by the soldiers and sailors civil relief act of 1940 (54 Stat. 1178; 50 United States Code App. sections 501 through 548 and 560 through 591) and by the uniformed services employment and reemployment rights act of 1994 (108 Stat. 3149; 38 United States Code sections 4301 through 4333).

E. A person that violates subsection A or B of this section is guilty of a class 1 misdemeanor. The county attorney shall prosecute violations of this section in superior court.

F. For the purposes of this section, "day" means a shift of work.

§ 26-168.01 Excused military absences; higher education: definition

A. A member of the national guard of this state or any other state or of the United States armed forces reserves who is a student at an institution of higher education in this state and who is ordered to either state or federal reserve component duty or a person who is the spouse of a member of the national guard of this state or any other state or the United States armed forces reserves, who is a student at an institution of higher education in this state and whose spouse is ordered to either state or federal reserve component duty, whether the member or spouse is attending class in person or online and whether the member is stationed in or outside of this state, may do any of the following:

Withdraw from one or more courses for which tuition and fees have been paid. The tuition and fees must be credited to the student's account at the institution. Any refunds are subject to the requirements of the state or federal financial aid programs of origin. The student may not receive credit for the courses and may not receive a failing grade, an incomplete or another negative annotation on the student's record and the student's grade point average may not be altered or affected in any manner because of the student's withdrawal under this subsection.
Depending on when the member is ordered to either state or federal reserve component duty and depending on the individual student's needs, receive a grade of incomplete and be allowed to complete the course if the course is being offered at the time to other students on release from reserve component duty under the institution's standard practice for completion of incompletes.
In accordance with any academic unit or institution of higher education requirements or in compliance with accreditation or certification standards, when applicable, continue and complete the course for full credit. Class sessions the student misses due to state or federal reserve component duty must be counted as excused absences and may not be used in any way to adversely impact the student's grade or standing in the class. Any student who selects this option is not automatically excused from completing assignments due during the period the student or student's spouse is performing state or federal reserve component duty. A letter grade or a grade of pass may be awarded only if the faculty member teaching the course determines that the student has completed a sufficient amount of work and has demonstrated sufficient progress toward meeting course requirements to justify the grade.
Receive a refund for any amount paid for room, board and fees attributable to the time period during which the student or student's spouse served in state or federal reserve component duty and did not use the facilities or services for which the amounts were paid. Any refund for room, board and fees is subject to the requirements of the state or federal financial aid programs of origin.
Withdraw and be readmitted and enrolled as a student at the institution, without penalty or redetermination of admission eligibility, within one year after the release of the student or student's spouse from state or federal reserve component duty.

B. A member of the national guard of this state or any other state or of the United States armed forces reserves who is a student at an institution of higher education in this state, who is ordered to either state or federal reserve component duty and as a result of that service or follow-up medical treatment for an injury incurred during that service, misses any test, examination, laboratory, presentation or class day on which a written or oral assignment is due or other event on which a course grade or evaluation is based may make up the test, examination, laboratory, presentation, class or event without prejudice to the final course grade or evaluation. The makeup activity must be scheduled after the student's return from reserve component duty and after a reasonable amount of time for the student to prepare for the test, examination, laboratory, presentation, class or event.

C. For class sessions a student described in subsection A of this section misses due to state or federal reserve component duty, the institution of higher education shall excuse the student's absences and not use these excused absences in any way to adversely impact the student's grade or standing in class.

D. If the faculty member teaching the course determines that the student has completed a sufficient amount of work and has demonstrated sufficient progress toward meeting course requirements to justify the grade without making up the test, examination, laboratory, presentation, class or event, a grade may be awarded without the makeup activity and the missed test, examination, laboratory, presentation, class or event may not be used in any way to adversely impact the student's grade or standing in the class.

E. The protections in this section may be invoked as follows:

If the state or federal reserve component duty is known in advance, the student must submit evidence documenting the state or federal reserve component duty to the faculty member teaching the course early in the semester or as soon as practicable before the missed class, assignment or examination. If the state or federal reserve component duty is not known in advance, the student is responsible for providing evidence of the state or federal reserve component duty to the faculty member teaching the course as soon as practicable after the missed class, assignment or examination.
The student or an appropriate officer from the military organization in which the student or student's spouse will be serving must give written notice that the student or student's spouse is being or has been ordered to reserve component duty as prescribed in this section.
On written request from the institution of higher education, the student shall provide written verification of service.

F. This section does not prevent institutions of higher education from providing additional options or protections to students described in subsection A of this section who are ordered to state or federal reserve component duty.

G. For the purposes of this section, "institution of higher education" means:

A university under the jurisdiction of the Arizona board of regents.
A community college as defined in section 15-1401.
A private university.

§ 26-169 Discrimination against uniformed national guard members by public businesses prohibited; violation; classification

A. An owner, manager or employee of a hotel, restaurant, place of amusement or other establishment or place of business open to the public shall not knowingly fail or refuse to admit or serve in the same manner and to the same extent as members of the general public are admitted and served a member of the national guard wearing the prescribed uniform.

B. A person violating this section is guilty of a class 2 misdemeanor.

§ 26-170 Unauthorized wearing of uniform; rank insignia; violation; classification

A. No person shall wear any part of the uniform of the national guard or the army, navy or air force of the United States, or a uniform so similar as to be easily mistaken therefor, unless the person is a member of the service whose uniform he wears, an inmate of a veterans' or soldiers' home, or a member of an organization of the United States veterans.

B. A person in the theatrical profession may wear the uniform in a playhouse or theatre while actually engaged in acting the part of a member thereof.

C. A civic organization may parade or travel in a body or assemble in a lodge room, but when the active militia or any part thereof is in active service, or is called into active service, such civic organization or member thereof shall not parade or appear in uniform in the same locality where the active militia is in service.

D. Persons authorized to wear the military uniform of the United States may only display the rank insignia of the highest rank in which they have received federal recognition except the adjutant general who may display the rank insignia of his state appointed grade after written consent of his service branch.

E. A person violating this section is guilty of a class 2 misdemeanor.

§ 26-171 National guard training; inspection by department of defense; camp or field duty ordered by governor

A. Each unit of the national guard shall conduct training in accordance with instructions of the adjutant general and shall comply with the approved training schedules and programs prepared by the department of defense of the United States. Each unit or detachment shall assemble for drill and instruction, and shall participate in encampments, maneuvers or other exercises at times and places and under rules and regulations prescribed therefor. In addition thereto the commanding officer of any organization may require the officers and enlisted personnel of his command to meet for ceremonies, parade, drill or instruction at times and places he designates.

B. Each unit of the national guard shall, not less than once each year, muster for inspection by an officer designated for that purpose by the secretary of defense or the secretary of any subdivision thereof.

C. The governor may order the national guard or any part thereof to perform camp or field duty for periods of time he deems advisable.

§ 26-172 Emergency mobilization; requests by municipalities for aid of national guard; mobilization into United States service

A. When the governor proclaims an emergency, or deems it necessary to protect lives or property, the governor may mobilize all or any part of the national guard or the unorganized militia into service of the state. The order directing the national guard or the unorganized militia, or any part thereof, to report for active duty shall state the purpose for which it is mobilized and the objectives to be accomplished.

B. The adjutant general shall issue orders for mobilization, appoint troop commanders and act as chief of staff to the governor. The adjutant general shall, with consent of the governor and in the name of the adjutant general, issue orders designating local commanders, giving tactical and administrative instructions, and defining the objectives of each mobilized unit.

C. The civil authorities of a county or municipality requiring aid of the national guard to quell any riot, insurrection or other civil disturbance shall submit to the governor a written request for aid, setting forth the particular object to be accomplished and the area affected. Upon receipt of the request the governor may by proclamation mobilize all or any part of the national guard or the unorganized militia, and the governor shall designate the adjutant general or an officer of the national guard to take command of the troops mobilized and to designate the troops to be used.

D. To request assistance of the national guard, or the unorganized militia, or any part thereof in a search or rescue operation involving the life or health of any person, the sheriff or other officer of a political subdivision who is conducting the search or rescue operation shall by the most rapid and suitable means of communication available convey the need to the state director of emergency management for transmittal to the governor. If the governor grants the request the sheriff or other officer shall, within two days, transmit a written confirmation of the request to the governor.

E. If the president of the United States directs mobilization of the national guard into the armed forces of the United States, the adjutant general shall effect the mobilization speedily and in the manner prescribed. Upon mobilization into the armed forces of the United States, the national guard shall pass to federal control and shall not be subject to military laws of the state until the time it reverts to control of the state.

§ 26-173 Payment of mobilization expenses

The department of administration shall provide for payment of expenses incurred by the national guard, state guard and unorganized militia in the event of emergency mobilization. Payment of expenses shall be made from funds appropriated for that purpose. The certificate of the adjutant general that the expenses are necessary and were actually made in an emergency is conclusive proof of the validity of the claim.

§ 26-174 Arizona state guard; establishment; purpose; appropriations

A. If the national guard of Arizona or a major portion thereof is called into active federal service, or if the national guard or a major portion thereof is alerted for federal service or for any other reason the governor considers to be necessary, the governor may establish an armed force for the safety and protection of the lives and property of the citizens of this state, which shall be known as the Arizona state guard.

B. The Arizona state guard, insofar as practicable, shall be governed by and subject to the laws of this state pertaining to the national guard. The governor shall issue or cause to be issued rules to govern the administration and organization of the Arizona state guard, including establishing a chain of command and a process by which individuals may volunteer and report for duty.

C. Appropriations made to the national guard are deemed appropriated to both the national guard and the Arizona state guard, if the Arizona state guard is established, and any monies that are unexpended from appropriations to the national guard may be used for establishing and maintaining the Arizona state guard.

§ 26-175 Active duty tours for volunteers during peace time

A. The adjutant general, if deemed necessary to the accomplishment of a mission of the national guard, may call to active duty in peace time to perform special and designated services any officer or enlisted personnel of the national guard who volunteers for such service.

B. The officer or enlisted personnel shall receive full pay and allowances, including longevity pay, prescribed for an officer or enlisted personnel of the regular services of the same grade or rank. Personnel on state active duty for more than thirty consecutive days shall receive the same leave entitlements prescribed for the United States armed forces. Such personnel shall be paid from monies of the state appropriated for such purposes.

§ 26-176 Premiums on bonds of national guard officers

The cost of bonds required to be furnished by the adjutant general or an officer of the national guard for faithful performance of national guard duties shall, if not paid by the United States, be a state charge upon and paid from the appropriation to the national guard.

§ 26-177 Opinions of attorney general

The attorney general shall, upon request of the adjutant general or the state judge advocate of the national guard, give opinions upon legal questions pertaining to military affairs of the state.

§ 26-178 Illegal possession of equipment; classification

A. A person having in his possession a uniform, arms, equipment, supplies or other military property of the state or United States, who secretes, disposes of, offers for sale or in any manner pledges, retains or refuses to deliver to an officer entitled to demand possession of the property, or who, being a member of the national guard, wears, when not on duty, such uniform or equipment without permission of his commanding officer, is, if the property is of a value more than fifty dollars, guilty of a class 5 felony, and if the value is less than fifty dollars, guilty of a class 2 misdemeanor.

B. Possession of such military equipment or accoutrements of the state, or the United States, by any person not a member of the military forces of the state or the United States, shall be presumptive evidence of unlawful barter, exchange, pledge, loan or gift thereof. A person not a member of the military forces of the United States, or a duly authorized officer or agent thereof, having possession of such articles which have been subjects of unlawful disposition, shall have no right, title or interest therein, and the property may be seized and taken wherever found by an officer of the state, civil or military, and shall thereupon be delivered to any commanding officer or other officer authorized to receive the property who shall make an immediate report thereof to the adjutant general.

§ 26-179 Tuition and fees reimbursement; eligibility; exemption

A. Any qualified national guardsman, spouse of a national guardsman, legal dependent of a national guardsman or employee of the department of emergency and military affairs who has completed a semester as a full-time or part-time graduate or undergraduate student at a public or private postsecondary educational institution for which credit toward a degree or diploma is granted or a certificated vocational technical school in this state may apply for a tuition and fees reimbursement. The adjutant general shall annually adopt policies and procedures to allocate the appropriated monies in a manner consistent with the personnel needs of the Arizona national guard and the department, except that no right to reimbursement exists beyond the amounts appropriated by the legislature. The appropriations made in this section are exempt from the provisions of section 35-190 relating to lapsing of appropriations, except that all monies remaining unexpended or unencumbered ninety days after the close of that fiscal year revert to the state general fund.

B. To be eligible for tuition and fees reimbursement, a national guardsman shall meet all of the following:

Be a bona fide member of an Arizona army national guard unit or Arizona air national guard unit throughout each semester for which the member applies for such reimbursement.
Have satisfactorily completed initial active duty service.
Have satisfactorily performed duty on return from initial active duty training, including a minimum ninety percent attendance on scheduled drill dates and at annual training with the member's parent unit.
Maintain an average academic grade of "C" or better for each semester.
Not be eligible for a certificate of eligibility and benefits under the veterans' readjustment benefits act of 1966 for the same period.

C. To be eligible for tuition and fees reimbursement, a spouse or dependent of a national guardsman shall meet all of the following:

Be the legal spouse or legal dependent of an Arizona national guardsman who meets the criteria under subsection B, paragraphs 1, 2 and 3 of this section.
Be registered as the legal spouse or legal dependent of an Arizona national guardsman in the defense enrollment eligibility reporting system or its successor system.
Maintain an average academic grade of "C" or better for each semester.

D. To be eligible for tuition and fees reimbursement, an employee of the department of emergency and military affairs shall meet all of the following:

Be a bona fide employee of the department throughout each semester for which the member applies for reimbursement.
Have a current job performance evaluation of "meets expectations" or its equivalent.
Maintain an average academic grade of "C" or better for each semester.
Meet the requirements prescribed by the department of administration for tuition reimbursement for education and the policies and procedures adopted by the adjutant general, including any requirement to remain employed with the department of emergency and military affairs for a defined period of time or be required to return all or a portion of the amount of tuition and fees reimbursement received.

§ 26-180 Application for tuition and fees reimbursement; times

A. An application for tuition and fees reimbursement shall be submitted to the office of the adjutant general.

B. Not later than twenty-one days after the beginning of each semester or term, the national guardsman, spouse or dependent of the national guardsman or employee of the department of emergency and military affairs shall submit an application for reimbursement, a certificate of enrollment and a notarized statement that the certificate of enrollment and copies of receipts for tuition and fees for that semester are the applicant's.

C. Within twenty-five days after completion of the semester, the applicant shall submit the applicant's official grade reports.

D. Pursuant to section 26-179, subsection A, the adjutant general shall fund the tuition and fees reimbursement for applicants in accordance with the policies and procedures adopted to support the personnel needs of the Arizona national guard and the department of emergency and military affairs in the following order:

Eligible members of the Arizona national guard.
Eligible spouses and dependents of members of the Arizona national guard.
Eligible employees of the department of emergency and military affairs pursuant to rules adopted by the department of administration for tuition reimbursement for education.

§ 26-181 Evaluation of applications; payment of tuition and fees reimbursement; report

A. After applicants submit their grade reports, the adjutant general shall evaluate the applications for tuition and fees reimbursement and pay those applicants the adjutant general determines to be eligible.

B. Such reimbursement is subject to legislative appropriation and shall not exceed:

The maximum amount charged for in-state tuition and fees at a state university during that academic year.
The amount spent by the applicant for in-state tuition and fees.

C. A reimbursement payment shall be made within forty-five days after the date of receipt of the applicant's grade reports for the semester for which reimbursement is to be paid.

D. The adjutant general shall report the following information as provided by section 26-102, subsection C, paragraph 9:

The total number of national guard members who received reimbursement payments pursuant to this section during the preceding fiscal year.
The number of newly recruited national guard members who received reimbursement payments pursuant to this section during the preceding fiscal year.
The total number of spouses and dependents of national guard members who received reimbursement payments pursuant to this section during the preceding fiscal year.
The total number of employees of the department of emergency and military affairs who received reimbursement payments pursuant to this section during the preceding fiscal year.
The total amount of monies spent by the national guard for reimbursement payments pursuant to this section during the preceding fiscal year.

§ 26-182 National guard counterdrug and demand reduction activities; volunteers; drug enforcement support; assistance agreements

A. The national guard of this state may engage in counterdrug and demand reduction activities in accordance with the governor's annual state plan and may request national guard members to serve as volunteers to conduct these activities.

B. The national guard of this state may enter into mutual assistance and support agreements pertaining to counterdrug activities with law enforcement agencies operating in this state.

C. The national guard of this state may enter into agreements with the national guard of other states to conduct training and aerial counterdrug operations in accordance with the governor's annual state plan.

D. The national guard of this state may engage in counterdrug and demand reduction activities on Indian reservation land at the request of a law enforcement agency or the national guard of this state and with the permission of appropriate tribal authorities.

§ 26-183 National guard cyber-attack prevention, response and support activities; cyber response revolving fund; purpose; exemption

A. The national guard of this state may engage in cyber-attack prevention, response and support activities for this state and political subdivisions of this state.

B. The national guard of this state may enter into mutual aid agreements pertaining to cyber response and protection activities with state agencies and political subdivisions of this state as authorized by section 26-309.

C. The national guard cyber response revolving fund is established consisting of monies appropriated by the legislature and monies received as reimbursement for costs incurred by this state while rendering aid pursuant to subsection A of this section. The department of emergency and military affairs shall administer the fund. Monies in the fund are continuously appropriated and are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

D. Monies in the fund shall be used for the costs incurred by this state while assisting agencies and political subdivisions of this state, or as directed by the governor, with cyber support activities pursuant to subsection A of this section.

Article 4 Military Law

§ 26-203 Actions or proceedings against members of military courts prohibited

No action or proceeding shall be prosecuted or maintained against a member of a military court or against any officer or person acting under authority thereof and performing any acts prescribed by this article.

§ 26-204 Powers of military court; attendance of witnesses and production of documents; process to law enforcement officers; presumption of jurisdiction

A. A military court may:

Compel by subpoena, by subpoena duces tecum or by attachment, the attendance of witnesses, both civil and military, and the production of books, papers and documents.
Punish for contempt a witness or other person appearing before the court, or any person attempting to interrupt the proceedings thereof or impair the respect due its authority.
Issue, in such form as the adjutant general prescribes, necessary processes and mandates, including writs and warrants directed to marshals of the court, sheriffs, constables and other law enforcement officers.

B. Commissions and subpoenas may be issued and witnesses summoned by the president of a military court, or judge advocate, and the commanding officer of any organization shall, upon request of the president or judge advocate, cause such commissions or subpoenas to be served upon members of his command.

C. Jurisdiction of a military court or board convened as provided by this article shall be presumed and the burden of proof is upon a person seeking to defeat the jurisdiction of the court or board in any proceeding.

§ 26-205 Duty of civil officers to execute process of military court

A. A civil officer to whom a process or mandate of a military court is directed shall execute it and make return thereof as directed. The person in charge of a city, town or county jail shall receive and confine in the manner prescribed by law any person committed to his care by the process or mandate of a military court.

B. No fees or charges shall, unless authorized thereby, be paid by the military court to any public officer or other person directed to perform a duty under this section.

§ 26-206 Charges against members of militia; service of charges and specifications; abatement of action

A. A person may, subject to military laws of the state, prefer charges against a member of the militia.

B. A copy of the charges and specifications shall be delivered to the accused not later than twenty days after arrest, or, if not held in custody for trial, to his last known post office address or place of business, and a military court shall be ordered convened not later than thirty days after receipt of the order by the officer authorized to convene the court.

C. If a copy of the charges and specifications is not served, or a military court is not ordered convened within the time specified, the charges shall abate, but at any time within twelve months after release of the accused from arrest, the charges may be served, a court ordered convened, and the accused brought to trial.

D. Appearance of the accused without objection and pleading to the charges shall be deemed a waiver of any irregularity of service of papers.

§ 26-207 Attendance of accused at trial; order to compel attendance; service; trial in absence of accused; apprehension and imprisonment of accused; limitation

A. If an accused member of the militia fails to appear for trial at the time and place appointed, the president of the military court may issue an order to compel his attendance.

B. The order shall be served in the same manner and by the same officer as bench warrants are served, or by the marshal of the military court.

C. Upon presentation of evidence to the military court, noted in or attached to the proceedings, that the accused has been notified of the time and place of trial, the military court may enter a plea of not guilty for the accused and proceed with the trial in his absence.

D. If any peace officer of this state is notified by the adjutant general that a member of the national guard or state guard has apparently committed an offense against this chapter, or against the uniform code of military justice of the United States, the peace officer shall seize the accused and cause him to be imprisoned and held until further ordered by the adjutant general, but no person so arrested shall be held for a period longer than three days unless formal charges are filed against him in a military or civil court.

§ 26-208 Time and place of confinement; payment of fine and disposition

A. If a sentence orders an accused to be confined, the court-martial order shall specify the place and time of commencement of the confinement, and if the sentence provides for payment of a fine, the amount shall be paid to the president of the court or trial counsel not later than ten days after the sentence is pronounced.

B. Not later than thirty days after payment of the fine, the president of the court or trial counsel shall deliver the amount to the adjutant general who shall deposit it, pursuant to sections 35-146 and 35-147, in the national guard fund.

§ 26-209 Commitment of accused for failure to pay fine; warrant; length of confinement; judgment by justice of the peace based on findings of court-martial; execution; classification

A. If an accused fails or refuses to pay the fine imposed by a military court within the time and manner specified in section 26-208, the president of the military court shall, within ten days after expiration of the time within which the accused may appeal, or, if an appeal is taken, within ten days after final determination thereof, issue a warrant of commitment in the name of the state directed to the sheriff, and commanding him to arrest the accused and take him to the jail of the city, town or county in which he is found. Confinement for refusal to pay a fine shall be one day for each ten dollars or fraction of the fine, penalty and costs. The accused may, by order of the officer ordering the court, be released at any time.

B. The court may, in its discretion, and within the time prescribed by subsection A of this section, file an authenticated copy of the findings of the court-martial with the justice of the peace in the precinct in which the accused resides. The justice of the peace shall thereupon render judgment against the accused, with costs, without issuing summons, and shall issue execution thereon directed to the sheriff or to the constable of the precinct. The sheriff or constable shall collect the fine and costs by execution as at law.

C. A justice of the peace who intentionally fails to carry out the provisions of this section is guilty of a petty offense.

Article 5 Acquisition and Care of Military Property

§ 26-231 Acquisition of property by national guard; surplus property of municipalities; acquisition by eminent domain; purchase; rent or lease; armory property fund

A. A county, city or town may sell, lease or otherwise grant to the state for national guard purposes surplus real or personal property owned by it. The determination of the governing body of the county, city or town that the property is surplus is final, and the property may be sold to the state for a consideration agreed on between the governing body and the adjutant general or the adjutant general's designee, or for a nominal consideration. The sale shall be conducted without formalities, advertisement for bids or consideration of bids by other persons.

B. The governor may exercise the power of eminent domain to obtain from individuals, corporations or municipalities lands appropriate for national guard purposes.

C. The national guard may purchase real property, buildings and appurtenances from any person, corporation or municipal corporation with monies appropriated for that purpose.

D. The national guard may lease or rent real property, buildings and appurtenances with monies appropriated for that purpose.

E. The national guard may sell surplus armory real property and deposit the proceeds in a state armory property fund established for that purpose. Monies in the fund are continuously appropriated to the national guard for the construction and capital improvement of national guard armories, subject to the approval of the joint committee on capital review. On notice from the adjutant general, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

§ 26-232 Protection of property

All state and federal property shall so far as possible be stored in state armories, warehouses or arsenals. If the governor determines it necessary to protect the interests of the state or the United States, he may require an officer having state or federal property in his possession as the responsible and accountable officer, to furnish bond for its care and safekeeping. The property shall be safeguarded and accounted for in accordance with regulations of the department of defense of the United States or an appropriate subdivision thereof.

§ 26-233 Loss or destruction of property by national guard member; determination of responsibility; payment of federal claims or for replacement property

A. A member of the national guard who by gross negligence or wilfulness destroys, loses or allows state or federal property to be lost or destroyed shall from personal funds reimburse the state or federal government for the cost thereof. The responsible officer shall submit a report of survey to the adjutant general. Upon receipt of the report the adjutant general shall, if the property lost or destroyed is federal property, forward the report to the national guard bureau for determination of responsibility, or, if the property is state property, the adjutant general shall determine the responsibility and his decision shall be final.

B. If the adjutant general finds that federal property has been lost through no fault or neglect and the state is called upon to replace or pay for the property, the department of administration division of finance shall pay claims assessed against the state by the federal government, or if it is to the advantage of the state, shall accept and pay claims incurred by the adjutant general in purchasing property from other sources to replace lost federal property. The claims shall be paid from funds of the state appropriated to the national guard for that purpose.

§ 26-234 Property and disbursing officer; appointment; duties

A. The governor shall, subject to approval of the secretary of defense or a designated subordinate, recommend for appointment an officer for the state as acting property and disbursing officer of the United States. The officer appointed shall have served in the armed forces of the United States or the national guard, and shall have knowledge of military supply, procurement and administration. He shall qualify by furnishing a bond in an amount and with sureties as required by the secretary of defense of the United States, conditioned upon faithful performance of his duties and safekeeping and proper disbursement of federal property and funds entrusted to his care.

B. The property and disbursing officer shall:

Receive, store and account for all funds and property belonging to the United States in possession of the national guard.
Make returns and reports concerning such funds and property as required by the secretary of defense.
Render such accounting of federal funds entrusted to him for disbursement as required by the United States.

Article 6 Acquisition of Lands by United States for Military Purposes

§ 26-251 Acquisition of lands by United States for military purposes

The consent of the state may be given pursuant to section 37-620.02 in accordance with the seventeenth clause, eighth section, of the first article of the Constitution of the United States to the acquisition by the United States by purchase, lease, condemnation or otherwise of any land in the state required for the erection of forts, magazines, arsenals, dockyards and other needful buildings, or for any other military installations of the government of the United States.

§ 26-252 Exclusive jurisdiction of United States over lands acquired for military purposes; termination of jurisdiction

Exclusive jurisdiction over any land in the state acquired for any of the purposes set forth in section 26-251, and over any public domain in the state reserved or used for military purposes is ceded to the United States, but such jurisdiction shall continue no longer than the United States owns or leases the land or continues to reserve or use such public domain for military purposes.

§ 26-253 Power of state to serve process upon land ceded United States for military purposes

The state retains concurrent jurisdiction with the United States for serving process, civil or criminal, issuing under the authority of the state, or any courts, or judicial officers thereof, upon any person amenable thereto within the limits of any land over which exclusive jurisdiction has been ceded by the state to the United States for military purposes in like manner as if no cession had taken place.

Article 7 Military Affairs Commission

§ 26-261 Military affairs commission; confidential discussions and information; definition

A. The military affairs commission is established. The commission membership consists of:

Sixteen members who are appointed by the governor and who include the following:

(a) Twelve members who reside in a community in which a military installation is located. Of this group, six members shall have expertise in military affairs and six members shall be local elected officials.

(b) Four members who represent private property interests in the territory in the vicinity as defined in section 28-8461 or in a community in which a military installation is located.

One member who represents private property interests in the territory in the vicinity as defined in section 28-8461 or in a community in which a military installation is located and who is appointed by the president of the senate.
One member who represents private property interests in the territory in the vicinity as defined in section 28-8461 or in a community in which a military installation is located and who is appointed by the speaker of the house of representatives.
Four nonvoting advisory members who are not counted for the purpose of determining a quorum consisting of:

(a) The adjutant general or a designee of the adjutant general.

(b) A representative of a military installation commander who is appointed by the governor.

(d) The state land commissioner or a designee of the commissioner.

B. The military affairs commission shall have geographic diversity in its membership. The governor shall designate two of the governor's appointees as cochairpersons of the commission. Members or designees of the commission shall not send alternates to represent them at commission meetings. The voting members shall serve six-year terms.

C. The department of emergency and military affairs shall staff the commission.

D. The commission shall:

Meet at least annually.
Meet on a regular basis with the governor, the president of the senate and the speaker of the house of representatives, either individually or collectively, to provide recommendations on military issues and report on the progress of the military affairs commission.
Annually meet with the appropriate legislative committees that have jurisdiction over military installations.
Advise the governor and the legislature on matters affecting the operational viability of Arizona military facilities, including military installations, military training routes, military restricted airspace, military ranges or areas under the jurisdiction of an active unit of the uniformed armed services of the United States or any reserve or national guard component of the uniformed armed services of the United States.
Develop criteria, including accountability requirements, for awarding monies from the military installation fund established by section 26-262.
Review applications for monies to be awarded from the military installation fund.
Annually recommend to the department of emergency and military affairs a priority listing of monies with available resources.
Recommend to the department of emergency and military affairs how the monies in the military installation fund should be awarded.
Proactively assist with coordination among the United States military operating in Arizona, the congressional delegation, the governor, the state legislature and state and local leaders.
Recommend executive, legislative and federal actions necessary to sustain military operations and enhance the state's preparedness to respond to potential new missions and prevent military facilities from closure or downsizing.
Study issues relating to veterans, active duty, national guard and reserve members of the United States armed forces and other military quality of life issues.

E. Discussions that are related to the federal government's process to determine the closure, realignment, relocation, expansion or forced structure reduction of military installations and to proprietary alternatives to this state's military base closure or realignment strategies are not subject to title 38, chapter 3, article 3.1.

F. Information that is developed or obtained by the commission that pertains to proprietary strategies of the commission or that is related to the relocation of military units is confidential and is not subject to title 39, chapter 1, including documents related to the federal government's process to determine the closure, realignment, relocation, expansion or forced structure reduction of military installations until the federal government has issued a final, unappealable decision in that process or, in the event of litigation, a court of competent jurisdiction has entered a final, unappealable order regarding the closure, realignment, relocation, expansion or forced structure reduction of the military installations. If the commission enters into a confidentiality agreement with a third party, the commission may disclose information that is deemed confidential pursuant to this subsection to that third party.

G. For the purposes of this section, "military installation" means a military airport or ancillary military facility as defined in section 28-8461 or any real property that services, supports or is used by the military.

§ 26-262 Military installation fund; rules; application review; award and use of monies; reporting requirements; definitions

A. The military installation fund is established consisting of revenues made available to the fund from any lawful source. The adjutant general shall administer the fund. On notice from the adjutant general, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund. The fund is exempt from the provisions of section 35-190 relating to lapsing of appropriations.

B. Monies in the fund are continuously appropriated for the purposes of this section.

C. The department, in conjunction with the military affairs commission established by section 26-261, shall adopt by rule procedures for receiving and evaluating applications and awarding the monies as provided by subsection G of this section. If applications for monies exceed the amount available in the fund, the department may request applicants to reduce the amount of the applications or deny or award reduced amounts.

D. The department shall receive each application for fund monies and shall forward each application to the military affairs commission. The military affairs commission shall review each application and recommend to the department both of the following:

Each applicant that should be awarded monies from the fund.
The dollar amount that each applicant pursuant to paragraph 1 of this subsection should be awarded from the fund.

E. The department shall consider the military affairs commission's recommendations and shall decide how the monies in the fund shall be awarded among the applicants. The department, after reviewing the recommendations by the military affairs commission, shall make the monies in the fund available for the purpose of military installation preservation and enhancement projects. Except as provided in subsection F of this section, after the department makes an award decision the department shall award the monies.

F. If the department does not comply with the military affairs commission's recommendation for the awards, within five days after the department's decision the department shall report in writing to the military affairs commission, the president of the senate, the speaker of the house of representatives and the governor. The report shall include the award decision of the department and the recommendation of the military affairs commission. The department shall not distribute monies from the fund to the applicants for at least sixty days after the report is received.

G. The department shall:

Award eighty percent of the monies in the fund for the following purposes, except that up to twenty percent of this amount may be awarded to cities, towns and counties for the purpose of acquiring private land for the purposes prescribed in paragraph 2 of this subsection:

(a) Acquisition of private property for the purpose of preserving a military installation.

(b) Acquisition of real estate and rights to real estate and otherwise preserving real estate from development or mitigating impacts on development in high noise or accident potential zones as defined in section 28-8461 and in areas as required to support a military installation.

(c) Acquisition of real estate, property rights and related infrastructure that are vital to the preservation or enhancement of a military installation.

(d) Structural renovations or construction of building modifications or improvements that mitigate or attenuate impacts in high noise or accident potential zones.

(e) Removal of structures or improvements that are necessary for acquisition of private property for the purpose of preserving a military installation.

(f) Management of acquired property that is necessary to preserve and enhance military missions and military installations.

Except as provided by subsection M of this section, award twenty percent of the monies in the fund to cities, towns and counties for:

(a) Military installation preservation and enhancement projects or analytical reports or studies that are requested by federal or state agencies or military facilities in this state.

(b) Investment in or construction of capital improvements or infrastructure for the purpose of preserving a military installation.

(c) Structural renovations or construction of building modifications or improvements that mitigate or attenuate impacts in high noise or accident potential zones.

(d) Removal of structures or improvements that are necessary for acquisition of private property for the purpose of preserving a military installation.

(e) Management of acquired property that is necessary to preserve and enhance military missions and military installations.

H. Before awarding monies pursuant to subsection G of this section, the department shall submit a report of the proposed awards to the joint committee on capital review for review. The legislature shall review the distribution formula prescribed in subsection G of this section at least once every four years.

I. Monies in the fund may be awarded for debt service on bonds issued by a political subdivision for the purpose of acquisition of private property for the purpose of preserving a military airport or ancillary military facility as defined in section 28-8461 if the land acquisition occurs after December 31, 2004.

J. The department shall annually report the awards made pursuant to this section. The report shall be in writing and shall be sent to the president of the senate, the speaker of the house of representatives and the governor. The department shall send a copy of this report to the secretary of state.

K. The department may:

Transfer any real estate, property rights and related infrastructure that are acquired pursuant to this section to any other governmental agency for the purposes of preserving or enhancing military installations in this state.
Sell or otherwise dispose of any real estate, property rights and related infrastructure acquired pursuant to this section. The conveyance shall be made to the highest and most responsible bidder at a public sale held for that purpose.
After establishing, laying out or substantially completing an improvement to real property, convey the real property or any interest in the real property that the department determines is not necessary, useful or convenient for the use of the improvement by the department. The conveyance shall be made to the highest and most responsible bidder at a public sale held for that purpose.
Lease or sublease at fair rental value any real estate or related infrastructure that is acquired pursuant to this section. A lease or sublease that is granted pursuant to this paragraph is exempt from section 41-2752.

L. Before any conveyance, lease or sublease pursuant to subsection K, paragraph 2, 3 or 4 of this section, the department shall ensure that the use or development of any real estate, property rights and related infrastructure, real property or improvements to real property complies with section 28-8481.

M. If monies remain after the award of monies pursuant to subsection G, paragraph 2 of this section, the department may use the remaining monies and any monies received pursuant to subsection K, paragraphs 2, 3 and 4 of this section for either of the following:

The purposes prescribed in subsection G, paragraph 1 of this section.
Projects or studies necessary to preserve or enhance military missions and military installments in this state.

N. Any agency of this state may accept title to and manage real estate, property rights and related infrastructure that are acquired pursuant to this section.

O. For the purposes of this section:

"Department" means the department of emergency and military affairs.
"Military installation" has the same meaning prescribed in section 26-261.

§ 26-263 Appropriations; purposes; exemption

A. The sum of $90,000 and 1 FTE are appropriated from the state general fund in fiscal year 2011-2012 and each fiscal year thereafter to the department of emergency and military affairs.

B. The sum of $85,000 is appropriated from the state general fund in fiscal year 2011-2012 and each fiscal year thereafter to the attorney general's office for implementation of section 9-461.06, title 11, chapter 6, article 1 and section 28-8481.

C. The appropriations made in this section are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

Chapter 2 Emergency Management

Article 1 General Provisions

§ 26-301 Definitions

In this chapter, unless the context otherwise requires:

"Commercial nuclear generating station" means an electric power generating facility which is owned by a public service corporation, a municipal corporation or a consortium of public service corporations or municipal corporations and which produces electricity by means of a nuclear reactor.
"Council" means the state emergency council.
"Director" means the director of the division.
"Division" means the division of emergency management within the department of emergency and military affairs.
"Emergency functions" includes warning and communications services, relocation of persons from stricken areas, radiological defense, temporary restoration of utilities, plant protection, transportation, welfare, public works and engineering, search or rescue, health and medical services, law enforcement, fire fighting, mass care, resource support, urban search or rescue, hazardous materials, food and energy information and planning and other activities necessary or incidental thereto.
"Emergency management" means the preparedness, response, recovery and mitigation activities necessary to respond to and recover from disasters, emergencies or contingencies.
"Emergency worker" means any person who is registered, whether temporary or permanent, paid or volunteer, with a local or state emergency management organization and certified by the local or state emergency management organization for the purpose of engaging in authorized emergency management activities or performing emergency functions, or who is an officer, agent or employee of this state or a political subdivision of this state and who is called on to perform or support emergency management activities or perform emergency functions.
"Hazardous materials" means:

(a) Any hazardous material designated pursuant to the hazardous materials transportation act of 1974 (P.L. 93-633; 88 Stat. 2156; 49 United States Code section 1801).

(b) Any element, compound, mixture, solution or substance designated pursuant to the comprehensive environmental response, compensation, and liability act of 1980 (P.L. 96-510; 94 Stat. 2767; 42 United States Code section 9602).

(c) Any substance designated in the emergency planning and community right-to-know act of 1986 (P.L. 99-499; 100 Stat. 1613; 42 United States Code section 11002).

(d) Any substance designated in the water pollution control act (P.L. 92-500; 86 Stat. 816; 33 United States Code sections 1317(a) and 1321(b)(2)(A)).

(e) Any hazardous waste having the characteristics identified under or listed pursuant to section 49-922.

(f) Any imminently hazardous chemical substance or mixture with respect to which action has been taken pursuant to the toxic substances control act (P.L. 94-469; 90 Stat. 2003; 15 United States Code section 2606).

(g) Any material or substance determined to be radioactive pursuant to the atomic energy act of 1954 (68 Stat. 919; 42 United States Code section 2011).

(h) Any substance designated as a hazardous substance pursuant to section 49-201.

(i) Any highly hazardous chemical or regulated substance as listed in the clean air act of 1963 (P.L. 88-206; 42 United States Code sections 7401 through 7671).

"Hazardous materials incident" means the uncontrolled, unpermitted release or potential release of hazardous materials that may present an imminent and substantial danger to the public health or welfare or to the environment.
"Local emergency" means the existence of conditions of disaster or of extreme peril to the safety of persons or property within the territorial limits of a county, city or town, which conditions are or are likely to be beyond the control of the services, personnel, equipment and facilities of such political subdivision as determined by its governing body and which require the combined efforts of other political subdivisions.
"Mitigation" means measures taken to reduce the need to respond to a disaster and to reduce the cost of disaster response and recovery.
"Preparedness" means actions taken to develop the response capabilities needed for an emergency.
"Recovery" means short-term activities necessary to return vital systems and facilities to minimum operating standards and long-term activities required to return life to normal or improved levels.
"Response" means activities that are designed to provide emergency assistance, limit the primary effects, reduce the probability of secondary damage and speed recovery operations.
"State of emergency" means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons or property within the state caused by air pollution, fire, flood or floodwater, storm, epidemic, riot, earthquake or other causes, except those resulting in a state of war emergency, which are or are likely to be beyond the control of the services, personnel, equipment and facilities of any single county, city or town, and which require the combined efforts of the state and the political subdivision.
"State of war emergency" means the condition which exists immediately whenever this nation is attacked or upon receipt by this state of a warning from the federal government indicating that such an attack is imminent.

§ 26-302 General powers of governor

(L21, Ch. 405, sec. 7)

The governor may delegate any of the powers vested in the office of the governor under this chapter to the adjutant general who may further delegate the powers to the director of emergency management except the powers enumerated in section 26-303, subsections A through I.

§ 26-303 Emergency powers of governor; termination; authorization for adjutant general; limitation; extension; report; notices; appeals

A. During a state of war emergency, the governor may:

Suspend the provisions of any statute prescribing the procedure for conduct of state business, or the orders or rules of any state agency, if the governor determines and proclaims that strict compliance with the provisions of any such statute, order or rule would in any way prevent, hinder or delay mitigation of the effects of the emergency.
Commandeer and use any property, except for firearms or ammunition or firearms or ammunition components, or personnel deemed necessary in carrying out the responsibilities vested in the office of the governor by this chapter as chief executive of this state, and thereafter this state shall pay reasonable compensation for the property as follows:

(a) If property is taken for temporary use, the governor, within ten days after the taking, shall determine the amount of compensation to be paid for the property. If the property is returned in a damaged condition, the governor, within ten days after its return, shall determine the amount of compensation to be paid for such damage.

(b) If the governor deems it necessary for this state to take title to property under this section, the governor shall then cause the owner of the property to be notified thereof in writing by registered mail, postage prepaid, and then cause a copy of the notice to be filed with the secretary of state.

(c) If the owner refuses to accept the amount of compensation fixed by the governor for the property referred to in subdivisions (a) and (b) of this paragraph, the amount of compensation shall be determined by appropriate proceedings in the superior court in the county where the property was originally taken.

B. During a state of war emergency, the governor shall have complete authority over all agencies of the state government and shall exercise all police power vested in this state by the constitution and laws of this state in order to effectuate the purposes of this chapter.

C. The powers granted to the governor by this chapter with respect to a state of war emergency shall terminate if the legislature is not in session and the governor, within twenty-four hours after the beginning of such a state of war emergency, has not issued a call for an immediate special session of the legislature for the purpose of legislating on subjects relating to such a state of war emergency.

D. The governor may proclaim a state of emergency, which shall take effect immediately in an area affected or likely to be affected if the governor finds that circumstances described in section 26-301, paragraph 15 exist.

E. During a state of emergency:

The governor shall have complete authority over all agencies of the state government and the right to exercise, within the area designated, all police power vested in this state by the constitution and laws of this state in order to effectuate the purposes of this chapter.
The governor may direct all agencies of the state government to use and employ state personnel, equipment and facilities to perform any activities designed to prevent or alleviate actual and threatened damage due to the emergency. The governor may direct such agencies to provide supplemental services and equipment to political subdivisions to restore any services in order to provide for the health and safety of the citizens of the affected area.

F. Except as provided in subsection G of this section, the powers granted to the governor by this chapter with respect to a state of emergency shall terminate when the state of emergency has been terminated by proclamation of the governor or by concurrent resolution of the legislature declaring it at an end.

G. Beginning January 2, 2023, the governor may issue an initial proclamation with respect to a state of emergency for a public health emergency as described in section 36-787 for a period of not more than thirty days. The governor may extend the state of emergency for not more than one hundred twenty days, but any extension may not be for a period of more than thirty days. The state of emergency shall terminate after one hundred twenty days, unless the state of emergency is extended, in whole or in part, by passage of a concurrent resolution of the legislature. The legislature may extend the state of emergency as many times as necessary by concurrent resolution, but any extension may not be for a period of more than thirty days. If a state of emergency for a public health emergency is not extended pursuant to this subsection, the governor may not proclaim a new state of emergency based on the same conditions without the passage of a concurrent resolution by the legislature consenting to the new state of emergency.

H. On the extension of a state of emergency for a public health emergency pursuant to subsection G of this section, the governor shall submit a written report to a joint committee of the health committees of the senate and the house of representatives, or their successor committees. After the first sixty days of a public health emergency, the director of the department of health services and a representative of the governor's office shall provide a briefing to the joint committee, and the joint committee shall give the extension of the public health emergency a favorable or unfavorable review. The joint committee shall provide the joint committee's recommendation to all members of the legislature and the governor. The outcome of the joint committee's review shall be conspicuously posted on the governor's and the department of health services public websites.

I. This chapter does not limit, modify or abridge the powers vested in the governor under the constitution or statutes of this state.

J. If authorized by the governor, the adjutant general has the powers prescribed in this subsection. If, in the judgment of the adjutant general, circumstances described in section 26-301, paragraph 15 exist, the adjutant general may:

Exercise those powers pursuant to statute and gubernatorial authorization following the proclamation of a state of emergency under subsection D of this section.
Incur obligations of $100,000 or less for each emergency or contingency payable pursuant to section 35-192 as though a state of emergency had been proclaimed under subsection D of this section.

K. The powers exercised by the adjutant general pursuant to subsection J of this section expire seventy-two hours after the adjutant general makes a determination under subsection J of this section.

L. Pursuant to the second amendment of the United States Constitution and article II, section 26, Constitution of Arizona, and notwithstanding any other law, the emergency powers of the governor, the adjutant general or any other official or person do not allow the imposition of additional restrictions on the lawful possession, transfer, sale, transportation, carrying, storage, display or use of firearms or ammunition or firearms or ammunition components. A store that sells firearms or ammunition, or firearms or ammunition components, is an essential business and is protected from a qualified civil liability action pursuant to section 12-721.

M. This section does not:

Prohibit the governor, the adjutant general or other officials responding to an emergency from ordering the reasonable movement of stores of ammunition out of the way of dangerous conditions.
Allow a state agency or a city, town or county to permanently revoke any license held by a business or used to operate a business for not complying with an order issued by the governor with respect to a state of emergency proclaimed by the governor pursuant to section 36-787, subsection A unless the state agency or the city, town or county can demonstrate by clear and convincing evidence that the business caused the transmission of the disease that is the subject of the order due to the business's wilful misconduct or gross negligence.

N. Before a state agency, city, town or county suspends or permanently revokes, pursuant to subsection O of this section, a license held by a business or used to operate a business, the state agency, city, town or county shall provide the business with both of the following:

A written notice of noncompliance delivered by personal service or certified mail.
A written notice of intent to suspend or permanently revoke the license at least thirty days after the date of the notice of noncompliance provided pursuant to paragraph 1 of this subsection. The state agency, city, town or county shall present any new evidence of grounds for suspension or permanent revocation in the written notice required by this paragraph. A business that receives a notice pursuant to this paragraph and disputes the claim shall respond to the state agency, city, town or county within twenty days after receiving the notice.

O. Any dispute relating to the suspension or permanent revocation of a license held by a business or used to operate a business shall be resolved by a court of competent jurisdiction in this state. A state agency, city, town or county may not suspend or permanently revoke a license held by a business or used to operate a business until the business has received both notices prescribed in subsection N of this section and all appeals have been exhausted. The court may award reasonable attorney fees and damages to a business in an action relating to the suspension or permanent revocation of a license held by a business or used to operate a business.

§ 26-304 State emergency council; membership; powers and duties; definition

A. The state emergency council is established consisting of the following persons or their designee:

Governor.
Secretary of state.
Attorney general.
Adjutant general.
Director of the division of emergency management.
Director of the department of transportation.
Director of the department of health services.
Director of environmental quality.
Director of the department of public safety.
Director of the Arizona department of agriculture.
Director of the department of administration.
Director of water resources.
President of the senate as an advisory member.
Speaker of the house of representatives as an advisory member.

B. The powers and duties of the council include:

Making recommendations for orders, rules, policies and procedures to the governor.
Recommending to the governor the assignment of any responsibility, service or activity to a state agency relative to emergencies or planning for emergencies.
Issuing, in the event of inaccessibility of the governor, a state of emergency proclamation under the same conditions by which the governor could issue such a proclamation, if the action is taken at a meeting of the council called by the director and if not less than three council members, one of whom is an elected official, approve the action.

C. The council shall monitor each emergency declared by the governor and the activities and response of the division to the emergency. The council shall recommend to the governor or the legislature based on the reports submitted to it by the auditor that the emergency conditions have stabilized and that the emergency is substantially contained.

D. For the purposes of this section, "advisory member" means a member who gives advice to the other members of the state emergency council at meetings of the council but who is not eligible to vote, is not a member for purposes of determining whether a quorum is present and is not eligible to receive any compensation or reimbursement of expenses by the council.

§ 26-305 Division of emergency management; duties; director; term; qualifications; compensation; emergency management training revolving fund

A. There is established in the department of emergency and military affairs the division of emergency management, which is administered by the department under the authority of the adjutant general, subject to powers vested in the governor as provided by law.

B. The division shall prepare for and coordinate those emergency management activities that may be required to reduce the impact of disaster on persons or property.

C. Through the powers vested in the governor, the division shall coordinate the cooperative effort of all governmental agencies including the federal government, this state and its political subdivisions to alleviate suffering and loss resulting from disaster.

D. The adjutant general shall appoint the director who serves at the pleasure of the adjutant general. The adjutant general shall select the director on the basis of demonstrated ability in governmental functions or business administration and general knowledge of contingency planning and disaster preparedness.

E. The director is eligible to receive compensation pursuant to section 38-611.

F. The emergency management training revolving fund is established consisting of legislative appropriations, reimbursements received and fees collected by the division for coordinating conferences, trainings and exercises relating to the division's powers and duties. Monies in the fund are continuously appropriated and are exempt from the provisions of section 35-190 relating to lapsing of appropriations. The director of the division shall deposit all fees collected for these activities in the fund, which shall be used only for expenses of the activities.

§ 26-305.01 Nuclear emergency plan; duties of division and director

A. The division is designated the lead agency and has the overall and primary responsibility for development of a state plan for off-site response to an emergency caused by an accident at a commercial nuclear generating station.

B. The director shall develop the plan by appointing a coordinator and response group and working in consultation with designated representatives from the following:

Arizona department of agriculture.
Department of health services.
Department of public safety.
Department of transportation.
Arizona commerce authority.
Arizona corporation commission.
Department of environmental quality.
Any other agencies or offices deemed necessary by the division of emergency management.

§ 26-305.03 Electromagnetic pulse preparedness recommendations; posting; definition

A. The division shall develop preparedness recommendations for the public regarding the type and quantity of supplies, including food, water and medical supplies, that each person in this state should possess in preparation for an electromagnetic pulse that might occur over the United States. The division shall post the preparedness recommendations on its website and shall update the preparedness recommendations at least every five years.

B. For the purposes of this section, "electromagnetic pulse" means a burst of electromagnetic energy occurring in the form of a radiated electric magnetic field or conducted electrical current caused by a coronal mass ejection from the sun, detonation of a nuclear bomb high in earth's upper atmosphere or a man-made electromechanical device.

§ 26-306 Powers and duties of the director of emergency management

A. The director, subject to the approval of the adjutant general, shall:

Be the administrative head of the division.
Be the state director for emergency management.
Make rules necessary for the operation of the division.
Develop and test plans for meeting any condition constituting a state of emergency or state of war emergency, except those emergency plans specifically assigned by the governor to other state agencies. Such plans shall provide for the effective mobilization and management of personnel and equipment of the state.
During a state of war emergency, coordinate the emergency activities of all state agencies except the national guard.
During a state of emergency or a local emergency, coordinate the emergency activities of all state agencies and the national guard.
Coordinate the use of state personnel, equipment, services and facilities, including communication services, if requested by political subdivisions in support of emergency management activities.
Coordinate the use of personnel, equipment, services and facilities, including communication services, of one or more political subdivisions in support of any other political subdivision in meeting emergency needs, including search or rescue operations, on the request of the using political subdivision.
Develop, test and maintain a plan pursuant to section 26-305.01 for response by agencies of this state and its political subdivisions to an accident at a commercial nuclear generating station.
Every two years, submit a recommendation to the legislature in connection with the assessment prescribed by section 26-306.01 with supporting documentation and information.
Collaborate with the state forester in presentations to legislative committees on issues associated with forest management, wildfire prevention and suppression and wildfire emergency response and management as provided by section 37-1302, subsection B.
Develop, implement and maintain a state hazardous materials emergency response and recovery plan as part of the hazardous materials emergency management program pursuant to section 49-123.
Coordinate the development, implementation and maintenance of standardized curricula for hazardous materials training and education.

B. The director, subject to the approval of the adjutant general, may:

Propose, develop, negotiate and consummate contractual arrangements with the federal government, state agencies and political subdivisions for technical, administrative and financial support from the federal, state and local government in connection with the emergency management activities of the state.
Represent the state at conferences in the development and promotion of the emergency management capability of the state.
Establish a disaster prevention council to plan for disaster prevention. The council shall consist of the members of the state emergency council and other members as determined by the director. The disaster prevention council shall coordinate the disaster prevention expertise of representatives of federal, state and local business and industry and promote partnerships to substantially reduce property loss from natural and technological disasters.

§ 26-306.01 Assessment on commercial nuclear generating stations

A. The legislature shall levy an assessment pursuant to subsection D of this section to provide for the development and maintenance of a state plan for off-site response to an emergency caused by an accident at a commercial nuclear generating station and to provide for the equipment, personnel, facilities, training and testing necessary to comply with criteria for preparation and evaluation of radiological emergency response plans and preparedness in support of commercial nuclear generating stations prescribed by the United States nuclear regulatory commission and the federal emergency management agency.

B. Before October 31 in each even-numbered year, the director shall recommend to the legislature an amount necessary to develop, maintain and support the state plan.

C. The legislature shall appropriate for each of the following two fiscal years the amount necessary to develop, maintain and support the state plan, after hearing the recommendation under subsection B of this section. The monies shall be appropriated from the nuclear emergency management fund established by section 26-306.02.

D. Every two years an assessment for each of the two years of the biennium is levied against each consortium of public service corporations and municipal corporations engaged in constructing or operating a commercial nuclear generating station for the purpose of developing, maintaining and supporting the state plan. The assessment shall be in an amount equal to the appropriations provided pursuant to subsection C of this section, plus interest at a rate of ten percent per year, and shall be contained in the same appropriations bill provided by subsection C of this section. Interest shall be charged on any amounts that are appropriated pursuant to subsection C of this section, and that have not been repaid, from the date the appropriation becomes available for expenditure until payment is received. The assessment for each year of the biennium shall be collected by the department of revenue. Monies collected from the levy shall be deposited in the nuclear emergency management fund established by section 26-306.02.

E. If a consortium fails or refuses to pay its assessment within the year for which the assessment is made, the legislature may direct the director to notify the United States nuclear regulatory commission, or its successor in licensing commercial nuclear generating stations, of this state's incapacity to support an off-site emergency response plan for the commercial nuclear generating station.

§ 26-306.02 Nuclear emergency management fund; exemption; appropriation reduction

A. The nuclear emergency management fund is established consisting of monies appropriated by the legislature under section 26-306.01. The division shall use the fund for administering and enforcing the state plan for off-site response to an emergency caused by an accident at a commercial nuclear generating station.

B. Monies deposited in the fund are exempt from section 35-190 relating to lapsing of appropriations, except that any monies remaining unexpended and unencumbered at the end of each fiscal year from the distributions made from the fund to the division of emergency management of the department of emergency and military affairs and the Arizona department of agriculture and for disbursements to departments and agencies of Maricopa county revert to the nuclear emergency management fund and shall be used to reduce the assessment and appropriation to the fund for the following fiscal years. The reduction in the appropriation for each applicable agency shall be equal to the amount of monies reverted to the fund by each agency.

§ 26-307 Power of counties, cities, towns and state agencies designated by the governor to make orders, rules and regulations; procedure

A. State agencies when designated by the governor, and counties, cities and towns may make, amend and rescind orders, rules and regulations necessary for emergency functions but such shall not be inconsistent with orders, rules and regulations promulgated by the governor.

B. Any order, rule or regulation issued by the governing body of a county or other political subdivision of the state is effective when a copy is filed in the office of the clerk of the political subdivision. Existing laws, ordinances, orders, rules and regulations in conflict with this chapter or orders, rules or regulations issued under authority of this chapter are suspended during the time and to the extent that they conflict.

C. In a state of war emergency, counties, cities and towns may waive procedures and formalities otherwise required by law pertaining to the performance of public work, entering into contracts, incurring obligations, employing permanent and temporary workers, utilizing volunteer workers, renting equipment, purchasing and distributing supplies, materials and facilities and appropriating and expending public funds when such governmental entity determines and declares that strict compliance with such procedures and formalities may prevent, hinder or delay mitigation of the effects of the state of war emergency.

D. In the absence of specific authority in state emergency plans and programs, the governing body of each county, city and town of the state shall take emergency measures as deemed necessary to carry out the provisions of this chapter.

§ 26-308 Powers of local government; local emergency management establishment; organization

A. Each county and incorporated city and town of the state may appropriate and expend funds, make contracts and obtain and distribute equipment, materials and supplies for emergency management purposes.

B. Each county and incorporated city and town of the state shall establish and provide for emergency management within its jurisdiction in accordance with state emergency plans and programs. Each unincorporated community may establish such emergency management programs.

C. The chief executive officer or governing body of each county, incorporated city or incorporated town may appoint a director who shall be responsible for the organization, administration and operation of local emergency management programs, subject to the direction and control of such executive officer or governing body.

D. State emergency plans shall be in effect in each such political subdivision of the state. The governing body of each such political subdivision shall take such action as is necessary to carry out the provisions thereof, including the development of additional emergency plans for the political subdivision in support of the state emergency plans.

E. Each county's emergency management organization shall:

Maintain a list of public and private organizations within the county which have personnel trained and available for assisting in meeting emergency needs.
Maintain an inventory of facilities, equipment, supplies and other resources within the county available for use in meeting emergency needs.
Provide a summary of the information required in paragraphs 1 and 2 to the state director of emergency management.

§ 26-309 Mutual aid; responsibilities of agencies and officials; agreements; definition

A. The purposes of the provisions of this section are to facilitate the rendering of aid to persons or property in areas within the state stricken by an emergency and to make unnecessary the execution of written agreements in times of emergency. Any emergency plans duly adopted and approved satisfy the requirement for mutual aid agreements.

B. During an emergency, if any county, city, town, private water or wastewater utility or special taxing district requires outside aid, such aid may be rendered in accordance with approved emergency plans and mutual aid agreements.

C. The governor, on behalf of this state, may enter into reciprocal aid agreements or compacts, mutual aid plans or other interstate arrangements for the protection of life and property with other states and the federal government. Such mutual aid arrangements may include the furnishing or exchange on terms and conditions deemed necessary of supplies, equipment, facilities, personnel and services.

D. A county, city, town, private water or wastewater utility or special taxing district may enter into mutual aid agreements with other entities if the other entities provide water or wastewater services. The mutual aid agreements shall address responding to emergencies that affect water and wastewater services and specify how the costs of the responding service provider will be reimbursed by the service provider that requests aid.

E. For the purposes of this section, "special taxing district" means any district formed pursuant to title 48, chapter 6, article 4 or chapter 14, article 1.

§ 26-310 Use of professional skills

During a state of war emergency or a state of emergency, any person holding any license, certificate or other permit issued by any state evidencing the meeting of the qualifications of such state for professional, mechanical or other skills may render aid involving such skill to meet the emergency as fully as if such license, certificate or other permit had been issued in this state, if any substantially similar license, certificate or other permit is issued in this state to applicants possessing the same professional, mechanical or other skills.

§ 26-311 Local emergencies; declaration by mayor or chairman of the board; power of political subdivisions; state agency assistance

A. In addition to the powers granted by other provisions of the law or charter, if the mayor of an incorporated city or town or the chairman of the board of supervisors for the unincorporated areas of the county deems that an emergency exists due to fire, conflagration, flood, earthquake, explosion, war, bombing, acts of the enemy or any other natural or man-made calamity or disaster or by reason of threats or occurrences of riots, routs, affrays or other acts of civil disobedience that endanger life or property within the city, town or unincorporated areas of the county, or portion thereof, the mayor or chairman of the board of supervisors, if authorized by ordinance or resolution, may declare, by proclamation, an emergency or a local emergency to exist.

B. If an emergency is declared pursuant to subsection A of this section, the mayor or the chairman of the board of supervisors shall govern during such an emergency by proclamation and shall have the authority to impose all necessary regulations to preserve the peace and order of the city, town, or unincorporated areas of the county, excluding the ordering of the closure of businesses, but including the following:

Imposing curfews in all or portions of the political subdivision.
Closing to public access any public building, street or other public place.
Calling on regular or auxiliary law enforcement agencies and organizations within or without the political subdivision for assistance.
Notifying the constitutional officers that the county office for which they are responsible may remain open or may close for the emergency.

C. In periods of a local emergency, including an emergency declared pursuant to subsection A of this section, political subdivisions have full power to provide mutual aid to any affected area in accordance with local ordinances, resolutions, emergency plans or agreements therefor.

D. State agencies may provide mutual aid, including personnel, equipment and other available resources, to assist political subdivisions during a local emergency in accordance with emergency plans or at the direction of the governor.

§ 26-312 Authority of executive officers and governing bodies to accept materials or funds

The governor on behalf of the state or the governing body of a political subdivision of this state may accept for purposes of emergency services an offer of the federal government or an agency or officer thereof, or an offer of any person, firm or corporation of services, equipment, supplies, material or funds, whether by gift, grant or loan and may designate an officer of the state or subdivision thereof to receive them on behalf of the state or subdivisions subject to terms, if any, of the offeror.

§ 26-313 Reimbursement to state agencies; use of state agency resources

A. Reimbursement to any state agency for state funds expended in the performance of any and all activities as set forth in this chapter shall be made in accordance with section 35-192.

B. Any funds received by state agencies as reimbursement for services or supplies furnished under the authority of this chapter shall be deposited to the credit of the account of the agency which rendered such services or furnished such supplies.

§ 26-314 Immunity of state, political subdivisions and officers, agents, employees and emergency workers; limitation; rules; definitions

A. This state and its departments, agencies, boards and commissions and all political subdivisions are not liable for any claim based on the exercise or performance, or the failure to exercise or perform, a discretionary function or duty by any emergency worker, except for wilful misconduct, gross negligence or bad faith of the emergency worker, in engaging in emergency management activities or performing emergency functions pursuant to this chapter or title 36, chapter 6, article 9, including operating an unmanned aircraft or a public unmanned aircraft, while engaged in or supporting emergency management activities or performing emergency functions pursuant to this chapter or title 36, chapter 6, article 9.

B. The immunities from liability, exemptions from laws, ordinances and rules, all pensions, relief, disability workers' compensation and other benefits that apply to the activity of officers, agents, employees or emergency workers of this state or of any political subdivision when performing their respective functions within this state or the territorial limits of their respective political subdivisions apply to them to the same degree and extent while engaged in the performance of any of their functions and duties extraterritorially under this chapter or title 36, chapter 6, article 9, except for wilful misconduct, gross negligence or bad faith.

C. Emergency workers engaging in emergency management activities or performing emergency functions under this chapter or title 36, chapter 6, article 9, in carrying out, complying with or attempting to comply with any order or rule issued under this chapter, title 36, chapter 6, article 9 or any local ordinance, or performing any of their authorized functions or duties or training for the performance of their authorized functions or duties have the same degree of responsibility for their actions and enjoy the same immunities and disability workers' compensation benefits as officers, agents and employees of this state and its political subdivisions performing similar work. Except as otherwise provided under chapter 3, article 1 of this title, this state and its departments, agencies, boards and commissions and all political subdivisions that supervise or control emergency workers engaging in emergency management activities or performing emergency functions under this chapter or title 36, chapter 6, article 9 are responsible for providing for liability coverage, including legal defense, of an emergency worker if necessary. Coverage is provided if the emergency worker is acting within the course and scope of assigned duties and is engaged in an authorized activity, except for actions of wilful misconduct, gross negligence or bad faith.

D. Any other state or its officers, agents, emergency workers or employees rendering aid in this state pursuant to any interstate mutual aid arrangement, agreement or compact are not liable on account of any act or omission in good faith on the part of the state or its officers, agents, emergency workers or employees while so engaged or on account of the maintenance or use of any equipment or supplies in connection with an emergency.

E. The division shall adopt rules prescribing the procedures for registration of emergency workers.

F. For the purposes of this section, "public unmanned aircraft" and "unmanned aircraft" have the same meanings prescribed in section 13-3729.

§ 26-315 Political activities prohibited

No public organization established under the authority of this chapter shall participate in any form of political activity nor shall it be employed directly or indirectly for political purposes.

§ 26-316 Enforcement of orders, rules and regulations

The law enforcing authorities of the state and political subdivisions shall enforce orders, rules and regulations issued pursuant to this chapter.

§ 26-317 Violation; classification

Any person who violates any provision of this chapter or who knowingly fails or refuses to obey any lawful order or regulation issued as provided in this chapter shall be guilty of a class 1 misdemeanor. This provision does not apply to the refusal of any private organization or member thereof to participate in a local emergency or state of emergency as defined by this chapter.

§ 26-318 Exemption from payment of registration and weight fees for vehicles owned by a disaster assistance organization; procedure; form

A. Any nonprofit organization organized in this state and recognized as nonprofit and tax exempt by the United States internal revenue service and owning vehicles operated exclusively for disaster or search and rescue assistance may apply to the division of emergency management, on a form prescribed by the director, for exemption from the registration and weight fees for any motor vehicle, trailer or semitrailer owned by the organization.

B. The form shall include the following:

The vehicle make and model.
The vehicle identification number.
The name of the presiding officer of the disaster assistance organization.
A statement that the nonprofit organization is recognized as nonprofit and tax exempt by the United States internal revenue service.
A statement that the vehicle is used exclusively for disaster or search and rescue assistance.
The signature of the presiding officer.

C. The director shall approve the forms of those vehicles meeting the requirements of subsection B and shall return the approved forms to the nonprofit organization.

§ 26-319 Commercial nuclear generating station; emergency planning zone; recording

The owners of a commercial nuclear generating station shall prepare, execute and record in the office of the county recorder a legal description of the land that is within an emergency planning zone consisting of all land within a ten mile radius of the commercial nuclear generating station. The legal description shall include the property on which the facility is located.

§ 26-320 First informer broadcasters; training and certification; access; definitions

A. The division may coordinate with a broadcasting association in this state or a cable television telecommunication association in this state, or both, to develop comprehensive, coordinated plans for preparing for and responding appropriately to an emergency or disaster.

B. The division may designate and authorize a statewide organization that represents broadcasters, cable television communications or any other provider that uses emerging technologies or a federally licensed radio or television station to establish and conduct a program approved by the division to train and certify broadcast engineers and technical personnel that are critical to station operations as first informer broadcasters. Training and certification pursuant to this subsection shall:

Be consistent with federal law and guidelines.
Include education in restoring, repairing and resupplying any facilities or equipment of a broadcaster in an area affected by an emergency or disaster.
Include education concerning the personal safety of a first informer broadcaster in an area affected by an emergency or disaster.

C. To the extent practicable and consistent with not endangering public safety or inhibiting recovery efforts, state and local government agencies shall allow a first informer broadcaster to access an area affected by an emergency or disaster to restore, repair or resupply any facility or equipment critical to the ability of a broadcaster to acquire, produce and transmit essential emergency or disaster related public information programming, including repairing and maintaining transmitters and generators and transporting fuel for generators.

D. For the purposes of this section:

"Broadcaster" means a radio broadcasting station, cable television operator, video service provider or television broadcasting station primarily engaged in, and deriving income from, the business of facilitating speech via over-the-air communications, both as to pure speech and commercial speech.
"First informer broadcaster" means a person who is trained and certified as a first informer broadcaster pursuant to this section.

§ 26-321 State of emergency; tolling; permit, license, approval or other authorization; extension; requirements; exceptions; definitions

A. A state of emergency proclamation by the governor in response to an event that causes this state or a county, city or town to alter or limit ordinary government operations tolls the period remaining to exercise the rights under any permit, license, approval or other authorization necessary for subdividing land, developing land, constructing buildings or constructing, repairing, replacing or modifying any improvement to real property issued by the department of environmental quality or a county, city or town.

B. The tolling period prescribed by subsection A of this section runs from the date the issuing authority determines that the ordinary government operations in effect before the state of emergency proclamation were altered or limited until the date the issuing authority determines that the authority has returned to the ordinary government operations in effect before the state of emergency proclamation and the period remaining to exercise the rights under the permit, license, approval or other authorization is extended for an additional six months after the tolling period. If the permit, license, approval or other authorization does not expire during the tolling and extension period, the original expiration date shall be retained unless extended at the discretion of the issuing authority. The issuing authority may require written notice of intent to extend a permit, license, approval or other authorization as a condition of exercising the extension period under this section, except that the issuing authority must provide actual written notice to the holder of the permit, license, approval or other authorization of such a requirement at least thirty days before the expiration of the permit, license, approval or other authorization.

C. The issuing authority shall conspicuously post a statement on its website as soon as practicable following the determination that the authority has returned to the ordinary government operations in effect before the state of emergency proclamation was issued that includes:

The date on which the issuing authority determined that the authority's ordinary government operations were altered or limited.
The date on which the issuing authority returned to ordinary government operations in effect before the state of emergency proclamation was issued.
The date on which the permit, license, approval or other authorization extended under subsection B of this section will expire and notice that any permit, license, approval or other authorization that expires after that date will retain its original expiration date.
The process for the holder of the permit, license, approval or other authorization to provide written notice of intent to exercise the extension period provided by this section, if required by the issuing authority as provided by this section.

D. A permit, license, approval or other authorization that is extended by this section shall be governed by the laws, administrative rules, ordinances and other legal requirements that governed the activity or conduct authorized by the permit, license, approval or other authorization on the effective date of the state of emergency, unless any party or the issuing authority demonstrates that operating under those laws, administrative rules, ordinances or other legal requirements will create an immediate threat to the public health or safety.

E. Unless otherwise prohibited during the state of emergency and except as provided by this section, during the tolled and extended period, the issuing authority may not prohibit or impose any penalty or fine for any activity if the activity was allowed under the permit, license, approval or other authorization issued before or during the state of emergency.

F. If a permit, license, approval or other authorization for a phased development or construction project is extended, the commencement dates or completion dates for any required future work, permits, licenses, approvals or other authorizations are extended so that those activities occur in the same time frame relative to the phase as originally permitted, licensed, approved or otherwise authorized.

G. This section does not apply to:

A permit, license, approval or other authorization for activity located outside the area for which the state of emergency applies.
A permit, license, approval or other authorization of which the extension is prohibited or otherwise regulated by federal law or requires approval by a federal agency.
The holder of a permit, license, approval or other authorization that, before the effective date of the state of emergency, is determined by the issuing authority to be in significant noncompliance with the conditions of the permit, license, approval or other authorization through the issuance of a warning letter or notice of violation, the initiation of formal enforcement or an equivalent action.
A permit, license, approval or other authorization that is subject to a court order specifying an expiration date that would be in conflict with an extension prescribed by this section.
A transaction privilege tax license issued by this state or a county, city or town.
A business license issued by a county, city or town.

H. This section does not:

Restrict this state or a county, city or town from requiring property to be maintained and secured in a safe and sanitary condition in compliance with applicable laws, administrative rules, ordinances or other legal requirements.
Prevent a county health department from collecting fees for a permit, license, approval or other authorization for programs and activities delegated by the department of environmental quality and department of health services.
Prevent this state or a county, city or town from collecting an annual fee required to maintain a permit, license, approval or other authorization in good standing.

I. For the purposes of this section:

"Issuing authority" means the department of environmental quality or a county, city or town that issued a permit, license, approval or other authorization described in this section.
"Ordinary government operations" includes maintaining hours of operation, allowing physical or public access to government buildings or facilities, visiting and inspecting businesses, processing applications, making personnel available and conducting governing board meetings.

Chapter 3 Emergency Management Assistance Compact

Article 1 General Provisions

§ 26-401 Title

This act may be cited as the emergency management assistance compact.

§ 26-402 Compact

The legislature of the state of Arizona hereby authorizes the governor of the state of Arizona to enter into a compact on behalf of the state of Arizona with any other state legally joining therein, in the form substantially as follows:

EMERGENCY MANAGEMENT ASSISTANCE COMPACT

ARTICLE I ̶ GENERAL PROVISIONS

This compact is made and entered into by and between the participating member states which enact this compact, hereinafter called party states. For the purposes of this agreement, the term "states" is taken to mean the several states, the Commonwealth of Puerto Rico, the District of Columbia and all U.S. territorial possessions.

The purpose of this compact is to provide for mutual assistance between the states entering into this compact in managing any emergency or disaster that is duly declared by the governor of the affected state, whether arising from natural disaster, technological hazard, man-made disaster, civil emergency aspects of resources shortages, community disorders, insurgency or enemy attack.

This compact shall also provide for mutual cooperation in emergency-related exercises, testing or other training activities using equipment and personnel simulating performance of any aspect of the giving and receiving of aid by party states or subdivisions of party states during emergencies, such actions occurring outside actual declared emergency periods. Mutual assistance in this compact may include the use of the states' national guard forces, either in accordance with the national guard mutual assistance compact or by mutual agreement between states.

ARTICLE II ̶ GENERAL IMPLEMENTATION

Each party state entering into this compact recognizes many emergencies transcend political jurisdictional boundaries and that intergovernmental coordination is essential in managing these and other emergencies under this compact. Each state further recognizes that there will be emergencies which require immediate access and present procedures to apply outside resources to make a prompt and effective response to such an emergency. This is because few, if any, individual states have all the resources necessary for delivering services to areas where emergencies exist. The prompt, full and effective utilization of resources of the participating states, including any resources on hand or available from the federal government or any other source, that are essential to the safety, care and welfare of the people in the event of any emergency or disaster declared by a party state, shall be the underlying principle on which all articles of this compact shall be understood.

On behalf of the governor of each state participating in the compact, the legally designated state official who is assigned responsibility for emergency management will be responsible for formulation of the appropriate interstate mutual aid plans and procedures necessary to implement this compact.

ARTICLE III ̶ PARTY STATE RESPONSIBILITIES

A. It shall be the responsibility of each party state to formulate procedural plans and programs for interstate cooperation in the performance of the responsibilities listed in this article. In formulating such plans, and in carrying them out, the party states, insofar as practical, shall:

i. Review individual state hazards analyses and, to the extent reasonably possible, determine all those potential emergencies the party states might jointly suffer, whether due to natural disaster, technological hazard, man-made disaster, emergency aspects of resource shortages, civil disorders, insurgency or enemy attack.

ii. Review party states' individual emergency plans and develop a plan which will determine the mechanism for the interstate management and provision of assistance concerning any potential emergency.

iii. Develop interstate procedures to fill any identified gaps and to resolve any identified inconsistencies or overlaps in existing or developed plans.

iv. Assist in warning communities adjacent to or crossing the state boundaries.

v. Protect and assure uninterrupted delivery of services, medicines, water, food, energy and fuel, search and rescue, and critical lifeline equipment, services and resources, both human and material.

vi. Inventory and set procedures for the interstate loan and delivery of human and material resources, together with procedures for reimbursement or forgiveness.

vii. Provide, to the extent authorized by law, for temporary suspension of any statutes.

B. The authorized representative of a party state may request assistance of another party state by contacting the authorized representative of that state. The provisions of this agreement shall only apply to requests for assistance made by and to authorized representatives. Requests may be verbal or in writing. If verbal, the request shall be confirmed in writing within thirty days of the verbal request. Requests shall provide the following information:

i. A description of the emergency service function for which assistance is needed, such as but not limited to fire services, law enforcement, emergency medical, transportation, communications, public works and engineering, building inspection, planning and information assistance, mass care, resource support, health and medical services, and search and rescue.

ii. The amount and type of personnel, equipment, materials and supplies needed, and a reasonable estimate of the length of time they will be needed.

iii. The specific place and time for staging of the assisting party's response and a point of contact at that location.

C. There shall be frequent consultation between state officials who have assigned emergency management responsibilities and other appropriate representatives of the party states with affected jurisdictions and the United States government, with free exchange of information, plans and resource records relating to emergency capabilities.

ARTICLE IV ̶ LIMITATIONS

Any party state requested to render mutual aid or conduct exercises and training for mutual aid shall take such action as is necessary to provide and make available the resources covered by this compact in accordance with the terms hereof; provided that it is understood that the state rendering aid may withhold resources to the extent necessary to provide reasonable protection for such state. Each party state shall afford to the emergency forces of any party state, while operating within its state limits under the terms and conditions of this compact, the same powers (except that of arrest unless specifically authorized by the receiving state), duties, rights and privileges as are afforded forces of the state in which they are performing emergency services. Emergency forces will continue under the command and control of their regular leaders, but the organizational units will come under the operational control of the emergency services authorities of the state receiving assistance. These conditions may be activated, as needed, only subsequent to a declaration of a state of emergency or disaster by the governor of the party state that is to receive assistance or commencement of exercises or training for mutual aid and shall continue so long as the exercises or training for mutual aid are in progress, the state of emergency or disaster remains in effect or loaned resources remain in the receiving state, whichever is longer.

ARTICLE V ̶ LICENSES AND PERMITS

Whenever any person holds a license, certificate or other permit issued by any state party to the compact evidencing the meeting of qualifications for professional, mechanical or other skills, and when such assistance is requested by the receiving party state, such person shall be deemed licensed, certified or permitted by the state requesting assistance to render aid involving such skill to meet a declared emergency or disaster, subject to such limitations and conditions as the governor of the requesting state may prescribe by executive order or otherwise.

ARTICLE VI ̶̶ LIABILITY

Officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for tort liability and immunity purposes; and no party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article shall not include willful misconduct, gross negligence or recklessness.

ARTICLE VII ̶ SUPPLEMENTARY AGREEMENTS

Inasmuch as it is probable that the pattern and detail of the machinery for mutual aid among two or more states may differ from that among the states that are party hereto, this instrument contains elements of a broad base common to all states, and nothing herein contained shall preclude any state from entering into supplementary agreements with another state or affect any other agreements already in force between states. Supplementary agreements may comprehend, but shall not be limited to, provisions for evacuation and reception of injured and other persons and the exchange of medical, fire, police, public utility, reconnaissance, welfare, transportation and communications personnel, and equipment and supplies.

ARTICLE VIII ̶ COMPENSATION

Each party state shall provide for the payment of compensation and death benefits to injured members of the emergency forces of that state and representatives of deceased members of such forces in case such members sustain injuries or are killed while rendering aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within their own state.

ARTICLE IX ̶ REIMBURSEMENT

Any party state rendering aid in another state pursuant to this compact shall be reimbursed by the party state receiving such aid for any loss or damage to or expense incurred in the operation of any equipment and the provision of any service in answering a request for aid and for the costs incurred in connection with such requests; provided, that any aiding party state may assume in whole or in part such loss, damage, expense, or other cost, or may loan such equipment or donate such services to the receiving party state without charge or cost; and provided further, that any two or more party states may enter into supplementary agreements establishing a different allocation of costs among those states. Article VIII expenses shall not be reimbursable under this provision.

ARTICLE X ̶ EVACUATION

Plans for the orderly evacuation and interstate reception of portions of the civilian population as the result of any emergency or disaster of sufficient proportions to so warrant, shall be worked out and maintained between the party states and the emergency management/services directors of the various jurisdictions where any type of incident requiring evacuations might occur. Such plans shall be put into effect by request of the state from which evacuees come and shall include the manner of transporting such evacuees, the number of evacuees to be received in different areas, the manner in which food, clothing, housing, and medical care will be provided, the registration of the evacuees, the providing of facilities for the notification of relatives or friends, and the forwarding of such evacuees to other areas or the bringing in of additional materials, supplies, and all other relevant factors. Such plans shall provide that the party state receiving evacuees and the party state from which the evacuees come shall mutually agree as to reimbursement of out-of-pocket expenses incurred in receiving and caring for such evacuees, for expenditures for transportation, food, clothing, medicines and medical care, and like items. Such expenditures shall be reimbursed as agreed by the party state from which the evacuees come. After the termination of the emergency or disaster, the party state from which the evacuees come shall assume the responsibility for the ultimate support of repatriation of such evacuees.

ARTICLE XI ̶ IMPLEMENTATION

A. This compact shall become operative immediately upon its enactment into law by any two (2) states; thereafter, this compact shall become effective as to any other state upon its enactment by such state.

B. Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until thirty days after the governor of the withdrawing state has given notice in writing of such withdrawal to the governors of all other party states. Such action shall not relieve the withdrawing state from obligations assumed hereunder prior to the effective date of withdrawal.

C. Duly authenticated copies of this compact and of such supplementary agreements as may be entered into shall, at the time of their approval, be deposited with each of the party states and with the federal emergency management agency and other appropriate agencies of the United States government.

ARTICLE XII ̶ VALIDITY

This act shall be construed to effectuate the purposes stated in article I hereof. If any provision of this compact is declared unconstitutional, or the applicability thereof to any person or circumstances is held invalid, the constitutionality of the remainder of this act and the applicability thereof to other persons and circumstances shall not be affected thereby.

ARTICLE XIII ̶ ADDITIONAL PROVISIONS

Nothing in this compact shall authorize or permit the use of military force by the national guard of a state at any place outside that state in any emergency for which the president is authorized by law to call into federal service the militia, or for any purpose for which the use of the army or the air force would in the absence of express statutory authorization be prohibited under section 1385 of title 18, United States Code.

§ 26-403 Emergency management assistance compact and Arizona mutual aid compact revolving fund; purpose; exemption; definitions

A. The emergency management assistance compact and Arizona mutual aid compact revolving fund is established consisting of monies appropriated by the legislature and monies received as reimbursement for costs incurred by this state and any supporting partners of this state, while rendering aid as prescribed in section 26-309 or 26-402, that respond to Arizona mutual aid compact requests that are coordinated and approved by the division. Monies in the fund are continuously appropriated and are exempt from the provisions of section 35-190 relating to lapsing of appropriations. The department of emergency and military affairs shall administer the fund.

B. Monies in the fund shall be used for the costs incurred by this state while assisting other states with emergencies or natural disasters pursuant to section 26-402 or to reimburse supporting partners of this state and agencies in this state that respond to Arizona mutual aid compact requests that are coordinated and approved by the division.

C. For the purposes of this section:

"Arizona mutual aid compact" means a compact entered into pursuant to section 26-402.
"Division" means the division of emergency management within the department of emergency and military affairs.
"Supporting partner" includes any county, city, town, private water or wastewater utility, special taxing district or federally recognized Indian tribe that has a fully executed Arizona mutual aid compact agreement.

§ 26-404 Deployment of private sector workers to affected states; liability protection; definition

A. Pursuant to the emergency management assistance compact authorized by the legislature in section 26-402, the governor of this state may deploy those officers, employees and members of a private entity or a registered and credentialed volunteer organization in this state who have volunteered to provide assistance to an affected state experiencing any emergency or disaster that is duly declared by the governor of the affected state.

B. Those officers, employees and members of a private entity or a registered and credentialed volunteer organization in this state who have volunteered to deploy under the emergency management assistance compact:

Are deemed emergency workers pursuant to section 26-314 when rendering aid to an affected state.
Are considered agents of the requesting state for tort liability and immunity purposes pursuant to article VI of the emergency management assistance compact authorized by section 26-402.
Are not liable for any act or omission in good faith while so engaged or on account of maintaining or using any equipment or supplies in connection with an emergency pursuant to article VI of the emergency management assistance compact authorized by section 26-402.

C. For the purposes of this section, "emergency worker" has the same meaning prescribed in section 26-301.

Chapter 9 Arizona Code of Military Justice

Article 1 General Provisions

§ 26-1001 Definitions

In this chapter, unless the context otherwise requires:

"Accuser" means a person who signs and swears to charges, a person who directs that charges nominally be signed and sworn to by another and any other person who has an interest other than an official interest in the prosecution of the accused.
"Apprehend" or "apprehension" means taking a person into custody.
"Arrest" means the restraint of a person by an order, not imposed as a punishment for an offense, directing the person to remain within certain specified limits.
"Candidate" means a candidate of the Arizona military academy.
"Code" means the Arizona code of military justice as set forth in this chapter.
"Commanding officer" means only commissioned officers.
"Confinement" means the physical restraint of a person.
"Judge advocate" means an officer of the judge advocate general's corps of the United States army or the army national guard of the United States or an officer of the United States air force or the air national guard of the United States who is designated as a judge advocate.
"Military" means any or all of the armed forces of this state, the United States or any other state.
"Military judge" means an official of a general or special court-martial detailed in accordance with section 26-1026.
"National guard" means the national guard of Arizona and the state guard when organized.
"Officer in charge" means a member of the National guard designated as the officer in charge by an appropriate authority.
"Record", if used in connection with the proceedings of a court-martial, means an official written transcript, written summary or other writing relating to the proceedings or an official audiotape, videotape or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced.
"State judge advocate" means the commissioned officer responsible for supervising the administration of military justice in the national guard.
"Superior commissioned officer" means a commissioned officer superior in rank or command.

§ 26-1002 Persons subject to the code

A. The following persons are subject to the code:

Members of the national guard.
All other persons lawfully ordered to duty with the national guard from the dates they are required to serve by the terms of the order or other directive calling them into service.

B. The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the national guard is valid for purposes of jurisdiction under subsection A and a change of status from civilian to member of the national guard is effective on the taking of the oath of enlistment.

C. Notwithstanding any other provision of law, a person serving with the national guard who submits voluntarily to military authority, meets the mental competency and minimum age qualifications for enlistment at the time of voluntary submission to military authority, receives military pay or allowances and performs military duties is subject to this chapter until such person's active service has been terminated in accordance with law or rules adopted by the Governor.

§ 26-1003 Jurisdiction to try personnel

A. Each person discharged from the national guard who is later charged with having fraudulently obtained the discharge is subject to trial by court-martial on that charge and is, after apprehension, subject to this code while in the custody of the military for that trial. On conviction of that charge the person is subject to trial by court-martial for all offenses in this code committed before the fraudulent discharge.

B. A person who has deserted from the national guard is subject to the jurisdiction of this code notwithstanding a separation from any later period of service.

§ 26-1004 Dismissed officer's right to trial by court-martial

A. If any commissioned officer, dismissed by order of the governor, makes a written application for trial by court-martial setting forth, under oath, that he has been wrongfully dismissed, the governor, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. As part of its sentence, the court-martial may adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal, the adjutant general shall substitute for the dismissal ordered by the governor a form of discharge authorized for administrative issue.

B. If the governor fails to convene a general court-martial within six months from the presentation of an application for trial under this article, the adjutant general shall substitute for the dismissal order by the governor a form of discharge authorized for administrative issue.

C. If a discharge is substituted for a dismissal, only the governor may reappoint the officer to the commissioned grade and with a rank that, in the opinion of the governor, the former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and affects the promotion status of other officers only as the governor directs. All time between the dismissal and the reappointment is considered as actual service for all purposes.

D. If an officer is discharged from the national guard by administrative action or is dropped from the rolls by order of the governor, he has no right to trial under this section.

§ 26-1005 Territorial applicability

A. This code applies in this state and to all persons otherwise subject to this code while they are serving outside this state, and while they are going to and returning from such service outside this state, in the same manner and to the same extent as if they were serving inside this state.

B. Courts-martial may be convened and held in units of the national guard while these units are serving outside this state with the same jurisdiction and powers as to persons subject to this code as if the proceedings were held inside this state. Offenses committed outside this state may be tried and punished either inside or outside this state.

§ 26-1006 State judge advocate; staff judge advocates

A. The adjutant general, with approval of the governor, shall appoint an officer of the national guard as state judge advocate, who shall be a member in good standing of the state bar of Arizona and shall have been a member of the state bar of Arizona and a member of the national guard for at least five years immediately preceding the appointment.

B. The adjutant general may appoint as many assistant state judge advocates as deemed necessary who shall be officers of the national guard and members in good standing of the state bar of Arizona.

C. The state judge advocate or his assistants shall make frequent inspections in the field in supervision of the administration of military justice.

D. Convening authorities at all times shall communicate directly with their staff judge advocates in matters relating to the administration of military justice. The staff judge advocate of any command is entitled to communicate directly with the staff judge advocate of a superior or subordinate command or with the state judge advocate.

E. No person who has acted as a member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel or investigating officer, or who has been a witness for either the prosecution or defense, in any case may later act as staff judge advocate to any reviewing authority in the same case.

Article 2 Apprehension and Restraint

§ 26-1007 Apprehension

A. Any person authorized by this chapter or by rules adopted pursuant to this chapter to apprehend persons subject to this code or for trial may do so on reasonable belief that an offense has been committed and that the person apprehended committed it.

B. Commissioned officers, warrant officers and noncommissioned officers have authority to quell quarrels, frays and disorders among persons subject to this code and to apprehend persons subject to this code who take part.

§ 26-1008 Apprehension of deserters

Any officer having authority to apprehend offenders under the laws of this state, the United States or a state, territory, commonwealth or possession or the district of Columbia may summarily apprehend a deserter from the national guard and deliver him into the custody of the national guard. If an offender is apprehended outside this state, his return shall be in accordance with normal extradition procedures or reciprocal agreement.

§ 26-1009 Authority to order arrest

A. An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to this chapter. A commanding officer may authorize warrant officers, or noncommissioned officers, to order enlisted members of his command or subject to his authority into arrest or confinement.

B. A commissioned officer or a warrant officer may be ordered into arrest or confinement only by a commanding officer 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 into arrest or confinement may not be delegated.

C. No person may be ordered into arrest or confinement except for probable cause.

D. Nothing in this section limits the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority is notified.

§ 26-1010 Restraint of persons charged with offenses

Any person subject to this chapter charged with an offense under this chapter shall be ordered into arrest or confinement. A person charged only with an offense normally tried by a summary court-martial shall not be placed in confinement. If any person subject to this code is placed in arrest or confinement before 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.

§ 26-1011 Receiving of prisoners at civilian correction facility; statement

A provost marshal, commander of a guard, master-at-arms, warden, keeper or officer of a city or county jail or any other jail, penitentiary or prison shall not refuse to receive or keep any prisoner committed to his charge by a commissioned officer of the national guard, if the committing officer furnishes a statement, signed by him, of the offense alleged against the prisoner. The statement shall be on a form prescribed by rule.

§ 26-1013 Punishment before trial; prohibition

A person, while being held for trial, shall not be subjected to punishment or penalty other than arrest or confinement on the charges pending against him nor shall the arrest or confinement imposed on him be any more rigorous than the circumstances required to ensure his presence, but he may be subjected to minor punishment during that period for infractions of discipline and may be required to perform such labor as may be necessary for the policing and sanitation of his living quarters and mess facilities and the immediately adjacent area.

§ 26-1014 Delivery of offenders to civil authorities

A. Under such rules as the governor may adopt, a member of the national guard accused of an offense against civil authority may be delivered, on request, to the civil authority for trial.

B. When delivery is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender, after having answered to the civil authorities for his offense, shall be returned, on request of competent military authority, to military custody for the completion of the sentence.

Article 3 Nonjudicial Punishment

§ 26-1015 Commanding officer; nonjudicial punishments; appeal

A. Under rules the governor adopts and under any additional rules adopted by the adjutant general, limitations may be placed on the powers granted by this chapter with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this chapter to an accused who demands trial by court-martial and the kinds of courts-martial to which the case may be referred on a demand. Punishment may not be imposed on any member of the national guard under this chapter if the member, before the imposition of the punishment, has demanded trial by court-martial in lieu of the punishment. A member of the national guard may not demand a trial by court-martial in lieu of the punishment if the nonjudicial punishment options do not include arrest in quarters or restriction. Similar rules may be adopted with respect to the suspension of authorized punishments. If authorized by rules of the adjutant general, a commanding officer exercising general court-martial jurisdiction or an officer of general flag rank in command may delegate the officer's powers under this article to a principal assistant.

B. Subject to subsection A of this section, any commanding officer, in addition to or in lieu of admonition or reprimand, may impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial:

On officers of the commanding officer's command:

(a) Restriction to certain specified limits, with or without suspension from duty, for not more than thirty consecutive days.

(b) If imposed by the governor, the adjutant general or a general officer in command:

(i) Arrest in quarters for not more than thirty consecutive days.

(ii) Forfeiture in an amount of not more than twenty-eight drill periods.

(iii) Restriction to certain specified limits, with or without suspension from duty, for not more than sixty consecutive days.

On other personnel of the commanding officer's command:

(a) Correctional custody for not more than seven consecutive days.

(b) Forfeiture in an amount of not more than seven drill periods.

(c) Reduction to the next inferior pay grade, if the grade from which the person demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction.

(d) Extra duties, including fatigue or other duties, for not more than fourteen consecutive days.

(e) Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen consecutive days.

(f) If imposed by an officer of the grade of major or above:

(i) Correctional custody for not more than thirty consecutive days.

(ii) Forfeiture in an amount of not more than twenty-eight drill periods.

(iii) Reduction to the lowest or any intermediate pay grade, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades. The pay grade from which the person is demoted must be within the promotion authority of the officer imposing the reduction or any officer subordinate to the officer who imposes the reduction.

(iv) Extra duties, including fatigue or other duties, for not more than forty-five consecutive days.

(v) Restriction to certain specified limits, with or without suspension from duty, for not more than sixty consecutive days.

C. Two or more of the punishments of arrest in quarters, correctional custody, extra duties or restriction may not be combined to run consecutively in the maximum amount that may be imposed for each. If any of those punishments are combined to run consecutively, there shall be an apportionment. For the purpose of this subsection, "correctional custody" means the physical restraint of a person during duty or nonduty hours and may include extra duties, fatigue duties or hard labor. If practicable, correctional custody shall not be served in immediate association with persons awaiting trial or held in confinement pursuant to trial by court-martial.

D. An officer in charge may impose on enlisted members assigned to the unit of which the officer is in charge punishments authorized under subsection B, paragraph 2 of this section as the governor specifically prescribes by rule.

E. The officer who imposes a punishment authorized in subsection B of this section or the officer's successor in command may suspend probationally, at any time, any part or amount of the unexecuted punishment imposed and may suspend probationally a reduction in grade or a forfeiture imposed under subsection B of this section, whether or not the punishment is executed. In addition, the officer may remit or mitigate, at any time, any part or amount of the unexecuted punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges and property affected. The officer may also mitigate reduction in grade to forfeiture of pay. If mitigating an arrest in quarters to restriction, a correctional custody to extra duties or restriction, or both, or extra duties to restriction, the mitigated punishment shall not be for a greater period than the punishment mitigated. If mitigating reduction in grade to forfeiture of pay, the amount of the forfeiture shall not be greater than the amount that could have been imposed initially under this article by the officer who imposed the punishment mitigated.

F. A person who is punished under this article and who considers the punishment unjust or disproportionate to the offense may appeal, through the proper channel, to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may be required in the meantime to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection E of this section by the officer who imposed the punishment. Before acting on an appeal from a punishment of arrest in quarters for more than seven days, correctional custody for more than seven days, forfeiture of more than seven days' pay, reduction of one or more pay grades from the fourth or a higher grade, extra duties for more than fourteen days or restriction for more than fourteen days, the authority who is to act on the appeal shall refer the case to a judge advocate for consideration and advice and may so refer the case on appeal from any punishment imposed under subsection B of this section.

G. The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under this section. The fact that a disciplinary punishment has been enforced may be shown by the accused at trial, and if shown shall be considered in determining the measure of punishment to be adjudged if there is a finding of guilty.

H. The adjutant general, by rule, may prescribe the form of records to be kept of proceedings under this section and may also prescribe that certain categories of those proceedings shall be in writing.

Article 4 Court-Martial Jurisdiction

§ 26-1016 Courts-martial; classifications

The three kinds of courts-martial in the national guard are:

General courts-martial, consisting of one of the following:

(a) A military judge and not less than five members.

(b) Only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed only of a military judge and the military judge approves.

A special courts-martial, consisting of one of the following:

(a) Not less than three members.

(b) A military judge and not less than three members.

(c) Only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in paragraph 1, subdivision (b) requests.

Summary courts-martial, consisting of one commissioned officer.

§ 26-1017 Jurisdiction of courts-martial; in general

The national guard has court-martial jurisdiction over all persons subject to this chapter. The exercise of jurisdiction over personnel of another branch shall be in accordance with rules adopted by the governor.

§ 26-1018 Jurisdiction of general courts-martial

Subject to section 26-1017, general courts-martial have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter and, under limitations as the governor prescribes, may sentence convicted persons to any combination of the following:

A fine of not more than three hundred sixty-five dollars.
Forfeiture of pay and allowances.
A reprimand.
Dismissal or dishonorable discharge.
Reduction of a noncommissioned officer to the ranks.
Confinement of not more than three hundred sixty-five days.

§ 26-1019 Jurisdiction of special courts-martial

Subject to section 26-1017, special courts-martial have jurisdiction to try persons subject to this chapter, except commissioned officers, for any offense made punishable by this chapter and have the same powers of punishment as a general court-martial, except that a fine imposed by a special court-martial shall not be more than one hundred dollars for a single offense.

§ 26-1020 Jurisdiction of summary courts-martial

Subject to section 26-1017, summary courts-martial have jurisdiction to try persons subject to this chapter, except officers and candidates, for any offense made punishable by this chapter. A person with respect to whom summary courts-martial have jurisdiction shall not be brought to trial before a summary court-martial if the person objects. If objection to trial by summary courts-martial is made by an accused, trial may be ordered by special or general court-martial as may be appropriate. Under limitations that the governor prescribes, summary courts-martial may sentence an offender to any combination of the following:

Forfeiture of two-thirds pay and allowances for one month.
Reduction of a noncommissioned officer to the ranks.
A fine of not more than one hundred dollars for each offense.

§ 26-1021 Jurisdiction of courts-martial not exclusive

A. The provisions of this chapter conferring jurisdiction on courts-martial do not deprive any other courts of this state of concurrent jurisdiction with respect to offenders or offenses that by statute may be tried by those courts.

B. Instead of imposing a fine, a court-martial may sentence an offender to confinement for not more than one day for each dollar of fine authorized.

Article 5 Composition of Courts-Martial

§ 26-1022 Convening of general courts-martial

General courts-martial may be convened by the governor, the adjutant general or any other commanding officer in the national guard if empowered by the governor.

§ 26-1023 Convening of special courts-martial

A. Special courts-martial may be convened by any person who may convene a general court-martial, any general officer in command or the commanding officer in charge of any other command if empowered by the adjutant general.

B. If any convening officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by such authority if considered advisable by him.

§ 26-1024 Convening of summary courts-martial

A. Summary courts-martial may be convened by any person who may convene a general or special court-martial, the commanding officer of a brigade, regiment, detached battalion or corresponding unit of the army national guard, the commanding officer of a wing, group or separate squadron of the air national guard or the commanding officer or officer in charge of any other command if empowered by the adjutant general.

B. If only one commissioned officer is present with a command or detachment he shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases brought before him. Summary courts-martial may be convened in any case by superior competent authority if considered desirable by him.

§ 26-1025 Service on courts-martial

A. Any commissioned officer in the national guard is eligible to serve on all courts-martial for the trial of any person who is brought before such courts for trial.

B. Any warrant officer in the national guard is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who is brought before such courts for trial.

C. Any enlisted member of the national guard who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of the national guard who is brought before such courts for trial but shall serve as a member of a court only if, before the conclusion of a session called by the military judge under section 26-1039, subsection A, before trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested in writing that enlisted members serve on it. After such a request, the accused shall not be tried by a general or special court-martial which does not include enlisted members of at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement and append it to the record stating why they could not be obtained. In this subsection, "unit" means any regularly organized body of the national guard not larger than a company or battery or a body corresponding to a company or battery.

D. If it can be avoided, a member of the national guard shall not be tried by a court-martial with any member who is junior to him in rank or grade. If convening a court-martial, the convening authority shall choose members of the national guard who, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service and judicial temperament. A member of the national guard is not eligible to serve as a member of a general or special court-martial if he is the accuser or a witness for the prosecution or has acted as an investigating officer or counsel in the case.

E. Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. Under such rules as the adjutant general prescribes, the convening authority may delegate his authority under this subsection to his staff judge advocate or legal officer or to any other principal assistant.

§ 26-1026 Military judge of a general or special court-martial

A. A military judge shall be detailed to each general court-martial. Subject to rules of the adjutant general, a military judge may be detailed to any special court-martial. The adjutant general shall adopt rules providing for the manner in which military judges are detailed for the courts-martial and for the persons who are authorized to detail military judges for the courts-martial. The military judge shall preside over each open session of the court-martial to which the military judge has been detailed.

B. A military judge must be a member in good standing of the state bar of Arizona and a current or former member of the United States armed forces or the armed forces of this state who is appointed as a military judge by the governor after certification by the state judge advocate as having met the qualifications.

C. Before appointment by the governor, a prospective military judge shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

D. The military judge of a general court-martial shall be designated by the state judge advocate, or the state judge advocate's designee, for detail in accordance with rules adopted under subsection A of this section. Unless the court-martial was convened by the governor, neither the convening authority nor any member of the convening authority's staff shall prepare or review any report concerning the effectiveness, fitness or efficiency of the military judge detailed, which relates to the military judge's performance of duty as a military judge. A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial may perform duties of a judicial or nonjudicial nature other than those relating to the officer's primary duty as a military judge of a general court-martial if the duties are assigned to the officer by or with the approval of the state judge advocate or the state judge advocate's designee.

E. A person is not eligible to act as military judge in a case if the person is the accuser or a witness or has acted as an investigating officer or a counsel in the same case.

F. The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel and defense counsel, and the military judge may not vote with the members of the court.

§ 26-1027 Detail of trial counsel and defense counsel

A. Trial counsel and defense counsel shall be detailed for each general and special court-martial. Assistant trial counsel and assistant and associate defense counsel may be detailed for each general and special court-martial. The adjutant general shall prescribe rules providing for the manner in which counsel are detailed for such courts-martial and for the persons who are authorized to detail counsel for such courts-martial. No person who has acted as investigating officer, military judge or court member in any case may act later as trial counsel, as assistant trial counsel or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense nor may any person who has acted for the defense act later in the same case for the prosecution.

B. Trial counsel or defense counsel detailed for a general court-martial shall be a judge advocate and certified as competent to perform such duties by the state judge advocate.

C. In the case of a special court-martial:

The accused shall be afforded the opportunity to be represented at the trial by counsel having the qualifications prescribed under subsection B unless counsel having such qualifications cannot be obtained because of physical conditions or military exigencies. If counsel having such qualifications cannot be obtained, the court may be convened and the trial held but the convening authority shall make a detailed written statement and append it to the record stating why counsel with such qualifications could not be obtained.
If the trial counsel is qualified to act as counsel before a general court-martial, the defense counsel detailed by the convening authority shall be a person similarly qualified.
If the trial counsel is a judge advocate or a member of the bar of a federal court or the highest court of a state, the defense counsel detailed by the convening authority shall be a person qualified pursuant to paragraph 1 or 2.

§ 26-1028 Detail or employment of reporters and interpreters

Under such rules as the adjutant general prescribes, the convening authority of a court-martial, military commission or court of inquiry shall detail or employ qualified court reporters who shall record the proceedings of and testimony taken before that court or commission. Under similar rules the convening authority of a court-martial or court of inquiry may detail or employ interpreters to interpret for the court.

§ 26-1029 Absent and additional members

A. A member of a general or special court-martial shall not be absent or excused after the court has been assembled for the trial of the accused unless as a result of a challenge by the military judge for physical disability or other good cause or by order of the convening authority for good cause.

B. If a general court-martial, other than a general court-martial composed of a military judge only, is reduced below five members, the trial shall not proceed unless the convening authority details new members sufficient in number to provide not fewer than five members. The trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused and counsel for both sides.

C. If a special court-martial, other than a special court-martial composed of a military judge only, is reduced below three members, the trial shall not proceed unless the convening authority details new members sufficient in number to provide not fewer than three members. The trial shall proceed with the new members present as if no evidence had previously been introduced at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation is read to the court in the presence of the military judge, if any, the accused and counsel for both sides.

D. If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, as a result of a challenge or for other cause, the trial shall proceed, subject to any applicable conditions of section 26-1016, paragraph 1, subdivision (b) and paragraph 2, subdivision (c) after the detail of a new military judge as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a stipulation is read in court in the presence of the new military judge, the accused and counsel for both sides.

Article 6 Pretrial Procedure

§ 26-1030 Charges and specifications

A. Charges and specifications shall be signed by a person subject to this chapter under oath before a commissioned officer of the national guard authorized to administer oaths and shall state that the signer has personal knowledge of, or has investigated, the matters set forth and that they are true in fact to the best of his knowledge and belief.

B. After the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made in the interest of justice and discipline and the accused person shall be informed of the charges against him as soon as practicable.

§ 26-1031 Compulsory self-incrimination; prohibition

A. A person subject to this chapter shall not compel any person to incriminate himself or to answer any question if the answer would tend to incriminate him.

B. A person subject to this code shall not interrogate, or request any statement from an accused or a person suspected of an offense, without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

C. A person subject to this chapter shall not compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.

D. A statement obtained from any person in violation of this section, or through the use of coercion, unlawful influence or unlawful inducement, shall not be received in evidence against him in a trial by court-martial.

§ 26-1033 Forwarding of charges

If a person is held for trial by general court-martial the commanding officer, within eight days after the accused is ordered into arrest or confinement, if practicable, shall forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay.

§ 26-1034 Advice of staff judge advocate; reference for trial

A. Before directing the trial of any charge by general court-martial, the convening authority shall refer it to the staff judge advocate for consideration and advice. The convening authority shall not refer a specification under a charge to a general court-martial for trial unless he has been advised of all of the following in writing by the staff judge advocate:

The specification alleges an offense in this chapter.
The specification is warranted by the evidence indicated in the investigation and allied papers provided under section 26-1033.
A court-martial would have jurisdiction over the accused and the offense.

B. The advice of the staff judge advocate under subsection A of this section with respect to a specification under a charge shall include a written and signed statement by the staff judge advocate expressing his conclusions with respect to each matter set forth in subsection A of this section and recommending action that the convening authority take regarding the specification. If the specification is referred for trial, the recommendation of the staff judge advocate shall accompany the specification.

C. If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections and such changes in the charges and specifications as are needed to make them conform to the evidence may be made.

§ 26-1035 Service of charges

The trial counsel to whom court-martial charges are referred for trial shall serve on the accused a copy of the charges on which trial is to be had. In time of peace, a person, against his objection, shall not be brought to trial or be required to participate by himself or counsel in a session called by the military judge under section 26-1039, subsection A, in a general court-martial case within a period of five days after the service of charges on him or in a special court-martial within a period of three days after the service of the charges on him.

Article 7 Trial Procedure

§ 26-1036 Governor's rule making authority

A. Pretrial, trial and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the governor by rules which, so far as practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in this state but which may not be contrary to or inconsistent with this chapter.

B. All rules adopted under this chapter shall be as uniform as practicable and shall be in force and effect on approval by the governor.

§ 26-1037 Unlawfully influencing action of court

A. An authority convening a general, special or summary court-martial, or any other commanding officer, shall not censure, reprimand or admonish the court or any member, military judge or counsel, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. A person subject to this chapter shall not attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member of a tribunal in reaching the findings or sentence in any case, or the action of any convening, approving or reviewing authority with respect to judicial acts. This subsection does not apply to general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial or to statements and instructions given in open court by the military judge, president of a special court-martial or counsel.

B. In the preparation of an effectiveness, fitness or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a member of the national guard is qualified to be advanced in grade, in determining the assignment or transfer of a member of the national guard or in determining whether a member of the national guard should be retained, a person subject to this chapter, in preparing any such report, shall not consider or evaluate the performance of duty of any such member of a court-martial or give a less favorable rating or evaluation of any member of the national guard because of the zeal with which such member, as counsel, represented any accused before a court-martial.

§ 26-1038 Duties of trial counsel and defense counsel

A. The trial counsel of a general or special court-martial shall prosecute in the name of the state and shall prepare, under the direction of the court, the record of the proceedings.

B. The accused has the right to be represented in his defense before a general or special court-martial or at an investigation as provided in this section.

C. The accused may be represented by civilian counsel if provided by him.

D. The accused may be represented by military counsel detailed under section 26-1027 or by military counsel of his own selection if that counsel is reasonably available.

E. If the accused is represented by civilian counsel, military counsel shall act as associate counsel unless excused at the request of the accused.

F. Except as provided by subsection G of this section, if the accused is represented by military counsel of his own selection, any military counsel detailed shall be excused.

G. The accused is not entitled to be represented by more than one military counsel. However, the person authorized under rules adopted under section 26-1027 to detail counsel in his sole discretion:

May detail additional military counsel as assistant defense counsel.
If the accused is represented by military counsel of his own selection, may approve a request from the accused that military counsel detailed act as associate defense counsel.

H. The adjutant general, by rule, shall define "reasonably available" for the purpose of subsection D of this section and establish procedures for determining whether the military counsel selected by an accused is reasonably available. These rules shall not prescribe any limitation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused is from a component of the national guard other than the component of which the accused is a member. To the maximum extent practicable, these rules shall be consistent with the regulations governing the military forces of the United States.

I. In any court-martial proceeding resulting in a conviction, the defense counsel may:

Forward for attachment to the record of proceedings a brief of those matters he determines should be considered in behalf of the accused on review, including any objection to the contents of the record which he considers appropriate.
Assist the accused in the submission of any matter under section 26-1060.
Take other action authorized by this chapter.

J. Under the direction of the trial counsel or if he is qualified to be a trial counsel, an assistant trial counsel of a general court-martial may perform any duty imposed by law, rule or the custom of the service on the trial counsel of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel.

K. Under the direction of the defense counsel or if he is qualified to be the defense counsel, an assistant defense counsel of a general or special court-martial may perform any duty imposed by law, rule or the custom of the service on counsel for the accused.

§ 26-1039 Sessions

A. At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge, subject to section 26-1035, may call the court into session without the presence of the members but conducted in the presence of the accused, the defense counsel and the trial counsel and as part of the record, for the purpose of:

Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty.
Hearing and ruling on any matter which may be ruled on by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the court.
If permitted by rules of the adjutant general, holding the arraignment and receiving the pleas of the accused.
Performing any other procedural function which may be performed by the military judge and which does not require the presence of the members of the court.

B. When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel and, in cases in which a military judge has been detailed to the court, the military judge.

§ 26-1040 Continuances

The military judge or a court-martial without a judge, for reasonable cause, may grant a continuance to any party for such time, and as often, as is just.

§ 26-1041 Challenges

A. The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge, or if none, the court, shall determine the relevance and validity of challenges for cause and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.

B. Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge may not be challenged except for cause.

§ 26-1042 Oaths

A. Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant or associate defense counsel, reporters and interpreters shall take an oath to perform their duties faithfully. The form of the oath, the time and place of taking the oath, the manner of recording the oath and whether the oath shall be taken for all cases in which these duties are to be performed or for a particular case shall be as prescribed in rules of the adjutant general. The rules may provide that an oath to perform faithfully duties as a military judge, trial counsel, assistant trial counsel, defense counsel or assistant or associate defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty, and if such an oath is taken it need not again be taken at the time the judge advocate, or other person, is detailed to that duty.

B. Each witness before a court-martial shall be examined on oath.

§ 26-1043 Statute of limitations

A. Except as otherwise provided in this article, a person charged with an offense is not liable to be tried by court-martial or punished under section 26-1015 if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under section 26-1015.

B. Periods in which the accused was absent from territory in which the state has the authority to apprehend him, was in the custody of civil authorities or was in the hands of the enemy shall be excluded in computing the period of limitation prescribed in this section.

§ 26-1044 Former jeopardy

A. No person, without his consent, may be tried a second time for the same offense.

B. No proceeding in which an accused has been found guilty by court-martial on any charge or specification is a trial in the sense of this section until the finding of guilt becomes final after review of the case has been fully completed.

C. A proceeding in which, after introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial for purposes of this article.

§ 26-1045 Pleas of the accused

A. If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.

B. With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification, if permitted by rules of the adjutant general, may be entered immediately without vote. This finding constitutes the finding of the court unless the plea of guilty is withdrawn before announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

§ 26-1046 Opportunity to obtain witnesses and other evidence

The trial counsel, the defense counsel and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with rules the governor adopts.

§ 26-1047 Refusal to appear or testify

Any person who has been duly subpoenaed to appear as a witness before a court-martial, military commission, court of inquiry or other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission or board, or who has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending the courts of the state and who willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce, is in contempt of court and may be punished in the same manner as if the contempt were committed before civil courts of this state.

§ 26-1048 Contempt

A court-martial may punish any person for contempt who uses any menacing word, sign or gesture in its presence or who disturbs its proceedings by any riot or disorder. The punishment shall not exceed confinement for thirty days or a fine of one hundred dollars, or both.

§ 26-1049 Depositions

A. At any time after charges have been signed as provided in section 26-1030, any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such an authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.

B. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.

C. Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the state or by the laws of the place where the deposition is taken to administer oaths.

D. A duly authenticated deposition taken on reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape or similar material, may be played in evidence before any military court in any case, or in any proceeding before a court of inquiry or military board, if one or more of the following applies:

The witness resides or is not within the state in which the court or board is ordered to sit, or is more than one hundred miles from the place of trial or hearing.
The witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process or other reasonable cause is unable or refuses to appear and testify in person at the place of trial or hearing.
The present whereabouts of the witness is unknown.

§ 26-1050 Admissibility of records of courts of inquiry

A. In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, if otherwise admissible under the rules of evidence, may be read in evidence by any party before a court-martial or military commission if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence.

B. This testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.

C. This testimony may also be read in evidence before a court of inquiry or a military board.

§ 26-1051 Voting and rulings

A. Voting by members of a general or special court-martial on the findings and on the sentence, and by members of a court-martial without a military judge on questions of challenge, shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall immediately announce the result of the ballot to the members of the court.

B. The military judge and, except for questions of challenge, the president of a court-martial without a military judge shall rule on all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge on any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a court-martial without a military judge on any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge or the president of a court-martial without a military judge may change his ruling at any time during the trial. Unless the ruling is final, if any member objects, the court shall be cleared and closed and the question decided by a voice vote as provided in section 26-1052, beginning with the junior in rank.

C. Before a vote is taken on the findings, the military judge or the president of a court-martial without a military judge, in the presence of the accused and counsel, shall instruct the members of the court as to the elements of the offense and charge them:

That the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt.
That, in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted.
That, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt.
That the burden of proof to establish the guilt of the accused beyond reasonable doubt is on this state.

D. Subsections A, B and C of this section do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and in addition on request shall find the facts specially. If an opinion or memorandum of decision if filed, it is sufficient if the findings of fact appear in the opinion or memorandum of decision.

§ 26-1052 Number of votes required

A. A person shall not be convicted of any offense except as provided in section 26-1045 or by the concurrence of two-thirds of the members present at the time the vote is taken.

B. All sentences shall be determined by the concurrence of two-thirds of the members present at the time the vote is taken.

C. All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused's sanity is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.

§ 26-1053 Announcement of action

A court-martial shall announce its findings and sentence to the parties as soon as they are determined.

§ 26-1054 Record of trial

A. Each general court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his death, disability or absence, it shall be authenticated by the signature of the trial counsel or by that of a member if the trial counsel is unable to authenticate it by reason of his death, disability or absence. In a court-martial consisting of only a military judge the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this subsection.

B. Each special and summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner required by rule the governor adopts.

C. A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated.

Article 8 Sentences

§ 26-1055 Sentences; reduction in enlisted grade on approval

A. Unless otherwise provided in rules prescribed by the adjutant general, a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes a dishonorable or bad conduct discharge, confinement or hard labor without confinement reduces that member to pay grade E-1, effective on the date of the approval.

B. If the sentence of a member who is reduced in pay grade under subsection A is set aside or disapproved, or as finally approved, does not include any punishment named in subsection A, the rights and privileges of which he was deprived because of the reduction shall be restored to him and he is entitled to the pay and allowances to which he would have been entitled for the period the reduction was in effect had he not been so reduced.

C. A sentence of dismissal or dishonorable discharge shall not be executed until it is approved by the governor.

§ 26-1056 Maximum limits

The punishment which a court-martial may direct for an offense shall not exceed the limits the governor prescribes for the offense.

§ 26-1057 Effective date of sentences

A. A forfeiture shall not extend to any pay or allowances accrued before the date on which the sentence is approved by a person acting under section 26-1060.

B. Any period of confinement included in a sentence of a court-martial begins to run from the date ordered by the court-martial pursuant to 26-208, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.

C. All other sentences of courts-martial are effective on the date they are ordered executed.

D. On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority, or if the accused is no longer under his jurisdiction, the adjutant general, may in his sole discretion defer service of the sentence to confinement. The deferment terminates when the sentence is ordered executed. The deferment may be rescinded at any time by the officer who granted it, or if the accused is no longer under his jurisdiction, by the adjutant general.

§ 26-1058 Execution of confinement

A. A sentence of confinement adjudged by a military court, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the forces of the national guard or in any jail, penitentiary or prison. Persons confined in a jail, penitentiary or prison are subject to the same discipline and treatment as persons confined or committed to the jail, penitentiary or prison by the courts of this state or of any political subdivision.

B. The omission of the words "hard labor" from any sentence or punishment of a court-martial adjudging confinement does not deprive the authority executing that sentence or punishment of the power to require hard labor as a part of the punishment.

C. The keepers, officers and wardens of city or county jails and of other jails, penitentiaries or prisons designated by the governor shall receive persons ordered into confinement before trial and persons committed to confinement by a military court and shall confine them according to law. A keeper, officer or warden shall not require payment of any fee or charge for receiving or confining a person. Confinement orders shall be signed by trial counsel.

Article 9 Post-Trial Procedure and Review of Courts-Martial

§ 26-1059 Error of law; lesser included offense

A. A finding or sentence of a court-martial shall not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

B. Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, any part of the finding that includes a lesser included offense.

§ 26-1060 Action by the convening authority

A. After a trial by court-martial, the record shall be forwarded to the convening authority, as reviewing authority, and action on the record may be taken by the person who convened the court, a commissioned officer commanding for the time being, a successor in command or the governor.

B. The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. Under rules of the adjutant general, a commissioned officer commanding for the time being, a successor in command or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.

C. Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required, but such person, in his sole discretion, may dismiss any charge or specification by setting aside a finding of guilty or change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.

D. Before acting under this section on any general court-martial case or any special court-martial case that includes a bad conduct discharge, the convening authority or other person taking action under this section shall obtain and consider the written recommendation of the staff judge advocate. The convening authority or other person taking action under this section shall refer the record of trial to his staff judge advocate, and the staff judge advocate shall use the record in the preparation of his recommendation. The recommendation of the staff judge advocate or legal officer shall include matters that the governor prescribes by rule and shall be served on the accused, who shall have ten days from the date of receipt in which to submit any matter in response. The convening authority or other person taking action under this section, for good cause, may extend that period for up to an additional twenty days. Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object.

E. The convening authority or other person taking action under this section, in his sole discretion, may order a proceeding in revision or a rehearing.

F. A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. A proceeding in revision shall not:

Reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty.
Reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of this chapter.
Increase the severity of some article of the sentence unless the sentence prescribed for the offense is mandatory.

G. A rehearing may be ordered by the convening authority or other person taking action under this section if he disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not order a rehearing, he shall dismiss the charges. A rehearing as to the findings may not be ordered if there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.

§ 26-1061 Withdrawal of appeal

The accused may withdraw an appeal at any time.

§ 26-1062 Appeal by the state

A. In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the state may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specification or which excludes evidence that is substantial proof of a fact material in the proceeding. The state shall not appeal an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification.

B. An appeal of an order or ruling shall not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within seventy-two hours after the order or ruling. The notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one which excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.

C. An appeal under this section shall be diligently prosecuted by trial counsel.

D. An appeal under this section shall be forwarded by a means prescribed under rules of the governor directly to the Arizona court of military appeals and, if practicable, has priority over all other proceedings before that court. In ruling on an appeal under this section, the Arizona court of military appeals may act only with respect to matters of law.

E. Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.

§ 26-1063 Rehearings

Each rehearing under this chapter shall take place before a court-martial composed of members who are not members of the court-martial which first heard the case. On a rehearing the accused may not be tried for any offense of which he was found not guilty by the first court-martial, and a sentence in excess of or more severe than the original sentence shall not be imposed, unless the sentence is based on a finding of guilty of an offense not considered on the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes his plea with respect to the charges or specifications on which the pretrial agreement was based, or otherwise does not comply with the pretrial agreement, the sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.

§ 26-1064 Review by judge advocate

A. Each case in which there has been a finding of guilty that is not reviewed under section 26-1067 shall be reviewed by a judge advocate under rules of the adjutant general. A judge advocate shall not review a case under this subsection if he has acted in the same case as an accuser, investigating officer, member of the court, military judge or counsel or has otherwise acted on behalf of the prosecution or defense. The judge advocate's review shall be in writing and shall contain the following:

Conclusions as to whether the court had jurisdiction over the accused and the offense, whether the charge and specification stated an offense and whether the sentence was within the limits prescribed as a matter of law.
A response to each allegation of error made in writing by the accused.
If the case is sent for action under subsection B of this section, a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.

B. The record of trial and related documents in each case reviewed under subsection A of this section shall be sent for action to the person exercising general court-martial jurisdiction over the accused at the time the court was convened or to that person's successor in command if the judge advocate who reviews the case recommends corrective action, if the sentence approved includes a dismissal, a bad conduct or dishonorable discharge or confinement for more than four months or if such action is otherwise required by rules of the adjutant general.

C. The person to whom the record of trial and related documents are sent under subsection B of this section may:

Disapprove or approve the findings or sentence, in whole or in part.
Remit, commute or suspend the sentence in whole or in part.
Except if the evidence was insufficient at the trial to support the findings, order a rehearing on the findings or on the sentence, or both.
Dismiss the charges.

D. If a rehearing is ordered but the convening authority finds a rehearing impracticable, he shall dismiss the charges.

§ 26-1065 Disposition of records

Except as otherwise required by this chapter, all other records of trial and related documents shall be transmitted and disposed of as the adjutant general prescribes by rule.

§ 26-1067 Court of military appeals; members; terms; compensation; duties; review; procedures

A. The Arizona court of military appeals is established and is located for administrative purposes only in the department of emergency and military affairs. The court shall consist of five judges appointed by the governor on the recommendation of the adjutant general with the advice of the state judge advocate for a term of six years. Initial appointments shall be staggered. The term of office for all successor judges is six years, but any judge appointed to fill a vacancy occurring before the expiration of the term for which the judge's predecessor was appointed shall be appointed only for the unexpired term of the predecessor. Not more than three judges of the court may be appointed from the same political party. Judges may succeed themselves in office. A person is eligible for appointment to this court who, in addition to the requirements of article VI, section 22, Constitution of Arizona, has at least five years' experience as a judge advocate in the national guard or armed forces of the United States.

B. Before appointment by the governor, a prospective judge shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. The governor shall designate one of the judges to act as chief judge. The chief judge has precedence and shall preside at any session the judge attends. The other judges have precedence and shall preside according to the seniority of their appointments. Judges whose commissions bear the same date have precedence according to seniority in age.

D. The court shall sit in panels of no less than three judges to be selected by the presiding judge.

E. Judges of the Arizona court of military appeals may be removed by the governor, on notice and hearing, for neglect of duty or malfeasance in office or for mental or physical disability but for no other cause.

F. The judges of the Arizona court of military appeals, while actually sitting in review of a matter placed under their jurisdiction by this chapter, and while traveling to and from such session, are eligible to receive compensation equal to that compensation prescribed for the judges of the Arizona court of appeals, as provided by law, together with the actual cost of meals, lodging and travel expense or the amount set by law if private transportation is utilized. Payment shall be made from monies appropriated to the national guard.

G. The Arizona court of military appeals has exclusive appellate and special action jurisdiction, in appeals filed by this state pursuant to section 26-1062, or on petition of an accused, to hear and review the record in all general and special court-martial cases and all summary court-martial cases in which a sentence of confinement has been adjudged.

H. The accused has thirty calendar days from the time of receipt of actual notice of the final action on the case by the convening authority under section 26-1060 to petition the Arizona court of military appeals for review. The court shall act on a petition within sixty calendar days after receipt. If the court fails or refuses to grant a petition for review, the final action of the convening authority is deemed approved. Notwithstanding any other provision of this chapter, if the court grants a hearing of an appeal, the court may grant a stay or defer service of the sentence of confinement or any other punishment until the court's final decision on the case.

I. The Arizona court of military appeals may act only with respect to the findings and sentence as finally approved and ordered executed by the convening authority.

J. If the Arizona court of military appeals sets aside the findings and sentence, it may order a rehearing, except if the setting aside is based on lack of sufficient evidence in the record to support the findings. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed. After the Arizona court of military appeals has acted on the case, the record shall be returned to the state judge advocate who shall notify the convening authority of the court's decision. If further action is required, the state judge advocate shall instruct the convening authority to take action in accordance with that decision. If the court has ordered a rehearing, but the convening authority finds a rehearing impracticable, the state judge advocate may dismiss the charges.

K. Decisions of the Arizona court of military appeals are subject to review by the Arizona supreme court by a petition for review in accordance with the Arizona rules of criminal procedure and the rules of the supreme court of Arizona.

L. With monies appropriated to the national guard, the adjutant general may employ persons necessary to assist the Arizona court of military appeals in its duties.

M. The adjutant general with the approval of the governor shall adopt rules necessary for the administration of the court. The accused has a right to appointed military counsel for an appeal.

§ 26-1070 Appellate counsel; civilian counsel

A. The trial counsel and defense counsel of courts-martial shall serve in the capacity of appellate counsel on an appeal authorized by this chapter.

B. The accused may be represented by civilian counsel at his own expense. If the defense or trial counsel is unable to perform his duties because of illness or other disability, the convening authority shall appoint a qualified trial or defense counsel to continue the proceedings.

§ 26-1071 Suspension of sentence

The convening authority or other person acting on the case under section 26-1060 may suspend the execution of any sentence or part of a sentence.

§ 26-1072 Vacation of suspension

A. Before the vacation of the suspension of a special court-martial sentence which includes a bad conduct discharge or a dishonorable discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The probationer may be represented at the hearing by counsel.

B. The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If he vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed. The vacation of the suspension of a dismissal or a dishonorable discharge is not effective until approved by the governor.

C. The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.

§ 26-1073 Petition for a new trial

At any time within two years after approval by the convening authority of a court-martial sentence, the accused may petition the state judge advocate for a new trial on the grounds of newly discovered evidence or fraud on the court. If the accused's case is pending before the Arizona court of military appeals, the state judge advocate shall refer the petition to the court for action. Otherwise the state judge advocate shall act on the petition.

§ 26-1074 Remission and suspension

A. The convening authority may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the governor.

B. For good cause, the adjutant general may substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

§ 26-1075 Restoration

A. Under such rules as the governor adopts, all rights, privileges and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed on 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 a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of this enlistment.

C. If a previously executed sentence of dismissal is not imposed on a new trial, the adjutant general shall substitute a form of discharge authorized for administrative issue, and the commissioned officer dismissed by the sentence may be reappointed by the governor alone to such commissioned grade and with such rank as in the opinion of the governor that former officer would have attained if he had not been dismissed. The reappointment of such a former officer may be made if a position vacancy is available under applicable tables of organization. All time between the dismissal and the reappointment shall be considered as actual service for all purposes.

§ 26-1076 Finality of proceedings, findings and sentences

A. The appellate review of records of trial provided by this chapter, the proceedings, findings and sentences of courts-martial as approved, reviewed or affirmed as required by this chapter and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review or affirmation as required by this chapter are final and conclusive.

B. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding on all departments, courts, agencies and officers of this state, subject only to action on a petition for a new trial as provided in section 26-1073.

Article 10 Offenses

§ 26-1077 Principals

Any person who is punishable under this chapter and commits an offense or who aids, abets, counsels, commands or procures its commission or who causes an act to be done which if directly performed by him would be punishable by this chapter is a principal.

§ 26-1078 Accessory after the fact

Any person who is subject to this chapter and who, knowing that an offense punishable by this chapter has been committed, receives, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment shall be punished as a court-martial may direct.

§ 26-1079 Conviction of lesser included offense

An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included in the charge.

§ 26-1080 Attempts

A. An act done with specific intent to commit an offense under this chapter and amounting to more than mere preparation and tending, even though failing to effect its commission, is an attempt to commit that offense.

B. Any person who is subject to this chapter and who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed.

C. Any person who is subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

§ 26-1081 Conspiracy

Any person who is subject to this chapter and conspires with any other person to commit an offense under this chapter, if one or more of the conspirators does an act to effect the object of the conspiracy, shall be punished as a court-martial may direct.

§ 26-1082 Solicitation

A. Any person who is subject to this chapter and who solicits or advises another or others to desert in violation of section 26-1085 or mutiny in violation of section 26-1094, if the offense solicited or advised is attempted or committed, shall be punished with the punishment provided for the commission of the offense, but if the offense solicited or advised is not committed or attempted, he shall be punished as a court-martial may direct.

B. Any person who is subject to this chapter and who solicits or advises another or others to commit an act of misbehavior in violation of section 26-1099 or sedition in violation of section 26-1094, if the offense solicited or advised is committed, shall be punished with the punishment provided for the commission of the offense, but if the offense solicited or advised is not committed, he shall be punished as a court-martial may direct.

§ 26-1083 Fraudulent enlistment, appointment or separation

Any person who procures his own enlistment or appointment in the national guard by knowingly false representation or deliberate concealment as to his qualifications for the enlistment or appointment and receives pay or allowances or procures his own separation from the national guard by knowingly false representation or deliberate concealment as to his eligibility for that separation shall be punished as a court-martial may direct.

§ 26-1084 Unlawful enlistment, appointment or separation

Any person who is subject to this chapter and who effects an enlistment or appointment in or a separation from the national guard of any person who is known to him to be ineligible for that enlistment, appointment or separation because it is prohibited by law, rule or order shall be punished as a court-martial may direct.

§ 26-1085 Desertion

A. Any member of the national guard who without authority goes or remains absent from his unit, organization or place of duty with intent to remain away permanently, quits his unit, organization or place of duty with intent to avoid hazardous duty or to shirk important service or without being regularly separated from the national guard enlists or accepts an appointment in the same or another one of the forces in the national guard without fully disclosing the fact that he has not been regularly separated is guilty of desertion.

B. Any commissioned officer of the national guard who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away permanently is guilty of desertion.

C. Any person who is found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.

§ 26-1086 Absence without leave

Any member of the national guard who, without authority, fails to go to his appointed place of duty at the time prescribed, goes from that place or absents himself or remains absent from his unit, organization or place of duty at which he is required to be at the time prescribed shall be punished as a court-martial may direct.

§ 26-1087 Missing movement

Any person who is subject to this chapter and who through neglect or design misses the movement of a ship, aircraft or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct.

§ 26-1088 Contempt toward officials

Any commissioned officer who uses contemptuous words against the president of the United States, Congress, the governor or the legislature, or the governor or legislature of any state, territory, commonwealth or possession in which he is on duty or present, shall be punished as a court-martial may direct.

§ 26-1089 Disrespect toward superior commissioned officer

Any person who is subject to this chapter and who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial may direct.

§ 26-1090 Assaulting or willfully disobeying superior commissioned officer

Any person who is subject to this chapter and who strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office or willfully disobeys a lawful command of his superior commissioned officer shall be punished as a court-martial may direct.

§ 26-1091 Insubordinate conduct toward warrant officer or noncommissioned officer

Any warrant officer or enlisted member who strikes or assaults a warrant officer or noncommissioned officer while that officer is in the execution of his office, willfully disobeys the lawful order of a warrant officer or noncommissioned officer or treats with contempt or is disrespectful in language or deportment toward a warrant officer or noncommissioned officer while that officer is in the execution of his office shall be punished as a court-martial may direct.

§ 26-1092 Failure to obey order or rule

Any person who is subject to this chapter and who violates or fails to obey any lawful general order or rule having knowledge of any other lawful order issued by a member of the national guard, which it is his duty to obey, fails to obey the order or is derelict in the performance of his duties shall be punished as a court-martial may direct.

§ 26-1093 Cruelty and maltreatment

Any person who is subject to this chapter and who commits cruelty toward, or oppression or maltreatment of, any person who is subject to his orders shall be punished as a court-martial may direct.

§ 26-1094 Mutiny or sedition

A. Any person who is subject to this chapter and who:

With intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny.
With intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence or other disturbance against that authority is guilty of sedition.
Fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.

B. A person who is found guilty of attempted mutiny, mutiny, sedition or failure to suppress or report a mutiny or sedition shall be punished as a court-martial may direct.

§ 26-1095 Resistance, breach of arrest and escape

Any person who is subject to this chapter and who resists apprehension or breaks arrest or who escapes from custody or confinement shall be punished as a court-martial may direct.

§ 26-1096 Releasing prisoner without proper authority

Any person who is subject to this chapter and who, without proper authority, releases any prisoner committed to his charge, or who through neglect or design allows any such prisoner to escape, shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.

§ 26-1097 Unlawful detention

Any person who is subject to this chapter and who, except as provided by law, apprehends, arrests or confines any person shall be punished as a court-martial may direct.

§ 26-1098 Noncompliance with procedural rules

Any person who is subject to this chapter and who is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter or knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before, during or after trial of an accused shall be punished as a court-martial may direct.

§ 26-1099 Misbehavior in time of public danger; definition

A. Any person who is subject to this chapter and who in time of public danger does any of the following shall be punished as a court-martial may direct:

Runs away.
Shamefully abandons, surrenders or delivers up any command, unit, place or military property which it is his duty to defend.
Through disobedience, neglect or intentional misconduct endangers the safety of any such command, unit, place or military property.
Casts away his arms or ammunition.
Is guilty of cowardly conduct.
Quits his place of duty to plunder or pillage.
Causes false alarms in any command, unit or place under control of the armed forces.
Willfully fails to do his utmost to encounter, engage, capture or destroy any enemy troops, combatants, aircraft or other thing, which it is his duty to so encounter, engage, capture or destroy.
Does not afford all practicable relief and assistance to any troops, combatants, vessels or aircraft of the armed forces belonging to the United States, their allies, this state or any other state if engaged in battle.

B. For purposes of this section, "in time of public danger" means when serving pursuant to an emergency declared by the governor.

§ 26-1103 Captured or abandoned property

A. All persons who are subject to this chapter shall secure all public property taken for the service of this state and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody or control.

B. Any person who is subject to this chapter and who fails to carry out the duties prescribed in subsection A and who buys, sells, trades or in any way deals in or disposes of captured or abandoned property and he receives or expects any profit, benefit or advantage to himself or another directly or indirectly connected with himself or engages in looting or pillaging shall be punished as a court-martial may direct.

§ 26-1107 False official statements

Any person who is subject to this chapter and who, with intent to deceive, signs any false record, return, rule, order or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.

§ 26-1108 Military property; loss, damage, destruction or wrongful disposition

Any person who is subject to this chapter and who, without proper authority, sells or otherwise disposes of, willfully or through neglect damages, destroys or loses or willfully or though neglect suffers to be lost, damaged, sold or wrongfully disposed of any military property of the United States, of this state or of any other state shall be punished as a court-martial may direct.

§ 26-1109 Property other than military property; waste, spoilage or destruction

Any person who is subject to this chapter and who willfully or recklessly wastes, spoils or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States, this state or any other state shall be punished as a court-martial may direct.

§ 26-1110 Improper hazarding of vessel or aircraft

A. Any person who is subject to this chapter and who willfully and wrongfully hazards or allows to be hazarded any vessel or aircraft of the armed forces of the United States, of this state or of any other state shall suffer such punishment as a court-martial may direct.

B. Any person who is subject to this chapter and who negligently hazards or allows to be hazarded any vessel aircraft of the armed forces of the United States or of this state or any other state shall be punished as a court-martial may direct.

§ 26-1111 Drunken or reckless driving

Any person who is subject to this chapter and who operates any vehicle while drunk, or in a reckless or wanton manner, shall be punished as a court-martial may direct.

§ 26-1112 Drunk on duty

Any person who is subject to this chapter, other than a sentinel or lookout, and who is found drunk on duty shall be punished as a court-martial may direct.

§ 26-1113 Misbehavior of sentinel or lookout

Any sentinel or lookout who is found drunk or sleeping on his post or who leaves it before he is regularly relieved shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the offense is committed at any other time, by such punishment other than death as a court-martial may direct.

§ 26-1114 Dueling

Any person who is subject to this chapter and who fights or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the proper authority, shall be punished as a court-martial may direct.

§ 26-1115 Malingering

Any person who is subject to this chapter and who for the purpose of avoiding work, duty or service feigns illness, physical disablement, mental lapse or derangement or intentionally inflicts self-injury shall be punished as a court-martial may direct.

§ 26-1116 Riot or breach of peace

Any person who is subject to this chapter and who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct.

§ 26-1117 Provoking speeches or gestures

Any person who is subject to this chapter and who uses provoking or reproachful words or gestures towards any other person subject to this chapter shall be punished as a court-martial may direct.

§ 26-1118 Wrongful use and possession of controlled substances

A. Any person who is subject to this chapter and who wrongfully uses, possesses, manufactures, distributes, imports into this state, exports from this state or introduces into an installation, vessel, vehicle or aircraft used by or under the control of the armed forces of the United States, this state or any other state a substance described in subsection B shall be punished as a court-martial may direct.

B. The substances referred to in subsection A are the following:

Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid and marijuana and any compound or derivative of any of such substances.
Any substance not specified in paragraph 1 that is listed on a schedule of controlled substances prescribed by the president of the United States for the purposes of article 112A of the uniform code of military justice (10 United States Code section 912A).
Any other substance not specified in paragraph 1 or contained on a list prescribed by the president under paragraph 2 that is listed in schedules I through V of section 202 of the controlled substances act (21 United States Code section 812).

§ 26-1121 Larceny and wrongful appropriation

A. Any person who is subject to this chapter and who wrongfully takes, obtains or withholds, by any means, from the possession of the owner or of any other person any money, personal property or article of value of any kind:

With intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny.
With intent to temporarily deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation.

B. Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial may direct.

§ 26-1123 Forgery

Any person who is subject to this chapter and who, with intent to defraud, falsely makes or alters any signature to, or any part of, any writing which would, if genuine, apparently impose a legal liability on another or change his legal right or liability to his prejudice or utters, offers, issues or transfers such a writing, known by him to be so made or altered, is guilty of forgery and shall be punished as a court-martial may direct.

§ 26-1124 Making, drawing or uttering check, draft or order without sufficient monies; definition

Any person who is subject to this chapter and who for the procurement of any article or thing of value, with intent to defraud, or for the payment of any past due obligation, or for any other purpose, with intent to deceive, makes, draws, utters or delivers any check, draft or order for the payment of money on any bank or other depository, knowing at the time that the maker or drawer has not or will not have sufficient monies in, or credit with, the bank or other depository for the payment of that check, draft or order in full on its presentment, shall be punished as a court-martial may direct. The making, drawing, uttering or delivering by a maker or drawer of a check, draft or order, payment of which is refused by the drawee because of insufficient monies of the maker or drawer in the drawee's possession or control, is prima facie evidence of his intent to defraud or deceive and of his knowledge of insufficient monies in, or credit with, that bank or other depository, unless the maker or drawer pays the holder the amount due within five days after receiving notice, orally or in writing, that the check, draft or order was not paid on presentment. In this section, "credit" means an arrangement or understanding, express or implied, with the bank or other depository for the payment of that check, draft or order.

§ 26-1127 Extortion

Any person who is subject to this chapter and who communicates threats to another person with the intention to obtain anything of value or any acquittance, advantage or immunity is guilty of extortion and shall be punished as a court-martial may direct.

§ 26-1128 Assault

Any person who is subject to this chapter and who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.

§ 26-1131 Perjury

Any person who is subject to this chapter and who in a judicial proceeding or in a course of justice willfully and corruptly on a lawful oath, or in any form allowed by law to be substituted for an oath, gives any false testimony material to the issue or matter of inquiry or in any declaration, certificate, verification or statement under penalty of perjury as permitted under the laws of this state subscribes any false statement material to the issue or matter of inquiry is guilty of perjury and shall be punished as a court-martial may direct.

§ 26-1132 Frauds against the United States

Any person who is subject to this chapter and who does any of the following, on conviction, shall be punished as a court-martial may direct:

Knowing it to be false or fraudulent:

(a) Makes any claim against the United States, this state, any other state or any officer.

(b) Presents to any person in the civil or military service, for approval or payment, any claim against the United States or this state, any other state or any officer.

For the purpose of obtaining the approval, allowance or payment of any claim against the United States, this state, any other state or any officer:

(a) Makes or uses any writing or other paper knowing it to contain any false or fraudulent statements.

(b) Makes any oath to any fact or to any writing or other paper knowing the oath to be false.

(c) Forges or counterfeits any signature on any writing or other paper, or uses any such signature knowing it to be forged or counterfeited.

Having charge, possession, custody or control of any money, or other property of the United States, this state or any other state, furnished or intended for the armed forces, knowingly delivers to any person having authority to receive it any amount less than that for which he receives a certificate or receipt.
Being authorized to make or deliver any paper certifying the receipt of any property of the United States, this state or any other state, furnished or intended for the armed forces, makes or delivers to any person such writing without having full knowledge of the truth of the statement therein contained and with intent to defraud the United States, this state or any other state.

§ 26-1133 Conduct unbecoming an officer and a gentleman

Any commissioned officer or candidate who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.

§ 26-1134 General misconduct

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit on the national guard and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

Article 11 Miscellaneous Provisions

§ 26-1135 Courts of inquiry

A. Courts of inquiry may be convened to investigate any matter by any person authorized to convene a general court-martial or by any other person designated by the adjutant general for that purpose, whether or not the persons involved have requested such an inquiry.

B. A court of inquiry consists of three or more commissioned officers. For each court of inquiry the convening authority shall also appoint counsel for the court.

C. Any person who is subject to this chapter and whose conduct is subject to inquiry shall be designated as a party. Any person who is subject to this chapter and who has a direct interest in the subject of inquiry may be designated as a party on request to the court. Any person designated as a party shall be given due notice and may be present, may be represented by counsel, may cross-examine witnesses and may introduce evidence.

D. Members of a court of inquiry may be challenged by a party but only for cause stated to the court.

E. The members, counsel, reporter and interpreters of courts of inquiry shall take an oath to faithfully perform their duties.

F. Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts-martial.

G. Courts of inquiry shall make findings of fact but shall not express opinions or make recommendations unless required to do so by the convening authority.

H. Each court of inquiry shall keep a record of its findings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel.

§ 26-1137 Articles; explanation

This chapter shall be explained to a member at the time of his entrance in the national guard, or within thirty days thereafter. It shall be explained annually to each unit in the national guard. A complete text of this chapter and of the rules adopted by the governor shall be made available to any person in the national guard on his request for his personal examination.

§ 26-1138 Complaints of wrongs

Any member of the national guard who believes himself wronged by his commanding officer, and who, on application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the general officer in command over the officer against whom it is made. The general officer in command shall examine the complaint and take proper measures for redressing the wrong complained of, and he shall, as soon as possible, send to the adjutant general a true statement of that complaint and the proceedings on the complaint.

§ 26-1139 Redress of injuries to property

A. If a complaint is made to any commanding officer that willful damage has been done to the property of any person or that his property has been wrongfully taken by members of the national guard, under such rules as the adjutant general prescribes, he may convene a board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of that investigation, it has power to summon witnesses and examine them upon oath, to receive depositions or other documentary evidence and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer and in the amount approved by him shall be charged against the pay of the offenders. The order of the commanding officer directing charges authorized in this section is conclusive on any disbursing officer for the payment by him to the injured parties of the damages as assessed and approved.

B. If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just on the individual members who are shown to have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board.

§ 26-1140 Delegation by the governor

The governor may delegate any authority vested in him under this chapter and provide for the subdelegation of any such authority.