# Title 37 — Military

## Chapter 37-04 — Commissioned Officers

### § 37-04-01. Commissioned officers of national guard - Qualifications.

Officers of the national guard may not be commissioned as such unless they are at least
nineteen years of age and shall have been selected from the classes of persons having the
qualifications prescribed by federal law.
### § 37-04-02. Commissioned officer of national guard to be examined.

Any person appointed and commissioned an officer of the national guard shall successfully
pass such tests as to the person's physical, moral, and professional fitness as shall be
prescribed by federal law, and the examination to determine the person's qualifications for a
commission also shall be as prescribed by federal law.
### § 37-04-03. Officers commissioned by governor - Assigning or reassigning officers.

Officers must be commissioned by the governor, and each commission must designate the
arm or branch of service in which the officer named therein is commissioned. Officers must be
assigned or reassigned to duty in the various regiments or lesser separate organizations by the
immediate commander thereof.
### § 37-04-04. Oath required of commissioned officers in national guard.

Commissioned officers of the national guard of this state shall take and subscribe, in
substance, the following oath of office:
I, ______________, do solemnly swear that I will support and defend the Constitution of the
United States and the Constitution of North Dakota, against all enemies, foreign and
domestic; that I will bear true faith and allegiance to the same; that I will obey the orders of
the president of the United States and of the governor of the state of North Dakota; that I
make this obligation freely, without any mental reservation or purpose of evasion, and that I
will well and faithfully discharge the duties of the office of ______________ in the national
guard of the state of North Dakota upon which I am about to enter, so help me God.
### § 37-04-05. Bond of officer.

Repealed by S.L. 1983, ch. 389, § 2.
### § 37-04-06. Duties of officer to devolve upon officer next in rank upon absence or

disability.
The duties assigned to a designated officer by any provision of this title devolve, in case of
the absence or disability of such officer, upon the line officer next in rank who has been
designated by command of the officer named, except as otherwise provided in this title.
### § 37-04-07. Responsibility for efficiency.

The officer commanding the national guard may cause those under that officer's command
to perform any military duty, and that officer is responsible to the governor for the general
efficiency of the national guard and for the drill, instruction, small arms and artillery practice,
movements, operations, and care of the troops. Commanding officers of organizations are
responsible to their immediate commanders for the equipment, drill, instruction, movements,
and efficiency of their respective commands. All commissioned officers and enlisted personnel
are responsible to their immediate commanding officers for prompt and unhesitating obedience,
proper drill, and the preservation and proper use of the property of this state or of the
organization which is in their possession.
### § 37-04-08. Pay received by commissioned officers of the national guard.

Repealed by S.L. 2023, ch. 324, § 3.

### § 37-04-09. Expenses allowed officers and enlisted men of national guard.

Repealed by S.L. 2023, ch. 324, § 3.
### § 37-04-10. Allowances for commissioned officers.

Repealed by S.L. 1953, ch. 223, § 9.
### § 37-04-11. Pay of officers serving on boards, commissions, and courts.

Repealed by S.L. 2023, ch. 324, § 3.
### § 37-04-12. Pay and allowances allowed national guard officers assigned to duty with

regular army.
Repealed by S.L. 2023, ch. 324, § 3.
### § 37-04-13. Pay of officers having administrative functions.

Repealed by S.L. 2023, ch. 324, § 3.
### § 37-04-14. Resignation of commissioned officers.

Commissioned officers may resign in such manner and under such circumstances as may
be prescribed by federal regulations.
### § 37-04-15. Vacating commissions - Acquisition of reserve status.

A commission in the national guard may be vacated:
1. At any time when it is determined by an efficiency board as provided by federal
regulation that the officer holding the commission is no longer fit for service by reason
of the officer's moral character, capacity, or general fitness for service;
2. By resignation of the officer holding the commission;
3. By the absence of the officer without leave for a period of three months; or
4. Pursuant to the sentence of a court-martial.
Officers of the national guard who are rendered superfluous by the disbandment of their
organization must be disposed of as provided by federal law. An officer, upon application
therefor, may be placed in the reserve in such manner as may be authorized by federal law.
### § 37-04-16. Retirement and discharge of national guard officers.

Any officer of the national guard who has federal recognition removed due to age, as
proscribed by federal law, must be placed on the retired list by the governor. Any officer who has
served as such under a commission in the military service of this state for a continuous period of
eight years may be placed, at the officer's own request, upon the retired list with an advance in
grade and withdrawn from active service and command by the governor. A commissioned officer
must be withdrawn from active service and placed upon the retired list whenever the officer
becomes disabled and incapable of performing the duties of the officer's office. A commissioned
officer, upon the recommendation of the officer's commanding officer or of an inspecting officer,
must be placed by the governor upon the retired list whenever the officer becomes unfit or
incompetent for service and thereby incapable of performing the duties of the officer's office.
The governor, however, may not order the retirement of an officer until the provisions of section
guard caused by the operation of this section must be filled in the same manner as other
vacancies in the commissioned personnel are filled.
### § 37-04-17. Board appointed to determine disability, unfitness, or incompetency of

officers - Powers of board - Findings.
Before the governor shall make an order placing an officer on the retired list on the ground
that such officer is disabled, unfit, or incompetent, the governor shall appoint a board of not less
than five commissioned officers, one of whom must be a surgeon, to investigate and report on
the matter. Such board shall determine the facts as to the nature and cause of the incapacity of
the officer who appears to be disabled, unfit, or incompetent from any cause to perform military

service, and whose case shall be referred to it. Before entering upon the discharge of a
member's duties, each member of the board must be sworn to an honest and impartial
performance of the person's duties as a member of the board. No officer whose grade or
promotion would be affected by the decision of such board in any case that may come before it
may participate in the examination or decision in such case. The board has the powers of courts
of inquiry and courts-martial, and whenever it finds an officer incapacitated for active service, it
shall report such fact to the governor, stating the cause of incapacity, whether from disability,
unfitness, or incompetency. If the governor approves the finding of the board, the officer must be
placed upon the retired list as provided in this chapter. No officer may be placed upon the retired
list by the action of such board without having had a full and fair hearing before the board if,
upon due notice, that officer demands it. It is not necessary to refer any case for the action of
the board unless the officer designated to be placed upon the retired list, within twenty days
after being notified that the officer will be so retired, serves on the adjutant general a notice in
writing that the officer demands a hearing and examination before such board.
### § 37-04-18. Retired officer subject to orders of commander in chief only.

The officers on the retired list are subject to detail for duty only by orders from the
commander in chief, who shall cause to be issued such orders as the commander in chief
deems necessary detailing them for duty upon boards of officers for military purposes,
courts-martial, and courts of inquiry, and for such other military duties as in the commander in
chief's judgment may be advisable. If officers on the retired list are detailed for active duty other
than upon boards of officers, courts-martial, and courts of inquiry, they are entitled only to the
rank which properly belongs to the office, the duties of which they are detailed to perform. When
the duty ends, or the detail is canceled, the officer shall return again to the retired list with the
officer's former retired rank.
