Chapter 321

321.34 321.34 Examinations for promotion or appointments. The governor or adjutant general may order any person nominated or recommended for promotion or appointment in the national guard or state defense force to be examined by any competent officer or board of officers, designated in orders for that purpose, as to that person’s qualifications for the office to which that person is to be appointed or promoted. The governor or adjutant general may take action on the report of the examining officer or board of officers as he or she considers to be for the best interests of the national guard or state defense force. The governor or adjutant general may also require the person to take the physical examination provided for admission to the U.S. army or air force.

321.34 History History: 1983 a. 27; 1991 a. 316; 2007 a. 200 s. 105; Stats. 2007 s. 321.34.

321.35 321.35 Pay.

321.35(1) (1) Every officer and enlisted person on state active duty in the national guard shall receive the base pay, allowances, and, notwithstanding ss. 16.53 (12) (c) and (d) and 20.916 (8) and (9), travel expenses of an officer or enlisted person of equal rank in the corresponding branch of the U.S. armed forces.

321.35(2) (2) The governor may fix the pay of any member of the military staff of the governor, or other members of the national guard or state defense force for any special state active duty.

321.35(3) (3) The governor may order, with the member’s consent, to state active duty a member of his or her military staff who is a state employee. The assigned staff member shall receive the pay, but not the allowances, of an officer of equal grade in the U.S. armed forces.

321.35 History History: 1973 c. 279; 1975 c. 94 s. 91 (1); 1975 c. 382, 422; 1981 c. 35, 129; 1991 a. 316; 2003 a. 69; 2007 a. 200 s. 106; Stats. 2007 s. 321.35; 2013 a. 44; 2015 a. 189.

321.36 321.36 Rules of discipline. The applicable rules of discipline and regulations of the U.S. armed forces shall constitute the rules of discipline and the regulations of the national guard. The rules and uniform code of military justice established by Congress and the U.S. department of defense for the armed forces shall be adopted so far as they are applicable and consistent with the Wisconsin code of military justice for the government of the national guard. The system of instruction and the drill regulations prescribed for the different arms and corps of the armed forces of the U.S. shall be followed in the military instruction and practice of the national guard, and the use of any other system is forbidden.

321.36 History History: 2007 a. 200 s. 99; Stats. 2007 s. 321.36.

321.37 321.37 No discrimination. No person, otherwise qualified, may be denied membership in the national guard or state defense force because of sex, color, race, creed, or sexual orientation and no member of the national guard or state defense force may be segregated within the national guard or state defense force on the basis of sex, color, race, creed, or sexual orientation. Nothing in this section prohibits separate facilities for persons of different sexes with regard to dormitory accommodations, toilets, showers, saunas, and dressing rooms.

321.37 History History: 1975 c. 94; 1981 c. 112; 2003 a. 69; 2007 a. 200 s. 97; Stats. 2007 s. 321.37.

321.38 321.38 Decorations and awards. The adjutant general may prescribe decorations and awards for the national guard and the state defense force. The adjutant general shall adopt policies establishing the form and issuance of those decorations and awards.

321.38 History History: 1975 c. 189; 1981 c. 207; 1983 a. 27; 1987 a. 63 s. 13; 2003 a. 69; 2007 a. 200 s. 36; Stats. 2007 s. 321.38.

321.39 321.39 Call to state active duty.

321.39(1) (1) 

321.39(1)(a) (a) The governor may order into state active duty members of the national guard under the following circumstances:

321.39(1)(a)1. 1. In case of war, insurrection, rebellion, riot, invasion, terrorism, or resistance to the execution of the laws of this state or of the United States.

321.39(1)(a)2. 2. In the event of public disaster resulting from flood, fire, tornado, or other natural disaster.

321.39(1)(a)3. 3. If the governor declares a state of emergency relating to public health under s. 323.10.

321.39(1)(a)4. 4. In order to assess damage or potential damage and to recommend responsive action as a result of an event listed in subds. 1. to 3.

321.39(1)(a)5. 5. Upon application of any marshal of the United States, the president of any village, the mayor of any city, the chairperson of any town board, or any sheriff in this state.

321.39(1)(b) (b) If the governor is absent, or cannot be immediately communicated with, any of the persons listed in par. (a) 5. may, if the occasion is urgent, request assistance from the commander of any national guard unit. The commander shall obtain approval of the adjutant general before ordering the unit to provide assistance. If it is not feasible to obtain approval of the adjutant general, and the danger is great and imminent, the commander may order the unit to provide assistance without adjutant general approval. The order shall be delivered to every subordinate officer, who shall immediately communicate the substance of the order to the members of the unit. If a member cannot be found, the substance of the order, in writing, shall be left at the member’s place of residence with some person of suitable age and discretion, to whom the order’s contents shall be explained.

321.39(2) (2) 

321.39(2)(a) (a) Any commissioned officer or enlisted member of the national guard who fails to carry out orders or fails to appear at the time or place ordered as provided in sub. (1) shall be punished under the Wisconsin code of military justice.

321.39(2)(b) (b) Any person who assists an officer or member of the national guard in violating par. (a) shall be subject to a forfeiture of not less than $200 nor more than $1,000.

321.39 History History: 1979 c. 221; 1991 a. 316; 1993 a. 246; 1999 a. 62, 136; 2005 a. 22; 2007 a. 200 ss. 38 to 40, 220 to 221; Stats. 2007 s. 321.39; 2009 a. 42.

321.40 321.40 Educational benefits.

321.40(1) (1) Definitions. In this section:

321.40(1)(a) (a) “Full-time study” means a credit load of 12 or more academic credits in an academic term.

321.40(1)(b) (b) “Guard member” means any person who is a member of the national guard.

321.40(1)(c) (c) “Qualifying school” means any of the following:

321.40(1)(c)1. 1. The extension division and any campus of the University of Wisconsin System.

321.40(1)(c)2. 2. A public institution of higher education under the Minnesota-University of Wisconsin System student reciprocity agreement under s. 36.27 (2r) or a public vocational school under the Minnesota-Wisconsin public vocational school reciprocity agreement under s. 39.47.

321.40(1)(c)3. 3. A public institution of higher education under an interstate agreement under s. 39.42.

321.40(1)(c)4. 4. Except as provided in subds. 2. and 3., an accredited institution of higher education located in this state, as defined in 20 USC 1002.

321.40(1)(c)5. 5. Any technical college established under ch. 38.

321.40(1)(d) (d) “Tuition grant” means any tuition cost payment made by the department under sub. (3).

321.40(2) (2) Eligible guard member. Eligibility for a tuition grant under this section is limited to a guard member who is not:

321.40(2)(a) (a) An officer.

321.40(2)(b) (b) An individual with a baccalaureate degree or its equivalent.

321.40(2)(c) (c) Failing to meet the national guard duty eligibility criteria established by the department or absent without leave for more than 9 unit training assemblies.

321.40(2)(d) (d) Delinquent in child support or maintenance payments and who does not owe past support, medical expenses or birth expenses, as established by the appearance of the guard member’s name on the statewide support lien docket under s. 49.854 (2) (b), unless the guard member provides to the department a payment agreement that has been approved by the county child support agency under s. 59.53 (5) and that is consistent with rules promulgated under s. 49.858 (2) (a).

321.40(2)(e) (e) Failing to achieve satisfactory academic progress in a qualifying school when the tuition grant is applied for.

321.40(2)(f) (f) Failing to be an actively drilling guard member when the tuition grant is applied for.

321.40(3) (3) Tuition grants.

321.40(3)(a) (a) Any eligible guard member enrolled in a full-time or part-time course in a qualifying school may apply for a tuition grant equal to 100 percent of the actual tuition charged by the school or 100 percent of the maximum resident undergraduate tuition charged by the University of Wisconsin-Madison for a comparable number of credits, whichever amount is less. In calculating the maximum resident undergraduate tuition charged by the University of Wisconsin-Madison for purposes of this paragraph, the department shall include in the calculation all additional tuition established or approved by the Board of Regents of the University of Wisconsin System under s. 36.27 (1) (a) for undergraduate students at the University of Wisconsin-Madison and for students enrolled in a particular undergraduate academic program at the University of Wisconsin-Madison if the eligible guard member is enrolled in the same or equivalent program.

321.40(3)(b) (b) Application for tuition grants shall:

321.40(3)(b)1. 1. Be submitted to the department for approval of payment no earlier than 90 days prior to the start of the course and no later than 90 days after the completion date of the course; and

321.40(3)(b)2. 2. Contain such information and be in such form as the department requires to establish that the applicant qualifies for the grant.

321.40(3)(c) (c) Except as provided under par. (d), upon determination that the applicant is eligible to receive the payment, the department shall make payment of the tuition grant, on behalf of the applicant, to the qualifying school in which the applicant is enrolled in the amount determined under par. (a). Notwithstanding par. (b) 2., the department shall rely on a qualifying school’s certification in determining that an applicant is eligible under sub. (2) (e) to receive the payment and the department shall make the payment not later than 30 days after the department receives the certification.

321.40(3)(d) (d) Tuition grants under this section shall be paid out of the appropriation under s. 20.465 (2) (a).

321.40(4) (4) Repayment of grants.

321.40(4)(a) (a) The department shall require a guard member who has received a tuition grant under this section to repay the amount of the tuition grant to the department if any of the following applies:

321.40(4)(a)1. 1. The guard member is separated from the national guard for misconduct, as defined in the rules and regulations of the national guard, including being absent without leave for more than 9 unit training assemblies.

321.40(4)(a)2. 2. The guard member is not a member in good standing in the national guard at the end of the term for which the tuition grant is paid.

321.40(4)(a)3. 3. The guard member has failed to be an actively drilling guard member at the end of the term for which the tuition grant is paid.

321.40(4)(a)4. 4. The guard member has failed to achieve satisfactory academic progress at the end of the term for which the tuition grant is paid.

321.40(4)(b) (b)

321.40(4)(b)1. 1. A qualifying school that receives payment of a tuition grant on behalf of a guard member under sub. (3) (c) shall notify the department if the guard member has failed to achieve satisfactory academic progress at the end of the term for which the tuition grant is paid.

321.40(4)(b)2. 2. If a guard member is required to repay a tuition grant for any of the reasons specified in par. (a), the department may require the qualifying school that received the tuition grant on behalf of the guard member to recover from the guard member the amount of the tuition grant and remit it to the department. A qualifying school may take any reasonable action to secure repayment of the amount of a tuition grant under this subdivision, including placing a hold on course registration or on the awarding of a degree or certificate, undertaking collection efforts, or initiating legal action.

321.40(4)(c) (c) The department may elect to collect the amount owed under this subsection through the tax intercept program under s. 71.93.

321.40(5) (5) Limitations.

321.40(5)(a) (a) No guard member is eligible for a tuition grant under this section for more than 120 credits of part-time study or 8 full semesters of full-time study or the equivalent thereof.

321.40(5)(b) (b) If the U.S. congress establishes an active draft after July 1, 1977, no new tuition grants may be authorized under this section. The department shall determine if an active draft has been established. Any termination of the tuition grant program under this paragraph shall allow persons receiving grants prior to the establishment of an active draft to receive full benefits subject to sub. (3) (d) and par. (a).

321.40(5)(c) (c) No guard member may receive a tuition grant under sub. (3) for any semester in which he or she received a payment under s. 45.20 (2).

321.40(5)(d) (d) No guard member may receive a tuition grant under this section unless he or she is a member in good standing in the national guard at the time of application for the tuition grant.

321.40(6) (6) Coordination with qualifying schools. The department shall consult and coordinate with qualifying schools in establishing a process for distributing tuition grants that accomplishes all of the following:

321.40(6)(a) (a) Maximizes administrative efficiency for qualifying schools in applying tuition grants to student accounts.

321.40(6)(b) (b) Provides tuition grants to students in an expeditious manner that minimizes students’ need to incur debt while waiting for the grants to fund in their student accounts.

321.40 History History: 1977 c. 29, 418; 1981 c. 20; 1985 a. 29; 1987 a. 27, 403; 1989 a. 31; 1991 a. 39, 269; 1993 a. 399; 1995 a. 19; 1995 a. 27, ss. 1219t to 1223, 9127 (1); 1995 a. 404; 1997 a. 27, 237; 1999 a. 9; 2001 a. 16; 2003 a. 33, 69, 83; 2005 a. 22, 25; 2007 a. 20; 2007 a. 200 ss. 107, 109 to 120, 222 to 223; Stats. 2007 s. 321.40; 2009 a. 179, 180; 2011 a. 32; 2013 a. 20; 2015 a. 55; 2017 a. 123; 2017 a. 364 s. 49; 2023 a. 104, 117.

321.41 321.41 Training; special schools; pay and allowances. The governor or adjutant general may order the national guard or state defense force to assemble for training at any military establishment and fix the dates and places of that training. The governor or adjutant general may order members of the national guard or state defense force, at their option, to attend special schools for military training that are authorized by the state or federal government. The governor or adjutant general shall determine the amount that the members of the national guard or state defense force shall receive as pay and allowances for the training.

321.41 History History: 1991 a. 316; 2007 a. 200 s. 37; Stats. 2007 s. 321.41.

321.42 321.42 Defense of members of guard; payment of judgments.

321.42(1) (1) 

321.42(1)(a) (a) If any member of the national guard or of the state defense force or any resident of this state who is a member of the national guard of another state is prosecuted by any civil or criminal action for any act performed within the scope of his or her employment as a member, the governor, upon request of the adjutant general, shall appoint counsel to defend the member. The adjutant general shall make the request to appoint defense counsel if the act performed by the member was in the line of duty. The governor may appoint the attorney general to defend the member.

321.42(1)(b) (b) The costs and expenses of the defense under par. (a) shall be audited by the department of administration and charged to the appropriation under s. 20.505 (1) (d). If the jury or court finds that the member against whom the action is brought acted within the scope of his or her employment as a member, the judgment as to damages entered against the member shall be paid by the state.

321.42(2) (2) Any civil action or proceeding brought against a member under sub. (1) (a) is subject to ss. 893.82 and 895.46.

321.42 History History: 1977 c. 65; 1979 c. 34 s. 2102 (37) (a); 1979 c. 221; 1981 c. 20 s. 2202 (17) (a); 1985 a. 332 s. 253; 1987 a. 63 s. 13; 2003 a. 69; 2007 a. 200 s. 43 to 45; Stats. 2007 s. 321.42; 2013 a. 20.

321.42 Annotation A national guard member on active duty, but operating his own car for his own purposes while on a pass, was not acting in the performance of a military duty. Wuorinen v. State Farm Mutual Automobile Insurance Co. 56 Wis. 2d 44, 201 N.W.2d 521 (1972).

321.42 Annotation The state is not immune under ch. 102, (worker’s compensation), from liability for damages incurred by a national guard member while pursuing military duties. The state must pay a judgment based on negligence occurring in the good faith performance of duty. Mazurek v. Skaar, 60 Wis. 2d 420, 210 N.W.2d 691 (1973).

321.43 321.43 Exemption from civil authority. During the time the national guard or state defense force is performing military duty under orders issued by the governor or adjutant general, all of its members, while going to, remaining at, or returning from a place of duty are exempt from arrest or service of any process issued by a civilian court. In any civil or criminal prosecution against any member arising out of the member’s performing military duty, it shall be a defense that the member was acting in good faith or under a lawful military order. The order shall be considered lawful unless shown to be unlawful.

321.43 History History: 1991 a. 316; 2007 a. 200 s. 42; Stats. 2007 s. 321.43.

321.43 Annotation Since this state has never granted a national guard member immunity from suit by another member for injuries negligently caused in the performance of military duty, the 1969 amendment of this section did not change the law. Mazurek v. Skaar, 60 Wis. 2d 420, 210 N.W.2d 691 (1973).

321.44 321.44 Exemptions from certain county duties. Every member of the national guard or state defense force is exempt from service on any body of county residents summoned by the sheriff to assist in preserving the peace.

321.44 History History: 1977 c. 318; 1979 c. 110; 2007 a. 200 s. 35; Stats. 2007 s. 321.44.

321.45 321.45 Military family financial aid.

321.45(1) (1) In this section:

321.45(1)(a) (a) “Immediate family” means the spouse and dependent children of a service member who are residents of this state.

321.45(1)(b) (b) “Service member” means a resident of this state who is a member of the U.S. armed forces, including any reserve component, or of the national guard.