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Public Act 100-1030
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| HB3040 Enrolled | LRB100 10666 KTG 20890 b |
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AN ACT concerning military affairs.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 1. The Illinois Administrative Procedure Act is |
amended by changing Section 1-20 as follows:
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(5 ILCS 100/1-20) (from Ch. 127, par. 1001-20)
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Sec. 1-20. "Agency" means each officer, board, commission, |
and agency
created by the Constitution, whether in the |
executive, legislative, or
judicial branch of State |
government, but other than the circuit court; each
officer, |
department, board, commission, agency, institution, authority,
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university, and body politic and corporate of the State; each
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administrative unit or corporate outgrowth of the State |
government that is
created by or pursuant to statute, other |
than units of local government and
their officers, school |
districts, and boards of election commissioners; and
each |
administrative unit or corporate outgrowth of the above and as |
may be
created by executive order of the Governor. "Agency", |
however, does not
include the following:
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(1) The House of Representatives and Senate and their |
respective
standing and service committees, including |
without limitation the
Board of the Office of the Architect |
of the Capitol and the Architect of the
Capitol established |
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under
the Legislative Commission Reorganization Act of |
1984.
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(2) The Governor.
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(3) The justices and judges of the Supreme and |
Appellate Courts.
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(4) The Legislative Ethics Commission.
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(5) The Illinois State Guard with respect to |
regulations adopted under the Illinois State Guard Act. |
(Source: P.A. 95-331, eff. 8-21-07.)
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Section 3. The State Employee Indemnification Act is |
amended by changing Section 1 as follows:
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(5 ILCS 350/1) (from Ch. 127, par. 1301)
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Sec. 1. Definitions. For the purpose of this Act:
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(a) The term "State" means the State of Illinois, the |
General
Assembly, the court, or any State office, department, |
division, bureau,
board, commission, or committee, the |
governing boards of the public
institutions of higher education |
created by the State, the Illinois
National Guard, the Illinois |
State Guard, the Comprehensive Health Insurance Board, any |
poison control
center designated under the Poison Control |
System Act that receives State
funding, or any other agency or |
instrumentality of the State. It
does not mean any local public |
entity as that term is defined in Section
1-206 of the Local |
Governmental and Governmental Employees Tort Immunity
Act or a |
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pension fund.
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(b) The term "employee" means: any present or former |
elected or
appointed officer, trustee or employee of the State, |
or of a pension
fund;
any present or former commissioner or |
employee of the Executive Ethics
Commission or of the |
Legislative Ethics Commission; any present or former
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Executive, Legislative, or Auditor General's Inspector |
General; any present or
former employee of an Office of an |
Executive, Legislative, or Auditor General's
Inspector |
General; any present or former member of the Illinois National
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Guard
while on active duty; any present or former member of the |
Illinois State
Guard
while on State active duty; individuals or |
organizations who contract with the
Department of Corrections, |
the Department of Juvenile Justice, the Comprehensive Health |
Insurance Board, or the
Department of Veterans' Affairs to |
provide services; individuals or
organizations who contract |
with the Department of Human Services (as
successor to the |
Department of Mental Health and Developmental
Disabilities) to |
provide services including but not limited to treatment and
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other services for sexually violent persons; individuals or |
organizations who
contract with the Department of
Military
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Affairs for youth programs; individuals or
organizations who |
contract to perform carnival and amusement ride safety
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inspections for the Department of Labor; individuals who |
contract with the Office of the State's Attorneys Appellate |
Prosecutor to provide legal services, but only when performing |
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duties within the scope of the Office's prosecutorial |
activities; individual representatives of or
designated |
organizations authorized to represent the Office of State |
Long-Term
Ombudsman for the Department on Aging; individual |
representatives of or
organizations designated by the |
Department on Aging in the performance of their
duties as adult |
protective services agencies or regional administrative |
agencies
under the Adult Protective Services Act; individuals |
or organizations appointed as members of a review team or the |
Advisory Council under the Adult Protective Services Act; |
individuals or organizations who perform
volunteer services |
for the State where such volunteer relationship is reduced
to |
writing; individuals who serve on any public entity (whether |
created by law
or administrative action) described in paragraph |
(a) of this Section; individuals or not for profit |
organizations who, either as volunteers, where
such volunteer |
relationship is reduced to writing, or pursuant to contract,
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furnish professional advice or consultation to any agency or |
instrumentality of
the State; individuals who serve as foster |
parents for the Department of
Children and Family Services when |
caring for a Department ward; individuals who serve as members |
of an independent team of experts under Brian's Law; and |
individuals
who serve as arbitrators pursuant to Part 10A of
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Article II of the Code of Civil Procedure and the rules of the |
Supreme Court
implementing Part 10A, each as now or hereafter |
amended; the term "employee" does not mean an
independent |
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contractor except as provided in this Section. The term |
includes an
individual appointed as an inspector by the |
Director of State Police when
performing duties within the |
scope of the activities of a Metropolitan
Enforcement Group or |
a law enforcement organization established under the
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Intergovernmental Cooperation Act. An individual who renders |
professional
advice and consultation to the State through an |
organization which qualifies as
an "employee" under the Act is |
also an employee. The term includes the estate
or personal |
representative of an employee.
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(c) The term "pension fund" means a retirement system or |
pension
fund created under the Illinois Pension Code.
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(Source: P.A. 98-49, eff. 7-1-13; 98-83, eff. 7-15-13; 98-732, |
eff. 7-16-14; 98-756, eff. 7-16-14.)
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Section 5. The Military Code of Illinois is amended by |
changing Section 21 as follows:
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(20 ILCS 1805/21) (from Ch. 129, par. 220.21)
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Sec. 21.
The Assistant Adjutant General for Army shall be |
the chief administrative
assistant to The Adjutant General for |
Army matters and the Assistant Adjutant
General for Air shall |
be the chief administrative assistant to The Adjutant
General |
for Air matters and both shall perform such duties as may be |
directed
by The Adjutant General. In the event of the death or |
disability of The Adjutant
General or any other occurrence that |
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creates a vacancy in the office, his absence from the State, |
the Commander-in-Chief shall designate
either the Assistant |
Adjutant General for Army or the Assistant Adjutant
General for |
Air as the Acting Adjutant General to perform the duties of the |
office until an Adjutant General is appointed of The Adjutant |
General.
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(Source: P.A. 80-176.)
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Section 10. The Illinois Code of Military Justice is |
amended by adding Section 76b as follows:
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(20 ILCS 1807/76b new) |
Sec. 76b. Article 76b. Lack of mental capacity or mental |
responsibility; commitment of accused for examination and |
treatment. |
(a) Persons incompetent to stand trial. |
(1)(A) In general, no person may be brought to trial by |
court-martial if that person is presently suffering from a |
mental disease or defect rendering that person mentally |
incompetent to the extent that he or she is unable to |
understand the nature of the proceedings against them or to |
conduct or cooperate intelligently in the defense of the |
case. |
(B) A person is presumed to have the capacity to stand |
trial unless the contrary is established. |
(C) Determination of capacity of an accused to stand |
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trial shall be made in accordance with Rule 909 (c), (d), |
and (e) of the Rules for Courts-Martial as described in the |
Manual for Courts-Martial, United States (2012 Edition), |
or as provided in any subsequent rule adopted in accordance |
with applicable law and regulation by the President of the |
United States, except that references in those rules to |
"the Attorney General" mean the Department of Human |
Services. |
(2) An inquiry into the mental capacity or mental |
responsibility of the accused shall be conducted as |
provided in Rule 706 of the Rules for Courts-Martial as |
described in the Manual for Courts-Martial, United States |
(2012 Edition), or as provided in any subsequent rule |
adopted in accordance with applicable law and regulation by |
the President of the United States. |
If the accused's incapacity is mental, the convening |
authority may order him or her to be placed for treatment |
in the custody of the Department of Human Services or the |
convening authority may order him or her to be placed in |
the custody of any other appropriate public or private |
mental health facility or treatment program which has |
agreed to provide treatment to the accused. If the accused |
is placed in the custody of the Department of Human |
Services, the accused may be placed in a secure setting. |
During the period of time required to determine the |
appropriate placement, the accused shall remain confined. |
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If, upon the completion of the placement process, the |
Department of Human Services determines that the accused is |
currently fit to stand trial, the Department shall |
immediately notify the convening authority and shall |
submit a written report within 7 days. In that |
circumstance, the placement shall be held pending a court |
hearing on the Department's report. Otherwise, upon |
completion of the placement process, the sheriff shall be |
notified and shall transport the accused to the designated |
facility. The placement may be ordered on either an |
inpatient or an outpatient basis. |
In addition to other matters, the inquiry shall |
determine whether there is a substantial probability that |
the accused will attain mental responsibility to stand |
trial within one year if he or she is provided with a |
course of treatment. |
(A) In the case of a general court-martial, if the |
official responsible for determining capacity to stand |
trial finds that there is not a substantial probability |
that the accused will attain mental responsibility |
within one year if he or she is provided with a course |
of treatment, the case shall proceed as provided in |
Section 104-23 of the Code of Criminal Procedure of |
1963. In a special court-martial, the case shall |
proceed after the expiration of the maximum period of |
confinement authorized for the offense or offenses |
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charged. |
(B) If the official responsible for determining |
capacity to stand trial finds that there is a |
probability that the accused will attain mental |
responsibility
within one year if he or she is provided |
with a course of treatment, or if the official is |
unable to determine whether a substantial probability |
exists, the accused shall be ordered to undergo |
treatment for the purpose of rendering him or her fit |
in accordance with subsections (b) or (c) of Section |
104-17 of the Code of Criminal Procedure of 1963. |
(1) Any references to "the court" in Sections |
104-23 and 104-17 of the Code of Criminal Procedure |
of 1963 mean the general court-martial convening |
authority. |
(2) The general court-martial convening |
authority shall, as necessary, transmit the |
information as provided in subsection (d) of |
Section 104-17 of the Code of Criminal Procedure of |
1963. |
(b) Persons found not guilty by reason of lack of mental |
responsibility. |
(1) The accused is presumed to have been mentally |
responsible at the time of the alleged offense. This |
presumption continues until the accused establishes, by |
clear and convincing evidence, that he or she was not |
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mentally responsible at the time of the alleged offense. A |
mental condition not amounting to a lack of mental |
responsibility under Article 50a of this Code is not an |
affirmative defense. |
(2) If a question is raised concerning the mental |
responsibility of the accused, the military judge shall |
rule whether to direct an inquiry under Rule 706 of the |
Rules for Court-Martial as described in the Manual for |
Courts-Martial, United States (2012 Edition), or under any |
subsequent rule adopted in accordance with applicable law |
and regulation by the President of the United States. The |
issue of mental responsibility shall not be considered an |
interlocutory question. |
(3) If a person is found not guilty only by reason of |
lack of mental responsibility, the case shall proceed in |
accordance with State law pertaining to persons acquitted |
by reason of insanity as provided in Section 5-2-4 of the |
Unified Code of Corrections. References within that |
Section to "the court" or "clerk of the court" mean the |
general court-martial convening authority. |
(4) After a finding or verdict of not guilty only by |
reason of lack of mental responsibility, the accused shall |
be ordered to the Department of Human Services for an |
evaluation as to whether he or she is in need of mental |
health services. The order shall specify whether the |
evaluation shall be conducted on an inpatient or outpatient |
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basis. If the evaluation is to be conducted on an inpatient |
basis, the accused shall be placed in a secure setting. A |
copy of the law enforcement reports, criminal charges, |
arrest record, jail record, record of trial, and any victim |
impact statement shall be sent with the order for |
evaluation. After the evaluation and during the period of |
time required to determine the appropriate placement, the |
accused shall remain in confinement. Individualized |
placement evaluations performed by the Department of Human |
Services shall be used to determine the most appropriate |
setting for forensic treatment based upon a number of |
factors including mental health diagnosis, proximity to |
surviving victims, security need, age, gender, and |
proximity to family. Upon completion of the placement |
process, the sheriff shall be notified and shall transport |
the accused to the designated facility.
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Section 15. The State Guard Act is amended by changing and |
renumbering Section 0.01 and by adding Sections 1-1, 1-5, 1-10, |
2-5, 3-5, 3-10, 4-5, 4-10, 5-5, 5-10, 5-15, and 6-5 and the |
headings of Part I, Part II, Part III, Part IV, Part V, and |
Part VI as follows:
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(20 ILCS 1815/Pt. I heading new) |
PART I
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GENERAL PROVISIONS
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(20 ILCS 1815/0.01) (from Ch. 129, par. 228h)
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Sec. 1-1 0.01. Short title. This Act may be cited as the
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Illinois State Guard Act.
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(Source: P.A. 86-1324.)
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(20 ILCS 1815/1-5 new) |
Sec. 1-5. Establishment and purpose. |
(a) This Act establishes the Illinois State Guard ("the |
State Guard"). The State Guard is the State's non-federally |
recognized military force which may be composed of members of |
the Unorganized Militia who are 18 through 45 years of age, and |
those persons who are 45 through 65 years of age as determined |
necessary by the Governor. |
(b) The Governor is the Commander-in-Chief of the State |
Guard. The Adjutant General is the Commander of the State |
Guard. As directed by the Adjutant General, the Department of |
Military Affairs shall administer the State Guard. |
(c) The purpose of the State Guard is to provide the State |
a capable military force when all or part of the Illinois |
National Guard is not available for State service due to its |
possible or actual mobilization into federal service by the |
President of the United States.
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(20 ILCS 1815/1-10 new) |
Sec. 1-10. Activation of the State Guard. |
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(a) Whenever the Commander-in-Chief deems it necessary or |
advisable for the purpose of
executing the laws of the State or |
to prevent an actual or threatened violation of law; when
the |
nation is at war and a requisition or order has been made, or |
is likely to be made, by the
President of the United States |
calling the National Guard, or parts thereof, into the National
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service; or for any other emergency, he or she may issue a |
proclamation calling for volunteers to serve in the State |
Guard. Persons who answer the call and who are appointed or |
enlisted in the State Guard shall serve in State Active Duty |
status. |
(b) The proclamation shall state the number of volunteers |
needed and the period of State Active Duty during which they |
are called to serve. The Commander-in-Chief may terminate or |
extend any such proclamation at any time he or she determines |
appropriate and in the best interests of the State. |
(c) When mobilized and deployed to support civil |
authorities, the State Guard may be directed by civil |
authorities as to work to be done or the result to be attained, |
but not as to the method to be employed. At all times, State |
Guard units and members shall remain under the command and |
control of the Commander-in-Chief, the Adjutant General, and |
such subordinate commanders as the Adjutant General may |
appoint.
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(20 ILCS 1815/Pt. II heading new) |
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PART II
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ORGANIZATION OF THE STATE GUARD
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(20 ILCS 1815/2-5 new) |
Sec. 2-5. Organization. |
(a) As authorized by the Commander-in-Chief, the Adjutant |
General may by order establish units of the State Army and Air |
Guard that are similar in nature and in general conformity to |
those of the United States Army and Air Force and may assign |
State Guard personnel to each unit. Upon expiration or |
termination of the proclamation issued in accordance with |
Section 1-10 of this Act, the Commander-in-Chief may discharge |
such units and personnel assigned thereto. |
(b) The State Guard shall consist of 2 components: the |
State Army Guard and the State Air Guard. The Adjutant General |
may appoint the Assistant Adjutant General for Army as the |
Commander of the State Army Guard and the Assistant Adjutant |
General for Air as the Commander of the State Air Guard, |
respectively. The Adjutant General may also appoint such other |
subordinate commanders and staff of the State Guard as he or |
she determines appropriate.
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(20 ILCS 1815/Pt. III heading new) |
PART III
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PERSONNEL AND PAY
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(20 ILCS 1815/3-5 new) |
Sec. 3-5. Personnel. |
(a) The State Guard shall be comprised of commissioned |
officers, warrant officers, and enlisted personnel in grades |
conforming to those of the United States Army and Air Force. |
The Adjutant General shall establish by regulation the |
qualifications for appointment, enlistment, service, and |
promotion in the State Guard including, but not limited to, |
minimum and maximum age, education, physical condition, and |
personal conduct. |
(b) The Governor shall appoint all commissioned and warrant |
officers of the State Guard in a manner similar to appointments |
made in the Illinois National Guard. Officers shall take the |
following oath as a condition of appointment: "I do solemnly |
swear (or affirm) that I will bear true allegiance to the |
Constitution of the United States and to the Constitution of |
the State of Illinois, and to the laws thereof, and that I will |
faithfully obey the orders of the Commander-in-Chief and the |
officers appointed above me, and the rules and regulations of |
the Illinois State Guard. (So help me God.)" Appointments in |
the State Guard shall be for an indefinite term and subject to |
death, resignation, discharge, retirement, or termination in |
accordance with State law and regulation. |
(c) Persons accepted for enlistment in the State Guard |
shall, as a condition of enlistment, take the same oath as |
officers. The Adjutant General shall prescribe by regulation |
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the form of enlistment contracts. Original terms of enlistment |
shall be limited to 2 years. Re-enlistment terms shall be |
limited to one year. |
(d) In accordance with regulations prescribed by the |
Adjutant General, upon an officer's separation from the State |
Guard, the Adjutant General shall characterize the officer's |
service as honorable, general (under honorable conditions), or |
under conditions other than honorable using criteria that are |
in general conformity with those regulations or instructions of |
the United States Army and Air Force that are applicable to the |
National Guard, unless the officer was separated with a |
punitive discharge under the Illinois Code of Military Justice. |
(e) The Adjutant General may mobilize on State Active Duty |
members of the Illinois National Guard as he or she determines |
necessary to administer, train, or command the State Guard.
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(20 ILCS 1815/3-10 new) |
Sec. 3-10. Pay and allowances. |
(a) The State is responsible for all pay and allowances of |
members of the State Guard. |
(b) Members of the State Guard serving on State Active Duty |
shall receive the same pay as provided to members of the |
Illinois National Guard of like grade and longevity under |
Sections 48 and 49 of the Military Code of Illinois. |
(c) Members of the State Guard serving on State Active Duty |
shall be considered State employees for civil liability and |
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civil representation purposes to the same degree and extent as |
members of the Illinois National Guard under Section 1 of the |
State Employee Indemnification Act. |
(d) Members of the State Guard criminally prosecuted by |
civil authorities of the United States, any State, |
Commonwealth, Territory, or District of the United States, |
including the State of Illinois or any political subdivision |
thereof, shall be entitled to representation and |
indemnification to the same extent as members of the Illinois |
National Guard under Section 90 of the Military Code of |
Illinois.
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(20 ILCS 1815/Pt. IV heading new) |
PART IV
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EQUIPPING AND UNIFORMS
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(20 ILCS 1815/4-5 new) |
Sec. 4-5. Equipping. |
(a) As permitted by federal law and regulation, the State |
Guard may use the federal military property and personnel of |
the Illinois National Guard and shall reimburse the appropriate |
federal authority for such use from State funds. |
(b) The State Guard may use federal property of the |
Illinois National Guard only to the extent that its members are |
trained to use it properly and safely and, if necessary, under |
the training and supervision of members of the Illinois |
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National Guard detailed by the Adjutant General. |
(c) In accordance with the Illinois Procurement Code, the |
State may, at its expense and subject to the availability of |
State funds, procure and provide such other materials, as |
needed, for the State Guard. |
(d) State Guard commanders shall be held responsible and |
accountable for all military property issued to them in a |
manner similar to that enforced against commanders of the |
Illinois National Guard under property accountability |
regulations or
instructions of the United States Army and Air |
Force. |
(e) In accordance with regulations prescribed by the |
Adjutant General, members of the State Guard shall be held |
responsible and may be held financially liable for any damage, |
destruction, or loss, including loss of accountability, of |
military property under their control in a manner similar to |
that enforced against members of the Illinois National Guard |
under applicable regulations or instructions of the United |
States Army and Air Force.
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(20 ILCS 1815/4-10 new) |
Sec. 4-10. Uniforms. |
(a) Uniforms for the State Guard shall be in general |
conformity with those of the Illinois National Guard, except |
that members of the State Guard shall wear the designation "IL" |
on their class A/service dress and the designation "Illinois |
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State Army Guard", "Illinois State Air Guard", or "Illinois" on |
their class C/utility uniforms. |
(b) Officers shall pay for their uniforms. Enlisted members |
shall be issued uniforms in accordance with regulations |
prescribed by the Adjutant General and subject to the |
availability of State funds. |
(c) Officer and enlisted rank insignia shall be in |
conformity with those of the Illinois National Guard.
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(20 ILCS 1815/Pt. V heading new) |
PART V
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DISCIPLINE
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(20 ILCS 1815/5-5 new) |
Sec. 5-5. Military justice. While serving on State Active |
Duty, members of the State Guard shall be subject to the |
provisions of the Illinois Code of Military Justice.
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(20 ILCS 1815/5-10 new) |
Sec. 5-10. Terminating appointments. The Adjutant General |
may prescribe, by regulation, administrative procedures for |
terminating the appointment of any commissioned or warrant |
officer for cause that are similar to those procedures which |
apply to members of the Illinois National Guard, except that |
any administrative procedures prescribed by the Adjutant |
General under this Section shall provide that no officer is |
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entitled to present his or her case to a board of officers |
unless the officer has at least 6 years of total military |
service in the State Guard at the time the termination action |
was initiated. Such administrative procedures shall require |
the Adjutant General to characterize the officer's service as |
honorable, general (under honorable conditions), or under |
other than honorable conditions; however, in no case may the |
Adjutant General characterize an officer's service as other |
than honorable unless the officer is afforded the right to |
present his or her case to a board of officers.
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(20 ILCS 1815/5-15 new) |
Sec. 5-15. Involuntary separation. The Adjutant General |
may prescribe, by regulation, administrative procedures to |
involuntarily separate any enlisted member from the State Guard |
for cause that are similar to those procedures which apply to |
members of the Illinois National Guard, except that any |
administrative procedures prescribed by the Adjutant General |
under this Section shall provide that no enlisted person is |
entitled to present his or her case to a board of officers |
unless the enlisted person has at least 6 years of total |
military service in the State Guard at the time the separation |
action was initiated. Such administrative procedures shall |
require the Adjutant General to characterize the enlisted |
member's service as honorable, general (under honorable |
conditions), or under other than honorable conditions; |
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however, in no case may the Adjutant General characterize an |
enlisted member's service as other than honorable unless the |
enlisted member is afforded the right to present his or her |
case to a board of officers.
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(20 ILCS 1815/Pt. VI heading new) |
PART VI
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REGULATIONS
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(20 ILCS 1815/6-5 new) |
Sec. 6-5. Regulations. Regulations authorized under this |
Act shall not be subject to the Illinois Administrative |
Procedure Act and shall become effective upon approval by the |
Adjutant General.
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(20 ILCS 1815/1 rep.)
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(20 ILCS 1815/2 rep.)
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(20 ILCS 1815/3 rep.)
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(20 ILCS 1815/4 rep.)
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(20 ILCS 1815/5 rep.)
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(20 ILCS 1815/6 rep.)
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(20 ILCS 1815/7 rep.)
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(20 ILCS 1815/8 rep.)
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(20 ILCS 1815/9 rep.)
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(20 ILCS 1815/10 rep.)
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(20 ILCS 1815/11 rep.)
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(20 ILCS 1815/64 rep.)
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(20 ILCS 1815/65 rep.)
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(20 ILCS 1815/66 rep.)
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(20 ILCS 1815/67 rep.)
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(20 ILCS 1815/68 rep.)
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(20 ILCS 1815/69 rep.)
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(20 ILCS 1815/70 rep.)
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(20 ILCS 1815/71 rep.)
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(20 ILCS 1815/72 rep.)
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(20 ILCS 1815/73 rep.)
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(20 ILCS 1815/74 rep.)
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(20 ILCS 1815/75 rep.)
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(20 ILCS 1815/76 rep.)
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(20 ILCS 1815/77 rep.)
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(20 ILCS 1815/78 rep.)
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(20 ILCS 1815/79 rep.)
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(20 ILCS 1815/80 rep.)
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(20 ILCS 1815/81 rep.)
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(20 ILCS 1815/82 rep.)
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Section 20. The State Guard Act is amended by repealing |
Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, |
17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, |
33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, |
49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, |
65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, |
81, and 82.
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