New Hampshire National Guard State Duty Protections

State active duty is the gap in federal coverage. A Guard member on Title 32 or Title 10 orders has federal protections and, for injury, the federal system. A member the governor calls out for a flood, an ice storm or a civil emergency is on state duty, and RSA 110-B fills that gap in two ways. Injury and illness, RSA 110-B:66, I: "Any member of the national guard serving on state active duty pursuant to this chapter, within or without the state, who, while serving on state active duty, sustains an 'injury' or 'personal injury,' as defined in RSA 281-A, shall be entitled to receive benefits pursuant to RSA 281-A." RSA 281-A is the New Hampshire workers' compensation law. So the Guard member on state duty is treated as an injured worker: medical benefits, indemnity for lost earning capacity, permanent impairment awards, vocational rehabilitation and death benefits all come through the ordinary compensation system, with its established claim procedures and its appeal route through the department of labor and the compensation appeals board. Two consequences follow. The member gets a body of law and a tribunal that handle injury claims every day, rather than an ad hoc military scheme. And the definitions that matter are the RSA 281-A definitions of "injury" and "personal injury", which turn on arising out of and in the course of employment, not on line-of-duty determinations. "Within or without the state" matters. A New Hampshire Guard member sent to another state on state active duty under an emergency management assistance compact is still covered. Privileges and immunities, RSA 110-B:71, is six paragraphs and each is worth knowing. Paragraph I gives personal immunity, civil and criminal, to an officer, warrant officer or enlisted person "for any damage to property or injury to any person, including death resulting therefrom, caused by them or by their order, while performing a military duty lawfully ordered under the provisions of this chapter, unless the act or order causing such damage or injury was manifestly beyond the scope of the authority" of that person. The exception is narrow: manifestly beyond the scope of authority, not merely mistaken. Paragraph II gives privilege from arrest and imprisonment, "except for treason, felony or breach of the peace", while under orders in the active service of the state, from the issuing of the orders until the service ends, and while going to, remaining at or returning from any place of required military duty. Paragraph III makes reports and communications of members "in the line of their military duty addressed to their superiors" privileged communications that "shall not be competent evidence against the writer in any civil or criminal action in the courts of the state." A member's after-action report or incident statement to a superior cannot be used against them in a New Hampshire court. Paragraph IV bars arrest or detention "on any civil process" while going to, remaining at or returning from required military duty. That is separate from paragraph II and covers civil arrest and detention specifically. Paragraph V is the counterweight, and a member should know it exists: any police officer may arrest, or be requested by the adjutant general to arrest, a Guard member absent without leave from a training assembly, drill, annual training or other duty time, and shall hold the member for not more than 24 hours until turned over to military authority. Paragraph VI is the sleeper and it reaches beyond this chapter: "Notwithstanding any other law, a member of the New Hampshire national guard shall be treated as a resident and citizen of the state of New Hampshire for the purpose of entitlement to benefits, privileges, and immunities provided under state law to members of the New Hampshire national guard." Read that against the residency conditions elsewhere in this file. A New Hampshire Guard member who lives in Vermont or Maine is deemed a New Hampshire resident and citizen for the purpose of any state-law benefit provided to New Hampshire Guard members. It does not convert a member into a resident for benefits given to veterans generally or to residents generally, because the paragraph is limited to benefits "provided under state law to members of the New Hampshire national guard". But for Guard-specific benefits it removes the residency argument, and it is consistent with RSA 110-B:63-c, I, which lets an out-of-state Guard member use the tuition waiver. One more provision belongs here. RSA 110-B:65 is headed "Discrimination Forbidden", which is the chapter's protection against adverse treatment for Guard membership, and it sits alongside the federal USERRA protections rather than replacing them. For a federal call-up, USERRA is the stronger instrument: the five-year cumulative service limit, restoration to the escalator position, health coverage continuation for up to 24 months at up to 102 percent of premium, and the prohibition on discrimination in hiring, retention and promotion. New Hampshire has no separate statutory reemployment article for state duty of the kind several states in this catalog carry, so a member whose employer refuses to take them back after a governor's call-out is relying on RSA 110-B:65 and on federal law rather than on a dedicated state reinstatement remedy.