Is a Air NG/AF type of relationship possible for CAP?

[RiverAux]

Okay, very few of us like the fact that CAP is only considered the AF Auxiliary while on AFAMs.  While the AF was just fine having us 100% of the time for 50+ years, ever since their lawyers got it in their heads that they didn't want to be responsible if a cadet stubbed his toe during a meeting, we're stuck with it. 

One of the alternative ideas for a CAP-USAF relationship is to have something similar to the Air NG/AF relationship in which CAP is considered part of the state government most of the time and the AF Aux while on AFAMs.  Most of the talk on the board has focused on where CAP headquarters would fit, but we've never really got into the nitty-gritty of how this would work. 

First, massive changes would have to be made in all the federal laws relating to CAP.  Some of these are extremely problematic.

1.  Can Congress mandate that a state "absorb" CAP and its structure, purposes, etc.?  In essence they would be demanding that each state set up a CAP agency within its state government that is actually quite subject to control by the Air Force.  I'm not sure they could do this without making CAP part of the militia which Congress can regulate.  A similar example might be if Congress demanded that each state have a "Litter Patrol" office within its highway police department that would be subject to the federal highway admistration's direct control under certain situations.  And, if you start brining in the militia powers, then that causes issue with our current civilian, non-military role.  Its not an insurmountable problem in that they COULD make us a part of the organized militia under this scenario, but just not pay us or provide the other benefits received by NG members.  Quite unlikely, but I'm not sure there is another way to force the states to accept this relationship. 

2.  Money.  Obviously some sort of situation would be demanded where the feds funnel most of the funding required to run CAP through the states like they do with the NG.  Since 75% of states already fund CAP to some extent this might not be an issue.  However, if we're put more directly under state control then its a whole different ballgame than merely giving the CAP Wing a grant. 

3.  Organizational structure.  Obviously the whole corporate structure would need to be revamped and this would open up opportunities to make a host of changes that could go in a variety of directions.   However, if we were to have a strong state link, then some form of organizational control by the state government would be necessary.  Perhaps by giving the Governor or Adjutant General authority to appoint Wing Commanders. 

4.  State resistence.  There are probably more than a few states that would not want to be linked this way with CAP and who would not want to take on these additional responsibilities.  Of course with the independent corporate structure eliminated and with the state having some significant control over CAP there would be more of an incentive.  But, they would still be taking on potential liability, workmen's comp and other responsibilities.

5.  State Defense Forces.  About half the states have them now and very few of them provide much support or use them much.  This tells me that my problem #4 would be real.  Additionally, existing SDFs would probably be pretty upset if CAP moved into the military department getting more funding and actual missions than they do.  In Virginia and Alaska they've got existing SDF air wings flying missions now and CAP would be duplicative of those forces.  Granted, I think CAP is much superior to them and would probably win out in any analysis of which to keep, but political problems would arise nevertheless.   

6.  Lets assume that all the federal laws are changed to provide for this change.  Laws in all 50 states and Puerto Rico and DC would also need to be changed to allow for whatever specific structure was arrived at.  This would be a massive project and would require a lot of effort on the part of many people in and out of CAP and would probably take more than a few years to get done.  So, some sort of transition period would exist where the federal laws have changed but they hadn't in some states.  How would liability, command and control issues, etc. be handled then?  What if a state never did pass legislation implementing these changes?  Some stick would have to be held over their heads.  Usually that is funding (change you speed limit or lose your highway money), but in this case the feds have been sending money to an independent nonprofit organization (CAP) not the state, so its no skin off their nose if the feds cut off that funding. 

Given all these issues, I just don't see a NG-like relationship with the AF being developed.  The only real options I see are continuing as is or the federal law being changed to give the AF total control over CAP like the CG has over the CG Aux.  The result of the latter move, assuming the AF lawyers don't remove the stick from their hindquarters, is that we would probably stop all non-AF missions (The CG Aux does almost nothing for anybody other than the CG for this reason).  Not sure we would want that as we would probably lose our state funding if we were no longer easily available for their use. 

[Major Carrales]

This violates the doctrine of Federalism.  Since we are volunteer, non-combatants, CAP as a FEDERAL entity, wouldn't being outfitted by the State and controlled by the FEDERAL ELEMENTS blur the line?

National Guard units differ in that they are "oragnized militia" that can be truely federalized.  It would also create old issues involving STATE's RIGHTS.

What we would end up with is a CONFEDERATION of State LEVEL CAP Units with limited national direction.  States would also "take ownership" of their units and they would grow to be more and more independent.  Some, based on how it works now, would "fold."

The International RED CROSS is an example, some nations use the RED CROSS to administer hospitals as their main mission, the AMERICAN RED CROSS does lots of disaster relief.

I was told to me, in one of their trainings, that each nation's organizations operated very differently.

That is what I see "STATE" CAP becoming. 

[RiverAux]

I think you get my point about how tricky it would be to try to copy the NG relationship with the feds. 

I just can't think of any non-military example of a state organization with dual state-federal status.   

[JohnKachenmeister]

I don't think it would be tricky at all, and I don't think it violates Federalism.

Some wings already do exactly what you propose, and it works well.

In fact, I think that making CAP a unit within the Air NG structure is the best organizational fit for our missions.

[Nick Critelli]

RiverAux

You're letting your anti-lawyer bias show through.  The reason for the October 2000 statutory change by Congress wasn't some idea conceived by lawyers to protect the USA from liability. It was a reaction to the poor behavior, unprofessional conduct and in some cases criminal conduct by the CAP senior members. 

It was our predecessor's refusal to get out of the hanger club mentality and embrace the professional training and discipline required to do the job that caused the problem.  CAP had, and in some situations still has a club mentality.  You can tell it right here on CapTalk. Some are more concerned about wardrobe than training; others are more concerned about their perceived rights as a "volunteer" than their obligation as an officer.

RiverAux, it wasn't the AF lawyers who pulled the plug it was our predecessors and they pulled it on us. 

Is a NG relationship possible with CAP. BE CAREFUL WHAT YOU WISH FOR. IAWG has a relationship with the NG.  In order to keep the benefits of the relationship (money, missions, perks, collegiality, training, etc.,) they demand that we be disciplined in our manner and   professional in our actions....and they are there to see us ALL THE TIME. Unlike the monitoring from AF, our monitoring by the NG is constant because we are folded into their operation.

I confess that at times like today when I am trying to plan the WTA's for the rest of the year I think that there was something nice about being a hanger club. No obligations, no stress, no duties just put  on the fancy cloths and play.  But then reality sets in:  it "ain't" no club. CAP people die in the line of duty and people needlessly die without CAP.

NC

[RiverAux]

Not anti-lawyer bias, but anti AF lawyer bias.  The 2000 changes related to the BoG are certainly related to other problems in the CAP-AF relationship, but the loss of full-time AF Aux status is a different ballgame, but thats a topic for another thread.

Kach, the proposal that others have made would go far beyond anything currently set up in any state and is not actually possible under existing federal laws. 

[JohnKachenmeister]

River:

Don't let Nick intimidate you.  Everybody has an anti-lawyer bias!   

I want to make sure that we are talking about the same thing, because I do not see any statutory prohibition against that which I have seen proposed (And proposed myself... Nick?  Have you proofed that paper yet? )

Right now, CAP has a dual-role, established by Congress.  We serve as the Auxiliary of the US Air Force and perform Federal missions under Title 10.  We also are authorized to perform missions for State Governments, Local Governments, and Non-Governmental Organizations under Title 36, with the using agency paying the freight.

Under the current organizational doctrine, we fly missions for OTF (Other than Feds) by executing a Memorandum of Understanding with the using agency.

IF National HQ, CAP were to be transfered from the Air University and placed under the Air National Guard, the next step would be to place each wing under the Operational Control of the State Adjutant General for Air of each state.  This is an organizational issue, and not prohibited by law. 

Under that arrangement, the Governor could call out CAP assets, assuming that the state pays the bill, under the same conditions that he can call out any National Guard unit.    The US Government can still, directly or through the Adjutant General, call out CAP for a Federal mission, just as the Federal govt. can mobilize a NG unit.

This WAS considered by the Air Staff a few years ago.  Some AG's non-concurred, primarily because they did not want to be saddled with the Cadet Program.  I proposed managing the Cadet Program out of National, so that state AG's would have no role in it, other than to welcome new recruits from the Cadet Program when they join the National Guard.

Is there some other proposal out there that I'm not aware of?

[RiverAux]

CAP's dual role is that of AF Auxiliary and as a corporation, not as an instrument of state government.  The CAP corporation can chose to do certain activities in support of state and local governments and can chose to ask them to pay for it, and can even lobby for state liability and workers comp protections while doing them.  In some states we even have that. 

But, there is no authority in current federal statutes to allow for specific state control over any CAP activity.  You can have requests for CAP assistance run through any office of state government you want, but they're not going to be in control over CAP.  No matter where you make CAP's federal "home", each state is going to treat us according to our own needs.  Just because the CAP-USAF boys are moved over to the NGB doesn't make any difference to whether requests for CAP missions go through the state emergency management agency or the Adjutant General.  They can do what they want. 

Governors can already request CAP help now, so your idea of "operational control" by the state must be different in some way from that, but I'm just not seeing it.  Please explain. 

As it is, I don't see any way for states to have any real control over CAP without taking the steps I mentioned earlier.

[Eclipse]

Is a(n) Air NG/AF type of relationship possible for CAP?

No.

[Eagle400]

In fact, I think that making CAP a unit within the Air NG structure is the best organizational fit for our missions.

I agree, Kach. 

The Air National Guard is certainly more likely to allow CAP personnel to augment them than the active duty Air Force is.  CAP members could help fill the voids created by National Guard airmen deploying overseas.  I hope we see this sometime in the near future.       

[JohnKachenmeister]

CAP's dual role is that of AF Auxiliary and as a corporation, not as an instrument of state government.  The CAP corporation can chose to do certain activities in support of state and local governments and can chose to ask them to pay for it, and can even lobby for state liability and workers comp protections while doing them.  In some states we even have that. 

But, there is no authority in current federal statutes to allow for specific state control over any CAP activity.  You can have requests for CAP assistance run through any office of state government you want, but they're not going to be in control over CAP.  No matter where you make CAP's federal "home", each state is going to treat us according to our own needs.  Just because the CAP-USAF boys are moved over to the NGB doesn't make any difference to whether requests for CAP missions go through the state emergency management agency or the Adjutant General.  They can do what they want. 

Governors can already request CAP help now, so your idea of "operational control" by the state must be different in some way from that, but I'm just not seeing it.  Please explain. 

As it is, I don't see any way for states to have any real control over CAP without taking the steps I mentioned earlier.

Actually, your argument points out the very valid reasons for maintaining the staus quo, or transferring CAP to 1st Air Force.  Then, you point out that some states do exactly what is proposed, and apparently do it legally.  I guess I don't understand what you are saying.

I know of nothing in the nature of the implementing legislation that would prevent the US Air Force from assigning CAP under any AF command it has.  That is dependent on the AF, and where they see us as able to do the most for them.  We used to be under the "Continental Air Command" at one point.  So we could be assigned under ANG.  NGB is the next higher (and DoD) HQ of ANG, so assignment to NGB would actually take CAP out of the Air Force chain, so that is unlikely.

ANG has lots of units.  Fighters, Transports, Refuelers, etc.  The units remain ANG assets, under I think, a 3-star commander of ANG.  Unless they are called up for a federal mission, these units are under the operational control of the state Adjutant General.  He can deploy them on any mission he can pay for with state funds.

If CAP were under the ANG, each wing would be similarly OPCON'ed to the AG.  Then, the governor ould not ASK for CAP support for a disaster, he would direct the CAP to respond as a state force.  We can do that now through an MOU, so it is not illegal.  This would simplify and speed up the process of employing CAP in DR, and keep CAP under military command when responding to disasters. 

The AF could always use any CAP asset under Title 10 for any Federal mission, just as they can call up any ANG unit.  Federal calls get priority.

[Hoser]

Why not just leave well enough alone? After all we joined CAP as it is. It sounds like you're trying to make it something it's not nor was intended to be, a military organization.

Hoser

[ZigZag911]

How about this:

1) we remain largely as we are, a federally chartered, national organization

2) we ask Congress & USAF to make us full time AF Auxiliary again

3) as part of the legislation authorizing that, we ask Congres (with USAF concurrence) to authorize each state or territory to accept its CAP wing as the air component of the State Defense Force, under operational control of State Adjutant General/ANG for state missions.....this would no doubt require establishing parameters/requirements for state support....but it would also vastly simplify activation/utilization of CAP for appropriate state missions.

By the way, Nick, my JAG when I had the Group despises lawyers!

[RiverAux]

Kach, you misunderstand.  I am not saying there is anything preventing the entire CAP-USAF apparatus, including state directors, from being turned over the the NGB at the federal level.  We've been moved around many times and such a change would not require any changes in federal legislation. 

My point is that no matter where you put CAP-USAF and CAP in the federal government, it will not automatically give any Governor or state National Guard any authority over CAP.  Just because CAP is under the NGB doesn't mean that the Governor of Michigan can order Michgian Wing to do anything.  That Governor can ask Michigan Wing to do something under the existing MOU, but thats it.  CAP would still exist as an independent corporate entity that can do, or not do, missions at the REQUEST of a state. 

The point of my original post was that if you want the state AG or Governor to have actual control over any CAP activity, you're going to need to change both federal and state laws to make it happen. 

If CAP were under the ANG, each wing would be similarly OPCON'ed to the AG.  Then, the governor ould not ASK for CAP support for a disaster, he would direct the CAP to respond as a state force.  We can do that now through an MOU, so it is not illegal. 

wrong, wrong, wrong.  Please point out where in existing federal or state law where any state governor has the authority to ORDER CAP to do anything.  Existing MOUs do not give the state any authority over CAP, they just outline procedures by which states should make requests to CAP or the AF (depending on the mission).  If the Governor of Iowa needs a air photo flight, he can use that MOU to ASK Iowa Wing to do the mission, he can't order them to do it.  Putting CAP-USAF and CAP under NGB doesn't change that. 

Heck, you're forgetting that the AF can't order CAP to do a darn thing operationally.  All they can do is provide or withdraw funding.  What we do is entirely up to CAP.  If AFRCC decides to suspend a search, CAP can make the decision to keep looking under a corporate mission number and paid for with corporate or state funds (provided of course we don't get crosswise with the local authorities and what they're doing.  If AFRCC wants a search to continue and we want to stop for some reason, we can tell them to go stuff it and drive over to the bar.  Since this is the case with our current relationship with the AF, I just don't see how a move of the admin structure to NGB would suddenly give state governors authority to direct us to do anything.

[smj58501]

I just can't think of any non-military example of a state organization with dual state-federal status.   

Job Service I believe has a dual status identity, similar to the NG.

[JohnKachenmeister]

Kach, you misunderstand.  I am not saying there is anything preventing the entire CAP-USAF apparatus, including state directors, from being turned over the the NGB at the federal level.  We've been moved around many times and such a change would not require any changes in federal legislation. 

My point is that no matter where you put CAP-USAF and CAP in the federal government, it will not automatically give any Governor or state National Guard any authority over CAP.  Just because CAP is under the NGB doesn't mean that the Governor of Michigan can order Michgian Wing to do anything.  That Governor can ask Michigan Wing to do something under the existing MOU, but thats it.  CAP would still exist as an independent corporate entity that can do, or not do, missions at the REQUEST of a state. 

The point of my original post was that if you want the state AG or Governor to have actual control over any CAP activity, you're going to need to change both federal and state laws to make it happen. 

If CAP were under the ANG, each wing would be similarly OPCON'ed to the AG.  Then, the governor ould not ASK for CAP support for a disaster, he would direct the CAP to respond as a state force.  We can do that now through an MOU, so it is not illegal. 

wrong, wrong, wrong.  Please point out where in existing federal or state law where any state governor has the authority to ORDER CAP to do anything.  Existing MOUs do not give the state any authority over CAP, they just outline procedures by which states should make requests to CAP or the AF (depending on the mission).  If the Governor of Iowa needs a air photo flight, he can use that MOU to ASK Iowa Wing to do the mission, he can't order them to do it.  Putting CAP-USAF and CAP under NGB doesn't change that. 

Heck, you're forgetting that the AF can't order CAP to do a darn thing operationally.  All they can do is provide or withdraw funding.  What we do is entirely up to CAP.  If AFRCC decides to suspend a search, CAP can make the decision to keep looking under a corporate mission number and paid for with corporate or state funds (provided of course we don't get crosswise with the local authorities and what they're doing.  If AFRCC wants a search to continue and we want to stop for some reason, we can tell them to go stuff it and drive over to the bar.  Since this is the case with our current relationship with the AF, I just don't see how a move of the admin structure to NGB would suddenly give state governors authority to direct us to do anything.

OK, I understand your point now.

An MOU is a contract.  Depending on the wording of the contract, the parties can agree to an obligation to one another, or they can agree to mutual rights of refusal of any task under the MOU.

But the MOU is simply how we do things now.  The federal law establishing CAP does not require an MOU. It is worded in a vague fashion, and tasks CAP to provide services to states and local governments, among other things.  The method of accomplishing this support is left to be developed by CAP and the USAF.  The MOU has been the method up to now. 

IF CAP were to be transfered under the ANG, it would mean that an MOU with the state is not necessary.  The method of callups and the means to reimburse CAP for gas would be handled by orders from the ANG rather than a contract.

While this would be a major change in the way we do business, I don't see a need to change the federal law.   

[ZigZag911]

IF CAP were to be transfered under the ANG, it would mean that an MOU with the state is not necessary.  The method of callups and the means to reimburse CAP for gas would be handled by orders from the ANG rather than a contract.

While this would be a major change in the way we do business, I don't see a need to change the federal law.   

John, I agree that a re-structuring of some sort could, probably should, transform us into a state-level asset....hence my suggestion about us being 'adopted' by interested states as their Air SDF element. This would indeed eliminate the need for MOUs, and simplify our operations under state authority enormously.

However, I must agree with RiverAux that both federal & state legislation will be needed to make this possible. There are too many details and possible problems to leave it ambiguous.

[JohnKachenmeister]

Zig:

I don't see a SDF as an appropriate state "Home" for CAP.  State Defense Forces are completely different animals that have no federal function.

CAP would be a better fit with the Air National Guard.  The ANG is quite used to working under a dual chains of command, and their chain would parallel ours.

In other words, our wing commanders might have to respond to a state tasking to search for a missing child one day, and a federal tasking to respond to a missing aircraft search the next day.  Or, later the same day.  This is the ame as a commander of an Air Guard C-130 wing that might have a state mission to drop feed to cattle one day, and fly equipment to Iraq the next.  SDF's do not get federal taskings.

"Ambiguous" is the status of the current federal law.  Nothing in the current law requires MOU's, nor does anything prohibit the Air Force from reorganizing CAP to meet its statutory obligations through the Air National Guard and the state Adjutants General.

The disadvantage to this is that CAP wings would be unevenly supported and employed.  Some states would make good use of CAP assets, other states would let CAP "Die on the vine."

But... that is also pretty much the situation now, anyway.

[RiverAux]

IF CAP were to be transfered under the ANG, it would mean that an MOU with the state is not necessary.  The method of callups and the means to reimburse CAP for gas would be handled by orders from the ANG rather than a contract.

As long as CAP remains an independent corporation, an MOU or request for CAP service through NOC would still be necessary.  You're confusing the federal level National Guard Bureau with state military departments.  Even if CAP-USAF, which oversees CAP for the AF, were placed in the NGB (which it could), that doesn't change existing relationships with the states that CAP the corporation has developed.  You would need to dissolve the corporation and take many of the steps I outlined in my first post to change the situation to what you would like. 

[md132]

It's very much possible.  Look at what Maryland did.  Maryland Military Department recently signed an MOU with MD Wing.  But MD Wing and MDANG has been working together for several years.  One thing that is done is the MDANG Shadow Program.  Where MD Wing cadets spends time with MDANG personnel doing various jobs at ANG bases.  Also MD Wing has served them during Guard weekends.  MDNG has lend MD Wing Camp Frettred for Encampments and other activities.  There is a story about it on CAP HQ website and MD Wing Website.