Title 38: Militia, Soldiers, Sailors and Marines

Section 1: Legal Paraphrase

Title 38 of the New Jersey Revised Statutes consolidates the State's military law: it organizes and regulates the militia — the New Jersey National Guard and State Guard — and defines the authority of the Governor and Adjutant General over it. Beyond the armed forces themselves, the Title safeguards the rights of service members and veterans in civilian life. It grants public employees a protected leave of absence and reemployment rights when they enter active military or National Guard service (N.J.S.A. 38:23-1 to -6), forbids removal of honorably discharged veterans from public office except for cause after a fair hearing (N.J.S.A. 38:16-1), secures civil relief for service members on obligations and litigation (N.J.S.A. 38:23C), and provides veterans' benefits including license reinstatement, guaranteed loans, and burial of indigent veterans (N.J.S.A. 38:17, 38:23A, 38:23B). The Title operates through grants of job security, procedural protections, and benefit programs administered by State and local government.

Section 2: ELI-10 Explanation

Imagine your school has crossing guards who also help put out fires at night. Title 38 is New Jersey's promise to people like them — soldiers, sailors, and members of the National Guard — that says: "When you go away to protect us, we will take care of you." If a police officer, teacher, or town worker is called up for military duty, this law makes the government hold their job open, keep paying their pension, and welcome them back when they return. It also says a veteran who works for the state or a town cannot be fired just because a new boss doesn't like them — the boss has to show real, fair reasons at a hearing. And if a soldier is away fighting, the law stops banks and courts from taking their car or house while they cannot defend themselves. It is the state's way of saying thank you, in the form of rules that protect people who protect us.

Section 3: General Application & Case Example 1

How It Is Applied

Title 38's employment-protection chapters govern public employment at every level — State, county, municipal, and school districts. They use three mechanisms: a mandatory leave of absence with reemployment rights for employees entering active military or National Guard service (N.J.S.A. 38:23-4); a prohibition on removing honorably discharged veterans from public employment "except for good cause shown after a fair and impartial hearing," conferring tenure during good behavior (N.J.S.A. 38:16-1); and preservation of pension rights during service (N.J.S.A. 38:23-5). Affected employers must hold positions open and can discipline or discharge protected veterans only through cause-based proceedings; employees enforce the rights by suit in the Law Division, with Appellate Division review. Courts have also delimited the statutes: 38:16-1 yields where it would conflict with the Rules of Professional Conduct governing public attorneys, confirming that veteran protections are powerful but not absolute.

Case Example

• Case Name & Citation: Kirk C. Nelson v. Elizabeth Board of Education, A-4580-18T3 (N.J. Super. Ct. App. Div. Jan. 26, 2021)
• Statute Applied: N.J.S.A. 38:16-1
• Brief Summary: Nelson, a veteran and the Board's in-house counsel hired under a fixed-term contract dischargeable only for cause, was fired and won $260,026.88 in lost wages at trial. On appeal the Board argued professional-conduct rules permitted termination, and Nelson pressed (in cross-appeal argument context) veterans' tenure rights under N.J.S.A. 38:16-1. The court reaffirmed the statute's scope — it confers no tenure on board counsel because it "does not govern the attorney-client relationship" and "must give way to the [RPC]" — while affirming Nelson's contract damages because he sought payment for a fixed term, not reinstatement. The decision shows courts both enforcing Title 38 protections and defining their boundaries.
• Source Link: https://www.njcourts.gov/system/files/court-opinions/2021/a4580-18.pdf

Section 4: ELI-10 Application & Case Example 2

Real World Example (Explained Simply)

Imagine Mr. Rivera, an Air Force veteran, is the town's building inspector. A new mayor dislikes him and orders him fired. Under N.J.S.A. 38:16-1 the mayor cannot just fire him — a veteran with an honorable discharge can be removed only for real, proven reasons after a fair hearing. Even then, the law protects him from being dismissed simply for politics. Now imagine Ms. Kim, a town clerk called up for six months of National Guard training: N.J.S.A. 38:23-4 orders her employer to grant leave, keep her pension growing, and reinstate her when she returns. Both rules share one idea — serving the country must not cost a New Jersey worker their job — and a veteran whose rights are violated can sue to get their job or wages back.

Case Example

• Case Name & Citation: Taylor v. Board of Education of Hoboken, 187 N.J. Super. 546, 455 A.2d 552 (App. Div. 1983)
• Statute Applied: N.J.S.A. 38:16-1
• Brief Summary: Taylor was discharged from his position as school board attorney and sued, claiming "veteran's tenure" under N.J.S.A. 38:16-1. The Appellate Division denied the claim, holding the statute "does not govern the attorney-client relationship" and "must give way to the [RPC]." The decision illustrates how courts apply the veterans' tenure shield yet confine it where it would clash with a professional's separate ethical duties.
• Source Link: https://law.justia.com/cases/new-jersey/appellate-division-published/1983/187-n-j-super-546-0.html
• Citation corrected 2026-08-31: this entry previously read "187 N.J. Super. 552 (App. Div. 1982)". The opinion begins at page 546 and was decided in 1983; 552 is the page in the Atlantic Reporter (455 A.2d 552). No decision in volume 187 N.J. Super. begins at page 552.