This January 6, 2021 photo, provided by the United States Capitol Police on a warrant of appeal and arrest, shows Rocky Mount Police Department Sgt. Thomas "T.J." Robertson and officer Jacob Fracker in the Capitol in front of a statute for John Stark, an Revolutionary War officer known for writing the New Hampshire state motto: Live Free or Die.
United States Capitol Police | AP
The U.S. Army said Jacob Fracker – one of two off-duty Virginia police officers arrested on charges of rioting at the Capitol – is a non-commissioned officer in the Virginia National Guard.
Fracker is the first known active military service to be charged in the attack on the convention halls.
The disclosure of Fracker's status as a Guardsman comes as thousands of National Guard service members, some of whom are armed, provide security in and around the Capitol following the deadly January 6 riot.
President Donald Trump was charged Tuesday for inciting the mob that protested Joe Biden's election as president.
Fracker and his Rocky Mount, Va., Police officer Thomas Robertson, were seen posing for a photo and making obscene gestures in front of a statue in the Capitol during the invasion, such as those made at the U.S. District Court in Washington, D.C.
Other rioters killed Capitol Police officer Brian Sicknick that same day and beat and sprayed other police officers defending the complex.
Four other people died in the hand-to-hand combat, including an Air Force veteran Ashli Babbitt, a rioter who was shot and killed by police while attempting to climb through a blocked area in the House of Representatives.
Another member of the mob, retired Air Force Lieutenant Colonel Larry Rendall Brock Jr., was charged with the riot in which he was photographed in the Senate wearing a helmet and zippered handcuffs.
This undated photo, made available by the Grapevine, Texas Police Department in January 2021, shows Larry Rendall Brock Jr. during the deadly riot at the U.S. Capitol on Wednesday, January 6, 2021, Brock was helmeted in the Senate and heavy vest photographed and handcuffed with zip ties.
Grapevine, Texas Police Department via AP
Brock was handcuffed for "taking hostages" and possibly "executing members of the US government," a federal attorney told a judge who released Brock on Thursday in the Texas detention center.
On a social media post relating to the photo of him and Robertson, Fracker wrote, "Lol to anyone who may be concerned about the picture of me," according to the District of Columbia District Attorney's Office both pursued police officers.
"I'm sorry I hate freedom?" Fracker wrote. "Not as if I did anything illegal … you do what you think is necessary."
Robertson wrote in his own mocking post-attack social media post: "CNN and the left are just insane because we actually attacked the government that is the problem, and not some random small business."
"The right IN ONE DAY took the f ***** US Capitol. Keep nudging us," wrote Robertson, according to the prosecutor. In an Instagram post, Robertson wrote that he was "proud" of the photo because he was "ready to bring skin into play".
Both Fracker and Robertson are charged with knowingly entering or remaining in a restricted building or site without legal authority, once forcibly intruding and behaving in disorder for the purposes of the Capitol.
They are each free for an unsecured release loan of $ 15,000 and are not allowed to go to Washington or participate in demonstrations or protests while their criminal case continues.
Robertson told WSLS-10 News that the photo of him and Fracker "was taken long after a disturbance and we were admitted and escorted by the Capitol Police".
He also said, "I went through an open door that was guarded by two Capitol cops, was given a bottle of water by then and asked to stay in a rope area, which we did."
Dozens of other people were charged with the riot that began after Trump held a rally on the Ellipse calling on supporters to march to the Capitol and help him reverse Biden's election as president.
In a statement to CNBC, the National Guard said, "Jacob Fracker is a sergeant in the Virginia National Guard serving as an 11B infantryman in a traditional National Guard status where he typically trains one weekend a month and two weeks of annual training."
"He is currently not serving with the Virginia National Guard in Washington, DC." said the speaker. "The Virginia National Guard will be investigating the matter and we will be able to provide more information when this is complete."
In their own statement, the Rocky Mount Police Department said they are "taking this matter very seriously" and are investigating the incident.
In the meantime, Fracker and Robertson are on administrative leave pending this review, police said.
"The recent events in our US Capitol are tragic. We stand with and support those who denounced the violence and illegal activities that day," the department said.
In a statement on Tuesday, the army said it was working with the FBI to determine if anyone involved in last week's riots had any connection with the army.
"Any type of activity that involves violence, civil disobedience or a violation of the peace can be punished under the Unified Code of Military Justice or federal or state law," an army spokesman wrote in an email sent to CNBC Explanation.
Gary Reed, director of intelligence at the Pentagon, wrote in a statement Wednesday: "We in the Department of Defense are doing everything we can to eradicate extremism in the Department of Defense."
"DoD policy expressly forbids military personnel from actively advocating supremacist, extremist or criminal gang doctrine, ideology or causes," Reed wrote.