continued civilian employment exemption … technician legis packet - v114.pdf · guard in the 50...

www.liuna.org | 905 16th St NW | Washington, DC 20006 | Ph. 202-737-8320

LABORERS’

INTERNATIONAL UNION

OF NORTH AMERICA

CONTINUED CIVILIAN EMPLOYMENT

National Guard Dual-Status Technicians are a unique category of Federal civil service employee working for the Army and Air National Guard in the 50 states, 3 territories, and the District of Columbia. Their jobs range from helicopter, airplane, and tank mechanics to clerical and support workers.

FACT: A Technician’s civil service job is directly tied to their military membership.

CONCERN: Loss of their military membership triggers loss of civil service position.

PROPOSAL: Allow Technicians who have fulfilled certain time and service requirements to leave the military and be retained in a civilian position that is compatible with their qualifications.

These changes would allow the National Guard and DoD to retain valuable expertise while at the same time reducing mandatory spending. They also make operational and fiscal sense to allow an employee to continue serving in their civilian capacity if they are fully capable of doing so considering the costs associated with training a replacement.

These modifications can also help increase upward mobility for other members within the National Guard who are otherwise stuck in dead-end positions because the higher billets are being occupied by technicians that would have probably left the service were it not for themilitary membership requirement.

EXEMPTION FROM RETENTION BOARDS

The National Guard has not honored Congress'original intent to exempt Dual-Status Technicians from military retention boards. SASC Report No. 1446 dated July 22, 1968, made it clear that Technician employment was expected to be career employment, with retention of qualified Technicians in the military until age 60.

FACT: A Technician’s civil service job is directly tied to their military membership.

CONCERN: Termination of civil service position before reaching retirement age.

PROPOSAL: Enact legislation to specifically exclude Technicians who are fully qualified in their military position and are properly performing their technician job from involuntary separation.

These modifications will help the government save money by retaining top-notch and experienced personnel while at the same time ensuring that deserving employees are given the opportunity to serve long enough to reach their minimum civil service retirement age. It’s a ‘win-win’ for all concerned.

Please contact:

Leo Gannon Senior Legislative Representative LIUNA Washington DC 202-942-2256 [email protected]

Equality for National Guard Technicians

Continued Employment as Non-Dual Status (NDS)

Background

The National Guard Technician Act of 1968 requires that dual status technicians of maintain satisfactory military

membership as a condition of their Federal civilian employment. Unfortunately, National Guard members with 20 years

or more of creditable service face annual review boards that can discharge them from the military without any

explanation, even if they are fully qualified in their military position and properly performing their technician duties.

This practice hurts overall National Guard readiness because we lose valuable expertise and knowledge to an archaic

administrative process which fails to consider a member’s current satisfactory service or their ability to continue serving.

In addition to arbitrary review boards, the military’s strict physical requirements may deem a member medically unfit for

duty and cause them to be separated from service, subsequently ending their civilian employment even if they still fully

meet the requirements of their technician position, and even in cases where the medical condition is considered non-

debilitating outside of the military, like stomach ulcers or diabetes.

Consequently, when military medical disqualification triggers termination of a technician, that person automatically

becomes eligible for a civilian disability retirement under Federal law, regardless of age or years of service, which

increases mandatory spending.

PROPOSAL: Allow dual status technicians who have fulfilled certain time and service requirements to leave the military

and be retained in a civilian position within the National Guard or DoD that is compatible with their qualifications.

JUSTIFICATION: These changes would allow the National Guard and DoD to retain valuable expertise while at the

same time reducing mandatory spending. They also make operational and fiscal sense to allow an employee to continue

serving in their civilian capacity if they are fully capable of doing so considering the costs associated training a

replacement. These modifications can also help increase upward mobility for other members within the National Guard

who are otherwise stuck in dead-end positions because the higher billets are being occupied by technicians that would

have otherwise left the service were it not for the military membership requirement.

Protect NG Technician Positions After 20 Years of Service

Background

The primary purpose of the National Guard Technician Act of 1968 (the Act) was to standardize the retirement and fringe

benefits of National Guard technicians by granting them Federal employee status. The Act also requires dual-status

technicians to maintain satisfactory military membership in their respective branch of service as a condition of their

civilian employment.

Senate Armed Services Committee (SASC) Report No. 1446 dated July 22, 1968 examined in detail the potential for

involuntary separation as a result of the dual-status requirement. The report makes it clear that technician employment is

expected to be career employment, with retention of qualified technicians in the military until age 60:

Concerning technicians who are officers in the Reserves

The bill…contains a provision which will permit the Secretaries of the Army and the Air Force on a permissive

basis to retain Reserve officers who are technicians in an active military status until age 60, notwithstanding the

operation of the Reserve personnel laws which would eliminate them because of promotion pass-over or length of

service.

Concerning technicians who are enlisted in the Reserves

Under present regulations technicians holding enlisted grades are permitted to enlist in the Guard up to age 60.

The committee has been informally advised that the National Guard intends to continue this policy, with the result

that enlisted members should not be involuntarily retired through separation of job due to military promotion or

elimination factors. In other words, so long as an enlisted technician properly performs his job there should be no

grounds for his involuntary retirement.

The National Guard has not honored the original intent of Congress. Current regulations do not exempt technicians from

either the Army’s Qualitative Retention Program (AR 135-20) or the Air National Guard’s Selective Retention Program

(ANGI 36-2606), and technicians are often involuntarily separated from military service by these review boards before

reaching full retirement age even though they are properly performing their civilian job and are in full compliance with

military standards.

PROPOSAL: Enact legislation to specifically exclude technicians who are fully qualified in their military position and

are properly performing their technician job from involuntary separation.

JUSTIFICATION: To ensure Congressional intent is carried out so that technicians who are properly performing their

technician job and are in full compliance with the military requirements of their positions are not involuntarily separated

from service.

DRAFT LANGUAGE:

SEC. __. EXEMPTION OF MILITARY TECHNICIANS FROM REVIEW BY THE ARMY QUALITATIVE

RETENTION PROGRAM OR THE AIR FORCE SELECTIVE RETENTION PROGRAM

Section 10216(f) of title 10, United States Code, is amended to state as follows:

“(f) . Exemption from Consideration by Service Retention Boards. A military technician (dual status)

who is fully qualified in their military position and is properly performing their technician duties shall be retained

in the military, shall not be considered for involuntary separation by their military branch retention board

program, and shall be entitled to re-enlist if an enlisted member, so as to maintain eligibility for continued

employment as a military technician (dual status) as described in subsection (a) of this section.”

LABORERS’ INTERNATIONAL UNION

OF NORTH AMERICA

APPEAL RIGHTS FOR TECHNICIANS

The majority of Federal employees can appeal adverse personnel actions to the Merit Systems Protection Board (MSPB), Office of Special Counsel (OSC), or by seeking judicial review. These options provide employees with an independent & neutral third party to ensure Agency actions are legal. This includes prohibited personnel practices and retaliation for whistleblower disclosures.

FACT: Technicians are legally barred from seeking review of adverse personnel actions.

CONCERN: Without oversight there’s abuse.

PROPOSAL: Allow Technicians the same rights afforded other Federal employees under the law to appeal to the MSPB, OSC, and Federal Courts.

GAO reported in December 2003 that Technicians face at least two “significant restrictions” because most adverse actions cannot be appealed to the MSPB, and in the rare case that an action is appealable to the Board, the actual appeal is meaningless because under current law the MSPB “has determined that its orders are not enforceable against state National Guards, and for that reason, the board is without power to supply an effective remedy even in the instance of a federal employee who can prevail on the merits of a civilian whistleblower protection act claim.”

Without oversight there’s the opportunity for abuse, and we can demonstrate time after time where Adjutant Generals have allowed adverse personnel actions to stand that would have been overturned by an arbitrator or the MSPB.

IT’S ABOUT CIVIL RIGHTS

The current legal structure denies Technicians their civil rights. Considering that Technicians serve our Nation, simultaneously, in both a civil service and military capacity, it is a dishonor that those who would devote the most time to defend our freedoms are at the same time deprived from the protections their service guarantee to the rest of us. We believe that now is the time to make meaningful changes to an outdated law.

CALL TO ACTION

The National Guard Technician Act was enacted in 1968 (32 USC § 709). There is no doubt that the 21st Century National Guard is much different than its 1968 predecessor.

A Technician is a Federal civil service employee (10 USC § 10216(a)(1)), and an employee of the Dept. of the Army or Air Force, as the case may be, and an employee of the United States (32 USC § 709(e)). As such they should be afforded the same right to due process as every other civilian employee.

We ask that you join us in defending those that protect us.

Please contact:

Leo Gannon Senior Legislative Representative LIUNA Washington DC 202-942-2256 [email protected]

Justice for National Guard Technicians

www.liuna.org | 905 16th St NW | Washington, DC 20006 | Ph. 202-737-8320

The Need for Appeal Rights for National Guard Technicians

Background

The vast majority of Federal civilian employees may appeal or seek review of adverse administrative personnel actions by

filing a grievance (and pursuing arbitration, if necessary) under 5 USC § 7121, filing an appeal with the Merit Systems

Protection Board (MSPB), filing a complaint with the Office of Special Counsel (OSC), or seeking judicial review under

5 USC § 7703. These options offer Federal employees the opportunity to have an independent neutral party make

decisions on disputes arising out of: adverse personnel actions; prohibited personnel practices; the Whistleblower

Protection Act; the Hatch Act; and USERRA. National Guard technicians are legally barred from these appeal options

even though they are considered Federal civilian employees by statute.

National Guard Technician Act of 1968 (32 USC § 709) Limits Review of Adjutants General Decision

The Technician Act does not allow appeals of adverse personnel actions beyond the Adjutants General of their respective

state or territory (ref. 32 USC § 709(f)(4) and (g)). This bar applies to any adverse personnel action be it a reduction in

force (RIF), removal, suspension, reduction in grade, or furlough even if the action resulted from a prohibited personnel

practice, and even in cases of proven whistleblower reprisal.

The Government Accountability Office (GAO) reported in December 2003 that technicians face at least two “significant

restrictions” because most adverse actions cannot be appealed to the MSPB, and in the rare case that an action is

appealable to the Board, the actual appeal is meaningless because under current law the MSPB “has determined that its

orders are not enforceable against state National Guards, and for that reason, the board is without power to supply an

effective remedy even in the instance of a federal employee who can prevail on the merits of a civilian whistleblower

protection act claim.”1

Without oversight there’s the opportunity for abuse, and we can demonstrate time after time where Adjutant Generals

have allowed adverse personnel actions to stand that would have been overturned by an arbitrator or the MSPB.

Grant Technicians Equity under the Law

Extend technicians the same rights afforded other Federal employees under the law to appeal and seek review of adverse

personnel actions directly related to duties as civilian employees.

Draft Language

SEC. __. MERIT SYSTEMS PROTECTION BOARD AND JUDICIAL REMEDIES FOR NATIONAL GUARD

TECHNICIANS.

(a) Section 709(f) of title 32, United States Code, is amended by deleting “Notwithstanding any other provision of law and

under” and substituting therefor “Under”.

(b) Section 709(f)(4) of title 32, United States Code, is amended to state, “a right of appeal which may exist with respect

to paragraph (1) shall not extend beyond the adjutant general of the jurisdiction concerned; and”

(c) Section 709(g) of title 32, United States Code, is amended to state, “Sections 2108 of title 5 does not apply to a person

employed under this section.”

(c) Section 7511(b)(5) of title 5, United States Code is repealed and paragraphs (6)-(10) of section 7511(b) are

renumbered (5)-(9) respectively.

1 Singleton v. Merit Systems Protection Board, 244 F. 3d 1331 (Fed. Cir. 2001)

Differences in National Guard (NG) Technician Equity Act 112th Congress and 113th Congress 112th Congress 113th Congress Sponsors/Cosponsors No GOP Support Bipartisan Support

Main Provisions Protect NG Technician Positions After 20 Years of Service

Allows NG techs to serve without being involuntarily separated from the military unless for cause or failure to meet military standards (as originally intended by Congress).

No change.

Continued Employment as Non-Dual Status (NDS)

Allows NG techs to keep their civilian position if they are involuntarily separated from the military (except for cause or failure to meet military standards).

Adds a review by OPM, which oversees Federal personnel per recommendation by Senate GOP office.

The Need for Appeal Rights for NG Technicians

Allows NG techs to have the same appeal rights to a neutral party as other Federal civilian employees.

No change.

Other Provisions Improve Health Care Benefits for NG Technicians

Requested a study of what it would cost to include NG techs in the TRICARE Reserve Select Program. Also allowed for the deduction of FEHBP premiums directly from State Active Duty pay.

Dropped provision allowing for the payment of FEHBP premiums while on State Active Duty.

Military Leave Accrual of Federal Employees who Volunteer for AGR Tours

Not included. Prohibits Federal employees who are also in the Reserve or National Guard from earning military leave under Section 6323 of title 5 while on a voluntary Active Guard Reserve (AGR) tour.

Study Military Leave Provided to Federal Employees under 5 USC 6323

Doubled the statutory amount of leave from 120 to 240 hours to comply with activation requirements of the NG.

Require a study on the actual number of hours that Federal employees in the National Guard use every year for military activations, including training.

Provide NG Technicians the Option to Receive Overtime Pay

Would have allowed NG techs to receive overtime pay for overtime worked like other Federal civilian employees.

Allows NG techs the option to pay-out their comp time; much less expensive than overtime pay.

Deleted Provisions RIF rights Would have provided NG techs the same reduction-

in-force rights as other Federal civilian employees.

Bonuses & Student Loan Repayment

Would have allowed NG techs to receive and keep enlistment/re-enlistment bonuses and participate in student loan repayment programs.

Retirement Would have lowered the military retirement age to 55 for all NG members; eliminated the 1996 cut-off date for NG techs to allow the special category retirement across the board.

S.2312 - National Guard Technician Equity

Act, 113th Congress (2013-2014)

Bill

Sponsor: Sen. Reed, Jack [D-RI] (Introduced 05/08/2014)

Committees: Senate - Armed Services

Latest Action: 05/08/2014 Read twice and referred to the Committee on Armed Services.

Summary:

National Guard Technician Equity Act - Provides a person the right to be employed as a non-

dual status technician if: (1) the technician position has been designated to be filled only by a

non-dual status technician, or (2) the person occupying the technician position has at least 20

years of service as a dual status military technician.

Repeals: (1) the permanent limitation on the number of non-dual status technicians, and (2) the

prohibition against overtime pay for National Guard technicians.

Allows military technicians who were hired as dual status technicians but are no longer members

of the Selected Reserve to continue to receive compensation.

Requires dual status military technicians who are fully qualified for, and properly performing,

the duties of such position to be: (1) retained in the Armed Forces, (2) exempt from

consideration for involuntary separation by a military retention board, and (3) entitled to re-enlist

as enlisted members so as to maintain their eligibility for continued employment as dual status

military technicians.

Provides for a technician's rights of grievance, arbitration, appeal, and review beyond the current

stage of the adjutant general of the jurisdiction concerned.

Prohibits federal employees who volunteer for active National Guard and Reserve duty from

accruing military leave at the rate of 15 days each fiscal year for active duty, inactive duty

training, or funeral honors duty in the National Guard or Reserves.

Directs the Comptroller General to evaluate the feasibility of converting military technicians

from coverage under the Federal Employees Health Benefits Program (FEHBP) to coverage

under the TRICARE Reserve Select option of the TRICARE program.

https://beta.congress.gov/member/john-reed/949

II

000TH CONGRESS 0D SESSION S.000 /HR.000

To amend titles 5, 10, and 32, United States Code, to eliminate inequities

in the treatment of National Guard technicians, and for other purposes.

IN THE SENATE/HOUSE OF THE UNITED STATES

DATE

Mr./Mrs. introduced the following bill; which was read twice and referred to

the Committee on Armed Services

A BILL To amend titles 5, 10, and 32, United States Code, to

eliminate inequities in the treatment of National Guard

technicians, and for other purposes.

Be it enacted by the Senate and House of Representa-1

tives of the United States of America in Congress assembled, 2

SECTION 1. SHORT TITLE.3

This Act may be cited as the ‘‘National Guard Tech-4

nician Equity Act’’. 5

SEC. 2. TITLES 10 AND 32, UNITED STATES CODE, AMEND-6

MENTS REGARDING NATIONAL GUARD TECH-7

NICIANS AND RELATED PROVISIONS. 8

(a) AUTHORITY TO EMPLOY TECHNICIAN AS NON- 9

DUAL STATUS TECHNICIAN AFTER 20 YEARS OF CRED-10

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ITABLE SERVICE.—Subsection (c) of section 709 of title 1

32, United States Code, is amended to read as follows: 2

‘‘(c) A person shall have the right to be employed 3

under subsection (a) as a non-dual status technician (as 4

defined by section 10217 of title 10) if— 5

‘‘(1) the technician position occupied by the 6

person has been designated by the Secretary con-7

cerned to be filled only by a non-dual status techni-8

cian; or 9

‘‘(2) the person occupying the technician posi-10

tion has at least 20 years of creditable service as a 11

military technician (dual status).’’. 12

(b) EXCEPTION TO DUAL-STATUS EMPLOYMENT 13

CONDITION OF MEMBERSHIP IN SELECTED RESERVE.— 14

Section 10216 of title 10, United States Code, is amend-15

ed— 16

(1) in subsection (a)(1)(B), by inserting ‘‘sub-17

ject to subsection (d),’’ before ‘‘is required’’; and 18

(2) in subsection (d)(1), by striking ‘‘Unless 19

specifically exempted by law’’ and inserting ‘‘Except 20

as provided in section 709(c)(2) of title 32 or as oth-21

erwise specifically exempted by law’’. 22

(c) CONTINUED COMPENSATION AFTER LOSS OF 23

MEMBERSHIP IN SELECTED RESERVE.—Subsection (e) of 24


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section 10216 of title 10, United States Code, is amended 1

to read as follows: 2

‘‘(e) CONTINUED COMPENSATION AFTER LOSS OF 3

MEMBERSHIP IN SELECTED RESERVE.—Funds appro-4

priated for the Department of Defense may continue to 5

be used to provide compensation to a military technician 6

who was hired as a military technician (dual status), but 7

who is no longer a member of the Selected Reserve.’’. 8

(d) EXEMPTION OF MILITARY TECHNICIANS FROM 9

REVIEW BY ARMY QUALITATIVE RETENTION PROGRAM 10

OR AIR FORCE SELECTIVE RETENTION PROGRAM.—Sub-11

section (f) of such section is amended to read as follows: 12

‘‘(f) EXEMPTION FROM CONSIDERATION BY ARMED 13

FORCES RETENTION BOARDS.—A military technician 14

(dual status) who is fully qualified in the technician’s mili-15

tary technician (dual status) position and is properly per-16

forming the technician’s military technician duties in such 17

position— 18

‘‘(1) shall be retained in the armed forces; 19

‘‘(2) may not be considered for involuntary sep-20

aration by a retention board of the armed force con-21

cerned; and 22

‘‘(3) shall be entitled to re-enlist as an enlisted 23

member so as to maintain eligibility for continued 24

employment as a military technician (dual status).’’. 25


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(e) REPEAL OF PERMANENT LIMITATIONS ON NUM-1

BER OF NON-DUAL STATUS TECHNICIANS.—Section 2

10217 of title 10, United States Code, is amended by 3

striking subsection (c). 4

(f) TECHNICIAN RESTRICTED RIGHT OF APPEAL 5

AND ADVERSE ACTIONS COVERED.— 6

(1) RIGHTS OF GRIEVANCE, ARBITRATION, AP-7

PEAL, AND REVIEW BEYOND AG.—Section 709 of 8

title 32, United States Code, is amended— 9

(A) in subsection (f)— 10

(i) in the matter preceding paragraph 11

(1), by striking ‘‘Notwithstanding any 12

other provision of law and under’’ and in-13

serting ‘‘Under’’; and 14

(ii) in paragraph (4), by striking ‘‘a 15

right of appeal’’ and inserting ‘‘subject to 16

subsection (j), a right of appeal’’; and 17

(B) by adding at the end the following new 18

subsection: 19

‘‘(j)(1) Notwithstanding subsection (f)(4) or any 20

other provision of law, a technician and a labor organiza-21

tion that is the exclusive representative of a bargaining 22

unit including the technician shall have the rights of griev-23

ance, arbitration, appeal, and review extending beyond the 24

adjutant general of the jurisdiction concerned and to the 25


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Merit Systems Protection Board and thereafter to the 1

United States Court of Appeals for the Federal Circuit, 2

in the same manner as provided in sections 4303, 7121, 3

and 7701–7703 of title 5, with respect to a performance- 4

based or adverse action imposing removal, suspension for 5

more than 14 days, furlough for 30 days or less, or reduc-6

tion in pay or pay band (or comparable reduction). 7

‘‘(2) This subsection does not apply to a technician 8

who is serving under a temporary appointment or in a trial 9

or probationary period.’’. 10

(2) ADVERSE ACTIONS COVERED.—Section 11

709(g) of title 32, United States Code, is amended 12

by striking ‘‘7511, and 7512’’. 13

(3) CONFORMING AMENDMENT.—Section 14

7511(b) of title 5, United States Code, is amend-15

ed— 16

(A) by striking paragraph (5); and 17

(B) by redesignating paragraphs (6) 18

through (10) as paragraphs (5) through (9), re-19

spectively. 20

(g) REPEAL OF PROHIBITION AGAINST OVERTIME 21

PAY FOR NATIONAL GUARD TECHNICIANS.—Section 22

709(h) of title 32, United States Code, is amended by 23

striking the second sentence and inserting the following 24

new sentence: ‘‘Notwithstanding section 5542 or 5543 of 25


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title 5 or any other provision of law, the Secretary con-1

cerned shall pay a technician for irregular or overtime 2

work at a rate equal to the rate of basic pay applicable 3

to the technician, except that, at the request of the techni-4

cian, the Secretary may grant the technician, instead of 5

such pay, an amount of compensatory time off from the 6

technician’s scheduled tour of duty equal to the amount 7

of time spent in such irregular or overtime work.’’. 8

SEC. 3. TITLE 5, UNITED STATES CODE, AMENDMENT RE-9

GARDING NATIONAL GUARD TECHNICIANS 10

AND RELATED MATTERS. 11

(a) LEAVE.— 12

(1) IN GENERAL.—Section 6323(a) of title 5, 13

United States Code, is amended— 14

(A) in paragraph (1), by striking ‘‘para-15

graph (2)’’ and inserting ‘‘paragraphs (2) and 16

(3)’’; 17

(B) by redesignating paragraph (3) as 18

paragraph (4); and 19

(C) by inserting after paragraph (2) the 20

following new paragraph (3): 21

‘‘(3) An employee described in paragraph (1) who vol-22

unteers for active Guard and Reserve duty (as described 23

in section 101(d)(6) of title 10) or training or duty under 24


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section 502(f) of title 32 shall not accrue leave under this 1

subsection.’’. 2

(2) REPORT.—Not later than 180 days after 3

the date of the enactment of this Act, the Secretary 4

of Defense shall submit to Congress a report setting 5

forth the following: 6

(A) A description of the average number of 7

hours per fiscal year that a Federal employee 8

who is also a member of the National Guard 9

spends in any type of leave status (including 10

leave without pay) in order to cover periods of 11

active duty for training or inactive-duty train-12

ing (as defined in section 101 of title 37, 13

United States Code), or to engage in other 14

training under sections 502–505 of title 32, 15

United States Code. 16

(B) An assessment whether leave provided 17

under section 6323(a) of title 5, United States 18

Code (as amended by paragraph (1)), is ade-19

quate to cover the operational tempo of the Na-20

tional Guard. 21

(b) COMPTROLLER GENERAL OF THE UNITED 22

STATES REPORT ON HEALTH CARE BENEFITS.— 23

(1) IN GENERAL.—Not later than 180 days 24

after the date of the enactment of this Act, the 25


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Comptroller General of the United States shall sub-1

mit to Congress a report setting forth the following: 2

(A) An evaluation of the feasibility of con-3

verting military technicians from FEHBP cov-4

erage to coverage provided under the 5

TRICARE Reserve Select option of the 6

TRICARE program. 7

(B) A description of any problems associ-8

ated with the conversion of military technicians 9

from FEHBP coverage to coverage provided 10

under chapter 55 of title 10, United States 11

Code, during contingency operations. 12

(2) DEFINITIONS.—In this subsection: 13

(A) The term ‘‘contingency operation’’ has 14

the meaning given that term in section 15

101(a)(13) of title 10, United States Code. 16

(B) The term ‘‘FEHBP coverage’’ means 17

coverage provided under chapter 89 of title 5, 18

United States Code. 19

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continued civilian employment exemption … technician legis packet - v114.pdf · guard in the 50...

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