TITLE 32 MILITARY TECHNICAN CONVERSION TO TITLE 5 EMPLOYEES

INFORMATION PAPER SUMMARY

The fiscal year (FY) 2016 National Defense Authorization Act (NDAA) requires that a certain number and

type of state-managed National Guard military technicians be converted to federally-managed civilian

employees (Section 1053). Forty-four governors sent a letter to Congressional leadership in March

expressing concerns that the provision will negatively impact National Guard readiness, increase costs and

reduce resources available to states during times of emergency. The letter urged Congress to maintain state

authority over full-time military technicians to ensure effective management of National Guard forces when

not in federal status.

A working group of adjutants general was convened to provide additional information to Congress on

state administration of the Military Technician program and likely impacts of the conversion provision

in the field. The issues studied by the working group and its initial findings are summarized below.

KEY PRIORITIES FOR STATES

Prevent unintended consequences to National Guard readiness.

Protect the resources available to states and the federal government for immediate response.

Maintain states’ flexibility in managing and accessing full-time staff.

Retain state management over administration of personnel.

Allow time for continued discussion and analysis of potential improvements to the Military

Technician program and mitigation of concerns with the Section 1053 provision as enacted.

SUMMARY OF AREAS OF STUDY

Impact on Readiness for State Missions

o The National Guard full-time force is essential to maintaining task-organized unit readiness

for state missions.

o Dual-Status Technicians are the most flexible and immediately available full-time resource

governors have - and therefore depend on - for responding to state emergencies.

o The conversion of Technicians to Title 5 civilian employee status decreases state

emergency response capacity primarily because Title 5 employees are not subject to a

governor’s emergency powers and cannot be involuntarily used in emergency response.

o Implementation of the conversion of Military Technicians under Section 1053 would result

in the loss of nearly 10,000 Dual-Status Technicians available for no-notice/time-sensitive

state response in support of civil authorities.

Impact on Readiness for Federal Missions

o Military Technicians provide critical full-time support and continuity in the operation and

training of National Guard units.

o They are the only immediately available full-time force for mobilizing, training and

deploying the balance of the traditional part-time force for federal combat operations and

federal response to catastrophic emergencies at home.

o Many military responders following the 9/11 terrorist attacks were Military Technicians

who were available for no-notice mobilization under a federal call for assistance.

o The September 2013 Center for Naval Analysis study which reviewed the Military

Technician program acknowledges the adverse impact of converting all but a limited

number of Title 32 Military Technicians to Title 5 civilian employees due to readiness and

cost concerns.

2

Employee Due Process Rights

o The critical military mission and unique state and federal operational requirements of the

National Guard, distinguishes the federal Military Technician program from other federal

employment programs, such as Title 5 employees.

o The Military Technician Act of 1968 expressly recognized the military requirements and

state characteristics of the National Guard by providing for certain statutory administrative

authority at the state level with respect to the Technician program.

o Both the Title 32 Military Technician program and the Title 5 civilian employee system

provide full due process protections as prescribed by federal law and federal court

decisions.

o Military Technicians receive the full due process provided by law and federal court

decisions for the specially focused Military Technician program.

Employee Access to Benefits

o The purpose of the Military Technician Act of 1968 was to address the lack of uniformity

in fringe benefits paid to “state military technicians” who were originally state employees

whose salaries were paid in full by the federal government.

o Employees in the Title 32 Military Technician program, like their Title 5 civilian employee

counterparts, enjoy access to processes for administrative appeal and adjudication of EEO

complaints.

o Many key benefits exist in both employment systems, but where there are differences, they

are driven by the mission requirements of the individual program.

o Title 5 is the system to provide standardization in human resources across federal

organizations with varied missions, however, many agencies, programs and positions have

exemptions based on a workforce that is uniquely different from the “regular” civil service

or organizations that have a critical mission.

o Congress considered the military mission of the technicians to be paramount.

Military Technician Position Descriptions

o All Dual-Status Technicians have a position description that is approved by the National

Guard Bureau in compliance with federal Office of Personnel Management standards.

o States are required to use these program descriptions and may assign Technicians only to

those program descriptions approved by the National Guard Bureau.

o The 0300 occupational series (i.e. general administrative, clerical and office support) is

used throughout the Guard for critical leadership and program management positions such

as wing commanders, directors, aircraft maintenance officers, brigade and battalion

administrative officers, and logistics management specialists.

Non-Dual Status Technician Force

o Non-Dual Status (NDS) Technicians hold a unique function and importance to National

Guard force structure.

o NDS positions provide Adjutants General with a limited, but ready pool of non-deployable

full-time employees during periods of high federal mission “churn” and deployment of

large segments of National Guard forces available for emergency response.

o Elimination or substantial reduction of NDS positions would strip federal and state

authorities of important human resources for managing real property, facilities, equipment

and supplies, especially during periods of high turnover or large-scale deployments.

INFORMATION PAPER

Title 32 Military Technician Conversion to Title 5 Employees Impact on National Guard Readiness for State Missions

   1.   Purpose: To provide an overview of Section 1053 and the relationship between Title 32

Military Technician status and readiness of the National Guard for short-notice and pre-planned state missions.

2.   Executive Summary: Converting Title 32 federal Military Technicians to Title 5 federal civilian employees has a direct and long-lasting adverse impact on National Guard Readiness for State Missions. The negative impacts of the conversion are compounded by the fact that “Much of America's Army's capacity is resident in the reserve components and we must rely more heavily on them to meet the demands of a complex global environment.”1 Today’s complex global environment now includes domestic vulnerabilities that in many respects make U.S. states and communities “ground zero” in a new transnational battle space. The National Guard provides essential capabilities the nation depends upon for saving lives, protecting property, and helping communities respond to and recover from adaptive human threats and other emergencies in every state and territory. The Guard’s ability to support state and local civil authorities is placed directly at risk by Section 1053 of the FY 2016 NDAA, as written, because Title 32 federal Military Technicians are the foundation of the Guard’s readiness, agility and operational capability for responding to threats in the homeland.

3.   Facts: For more than a century, Congress has recognized the importance of the full-time “Military Technician” force and its essential role in assuring the military readiness of the National Guard. Beginning with the Militia Act of 1903 (32 Stat. 775),2 also known as "The Efficiency in Militia Act of 1903" or simply as “the Dick Act”, Congress has enacted legislation codifying the circumstances under which the National Guard can be federalized and providing federal funds for equipping and training the Guard, including the employment of full time employees with a unique dual military-civilian occupational status. Until 1968 these full time Military Technicians were state employees – state appointed, administered, supervised and disciplined – although their salaries were funded by the federal government. This specialized military-civilian employment scheme was refined and enhanced by passage of the National Guard Technician Act of 1968 in which Congress converted the existing full time National Guard military technician force from State to Federal employment status effective January 1, 1969.3 In return for Congress continuing to fund the full-time military support force and having the force controlled and supervised by the states according to federal standards, the National Guard organized its units to conform with the regular Army and Air Force and meet the same training, education and readiness requirements as active duty units. These changes greatly strengthened the National Guard.

a.   The unique military-civilian employment program refined by the National Guard Technician Act of 1968 provides flexibility by allowing Title 32 Dual-Status Military Technicians to work in positions that organize, administer and train the National Guard force, maintain and repair equipment and supplies, and perform other authorized duties while maintaining required, simultaneous military membership in task-organized National Guard units.4

2  

b.   Federal Military Technicians employed by the National Guard are regulated by Title 32 USC§709 and classified as either dual status (DS) or non-dual status (NDS) military technicians. Dual Status military technicians are required to maintain military membership in the National Guard as a condition of their continued National Guard employment. Non-dual status military technicians are not required to maintain military membership in the Guard; however the number of non-dual status military technicians is extremely limited and is regulated by 10 USC 10217(c)(2).5

c.   All dual-status technicians have a position description that is approved by the National Guard Bureau as the Executive Agent for the Secretaries of the Army and Air Force. These federally controlled position descriptions assure military compatibility and a direct nexus to the National Guard’s federal military mission and purpose.

d.   Traditional part-time citizen soldiers (often referred to as M-Day Soldiers) make up 86% of the Army National Guard’s end strength of 350,000 soldiers. These citizen soldiers continually strive to meet state and federal calls to arms in the shortest time possible. In order to generate and maintain both military member and unit readiness, the Army and Air National Guard are allocated full-time soldiers and airmen, respectively, who manage readiness levels within task-organized military units and ensure critical tasks are completed.

e.   Section 1053 of the FY2016 NDAA requires the conversion from dual military-civilian status to pure civilian employee status of not less than 20 percent of all Title 32 dual-status (DS) technicians in general administration, clerical, and office service occupation positions and conversion of all non-dual status (NDS) military technicians to civilian employee positions under section 3103 of Title 5 effective January 2017. This mandated conversion dramatically and irreversibly impacts National Guard Readiness for State Missions. The Chief of the National Guard Bureau recently testified to Congress that converting Dual Status Technicians into federal civilian employees will unquestionably degrade the Guard's ability to respond to domestic emergencies.6

f.   The National Guard provides capabilities that save lives, protect property and assist communities in responding to and recovering from adaptive human threats and other hazards and emergencies. Each state is responsible for providing vital capabilities in support of National Guard Support to Civil Authorities, , including Command and Control, Logistics, Aviation, Security, Engineering, Transportation, Medical, CBRN, Maintenance, and Communication.

g.   In the aggregate, the National Guard’s authorized Military Technician force provides significant capabilities essential to the safety and security of the American public. Technician End Strength has historically correlated to the authorized Military Force Structure (i.e. to the authorized size of the overall Army and Air National Guard uniformed force). Consequently, if the Section 1053 conversion of Federal Technicians to Title 5 civilian employees is implemented there will be nearly 10,000 fewer Dual-Status Military Technicians available for no-notice/ time-sensitive state responses in support of civil authorities across all states and territories. This loss of response capacity for domestic emergencies, natural disasters and acts of terrorism significantly

3  

reduces the ability of every State and territory to assist State and local first responders in protecting life, property, the environment and the economy of the state and surrounding region.

Military Technicians Statistics

Category Army National Guard Air National Guard Totals

Dual-Status Military Technicians

25,507 22,104 47,611

Non-Dual Status Technicians

1,600 350 1,950

h.   The National Guard full-time force is the very foundation of National Guard readiness. All full-time National Guard employees are essential to maintaining task-organized unit readiness for State missions. The full-time National Guard force is employed under several distinct authorities: Active Guard and Reserve (AGR) Title 32, Dual-Status Military Technician Title 32, Non-Dual Status Title 32, Title 5 Federal Employees, State Employees, Contractors, and Active Duty Operational Support (ADOS) members of the Guard. Of these categories of employment, Dual Status Military Technicians are the most flexible and immediately available full-time resource Governors have and therefore depend upon for responding to state emergencies, including emergencies that threaten regional and national security.

i.   The conversion of Dual Status Title 32 Technicians to Title 5 civilian employees reduces National Guard readiness by shrinking the pool of full-time military members who are readily available and can therefore be ordered to State Active Duty by the Governor under State emergency powers. In addition to substantially shrinking the pool of these full-time responders, Section 1053 also undermines unit cohesion, eliminates key developmental positions for military members, and reduces the Adjutant General’s ability to manage a blended full-time and part-time military force.

j.   Section 1053, as written, targets the 0300 occupational series (i.e. general administrative, clerical and office support) used throughout the Guard for leadership development and program management positions such as wing commanders, directors, aircraft maintenance officers, brigade and battalion administrative officers, and logistics management specialists.

k.   Dual Status Military Technicians are embedded within the unit structures of all Army and Air National Guard units and bring their experience and job skills to bear during all drill periods, training assemblies and other military formations outside normal work hours when civilian employees are not present. Changing the legal status and force management of Military Technician positions fractures the continuity, interchange and flow of knowledge between members of the weekday (Full Time) and weekend (M-Day) National Guard force due to the loss of military affiliation of converted Dual-

4  

Status technicians. This critical linkage has a direct impact on readiness to perform State emergency missions by disrupting DS technicians’ support of their military-compatible duties and responsibilities that enable seamless continuity within and among units essential for responding to State emergencies.

l.   The conversion of Federal Technicians to Title 5 civilian employee status decreases state emergency response capacity primarily because Title 5 federal civilian employees are not subject to a Governor’s emergency powers and cannot be involuntarily used in state emergency responses. The Guard’s ability to respond to State emergencies will therefore be severely degraded by diminishing the number of DS Military Technicians Governors can order to State Active Duty (SAD) in times of domestic crisis. These adverse consequences of Section 1053 are at odds with the rich history of National Guard Dual-Status Military Technicians being among the first responders in military supported State emergency responses from the inception of the Military Technician program.

m.   A majority of state and local domestic support requirements in CY2014 were for time-sensitive incidents, natural disasters, and search and rescue missions. It is imperative that a first response force be agile, immediately available and fully operational. When the Governor calls for military assistance, the National Guard must be available and capable. The National Guard is also an essential component of consequence management within the national Incident Command System (ICS).7

i.   Title 32 DS Military Technicians are an immediately “ready” force relied upon by both Governors and the President. These state-federal interests often merge as State emergencies escalate and spawn regional and even national consequences. National Guard Dual Status Technicians - Soldiers and Airmen – are often the only resource available to state and federal authorities until traditional part-time (M-Day) Soldiers and Airmen can notify their employers and report to their assigned units. Military Technicians also provide critical continuity over extended duty hours during emergencies in which Title 5 employees cannot be ordered to work and, if voluntarily engaged, would have to be provided overtime pay and other unfunded benefits.

ii.   During Super Storm Sandy, Hurricane Irene, Winter Storm Nemo and recent flooding events, Dual Status Military Technicians were the first on the scene to in-process traditional M-Day Soldiers and Airmen, maintain equipment and provide direct immediate State emergency response operations while traditional M-Day forces were being assembled. In other high-profile, high-threat emergencies such as the 1999 World Trade Conference riots in Seattle, the 2015 riots in Ferguson, Missouri and the 2016 civil unrest in Baltimore, Maryland, Title 32 DS Military Technicians were activated by the Governors in question to provide life-saving no-notice immediate emergency responses. This flexibility does not extend to Title 5 federal civilian employees, thereby depriving the Governors and Adjutants General of all states and territories access to full time personnel essential to state emergency operations.

5  

4.   Summary:

a.   Section 1053 of the FY2016 NDAA negatively impacts National Guard readiness for state military missions and affects the good order and discipline of the Guard as a state-based emergency military force. The negative impacts of this action are compounded by the fact that “Much of America's Army's capacity is resident in the reserve components and we must rely more heavily on them to meet the demands of a complex global environment.”8 The National Guard provides capabilities that save lives, protect property, and assist communities throughout the nation in responding to and recovering from adaptive human threats and other domestic emergencies and disasters. The Guard’s ability to respond as it has in the past -- and will be required to respond in the future -- is placed at great risk by Section 1053, as enacted.

b.   While the Department of Defense, the U.S. Army and Air Force and the National Guard face uncertainty in the global and domestic mission environment, reducing the full time Dual Status Military Technician force has a harmful and long-lasting impact on the Guard’s ability to protect lives and property in every State and territory. States cannot replace the capability lost by removing Dual Status Military Technicians from the available pool of state military responders. In the 21st Century threat environment, America cannot afford to degrade or compromise the National Guard's readiness to respond to domestic emergencies.

Endnotes                                                                                                                          1 Gen. Mark A. Milley, Stars and Stripes -- Army to pair National Guard, Reserve units with active-duty units, Stars and Stripes Article Link, March 22, 2016. 2 Act of Jan. 21, 1903, 47th Congress, 2nd session, chapter 196, 32 Stat. 775-780. 3 Public Law 90-486, August 13, 1968; 32 U.S.C. 709. 4 The National Guard Technician Act of 1968 §709 section (a)(1)-(3) provides the flexibility to have Title 32 Dual Status (DS) technicians work in positions that organize, administer and instruct, maintain and repair supplies and perform any additional duties to the extent that the performance does not interfere with sections 1 and 2. 5 National Guard Technicians Act of 1968, Public Law 90-486, (32 U.SC. 709), Technicians: employment, use, status, GPO Link . 6 House Committee on Appropriations, Budget Hearing - National Guard and Reserve, Tuesday, March 22, 2016 1:30 PM. 7 Concerns emerged in 1995 that new missions were being assigned to the Army National Guard without providing additional resources. The House Armed Services Committee (HASC) expressed concern again in 1996 about downsizing of the Active Component and increasing reliance on the Reserve Components without an adequately sized Guard full time force (Assistant Secretary of the Army, Financial Management and Comptroller, The Army Budget, FY04/05 President’s Budget, February 2003; http://www.asafm.army.mil/budget/fybm/FY04-05/greenbook.pdf. 8 Gen. Mark A. Milley, Stars and Stripes (National) -- Army to pair National Guard, Reserve units with active-duty units, Stars and Stripes Article Link, March 22, 2016.

1

INFORMATION PAPER

Due Process Rights of

National Guard Military (Dual Status) Technicians

1.   Purpose: To provide information on National Guard Military Technician (Dual Status) Due Process Rights.

2.   Facts:

a.   The National Defense Authorization Act for Fiscal Year 2016, SEC. 1053 directs the conversation of at least twenty percent of the Title 32 Military Technician force to the Title 5 civilian employee system.1 Section 1053’s conversion of military technicians, a special category of federal employment enacted by the Technician Act of 1968 and codified at 32 U.S.C. 709, to federal civilian employee status under 5 U.S.C. 3101, eliminates the dual-status requirement for some military technician positions by January 1, 2017. Moreover, it provides authority to the Secretary of Defense to eliminate the entire dual-status Military Technician program (Section 1053 (2) (B)).

b.   It appears that part of the justification or support for directing this conversion is the assumption that Title 32 Military Technicians do not enjoy full due process protection.

c.   The Laborers International Union of North America, National Guard Council Local 1776, (LiUNA) sent a letter to Senator John McCain, Chairman of the Senate Armed Services Committee supporting the Section 1053 conversion of National Guard Military Technicians to the Title 5 civilian employee system. LiUNA stated in its letter that it believes the requirement for a Military Technician to be dual-status (the requirement to satisfactorily maintain military membership in the National Guard of the State in which they are employed as a condition of their continued special status “civilian” employment) “causes adverse career impacts for employees that are not present in other federal programs.”2 LiUNA states, “More troubling, technicians, though ostensibly federal civilian employees, do not enjoy the full due process protections guaranteed to other federal employees. . . . This is the only program in the federal government where the person who fires you hears and decides your appeal.”3

d.   LiUNA further asserts, “… that all technicians should eventually transfer to Title 5 status.”4 This union goal is fundamentally at odds with the purposes of the Militia Act of 1903 (32 Stat. 775), also known as “The efficiency in Militia Act of 1903, or simply as the “Dick Act”, and the subsequent refinements and enhancements of the National Guard Technician Act of 1968 in which Congress converted full time National Guard Military Technicians from full-time State to special full-time Federal Military Technician status under the continuing command and supervision of the Adjutant General of the State or territory in whose units they are embedded.

e.   LiUNA’s assertion about “full due process” fails to acknowledge the critical military mission and uniquely different nature of the Military Technician program. For these

2

reasons, the term “military” qualifies the term “technician,” in the very title of the program. It is a critical qualifier that serves the federal and state operational requirements of the National Guard and distinguishes the federal Military Technician program from other federal employment programs.5 Under the doctrine of military necessity, congress and the courts afford military personnel (all members of the United States Armed Forces) distinct due process protections.6 That being said, the Military Technician program and the general Title 5 federal civilian employee system both afford their respective members the full due process protections prescribed by federal law and federal court decisions.

i.   National Guard military technicians are federal (Department of the Army or Department of the Air Force) employees.7 Due to the inherently military nature of this class of federal employee (hence, the statutory term “Military Technician”), statutory administrative due process employment protections afforded Military Technicians (employed under Title 32, United States Code) differ from the protections afforded federal civilian employees generally (i.e. those employed under Title 5, United States Code). To understand the rationale for the differentiation between federal Military Technicians and other civilian employees, one must recognize, as have congress and the federal courts, the traditional dichotomy between military and civilian employees. When comparing the National Guard (as a Reserve component of the Army and Air Force) to Army or Air Force Reserve components, one must further understand the unique historical and legal standing of the National Guard within the military establishment of the United States. The National Guard is both a State and a Federal military organization,8 whereas the other Reserve Components of the United States Armed Forces are solely Federal military organizations.

ii.   Prior to enactment of the Technician Act of 1968, Military Technicians, except for those in the District of Columbia National Guard, were state employees whose salaries were paid in full by the federal government. The Senate Report accompanying the Technician Act of 1968 articulated the primary purposes for its introduction: to address the lack of uniformity in fringe benefits paid to “State military technicians” and issues related to tort claims arising from their activities (which were inherently military). In authorizing federal employee status for state military technicians, the Technician Act expressly recognized “the military requirements and State characteristics of the National Guard by providing for certain statutory administrative authority at the State level with respective to the Technician program.” The “certain statutory administrative authority at the State level” included the provision that technicians be a member of the National Guard and that the State’s adjutant general retained authority to separate (for cause) and administer adverse actions, for which the right of appeal “shall not extend beyond the adjutant general of the jurisdiction concerned.”9

iii.   The statutory provision for the supervisory and employment authority of the Adjutants General recognized the State character of the National Guard. The Technician Act granted the Adjutant General (a State officer) the statutory authority to employ Federal employees.10 The statutory right of appeal to the adjutant general of the jurisdiction concerned provided procedural due process for all National Guard military technicians. The Federal government implemented procedures for the employment

3

and administration of the military technicians through Technician Personnel Regulations (TPRs) issued by National Guard Bureau (NGB).11

f.   The Technician Act grants due process to military technicians. “Due process refers to the steps that the Government must take to ensure fairness before depriving a citizen of life, liberty, or property.”12 Such steps vary according to the circumstances and the rights and privileges provided by law. “[A]t a minimum, due process includes the right to: (1) be notified of the Government’s intentions and (2) receive a meaningful opportunity to respond before the action takes place.”13 Due process “is flexible and calls for such procedural protections as the particular situation demands.”14 When addressing due process issues, courts begin by determining what process is due.15 Military Technicians, like other military personnel, receive “full due process.”

g.   Congress, in enacting the Technician Act, provided military technicians the “full” due process demanded by their roles in the employing agency’s military mission (in this case, the military missions of the Army and Air National Guard). “The Act specifies only four situations in which technicians have lesser rights than other Army and Air Force employees: (1) separation from civilian employment in instances involving loss of their required military membership in the Guard or loss of a military grade specified for their position; (2) separation from civilian employment as a result of failure to meet military security standards; (3) separation for cause by the Adjutant General; and (4) reduction in force or adverse action involving discharge, suspension, furlough without pay, or reduction in rank of compensation.”16 Military technicians receive “full due process” due to their particular situation as military personnel, not as “civilian employees.” “The legislative history of the Act shows that Congress considered the military mission of the technicians to be paramount and that the technician's duties were inseparable from their military obligations.”17

h.   Since the passage of the Technician Act, members of Congress have introduced numerous bills attempting to provide military technicians with additional employment protections and benefits.18 Congress has amended the Technician Act seven times since 1968, but no amendments have revised the law to provide additional due process protections for military technicians.19 Several legal challenges have also been filed in opposition to the military terms and conditions of technician employment. Many of the challenges attempted to obtain a court order to extend “civil service”-type due process to military technicians. These efforts failed largely because “Every court having occasion to closely consider the capacity of National Guard technicians has determined that capacity to be irreducibly military in nature.”20

i.   The Technician Act (32 USC 709(b)) specifically requires a person hired as a National Guard military technician to be a member of the National Guard, hold a specific military grade designated for their position and wear their military uniform while performing their duties as a military technician. The Technician Act (32 USC 709 (g)) also exempted military technicians from certain civilian federal employment practices, providing that “Sections 2108, 3502, 7511 and 7512 of title 5 do not apply to a person employed under this section.” Respectively, this means that military technicians do not, as a matter of law, enjoy veteran hiring preferences, order of retention protections and federal employment processes for adverse actions, including the ability to appeal to the Merit

4

Systems Protection Board. The Technician Act also statutorily provides for compensatory time in lieu of overtime. (32 USC 709(h)). These exemptions – and the administrative due process procedures afforded military technicians – are directly in keeping with the critical nature of their military service.21

j.   The purpose of the Technician Act was to create federal civilian employees in the states' National Guards that would have common pay and fringe benefits but still be subject to the control of the Adjutants General. The Technician Act was created to "accommodate the civilian interests of [technicians] without intruding upon the Guard's military and security needs"[emphasis added].22 Although some cases have reached a different conclusion, (see Jentoft v. United States, No. 05-5125, US Court of Appeals, Fed. Cir., 2006), Congress clearly intended that National Guard dual status technicians not be treated like other federal employees by limiting the applicability of federal labor relations and other laws to preserve the unity of command and supervision required by the states’ National Guards, when not in federal status. The Senate Committee Report on the Technician Act shows that in virtually the same breath as it approved the status of technicians as federal employees, the Committee stated its intention to preserve state military authority over a limited number of crucial matters. The controls it recommended for preservation were clearly central to the legislation, and reflected an understanding on the part of the Committee that such controls were critical to the military purpose of the Guard.23 Unlike Title 5 dual status technicians, who work for units of the Title 10 military reserves and whose military supervisors are under federal control, National Guard technicians serve in the organized militia of the several states, whose leadership is under state control unless or until the Guard itself is federalized.

k.   Military personnel are governed differently and do not share the same employment protections as enjoyed by their civilian government employee counterparts.24 For example, members of the Army National Guard with less than six years of service can be administratively separated from service (under the procedures of Army Regulation 135-178) by a commander’s recommendation, approved by the State Adjutant General.25 Members with more than six years, on the other hand, are afforded an administrative board process. Upon presentation of the case to the board, the board makes findings and recommendations to the State Adjutant General. The Adjutant General may uphold or mitigate the board’s recommendation, but cannot increase the penalty. The Adjutant General is the separation authority and may approve board recommendations for separation of the member.26 Members may appeal separations to the Army Discharge Review Board or other matters to the Army Board for the Correction of Military Records.27 The board, however, does not have the authority to reinstate separated members. Air National Guard Military Technicians are afforded a similar administrative board process and may appeal separations to the Air Force Board for the Correction of Military Records. In addition, both Army and Air National Guard Military Technicians enter into a “sanctuary” status after 18 years of military service, which qualifies them for retirement. While in the 18 to 20 year period, a member of the Army or Air National Guard cannot be separated prior to obtaining a 20 year vested military retirement, except for misconduct and then only with the concurrence of the Secretary of the Army or Secretary of the Air Force, respectively.

5

3.   Summary:

a.   The rationale for NDAA 2016, Section 1053’s conversion of Title 32 Military Technician program positions to Title 5 civilian employee system positions is unclear. It is also unclear what “problem” the legislation was intended to address. Section 1053 is ostensibly based on the Center for Naval Analysis (CNA) Report issued pursuant to Section 519 of NDAA FY 2012.28 This required certain findings to be reported, such as “identify and take into account the unique needs of the National Guard in the management and use of military technicians and to determine potential cost savings, if any, to be achieved as a result of the transition described in paragraph (2) [the transition of military technicians to a system that relies on traditional personnel categories of active duty personnel, reserve component personnel, and civilian personnel], including savings in long-term mandatory entitlement costs associated with military and civil service retirement obligations.”29 The CNA Report found no cost savings for converting military technicians to civilian employees and that, if converted, consideration should be given to readiness and deployability factors. “Converting DS MilTechs to federal civilians would be close to direct manpower cost neutrality (assuming both the civilian and SelRes positions were maintained). Full conversion of DS MilTechs to federal civilians would free up hours now devoted to managing the MilTech program. However, any conversion to federal civilians has to consider readiness and deployability factors.”30 The compelling governmental interest, based on the Section 519 Report, would be to retain the National Guard Military Technician Program, based on cost and military readiness.

b.   The Section 519 report also did not consider due process as a rationale for conversion. In fact, the report cautions against changes that could adversely affect readiness and deployability, the very grounds on which both congress and the courts have affirmed special due process procedures for the Military Technician program.

Endnotes                                                                                                                          1 National Defense Authorization Act for Fiscal Year 2016, SEC. 1053. MANAGEMENT OF MILITARY TECHNICIANS.

(a) Conversion of Certain Military Technician (dual Status) Positions to Civilian Positions-

(1) IN GENERAL- The Secretary of Defense shall convert not fewer than 20 percent of the positions described in paragraph (2) as of January 1, 2017, from military technician (dual status) positions to positions filled by individuals who are employed under section 3101 of title 5, United States Code, and are not military technicians.

(2) COVERED POSITIONS- The positions described in this paragraph are military technician (dual status) positions as follows:

(A) Military technician (dual status) positions identified as general administration, clerical, finance, and office service occupations in the report of the Secretary of Defense under section 519 of the National Defense Authorization Act for Fiscal Year 2011 (Public Law 112-81; 125 Stat. 1397).

(B) Such other military technician (dual status) positions as the Secretary shall specify for purposes of this subsection. 2 LiUNA National Guard Council Local 1776 Letter to Senator John McCain, Chairman, Senate Armed Services Committee, January 14, 2016, passim.

6

                                                                                                                                                                                                                                                                                                                                                                                                       3 LiUNA National Guard Council Local 1776 Letter to Senator John McCain, Chairman, Senate Armed Services Committee, January 14, 2016, passim. 4 LiUNA National Guard Council Local 1776 Letter to Senator John McCain, Chairman, Senate Armed Services Committee, January 14, 2016, passim. 5 Tennessee v. Dunlap, 426 U.S. 312, 315-316 (1976) “Where respondent's employment as a technician was terminated under 709 (e) (1) when he was separated from the Guard upon expiration of his enlistment, 709 (e) (3)'s requirement of "cause" has no application, and hence 709 (e) (3) cannot provide the foundation for a claim that the termination of respondent's employment and the allegedly arbitrary refusal to re-enlist him violated due process.” 6 While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it” Parker v. Levy, 417 U.S. 733, 758 (1974). 7 32 U.S.C. 709(e). 8 “the National Guard consists of "two overlapping, but legally distinct, organizations. Congress, under its constitutional authority to `raise and support armies' has created the National Guard of the United States, a federal organization comprised of state national guard units and their members." 666 F. Supp. 1319, 1320 (Minn. 1987).4 The fact that these units also maintain an identity as [496 U.S. 334, 339] State National Guards, part of the militia described in Art. I, 8, of the Constitution, does not limit Congress' plenary authority to train the Guard "as it sees fit when the Guard is called to active federal service." Id., at 1324” Perpich v. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990). 9 Senate Report 1446, “National Guard Technician Act of 1968,” July 22, 1968. 10 32 U.S.C. 709(d). 11 NGB electronically publishes TPRs at http://www.ngbpdc.ngb.army.mil/pubs/TPR/tprpage.htm. TPR 715, “Voluntary and Non-Disciplinary Actions,” TPR 752, “Discipline and Adverse Action,” and 752-1, “Adverse Action Appeals and the National Guard Hearing Examiner Program” govern adverse actions and provide the basis for administrative due process for military technicians. 12 “What is Due Process in Federal Civil Service Employment?, A Report to the President and the Congress of the United States by the U.S. Merit Systems Protection Board, Footnote 1, May 2015. 13 Id, page ii. 14 Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). 15 Mathews v. Eldridge, 425 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). 16 Kosten v. Arizona, 50 M.S.P.R. 182 at 189 (1991). 17 Marleton v. Temple, 747 F.2d 1348 (1984) (citing American Federation of Government Employees v. Federal Labor Relations Authority, D.C.Cir., 730 F.2d 1534, 1542-1547). 18 For example, H.R.14003 — 94th Congress (1975-1976), A bill to amend title 5, United States Code, to provide civilian employees of the National Guard certain rights of members of the competitive service; H.R.1958 — 95th Congress (1977-1978), A bill to amend title 5, United States Code, to provide civilian employees of the National Guard certain rights of members of the competitive service; H.R.4511 — 95th Congress (1977-1978), A bill to amend title 5, United States Code, to provide civilian employees of the National Guard certain rights of members of the competitive service; H.R.4651 — 95th Congress (1977-1978), A bill to amend title 5, United States Code, to provide civilian employees of the National Guard certain rights of members of the competitive service; H.R.6023 — 95th Congress (1977-1978), A bill to amend title 5, United States Code, to provide civilian employees of the National Guard certain rights of members of the competitive service; H.R.6722 — 95th Congress (1977-1978), A bill to amend title 5, United States Code, to provide civilian employees of the National Guard certain rights of members of the competitive service; H.R.1966 — 100th Congress (1987-1988), A bill to provide that positions held by civilian technicians of the National Guard be made part of the competitive service; H.R.529 — 101st Congress (1989-1990), To amend title 32, United States Code, to provide that the protections afforded to Federal employees

7

                                                                                                                                                                                                                                                                                                                                                                                                       under subchapter II of chapter 75 of title 5, United States Code, be extended to National Guard; H.R.530 — 101st Congress (1989-1990), To provide that positions held by civilian technicians of the National Guard be made part of the competitive service; H.R.722 — 102nd Congress (1991-1992), To amend title 32, United States Code, to provide that the protections afforded to Federal employees under subchapter II of chapter 75 of title 5, United States Code, be extended to National Guard; H.R.723 — 102nd Congress (1991-1992), To provide that positions held by civilian technicians of the National Guard be made part of the competitive service; H.R.1188 — 102nd Congress (1991-1992), To amend title 32, United States Code, with respect to retention rights for certain civilian National Guard technicians who are involuntarily separated; H.R.1234 — 103rd Congress (1993-1994), “To provide that positions held by civilian technicians of the National Guard be made part of the competitive service.”; H.Amdt.298 to H.R. 2401 (NDAA FY94) — 103rd Congress (1993-1994), Amendment sought to incorporate National Guard civilian technicians into the competitive service program in order to extend certain civil service procedural and appeal protections to these employees; H.R.4360 — 106th Congress (1999-2000), To amend title 32, United States Code, to end the prohibition against overtime pay for National Guard technicians; H.R.4911 — 106th Congress (1999-2000), To amend title 5, United States Code, to provide competitive civil service status for National Guard technicians who are involuntarily separated other than for cause from National Guard service; H.R.5342 — 106th Congress (1999-2000), Fairness for National Guard Technicians Act; H.R.349 — 107th Congress (2001-2002), To amend title 5, United States Code, to provide competitive civil service status for National Guard technicians who are involuntarily separated other than for cause from National Guard service; H.R.513 — 107th Congress (2001-2002), Fairness for National Guard Technicians Act; H.R.6438 — 110th Congress (2007-2008), National Guard Technician Recruitment and Retention Act of 2008; H.R.3336 — 111th Congress (2009-2010), National Guard Technician Recruitment and Retention Act; H.R.3345 — 111th Congress (2009-2010), National Guard Technician Equity Act; H.R.1169 — 112th Congress (2011-2012), National Guard Technician Equity Act; S.1893 — 112th Congress (2011-2012), National Guard Technician Equity Act; S.2312 -- 113th Congress (2013–2015), National Guard Technician Equity Act. 19 Aug. 13, 1971, 85 Stat. 340; Pub. L. 96–513, title V, §  515(5)–(7), Dec. 12, 1980, 94 Stat. 2937; Pub. L. 103–160, div. A, title V, §§  523(a), 524(c), (d), Nov. 30, 1993, 107 Stat. 1656, 1657; Pub. L. 103–337, div. A, title X, §  1070(b)(2), (d)(5), Oct. 5, 1994, 108 Stat. 2856, 2858; Pub. L. 104–106, div. A, title X, §  1038(a), Feb. 10, 1996, 110 Stat. 432; Pub. L. 105–85, div. A, title V, §  522(c), Nov. 18, 1997, 111 Stat. 1735; Pub. L. 106–65, div. A, title V, §  524, Oct. 5, 1999, 113 Stat. 599; Pub. L. 109–364, div. A, title V, §  525(d), Oct. 17, 2006, 120 Stat. 2195). 20 Leistiko v. Secretary of the Army, 922 F. Supp. 66 (N.D. Ohio 1996), citing Wright v. Park, 5F.3d 586, 588 (1st Cir. 1993); Stauber v. Cline, 837 F.2d 395, 399 (9th Cir) cer. Denied, 488 U.S. 817, 109 S. Ct. 55, 102 L. Ed. 2d 33 (1988); Illinois Nat/l Guard v. FLRA, 730 F.2d 1534, 1545-46 (D.C. Cir. 1984); New Jersey Air National Guard v. FLRA, 677 F.2d 276, 279 (3d Cir.), cert denied, 459 U.S. 988, 103 S. Ct. 343, 74 L. Ed. 2d 384 (1982); NeSmith v. Fulton, 615 F.2d 196, 200-01 (5th Cir. 1980). 21 It should be noted that Sections 2108, 3502, 7511 and 7512 of title 5 do not apply to uniformed military personnel. Uniformed personnel do not enjoy the protections of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq or Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.See Kawitt v. U.S., 842 F.2d 951, 953-954 (1988). 22 New Jersey Air National Guard, 177th Fighter Interceptor Group and Department of Defense v. FLRA, 677 F.2d 276, 279. 23 Id., at 284. 24 “This Court [the Supreme Court] has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that "it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955).” Parker v. Levy, 417 U.S. 733, 743 (1974). 25 Army Regulation 135-178, “Enlisted Administrative Separations,” paragraph 3-5(a)(7). 26 Id., paragraph 3-10. 27 “The objective of the Army Discharge Review Board (ADRB) is to examine an applicant's administrative discharge and to change the characterization of service and/or the reason for discharge based on standards of equity

8

                                                                                                                                                                                                                                                                                                                                                                                                       or propriety. (Exceptions: Discharge or dismissal by general court-martial and discharges over 15 years old. These issues can be addressed by the Army Board for Correction of Military Records by submitting a DD Form 149).

The ADRB is not authorized to revoke any discharge, to reinstate any person who has been separated from the Army, or to recall any person to active duty.” http://arba.army.pentagon.mil/adrb-overview.cfm 28 Section 1053 appears poorly drafted as it erroneously cites the NDAA FY 2011 as the authorization for the Section 519 report. 29 National Defense Authorization Act for Fiscal Year 2012, Page 125 Stat. 1298, Public Law 112-81.

112th Congress, SEC. 519. Report on Termination of Military Technician as a Distinct Personnel Management Category. 30 “Report on the Termination of Military Technician as a Distinct Personnel Management Category,” CNA, September 2013.

INFORMATION PAPER

Title 32 Military Technician Conversion to Title 5 Employees Impact on National Guard Readiness for Federal Missions

   1.   Purpose: To provide an overview of the impact of Section 1053, Fiscal Year 2016

NDAA on Army and Air National Guard readiness for federal missions.

2.   Executive Summary: Converting Title 32 Military Technicians to Title 5 civilian employees will have perilous short and long-term impacts on Army and Air National Guard readiness for federal missions. The adverse impacts are compounded by the fact that the Army National Guard is the primary combat reserve of the Army and “Much of America's Army's capacity is resident in the reserve components and we must rely more heavily on them to meet the demands of a complex global environment.”1 The Army and Air National Guard provide the Nation strategic and operational depth for federal combat missions and organic capabilities for saving lives, protecting property, and safeguarding national interests as part of Department of Defense responses to adaptive human threats and natural disasters at home and around the world. These federal military missions have been placed at risk by Section 1053 because, as Congress intended, the Title 32 Military Technician force is the foundation upon which the National Guard’s readiness, agility and operational capabilities are built.

3.   Facts: For more than a century, Congress has recognized the importance of the full-time “Military Technician” force and its essential role in assuring the military readiness of the National Guard. Beginning with the Militia Act of 1903, also known as "The Efficiency in Militia Act of 1903" or simply as “the Dick Act.”2 Congress has enacted legislation codifying the circumstances under which the National Guard can be federalized and providing federal funds to pay for equipping and training the Guard, including the employment of full time, special-category federal employees with a unique dual military-civilian occupational status. This specialized military-civilian employment schema was refined and enhanced by passage of the National Guard Technician Act of 1968 in which Congress converted full time National Guard military technicians from State to Federal employee status effective January 1, 1969.3 In return for Congress providing the full-time federal military support force, the National Guard organized its units to conformwith the regular Army and Air Force and meet the same training, education and readiness requirements as active duty units.

a.   Today’s Military Technicians are members of this enduring Title 32 dual-status work force whose primary mission is to provide day-to-day continuity in the operation and training of Army and Air National Guard units.4

b.   Under the U.S. Constitution and the many laws pertaining to the National Guard, until the Guard is called into active Federal service, Guard forces remain under the command and control of the Governors of the sovereign states and territories and their duly appointed and federally recognized Adjutants General.

c.   All members of the National Guard, including National Guard Military Technicians, hold a dual military status in the form of State military membership and rank and

2

 

 

Federal Reserve membership and rank. All members of the National Guard, including Military Technicians, also take separate oaths to support and defend the constitution and laws of their State and to support and defend the constitution and laws of the United States.

d.   Because of their full-time presence and unique military-civil employment status and skills, Military Technicians are not only the force DoD authorities rely upon for training, maintaining equipment, and assuring the execution of essential National Guard organizational functions but they are the only immediately available full-time force for mobilizing, training and deploying the balance of the traditional part-time force for federal combat operations and federal responses to adaptive human threats and catastrophic emergencies at home and abroad.

e.   The Nation has benefited from refinements Congress made to the prior full-time military-civilian employment scheme in the National Guard Technician Act of 1968. The 1968 enhancements established a practical, enduring and efficient foundation for modernizing the National Guard and making possible the Guard’s transition from a strategic reserve to a globally deployable, combat-ready operational reserve. The soundness of these provisions has been repeatedly affirmed and validated over the ensuing decades. In January 2001, for example, the U.S. Army Acting Deputy Assistant Secretary (Force Management, Manpower and Resources) and Force Management Director called for an increase in fulltime reserve component unit support, stating “Current and future Army operations require full spectrum, integrated forces that can quickly respond to rapidly changing operational requirements. Full Time Support (FTS) personnel are critical links to integration and interoperability among Army components. For these reasons, an increase in Reserve Component full-time support is essential to the future of the Army.”5

f.   Within nine (9) months of then-Brigadier General Ray Odierno’s call for a larger Military Technician force (see paragraph e above), Military Technicians made possible the rapid National Guard responses to President Bush’s call for federal assistance following the terrorist attacks of September 11, 2001.6 As Air National Guard pilots took to the skies, Army National Guard Soldiers began swiftly securing airports. The Army National Guard sustained this federal military mission for eight months, with as many as 8,200 Soldiers on duty in Title 32 status at any given time, before transferring responsibility to the newly established Department of Homeland Security Transportation Security Administration. The National Guard’s swift response effectively deterred other terrorist threats and restored public confidence in air traffic security. Many of the first military responders in 2001 were Military Technicians who were available for no-notice mobilization and who quickly transitioned from Military Technician duties to their aligned full-time military duties.

g.   The 9/11 airport security mission is not an anomaly or a National Guard mobilization of a by-gone era. As a result of terrorist attacks in Brussels, Belgium on March 21, 2016, the Governor of New York, in consultation with federal authorities, ordered National Guard units to perform security missions at critical transportation facilities, including airports, Penn Station, Grand Central Station, the Port Authority, and tunnels and

3

 

 

bridges in and near Manhattan. As in September 2001, the National Guard Military Technician force played a critical role in the March 2016 military response.

h.   The National Guard has filled every federal request for forces at home and abroad since 9/11.7 Every major unit movement within the National Guard commences with indispensable actions on the part of the full-time Military Technician force. Dual-status Military Technicians are the most flexible and accessible full-time force available to Commanders-in-Chief (i.e. the President and Governors) because of the ability to rapidly convert Military Technicians to Title 32, Title 10, or State Active Duty military status to execute the diverse military missions of the National Guard.

i.   The Center for Naval Analysis (CNA) Report on the Termination of Military Technician as a Distinct Personnel Management Category acknowledges the adverse impact of converting Title 32 Military Technicians to Title 5 civilian employee status by warning, “…unit readiness would be degraded in terms of supporting compatible functions that provide seamless continuity to units when they deploy.”8

j.   The CNA Report further acknowledges, “The ability of FTS personnel to support compatible functions that enable the seamless continuity to units when they deploy would be lost and readiness would be impaired.”9 The CNA Report does not support dismantling the full-time, Military Technician work force and, in fact, cautions against changes that would introduce confusion and disunity in military organizations that depend on Military Technicians for their mission readiness.

k.   These CNA concerns are amplified in the National Guard where conversion of Title 32 dual-status technicians to Title 5 civilian employees dramatically impacts unity of command and thereby further degrades readiness for federal military missions. In addition, supervisory authority over members converted from Federal Technician to federal Title 5 civilian status is nowhere addressed in Section 1053 of the FY16 NDAA or any accompanying legislation and is one of many unanticipated, undefined and unplanned force-management and unity of effort problems created by Section 1053 in its current form. Such Title 5 civilian personnel issues are beyond the jurisdiction of the Senate and House Committees on Armed Services and therefore beyond the ability of the SASC or HASC to address and resolve. It is clear, however, that supervision of Title 5 employees by anyone other than Adjutants General who currently exercise command and control of Federal Technicians would contradict the purpose and intent of the 1968 Technician Act which explicitly vested such force-management authority in Adjutants General, in part, to assure the readiness and good order and discipline of the force. The Senate Committee report that accompanied the 1968 Technician Act stressed that it “is essential that the controls enumerated be provided as a matter of law. Otherwise there would be varying rules and regulations applying to guardsmen who were technicians as compared to the remaining personnel who are also a part of the National Guard program.”10

4.   Summary: The policy changes codified by Section 1053 of the 2016 NDAA negatively impact National Guard readiness for federal military missions and adversely affect the good order and discipline of the National Guard as a federal combat force. The National Guard’s

4

 

 

readiness, agility, and operational capabilities will be seriously and permanently degraded unless statutory relief is enacted. Ultimately, a less ready National Guard places our entire Nation at greater risk.

Endnotes                                                                                                                          1 Gen. Mark A. Milley, Stars and Stripes -- Army to pair National Guard, Reserve units with active-duty units, Stars and Stripes Article Link, March 22, 2016. 2 Act of Jan. 21, 1903, 47th Congress, 2nd session, chapter 196, 32 Stat. 775-780. 3 Public Law 90-486, August 13, 1968; 32 U.S.C. 709. 4 Specifically noted by Congress in the Militia Act of 1792, The Efficiency in Militia Act of 1903 (Dick Act), and the National Guard Technician Act of 1968, (SASC tech act report, pg. 14). 5 Brig. Gen. Raymond Odierno, in a memorandum entitled “Recognition of POM 03-07 Active Guard and Reserve (AGR) and Military Technician (MILTECH) Requirements for the Army National Guard and U.S. Army Reserve,” At the NCFA webpage at http://www.ncfa.ncr.gov/reading-room/artifact-tags/memorandum-recognition-pom-03-07-active-guard-and-reserve-agr-and. 6 National Guard Homeland Defense White Paper: September 11, 2001, Hurricane Katrina, and Beyond. 7 2017 Posture Statement, page 12. 8 Center for Naval Analysis Report on the Termination of Military Technician as a Distinct Personnel Management Category, September 30, 2013, page 6. 9 Center for Naval Analysis Report on the Termination of Military Technician as a Distinct Personnel Management Category, September 30, 2013, page 6. 10 National Guard Technician Act of 1968, 32 U.S. Code § 709 - Technicians: employment, use, status.

1

INFORMATION PAPER

Title 32 Military Technician and Title 5 Employee Summary of Benefits

1.   Purpose: To provide information on Title 32 Military Technician and Title 5 Employee Benefits.

2.   Executive Summary: There are fourteen (14) key benefits employees enjoy in both the Title 32 Military Technician program and the Title 5 civilian employee system. Many of these benefits exist in both employment systems. Where there are differences, they are driven by the mission requirements of the individual program. In many instances the benefits, as applied, are more generous for Military Technicians. In other examples, the benefits may advantage an individual Title 5 civilian employee, depending upon their individual circumstances. Each system affords its employees full due process protections prescribed by federal law and federal court decisions.

3.   Facts:

a.   The National Guard Technician Act of 1968 established a Military Technician workforce to support the military readiness of the National Guard in each Sate under the command and control of the Governor and his/her Adjutant General, replacing each state’s individual technician program. Military Technicians are employed in this system for administering and training the rest of the military force and for repairing and maintaining equipment and supplies issued to the National Guard. While performing these duties Military Technicians are required to be an enlisted or commissioned member of the National Guard of the state in which they are employed, to hold a military grade specific to their position, and to wear the uniform appropriate for their grade and component of the armed forces.1

b.   Converting Title 32 Military Technicians to Title 5 civilian employee status removes them from the command and control of the State in which they are employed and is contrary to the purpose of the Title 32 Military Technician program which, in part, was implemented to enhance the ability of the National Guard of every State to fulfill its federal military mission, effectively respond to operational emergencies within the State and region, and replace the existing individual states’ technician programs. In addition to degrading Army and Air National Guard federal and state military response capacity, the Section 1053 changes create complex problems for work force supervision and overall personnel management that are beyond the jurisdiction of the Senate and House Committees on Armed Forces.2

c.   “Title 5” refers to the title of the United States Code that establishes the basic law for managing human resources in the Federal Government. Title 5 has its origins in the Pendleton Act of 1883, which required agencies to hire employees in headquarters offices based on merit rather than political patronage. Over time, Congress expanded the coverage of the merit system and established Government-wide principles, systems and practices in staffing, compensation, employee relations, labor relations and other areas of human resource management.3 In essence, Title 5 is the "default" human resources

2

system for Federal executive branch employees not explicitly exempted or covered by other statutes such as the Title 32 federal Military Technician program. Title 5 treats Federal organizations with varied missions as a single employer to facilitate interagency mobility, guard against counterproductive interagency competition, and ensure equitable treatment of employees.4

d.   Congress may elect to exempt positions, occupations or organizations from Title 5, however, and there are many agencies, positions and programs with exemptions.5 Common rationales for Title 5 exemption include: the workforce is uniquely different from the "regular" civil service, the workforce is more appropriately compared to the non-Federal workforce, the organization has a critical mission, and making permanent a successful personnel demonstration project.6

e.   The fourteen (14) key benefits referred to in paragraph 2 are summarized below:

3

Endnotes 1 http://www.wv.ngb.army.mil/jobs/training/supervisor%20training/Tab%20C/32usc709.pdf. 2 National Defense Authorization Act for Fiscal Year 2016, SEC. 1053, Management of Military Technicians. 3 https://apps.opm.gov/strat/coverageoftitle5.cfm. 4 https://apps.opm.gov/strat/coverageoftitle5.cfm. 5 Examples of exempted agencies and programs include: National Credit Union Administration (FIRREA), Office of Thrift Supervision (FIRREA), Federal Housing Financing Board (FIRREA), Administrative Law Judges, Police Forces in the Bureau of the Mint, Corporation for National and Community Service, Immigration Judges at the

4

Department of Justice, Federal Aviation Administration, Army Demonstration Projects, Air Force Demonstration Projects, Navy Warfare Demonstration Project, Federal Bureau of Investigation Scientific & Engineering Demonstration Project, Department of Defense Acquisition Demonstration Project, National Institutes of Standards and Technology Demonstration Project, Navy Naval Research Laboratory Demonstration Project, Bureau of Alcohol, Tobacco, and Firearms; Secret Service; and Customs Bureau Demonstration Project, Professional Economists in the Securities and Exchange Commission, and the Office of Multi-family Housing Assistance and Reconstruction. 6 https://apps.opm.gov/strat/coverageoftitle5.cfm.

  1

INFORMATION PAPER Non-Dual Status Technician Force

1.   Purpose: To provide information on the Non-Dual Status Technician Force.

2.   Executive Summary: Non-Dual Status Technicians are important members of the National Guard Force Structure. Non-Dual status technician authorizations provide each Adjutant General human resources needed to address unique state requirements, especially during periods of high federal mission “churn” and deployment of large segments of the National Guard force normally relied upon to respond to adaptive human threats and natural disasters within the United States and its territories.

3.   Facts:

a.   Section 1053 of the National Defense Authorization Act for Fiscal Year 2016 directed the phased termination of Army Reserve, Air Force Reserve, and National Guard Non-Dual Status Technicians.1

b.   Non-Dual Status Technician authorizations date back to the National Guard Technician Act of 1968 and are part of an even longer statutory lineage dating back to the Militia Act of 1792 and the Efficiency in Militia Act of 1903 (the Dick Act). During WWI and WWII, nearly all of the deployable National Guard units were sent overseas and the predecessors of today’s non-dual status technicians were the only work force available to protect and preserve National Guard property, capital facilities and non-deployed federal resources and equipment. The original language found in the SASC Report to accompany S.3865 National Guard Technician Act of 1968 acknowledges this history and provides that “about 5% of the tech force would be competitive Federal status and would constitute principally female employees, clerk typists and security guards.”2 The Technician Act of 1968 provides Adjutants General the authority to employ and administer Non-Dual status technicians.3

c.   Since enactment of the Technician Act of 1968 there have been periodic and often competing Congressional proposals to either significantly increase or significantly decrease the number of non-dual status technicians. The 1998 NDAA (Public Law 105-85), for example, required the Secretary of Defense to submit a plan for all military technician positions to be held only by dual status military technicians on or after September 2007. The plan was to achieve a 50% reduction in the number of non-dual status technicians by 30 September 2002.4 The implication was that Congress was interested in phasing out the employment of all non-dual status technicians.5

d.   In a report to Congress required by the 1988 NDAA, however, the Office of the Assistant Secretary of Defense for Reserve Affairs stated, “Conversion to Title 5, U.S.C., civil service positions does not seem to be a viable option for another reason. Management and control of civil service employees extends beyond the states to the federal government. Therefore, employment of civil service employees would be inconsistent with the state responsibility for the authority over the National Guard.”6

  2

e.   More recently, in 2009, a bill, (S.1296) was introduced in the 111th Congress to increase the number of authorized non-dual status military technicians from 1,950 to 3,550.7 Although the bill was not enacted, it reflected the prevailing military judgment of then-Acting Director of the Army National Guard, MG Raymond Carpenter. “As the Army National Guard has shifted from a strategic reserve to an operational force, with frequent mobilizations, we find that we need these non-deploying civilian technicians to fill certain critical positions in our generating force, because filling these positions with dual-status military members who deploy creates a disruption in our workflow.”8

f.   Throughout history, only about 5% of the technician force has been in a non-deployable Non-Dual Status and NDS technicians have always fulfilled their responsibility to provide home station support to mobilizing and forward deployed forces.

g.   Issue discussion.

i.   Due Process and Appeal Rights – Non-Dual Status technicians currently have the same range of due process and appeal rights as the dual status technician work force, including the right to appeal decisions not involving the exercise of uniquely military judgment to the Federal Labor Relations Authority (FLRA). Conversion to Title 5 status would change their due process and appeals rights to exclude current dual status technician appeal rights but substitute access to the Merit Systems Protection Board (MSPB).

ii.   Federal Mobilization – Non-Dual Status technicians are not prohibited from being a member of the reserve forces. There is an unknown but admittedly small percentage of such employees who might independently elect to serve in the National Guard or another reserve component and would therefore be subject to federal mobilization with their assigned military unit/service. They would not, however, be subject to federal mobilization as a NDS technician.

iii.   State Mobilization – Non-Dual Status Technicians are part of the ready pool of fulltime employees available for immediate State responses during domestic emergencies. As they typically fill general administration, clerical, finance and office service occupations they provide essential support for state emergencies by continuing to operate in their full-time federal technician position. Even during domestic emergencies, payrolls still need to be processed, personnel transactions completed, benefit transactions carried out, the accession of new hires must be continued, etc.

iv.   Benefits – There should be no change in base pay, health care or retirement benefits. All are currently governed by OPM regulations and the same regulations would continue to apply to Title 5 employees and NDS Military Technicians alike. Title 5 technicians would, however, be entitled to overtime pay for all work undertaken beyond their normal workday rather than receiving compensatory time as NDS technicians currently do. This change would create an unfunded obligation in the federal National Guard personnel account.

v.   Force Management – NDS technicians are currently subject to state National Guard manning levels and organizational structure. They may be considered in a Reduction-

  3

In-Force (RIF) only if the Adjutant General determines such action is necessary. If converted to Title 5 civilian employees they would be subject to RIF actions directed by the Department of Defense or by the Army or Air Force.

h.   Current non-dual status technician statistics:

Non-Dual Status Technician Statistics Table

Army Guard Air Guard

Dual Status 25,507 22,104

Non-Dual Status 1,600 350

Total 27,107 23,454

NDS as a % to total 5.9% 1.5%

4.   Summary: Non-Dual Status Technicians are important members of the National Guard Force Structure. They provide Adjutants General human resources needed to address unique state requirements, especially during periods of high federal mission “churn” and deployment of large segments of the National Guard force normally relied upon to respond to adaptive human threats and natural disasters within the U.S. and its territories. Elimination or substantial reduction of non-dual status technician positions would strip federal and state authorities of the human resources needed to protect and preserve federal and state real property, capital facilities and federally-funded equipment and fungible supplies, especially during periods of high turnover and deployments of National Guard units and uniformed personnel.

End Notes

                                                                                                                         1 National Defense Authorization Act for Fiscal Year 2016. Public Law No: 114-92; https://www.congress.gov/bill/114th-congress/senate-bill/1356/related-bills.

(b) Phased-in Termination of Army Reserve, Air Force Reserve, and national Guard Non-Dual Status Technicians.

(1) In General – Section 10217 of Title 10, United States Code, is amended by adding at the end the following new subsection:

(e) Phased-in Termination of Positions. (1) no individual may be newly hired or employed, or Rehired or reemployed, as a non-dual status technician for the purposes of this section after December 31, 2016.

(3) Commencing January 1, 2017, the maximum number of non-dual status technicians employable by the National Guard shall be reduced from the number otherwise provided by subsection (c)(2) by one for each individual who retires, is separated from, or otherwise ceases service as a non-dual status technician of the National Guard after such date until the maximum number of non-dual status technicians employable by the National Guard is zero.

(4) Any individual newly hired or employed, or rehired or employed, to a position required to be filled by reason of the amendment made by paragraph (1) shall be an individual employed in such position under section 3101 of title 5, and may not be a military technician.

  4

                                                                                                                                                                                                                                                                                                                                                                                                       2 National Guard Technicians Act of 1968, Public Law 90-486, (32 U.SC. 709), Technicians: employment, use, status; https://www.gpo.gov/fdsys/granule/USCODE-2011-title32/USCODE-2011-title32-chap7-sec709. 3 Ibid. 4 Report to Congress, A Plan for the Utilization of Military Technicians (Dual Status), prepared by the Office of the Assistant Secretary of Defense for Reserve Affairs, circa 1998. 5 Military Pay, Benefits and Retirement; Lund, John V. Editor, Nova Science Publishers, Inc. New York, 2004 benifitshttps://books.google.com/books?id=P2ydx4HIUC&pg=PA89&lpg=PA89&dq=a+plan+for+the+full+utilization+of+military+technicians+a+report+to+congress&source=bl&ots=W2sraE0it0&sig=nT1KZNTlI64ie3JZu7X3iJszovM&hl=en&sa=X&ved=0ahUKEwjh54aF59vLAhVCTCYKHUNtB6oQ6AEIIzAB#v=onepage&q=a%20plan%20for%20the%20full%20utilization%20of%20military%20technicians%20a%20report%20to%20congress&f=false. 6 Report to Congress, A Plan for the Utilization of Military Technicians (Dual Status), prepared by the Office of the Assistant Secretary of Defense for Reserve Affairs, circa 1998. 7 S.1296 - A bill to increase the number of non-dual status technicians employable by the National Guards, 111th Congress (2009-2010), https://www.congress.gov/bill/111th-congress/senate-bill/1296/text. 8 Non-Dual Status Technicians Critical to Guard Missions, SSG Greenhill, DoD News Article, April 15, 2010, http://archive.defense.gov/news/newsarticle.aspx?id=58774.