There is no doubt that the National Guard costs less than the active duty force. In order to maintain a high level of readiness while keeping costs low the National Guard relies on a small full-time workforce of Federal civil service employees commonly known as dual-status technicians (DSTs). Over 48,000 National Guard dual-status technicians serve throughout the 54 states, territories, and the District of Columbia.
Technicians are a special category of Federal civil service employees. They tend to be more knowledgeable, experienced, and cost effective than their less experienced and higher paid active duty counterparts. From a cost perspective, technicians may be one of the best kept secrets in all of DoD. They're duties range from clerical to mechanical. Operationally, the program is a success. Technicians maintain computer networks, handle pay and benefits, and operate and maintain combat systems at a readiness level on par with, and at a marked savings over their active duty counterparts.
With that said, the program is nearing its 50th year in existence, and some, including Sen. Jack Reed (D-RI), believe there are areas that could use improvement. That's why on May 8th, 2014, Sen. Reed introduced Senate Bill 2312, titled the National Guard Technician Equity Act, which seeks to "to eliminate inequities" in the treatment of technicians.
Congress enacted the National Guard Technician Act in 1968. Prior to enactment, technicians were state employees. The legislation's primary purpose was to standardize retirement and fringe benefits for National Guard technicians by granting them Federal employee status. One of the unique features of the program was the requirement that technicians maintain satisfactory military membership in their respective branch of service as a condition of their civilian employment, thus the "dual-status" label.
One of the issues Sen. Reed is concerned with is that technicians are regularly being denied the opportunity to reach full civil service retirement age. This practice goes against what Congress initially intended when they passed the legislation in 1968. In a report which accompanied the original bill, the Senate Armed Services Committee (SASC) made it clear that technician employment was meant to be "career employment, with retention of qualified technicians in the military until age 60" (ref. SASC Report No. 1446, July 22, 1968, p. 12-13). Unfortunately, the National Guard has not honored that intent and technicians are often times involuntarily separated from the military by their respective service's retention board process well before they have reached civilian retirement age. These separation can occur even if the employee is satisfactorily performing their technician duties and in spite of the fact that they are fulfilling all military requirements. Aside from deviating from Congressional intent, the practice also serves to prematurely remove experience and knowledge from the technician workforce. This has a negative impact on production and reduces cost effectiveness.
In light of these inequities, two of the most important provisions in Sen. Reed's legislation deal with a technician's ability to reach full retirement age. The first provision would allow a dual-status technician to convert to non-dual status after 20 years of creditable technician service. The second would exempt technicians from being considered for involuntary separation by the Army/Air Force's qualitative/selective retention board process.
Due Process and Whistleblower Protection
The vast majority of Federal civilian employees have a right to appeal and seek review of adverse administrative personnel actions by using the Federal grievance/arbitration process, filing an appeal with the Merit Systems Protection Board (MSPB), filing a complaint with the Office of Special Counsel (OSC), or seeking judicial review in US Federal Court. These options offer an employee the opportunity to have an independent and expert neutral party make decisions on disputes arising from adverse personnel actions, prohibited personnel practices, whistleblower disclosure, Hatch Act violations, and even USERRA. However, National Guard technicians are legally barred from using these appeal options even though they are Federal civilian employees. That's because the National Guard Technician Act does not allow review or appeal of adverse personnel actions beyond the Adjutants General of their respective state or territory. 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 was improper or against the law such as whistleblower reprisal.
This limitation on due process was documented by a Government Accountability Office (GAO) report to Congress in December 2003. In that report GAO stated for the record that National Guard technicians face at least two “significant restrictions” in their civilian employment 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 always the risk of abuse. As a result, there have been many instances where Adjutant Generals have intentionally and/or unintentionally allowed adverse personnel actions to stand that would have otherwise been overturned by an arbitrator or the MSPB. Sen. Reed's bill seeks to extend technicians the same due process rights afforded to other Federal employees under the law in order to appeal and seek review of adverse personnel actions directly related to their duties as civilian employees.
S 2312 also contains provisions that could save taxpayers money. One of the money-saving provisions seeks to close a loophole in the law that permits Federal employees who volunteer for Active Guard Reserve (AGR) duty to "double-dip" by allowing them to earn and use 120-hours of annual military leave under 5 USC § 6323 during their period of activation. Cashing-in of the 120-hours is permitted by law even though the member volunteered for the tour and in spite of the fact that in the vast majority of cases the motivation for volunteering is that AGR compensation is higher than their normal civil service salary/wage. The annual savings to the National Guard, alone, are estimated to be about $10 million in payroll and $5 million in Federal retirement benefits. The savings for the entire Federal workforce could be significantly higher.
Sen. Reed's bill also seeks two studies. The first is to determine whether it would make fiscal sense to allow National Guard technicians the opportunity to participate in the TRICARE Reserve Select (TRS) Program. TRS is a comprehensive health insurance benefit available to all members of the National Guard and Reserve. The policy's individual premium is very attractive at just over $200 per month for family coverage, which is (in some cases) upwards of 50% cheaper than a similar policy under the Federal Employee Health Benefit Program (FEHBP). However, since National Guard technicians are eligible for FEHBP, they are legally disqualified from taking advantage of TRS. This causes much discontent because, as we explained before, technicians are required to be in the National Guard in order to keep their civil service job, yet are prevented by law from enjoying one of the benefits of that required membership.
The other study contained in the bill seeks to find out exactly how much time Federal employees who are also members of the National Guard are spending away from their civilian jobs each year in order to fulfill military operational and training requirements. The military ops tempo since 9/11 has placed an unprecedented burden on members of the reserves, forcing them to be absent from their civilian jobs for repeated periods of time and duration. The study seeks to capture how long those absences are, and what, if anything, should be done about it.
Lastly, the bill seeks to allow technicians the option of receiving either pay or compensatory time for periods of overtime worked. When the National Guard Technician Act was passed, it only allowed technicians to receive compensatory time for hours of overtime worked at a one-for-one rate. This is in sharp contrast to the majority of other Federal employees who receive a traditional overtime pay-rate of 1.5 (time-and-a-half). Taking into consideration the current fiscal challenges, Sen. Reed's bill seeks to allow technicians the option of receiving either compensatory time or pay for overtime worked, much like other Federal workers, but would retain the cap on that overtime compensation at the current one-for-one level, ensuring that the provision is cost neutral.
We applaud Sen. Reed for introducing this bill, and we encourage technicians to contact their individual Member of Congress and urge them to sponsor this legislation.