§709. Technicians: employment, use, status
(a) Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsections (b) and (c), persons may be employed as technicians in-
(1) the organizing, administering, instructing, or training of the National Guard;
(2) the maintenance and repair of supplies issued to the National Guard or the armed forces; and
(3) the performance of the following additional duties to the extent that the performance of those duties does not interfere with the performance of the duties described by paragraphs (1) and (2):
(A) Support of operations or missions undertaken by the technician's unit at the request of the President or the Secretary of Defense.
(B) Support of Federal training operations or Federal training missions assigned in whole or in part to the technician's unit.
(C) Instructing or training in the United States or the Commonwealth of Puerto Rico or possessions of the United States of-
(i) active-duty members of the armed forces;
(ii) members of foreign military forces (under the same authorities and restrictions applicable to active-duty members providing such instruction or training);
(iii) Department of Defense contractor personnel; or
(iv) Department of Defense civilian employees.
(b) Except as authorized in subsection (c), a person employed under subsection (a) must meet each of the following requirements:
(1) Be a military technician (dual status) as defined in section 10216(a) of title 10.
(2) Be a member of the National Guard.
(3) Hold the military grade specified by the Secretary concerned for that position.
(4) While performing duties as a military technician (dual status), wear the uniform appropriate for the member's grade and component of the armed forces.
(c)(1) A person may be employed under subsection (a) as a non-dual status technician (as defined by section 10217 of title 10) if the technician position occupied by the person has been designated by the Secretary concerned to be filled only by a non-dual status technician.
(2) The total number of non-dual status technicians in the National Guard is specified in section 10217(c)(2) of title 10.
(d) The Secretary concerned shall designate the adjutants general referred to in section 314 of this title to employ and administer the technicians authorized by this section.
(e) A technician employed under subsection (a) is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States. However, a position authorized by this section is outside the competitive service if the technician employed in that position is required under subsection (b) to be a member of the National Guard.
(f) Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned-
(1) a person employed under subsection (a) who is a military technician (dual status) and otherwise subject to the requirements of subsection (b) who-
(A) is separated from the National Guard or ceases to hold the military grade specified by the Secretary concerned for that position shall be promptly separated from military technician (dual status) employment by the adjutant general of the jurisdiction concerned; and
(B) fails to meet the military security standards established by the Secretary concerned for a member of a reserve component under his jurisdiction may be separated from employment as a military technician (dual status) and concurrently discharged from the National Guard by the adjutant general of the jurisdiction concerned;
(2) a technician may, at any time, be separated from his technician employment for cause by the adjutant general of the jurisdiction concerned;
(3) a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation shall be accomplished by the adjutant general of the jurisdiction concerned;
(4) a right of appeal which may exist with respect to paragraph (1), (2), or (3) shall not extend beyond the adjutant general of the jurisdiction concerned when the appeal concerns activity occurring while the member is in a military pay status, or concerns fitness for duty in the reserve components;
(5) with respect to an appeal concerning any activity not covered by paragraph (4), the provisions of sections 7511, 7512, and 7513 of title 5, and section 717 of the Civil Rights Act of 1991 1 (42 U.S.C. 2000e–16) shall apply; and
(6) a technician shall be notified in writing of the termination of his employment as a technician and, unless the technician is serving under a temporary appointment, is serving in a trial or probationary period, or has voluntarily ceased to be a member of the National Guard when such membership is a condition of employment, such notification shall be given at least 30 days before the termination date of such employment.
(g)(1) Except as provided in subsection (f), sections 2108, 3502, 7511, and 7512 of title 5 do not apply to a person employed under this section.
(2) In addition to the sections referred to in paragraph (1), section 6323(a)(1) of title 5 also does not apply to a person employed under this section who is performing active Guard and Reserve duty (as that term is defined in section 101(d)(6) of title 10).
(h) Notwithstanding sections 5544(a) and 6101(a) of title 5 or any other provision of law, the Secretary concerned may prescribe the hours of duty for technicians. Notwithstanding sections 5542 and 5543 of title 5 or any other provision of law, such technicians shall be granted an amount of compensatory time off from their scheduled tour of duty equal to the amount of any time spent by them in irregular or overtime work, and shall not be entitled to compensation for such work.
(i) The Secretary concerned may not prescribe for purposes of eligibility for Federal recognition under section 301 of this title a qualification applicable to technicians employed under subsection (a) that is not applicable pursuant to that section to the other members of the National Guard in the same grade, branch, position, and type of unit or organization involved.
(j) In this section:
(1) The term "military pay status" means a period of service where the amount of pay payable to a technician for that service is based on rates of military pay provided for under title 37.
(2) The term "fitness for duty in the reserve components" refers only to military-unique service requirements that attend to military service generally, including service in the reserve components or service on active duty.
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 709(a) 709(b) 709(c) 709(d) 709(e) 709(f) |
32:42 (1st par.). 32:42a (less 28 words before 1st proviso). 32:42 (2d par., and last sentence of 4th par.). 32:42 (3d par.). 32:42 (4th par., less last sentence). 32:42 (last par., less proviso). 32:42a (28 words before 1st proviso). 32:42 (proviso of last par.). |
June 3, 1916, ch. 134, §90; restated June 4, 1920, ch. 227, subch. I, §46; restated Mar. 1, 1922, ch. 90; restated June 6, 1924, ch. 275, §5; restated May 28, 1926, ch. 417, §1; Apr. 21, 1928, ch. 397; June 19, 1935, ch. 277, §6; June 13, 1940, ch. 343 (1st proviso under "National Guard"); restated Oct. 14, 1940, ch. 875, §1, |
In subsection (a), the words "may be spent" are substituted for the words "shall be available". The reference to animals for military purposes and forage, bedding, and other supplies and services for them, is omitted as obsolete, since animals are not now authorized for the National Guard. The word "persons" is substituted for the word "help". The words "Army National Guard" and "Air National Guard" are substituted for the words "organizations of all kinds". The words "the support of" are omitted as surplusage. The words "A caretaker employed under this subsection" are substituted for the words "Moneys hereafter appropriated under the provisions of this title for compensation of help for care of material, animals, armament, and equipment, in the hands of the National Guard of the several States, Territories, and the District of Columbia shall be available for the hire of caretakers". The words "and other duties that do not interfere with the performance of his duties as caretaker" are substituted for 32:42a (1st proviso). 32:42a (2d and 3d provisos) is omitted as executed.
In subsection (b), the words "However, if a unit has more than one caretaker" are substituted for the words "but if there are as many as two caretakers in any unit". The words "under this section", in the first sentence of the revised subsection, are inserted for clarity. The words "under this section", in the second sentence of the revised subsection, are substituted for the words "paid to caretakers who belong to the National Guard, as herein authorized". The words "under any of the provisions of this title" are omitted as surplusage.
In subsection (c), the words "or organizations thereof" are omitted as surplusage.
In subsection (d), the words "one commissioned officer * * * in a grade below major * * * for each pool set up under subsection (c) and for each squadron of the Air National Guard" are substituted for the words "one such officer not above the grade of captain for each heavier-than-air squadron; and one such officer not above the grade of captain for each pool".
In subsection (e), the words "Funds appropriated by Congress" are substituted for the words "Funds hereafter appropriated under the provisions of this title for the support of", in 32:42, and "such moneys", in 32:42a. The words "are in addition to" are substituted for the words "shall be supplemental to", in 32:42, and "may be used as supplemental to", in 32:42a.
In subsection (f), the words "authorized to be employed under this section" are substituted for the words "authorized to be employed". The words "person to employ them" are substituted for the words "by whom they shall be employed". The words "by regulations" are omitted, since the Secretary has inherent authority to issue regulations appropriate to exercising his statutory functions.
Editorial Notes
References in Text
Section 717 of the Civil Rights Act of 1991, referred to in subsec. (f)(5), probably means section 717 of the Civil Rights Act of 1964,
Amendments
2016-Subsec. (f)(4).
Subsec. (f)(5), (6).
Subsec. (g).
Subsec. (j).
2006-Subsec. (a)(1).
Subsec. (a)(3).
1999-
1997-Subsec. (b).
1996-Subsec. (b).
1994-Subsec. (e)(6).
Subsec. (g)(2).
1993-Subsec. (e)(6).
Subsec. (h).
Subsec. (i).
1980-Subsec. (f).
Subsec. (g).
Subsec. (h).
1971-Subsec. (h).
1968-
Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Subsecs. (g), (h).
1961-Subsec. (f).
Statutory Notes and Related Subsidiaries
Effective Date of 1999 Amendment
Amendment by
Effective Date of 1994 Amendment
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1968 Amendment
Short Title
Military Education for Army National Guard Civilian Technicians
[
Retirement Credit for Certain Former National Guard Technicians
"(a)
"(b)
"(1) before the end of the 14-month period beginning on the date of the enactment of this Act [Nov. 14, 1986], files appropriate written application with the Office of Personnel Management in accordance with regulations under subsection (c);
"(2) at the time of filing application under paragraph (1), is employed by the United States and is subject to subchapter III of chapter 83 of title 5, United States Code (other than under section 8344 of such title); and
"(3) before the date of the separation on which entitlement to an annuity under subchapter III of chapter 83 of title 5, United States Code, is based, makes an appropriate deposit under section 8334(c) of such title with respect to the period of service involved, based on the percentage of basic pay for such service which would be required under such section if such service had been performed as an employee under such subchapter.
"(c)
Savings Provision for Accrued Claims; Conversion to Federal Employee Status; Credit for Past Service; Leave Credit
"(a) A claim accrued under section 715 of title 32, United States Code, before the effective date of this Act [see effective date note above] by reason of the act or omission of a person employed under section 709 of title 32, United States Code, may, if otherwise allowable, be settled and paid under section 715 of title 32, United States Code.
"(b) Except as provided in this Act and in the amendments made by this Act [see Short Title note above] and notwithstanding any law, rule, regulation, or decision to the contrary, the positions of persons employed under section 709 of title 32, United States Code, existing on the day before the effective date of this Act, and the persons holding those positions on that day, shall, on and after that effective date, be considered to be positions in and employees of the Department of the Army or the Department of the Air Force, as the case may be, and employees of the United States to the same extent as other positions in and employees of the Department of the Army or the Department of the Air Force. Such positions shall be outside the competitive service, if, as a condition of employment, the persons employed therein were, on the day before the effective date of this Act, required to be members of the Army National Guard or the Air National Guard.
"(c) All service under section 709 of title 32, United States Code, or prior corresponding provision of law, performed before the effective date of this Act shall be included and credited in the determination of length of service for the purposes of leave, Federal employees death and disability compensation, group life and health insurance, severance pay, tenure, and status.
"(d) Annual leave and sick leave to which a technician was entitled on the day before the conversion of his position, as provided in subsection (b) of this section, shall be credited to him in his new position."
[
["(1)
["(A) any annual leave accruing under section 6303 of title 5, United States Code, to the individual on or after such date; and
["(B) the individual's length of service for the purposes of entitlement to Federal employee death and disability compensation, group life insurance and health benefits, severance pay, tenure, and status.
["(2)
["(A)
["(B)
["(i) application for enrollment is received by the Office of Personnel Management within one year after the date of the enactment of this Act; and
["(ii) such individual would have qualified under section 8905(b)(1) of such title at the time of such individual's separation."]
Persons Employed Prior to January 1, 1969, Whose Employment Was Covered by Civil Service Retirement Provisions
Election To Remain Under State Retirement System; Reemployed Technicians; Continuation of Federal Contributions
"(a) Notwithstanding section 709(d) of title 32, United States Code, a person who, on the date of enactment of this Act [Aug. 13, 1968], is employed under section 709 of title 32, United States Code, and is covered by an employee retirement system of, or plan sponsored by, a State or the Commonwealth of Puerto Rico, may elect, not later than the effective date of this Act [see Effective Date note above], not to be covered by subchapter III of chapter 83 of title 5, United States Code, and with the consent of the State concerned or Commonwealth of Puerto Rico, to remain covered by the employee retirement system of, or plan sponsored by, that State or the Commonwealth of Puerto Rico. Unless such an election, together with a statement of approval by the State concerned or the Commonwealth of Puerto Rico, is filed with the Secretary of the Army or the Secretary of the Air Force, as appropriate, on or before the effective date of this Act, the person concerned is covered by subchapter III of chapter 83 of title 5, United States Code, as of that date.
"(b) A member of the National Guard of a State or the Commonwealth of Puerto Rico who was employed as a technician under section 709 of title 32, United States Code, or prior corresponding provision of law, who-
"(1) was involuntarily ordered to active duty after January 1, 1968, from that employment and has not been released from that duty prior to the effective date of this Act [see Effective Date note above]; or
"(2) is on active duty under section 265 [see 10211], 3015, 3033, 3496 [see 12402], 8033 or 8496 [see 12402] of title 10, United States Code, on the effective date of this Act;
and was covered by a retirement system or plan of a State or the Commonwealth of Puerto Rico, may, if he is reemployed within sixty days under section 709 of title 32, United States Code, make the election described in subsection (a) of this section, within thirty days following the date of his reemployment.
"(c) In the case of any person who files a valid election under this section to remain covered by an employee retirement system of, or plan sponsored by, a State or the Commonwealth of Puerto Rico, the United States may pay the amount of the employer's contributions to that system or plan that become due for periods beginning on or after the effective date of this Act [see Effective Date note above]. However, the payment by the United States, including any contribution that may be made by the United States toward the employer's tax imposed by section 3111 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954], as amended (26 U.S.C. 3111), may not exceed the amount which the employing agency would otherwise contribute on behalf of the person to the Civil Service Retirement and Disability Fund under section 8334(a) of title 5, United States Code. Notwithstanding section 8332(b) of title 5, United States Code, as amended by section 5 of this Act, the service under section 709 of title 32, United States Code, or prior corresponding provision of law, of a person who has made an election to remain covered by the employee retirement system of, or plan sponsored by, a State or the Commonwealth of Puerto Rico, shall not be creditable toward eligibility for or amount of annuity under subchapter III of chapter 83 of title 5, United States Code. A person who retires pursuant to his valid election shall not be eligible for any rights, benefits, or privileges to which retired civilian employees of the United States may be entitled."
Compensation Rates; Conversion and Adjustment of Compensation to the General Schedule
"(a) Except as provided in section 709(g) of title 32, United States Code, the Secretary concerned shall fix the rate of basic compensation of positions existing on the date of enactment of this Act [Aug. 13, 1968] in accordance with the General Schedule set forth in section 5332, or under the appropriate prevailing rate schedule in accordance with section 5341 of title 5, United States Code, as applicable. In fixing such rate-
"(1) If the technician is receiving a rate of basic compensation which is less than the minimum rate of the appropriate grade of the General Schedule, or which is less than the minimum rate of the appropriate grade or compensation level of the appropriate prevailing rate schedule, as applicable, in which his position is placed, his basic compensation shall be increased to that minimum rate.
"(2) If the technician is receiving a rate of basic compensation which is equal to a rate of the appropriate grade of the General Schedule, or which is equal to a rate of the appropriate grade or compensation level under the appropriate prevailing rate schedule, as applicable, in which his position is placed, he shall receive basic compensation at that rate of the General Schedule, or at that rate under the prevailing rate schedule, as applicable.
"(3) If the technician is receiving a rate of basic compensation which is between two rates of the appropriate grade of the General Schedule, or which is between two rates of the appropriate grade or compensation level under the appropriate prevailing rate schedule, as applicable, in which his position is placed, he shall receive basic compensation at the higher of those two rates under the General Schedule or appropriate prevailing rate schedule, as applicable.
"(4) If the technician is receiving a rate of basic compensation which is in excess of the maximum rate of the appropriate grade of the General Schedule, or which is in excess of the maximum rate of the appropriate grade or compensation level of the appropriate prevailing rate schedule, as applicable, in which his position is placed, he shall continue to receive basic compensation without change in rate until-
"(A) he leaves that position, or
"(B) he is entitled to receive basic compensation at a higher rate,
but, when any such position becomes vacant, the rate of basic compensation of any subsequent appointee thereto shall be fixed in the manner provided by applicable law and regulation.
"(b) The conversion of positions and employees to appropriate grades of the General Schedule set forth in section 5332 of title 5, United States Code, and the initial adjustment of rates of basic compensation of those positions and technicians, provided for by this Act [see Short Title note above], shall not be considered to be transfers or promotions within the meaning of section 5334(b) of title 5, United States Code, and the regulations issued thereunder.
"(c) Each technician on the effective date of this Act [see Effective Date note above], whose position is converted to the General Schedule set forth in section 5332 of title 5, United States Code, or to the appropriate prevailing rate schedule, as applicable, who prior to the initial adjustment of his rate of basic compensation under subsection (a) of this section, has earned, but has not been credited with, an increase in that rate, shall be granted credit for such increase before his rate of basic compensation is initially adjusted under that subsection.
"(d) Each technician on the effective date of this Act whose position is converted to the General Schedule set forth in section 5332 of title 5, United States Code, or to the appropriate prevailing rate schedule, as applicable, shall be granted credit, for purposes of his first step increase under the General Schedule or prevailing rate schedule, for all satisfactory service performed by him since his last increase in compensation prior to the initial adjustment of his rate of basic compensation under subsection (a) of this section.
"(e) An increase in rate of basic compensation by reason of the enactment of subsection (a) of this section shall not be considered to be an equivalent increase with respect to step increases for technicians whose positions are converted to the General Schedule set forth in section 5332 of title 5, United States Code, or the appropriate prevailing rate schedule under authority of this section."
Regulations: Approval by Secretary of Defense; Uniformity
Number of Caretakers for Air National Guard
Similar provisions were contained in the following prior acts:
Sept. 29, 1967,
Oct. 15, 1966,
Sept. 29, 1965,
Aug. 19, 1964,
Oct. 17, 1963,
Aug. 9, 1962,
Aug. 17, 1961,
July 7, 1960,
Aug. 18, 1959,
Aug. 22, 1958,
Aug. 2, 1957,
July 2, 1956, ch. 488, title V,
July 13, 1955, ch. 358, title V,
June 30, 1954, ch. 432, title VI,
Aug. 1, 1953, ch. 305, title V,
July 10, 1952, ch. 630, title V,
Oct. 18, 1951, ch. 512, title V,
Sept. 6, 1950, ch. 896, Ch. X, title V,
Oct. 29, 1949, ch. 787, title V,
Number of Caretakers for Army National Guard
Similar provisions were contained in the following prior acts:
Sept. 29, 1967,
Oct. 15, 1966,
Sept. 29, 1965,
Aug. 19, 1964,
Oct. 17, 1963,
Aug. 9, 1962,
Aug. 17, 1961,
July 7, 1960,
Aug. 18, 1959,
Aug. 22, 1958,
Aug. 2, 1957,
July 2, 1956, ch. 488, title III,
July 13, 1955, ch. 358, title III,
June 30, 1954, ch. 432, title IV,
Aug. 1, 1953, ch. 305, title III,
July 10, 1952, ch. 630, title III,
Oct. 18, 1951, ch. 512, title III,
Sept. 6, 1950, ch. 896, Ch. X, title III,
Oct. 29, 1949, ch. 787, title III,
June 24, 1948, ch. 632,
July 30, 1947, ch. 357, title I,