[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 766 Introduced in Senate (IS)]
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115th CONGRESS
1st Session
S. 766
To amend titles 10 and 32, United States Code, to improve and enhance
authorities relating to the employment, use, status, and benefits of
military technicians (dual status), and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 29, 2017
Mr. Manchin introduced the following bill; which was read twice and
referred to the Committee on Armed Services
_______________________________________________________________________
A BILL
To amend titles 10 and 32, United States Code, to improve and enhance
authorities relating to the employment, use, status, and benefits of
military technicians (dual status), and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. IMPROVEMENT AND ENHANCEMENT OF AUTHORITIES RELATING TO THE
EMPLOYMENT, USE, AND STATUS OF MILITARY TECHNICIANS (DUAL
STATUS).
(a) In General.--The text of section 709 of title 32, United States
Code, as amended by sections 512 and 513 of the National Defense
Authorization Act for Fiscal Year 2017 (Public Law 114-328), is further
amended to read as follows:
``(a) Under regulations prescribed by the Secretary of Defense,
persons may be employed as technicians for the purposes of--
``(1) the support of the readiness, organization,
administration, instruction, or training of the National Guard;
``(2) the maintenance and repair of supplies and equipment
or facilities 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 such 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) In this section, a technician is a person employed under
subsection (a) who 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, and who is either of the following:
``(1) A military technician (dual status) as defined in
section 10216(a) of title 10 who--
``(A) is a member of the National Guard of the
jurisdiction in which the person is employed;
``(B) is outside the competitive service;
``(C) holds the military grade specified pursuant
to regulations prescribed by the Secretary of Defense
for that position; and
``(D) while performing duties as a military
technician (dual status)--
``(i) wears the uniform appropriate for the
member's grade and component of the armed
forces; and
``(ii) adheres to all military regulations
of the component concerned.
``(2) A non-dual status technician as defined in section
10217 of title 10, in a technician position designated in
accordance with regulations prescribed by the Secretary of
Defense.
``(c) The adjutants general referred to in section 314 of this
title shall appoint, employ, administer, detail, and assign the
technicians authorized by this section.
``(d) Notwithstanding any other provision of law and under
regulations prescribed by the Secretary of Defense--
``(1) a person employed under subsection (a) who is a
military technician (dual status) and otherwise subject to the
requirements of subsection (b)(1) who--
``(A) is separated from the National Guard shall be
promptly separated from military technician (dual
status) employment by the adjutant general of the
jurisdiction concerned; or
``(B) ceases to hold the military grade specified
by the Secretary concerned for that position or fails
to maintain the security or other military standards
established for a member of a reserve component
pursuant to regulations prescribed by the Secretary of
Defense that are required for that position shall 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
technician employment for cause by the adjutant general of the
jurisdiction concerned;
``(3)(A) a reduction in force, furlough, removal, or other
adverse action involving military technician (dual status)
employment shall be accomplished by the adjutant general of the
jurisdiction concerned, and neither the Secretary of Defense
nor the Chief of the National Guard Bureau may order persons
employed as military technicians (dual status) under subsection
(a) to be furloughed; or
``(B) a reduction in force, removal, or adverse action
involving discharge from non-dual status 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) in the case of a military technician (dual status)
a right of appeal which may exist under paragraph (1), (2), or
(3) shall be through military proceedings, and 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 military duty standards; or
``(B) in the case of a non-dual status technician, 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 military duty standards;
``(5)(A) in the case of a military technician (dual
status), under regulations prescribed by the Secretary of
Defense, a right of appeal of the final decision of the
adjutant general of the jurisdiction concerned which may exist
under paragraph (1), (2), or (3) shall be to an administrative
panel when the appeal concerns activities that occur while the
technician is performing technician duties or that relate to
aspects of technician employment not covered by paragraph (4),
and the decision of the administrative panel shall be binding
upon the adjutant general of the jurisdiction concerned and may
not be further appealed; or
``(B) in the case of a non-dual status technician, 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 (42
U.S.C. 2000e-16) shall apply;
``(6) in the case of a military technician (dual status),
with respect to an appeal of any final decision by the adjutant
general of the jurisdiction concerned alleging discrimination
based upon race, color, religion, sex, or national origin
(including an appeal of an action under paragraph (1), (2), or
(3) that alleges such discrimination) in the non-military
aspects of technician employment (but not in activities that
occur while the military technician is in a military pay or
duty status or that concern military duty standards), the
provisions of section 717 of the Civil Rights Act of 1991 shall
apply;
``(7) a technician shall be notified in writing of the
termination of 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;
and
``(8) a military technician (dual status) who is
involuntarily separated from military technician (dual status)
employment under paragraph (1) or (3), other than for
misconduct, shall--
``(A) be granted priority 1 consideration under the
Department of Defense priority placement program; and
``(B) be granted full eligibility under the
Interagency Career Transition Assistance Plan (ICTAP)
under subpart G of part 330 of title 5, Code of Federal
Regulations (5 C.F.R. 330.701 et seq.).
``(e)(1) Except as provided in subsection (d), 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).
``(f)(1) 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.
``(2) Notwithstanding sections 5542 and 5543 of title 5 or any
other provision of law, non-dual status 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.
``(3) Notwithstanding sections 5542 and 5543 of title 5 or any
other provision of law and subject to the availability of funds,
military technicians (dual status) shall be paid at a rate of one and
one-half times their basic pay rate for irregular or overtime work,
except that, upon request or when funds are unavailable, such
technicians may 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.
``(g) The Secretary concerned may not prescribe for purposes of
eligibility for Federal recognition under section 301 of this title a
qualification applicable to non-dual status 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. However, the
adjutant general of the jurisdiction concerned may prescribe such
qualifications for military technicians (dual status).
``(h) In this section:
``(1) The term `military duty standards' means requirements
in law, regulation, or policy that are applicable to military
service, including service in the National Guard or other
reserve components of the armed forces or service on active
duty in the armed forces.
``(2) 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 by
title 37.''.
(b) Accrual of Pay for Overtime Work Contingent Upon Regulations.--
No entitlement to payment for overtime work shall accrue under
paragraph (3) of subsection (f) of section 709 of title 32, United
States Code, as amended by subsection (a), until the Secretary of
Defense prescribes regulations relating to budgeted for and paying for
overtime work of military technicians under that section.
SEC. 2. ENHANCEMENT OF BENEFITS FOR MILITARY TECHNICIANS (DUAL STATUS).
(a) Bonuses and Related Benefits.--Section 10216 of title 10,
United States Code, is amended by adding at the end the following new
subsection:
``(h) Bonuses and Related Benefits.--(1) If an individual becomes
employed as a military technician (dual status) while the individual is
already a member of a reserve component of the armed forces, the
Secretary concerned may not require the individual to repay any
enlistment, reenlistment, or affiliation bonus provided to the
individual in connection with the individual's enlistment or
reenlistment before such employment.
``(2) Even though an individual employed as a military technician
(dual status) is required as a condition of that employment to maintain
membership in the Selected Reserve, the individual shall not be
precluded from receiving an enlistment, reenlistment, or affiliation
bonus nor be denied the opportunity to participate in an educational
loan repayment program under chapter 1609 of this title as an
additional incentive for the individual to accept and maintain such
membership.''.
(b) Eligibility for TRICARE Standard as Members of the Selected
Reserve.--Section 1076d(a)(2) of title 10, United States Code, is
amended--
(1) by striking ``Paragraph (1) does not'' and inserting
``(A) Except as provided in subparagraph (B), paragraph (1)
does not''; and
(2) by adding at the end the following new subparagraph:
``(B) Notwithstanding subparagraph (A), paragraph (1) applies to a
member who is enrolled, or eligible to enroll, in a health benefits
plan under chapter 89 of title 5 if the member is a military technician
(dual status) as described in section 10216(a) of this title.''.
SEC. 3. FISCAL YEAR 2018 END STRENGTHS FOR NATIONAL GUARD MILITARY
TECHNICIANS (DUAL STATUS).
Notwithstanding any other provision of law, the minimum number of
military technicians (dual status) as of the last day of fiscal year
2018 for the specified reserve components of the Army and the Air Force
(notwithstanding section 129 of title 10, United States Code) shall be
the following:
(1) For the Army National Guard of the United States,
25,507.
(2) For the Air National Guard of the United States,
22,103.
SEC. 4. MODIFICATION OF REQUIREMENTS RELATING TO CONVERSION OF MILITARY
TECHNICIAN (DUAL STATUS) POSITIONS.
Section 1053(a) of the National Defense Authorization Act for
Fiscal Year 2016 (Public Law 114-92; 129 Stat. 10 U.S.C. 10216 note),
as amended by section 1084(a) of the National Defense Authorization Act
for Fiscal Year 2017 (Public Law 114-328), is further amended by
striking paragraphs (1) and (2) and inserting the following new
paragraphs:
``(1) In general.--Commencing not earlier than October 1,
2017, the Secretary of Defense shall convert the military
technician positions described in paragraph (2) to positions
filled by individuals who are employed under section 3101 of
title 5, United States Code, or section 1601 of title 10,
United States Code, and are not military technicians.
``(2) Covered positions.--The positions described in this
paragraph are military technician (dual status) positions in
general administration, clerical, finance, and office service
occupations that are identified by the Secretary of Defense as
convertible without affecting military readiness.
``(3) Limitation on number converted.--The total number of
positions converted pursuant to this subsection may not exceed
the number equal to 4.8 percent of military technician (dual
status) positions of the National Guard and the Reserves that
are filled as of October 1, 2017.''.
SEC. 5. SCOPE OF AUTHORIZED DUTIES FOR MEMBERS OF THE NATIONAL GUARD
CALLED TO ACTIVE GUARD AND RESERVE DUTY BY THE GOVERNORS
OF THE STATES.
Section 328(b) of title 32, United States Code, is amended by
inserting ``, or additional duties in support of State missions,''
after ``additional duties specified in section 502(f) of this title''.
SEC. 6. MODIFICATION OF PERSONNEL MANAGEMENT AUTHORITIES FOR THE CHIEF
OF THE NATIONAL GUARD BUREAU.
Section 10508(b) of title 10, United States Code, as added by
section 932(2) of the National Defense Authorization Act for Fiscal
Year 2017 (Public Law 114-328), is amended--
(1) in paragraph (1), by striking ``may'' and all that
follows and inserting ``may--
``(A) program for persons under sections 2103,
2105, and 3101 of title 5, and section 328 of title 32;
and
``(B) appoint, employ, administer, detail, and
assign persons under sections 2103, 2105, and 3101 of
title 5 within the National Guard Bureau and, with the
consent and advice of the adjutant general of the
jurisdiction concerned, the National Guard of each
State, the Commonwealth of Puerto Rico, the District of
Columbia, Guam, and the Virgin Islands to execute the
functions of the National Guard Bureau, the missions of
the National Guard, and missions assigned by the Chief
of the National Guard Bureau.''; and
(2) by striking paragraph (2) and inserting the following
new paragraph (2):
``(2) Administration through adjutants general.--The
adjutants general referred to in section 314 of title 32 shall
exercise the authority of the Chief of the National Guard
Bureau under paragraph (1)(B) to appoint, employ, administer,
detail, and assign persons under sections 2103, 2105, and 3101
of title 5 within their jurisdictions. The adjutants general
may delegate such authority to persons under sections 328 and
709 of title 32.''.
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