[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 766 Introduced in Senate (IS)]

<DOC>






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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