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NARFE Magazine - Federal Employees in National Guard Dual Status Technician Positions Are a Breed Apart

August 2015

By David Tobekin

Edward Konys, NARFE’s Region IV vice president, recalls attending a chapter meeting in Ohio several years ago when the discussion turned to recruiting new NARFE members. Konys recalls pointing out that right across the road from where they were meeting were potentially hundreds of new members working at the Air National Guard base. The chapter members were clearly perplexed, recounts Konys, and wondered why he was suggesting that they recruit military personnel.

What they did not realize, says Konys, a former deputy director of manpower for the U.S. Air Force Materiel Command at Wright-Patterson Air Force Base near Dayton, was that a very high percentage of the guardsmen they saw were civilian federal employees working as dual-status technicians (a lso called reserve techs). Dual-status technicians work as full-time federal civil service employees during the week and, on one or two weekends per month, serve as members of the National Guard or Reserves while attending unit training assemblies.

“The problem is that at such bases, National Guard or Reserve civilian workers wear uniforms, and our chapter people assume that they are military,” Konys says. “Yet there may be 300 to 400 dual- status technicians in an Air National Guard flying unit.

The knowledge Gap, notes Kony’s runs both ways. Working in a military environment, many dual-status technicians, who receive General Schedule or Wage Grade pay and many of the same civil Service Retirement System (CSRS) or Federal Employees Retirement System (FERS) retirement benefits as of other federal civil service employees, are unaware of NARFE’s role in fighting to preserve their civil service pay benefits and due process rights.

“Dual-status technicians face the same basic issues and should have the same advocacy,” Konsy says. ‘They need to know what issues are confronting federal employees, what advocacy efforts are being undertaken and how they can participate.

However, while dual-status technicians are civil service employees, they face special pay and benefits challenges that make them a federal breed apart.

A BREED APART

There are a number of specialized employment niches in the federal workplace, but dual-status technicians may be among the most unusual. The approximately 50,000 dual-status technicians occupy a strange hybrid world in the military-civil service space. They are National Guard, U.S. Air force reservists but are also full-time civil service Department of Defense employees.

Deployed nationwide, dual-status technicians perform functions that include equipment and weapons systems maintenance, computer and facility maintenance, and pay and benefits administration. In many cases, they train active duty personnel and other reservists who cannot devote a full workweek and years of their careers to mastering technical skills necessary to maintain a given weapon system or equipment item. While most are enlisted personnel, Some are officers including even a few generals. They generally work a 40-hour workweek as civilian employees and are required to perform reserve duty at least one weekend a month and participate in at least two weeks of training per year. Like other reservists, they must serve in military operations abroad when called to duty.

“Dual-status technicians tend to be more knowledgeable, experienced and cost-effective that their less-experienced and cost-effective that their less-experienced and higher pad active duty counterparts, “says Ben Banchs, business manager at the Laborers International Union of North America’s National Guard district Council. Dual-status technicians tend to have more years of military employment and, in particular, more time deployed on the same equipment in the same location for long periods, Banchs says. A former dual-status technician who maintained F-15 fighter jet aircraft full time for seven years, he says active duty personnel tend to not acquire the same level of skills because they are moved geographically and are assigned different duties. “The majority of folks fixing aircraft who are active duty are in their early 20s with four to six years of military experience and E-4 or E-5 ranks,” Banchs says. “Our folks are 15- to 25-year veterans with E-6 and E-7 ranks.” A 2008 study by think tank Rand Corporation, “Options for Meeting the Maintenance Demands of Active Association Flying Unit,” found that the Air National Guard, whose lynchpin full-time employees are dual-status technicians, was consistently able to generate more peacetime flying hours per full0time-equivalent maintainer than was the active duty component of the U.S. Air Force – and in the case of the F-16 jet fighter aircraft, more than twice as many.

There are two parts of the dual-status technician program – component reserve units of the Army and Air Force, which report to the management chains of those organizations, and Army and Air National Guards, which are organized and supervised by state officials.

SPECIAL CHALLENGES

When it comes to job protection, salary and benefits, they may have the worst of both the military and civil service worlds, contends Banchs.

Topping the list of challenges is a lack of job protection. Like other reservists, dual-status technicians who serve 20 years are entitled to a military pension. The catch, however, is that pensions for reservists – including dual-status technicians - only take effect at age 60 (though this age requirement may be reduced for certain combat zone service), not, as is the case for active duty personnel, whenever their 20 years of service ends. And the right to maintain their civil service jobs depends on their ongoing service in the reserves. That is, if they are discharged as reservists, they lose their right to their civil service jobs, including its salary, agency Thrift Savings Plan contributions and matches, and the possibility of an unreduced civil service retirement annuity.

That becomes a very real issue after 20 years of service, when reservists become subject to annual evaluations to determine whether they should be retained as reservists for another year. Unlike federal civil service employees, they can – and have been – discharged without cause and for a wide variety of reasons, including advancement for more junior employees. But for many dual-status technicians, unlike other reservists with nonmilitary jobs, their narrow range of skill sets – such as a mechanic working only on an F-15 jet fighter aircraft for 20 years – frequent location at or around an isolated military facility and oftentimes lack of higher education mean that their employment prospects can be grim if they lose that civil service job.

Keith Meade is a 44-year-old, dual-status technician employed by the Michigan Army National Guard as a production controller. He has deployed to combat operations in Iraq three times, including one where he severely damaged his knee after falling into a hole during a night patrol. In May, he received unwelcome news from his military supervisor: After nine years as a dual-status technician, 18 in the National Guard in total and 22 in the military overall, he would be asked to depart the reserves in October and would simultaneously lose his dual-status technician GS-9 position as well as his E-7 sergeant first class position.

“I was dumbfounded, as I know I have far more military education and a higher rank than others who were retained,” says Meade, who notes that his production controller job involves little physical activity and, therefore, does not tax his damaged knee.

“I haven’t decided yet whether to try to appeal the decision,” says Meade. “If I have to leave the National Guard, I’m not sure what I will do. I was a rough carpenter prior to being deployed in 2003, but Im not sure how well I can handle running around on a pitched roof with a busted knee. Here in Michigan, there is the U.S Army Tank and Automotive Command, so I could try to get a civilian job there. But there are no guarantees. The situation I and similar dual-status technicians face does bother me. I would like to see that if you serve 20 honorable years in the Armed Forces, you should be able to retire from the military and continue in your civilian technician position.”

A SYSTEM STACKED AGAINST THEM

“The way the system is set up is stacked against technicians,” says John M. Harris, president of the Enlisted Association of the National Guard of the United States. “The military side is not set up to accommodate them; rather, military retention measures have been set up to deal with those who stay in service too long, not realizing the effect it would have on those who would lose their civilian positions.”

In addition, many dual-status technicians get a late start accruing civil service retirement eligibility. Because the dual-status technician program is not well known to many reservists and military personnel and is advertised through USAJOBS posts that are unfamiliar to many in the military, many join the program late.

Dual-status technicians also lack federal civil service protections and have narrower rights in addressing other issues, such as discrimination, retaliation and whistleblower suits, Banchs says. The U.S. Merit Systems Protection Board (MSPB) and the U.S. Office of Special Counsel (OSC) do not have jurisdiction over complaints by reserve techs, leading to an unfavorable work environment for many of them, says Banchs.

“There is no third-party review of administrative actions taken against National Guard techs in civil service, not even whistleblower actions,” Banchs says. “With respect to both the MSPB and the OSC, the most they can do is render opinions with no enforcement under the law. The National Guard Bureau also believes that the EEOC has no jurisdiction over their employees, even if they are civil servants.”

But against tough odds, some dual-status technician challenges to adverse workplace conditions and discrimination are successful. In 2012 and 2013, two dual-status technicians, Vikki Rouleau and Theresa Devine, received default judgments in their favor and against the National Guard Bureau after an EEOC administrative law judge held that the dual-status technicians had suffered sexual and reprisal-based discrimination. The EEOC administrative judge awarded Rouleau $231,425 in damages.

“We secured a default judgment in their favor by demonstrating that dual-status technicians are civil service employees with civil service rights,” says Josh Bowers, a Silver Spring, MD-based attorney who represented Rouleau and Devine. While federal law does give state adjutants general the ultimate power to retain or let go dual-status technicians in the Army and Air National Guards, Bowers maintains that they retain many other rights, such as the right to organize in a union, and that some appellate court decisions have narrowed their due process rights based on insufficient factual records in those cases concerning the civilian nature of dual-status technicians. “They are not, as the National Guard would like to believe, equivalent to the full-time military, subject only to military rules,” Bowers says.

There are other benefits issues of concern to dual-status technicians. Despite being reservists, because they are qualified to participate in the Federal Employees Health Benefits Program (FEHBP), they are not permitted to participate in the TRICARE Reserve Select (TRS) program, a health insurance benefit available to all other members of the National Guard and Reserve. Banchs says that the TRS premium is $200 per month for family coverage, in many cases 50 percent less than a similar FEHBP program.

And despite being in the military, they do not qualify for retention and educational bonuses and other incentives given to some active duty personnel and reservists to re-enlist or stay in the service. “The government has taken the position that their ‘incentive’ is the right to continue to stay in their civil service jobs,” Banchs says.

Dual-status technicians also have faced all the downsides of being federal civil service employees in recent years, including pay freezes and furloughs triggered by sequestration.

So why be a dual-status technician? There are upsides, Banchs notes. Dual-status technicians tend to move around less than those in active military service, which can be attractive to those with families. Too, “you can serve your country in both capacities, as a reservist and as a civil service employee,” Banchs says. “When I was out there, I loved being able to work on aircraft full time. And the problems with the program are problems that could be fixed.”

In addition, dual-status technicians can receive two pensions, one as reservists after 20 years and another for their civil service duty under standard age and length of service requirements, but they must qualify for each individually. There is a mandatory retirement age of 60 for reservists. Dual-status technicians under the CSRS are subject to the Windfall Elimination Provision (WEP), save for those who are legal permanent residents in a state in the federal judicial Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota), who were held exempt from the WEP under a 2011 U.S. Court of Appeals for the Eighth Circuit decision, Petersen v. Astrue, 633 F.3d 633 (8th Cir. 2011).

A LEGISLATIVE FIX?

A series of legislative fixes aimed at addressing the benefits challenges of dual-status technicians have been introduced over the past several years but have died in Congress each time.

Legislation introduced in zoi4 by Sen. Jack Reed, D-RI, the National Guard Technician Equity Act (S. 2312), would have addressed the job security issue by allowing dual-status technicians to convert to nondual status (full civil service without a reserve requirement) after 20 years of creditable technician service and would have exempted technicians from being considered for involuntary separation by the Army/Air Force’s qualitative selection/retention board process.

The bill also would have extended dual-status technicians the same due process rights afforded to other federal employees under the law to seek an appeal of an adverse personnel action directly related to their duties as civilian employees.

The bill did not face significant opposition, Banchs says, and with many veterans in their ranks, dual-status technicians are a sympathetic class of employees for both major parties. Rather, the bill’s failure to pass reflects the dim prospects of any bill on Capitol Hill these days, particularly for a small class of employees such as dual-status technicians, he says.

Changes in the National Guard itself also could help address at least some of these issues. One proposal discussed by a Military Compensation Retirement Modernization Commission report released in January would allow reservists, including dual-status technicians, to begin receiving a reduced annuity prior to age 60.

AN UNTAPPED MEMBER POOL

For NARFE chapter leaders reaching out to dual-status technicians, Konys recommends that they contact the National Guard state headquarters public affairs office or the unit public affairs office. “If they talk to the unit public affairs people, they might get the opportunity to make a presentation,” he says. “They are not allowed to recruit, but they could present federal pay and benefits issues NARFE is working on."

The NARFE representatives may find audiences receptive to joining. “I was not aware of NARFE prior to now,” says Meade. “It would be something I would consider becoming a member of."
DAVID TOBENKIN IS A FREELANCE WRITER BASED IN THE GREATER WASHINGTON, DC AREA

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Josh F. Bowers, P.C.
1100 Wayne Avenue Suite 900
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(301) 565-0090


 


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