LAW REVIEW 1098
Paid Military Leave for National Guard Technicians
By Captain Samuel F. Wright, JAGC, USN (Ret.)
Duration of Service
USERRA and Other Laws and Policies
2.0—Paid Leave for
Q: I am the Property and Fiscal Officer for the
National Guard of a state. I am
responsible for the proper expenditure of and accounting for federal funds and
federal property for this state’s National Guard. We had a National Guard technician (Captain)
in this state. Almost five years ago,
she left her technician job here to go on full-time Active Guard and Reserve
(AGR) duty. Her AGR orders have been
extended more than once, and she has since switched her National Guard
membership to another state, in order to remain on AGR duty.
We have been paying her
paid military leave each year, in accordance with section 6323 of title 5 (5
U.S.C. 6323). Each October 1 (the start
of the new federal fiscal year), we put her back on the payroll until her paid
military leave is exhausted. Because we
only charge her for work days, this gives her one full pay period of civilian
pay and about half of a second pay period.
We are contemplating discontinuation of her paid military leave after
she passes the fifth anniversary of her departure from her technician job for
the purpose of going on AGR duty. Would
that be lawful?
so, but the matter is not entirely free from doubt. It seems to me that this is a question under
5 U.S.C. 6323, not under the Uniformed Services Employment and Reemployment
Rights Act (USERRA).
The pertinent language of
section 6323 is as follows: “Subject to
paragraph 2 of this subsection [pertaining to part-time employees and not
pertinent to this discussion], an employee as defined by section 2105 of
this title or an individual employed by the government of the District of
Columbia, permanent or temporary indefinite, is entitled to leave without loss
in pay, time, or performance or efficiency rating for active duty, inactive-duty
training (as defined in section 101 of title 37), funeral honors duty (as
described in section 12503 of title 10 and section 115 of title 32), or
engaging in field or coast defense training under sections 502-505 of title 32
as a Reserve of the armed forces or member of the National Guard. Leave under this subsection accrues for an
employee or individual at the rate of 15 days per fiscal year and, to the
extent that it is not used in a fiscal year, accumulates for use in the
succeeding fiscal year until it totals 15 days at the beginning of a fiscal
year.” 5 U.S.C. 6323(a)(1) (emphasis
Congress has explicitly
included active duty among the kinds of military duty for which an
individual is to receive paid military leave under section 6323. Thus, it is clear that an individual who has
left federal civilian employment for active duty remains an employee and
remains eligible for the 15 days of paid military leave per fiscal year. But for how long? Section 6323 does not answer this question,
and I have not found anything in the legislative history of that section that
sheds any light on this question.
Section 6323(a)(1) refers to
“an employee as defined by section 2105 of this title.” I have read and reread that section, and it
says nothing about the question of when (if ever) a person who has left a
federal civilian position of employment for full-time military duty ceases to
be an “employee” who is entitled to paid military leave under section 6323.
Faced with this question,
federal agencies generally refer to section 4312(c) of USERRA, which
establishes a five-year limit on the duration of the period or periods of
uniformed service that an individual can perform, with respect to the employer
relationship for which the individual seeks reemployment, and still have the
right to reemployment under USERRA.
Section 4312(c) also establishes eight exemptions from the five-year
limit—kinds of service that do not count toward exhausting the limit. The shorthand version is that all involuntary
service and some voluntary service are exempted from the computation of
the five-year limit.
Please see Law Review 201 for
a definitive discussion of what counts and what does not count toward
exhausting the five-year limit. You can
find more than 750 “Law Review” articles at www.roa.org/law_review. You will also
find a detailed Subject Index and a search function, to facilitate finding
articles about very specific topics.
In any case, I do not believe
that USERRA’s five-year limit is necessarily relevant to the determination of
how long a federal employee who is away from work for long-term active duty
continues to be entitled to paid military leave under section 6323. Section 6323 and USERRA are in different
titles of the United States Code, were enacted at different times, and apply to
different employers. USERRA applies to
essentially all employers, including the Federal Government. Section 6323 only applies to federal
employers, and for purposes of this section the National Guard technicians are
considered to be federal employees.
We do not know how much of
the five-year limit this particular National Guard officer has utilized. It may be that some or most of her recent
military duty has been exempt from the five-year limit, under one or more of
the subsections of section 4312(c) of USERRA.
The determination about the five-year limit and the other USERRA
eligibility criteria can only be made if and when she leaves active duty and
applies for reemployment. At this point,
it seems most unlikely but not totally inconceivable that she will ever apply
for and be entitled to reemployment as a National Guard technician in your
Q: A supervisor in our personnel office has
suggested that we terminate this officer’s technician employment, in order to
justify cutting off her paid military leave and to make clear that she will not
have the right to reemployment as a technician in this state. What do you think?
think that is a terrible idea for several reasons, including the terrible
appearance. How do we get private
employers and local governments to comply with USERRA if the word gets out that
the state’s National Guard has terminated a civilian employee for going on active
Termination of employment clearly implies misconduct. Leaving one’s civilian job for military
service and remaining on active duty past the exhaustion of the five-year limit
is not misconduct. The five-year
limit is an eligibility criterion for reemployment. This officer will leave full-time AGR duty at
some point, perhaps at retirement. If
she has exceeded the five-year limit (including the generous exemptions from
the limit), or if she fails to meet one or more of the other eligibility
criteria, she will not have the right to reemployment, but she could certainly
apply for another federal civilian position.
If her personnel record shows that her former federal civilian
employment was terminated, it will be most difficult for her to find
other federal civilian employment.
Please see Law Review 1028 (by Ariel Solomon, Esq.), concerning the case
of Erickson v. United States Postal Service, 571 F.3d 1364 (Fed. Cir.
It is absolutely unacceptable
for any federal agency (and especially the National Guard) to terminate an
individual’s employment relationship because of military service, even service
beyond the five-year limit. We cannot
countenance treating military service as misconduct in a civilian job.
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