II 115th CONGRESS 1st Session S. 766 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.

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. 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. . 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. 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. . 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 . 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. .