Army Reserve AMSA shops and ECSs are primarily staffed by military technicians. MilTechs perform vital roles across the Army Reserve. These dual-status technicians are required to serve in the Army Reserve as a condition of their civilian employment. The appearance of U.S. Department of Defense (DoD) visual information does not imply or constitute DoD endorsement. Image: Army photo by Sgt. 1st Class Crystal Harlow
By: FEDweek StaffThe MSPB has said it has authority to hear appeals brought under the Veterans Employment Opportunities Act by “dual status” National Guard technicians, overturning a decision to the contrary by one of its hearing officers
Case No. 2024 MSPB 19 involved an assertion by a technician that the Arizona Air National Guard did not give him credit for his veterans’ preference when not selecting him for a higher-level position to which he had applied. The Labor Department found the agency failed to follow the proper procedure to “pass over” him despite that preference but did not order him placed into the higher position. When he then appealed to the MSPB, the hearing officer ruled that the MSPB does not have authority over a state adjutant general, the ultimate authority over dual status technicians, who must hold military positions in order to hold civilian positions.
The merit board, though, noted that in a recent case it ruled that it has authority to order the employing agency of a National Guard technician to take an employment action. In a separate case, it extended that reasoning to say that it has authority to order relief to National Guard employees in appeals of disciplinary actions against them.
That reasoning further applies to VEOA appeals, the decision said, saying that “It would be implausible for Congress to have specifically provided for an administrative remedy under VEOA but for there to be no relief available to certain federal employees, like the appellant, from the Board, which has jurisdiction to adjudicate such claims.”
“We can conceive of no reason” why the law would preclude the MSPB from enforcing orders against state National Guards in VEOA appeals when it does not do so in disciplinary cases, the board wrote in sending the case back for reconsideration.
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