A mobile vehicle operator at equipment concentration site (ECS) 151 in Fort Novosel, Alabama, extracts vehicle fluids to be tested for abnormalities. Army Reserve AMSA shops and ECSs are primarily staffed by military technicians. MilTechs, 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: U.S. Army photo by Sgt. 1st Class Crystal Harlow
By: FEDweek StaffThe MSPB has opened the door to accepting appeals from “dual status” technicians in light of a change in law affecting employment rights of those employees, who are civilian employees of the Army or Air Force who also must be a member of the National Guard and participate in part-time drills, training, or active-duty deployments.
The ruling in case No. 2023 MSPB 27 came in response to a change in law that occurred just before the MSPB lost its quorum in 2017 and was unable to issue decisions into last year when the quorum was restored.
The prior law had excluded those technicians from the definition of an “employee” with rights to appeal disciplinary actions to the MSPB; that was changed to grant those rights to actions based solely on their civilian capacity, while leaving to state adjutant generals the authority to determine discipline when the appeal concerns activity occurring while the member is in a military pay status, or concerns fitness for duty.
An MSPB hearing officer found that the case involved only civilian matters and that the MSPB had jurisdiction to hear the appeal. However, citing prior court and MSPB precedent, the hearing officer dismissed the case on grounds that the MSPB could not provide any effective relief to the employee because it lacks the authority to issue enforceable orders against state adjutants general.
The merit board said the hearing officer was correct on the jurisdictional issue but that the prior cases no longer were valid given the change in law. That law “expanded the Board’s adjudicatory authority over certain actions taken against National Guard technicians, and, by extension, the Board’s authority to order relief in favor of those technicians,” it said in returning the case to the hearing officer for consideration.
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