§ 709. Technicians: employment, use, status

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(a)Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsections

(b)and (c), persons may be employed as technicians in—

(1)the organizing, administering, instructing, or training of the National Guard;

(2)the maintenance and repair of supplies 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 those 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)Except as authorized in subsection (c), a person employed under subsection

(a)must meet each of the following requirements:

(1)Be a military technician (dual status) as defined in section 10216(a) of title 10.

(2)Be a member of the National Guard.

(3)Hold the military grade specified by the Secretary concerned for that position.

(4)While performing duties as a military technician (dual status), wear the uniform appropriate for the member’s grade and component of the armed forces.

(1)A person may be employed under subsection

(a)as a non-dual status technician (as defined by section 10217 of title 10) if the technician position occupied by the person has been designated by the Secretary concerned to be filled only by a non-dual status technician.

(2)The total number of non-dual status technicians in the National Guard is specified in section 10217(c)(2) of title 10.

(d)The Secretary concerned shall designate the adjutants general referred to in section 314 of this title to employ and administer the technicians authorized by this section.

(e)A technician employed under subsection

(a)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. However, a position authorized by this section is outside the competitive service if the technician employed in that position is required under subsection

(b)to be a member of the National Guard.

(f)Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned—

(1)a person employed under subsection

(a)who is a military technician (dual status) and otherwise subject to the requirements of subsection

(b)who—

(A)is separated from the National Guard or ceases to hold the military grade specified by the Secretary concerned for that position shall be promptly separated from military technician (dual status) employment by the adjutant general of the jurisdiction concerned; and

(B)fails to meet the military security standards established by the Secretary concerned for a member of a reserve component under his jurisdiction may 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 his technician employment for cause by the adjutant general of the jurisdiction concerned;

(3)a reduction in force, removal, or an adverse action involving discharge from 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 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 fitness for duty in the reserve components;

(5)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 1 (42 U.S.C. 2000e–16) shall apply; and

(6)a technician shall be notified in writing of the termination of his 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.

(1)Except as provided in subsection (f), 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).

(h)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. Notwithstanding sections 5542 and 5543 of title 5 or any other provision of law, such 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.

(i)The Secretary concerned may not prescribe for purposes of eligibility for Federal recognition under section 301 of this title a qualification applicable to 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.

(j)In this section:

(1)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 for under title 37.

(2)The term “fitness for duty in the reserve components” refers only to military-unique service requirements that attend to military service generally, including service in the reserve components or service on active duty.

(Aug. 10, 1956, ch. 1041, 70A Stat. 614; Pub. L. 87–224, § 2, Sept. 13, 1961, 75 Stat. 496; Pub. L. 90–486, § 2(1), Aug. 13, 1968, 82 Stat. 755; Pub. L. 92–119, § 2, Aug. 13, 1971, 85 Stat. 340; Pub. L. 96–513, title V, § 515(5)–(7), Dec. 12, 1980, 94 Stat. 2937; Pub. L. 103–160, div. A, title V, §§ 523(a), 524(c), (d), Nov. 30, 1993, 107 Stat. 1656, 1657; Pub. L. 103–337, div. A, title X, § 1070(b)(2), (d)(5), Oct. 5, 1994, 108 Stat. 2856, 2858; Pub. L. 104–106, div. A, title X, § 1038(a), Feb. 10, 1996, 110 Stat. 432;

Pub. L. 105–85, div. A, title V, § 522(c), Nov. 18, 1997, 111 Stat. 1735; Pub. L. 106–65, div. A, title V, § 524, Oct. 5, 1999, 113 Stat. 599; Pub. L. 109–364, div. A, title V, § 525(d), Oct. 17, 2006, 120 Stat. 2195; Pub. L. 114–328, div. A, title V, §§ 512(a), (b), 513, Dec. 23, 2016, 130 Stat. 2112, 2113.)

In subsection (a), the words “may be spent” are substituted for the words “shall be available”. The reference to animals for military purposes and forage, bedding, and other supplies and services for them, is omitted as obsolete, since animals are not now authorized for the National Guard. The word “persons” is substituted for the word “help”. The words “Army National Guard” and “Air National Guard” are substituted for the words “organizations of all kinds”. The words “the support of” are omitted as surplusage.

The words “A caretaker employed under this subsection” are substituted for the words “Moneys hereafter appropriated under the provisions of this title for compensation of help for care of material, animals, armament, and equipment, in the hands of the National Guard of the several States, Territories, and the District of Columbia shall be available for the hire of caretakers”. The words “and other duties that do not interfere with the performance of his duties as caretaker” are substituted for 32:42a (1st proviso). 32:42a (2d and 3d provisos) is omitted as executed.

In subsection (b), the words “However, if a unit has more than one caretaker” are substituted for the words “but if there are as many as two caretakers in any unit”. The words “under this section”, in the first sentence of the revised subsection, are inserted for clarity. The words “under this section”, in the second sentence of the revised subsection, are substituted for the words “paid to caretakers who belong to the National Guard, as herein authorized”. The words “under any of the provisions of this title” are omitted as surplusage.

In subsection (c), the words “or organizations thereof” are omitted as surplusage.

In subsection (d), the words “one commissioned officer * * * in a grade below major * * * for each pool set up under subsection

(c)and for each squadron of the Air National Guard” are substituted for the words “one such officer not above the grade of captain for each heavier-than-air squadron; and one such officer not above the grade of captain for each pool”.

In subsection (e), the words “Funds appropriated by Congress” are substituted for the words “Funds hereafter appropriated under the provisions of this title for the support of”, in 32:42, and “such moneys”, in 32:42a. The words “are in addition to” are substituted for the words “shall be supplemental to”, in 32:42, and “may be used as supplemental to”, in 32:42a.

In subsection (f), the words “authorized to be employed under this section” are substituted for the words “authorized to be employed”. The words “person to employ them” are substituted for the words “by whom they shall be employed”. The words “by regulations” are omitted, since the Secretary has inherent authority to issue regulations appropriate to exercising his statutory functions.

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