Tuesday, August 28, 2007

Reserve Soldier and Federal employee

The Federal Circuit Court of Appeals has just issued a decision that should be looked at carefully by any current or retired federal employee who took military leave for reserve activities. (Hernandez v. Department of the Air Force, C.A.F.C. No. 2006-3375, 8/27/07) This decision has implications for most Military technicians, and Federal employees that were also Reservist prior to 1994.

Under federal law, federal employees who are in the reserves get 15 days of military leave per year with the ability to carry over up to 15 days of unused military leave into the following year. (5 U.S.C. §6323(a)(1)) For many years it was the government's practice to charge every day that a reservist was on active duty to the 15-day military leave account, even if part of it occurred, say, on a weekend when the federal employee was not usually scheduled to work. For example, 1 week of reserve activity that included Saturday and Sunday when the employee was not scheduled to work his/her civilian job anyway, was charged 7 days of military leave. (Opinion, pp. 1-2)

This was accepted practice that affected many Federal employees serving as Reserve soldiers, including me. Federal Employees, including Military Technicians, lost two days of military leave every Annual Training – if we had to complete more that 15 days of active duty in a year we were faced with LWOP for the balance or had to use our annual leave. Prior to this decision – anyone in this position could only recoup the difference incurred back to 1994 – that may now have to change to periods before 1994.

The difficulty in gaining relief will be to document service for many of us – most of the records from the eighties were paper related and often in previous agencies or organizations making this a difficult task. The other facet of this case affecting collection of the necessary documentation is the use of discovery action pressed upon the agency rather than the employee to get the pay records for the affective periods – in this case back to 1980.

The practice was widespread and the requirement of the agency to determine the amount of relief in essence will likely drive some sort of process or settlement plan for Reservist that were also federal employees prior to 1994 – keep your eyes posted here for developments.

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