10 U.S.C. § 10217 — Non-dual status technicians

Page 3610 TITLE 10—ARMED FORCES § 10217 ‘‘(A) Military technician (dual status) positions identified as general administration, clerical, fi- nance, and office service occupations by the Army Reserve, the Air Force Reserve, the National Guard Bureau, State adjutants general, and the Secretary of Defense in the course of reviewing all military tech- nician positions for purposes of implementing this section. ‘‘(B) Such other military technician (dual status) positions as the Secretary shall specify for purposes of this subsection. ‘‘(3) TREATMENT OF INCUMBENTS.—In the case of a po- sition converted under paragraph (1) for which there is an incumbent employee, the Secretary shall fill that position, as converted, with the incumbent employee without regard to any requirement concerning com- petition or competitive hiring procedures.’’ § 10217. Non-dual status technicians (a) DEFINITION.—For the purposes of this sec- tion and any other provision of law, a non-dual status technician is a civilian employee of the Department of Defense serving in a military technician position who— (1) was hired as a technician before Novem- ber 18, 1997, under any of the authorities speci- fied in subsection (b) and as of that date is not a member of the Selected Reserve or after such date has ceased to be a member of the Se- lected Reserve; (2) is employed under section 709 of title 32 in a position designated under subsection (c) of that section and when hired was not re- quired to maintain membership in the Se- lected Reserve; or (3) is hired as a temporary employee pursu- ant to the exception for temporary employ- ment provided by subsection (d) and subject to the terms and conditions of such subsection. (b) EMPLOYMENT AUTHORITIES.—The authori- ties referred to in subsection (a) are the fol- lowing: (1) Section 10216 of this title. (2) Section 709 of title 32. (3) The requirements referred to in section 8401 of title 5. (4) Section 8016 of the Department of Defense Appropriations Act, 1996 (Public Law 104–61; 109 Stat. 654), and any comparable provision of law enacted on an annual basis in the Depart- ment of Defense Appropriations Acts for fiscal years 1984 through 1995. (5) Any memorandum of agreement between the Department of Defense and the Office of Personnel Management providing for the hir- ing of military technicians. (c) PERMANENT LIMITATIONS ON NUMBER.—(1) The total number of non-dual status technicians employed by the Army Reserve may not exceed 595 and by the Air Force Reserve may not exceed 90. If at any time the number of non-dual status technicians employed by the Army Reserve and Air Force Reserve exceeds the number specified in the limitation in the preceding sentence, the Secretary of Defense shall require that the Sec- retary of the Army or the Secretary of the Air Force, or both, take immediate steps to reduce the number of such technicians in order to com- ply with such limitation. (2) The total number of non-dual status tech- nicians employed by the National Guard may not exceed 1,950. If at any time the number of non-dual status technicians employed by the National Guard exceeds the number specified in the limitation in the preceding sentence, the Secretary of Defense shall require that the Sec- retary of the Army or the Secretary of the Air Force, or both, take immediate steps to reduce the number of such technicians in order to com- ply with such limitation. (3) An individual employed as a non-dual sta- tus technician as described in subsection (a)(3) shall not be considered a non-dual status techni- cian for purposes of paragraphs (1) and (2). (d) EXCEPTION FOR TEMPORARY EMPLOYMENT.— (1) Notwithstanding section 10218 of this title, the Secretary of the Army or the Secretary of the Air Force may employ, for a period not to exceed two years, a person to fill a vacancy cre- ated by the mobilization of a military techni- cian (dual status) occupying a position under section 10216 of this title. (2) The duration of the temporary employment of a person in a military technician position under this subsection may not exceed the short- er of the following: (A) The period of mobilization of the mili- tary technician (dual status) whose vacancy is being filled by the temporary employee. (B) Two years. (3) No person may be hired under the author- ity of this subsection after January 6, 2013. (e) CONVERSION OF POSITIONS.—(1) No indi- vidual may be newly hired or employed, or re- hired or reemployed, as a non-dual status tech- nician for purposes of this section after Sep- tember 30, 2017. (2) By not later than October 1, 2017, the Sec- retary of Defense shall convert all non-dual sta- tus technicians to positions filled by individuals who are employed under section 3101 of title 5 or section 1601 of this title and are not military technicians. (3) In the case of a position converted under paragraph (2) for which there is an incumbent employee on October 1, 2017, the Secretary shall fill that position, as converted, with the incum- bent employee without regard to any require- ment concerning competition or competitive hiring procedures. (4) Any individual newly hired or employed, or rehired or employed, to a position required to be filled by reason of paragraph (1) shall be an indi- vidual employed in such position under section 3101 of title 5 or section 1601 of this title. (Added Pub. L. 105–85, div. A, title V, § 523(a)(1), Nov. 18, 1997, 111 Stat. 1736; amended Pub. L. 106–65, div. A, title V, § 523, Oct. 5, 1999, 113 Stat. 598; Pub. L. 106–398, § 1 [[div. A], title IV, § 414(c)], Oct. 30, 2000, 114 Stat. 1654, 1654A–94; Pub. L. 107–314, div. A, title IV, § 414(d), Dec. 2, 2002, 116 Stat. 2527; Pub. L. 108–136, div. A, title IV, § 415, Nov. 24, 2003, 117 Stat. 1453; Pub. L. 111–383, div. A, title V, § 513, title X, § 1075(b)(53), Jan. 7, 2011, 124 Stat. 4210, 4372; Pub. L. 112–239, div. A, title X, § 1076(e)(7), (f)(45), Jan. 2, 2013, 126 Stat. 1951, 1955; Pub. L. 114–92, div. A, title X, § 1053(b)(1), Nov. 25, 2015, 129 Stat. 981; Pub. L. 114–328, div. A, title X, § 1084(b), Dec. 23, 2016, 130 Stat. 2421; Pub. L. 116–92, div. A, title XVII, § 1731(a)(62), Dec. 20, 2019, 133 Stat. 1816.) Page 3611 TITLE 10—ARMED FORCES § 10218 Editorial Notes REFERENCES IN TEXT Section 8016 of the Department of Defense Appropria- tions Act, 1996 (Public Law 104–61; 109 Stat. 654), re- ferred to in subsec. (b)(4), was set out as a note under section 10101 of this title prior to repeal by Pub. L. 105–85, div. A, title V, § 522(e), Nov. 18, 1997, 111 Stat. 1735. AMENDMENTS 2019—Subsec. (e)(4). Pub. L. 116–92 substituted ‘‘shall be an individual’’ for ‘‘shall an individual’’. 2016—Subsec. (e). Pub. L. 114–328 amended subsec. (e) generally. Prior to amendment, subsec. (e) related to phased-in termination of non-dual status positions. 2015—Subsec. (e). Pub. L. 114–92 added subsec. (e). 2013—Subsec. (c)(3). Pub. L. 112–239, § 1076(f)(45), sub- stituted ‘‘considered’’ for ‘‘consider’’. Subsec. (d)(3). Pub. L. 112–239, § 1076(e)(7), substituted ‘‘after January 6, 2013’’ for ‘‘after the end of the 2-year period beginning on the date of the enactment of this subsection’’. 2011—Subsec. (a)(3). Pub. L. 111–383, § 513(a)(1), added par. (3). Subsec. (c)(1). Pub. L. 111–383, § 1075(b)(53), substituted ‘‘The’’ for ‘‘Effective October 1, 2007, the’’ and struck out ‘‘after the preceding sentence takes effect’’ after ‘‘If at any time’’. Subsec. (c)(3). Pub. L. 111–383, § 513(b), added par. (3). Subsec. (d). Pub. L. 111–383, § 513(a)(2), added subsec. (d). 2003—Subsec. (c)(1). Pub. L. 108–136 substituted ‘‘may not exceed 595 and by the Air Force Reserve may not exceed 90’’ for ‘‘and Air Force Reserve may not exceed 175’’. 2002—Subsec. (c)(2). Pub. L. 107–314 substituted ‘‘The total number’’ for ‘‘Effective October 1, 2002, the total number’’ in first sentence and struck out ‘‘after the preceding sentence takes effect’’ after ‘‘If at any time’’ in second sentence. 2000—Subsec. (c)(2). Pub. L. 106–398 substituted ‘‘Octo- ber 1, 2002’’ for ‘‘October 1, 2001’’. 1999—Pub. L. 106–65, § 523(b), struck out ‘‘military’’ after ‘‘status’’ in section catchline. Subsec. (a). Pub. L. 106–65, § 523(a)(1)(A), struck out ‘‘military’’ after ‘‘non-dual status’’ in introductory provisions. Subsec. (a)(1), (2). Pub. L. 106–65, § 523(a)(1)(B), added pars. (1) and (2) and struck out former pars. (1) and (2) which read as follows: ‘‘(1) was hired as a military technician before the date of the enactment of the National Defense Author- ization Act for Fiscal Year 1998 under any of the au- thorities specified in subsection (c); and ‘‘(2) as of the date of the enactment of that Act is not a member of the Selected Reserve or after such date ceased to be a member of the Selected Reserve.’’ Subsec. (c). Pub. L. 106–65, § 523(a)(2), added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Pub. L. 106–65, div. A, title V, § 525, Oct. 5, 1999, 113 Stat. 600, provided that: ‘‘The amendments made by sections 523 and 524 [amending this section and section 709 of Title 32, National Guard] shall take effect 180 days after the date of the receipt by Congress of the plan required by section 523(d) of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105–85; 111 Stat. 1737) [set out below] [plan received by Congress from Under Secretary of Defense, Personnel and Readiness on Sept. 21, 1999, see Cong. Rec., vol. 145, pt. 15, p. 21975, Ex. Comm. 4276] or a report by the Sec- retary of Defense providing an alternative proposal to the plan required by that section.’’ PLAN FOR FULL UTILIZATION OF MILITARY TECHNICIANS (DUAL STATUS) Pub. L. 105–85, div. A, title V, § 523(d), (e), Nov. 18, 1997, 111 Stat. 1737, provided that: ‘‘(d) PLAN FOR FULL UTILIZATION OF MILITARY TECHNI- CIANS (DUAL STATUS).—(1) Not later than 180 days after the date of the enactment of this Act [Nov. 18, 1997], the Secretary of Defense shall submit to Congress a plan for ensuring that, on and after September 30, 2007, all military technician positions are held only by military technicians (dual status). ‘‘(2) The plan shall provide for achieving, by Sep- tember 30, 2002, a 50 percent reduction, by conversion of positions or otherwise, in the number of non-dual sta- tus military technicians that are holding military technicians positions, as compared with the number of non-dual status technicians that held military techni- cian positions as of September 30, 1997, as specified in the report under subsection (c) [111 Stat. 1737]. ‘‘(3) Among the alternative actions to be considered in developing the plan, the Secretary shall consider the feasibility and cost of each of the following: ‘‘(A) Eliminating or consolidating technician func- tions and positions. ‘‘(B) Contracting with private sector sources for the performance of functions performed by military tech- nicians. ‘‘(C) Converting non-dual status military techni- cian positions to military technician (dual status) po- sitions or to positions in the competitive service or, in the case of positions of the Army National Guard of the United States or the Air National Guard of the United States, to positions of State employment. ‘‘(D) Use of incentives to facilitate attainment of the objectives specified for the plan in paragraphs (1) and (2). ‘‘(4) The Secretary shall submit with the plan any recommendations for legislation that the Secretary considers necessary to carry out the plan. ‘‘(e) DEFINITIONS FOR CATEGORIES OF MILITARY TECH- NICIANS.—In this section [enacting this section]: ‘‘(1) The term ‘non-dual status military technician’ has the meaning given that term in section 10217 of title 10, United States Code, as added by subsection (a). ‘‘(2) The term ‘military technician (dual status)’ has the meaning given the term in section 10216(a) of such title.’’ § 10218. Army and Air Force Reserve technicians: conditions for retention; mandatory retire- ment under civil service laws (a) SEPARATION AND RETIREMENT OF MILITARY TECHNICIANS (DUAL STATUS).—(1) An individual employed by the Army Reserve or the Air Force Reserve as a military technician (dual status) who after October 5, 1999, loses dual status is subject to paragraph (2) or (3), as the case may be. (2) If a technician described in paragraph (1) is eligible at the time dual status is lost for an un- reduced annuity and is age 60 or older at that time, the technician shall be separated not later than 30 days after the date on which dual status is lost. (3)(A) If a technician described in paragraph (1) is not eligible at the time dual status is lost for an unreduced annuity or is under age 60 at that time, the technician shall be offered the op- portunity to— (i) reapply for, and if qualified may be ap- pointed to, a position as a military technician (dual status); or (ii) apply for a civil service position that is not a technician position. (B) If such a technician continues employment with the Army Reserve or the Air Force Reserve as a non-dual status technician, the techni- cian—