B-172682, JUN 14, 1971

B-172682, JUN 14, 1971

MILITARY PERSONNEL - SEVERANCE PAY - INVOLUNTARY SEPARATION DECISION HOLDING THAT NATIONAL GUARD TECHNICIANS INVOLUNTARILY SEPARATED FROM THEIR POSITIONS AS A RESULT OF LOSING THEIR MILITARY STATUS BECAUSE OF NONSELECTION FOR PROMOTION ARE ENTITLED TO SEVERANCE PAY. LOSS OF MILITARY STATUS BECAUSE OF NONSELECTION FOR PROMOTION IS INVOLUNTARY SEPARATION AND NOT REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT DELINQUENCY, OR INEFFICIENCY AND THEREFORE CERTAIN NATIONAL GUARD TECHNICIANS ARE ENTITLED TO SEVERANCE PAY IN ACCORD WITH 5 U.S.C. 5595(B).

TO MR. HAMPTON:

WE REFER FURTHER TO YOUR LETTER OF APRIL 20, 1971, CONCERNING THE ELIGIBILITY OF NATIONAL GUARD TECHNICIANS FOR SEVERANCE PAY IF THEY ARE SEPARATED FROM THEIR CIVILIAN POSITIONS AS A RESULT OF LOSING THEIR MILITARY STATUS BECAUSE OF NONSELECTION FOR PROMOTION.

YOU INCLUDED A COPY OF THE NATIONAL GUARD REGULATION ON SELECTIVE RETENTION - NO. 635-102 - AND YOU POINT OUT THAT NOT ALL OFFICERS AND WARRANT OFFICERS SUBJECT TO SELECTION-RETENTION CONSIDERATION QUALIFY FOR IMMEDIATE MILITARY RETIREMENT. YOU REFER TO 5 U.S.C. 5595 WHICH IN PROVIDING FOR ENTITLEMENT TO SEVERANCE PAY ON SEPARATION FROM A CIVILIAN POSITION REQUIRES THAT SUCH SEPARATION BE INVOLUNTARY AND NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY. YOU EXPRESS THE VIEW THAT SEPARATION OF A NATIONAL GUARD TECHNICIAN DUE TO LOSS OF MILITARY STATUS BECAUSE OF NONSELECTION FOR PROMOTION IS NOT RELATED TO MISCONDUCT, DELINQUENCY, OR INEFFICIENCY. WE CONCUR.

AS YOU NOTE, THE SELECTIVE-RETENTION REGULATIONS REQUIRE THE SELECTION BOARD IN ITS DECISION-MAKING PROCESS TO CONSIDER "POTENTIAL FOR REPLACING PRESENT SENIOR COMMANDERS AND STAFF OFFICERS, OR SPECIALISTS IN THE CASE OF WARRANT OFFICERS." THIS WOULD INVOLVE CONSIDERATION OF QUALIFICATION FACTORS NOT ENTIRELY RELATED TO PERFORMANCE.

5 U.S.C. 5595(B) PROVIDES:

"UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, AN EMPLOYEE WHO -

"(1) HAS BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF AT LEAST 12 MONTHS; AND

"(2) IS INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY; IS ENTITLED TO BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS BY THE AGENCY FROM WHICH SEPARATED."

WE CONCLUDE THAT THE SUBJECT "SELECTION OUT" PROCESS MAY CAUSE INVOLUNTARY SEPARATION OF AN EFFICIENT AND SATISFACTORY EMPLOYEE THROUGH NO FAULT OF HIS OWN. ACCORDINGLY, WE HOLD THAT AN EMPLOYEE SO SEPARATED IF OTHERWISE QUALIFIED IS ENTITLED TO SEVERANCE PAY.