B-208679, AUGUST 23, 1983, 62 COMP.GEN. 625

B-208679, AUGUST 23, 1983, 62 COMP.GEN. 625

COMPENSATION - SEVERANCE PAY - ELIGIBILITY - INVOLUNTARY SEPARATION - RELIGIOUS REASONS A NATIONAL GUARD MEMBER WAS DENIED REENLISTMENT AS A RESULT OF HIS REFUSAL TO ATTEND TRAINING DRILLS ON SATURDAYS WHICH REQUIRED HIS REMOVAL AS A CIVILIAN NATIONAL GUARD TECHNICIAN. HE WAS DENIED SEVERANCE PAY ON THE GROUND OF DELINQUENCY IN REFUSING TO WORK ON SATURDAYS. WE HOLD THAT HE IS ENTITLED TO SEVERANCE PAY UNDER 5 U.S.C. 5595 BECAUSE HIS REFUSAL TO ATTEND SATURDAY DRILLS BASED ON HIS RELIGIOUS BELIEFS WAS NOT DELINQUENCY WITHIN THE MEANING OF THE STATUTE. SEE SHERBERT V. VERNER, 374 U.S. 398 (1963).

MATTER OF: TERRILL J. KAWCAK - NATIONAL GUARD TECHNICIAN - SEVERANCE PAY, AUGUST 23, 1983:

THE ISSUE PRESENTED INVOLVES THE ELIGIBILITY OF A NATIONAL GUARD TECHNICIAN FOR SEVERANCE PAY UNDER 5 U.S.C. 5595 (1976). HE WAS SEPARATED FROM HIS CIVILIAN POSITION AS A RESULT OF LOSING HIS MILITARY MEMBERSHIP WHEN HE WAS DENIED REENLISTMENT IN THE NEW MEXICO AIR NATIONAL GUARD DUE TO HIS RELIGIOUS BELIEFS WHICH PREVENTED HIM FROM ATTENDING DRILLS ON SATURDAYS. FOR THE REASONS STATED BELOW, WE HOLD THAT THE CLAIMANT IS ENTITLED TO SEVERANCE PAY.

BACKGROUND

THIS DECISION IS IN RESPONSE TO A REQUEST FROM THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (UNION) CONCERNING THE ELIGIBILITY OF MR. TERRILL J. KAWCAK, A FORMER MEMBER OF THE NEW MEXICO AIR NATIONAL GUARD (NMANG), FOR SEVERANCE PAY. THIS DECISION HAS BEEN HANDLED AS A LABOR-RELATIONS MATTER UNDER OUR PROCEDURES CONTAINED IN 4 C.F.R.PART 22 (1982), AND IN THIS REGARD WE HAVE RECEIVED COMMENTS ON THIS MATTER FROM THE UNION AND THE NMANG.

MR. KAWCAK WAS AN EXCEPTED SERVICE TECHNICIAN SUBJECT TO THE DUAL STATUS REQUIREMENTS OF 32 U.S.C. 709(B) (1976). A PERSON EMPLOYED UNDER THIS SECTION IS A CIVILIAN TECHNICIAN, AND HIS EMPLOYMENT THEREUNDER IS DEPENDENT UPON HIS CONTINUED NATIONAL GUARD MEMBERSHIP. AS A NATIONAL GUARD MEMBER, MR. KAWCAK WAS REQUIRED TO PARTICIPATE IN ONE 2-DAY DRILL EACH MONTH, NORMALLY ON A SATURDAY AND SUNDAY, PLUS 15 DAYS OF ANNUAL TRAINING. THIS REQUIREMENT CONFLICTED WITH ONE OF THE TENETS OF HIS CHURCH, THE WORLDWIDE CHURCH OF GOD, WHICH CALLS FOR STRICT OBSERVANCE OF THE SABBATH FROM SUNDOWN FRIDAY TO SUNDOWN SATURDAY. ON CERTAIN OCCASIONS MR. KAWCAK WAS ABLE TO AVOID THE REQUIREMENT THAT HE ATTEND DRILL ON SATURDAY BY VIRTUE OF THE "APPROPRIATE DUTY" PROCEDURE, WHEREBY HE WAS EXCUSED FROM MONTHLY DRILL AND MADE UP THE MISSED TIME ON ANOTHER DESIGNATED OCCASION. ON THREE OCCASIONS HOWEVER, PERMISSION TO BE ABSENT WAS DENIED AND MR. KAWCAK REFUSED TO ATTEND THE DRILLS. SUBSEQUENTLY, MR. KAWCAK'S REQUEST FOR REENLISTMENT WAS DENIED AND HIS EMPLOYMENT AS A CIVILIAN TECHNICIAN WAS TERMINATED. BASED ON THE CIRCUMSTANCES UNDERLYING MR. KAWCAK'S TERMINATION, NMANG DETERMINED THAT HE WAS NOT ENTITLED TO SEVERANCE PAY.

MR. KAWCAK BROUGHT AN ACTION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO SEEKING A PERMANENT INJUNCTION ORDERING THE NMANG TO RESCIND HIS DISCHARGE AND APPROVE HIS REENLISTMENT. IN ITS DECISION KAWCAK V. NEW MEXICO AIR NATIONAL GUARD, CIVIL ACTION NO. 81 745-JB (MAY 7, 1982), THE DISTRICT COURT FRAMED THE FUNDAMENTAL ISSUE AS WHETHER OR NOT THE NMANG COULD DEMAND AS A CONDITION OF MR. KAWCAK'S REENLISTMENT THAT HE PARTICIPATE IN SATURDAY EXERCISES.

THE COURT STATED THAT IT "IS SYMPATHETIC WITH PLAINTIFF'S POSITION AND IS CONVINCED OF THE SINCERITY OF THE PLAINTIFF'S BELIEFS AND HIS DESIRE TO OBSERVE HIS RELIGION." NEVERTHELESS, THE COURT FOUND THAT HIS RIGHT TO EXERCISE HIS RELIGION MUST BEND TO ACCOMMODATE MILITARY NEEDS AND THAT THE NMANG HAD MET THE BURDEN OF DEMONSTRATING A COMPELLING STATE NEED. ACCORDINGLY, THE COURT UPHELD THE DISCHARGE AND GRANTED SUMMARY JUDGMENT FOR THE DEFENDANTS. HOWEVER, "(DUE TO THE GRAVITY OF THE CONSTITUTIONAL RIGHTS INVOLVED AND THE RELATIVE STRENGTH OF PLAINTIFF'S CHALLENGE * * * ," THE COURT FOUND THAT EACH PARTY SHOULD BEAR ITS OWN COSTS.

MR. KAWCAK'S CLAIM BEFORE THIS OFFICE INVOLVES HIS ENTITLEMENT TO SEVERANCE PAY UNDER 5 U.S.C. 5595 (1976). THAT SECTION PROVIDES THAT AN EMPLOYEE WHO HAS BEEN EMPLOYED FOR A CONTINUOUS PERIOD OF AT LEAST 42 MONTHS AND 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.

THE NEW MEXICO AIR NATIONAL GUARD'S TECHNICIAN PERSONNEL OFFICER (TPO) REPORTS THAT MR. KAWCAK'S SEPARATION WAS DUE TO HIS LOSS OF MILITARY MEMBERSHIP WHICH IN TURN DIRECTLY RESULTED FROM HIS VOLUNTARY ACTIONS ALTERING HIS MILITARY STATUS. THE TPO POINTS TO NATIONAL GUARD BUREAU TECHNICIAN PERSONNEL PUBLICATION REGULATION 302.7 (MARCH 17, 1981) WHICH PROVIDES AS FOLLOWS:

VOLUNTARY MILITARY DISQUALIFICATION WHEN A TECHNICIAN TAKES A VOLUNTARY ACTION THAT ALTERS HIS MILITARY STATUS (I.E.., APPLIES FOR A COMMISSION, ACKNOWLEDGES HIS INTENTION TO RESIGN FROM THE GUARD OR NOT TO REENLIST, ACCEPTS CERTAIN PROMOTIONS, ETC.), IMMEDIATE STEPS SHOULD BE TAKEN BY THE TPO TO NOTIFY THE INDIVIDUAL REGARDING LOSS OF TECHNICIAN EMPLOYMENT. THE NOTIFICATION SHOULD ADDRESS LOSS OF BENEFITS, INELIGIBILITY FOR SEVERANCE PAY AND DISCONTINUED SERVICE RETIREMENT, ETC.

THE NMANG DETERMINED THAT MR. KAWCAK WAS DELINQUENT IN ELECTING NOT TO ATTEND TRAINING ASSEMBLIES ON SATURDAYS, AND THIS DELINQUENCY WAS THE BASIS FOR HIS LOSS OF MILITARY MEMBERSHIP AND HIS RESULTING REMOVAL FROM HIS CIVILIAN TECHNICIAN POSITION. ACCORDINGLY, SEVERANCE PAY WAS PRECLUDED IN SUCH CIRCUMSTANCES.

ANALYSIS AND CONCLUSION

THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY FOLLOWED THE STATUTORY REQUIREMENT THAT THE TENURE OF A TECHNICIAN IN HIS CIVILIAN POSITION IS CONTINGENT UPON THE CONTINUATION OF HIS MILITARY STATUS, AND THAT WHEN SUCH MILITARY STATUS ENDS THE TECHNICIAN'S CIVILIAN EMPLOYMENT IS TERMINATED AUTOMATICALLY IN ACCORDANCE WITH THE LAW AND IMPLEMENTING REGULATIONS. UNDER SUCH CONDITIONS THE TERMINATION OF CIVILIAN EMPLOYMENT, CONTRARY TO THE WISHES AND DESIRES OF THE TECHNICIAN, IS AN INVOLUNTARY SEPARATION. THUS, IN THE CASE CITED BY MR. KAWCAK, B-172682, JUNE 14, 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, WE NOTED THAT THE NATIONAL GUARD REGULATION ON SELECTIVE RETENTION REQUIRED THE SELECTION BOARD IN ITS DECISIONMAKING PROCESS TO CONSIDER QUALIFICATION FACTORS NOT ENTIRELY RELATED TO PERFORMANCE. RECOGNIZED THEN THAT THE "SELECTION-OUT" PROCESS MAY CAUSE INVOLUNTARY SEPARATION OF AN EFFICIENT AND SATISFACTORY EMPLOYEE THROUGH NO FAULT OF HIS OWN. WE CONCLUDED THAT AN EMPLOYEE SO SEPARATED, IF OTHERWISE QUALIFIED, IS ENTITLED TO SEVERANCE PAY.

AGAIN IN OUR DECISION 53 COMP.GEN. 493, 495 (1974) (B-172682, JANUARY 24, 1974), WE STATED THAT, WHEN AN APPLICATION FOR REENLISTMENT IS REJECTED, THE RESULTING TERMINATION OF CIVILIAN EMPLOYMENT IS AN INVOLUNTARY SEPARATION. WE, THEREFORE, CONCLUDED AS FOLLOWS:

CONSEQUENTLY, EXCEPT WHEN IT IS REASONABLY ESTABLISHED THAT THE REASON FOR FAILURE TO ACCEPT AN APPLICATION FOR REENLISTMENT IS FOR CAUSE BASED ON CHARGES OF MISCONDUCT, DELINQUENCY OR INEFFICIENCY, ON THE PART OF THE ENLISTED MEMBER, IT IS OUR VIEW THAT THE AUTOMATIC SEPARATION FROM THE CIVILIAN POSITION WOULD ENTITLE THE TECHNICIAN TO SEVERANCE PAY.

IN RESPONSE TO THAT DECISION, PARAGRAPH 7-4F OF THE NATIONAL GUARD BUREAU'S TECHNICIAN PERSONNEL SUPPLEMENT TO THE FEDERAL PERSONNEL MANUAL, CHAPTER 550-7 (NOVEMBER 1, 1975), WAS PROMULGATED, STATING:

FAILURE TO ACCEPT REENLISTMENT. THE FAILURE TO ACCEPT AN ENLISTED TECHNICIAN'S REENLISTMENT APPLICATION IS AN INVOLUNTARY SEPARATION FOR SEVERANCE PAY PURPOSES EXCEPT WHEN IT CAN BE REASONABLY ESTABLISHED THAT FAILURE TO ACCEPT AN APPLICATION IS FOR REASON OF MISCONDUCT, DELINQUENCY OR INEFFICIENCY.

IN MR. KAWCAK'S CASE, THE NEW MEXICO AIR NATIONAL GUARD DETERMINED TO DENY REENLISTMENT, WHICH CARRIED WITH IT SUBSEQUENT REMOVAL AS A TECHNICIAN, ON THE BASIS OF AN AFFIRMATIVE FINDING OF DELINQUENCY. THE NEW MEXICO AIR NATIONAL GUARD, HOWEVER DOES NOT DISPUTE THE SINCERITY OF MR. KAWCAK'S RELIGIOUS BELIEFS RESPECTING THE SABBATH. IN FACT, THE DISTRICT COURT WAS "CONVINCED OF THE SINCERITY OF PLAINTIFF'S BELIEFS AND HIS DESIRE TO OBSERVE HIS RELIGION." THAT BEING THE CASE, WE CANNOT AGREE WITH THE NMANG'S DETERMINATION THAT MR. KAWCAK WAS DELINQUENT IN REFUSING TO ATTEND SATURDAY DRILLS FOR RELIGIOUS REASONS.

IN 12 COMP.GEN. 472, 474 (1932), WE STATED THAT THE TERMS "DELINQUENCY" AND "MISCONDUCT" WERE USED SYNONYMOUSLY IN A PROVISION OF THE CIVIL SERVICE RETIREMENT ACT DEALING WITH INVOLUNTARY SEPARATIONS (NOW 5 U.S.C. 8336(D)). IN OUR OPINION, MR. KAWCAK, IN EXERCISING HIS FIRST AMENDMENT RIGHTS TO FREELY EXERCISE HIS RELIGION, CANNOT BE FOUND TO HAVE BEEN GUILTY OF MISCONDUCT OR DELINQUENCY UNDER THE SEVERANCE PAY STATUTE, 5 U.S.C. 5595(B)(2) (1976). THE FREE EXERCISE OF ONE'S RELIGIOUS BELIEFS IS A FUNDAMENTAL RIGHT GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE FREEDOM TO PRACTICE THOSE BELIEFS HAS TRADITIONALLY BEEN ONE OF THE HIGHEST VALUES OF OUR SOCIETY. SEE MARSH V. ALABAMA, 326 U.S. 501, 509 (1946); AND MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 115 (1943).

IN THE CLOSELY ANALOGOUS AREA OF UNEMPLOYMENT COMPENSATION BENEFITS, THE SUPREME COURT HAS FOLLOWED THESE PRECEPTS. IN SHERBERT V. VERNER, 374 U.S. 398 (1963), THE STATE OF SOUTH CAROLINA HAD DENIED UNEMPLOYMENT COMPENSATION TO A MEMBER OF THE SEVENTH DAY ADVENTIST CHURCH WHO WAS FIRED FOR REFUSING TO WORK ON SATURDAY. THE STATE STATUTE PROVIDED FOR DISQUALIFICATION FOR BENEFITS UPON A FINDING OF DISCHARGE FOR MISCONDUCT, AND THE STATE SUPREME COURT HELD THAT APPELLANT'S INELIGIBILITY FOR BENEFITS DID NOT INFRINGE HER CONSTITUTIONAL LIBERTIES.

THE UNITED STATES SUPREME COURT REVERSED THE STATE COURT, STATING AS FOLLOWS, AT PAGE 404:

HERE NOT ONLY IS IT APPARENT THAT APPELLANT'S DECLARED INELIGIBILITY FOR BENEFITS DERIVES SOLELY FROM THE PRACTICE OF HER RELIGION, BUT THE PRESSURE UPON HER FOREGO THAT PRACTICE IS UNMISTAKABLE. THE RULING FORCES HER TO CHOOSE BETWEEN FOLLOWING THE PRECEPTS OF HER RELIGION AND FORFEITING BENEFITS, ON THE ONE HAND, AND ABANDONING ONE OF THE PRECEPTS OF HER RELIGION IN ORDER TO ACCEPT WORK, ON THE OTHER HAND. GOVERNMENTAL IMPOSITION OF SUCH A CHOICE PUTS THE SAME KIND OF BURDEN UPON THE FREE EXERCISE OF RELIGION AS WOULD A FINE IMPOSED AGAINST APPELLANT FOR HER SATURDAY WORSHIP.

THE COURT'S HOLDING WAS THAT "SOUTH CAROLINA MAY NOT CONSTITUTIONALLY APPLY THE ELIGIBILITY PROVISIONS SO AS TO CONSTRAIN A WORKER TO ABANDON HIS RELIGIOUS CONVICTIONS RESPECTING THE DAY OF REST." 374 U.S.AT 410. SEE ALSO THOMAS V. REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION, 450 U.S. 707 (1981).

WE FAIL TO SEE ANY SIGNIFICANT DIFFERENCE BETWEEN UNEMPLOYMENT COMPENSATION AND SEVERANCE PAY FOR THE PURPOSES OF PROTECTING THE CONSTITUTIONAL RIGHT OF RELIGIOUS FREEDOM. THE ELIGIBILITY STANDARDS, WHILE NOT IDENTICAL, ARE SIMILAR IN NATURE AND BOTH ARE DESIGNED TO CUSHION THE IMPACT OF LOSING A JOB. AS A REMEDIAL STATUTE, 5 U.S.C. 5595 IS TO BE GIVEN A LIBERAL CONSTRUCTION TO CARRY OUT ITS PURPOSES. SPRING V. UNITED STATES, 492 F.2D 1053, 1054-55 (4TH CIR. 1974). WE ALSO NOTE THAT THE STATE OF NEW MEXICO FOUND MR. KAWCAK TO BE ENTITLED TO UNEMPLOYMENT COMPENSATION UNDER THE NEW MEXICO STATUTORY PROVISION DISQUALIFYING PERSONS WHO LEAVE THEIR EMPLOYMENT VOLUNTARILY WITHOUT GOOD CAUSE. N.M. STAT. ANN. SEC. 51-1-7A.

ACCORDINGLY, WE HOLD THAT MR. KAWCAK'S SEPARATION FROM HIS CIVILIAN TECHNICIAN POSITION WAS INVOLUNTARILY AND WAS NOT FOR MISCONDUCT, DELINQUENCY OR INEFFICIENCY. THEREFORE, HE IS ENTITLED TO BE PAID SEVERANCE PAY UNDER 5 U.S.C. 5595 (1976).