Q: I am currently in the California Army National Guard and am 99 percent sure I will be medically discharged after being in for over 32 years. I only have 15 years as a dual-status military technician. I am hearing that soldiers who have returned from Iraq or Afghanistan with “combat-related injuries” are being told that they cannot keep their jobs as it is intended by the change in the law governing the requirement to be a member of the National Guard. Can you point me in the direction of someone that can help? Reference: Title 10 USC 10216 (g), 1413a
A: All I can do is reiterate what the law says. In Title 10 of the U.S. Code, section 10216 (g) clearly states: Retention of Military Technicians Who Lose Dual Status Due to Combat-Related Disability — (1) Notwithstanding subsection (d) of this section or subsections (a)(3) and (b) of section 10218 of this title, if a military technician (dual status) loses such dual status as the result of a combat-related disability (as defined in section 1413a of this title), the person may be retained as a non-dual status technician so long as — (A) the combat-related disability does not prevent the person from performing the non-dual status functions or position; and (B) the person, while a non-dual status technician, is not disqualified from performing the non-dual status functions or position because of performance, medical, or other reasons. (2) A person so retained shall be removed not later than 30 days after becoming eligible for an unreduced annuity and becoming 60 years of age.
You’ll notice that the law makes clear that such a person can be retained only if the combat-related disability doesn’t prevent the employee from performing the non-dual status functions or is disqualified from performing them because of performance, medical or other reasons. That judgment is one that must be made by the employer and properly documented.
