Office of the General Counsel

Date: [XXX]
Matter of: [XXX]
File Number: S9700388

OPM Contact: Joann Charleston

A former employee of the [agency] requests that we review his claim for severance pay. We have completed our review of this claim and have determined that it may not be allowed.

This is the claim of a former member of the [state] Army National Guard assigned to an aviation unit in [city, state]. He was employed as an excepted service federal technician at the [agency subcomponent]. As a condition of his employment he was to maintain membership in the [state] Army National Guard.

On September 16, 1991, the employee voluntarily allowed his enlistment to expire. The employee was notified on September 20, 1991 that he would be terminated from his technician job for failure to maintain his membership in the [state] Army National Guard. The agency terminated his employment effective October 25, 1991. The employee now contends that he is entitled to severance pay.

Title 32, United States Code section 709(e)(1) provides in part that a technician who is employed in a position in which National Guard membership is required as a condition of employment and who is separated from the National Guard or ceases to hold the military grade specified for his position by the Secretary concerned shall be promptly separated from his technician employment.

Title 5 CFR part 550.704(a)(3) states that to be eligible for severance pay, an employee must be removed from Federal service by involuntary separation.

In the present case, we note that the employee was eligible to reenlist, but did not submit an application for reenlistment. Therefore, since he did not extend his enlistment contract with the National Guard, his separation from the technician program was the result of a voluntary action and no severance pay is authorized.

Accordingly, the claim is denied.

 

Distribution

[claimant's name and address]

cc: [agency's name and address]