MILITARY LEAVE ENTITLEMENTS UNDER BUTTERBAUGH

Tuesday, May 04, 2010

REDDING HQ - It has recently come to our attention that some employees have still not filed administrative claims or Merit System Protection Board appeals concerning their mischarged annual or military leave under the Butterbaugh decision.

In a July 24, 2003, decision, the U.S. Court of Appeals for the Federal Circuit ruled that, pursuant to 5 U.S.C. § 6323, employees were required to take military leave only on days on which they were required to work and that agencies should have allowed fifteen (15) workdays of military leave for reserve training (instead of fifteen (15) calendar days as was previously interpreted). Butterbaugh v. Dep’t of Justice, 336 F.3d 1332 (Fed. Cir. 2003).  The court ruled that agencies should not have charged military leave for non-workdays that occurred within the period of military duty prior to the change in the military leave law.

As in all leave claims, the burden of proof is on the employee. An employee making a claim may need to supply a copy to his or her employing agency of the employee’s orders, certification of attendance, or other documentation indicating that he or she engaged in one or more periods of active military duty that included non-workdays during the applicable claims period.

Under Garcia v. Dep’t of State, 2006 MSPB 29 (2006) and Harper v. Dep’t of Navy, 2006 MSPB 30 (2006), the Merit Systems Protection Board held that there is no statute of limitations for these types of claims.

RESERVE DIFFERENTIAL PAY
While we are on the subject of military reservist entitlements, I also want to point out a change in the law that occurred in March 2009.  Section 751 of the Omnibus Appropriations Act, 2009 (Public Law 111-8, March 11, 2009) added a new section 5538 to title 5, United States Code. This new section provides a new benefit to certain Federal civilian employees who are (1) absent from employment with the Federal Government because they are ordered to perform active duty in the uniformed services under a provision of law specifically referenced in 10 U.S.C. 101(a)(13)(B) and (2) entitled to reemployment rights under 38 U.S.C. chapter 43 based on such absence.

In short, this law protects Federal civilian employees who are serving on active duty by making up the difference between their active duty military pay and their civilian basic pay whenever their civilian basic pay is higher.  OPM refers to this as a “reserve differential”.

Once again, if you have questions regarding whether your Agency has properly implemented this new law, feel free to contact us.

Thomas F. Muther, Jr.
Attorney at Law
Minahan & Muther,
PC5132 W. 26th Avenue
Denver, Colorado 80212
(303)986-0054 (phone)
(303)986-1137 (fax)
(802)999-1538 (cell)