Norton Introduces Bill to Prohibit Recouping Pay from D.C. National Guard Members Who are Also Federal Civilian Employees

WASHINGTON, D.C. — Congresswoman Eleanor Holmes Norton (D-DC) today introduced a bill to prohibit the Department of Defense (DoD) from recouping pay from federal civilian or District of Columbia employees who took encampment leave when mobilized by the D.C. National Guard (DCNG). DoD and the Office of Personnel Management (OPM) have indicated these members should have had their civilian pay offset by their DCNG pay during encampment leave. Norton wrote DoD and the Office of Personnel Management (OPM) in July 2022 urging them not to try to recoup this pay and has long taken the position that DoD and OPM are misinterpreting the applicable law. Norton was able to get included in the National Defense Authorization Act for Fiscal Year 2022 (NDAA) her amendment that effectively prohibited the DoD from recouping pay for encampment leave taken by DCNG members after the enactment of that NDAA, but that amendment did not apply to encampment leave taken before the 2022 NDAA’s enactment because of budget rules. Norton’s bill applies the same rule to the leave taken prior to the enactment of the 2022 NDAA, covering, for example, encampment leave taken during the DCNG’s COVID response.

"These D.C. National Guard members took this leave to which they were entitled and relied on.  They should not be punished because of federal agencies’ misinterpretation of the relevant statutes,” Norton said.

Norton’s introductory statement follows:

Statement of CongresswomanEleanor Holmes Norton

on the District of Columbia National Guard Federal Employee Leave Fairness Act

November 13, 2023

Today, I introduce the District of Columbia National Guard Federal Employee Leave Fairness Act, which would prohibit the Department of Defense (DOD) from recouping pay from District of Columbia National Guard (DCNG) members who are federal civilian employees or District of Columbia employees and took encampment leave.  The DOD claims these employees were not entitled to encampment leave without a loss of pay.  While I disagree with the DOD’s interpretation, I am introducing this bill to resolve this matter.

Congress partially addressed this matter in the National Defense Authorization Act for Fiscal Year 2022 (NDAA) by adopting my amendment that effectively prohibited the DOD from recouping pay for encampment leave taken by DCNG members after the enactment of the NDAA.  That amendment, however, did not apply to encampment leave taken before the enactment of the NDAA because of budget rules. 

In 1899, Congress codified in the D.C. Code the original authority for entitlement to leave when federal civilian employees were mobilized by the DCNG.  In 1968, that authority was moved into 5 U.S.C. § 6323.  In that same year, Congress authorized two additional leave entitlements in 5 U.S.C. § 6323, as well as established a salary offset provision in 5 U.S.C. § 5519 referencing those two additional leave entitlements.  However, because the U.S. Code had not been updated to include the earlier DCNG authority, the U.S. Code contained a duplicate subsection, one referring to DCNG mobilizations and one to a general leave entitlement for the National Guard and Reserves.

Based on this legislative drafting error, the DOD has sometimes attempted to apply a salary offset to DCNG members who are federal employees and took encampment leave, and the DOD has indicated it will do so again soon. The Government Accountability Office (GAO), has said that 5 U.S.C. § 6323(c) was not intended to be subject to a salary offset under 5 U.S.C. § 5519 and noted in 1990 that the “[Office of Personnel Management] advised that it now believes that the salary offset provisions of 5 U.S.C. § 5519 do not apply to D.C. National Guardsmen under the circumstances described in 5 U.S.C. § 6323(c).”  However, the Office of Personnel Management once again believes that the salary offset provisions of 5 U.S.C. § 5519 apply to 5 U.S.C. § 6323(c).

DCNG members sincerely believed that they were taking this leave correctly, they have relied on this money, the recoupment will cause financial hardships for current and former DCNG members and it was Congress’ intent that DCNG members were entitled to this leave without a salary offset.

I urge my colleagues to support this bill.

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