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s000958
Office of the General Counsel
Date: July 30, 1999
Matter of: [xxx]
File Number: S000958
OPM Contact: Murray M. Meeker
On November 6, 1981, the claimant separated from his National Guard Technician position with the [xxx] National Guard to perform military service. The claimant asserts that under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), Pub. L. No. 103-353, he is entitled to payment in the amount of $19,063.76 for periods of military leave while he was performing military service from October 18, 1981 to September 30, 1996. For the reasons discussed herein, the claim is denied.
Military leave is intended as a benefit for employees who, as members of the National Guard or Reserves, are required to perform two weeks of active duty for training each year. See Spradling v. City of Tulsa, 95 F.3d 1492, 1502 (10th Cir. 1996), cert. denied, 519 U.S. 1149 (1997), as cited in Kelly v. City of Mount Vernon, 162 F.3d 765, 770 n.3 (2d Cir. 1998). Military leave is not intended for individuals who abandon civilian positions to complete careers in the National Guard or Reserves. Similarly, the employment rights under USERRA do not extend to employees who leave their civilian employment to pursue military careers. See 38 U.S.C. 4301(a)(1) and 4312(a)(2). See also Paisley v. City of Minneapolis, 79 F.3d 722 (8th Cir.), cert. denied, 117 S.Ct. 298 (1996) and Lapine v. Town of Wellesley, 970 F.Supp. 55, 63 (D. Mass. 1997).
Because the claimant resigned his civilian position in 1981 to pursue a military career in the National Guard, he has no entitlement to military leave. Accordingly, the claimant is not entitled to payment for military leave during the period that he was performing military service from October 18, 1981 to September 30, 1996. This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.