To be filed with basic FPM chapter 301

AR 690-300

Chapter 301

Overseas Employment

Contents

SUBCHAPTER 1. General

1-1. Scope

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SUBCHAPTER 2. Overseas Limited Appointments

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2-2. Authority to Appoint

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SUBCHAPTER 3. Employment of Non-citizens

3-1. Authority for Appointment

3-2. Effect of Acquiring Citizenship

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3-4. Employment of Foreign Nationals

SUBCHAPTER 4. Overseas Employees Eligible for Noncompetitive Appointment Upon Return to the United States

4-1. Eligibility

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SUBCHAPTER 5. Overseas Employment and Rotation of U.S. Citizens

5-1. General

5-2. Rotation from Foreign Areas

5-3. Tour Extensions

5-4. Conversion to Status Appointment

5-5. Termination of Overseas Tours

SUBCHAPTER 6. The Panama Canal Employment System

6-1. Legal Basis

6-2. Administration of the Panama Canal Employment System

6-3. Employment Under the Panama Canal Employment System

6-4. Movement of Employees Between Panama and Other Areas.

SUBCHAPTER 7. Family Member Employment Policy

> 7-1. General

7-2. Military Spouse Preference

7-3. DOD Family Member Employment Preference

7-4. Local National Positions

7-5. Providing Information

7-6. Time Limits on Schedule A Excepted Appointments

7-7. Separation and Rotation

7-8. Exceptional Family Member Program (EFMP) <

APPENDIX A. DOD Directive 1400.6 (DOD Civilian Employees in Overseas Areas)

APPENDIX B. DOD Instruction 1400.10 (Employment of Foreign Nationals in Foreign Areas)

APPENDIX C. Procedures for Implementation of Executive Order 12362, as amended

> APPENDIX D. DOD Instruction 1400.23 (Employment of Family Members of U.S. Armed Forces Personnel and Civilian Employees Stationed in Foreign Areas) <

Subchapter 1. General

1-1 SCOPE

a. Coverage. This > chapter< implements Department of Defense (DOD) policy on overseas employment as outlined in DOD Directive 1400.6 (app > At). The provisions of this > chapter< also apply to U.S. citizens employed in Panama except as provided by the Panama Canal Treaty of 1979 and related agreements and when specifically noted otherwise in this chapter. Panama is classified as a non-foreign overseas area for other purposes. I I

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c. Non-foreign overseas areas. Except as noted in a above, this chapter does not apply to non-foreign overseas areas as defined below. When activity and major Army command (MACOM) level recruitment actions fail to provide sufficient numbers of qualified candidates for positions in non-foreign overseas areas, continental United States (CONUS) recruitment assistance may be re-quested. I I

d. Explanation of terms

> (1) < Civilian component. The civilian employees employed by and accompanying the U.S. Forces. >Under Status of Forces Agreements (SOFA), the civilian component includes U.S. citizens and third-country citizens (TCC) (also referred to as third-state nationals (TSN)), but it ex-eludes nationals of, and other nationals ordinarily resident in, the host country. The North Atlantic Treaty Organization (NATO) SOFA further excludes stateless persons and nationals of any country that is not a member of NATO. <

> (2) < Direct-hire employee. An employee hired directly by the U.S. Government and paid directly for personal services from appropriated funds.

> (3) < Family member. See paragraph 7-1c for definition.

> (4) < Foreign area. Any area outside > the U.S., its territories and possessions, < and the designated non-foreign overseas areas.

> (5) < Geographical locality. See JTR, volume 2, appendix D. for definition.

> (6) < Host country. A country other than the United States, its territories, and possessions where the U.S. Forces are present.

> (7) < Indirect-hire employee. A non-U.S. citizen employee hired in a foreign area under the terms of an agreement between the host country and the United States.

> (8) < Local hire. Any U.S. citizen recruited from within a geographical locality (and not directly from the United States, including the District of Columbia, and the territories and possessions of the United States) for a position in the same geographical locality.

> (9) < Local national employee. A non-U.S. citizen employee who is a national of the host country or is ordinarily resident there or is otherwise employed under > the same conditions < as host country employees.

> (10) < Non-foreign overseas area. Non-foreign overseas area means the States of Alaska and Hawaii, the Commonwealth of Puerto Rico, territories and possessions of the United States, the installations in the Republic of Panama made avail-able to the United States under the Panama Treaty of > 1979 < and related agreements. This definition includes additional areas located outside of CONUS as designated by the Secretary of State. FPM chapter 591, appendix A, contains a complete list of non-foreign overseas areas.

> (11) < Non-U.S. citizen family member. Family members of any nationality, including permanent alien residents. who have not acquired U.S. citizenship.

> (12) < Overseas MACOM. > A MACOM < that is headquartered outside the continental United States.

> (13) < Status of Forces Agreement (SOFA). An international agreement negotiated between the host country and the United States that governs many of the fights, obligations, and privileges of the military and civilian members of the U.S. Forces.

> (14) < Third-state national (TSN) and third-country citizen (TCC). Non-U.S. citizen employees who are not citizens or permanent residents of the host country in which employed by the U.S. Forces and whose employment conditions are distinct from those that apply to local national employees.

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Contents

Subchapter 2. Overseas Limited Appointments

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2-2. AUTHORITY TO APPOINT

a. Citizens recruited overseas. DA appointing officers located in foreign areas are delegated authority to make overseas limited appointments > (OLA) < of U.S. citizens under section 301.201 of title 5. Code of Federal Regulations.

b. Citizens recruited outside overseas areas. When there are unusual or emergency conditions that warrant using section 301.202 of OPM's regulations (5 CFR 301.202), document the request for approval with a full explanation of the situation and reasons why an alternative appointment authority is not proper. Submit requests for approval for U.S. citizens recruited outside overseas areas to HQDA(PECC-> CSS <). ALEX. VA 22332-0300.

c. Duration of appointments. > OLA of indefinite duration < will not be made unless the appointee is exempt from rotation requirements. When filling positions subject to rotation requirements. make only overseas limited appointments not to exceed 5 years. A management decision to retain an employee beyond the initial appointment will require a new > OLA for any period not to exceed 5 years. Temporary OLA may be extended up to four years without OPM approval. <

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Contents

Subchapter 3. Employment of Noncitizens

3-1. AUTHORITY FOR APPOINTMENT

Appointing officers located in foreign areas are authorized to appoint non-U.S. citizens under civil service rule VIII, section 8.3 (5CFR 8.3). I I

3-2. EFFECT OF ACQUIRING CITIZENSHIP

a. Membership in the civilian component. In most foreign areas where DA employs civilians. a treaty or SOFA has been negotiated with the host country that defines members of the civilian component of the U.S. Forces. When a non-U.S. citizen employee acquires U.S. citizenship, determine if the employee will qualify as a member of the civilian component. If there is no agreement with the host country, treat the employee as a member of the civilian component for the purposes of b and c below.

b. Direct hire employees. An employee appointed under civil service rule VIII, section 8.3, {nay continue to be employed in the excepted service and in the position occupied when U.S. citizen-ship is acquired. If qualified as a member of the civilian component. the employee becomes subject to U.S. salary schedules and conditions of employment. In these cases. make a pay system change on the day immediately following the elate on which the employee provides proof of U. S. citizenship.

c. Indirect hire employees. An indirect hire employee who is a national of. or ordinarily resilient in. the host country will normally hot qualify for membership in the civilian component when acquiring U.S. citizenship. The employee continues to be subject to host country labor law and may be retained on the rolls with no change in status, pay, or benefits. Retention of the employee in this status is permissible only in those countries where the host country government is the true legal employer of the employee > and when consistent with the governing SOFA. <

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3-4 EMPLOYMENT OF FOREIGN NATIONALS

a. DOD policy. DOD policy regarding employment of non-U.S. citizens in foreign areas is stated in DOD Instruction 1400.10 (app B).

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> b. < Employment of third-state nationals.

(1) > TCC/TSNs < may he employed only after the commander of the overseas MACOM has determined that sufficient numbers and skills are not available from host country resources and recruitment of U.S. citizens is neither practical nor feasible. Importation and employment of > TCC/TSN < personnel must comply with the SOFA with the host country.

(2) > TCC /TSN < personnel will be recruited when possible, from among' those TSNs currently employed by the U.S. Forces as local national employees. Recruitment also may be from among > TCC/TSNs < employed by DA in other countries or directly from the home country. On completion of the employment agreement or any approved extension,. the employee may be restored to the former local national position. or the employee may be given priority placement consideration for reemployment in DA positions in the home country.

(3) > TCC/TSNs < are given time- limited, excepted appointments under the authority of civil service rule VIII, section 8.3 (5 CFR 8.3). The initial appointment will be limited to the period of the employment agreement but will not exceed the length of tours prescribed for. U.S. citizen employees in the same country. The objective is to retain > TSS/TSN < employees only until a qualified local national replacement is recruited or trained Commanders of overseas MACOMs may extend the initial tour of duty but not beyond the date with a qualified local national employee or applicant is available.

(4) Unless prohibited by U.S. law or the applicable SOFA. > TCC/TSN < employees may be given logistical support under conditions comparable to those established for U.S. citizens employees in the country of employment.

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Contents

> SUBCHAPTER 4. Overseas Employees Eligible for Noncompetitive Appointment Upon Return to the United States

1-1. ELIGIBILITY

Family member employees who serve under overseas local hire appointments will be counseled on the eligibility criteria for noncompetitive appointments under Executive Order 12362. as amended, prior to returning to the United States. Civilian personnel offices in overseas locations are responsible for counseling and for providing documentation to departing family members as prescribed in appendix C. <

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Contents

Subchapter 5. Overseas Employment and Rotation of U.S. Citizens

5-1. GENERAL

a. Coverage. This subchapter implements DOD Civilian Personnel Manual (CPM). chapter :~01. > dated 25 August I980. as amended by Office of tile Assistant Secretary of Defense (OASD) memorandum dated 1 June 1981, subject: Rotation of Employees from Foreign Areas, and < OASD memorandum elated 19 October 1982, subject: Service in the United States Between Foreign Areas Tours, which eliminated the CONUS residency requirement. The CPM applies to competitive service positions in foreign areas and excepted service positions > under the Panama Canal Employment System (PCES). <

b. Implementation. To ensure consistency, any written guidance issued by > MACOMs < on overseas recruitment or rotation should be coordinated with other > MACOMs < that have civilian employees in the same geographic area. > Coordination with other DOD components should also be considered.

c. Recruitment and processing. See DA Pamphlet 690-42 (Overseas Recruitment, Processing, and Medical Evacuation Procedures for Army Civilian Employees) for specific guidance on recruitment and processing for overseas employment. The following forms will be used in the processing of each employee for overseas assignment:

(1) DA Form 5372-R, Page 1 Page 2 Page 3 (Orientation Statement)

(2) DA Form 5373-R, Page 1 Page 2 Page 3 Page 4 Page 5 (Request for Processing of Overseas Selectee).

These forms are illustrated at the end of this chapter and will be locally reproduced on 81/2- by 11-inch paper. <

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> 5-2. ROTATION FROM FOREIGN AREAS

a. Employees hired on career or career conditional appointments or appointments leading to career status (e.g., VRA) must, as a condition of employment. sign an appropriate rotation agreement unless the position is exempt from rotation requirements. This includes local hires as well as these required from CONUS, territories and possessions. The three different rotation requirements are as follows:

(1) DA Form 5369-R, Page 1 Page 2 (Rotation Agreement-Employees Recruited From the United States).

(2) DA Form 5370-R, Page 1 Page 2 (Rotation Agreement-Employees Recruited Locally in Foreign Areas)

(3) DA Form 5371-R. Page 1 Page 2 (Rotation Agreement-Employees Recruited from the U.S. Territories and Possessions).

These three agreements are intended to cover the vast majority of situations that require rotation agreements. Local modifications to cover special situations are authorized for prior approval of HQDA(DAPE-CPE), WASH DC 20310-0300. international organizations. such as NATO. are authorized to modify the agreement to conform with fixed-tour requirements. A copy of each agreement form is located at the back of this chapter for local reproduction on 81/2- by 11-inch paper.

b. Prior to the expiration of the tour. the employee should be advised in writing of eligibility to either exercise reemployment rights or register in the DOD Priority Placement Program (PPP) for assignment to the United States in accordance with DOD 1400.20-1-M, DOD Program for Stability of Civilian Employment Policies, Procedures and Programs Manual, chapter 6. When employees re-turn to the United States through the PPP under these agreements. PPP component coordinator' approval is not required for expanded areas of referral or extended periods of registration described in the agreement. Under authority delegated to the component coordinator by DOD 1400.20-1-M. approval is granted for employees returning under the agreement; however. approval applies only to registration for Army activities.

c. When employees plan to return to the United States under an established rotation agreement after satisfactory completion of one overseas tour, the overseas MACOM commander is authorized to exercise the PPP component coordinator option to register the employee as priority 3 for Army activities in the United States. This authority may be redelegated.

d. The overseas command will notify the CONUS activity of the employee's pending return as early as possible.

5-3. TOUR EXTENSIONS

a. Extensions beyond the initial overseas tour. Authority is delegated to commanders to approve extensions beyond the initial overseas tour up to 5 years. Specific documenting procedures for extension decisions will be in accordance with D0D CPM, chapter 301 and supplemental OASD memoranda. CONUS activities will be notified of the ex-tension. A management decision not to extend is excluded from DA grievance procedures.

b. Extensions Beyond 5 Years.

(1) Authority. MACOM commanders are dele-gated authority to approve extensions beyond 5 years for employees trader their jurisdiction with the concurrence of the CONUS activity. This authority may be redelegated to subordinate commanders. Commanders may approve short extensions beyond 5 years for compassionate reasons or an employee's personal reasons. Normally, these extensions beyond 5 years will not exceed 6 months and will be coordinated with the CPO. No type of extension will be granted after a PPP offer is accepted.

(2) Responsibility. Acceptable reasons for ex-tensions must be determined by management in accordance with the CPM and the supplemental OASD memoranda.

5-4. CONVERSION TO STATUS APPOINTMENT

a. All conversions will be in accordance with governing OPM procedures and by OPM authority. An employee hired locally in a foreign area may be converted in accordance with that authority to a status appointment only when it is clearly in the best interest of DA and the overseas MACOM. Conversion will not be to improve the employee's job security, employment benefits, or future opportunities.

b. Requests will be submitted to the responsible overseas recruitment office. The converted employee must sign the appropriate rotation agreement located at the back of this chapter. By signing the rotation agreement, the employee indicates availability for assignment to the United States up to 6 months before the established rotation date.

5-5. TERMINATION OF OVERSEAS TOURS

a. Employees not subject to rotation. Overseas limited appointments may be made for 5 years or less. A locally hired overseas employee in an over-seas limited appointment not to exceed 5 years is terminated on completion of the appointment unless management decides to retain the employee for another term of employment. In these cases, a new overseas limited appointment which may be 5 years or less may be made. When possible, an employee to be terminated will be notified 60 calendar days before the effective date. Termination of an over-seas limited employee before the scheduled expiration date of appointment must be processed under the procedures of AR 690-400, chapter 432, or FPM chapter 752, subchapter 3, as appropriate, if not because of reduction in force.

b. Management directed return to the United States. When it is necessary to direct the employee's return for separation or to a lower grade position in the United States, the adverse action procedures of FPM chapter 752, subchapter 3, will be used. When return to a position in the same Fade is directed, the procedures in chapter 335, appendix A, of this regulation will be followed. Reasons for involuntary return include, but are not limited to: failure to adapt to overseas living or working conditions; the employee's refusal to sign the agreement required for rotation by PPP and the employee's failure to accept a valid offer of continued employment in the United States. The over-seas command will initiate and complete the action.

c. Basis for return. The rotation agreements in this chapter are the basis for returning employees to the United States. Employees must sign a rotation agreement for the initial tour and each approved extension. When management decides not to extend an employee's tour, the employee must apply to exercise reemployment rights or register in the PPP, as appropriate. Unless there are extreme mitigating circumstances, the employee must do this within 7 calendar days after the date of decision. When a rotation agreement has not been obtained due to administrative oversight, or has been lost, other documented evidence must show that the employee has been advised of the rotation requirement. When proper evidence is not avail-able. the employee will be advised, in writing, of the rotation requirement. If the current tour is not extended. the employee will be allowed to remain in the foreign area for 12 months beyond the date of the written notice.

d. Separation. An employee who fails to abide by the terms of a signed rotation agreement or who fails to comply with a directed return to the United States may be separated under the adverse action procedures of FPM chapter 752, subchapter 3. <

Contents

Subchapter 6. The Panama Canal Employment System

6-1. LEGAL BASIS

The Panama Canal Employment System (PCES) was established in compliance with section 1212 of the Panama Canal Act of 1979 (93 Stat. 464). The PCES became fully effective on 31 March 1982.

6-2. ADMINISTRATION OF THE PANAMA CANAL EMPLOYMENT SYSTEM

The Secretary of the Army is responsible for regulations governing employment practices under the PCES. These regulations are published in parts 251 and 253, title :35, Code of Federal Regulations. The PCES is administered in Panama by the Panama Area Personnel Board (PAPB); the Board is chaired by a representative of the Secretary of the Army.

6-3. EMPLOYMENT UNDER THE PANAMA CANAL EMPLOYMENT SYSTEM

a. Status of positions. Positions in Panama are in the excepted service; however, the provisions of the PCES conform generally to the policies. procedures, and standards that apply to the U.S. competitive civil service system. I I In compliance with the Panama Canal Treaty and related agreements. initial employment preference is granted at all grade levels for Panamanian applicants with the required knowledge, skills, and abilities.

b. Qualification standards. The PAPB approves the qualification standards used for all personnel actions. In general, qualification standards issued by the OPM or those developed by individual agencies are adopted for use under the PCES.

c. Pay rates. Pay rates for employees who are recruited from outside Panama > and those hired locally at NM-6 and MG-l0 and above < are fixed relative to pay rates for comparable U.S. positions. Employees hired locally > below those grades < are paid according to pay rates developed in Panama and approved by the Secretary of the Army or designee.

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> d. < Status of employees. Non-temporary excepted service employees under the PCES have status comparable to career or career-conditional status in the competitive service. A U.S. citizen employee who completes 1 year of non-temporary excepted service under the PCES or the former Canal Zone Merit System becomes eligible for non-competitive appointment to a competitive service position. (See FPM chap 315 for noncompetitive appointment.)

6-4. MOVEMENT OF EMPLOYEES BE-TWEEN PANAMA AND OTHER AREAS Movement of an employee between Panama and all other area is processed as a conversion to a new appointment. Current DA employees recruited from the United States are eligible for reemployment rights under chapter 352 of this regulation. > Rotation is in accordance with subchapter 5. <

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Contents

Subchapter 7. Family Member Employment Policy .

> 7-1. GENERAL

a. Employment policy. DOD policy on employment of military spouses and family members of military and U.S. government civilian employees stationed in foreign areas is stated in DOD Instruction (DODI) 1400.23 (app D).

(1) Family members transported to foreign areas at the sponsor's expense are entitled to the same employment preference as those transported at Government expense.

(2) A family member will not be given employment preference on the basis of the sponsor's rank.

(3) Preference will apply in LN positions to family members who are not U.S. citizens. However, such family members may be employed only under employment terms and conditions prescribed in host country legislation or agreements.

b. Applicability. The family member employment policy applies in all foreign areas, except as provided otherwise in host nation agreements, treaties, and in this subchapter.

7-2. MILITARY SPOUSE PREFERENCE

When military spouses who are entitled to preference under the provisions of DODI 1400.23 are included on the best qualified list, they will be selected unless an exception is granted under the provisions of that instruction. Authority to grant exceptions is delegated to MACOM commanders. This authority may be redelegated to appropriate commanders. Designated commanders will act upon requests for exception based on locally developed criteria. Documentation on exceptions will be maintained by CPOs for a reasonable period of time.

7-3. DOD FAMILY MEMBER EMPLOYMENT PREFERENCE

Family member, for this purpose, has the meaning given to it in DODI 1400.23.

7-4. LOCAL NATIONAL POSITIONS

MACOM commanders are encouraged to ensure that, as LN positions become vacant, additional numbers are designated to be filled by eligible family members. This practice should not result in exceeding authorized civilian employment levels. The appointment of non-U.S. citizen family members (if permitted by treaty) will be under Schedule A excepted or excepted (NTE-date) appointments under 5 CFR 213.3106(b)(6). Non-U.S. citizen family members are excluded by 5 USC 5102(c)(ll) from the established rates of pay and employment conditions accorded to U.S. citizen family members hired under the same appointment authority, unless they are employed in summer/student employment programs.

7-5. PROVIDING INFORMATION

a. Orientation. Before appointment, overseas CPOs will inform family members selected for appointment about conditions of employment.

b. Exit interviews. Interviews will be conducted by the overseas CPO to provide departing family members information regarding benefits, PPP eligibility, spouse preference, provisions of EO 12362, as amended, and other programs for continued employment. Appropriate documents verifying eligibility will be furnished by CPOs.

7-6. TIME LIMITS ON SCHEDULE A EXCEPTED APPOINTMENTS

Authority is delegated to MACOM commanders to approve extension of Schedule A appointments for up to 1 year beyond the sponsor's tour when extension is in the interest of the Army. This authority may be redelegated to appropriate commanders, but will be used very sparingly. If extension is approved, a request for continued logistical support will be considered separately according to current command practice.

7-7. SEPARATION AND ROTATION

a. Reduction in force (RIF). Excepted service family member employees may be given consideration for assignment to vacant positions, if consideration is extended under this subchapter. In a RIF affecting U.S. citizen positions, there will be no bumping or retreat rights between excepted service family members and competitive service employees.

b. Leave without pay. Family members with status will be granted a minimum of 90 calendar days leave without pay when they relocate with the sponsor to a new assignment location. Extensions of this initial grant of 90 days are encouraged for employees who have been unable to find employment. (See AR 690-990-2, book 630, subchapter S12.)

c. Remaining in foreign area. Family members who remain in the foreign area after rotation or separation of the sponsor or loss of family member status may continue employment under the same conditions that apply to other U.S. citizen career employees. (Examples of conditions are rotation agreements, management-initiated extensions, and PPP registration.) Family members eligible to continue employment are those on a career or career-conditional appointment in a position which is either subject to rotation policy or excepted from rotation by DOD Civilian Personnel Manual, chapter 301, subchapter 4.

7-8. EXCEPTIONAL FAMILY MEMBER PROGRAM (EFMP)

AR 600-75 (Exceptional Family Member Program) contains policies and procedures governing the EFMP. CONUS CPOs will provide information and forms on the EFMP to overseas selectees. (OCONUS CPOs will provide the same for employees accepting assignment to other overseas areas.) Applicable forms contained in AR 600-75 will be completed by the sponsor and returned to the CPO. After processing, the forms will be hand-carried by the employee to the appropriate school and medical facilities overseas. DA Pamphlet 690-42 (Overseas Recruitment, Processing, and Medical Evacuation Procedures for Army Civilian Employees) contains additional information. <

Contents

Appendix > A <

February 15, 1980

NUMBER 1400.6

ASD(MRA&L)

Department of Defense Directive

SUBJECT:

DoD Civilian Employees in Overseas Areas

References:

(a) DoD Directive 1400.6, "Statement of Personnel Policy for Civilian Personnel of the Department of Defense in Overseas Areas," January 16, 1976 (hereby canceled)

(b) DoD Directive 14OO.5, "Statement of Personnel Policy for Civilian Personnel in the Department of Defense," January 16, 1970

(c) DoD Instruction 1401.1, "Personnel Policy for Nonappropriated Fund Instrumentalities (NAFIs)," July 24, 1978

(d) DoD Instruction 1400.23, "Employment of Dependents of Military and Civilian Personnel Stationed in Foreign Areas," September 18, 1974

(e) DoD Instruction 1404.8, "Rotation of Employees from Foreign Areas and the Canal Zone," April 10, 1968

(f) DOD Instruction 1418.1, "Payment of Differentials and Allowances in Foreign Areas," September 16, 1974

(g) DoD Instruction 1400.10, "Utilization by United States Forces of Local Nationals in Foreign Areas," June 8, 1956

A. REISSUANCE AND PURPOSE

This Directive reissues reference (a), supplements reference (b), and establishes the policy for DoD civilian employees in areas outside the continental limits of the United States and in Alaska (herein referred to as "overseas areas").

B. APPLICABILITY

The provisions of this Directive apply to the Office of the Secretary of Defense, the Military Departments, and the Defense Agencies, including DoD nonappropriated fund activities (as defined in reference (c)). As used herein, Military Services refers to the Army, Navy, Air Force, and Marine Corps.

C. POLICY

1. When using civilian staffing support in overseas areas, each Military Service commander shall employ a civilian manpower mix-U.S. citizens and local nationals-that blends financial prudence, conformance with host country agreements or treaties, availability of qualified local national personnel, and the desired low-key presence of the U.S. Government abroad.

2. When it is advantageous to employ civilian employees in overseas areas, maximum use shall be made of U.S. and non-U.S. citizens available locally. Unless precluded by treaties or other agreements that give preferential treatment to local nationals, preference shall be given to dependents of military and civilian personnel as provided in DoD Instruction 1400.23 (reference (d)). Personnel transferred from or recruited in the United States shall be limited to key personnel, those regarded as essential for security reasons, or those possessing skills that are not available locally.

3. It is the policy of the Department of Defense to encourage its more capable employees in the Continental United States to accept over-seas assignments as a part of their career development. In order to promote the efficiency of worldwide operations, employment of U.S. citizens in foreign areas shall generally be limited to 5 years, as pro-vided in DoD Instruction 1404.8 (reference (e)). Rights to return to a position in the Continental United States shall be given to DoD career and career-conditional employees who accept assignments overseas with the Department of Defense.

4. In making a determination of the numbers and types of U.S. employees for overseas areas, the Military Service Commander shall consider the ability of the command to ensure adequate housing; subsistence; and medical, commissary, exchange, laundry, transportation, and other essential facilities and services. Except when required to meet unexpected emergency conditions, an overseas commander shall not request recruitment from the United States unless the command can provide such facilities to meet health and decency standards.

5. In those overseas areas where DoD employees cannot enjoy the facilities of the civilian community without restriction or where appropriate and adequate facilities do not exist or are not readily available, the military commander shall allocate facilities under the commander's jurisdiction in accordance with a standard of eligibility that provides equitable treatment to both military and civilian personnel recruited from the United States.

6. Since DoD civilian employees in overseas areas are representatives of the United States, it is the policy of the Department of Defense to use effective selection techniques to ensure that only those persons whose qualifications and adjustability make them suited for overseas employment a re selected. Full and accurate information shall be given to prospective employees on the overseas area for which they are being considered, the type of facilities that will be made available to them, the nature of the work they will perform, the conditions of their employment, and their responsibilities to the military command and to the United States as the nation they represent.

7. Individuals selected for overseas assignments shall be considered solely on the basis of merit factors without reference to such non-merit factors as race, color, religion, national origin, sex, physical handicap, marital status, or age. Exclusionary policies of the country to which an employee is to be assigned shall not be a factor in the selection process. U.S. law must be observed in filling jobs, not the policy of a foreign nation. See enclosure 1.

8. The Department of Defense recognizes that to obtain and retain the services of DoD civilian employees of the caliber required in its overseas areas, it may be necessary to provide pay differentials and allowances over and above base salary. Therefore, within the provisions of applicable laws and regulations (DoD Instruction 1418.1, reference (f)), DoD civilian employees serving in overseas areas shall be granted differentials and allowances that are appropriate to their places of employment and their employment conditions.

9. Military and civilian personnel in supervisory positions in over-seas areas shall be trained in the techniques of supervision directed toward maximum production, safe operation, high morale, and the development of a military-civilian team devoted to the effective and economical accomplishment of the mission of the overseas activity.

10. When permitted by U.S. and host country treaty or agreement, U.S. law, and management considerations, the Department of Defense shall pattern its employment conditions for locally hired non-U.S. citizen employees after the customs and practices of the area (DoD Instruction 1400.10, reference (g)). Compensation for such employees shall be based upon locally prevailing rates of pay. These employees shall receive the necessary training to equip them to perform their duties, make them more productive, and qualify them for advancement.

D. EFFECTIVE DATE AND IMPLEMENTATION

This Directive is effective immediately. Forward one copy of implementing documents to the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) within 120 days.

W. Graham Claytor, Jr,

Deputy Secretary of Defense

Enclosure 1: Procedures When Visa is Denied for Discriminatory Reasons

PROCEDURES WHEN VISA IS DENIED FOR DISCRIMINATORY REASONS

A. Should a civilian employee be denied an entry visa by a sovereign foreign nation, and should this denial be based upon race, color, marital status, religion, national origin', sex, physical handicap, or age, notification of this denial shall be transmitted quickly to the Assistant Secretary of Defense (International Security Affairs)(ASD(ISA)). The ASD(ISA) shall notify the Department of State who shall intercede with the foreign nation concerned.

B. Notification of the denial shall contain the following information in the format outlined below:

1. Name of Visa Applicant:

2. Agency:

3. Purpose of Visa:

4. Date of Denial:

5. Foreign Nation Involved:

6. Authority Issuing Denial:

Contents

Appendix > B <

December 5, 1980

NUMBER 1400. l0

ASD(MRA&L)

Department of Defense Instruction

Subject: Employment of Foreign Nationals in Foreign Areas

References:

(a) DoD Instruction 1400.10, "Utilization by United States Forces of Local Nationals in Foreign Areas," June 8, 1956 (hereby canceled)

(b) DoD Directive 1400.6, "DoD Civilian Employees in Overseas Areas," February 15, 1980

(c) DoD Instruction 2050.1, "Delegated Approval Authority to Negotiate and Conclude International Agreements," July 6, 1977

(d) through (j), see enclosure 1

A. REISSUANCE AND PURPOSE

This Instruction reissues reference (a) and supplements reference (b) to set forth the principles to follow when the U.S. Forces in foreign areas are negotiating for the employment of foreign nationals. This Instruction also is a basis for the administrative determination of policies, programs, and practices in foreign national personnel employment.

B. APPLICABILITY

The provisions of this Instruction apply to the Office of the Secretary of Defense, the Military Departments, the Unified and Specified Commands, and the Defense Agencies. The term "Service" refers to the Army, Navy, Air Force, and the Marine Corps.

C. POLICY

1. The establishment or use of military bases and facilities by the U.S. Forces in the territory of another nation is normally governed by the provisions of a treaty or other formal agreement. Such a treaty or agreement shall usually include coverage of the subject of employment of foreign nationals.

2. The negotiation of basic arrangements with the host government of a foreign country is the responsibility of the Department of State, based upon guidance and technical advice provided by the Department of Defense. This guidance shall ensure that the employment system adopted gives the local military command a work force that is as stable, efficient, and economical as local conditions permit.

3. Treaties or agreements of this kind, negotiated at diplomatic level, are usually couched in broad terms. in the field of foreign national hire, inclusion in the treaty or agreement of only the most basic terms of reference is sufficient. Examples of basic terms of reference for the employment of foreign nationals are contained in subsection D.1.

4. In conjunction with the formal agreement or treaty and its implementing arrangements, the Department of Defense requires that a specific official or agency of the host government be designated as an official contact with the U.S. Forces on all labor matters.

D. PROCEDURES

1. Basic Principles. Although the individual details of foreign national employment systems may vary, the system for any foreign country shall satisfy the following basic principles:

a. Prevailing practices, local laws, and customs shall be followed in the employment and administration of foreign nationals when the practices, laws, and customs are not in conflict with U.S. law and are compatible with the basic management needs of the U.S. Forces.

b. Foreign nationals shall be employed as extensively as practicable by the U.S. Forces, consistent with any agreement with the host country and the DoD dependent hire policies, to reduce the need to import workers into the host country. This policy reduces the possibilities of friction between the host country and the U.S. Government.

c. The provisions of the foreign national employment system in a foreign country shall apply uniformly to all elements of the U.S. Forces.

2. Employment System. Foreign national employment systems in foreign countries fall into two general categories: those where the employees are hired directly by the U.S. Forces as employees of the U.S. Government; and those where the personnel are employees of the host government and are assigned to work with the U.S. Forces on a reimbursable cost or other financial basis. Since background and foreign policy considerations for the use of foreign nationals vary from area to area, it is unnecessary and, at times, undesirable to attempt a strict uniformity of detail in the systems used in the different foreign areas.

a. Direct Hire. Under the direct hire system, the U.S. Forces are the official employer of their foreign nationals. As such, they assume responsibility for all administrative and management functions in connection with foreign national employment. This hiring method usually offers flexibility in terms of employee selection, placement, and control, and reduces, to a great extent, the necessity for constant contact and coordination with the host government. Although specific criteria cannot be prescribed for the direct hire system, the presence of one or more of the following conditions may influence a decision to use direct hire:

(1) The host government has no objection to a direct hire system.

(2) The numbers of persons to be employed will have little or no effect on the local economy and does not warrant long and costly negotiation and preparation for an indirect hire arrangement.

(3) The provisions of a treaty or host country agreement provide the U.S. Forces with the legal authority to employ foreign nationals and to follow local law and customs when possible.

(4) The host government does not desire or is unable to discharge the responsibilities inherent in an indirect hire system.

b. Indirect Hire. The indirect hire system makes the host government responsible for ensuring that the needs of the U.S. Forces for foreign nationals are met. Although the host government is the official employer of the foreign national personnel, it grants operational control to the U.S. Forces, under a program mutually agreed upon by the host government and the U.S. Forces, for the day-to-day management of such personnel. Although specific criteria for the indirect hire system cannot be prescribed, conditions that may influence a decision to use this system are:

(1) The host government is desirous and capable of discharging the responsibilities inherent in an indirect hire agreement.

(2) A large number of employees will be required for a limited time, which may result in a disruption in the local labor market when the employees' services are no longer required.

(3) Direct hire of foreign nationals will disrupt the local market, and the host government is in the best position to cope with the situation.

3. Subsidiary Agreements

a. A basic agreement or treaty, as outlined in section C., provides the terms of reference for the formulation of a more detailed operating agreement or arrangement. The subsidiary agreement should provide as complete and detailed coverage of all aspects of the management and administration of foreign national personnel as the local situation permits. Negotiation of subsidiary agreements is subject to DoD Instruction 2050.1 (reference (c)) and DoD Directive 5530.3 (reference (d)). Subjects that may be covered are contained below:

(1) Responsibility for Recruitment

(a) Direct Hires. In the case of direct hires, the responsibility for recruitment should be vested in the U.S. Forces. However, the agreement may provide for assistance from the host government through its existing facilities. This can take the form of a host government's assistance in obtaining qualified applicants and referring them to the U.S. Forces for selection. In such cases, the U.S. Forces have the right to accept or reject any applicant so referred.

(b) Indirect Hires. Usually, the host government, through its existing facilities, is responsible for recruiting civilian workers. The host government procures qualified applicants and refers them to the U.S. Forces for selection, The U.S. Forces have the right to accept or reject any applicant so referred. In addition, the U.S. Forces, should be permitted, with the consent of the host government, to recruit qualified personnel.

(2) Security Measures

(a) The U.S. Forces must take measures to protect their security. The agreement shall provide for appropriate investigative requirements for the employment of foreign nationals in accordance with DoD regulations relating to security requirements for Government employment or for access to classified defense information.

(b) The agreement shall provide that no person will be employed by the U.S. Forces if the employment is inconsistent with the interests Of national security. The U,S. Forces shall be authorized to effect the release of any foreign national who is considered to be a security risk, as long as the person is fairly treated.

(c) Since the discharge of foreign nationals on the grounds of security may be serious cause of grievance and labor unrest, carefully devised procedures shall be instituted to ensure there is no misuse of this authorization.

(3) Priority Accorded U.S. Forces in Labor Market. Under peace-time conditions, it is rarely necessary to establish labor priorities for U.S. Forces. However, provision shall be made for establishing such priorities in the event of an emergency. When it is necessary to establish priorities, the U.S. Forces shall be accorded the same priority as that of the armed forces or essential industry of the host country, particularly if the U.S. Forces are participating in the defense of the area or are an ally of the host country.

(4) Host Government Control on Personnel Requirements. Rarely has a host government imposed a control on the number of local nationals used by the U.S. Forces. Such control by the host government should he avoided, unless a valid reason for such control exists, such as:

(a) The labor market is in short supply.

(b) The protection of the local economy from the disruption caused by the U.S. Forces' having a disproportionate share of available labor.

(c) An emergency condition exists.

(5) Importation of Workers. The U.S. Forces should not import workers from a third country into a host country when personnel requirements can be satisfied by local labor. If personnel needs in any occupational category cannot be satisfied, arrangements should be made with the host government to permit importation of workers from other countries who are acceptable to the host government in the skills and numbers required. The host government should be asked to issue such workers the necessary documentation for residence or working permits. A periodic assessment shall be made of the need for continuing to employ third country nationals.

(6) Employment Conditions. Local nationals shall be afforded conditions of employment that are based on prevailing practices, local law, and customs and are generally equivalent to those enjoyed by persons with .similar skills and in similar occupations in the general economy of the host country. Employment conditions offered shall be favorable enough to meet existing fair standards in the labor market, but not so advantageous as to create a privileged group within the country. Alternate provisions may he necessary when prevailing practices are inconsistent with local laws or in instances where United States laws or operational requirements of the U.S. Forces make adherence to prevailing practices, local law, and customs impossible or difficult.

(7) Employee Compensation. In the day-to-day operations of a civilian personnel program, changing conditions necessitate many changes in wage scales, wage rates, and, to a lesser degree, employment conditions. When an indirect hire system is adopted, it is usually beneficial to have the employment conditions and the wage and salary scales written as a supplement to the subsidiary agreement. The subsidiary agreement can then provide for any changes in the supplement that are required through mutual agreement without renegotiating a new agreement.

(a) In the case of direct hires, it is customary to use either variations of the classification and grading systems used for U.S. employees or those systems used locally, and to determine wage and salary scales on the basis of local prevailing rates. Complete authority to deter-mine the grade, classification, and pay for positions and to assign employees to such positions should be vested in the U.S. Forces.

(b) When an indirect hire system is adopted, pay plans, to include job criteria, and wage and salary schedules, reflect prevailing practices in the general economy to the extent possible and shall be compatible with special U.S. Forces' requirements and personnel utilization practices. Differences between conditions of employment, allowances, and fringe benefits prevailing in the general economy and those afforded foreign national personnel of the U.S. Forces shall he considered in establishing foreign national pay schedules. Depending on existing bilateral agreements, contractual agreements concerning pay plans may be concluded by the U.S. Forces or their delegated representative with the host government or by the host government with trade unions or other employee representative groups, subject to the concurrence of the U.S. Forces. It is the responsibility of the U.S. Forces to determine the proper classification and pay rate under existing pay plans for each employee. Wage and salary rates established by agreement with the host government may be supplemented, as approved practice, if pay patterns for specific kinds of work exceed the basic U.S. Forces pay schedule for such work.

(8) Social Security Coverage

(a) Unless local conditions dictate otherwise, foreign nationals shall be covered under the existing social security program of the host government.

(b) In the case of direct hire employees, there is, at present, no legal authority for the U.S. Government's paying the employer's share of the social security contribution, unless the treaty or subsidiary agreement so provides. When either the direct hire or the indirect hire system is used, the treaty or subsidiary agreement should provide that foreign nationals will or will not be covered by the existing social insurance and worker's compensation benefits of the host country. When employees are so covered, the employer's contribution to social insurance will be made by the U.S. Forces, either directly or by reimbursement to the host government.

(9) Complaints. With respect to matters pertaining to an existing arrangement within the U.S. Forces' areas of responsibility, the U.S. Forces should establish adequate procedures appropriate to the local situation to deal directly with complaints that may arise. The host government should receive complaints that fall within the area of its responsibility, as well as suggestions for a change of the agreement between the host government and the U.S. Forces.

(10) Labor-Management Relations. The basic principle set forth in D.1.a, above, applies to labor-management relations and to other aspects of employment. Policies governing the relationship between the U.S. Forces and the organization(s) representing their local national employees, including dispute-resolution procedures and, where appropriate, those matters subject to collective bargaining, shall b~ set forth in the agreement with the host government. Whenever possible, particularly in those countries where government employees are not permitted to strike, an explicit statement shall be sought, to the effect that foreign national employees do not have the right to strike against the U.S. Forces.

(11) Administrative Costs. A method of determining the administrative costs incurred by the host government in providing personnel and in assuming certain administrative responsibilities under an indirect hire system should be developed. The extent to which these costs will be borne by the U.S. Forces, the manner in which payments for any assessed costs will be made by the U.S. Forces, and the extent to which it may be mutually desirable for the U.S. Forces to audit expenditures for administrative costs should be agreed upon.

b. Division of Responsibilities. The recommendations contained in paragraphs D.3.a.(1) through D.3.a.(11) above, as they may relate to the indirect hire system, visualize an arrangement whereby the host government assumes the status of employer, employs the personnel, performs certain administrative functions, and furnishes the personnel to the U.S. Forces on a reimbursable basis. In a system of this type, the host government and the U.S. Forces each have certain responsibilities and functions. The recommended division of the more important of these, which, if agreed upon, must be delineated in the subsidiary agreement, is as follows:

(1) Host Government

(a) Recruitment of personnel and referral of qualified applicants to U.S. Forces for selection.

(b) Appointment of those applicants who are selected.

(c) Maintenance of personnel records,

(d) Preparation of payrolls and paying of personnel.

(e) Completion of personnel actions requested by U.S. Forces, such as promotions, transfers, or separations.

(f) Negotiations with labor organizations. In areas of agreed U.S. Forces' responsibilities and in utters pertaining to the provisions of the basic treaty and subsidiary agreement, no binding obligation should be concluded in any negotiation between the host government and the labor organizations without concurrence of the U.S. Forces.

(2) U.S. Forces

(a) Establishment of number and types of positions required, and transmittal of requests to host government for personnel.

(b) Determination of the proper classification of individual positions within an established wage and salary structure.

(c) Selection of personnel from applicants referred by the host government.

(d) Submission of time and attendance reports to the host government's agency preparing the payrolls.

(e) Assignment, supervision, control, and training of personnel.

(f) Determination of promotions, demotions, transfers, and separations.

(g) Audit of payrolls prepared by host government.

(h) Consultation with employee associations or labor organizations.

E. AUTHORITY AND POLICY FOR ESTABLISHING COMPENSATION AND OTHER CONDITIONS OF EMPLOYMENT

1. The legal basis for setting pay for foreign national employees is Section 408 of the Foreign Service Act of 1980 (reference (e)) which reads in part as follows:

"(a) The Secretary shall establish compensation (including position classification) plans for foreign national employees of the Services, and for United States citizens employed in the Service abroad who are family members of Government employees. To the extent consistent with the public interest, each compensation plan shall be based upon prevailing wage rates and compensation practices (including participation in local social security plans) for corresponding types of positions in the locality of employment, except that such compensation plans shall provide for payment of wages to those family members of Government employees who are paid in accordance with such plans at a rate which is no less than the then applicable minimum wage rate specified in section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 USC 206(a)(1)). Any compensation plan established under the section may include provision for leaves of absence with pay for foreign national employees in accordance with prevailing law and employment practices in the locality of employment without regard to any limitations contained in section 6310 of title 5, United States Code.

"(b) For the purpose of performing functions abroad, any agency or other Government establishment (including any establishment in the legislative or judicial branch) may administer employment programs for its employees who are foreign nationals or are family members of Government employees assigned abroad, in accordance with the applicable provisions of this Act."

2. In accordance with the provisions of DoD Directive 5120.39 (reference f), authority is hereby delegated to each Military Department for re-delegation to its Service component commander in each of the following areas who shall exercise authority in that area to jointly establish salaries, wages, fringe benefits, and related compensation items:

a. U.S. European Command

b. U.S. Pacific Command

c. Azores

d. Iceland

e. Ottawa (Defense Logistics Agency activities)

f. Compensation in all other areas, except Panama, will be fixed and adjusted by DoD wage fixing authority.

3. Each Military Department shall delegate authority to that same commander in that area to establish other terms and conditions of employment for foreign national employees.

4. The following policy is established for determining compensation and conditions of employment for foreign national employees of the U.S, Forces in foreign areas under this delegation of authority:

a. The average pay of employees of the U.S. Forces shall equal average pay of the non-U.S. Forces sector in the country concerned; and

b. Total compensation of employees of the U.S. Forces shall equal total compensation or the non-U.S. Forces sector in the country concerned.

5. Limitations on delegations of authority are:

a. Unresolved differences :elating co salaries, wages, fringe benefits and related compensation matters shall be referred by the cognizant Commander-in-Chief to the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L)).

b. Situations which in the view of service component commands warrant deviation from prevailing practice, sometime referred to as public interest determinations, shall be referred by the cognizant Commander-in-chief to the ASD(MRA&L).

c. The annual total pay for an individual established under the delegated authorities may not be more than the maximum payable rate for GS-18.

6. Unified Commanders in Chief or equivalent for the area shall establish joint personnel committees, with Service component representation as applicable to the situation. The Unified Commander may determine the number of joint committees or subcommittees necessary for the conduct of orderly business. Committees may be established on an area or country basis. Component representatives (not to exceed one on a joint committee or subcommittee) shall be appointed by their respective Service component commanders. For each such joint committee, a chairperson shall be designated by the Unified Commander.

a. For direct hire employees (paid from either appropriated or non-appropriated funds), the joint committees shall seek to establish a uniform position with respect to salaries, wages, fringe benefits, and other terms and conditions of employment for foreign national employees. The terms and conditions of employment established shall be in accord with the provisions of controlling treaties and administrative and labor management agreements and this Instruction. Negotiations with labor organizations shall not extend to such areas of discretion and policy as mission, budget, security, organization and assignment of personnel, the technology of performing work, or schedules of compensation, except to the extent provided by treaty, agreement, or directive (but labor organizations may be permitted to participate in the planning and conduct of area wage surveys).

b. For indirect hire employees, the joint committees shall be responsible for coordinating negotiations with host government officials and for ensuring uniform application of agreed service positions.

c. Procedures and detailed instructions to be followed in the administration Of that part of the personnel program for foreign national employees of the U.S. Forces concerned with compensation are contained in DoD instruction 1416.8 (reference (g)) and in The Department of Defense Foreign National Compensation Manual, 1416.8 -M (reference (h)).

d. Guidance on accounting for the pay of foreign national employees is contained in DoD 7220.9-H (reference (i)), see especially paragraph 22110.

7. Unified commanders and joint committees shall afford full consideration to the participation, wherever appropriate, of other parties, such as other allied forces or D.S. Government departments or agencies, in achieving a unified position to preclude unilateral action inconsistent with controlling treaties, agreements, or directives.

8. The joint committees shall operate under and be responsible to the commander-in-chief of the Unified Command who shall seek to resolve any component difference to achieve a unified U.S. Forces' position prior to referral by the commander-in-chief to the ASD(MRA&L) for resolution in accordance with paragraph E.5.a., above.

9. Matters, other than unresolved differences referred to in paragraph E.5.a. above, having significant budgetary or legal implications, major policy issues, or impact on manpower ceilings, at the discretion of the commander-in-chief may be referred to the ASD(MRA&L), or to the Military Departments, as appropriate, for advice or decision. The commander-in-chief may obtain through the ASD(MRA&L) technical assistance on compensation matters from the DoD Wage Fixing Authority Technical Staff, established under DoD Directive 5120.39 (reference (f)).

10. The joint committee shall submit the materials listed in DoD Instruction 1416.8 -M (reference (h)) to ASD(MRA&L), with informational copies to the concerned Military Departments.

11. This policy does not apply to the Civilian Marine Personnel of the Military Sealift Command, to foreign national employees serviced by U.S. Embassies in accordance with State and DoD Agreement (reference (j)), or to foreign national employees in Panama.

F. EFFECTIVE DATE AND IMPLEMENTATION

This Instruction is effective immediately. Forward one copy of implementing documents to the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) within 120 days.

Robert A. Stone

Acting Assistant Secretary of Defense (MRA&L)

Enclosure-1

References

REFERENCES, continued

(d) DoD Directive 5530.3, "International Agreements," December 6, 1979

(e) The Foreign Service Act of 1980, Public Law 96-465, October 17, 1980

(f) DoD Directive 5120.39, "Department of Defense Wage Fixing Authority Appropriated Fund Compensation," April 24, 1980

(g) DoD Instruction 1416.8 , "Compensation Program for Foreign Nationals," Dec. 5, 1980

(h) DoD Manual 1416.8 -M, "Department of Defense Foreign National Compensation Manual," December 1980, authorized by DoD Instruction 1416.8, December 5, 1980

(i) DoD 7220.9-H, "DoD Accounting Guidance Handbook," February 1, 1978, authorized by DoD Instruction 7220.9, July 12, 1971

(j) Department of State/Department of Defense Agreement, Subject: "Agreement Concerning Joint Compensation Plans for Local Employees of the Department of State - United States Information Agency - Agency for International Development - Certain Designated Units of the Department of Defense - and the Foreign Agriculture Service and other Designated Units of the Department of Agriculture," July 9, 1977

Contents

> Appendix C

Procedures for Implementation of Executive Order 12362, as amended

C-1. PURPOSE

Executive Order (EO) 12362 (Overseas Employment), as amended, established the authority for noncompetitive appointments in the competitive service of certain former overseas employees. This appendix describes the eligibility criteria for appointments under this authority and prescribes procedures to be followed by overseas CPOs in counseling employees and documenting eligibility determinations.

C-2. ELIGIBILITY CRITERIA

Eligibility for appointment under this authority is based on service in nonpermanent appointment in a foreign area and is limited to positions in the United States. A former overseas employee may be appointed on a career or career-conditional basis non-competitively to a competitive service position in the United States provided he or she-

a. Is a citizen of, or owes permanent allegiance to. the United States at the time he or she applies for noncompetitive appointment. Natives of American Samoa are the only non-citizens who, as a group. owe permanent allegiance to the United States. By Presidential proclamation. citizens of the Northern Mariana Islands are also exempt from the prohibitions on examination and appointment of non-citizens.

b. Has accumulated 18 months of creditable over seas service in an appropriated fund position(s) under an overseas local hire appointment(s) within any I0-year period beginning after 1 January 1980. Service under the Berlin Tariff Agreement and in tile Panama Canal area is creditable for the purpose of gaining noncompetitive appointment eligibility under EO 12362. as amended: but service under the Berlin Tariff Agreement may not be considered Federal service for other purposes (e.g., retirement, leave accrual, pay fixing. .). (See chap 315. subchap 6, for specific definitions of overseas local hire appointments which confer EO eligibility.)

c. Served with fully successful of better perform-ante rating(s) in service accrued after 1 January 1984.

d. Was a family member of an appropriate sponsor (a Federal civilian employee, a nonappropriated fund employee. or a member of a uniformed service) who was officially assigned to an overseas area during the 18-month period of creditable overseas service. The former employee is nut required to have family member status at the time application is made for employment in the United States.

e. Accompanied or joined the civilian or uniformed sponsor on official assignment in the over-seas area in which the creditable overseas service was performed. The family member is not required to travel concurrently with the sponsor on the official assignment.

f. Is appointed within 3 years after returning to the United States from the overseas tour of duty during which he or she acquired eligibility. Documentation of overseas creditable service and the actual date of return to the United States is required at the time he or she applies for noncompetitive appointment in the United States. The Office of Personnel Management (OPM) may approve for individual applicants a longer period of eligibility due to hardship. The extenuating circumstances and/or events causing the hardship which precluded employment within the 3 years must be recorded and transmitted to OPM through HQDA(PECC-CSS). ALEX VA. 22332-0300.

g. Meets all OPM qualification requirements, to include any written test requirement, and time-in-grade restrictions (if applicable), for the position in the United States for which he or she is applying.

C-3. RESPONSIBILITIES OF THE OVERSEAS ACTIVITIES

CPOs in foreign areas will:

a. Counsel family member employees upon their employment in the foreign area on the provisions of EO 12369. as amended. Advise them to maintain all Standard Form 50's (Notification of Personnel Action), or equivalent for family members employed under tile Berlin Tariff Agreement, in the event verification of service is necessary.

b. Counsel family member employees prior to their departure to the United States on the eligibility criteria for noncompetitive appointments under EO 12362, as amended, that-

(1) Eligibility does not confer any priority for appointment.

(2) Official documents (e.g., travel orders to the United States, passport, etc.) are required to verify the actual date they entered the United States when they apply for a job.

c. Provide the family member employees with the following completed forms

(1) DA Form 5433-R (Verification of Overseas Employment for Noncompetitive Appointment under EO 12362). Locally reproduce this form on 8 1/2-by 11-inch paper; a copy for reproduction is at the end of this chapter. Complete the from in duplicate; retain one copy in the employee's Official Personnel Folder on the left side. Service computation procedures in FPM Supplement 296-33 are applicable in determining the length of service for this purpose.

(2) SF 50, or equivalent for family, members employed under the Berlin Tariff Agreement. In the remarks section of the separation SF 50 or other appropriate document, enter the following statement:

"The service performed by (name of employee) since 1 January 1984 [or actual date the employee entered on duty if after 1 January 19841 has been fully successful or better. This certification fully meets the requirements of the Department of the Army Performance Management System. Overseas service under this appointment from (date) to (date) is creditable under EO 12362 as amended."

The performance appraisal certification will be used only when performance has been fully successful or better. The certification will be supported by a supervisory determination based on the employee's performance compared to established performance standards for the critical and non-critical elements of the position as documented on the employee's performance plan. CPOs will assure that personnel actions written in a foreign language have the English translations.

(3) SF 75 (Request for Preliminary Employment Data). Provide this form to family members only if they meet the 18 months of overseas creditable service. <

Contents

Appendix D

DODI 1400.23

Department of Defense

INSTRUCTION

November 13, 1987

NUMBER 1400.23

ASD(FM&P)

SUBJECT:

Employment of Family Members of U.S. Armed Forces Personnel and Civilian Employees Stationed in Foreign Areas

References:

(a) Public Law 99-145, "DoD Authorization Act," November 8, 1985, Section 806, "Employment Opportunities for Military Spouses," as amended (10 USC, Section 133 Note)

(b) DoD Instruction 1400.23, "Employment of Dependents of Military and Civilian Personnel Stationed in Foreign Areas," September 18, 1974 (hereby canceled)

(c) DoD Directive 1400.13, "Salaries and Personnel Practices Applicable to Teachers and Other Employees of the DoD Overseas Dependents' Schools System," July 8, 1976, as amended

(d) DoD 1401.1-M, "Personnel Policy Manual for Nonappropriated Fund Instrumentalities," February 1987, as amended, authorized by DoD Instruction 1401.1, November 15, 1985

(e) Federal Personnel Manual (FPM), Chapters 213, 310, and 315, Subchapter 6

(f) DoD 1400.20-1-M, "DoD Program for Stability of Civilian Employment Policies, Procedures, and Program Manual," 3uly 1986, authorized by DoD Directive 1400.20, June 16, 1981

A. REISSUANCE AND PURPOSE

This Instruction implements reference (a) and reissues reference (b) to update policy and procedures to improve employment opportunities for family members of U.S. Armed Forces personnel and civilian employees of U.B. Government Agencies stationed in foreign areas.

B. APPLICABILITY AND SCOPE

This Instruction:

1. Applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Unified and Specified Commands, the Defense Agencies, and DoD Field Activities (hereafter referred to collectively as "DoD Components").

2. Does not apply to the employment of educators with the DoD Dependents Schools System (DoDDS). Spouse and family member applicants for educator positions with this system shall be given preference in accordance with DoD Directive 1400.13 (reference (c)).

3. Does not apply to employment in Nonappropriated Fund (NAF) positions. Spouse and family member applicants for NAF positions shall be given preference in accordance with DoD 1401.1-M (reference (d)).

4. Does not apply to employment with the National Security Agency (NSA), the Defense Intelligence Agency (DIA), or to those organizations in the DoD Components that have as a primary function intelligence, counterintelligence, investigative, or any unique national security responsibilities.

5. Does not apply to journeyman level positions covered by mandatory mobility agreements.

C. DEFINITION

1. Family Member. Under this regulation, a family member is the spouse or dependent child, including stepchildren, adopted children, and foster children of a member of the U.S. Armed Forces or a U.S. citizen civilian employee of a U.S. Government Agency whose duty station is in the foreign area. Unmarried dependent children residing with sponsor may be appointed under the special appointing authority for family members until age 23. Once appointed, unmarried dependent children may be retained until their sponsor departs from the commuting area of his/her duty station or completes current overseas tour (excluding any extensions), whichever occurs first.

D. POLICY

It is DoD policy that:

1. Spouses of U.S. Armed Forces personnel shall be given preference when filling vacancies competitively through either internal or external placement in all positions designated for U.S. citizen occupancy at the GS-1 through GS/GM-15 level (or equivalent) located in the same commuting area as the permanent duty station of the member. To receive preference, the spouse must be in the area of consideration (competitive) and included among persons determined to be best qualified for the position. This preference shall apply only to initial employment into a continuing position including temporary positions of 1 year or longer at each duty location. Spouse preference shall not be given when doing so shall contravene existing statutes or regulations on veterans' preference or nepotism.

2. Family members of U.S. Armed Forces personnel and U.S. Government civilian employees shall be given equal preference in employment in nonsupervisory positions at the GS-1 through GS-8 level (and equivalent) in the absence of military spouses in the best qualified group. Spouse or family member preference shall not be given when doing so shall contravene existing statutes or regulations on veterans' preference or nepotism.

3. In order to expand employment opportunities for spouses and family members, commanders shall, to the maximum extent possible, utilize foreign national positions for U.S. citizen occupancy as the positions become vacant for recruitment from outside the current foreign national work force, unless such employment is contrary to treaties or other international agreements. When qualified spouses are available to fill such positions, they shall be afforded preference, unless the commander determines that it is essential to mission effectiveness to retain local national incumbency in a specific position.

4. Spouse and family member preference shall be applied equitably and reciprocally across DoD Component lines.

5. Family members of locally hired civilian employees shall not be given preference in employment under this regulation.

E. RESPONSIBILITIES

1. The Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall:

a. Establish and administer the policies and procedures set forth in this Instruction to provide for an enhancement of employment opportunities for family members of U.S. Armed Forces personnel and civilian employees of U.S, Government Agencies stationed in foreign areas.

2. The Heads of DoD Components shall:

a. Issue internal regulations to implement the provisions of this Instruction.

F. PROCEDURES

1. Appointments of spouses and family members, who receive preference, shall be Excepted Appointment or Excepted Appointment (Not to Exceed (NTE)) made under Special schedule A appointment authority 213,3106(b)(6) (reference (e)). The exceptions may be those spouses and family members eligible for transfer and those with personal competitive civil service status eligible for reinstatement, who may be given competitive appointments in accordance with FPM chapter 315 (reference (e)). Employment under the Schedule A authority may not extend longer than 2 months following the transfer of the sponsor from the commuting area of his/her duty station or the separation of the appointee's sponsor, or beyond the time the employee ceases to be a spouse or a family member except in the event of the death of the sponsor. Extensions of up to 1 year may he approved for any of these family members when the DoD Component concerned determines that additional employment is in the interest of management. This authority shall be used very sparingly, and such extensions shall be approved by the Director of Civilian Personnel of the DoD Component concerned or his or her designated representative.

2. Overseas commanders shall ensure that job information is provided in a manner reasonably designed to reach spouses of U.S. Armed Forces personnel whose permanent duty stations are in the same commuting area as the area where the position is located.

3. Heads of DoD Components may establish guidelines for approving exceptions to selection priorities. Exceptions shall be rare and shall be based only on compelling hardship to the DoD Component mission or to the applicant.

4. Spouses and family members who have less than 6-months time remaining in the area may he non-selected for permanent continuing positions.

5. Spouses may file applications for employment with overseas civilian personnel offices 30 days before their anticipated arrival within the command. However, spouses may not receive preference until actually arriving at the over-seas location.

6. The appointment of spouses and family members under this Instruction is subject to the regulations and restrictions on employment of relatives (FPM chapter 310 (reference (e)).

7. When spouse Or family member employment is authorized for foreign national positions, such employment shall be under the special Schedule A authority only. Spouses and family members in these positions may be subject to separation or reassignment, therefrom, if the position is required for the placement of a current foreign national employee through reduction-in-force procedures. Veterans' preference does not apply to positions designated for foreign national occupancy. Spouses and family members who are not U.S. citizens shall be given equal consideration with U.S. citizen spouses and family members for foreign national vacancies except when doing so would conflict with host nation law or agreements with the host nation.

8. Individuals selected under this policy shall be advised by the servicing civilian personnel office of the following procedures available for continuing employment upon returning to the United States (including Guam, Puerto Rico, and the Virgin Islands):

a. Spouses and family members traveling by authority of their sponsor's travel orders who are employed overseas under career or career-conditional appointments may apply for placement assistance through the DoD Priority Placement Program at the time of their sponsor's return to the United States. Such registration shall be in accordance with chapter 6 of DoD 1400.20-1-M (reference (f)).

b. Spouses and family members, who were employed overseas under the special Schedule A authority, overseas limited authority, or other nonpermanent local hire appointment authority, provided they meet the conditions of eligibility in FPM, chapter 315, subchapter 6 (reference (e)), may be selected and noncompetitively appointed on a career-conditional basis to competitive service positions for which they qualify after returning to the United States.

G. EFFECTIVE DATE AND IMPLEMENTATION

This Instruction is effective immediately.. Forward two copies of implementing documents to the Assistant Secretary of Defense (Force Management and personnel) within 90 days.

David J. Armor

Principal Deputy

Assistant Secretary of Defense

(Force Management and Personnel)

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