As a M-day service member of the Army National Guard, the regulation that governs taking maternity leave is AR 135-91 which only authorizes 6 weeks (i.e. one excused drill month). This policy is inconsistant with active duty policy (60 day convalescent leave plus up to 30 days of accrued leave) and the FMLA. Is there any mandate or special rules that offer M-Day service members the same protection as offered by the FMLA. In my particular situation, I was protected by FMLA in my civilian job. The Uniformed Services Employment and Reemployment Rights Act (USERRA) allows Soldiers who were deployed/mobilized to accure time towards FMLA eligibility while on active duty; however, there is no reciprocal policy (to my knowledge) that allows National Guard soldiers to eligible to be excused from drill beyond the 6 weeks of medical "leave". This became an issue for me as I requested to be excused from drill for 3 months after having a baby and declined command to do so as my commander was mobilized (voluntarily) right after I gave birth. Unfortunately, no acting commander was appointed so I unofficially fulfilled these duties for 3 months. Early on, I was asked to sign a letter of declination which I did. The letter of declination incorporated a clause stating that my declination would not prevent me from being considered for future commands. However, no one was ever appointed so I continued to unofficially command the unit. At the end of the 2 months, I decided I was ready to assume command as I returned to work and my child was no longer newborn. I didn't think there would be an issue since no one had been appointed, but apparently, the TAG (who became my direct supervisor upon mobilization of my commander) had been offended that I initially declined so he opted to appoint my subordinate over me and removed me from the unit--4 weeks after I reasserted my request to be considered for command. My subordinate's appointment orders were backdated so that it appears as if he was commander during the 3 months that I commanded the unit. Since I have a very specific MOS (warrant officer), there's no position in the Guard that I could be assigned. Subsequently, after 6 months of attempting to resolve this with the chain of command, I felt I had to transfer into the IRR versus spending the rest of my military career without a position or duty title. Of course, my decision was aided by hearing the TAG stated during an WOPD that if you turn down a invitation for a position, there is no place for you in his Guard. My questions: Is it legal/ethical for the TAG to backdate appointment orders as I described? Is there any recourse that I can pursue as I feel that I was discriminated against because I requested 3 months of maternity leave/excused absence from drill (which my former commander approved and which I never received)? It troubles me that National Guard soldiers are not afforded the ability to qualify for more protection (or maternity leave) that all other federal employees and active duty soldiers have.
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