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Ask the Lawyer: When can servicemen take paternity leave?

Q. I’m on active duty in the Army. My wife had a baby 17 days early. Because it was a premature birth, the baby must stay in the hospital for five to seven days. I would like to take my paternity leave when the baby comes home so I can help my wife take care of our new son — but my unit is making me sign out for my 10-day paternity leave the day the baby was born. My wife won’t be 100 percent healthy when she returns home, and now I won’t be there to help. What information can you give me on the paternity leave regulations?

A. Paternity leave is new to the military — so it’s not unusual that your unit administrators have difficulty interpreting the regulations. It appears they have their facts wrong.

The 2009 Defense Authorization Act ordered all the services to implement a paternity leave policy for service members. But other than specifying that each service member be allotted 10 days of nonchargeable leave following the birth of a baby, the law left it up to each branch to develop its own policy specifics.

The Army was the last to issue its guidance on the policy, about six months ago. Like the other service branches, the Army authorizes any married soldier whose wife has given birth since Oct. 14, 2008, to take 10 consecutive days of nonchargeable administrative leave.

So far, it appears that your unit has the policy straight; 10 days of paternity leave were granted. But after that point, the unit appears to be misinterpreting the policy.

The Army policy specifies that the 10-day leave period can be any time within 45 days following the baby’s birth. The Navy policy is within 365 days of the birth, the Air Force policy is within 60 days of the birth, and the Marine Corps policy is within 25 days of the birth.

Deployed soldiers have even more allowance: They have up to 60 days to take their paternity leave, beginning the day they return home.

The policy also takes into consideration service members whose children were born before the Army-specific guidelines were established. Any soldier whose child was born between Oct. 14, 2008, and March 10, 2009, and who was charged annual leave for time taken to spend with his family can request that the leave be restored.

All that is required to have the leave restored is for the soldier to provide his personnel unit with documentation that the leave coincided with the birth of his son or daughter.

As for your particular situation, I suggest you speak with your unit’s personnel division about the policy’s rules. You also may want to consider speaking with someone in your judge advocate general office or a military attorney who is up to speed on family law issues.

This special time with your wife and new child can never be replicated and should be granted if the unit mission allows.

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Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully Rinckey PLLC (www.fedattorney.com), a law firm with offices in Albany, N.Y., and Washington. E-mail legal questions to askthelawyer@militarytimes.com.

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.