As I wrote in a previous article on this blog, an individual's failure to register with the Selective Service before attaining 26 years of age operates as a bar to federal employment. Since my first blog article, I have been retained in a number of cases involving current employees who are either facing removal or individuals who have been rejected at the application stage for failing to register with the Selective Service. The fact patterns of these cases are strikingly similar and all involve individuals who came to the United States in their 20's and had no knowledge of Selective Service registration requirements.
Fortunately, failing to register with the Selective Service does not operate as a bar to federal employment if the employee or applicant is able to demonstrate by a preponderance of the evidence that his failure to register (only males are required to register) was not knowing or willful. There are two opportunities to make this showing — the initial determination by OPM and a “request for reconsideration” if OPM makes an adverse determination at the initial stage. Your agency must request the initial determination, whether you are an applicant or a current employee. In many cases, the agency will not request an initial determination if you are rejected at the application stage, so if you are rejected at the application stage, you should ask the agency to request an initial determination. Otherwise, you will not have an opportunity to seek a determination from OPM unless you subsequently apply for another federal position, and are rejected, for failing to register.
OPM issues adverse rulings in many initial determinations because employees (or applicants) do not submit proper evidence that their failure to register was neither knowing or willful. In this regard, OPM will likely reject any initial request for determination that is not supported by either an affidavit or declaration made under the penalty of perjury. Employees or applicants should take full advantage of the two opportunities they have to convince OPM that their failure to register was neither knowing or willful and submit their evidence in the proper form from anyone who can attest to the fact that the failure to register was neither knowing or willful. If you are like many of my clients, you should consider submitting affidavits from your family members who can attest to the fact that Selective Service requirements were not known or discussed prior to your relocation to the United States or included as part of your educational curriculum. You should also consider obtaining affidavits from your friends, associates and co-workers who can provide supporting information. If you have any documents, such as job applications that do not inquire about your selective service status, you should submit these as well.
Providing this information at the initial determination stage will position you for the best possible result and, in the event you are not successful, you will be fully prepared to file your request for reconsideration to the Director of OPM within the required 30 day window.