Law Office of Marc J. Smith, LLC
Employment Law and Litigation Counsel

Selective Service Blog

If you are a male between 18 and 25 years of age, the Military Selective Service Act requires you to register with the Selective Service System — the Agency responsible for maintaining information on those potentially eligible for military service in the event the United States government deems it necessary to implement a military draft.  Most male U.S. citizens and male immigrant non-citizens between the ages of 18 and 25 are required by law to have registered within 30 days of their 18th birthday.  If you are a male between 18 and 25 years of age, you may register on-line by clicking here.  You can check to see if you are properly registered here.

Perhaps surprisingly, many non-citizens are required to register, including illegal aliens, legal permanent residents, and refugees.  Noncitizens who are notrequired to register with Selective Service include men who are in the U.S. on student or visitor visas, and men who are part of a diplomatic or trade mission and their families.  Generally, if a male non-citizen takes up residency in the U.S. before his 26th birthday, he must register with Selective Service.  The Selective Service System has published a useful chart detailing who must register.

Fortunately, the U.S. government has not in recent history actively pursued prosecution of individuals who have failed to register with the Selective Service System.  However, there are significant other penalties that are imposed upon individuals who were required to register, but fail to do so before their 26th birthday.  For example, eligible males who have failed to register may not be able to obtain federal student loans or grants.  Failing to register when required to do so also results in a permanent bar for federal employment unless the individual can demonstrate to the Office of Personnel Management, by a preponderance of the evidence, that their failure to register was not “knowing and willful.”  You have two opportunities to do this — an “initial determination” (which almost always results in an adverse decision) and an appeal to the Director of the OPM.  It is therefore vital to ensure that your case is thoroughly prepared and presented to OPM in the proper form.

Three Selective Service Failure to Register Clients Receive Clearance From OPM for Federal Employment

In the time since I last updated this blog, the Office of Personnel Management (“OPM”) issued decisions on three appeals we are handling, finding in all cases that our clients’ failure to register was not knowing and willful.  The first case involved a difficult fact pattern involving a United States citizen who had lived the in the United States his entire lifetime.  In this case, our client had actually performed a high school project involving Selective Service registration, and was told that his teacher would take care of  mailing the registration card to Selective Service.

Unfortunately, the teacher apparently never mailed the registration card, a fact that our client did not learn until many years later when he applied for federal financial aid.  The teacher had passed away many years ago and there were no witnesses available to corroborate what had transpired in the classroom.   The Selective Service System had also mailed multiple notices to our client reminding him of his obligation to register; however, our client had received none of the notices.  After submitting a comprehensive package of sworn declarations and other documentary evidence, OPM agreed with our position that our client’s failure to register was not knowing and willful.

The second case involved a Department of Homeland Security employee who had immigrated to the United States from Nigeria when he was 18 years of age.  Although our client was not aware of the existence of the Selective Service and its registration requirements when he arrived in the country, he came to the US on an F-1 Student Visa (non-immigrant) and was not required to register.  At the age of 24, our client became a conditional permanent resident of the United States and, at that point, was required to register.  The Selective Service also mailed out multiple notices to our client regarding his obligation to register; however, our client had moved frequently and did not receive these notices.

Our client discovered the existence of the Selective Service when he applied for student financial aid. Unfortunately, by this time, our client was over 26 years of age and was no longer eligible to register.  Despite his failure to register, our client was subsequently hired by DHS in spite of the fact that he disclosed his failure to register on his OF 306.   Later, our client received a notice of proposed removal based upon his failure to register.  After an adverse initial determination (something that, in our experience, almost always occurs), we appealed to the Director of OPM who agreed that our client’s failure to register was neither knowing nor willful, and our client was able to maintain his employment with DHS.

The last case followed a common fact pattern.  Our client was born in Ethiopia and was forced to flee the country and became a political refugee in the United States when he was 19 years old.  Our client first learned of the Selective Service registration requirements when he was 31 years old and too old to register.  Much later in life, our client applied for a position with the United States Department of Treasury/IRS and was rejected after disclosing his Selective Service status on his application.  In September 2008, our client received a negative initial determination from OPM.  We were retained approximately three years later and appealed the initial determination to the Director of OPM.  After considering our evidence, the Director agreed with our position that our client’s failure to register was neither knowing nor willful.  As a result, our client is now eligible for federal employment.  

Marc Smith