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.

What Does the Future Hold for Males Who Have Failed to Register with Selective Service?

In the past several years, we have handled a significant number of Selective Service “failure to register” cases and have received favorable rulings from the Office of Personnel Management (“OPM”) on each.  It is certainly true that Selective Service cases have to be carefully prepared and presented correctly from an evidentiary standpoint.  However, in our experience, most of these cases also involve interesting and compelling facts.  Many of our clients who did not register with the Selective Service simply were not aware of the registration requirement.  Others had mailed in their registration cards, but for reasons which remain unknown, the Selective Service System had no record of their registration.

Fortunately, John Berry, who was appointed by President Obama to serve as the Director of OPM in 2009, has handled these cases fairly and equitably since taking office.  This certainly was not always the case.  Director Berry’s predecessors routinely ruled against individuals in Selective Service cases, even in situations where it was abundantly clear that there was not a knowing and willful failure to register.

If the upcoming Presidential election brings about a change in the administration, a new Director will undoubtedly be nominated to replace Director Berry.  If this occurs, then there is a fair chance that OPM’s philosophy with regard to these cases may well change, for the worse.  The take away from this is that if you have an issue with your Selective Service registration status, it may be advisable to address it sooner rather than later.

Marc Smith