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.

OPM Issues Favorable Ruling During First-Level Review

When an individual petitions the U.S. Office of Personnel Management (OPM) for a determination whether that individual’s failure to register with the Selective Service was “knowing and willful,” there is typically a two-step process involved.  First, the individual requests the determination through his Agency, which in turn forwards the request and supporting materials to OPM for an initial determination.  In our experience, the initial determination invariably results in a finding of a knowing and willful violation, no matter what the circumstances.  Historically, it has been at the second-level review — conducted by OPM’s Director or designee —  where we have achieved universally positive determinations for our clients with Selective Service registration issues.

Very recently, OPM issued a favorable determination for one of our clients at the first level of review.  Our client, a native born U.S. citizen, failed to register with the Selective Service because, like many of our clients, he did not become aware of the registration requirement until well beyond the date at which he was still eligible to register (men must register prior to their 26th birthday).  Our client’s circumstances were fairly unique – he had a troubled childhood, dropped out of school at an early age, and lived a relatively transient existence until he found his unique niche in life — as a wildland firefighter for the U.S. Forest Service.

Departing from its past practices, OPM determined at the first level of review that our client’s failure to register was not knowing and willful, thereby securing his job and career with the U.S. Forest Service. Only time will tell whether this decision represents something more than a temporary shift in the way OPM has traditionally handled Selective Service determination cases.

Marc Smith