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.

Favorable Second-Level Determination Obtained for Federal Employee

By letter dated August 7, 2012, the U.S. Office of Personnel Management (OPM) issued a determination on appeal that one of our clients — a U.S. Department of Army employed based in Oklahoma — had not knowingly evaded his obligation to register with the Selective Service System.

This case involved a U.S. born citizen who had been employed by the Department of Army as a civilian since 2009.  Interestingly, our client had disclosed the fact that he was not properly registered when he completed his OF 306 during the application process, but was hired anyway.  In December 2010, OPM determined on a first-level review that the evidence submitted by our client failed to establish by a preponderance of the evidence that his failure to properly register was not the product of a knowing and willful act.

Following our engagement, the Army put our client on administrative leave pending his appeal to OPM.   We were able to convince the Agency to reinstate our client (as is appropriate) pending OPM’s review of the merits of our appeal in which we were able to prove that our client’s father —  himself an honorably discharged U.S. Army veteran — submitted a registration form for his son soon after he turned 18.  OPM determined that we had submitted sufficient evidence to establish that the fact that Selective Service had no record of our client’s registration was not the product of a knowing and willful act on the part of our client.

This case is another example of how OPM is paying close attention to the merits of these cases and, when supported by proper evidence, routinely issues determinations that absolve individuals of intentionally avoiding their obligation to register with the Selective Service.

As a side note, OPM issued its ruling on this appeal in about five weeks — which, when compared to typical appeals, is extraordinarily fast.   Further, as I have mentioned in the past, it is entirely possible that a change in the administration after November’s elections could bring about a change in leadership and philosophy at OPM regarding Selective Service cases.  Individuals who have failed to timely register with the Selective Service System should therefore strongly consider putting their cases before OPM now in the event the administration does change in the near future.

Marc Smith