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.

VA and FAA Applicants Beware!

On this blog, I have written extensively about the Selective Service cases successfully handled before the U.S. Office of Personnel Management (OPM). During the course of the past four years or so, we have handled over 50 cases involving clients who had failed to register with Selective Service.  In all of these cases, OPM determined that our clients had not knowingly and willfully evaded their obligation to register.

Unfortunately, this long string of success was broken with two cases — one involving a Veterans Affairs (VA) physician and one involving an applicant for a position with the Federal Aviation Association (FAA).   The problem lay not with the facts — both cases involved individuals who simply had not learned about the existence of the Selective Service registration obligation prior to attaining 26 years of age.  As in every Selective Service case we have handled, we prepared documentation establishing — beyond a preponderance of the evidence — that our clients had not knowingly or willfully avoided registering with the Selective Service.

The problem was that OPM was not the Agency that made the decision regarding our clients’ Selective Service registration status.  As set forth in 5 CFR 300.705, OPM is the Agency that makes this decision in the vast majority of cases.   Unfortunately, these two cases were exceptions to this general rule.

In the case involving the VA physician, the physician was not a Title 5 employee and was designated as a Title 38 employee.  The consequence of this designation was that the VA — not OPM — would retain the case and make the determination whether the failure to register with the Selective Service was knowing and willful.  Unfortunately, disregarding the facts and clear, on-point precedent from decisions issued by OPM, the VA held that our client’s failure to register was knowing and willful, thus creating at least a temporary bar to federal employment.  Our client’s only recourse would be to apply for a Title 5 position outside of the VA and have OPM re-examine the circumstances underlying his failure to register.  The takeaway from this case is that the VA — a veteran’s organization — applied an unfair and perhaps insurmountable standard when considering this case.

The case involving the FAA employee involved another strange twist.  This case presented a very typical fact pattern involving an individual who had not learned about the existence of the Selective Service registration requirement while eligible to register.  There was abundant evidence supporting the fact that our client did not knowingly or willfully avoid his obligation to register.  In response to our request that the Agency forward this matter to OPM for consideration, the FAA claimed, in pursuant to Section 347 of the 1996 DOT Appropriations Act, the FAA is exempt from most of the requirements set forth in Title 5 of the U.S. Code, as well as 5 CFR 300.705 (the regulation requiring federal agencies to forward Selective Service cases to OPM for adjudication).  We are researching whether the legislative history of the 1996 DOT Appropriations Act is consistent with the FAA’s position in this case — and we believe it is not.  Nonetheless, the FAA refused to forward the case to OPM for adjudication, refused to consider the overwhelming evidence that our client had not knowingly or willfully avoided registering and summarily made an adverse determination.  As with our VA client, this unfair determination will have the effect of barring our client from federal service until he applies for another position outside of the FAA that is subject to Title 5.

Marc Smith