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.

32-Year-Old Mystery Solved – Selective Service Admits Mistake

I recently had the pleasure to work with a 50-year-old client who worked as a consultant to the U.S. government, testifying as an expert witness in complex financial matters.  Although my client had worked as a consultant to the U.S. government for many years, one of his clients, the IRS, had discovered during a routine background investigation that the Selective Service had no record of his registration.  As such, my client was advised that he could no longer perform services on behalf of the IRS.

This, by the way, is an increasingly frequent practice of federal agencies.  Today, many agencies require contractors to complete some of the same paperwork that federal employees complete during the onboarding process, including the Declaration for Federal Employment — better known as the OF 306. The OF 306 inquires whether the applicant has registered with the Selective Service.  Regardless of how the applicant responds, the Agency will typically electronically verify whether the applicant has in fact registered with the Selective Service.  If the Agency determines that the applicant has not registered, the applicant will be deemed ineligible for federal service — as an employee or contractor.

In this case, my client had answered “no” on the OF 306 when asked whether he had registered. Unfortunately, my client misunderstood the question. He had, in fact, registered 32 prior — when he was 18 years of age — and had a very specific recollection of doing so.   However, the Selective Service System had no record of his registration.  As a result, my client was barred from performing further services for the IRS, and his entire consulting practice with the federal government was in jeopardy.

After finding me on the internet, my client immediately engaged my services to secure a determination that he had not willfully and knowingly evaded his Selective Service registration obligation.  While performing the standard fact gathering interview, I was certain that my client had in fact registered and suggested that he contact the Selective Service directly to determine if somehow a mistake had been made during the registration process.  This is fairly standard advice to new clients who claim that they did in fact register — and I have had many clients in this situation.  However, to date, none of these inquiries to Selective Service have been fruitful.

Remarkably, when my client called Selective Service, he was astounded to learn that indeed a mistake had been made and that the Selective Service had received his registration 32 years prior.  The Selective Service employee immediately corrected the error and my client was cleared to resume his consulting practice with the IRS.  A first.

Marc Smith