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 Continues to Make Irrational Selective Service Decisions

As previously written in this blog, if you are male and have not registered with the Selective Service and are considering a Title 38 position with the US Department of Veterans Affairs — don’t bother. Despite its critical shortage of medical professionals, the VA continues to turn away well-qualified medical professionals who did not register with the Selective Service System — even when it is proven by clear and convincing evidence (which is higher than the preponderance of evidence standard the VA purports to apply) that the failure to register was not knowing and willful.

In a recent case, we represented a young physician who applied for and was accepted for a residency at a program which included a rotation at a VA hospital in Wisconsin. Unfortunately, after forgoing other opportunities and moving to Wisconsin with his spouse (also a resident), the VA discovered that our client was not registered with the Selective Service and informed him that he was not eligible to participate in their program because of his registration status. We timely appealed that decision to the VA (OPM does not hear cases involving Title 38 employees). During this process, we assembled a virtual mountain of sworn declarations from family members, school administration officials and others proving that our client simply never learned about the registration requirement while eligible to register. We also had written support from the VA hospital and from veterans organizations. Our client even submitted to and passed a lie detector test conclusively establishing that he never learned of his obligation to register.

Despite all of this evidence, the VA summarily rejected our client’s explanation. In a nutshell, the VA based its decision on the premise that every male is “assumed to know” of the obligation to register — a baseless and unreasonable rationale that flies in the face of well-known statistical facts, basic logic and ignores the fact that OPM routinely makes findings on identical facts that the failure to register was not knowing and willful. We were advised by a VA official involved in the process that VA’s position with regard to Selective Service cases originates within the Office of General Counsel. The VA needs to wake up and take heed of the fact that its irrational decisions are actually damaging the mission of the Agency and hurting veterans.

In the end, the VA’s arbitrary actions have caused it to lose yet another doctor to care for veterans who desperately need medical care.

Marc Smith