2. Veterans' Preference in Appointments
3. Veterans' Preference in Reduction in Force
4. Miscellaneous Provisions Pertaining to Veterans
5. Service Credit
6. Special Appointing Authorities for Veterans
7. Restoration after Uniformed Service
8. Special Redress and Appeals
VetGuide explains the special rights and privileges that veterans enjoy in Federal civil service employment. The guide conveniently summarizes in one place material from many laws and regulations that affect the employment of veterans. The guide will help Federal personnel specialists ensure that veterans receive the advantages they have earned.
The Office of Personnel Management (OPM) administers entitlement to veterans' preference in employment under title 5, United States Code, and oversees other statutory employment requirements in titles 5 and 38. (Title 38 also governs veterans' entitlement to benefits administered by the Department of Veterans Affairs (VA).)
Both title 5 and title 38 use many of the same terms, but in different ways. For example, service during a "war" is used to determine entitlement to veterans' preference and service credit under title 5. OPM has always interpreted this to mean a war declared by Congress. But title 38 defines "period of war" to include many non-declared wars, including Korea, Vietnam, and the Persian Gulf. Such conflicts entitle a veteran to VA benefits under title 38, but not necessarily to preference or service credit under title 5. Thus it is critically important to use the correct definitions in determining eligibility for specific rights and benefits in employment.
For additional information, including the complete text of the laws and regulations on veterans' rights, consult the references cited .
2. Veterans' Preference in Appointments
Why Preference is Given
Since the time of the Civil War, veterans of the Armed Forces have been given some degree of preference in appointments to Federal jobs. Recognizing their sacrifice, Congress enacted laws to prevent veterans seeking Federal employment from being penalized for their time in military service. Veterans' preference recognizes the economic loss suffered by citizens who have served their country in uniform, restores veterans to a favorable competitive position for Government employment, and acknowledges the larger obligation owed to disabled veterans.
Veterans' preference in its present form comes from the Veterans' Preference
Act of 1944, as amended, and is now codified in various provisions of title
5, United States Code. By law, veterans who are disabled or who served
on active duty in the Armed Forces during certain specified time periods
or in military campaigns are entitled to preference over others in hiring
from competitive lists of eligibles and also in retention during reductions
In addition to receiving preference in competitive appointments, veterans may be considered for special noncompetitive appointments for which only they are eligible. See Chapter 4.
When Preference Applies
Preference in hiring applies to permanent and temporary positions in
the competitive and excepted services of the executive branch. Preference
does not apply to positions in the Senior Executive Service or to executive
branch positions for which Senate confirmation is required. The legislative
and judicial branches of the Federal Government also are exempt from the
Veterans' Preference Act unless the positions are in the competitive
service (Government Printing Office, for example) or have been made subject
to the Act by another law.
Preference applies in hiring from civil service examinations conducted by the Office of Personnel Management (OPM) and agencies under delegated examining authority, for most excepted service jobs including Veterans' Readjustment Appointments (VRA), and when agencies make temporary, term, and overseas limited appointments. Veterans' preference does not apply to promotion, reassignment, change to lower grade, transfer or reinstatement.
Veterans' preference does not require an agency to use any particular appointment process. Agencies have broad authority under law to hire from any appropriate source of eligibles including special appointing authorities. An agency may consider candidates already in the civil service from an agency-developed merit promotion list or it may reassign a current employee, transfer an employee from another agency, or reinstate a former Federal employee. In addition, agencies are required to give priority to displaced employees before using civil service examinations and similar hiring methods.
Civil service examination: Title 5 United States Code (U.S.C.) 3304-3330, title 5 Code of Federal Regulations (CFR) Part 332, OPM Delegation Agreements with individual agencies, OPM Examining Handbook, OPM Delegated Examining Operations Handbook; Excepted service appointments, including VRA's: 5 U.S.C. 3320; 5 CFR Part 302; Temporary and term employment: 5 CFR Parts 316 and 333; Overseas limited employment: 5 CFR Part 301; Career Transition Program: 5 CFR Part 330, Subparts F and G.
Types of Preference
To receive preference, a veteran must have been separated from active
duty in the Armed Forces with an honorable or general discharge. As
defined in 5 U.S.C. 2101(2), "Armed Forces" means the Army, Navy,
Air Force, Marine Corps and Coast Guard. The veteran must also be eligible
under one of the preference categories below (also shown on the Standard
Form (SF) 50, Notification of Personnel Action).
Military retirees at the rank of major, lieutenant commander, or higher are not eligible for preference in appointment unless they are disabled veterans.
Active duty for training or inactive duty by National Guard or Reserve soldiers does not qualify as "active duty" for preference.
For purposes of this chapter and 5 U.S.C. 2108, "war" means only those armed conflicts declared by Congress as war and includes World War II, which covers the period from December 7, 1941, to April 28, 1952.
When applying for Federal jobs, eligible veterans should claim preference on their application or resume. Applicants claiming 10-point preference must complete Standard Form (SF) 15, Application for 10-Point Veteran Preference, and submit the requested documentation.
The following preference categories and points are based on 5 U.S.C. 2108 and 3309 as modified by a length of service requirement in 38 U.S.C. 5303A(d). (The letters following each category, e.g., "TP," are a shorthand reference used by OPM in competitive examinations.)
Five points are added to the passing examination score or rating of a veteran who served:
A campaign medal holder who originally enlisted after September 7, 1980, (or began active duty on or after October 14, 1982, and has not previously completed 24 months of continuous active duty) must have served continuously for 24 months or the full period called or ordered to active duty. The 24-month service requirement does not apply to 10-point preference eligibles separated for disability incurred or aggravated in the line of duty, or to veterans separated for hardship or other reasons under 10 U.S.C. 1171 or 1173.
10-Point Compensable Disability Preference (CP)
Ten points are added to the passing examination score or rating of:
10-Point 30 Percent Compensable Disability Preference (CPS)
Ten points are added to the passing examination score or rating
of a veteran who served at any time and who has a compensable service-connected
disability rating of 30 percent or more.
10-Point Disability Preference (XP)
Ten points are added to the passing examination score or rating of:
Ten points are added to the passing examination score or rating of the widow or widower of a veteran who was not divorced from the veteran, has not remarried, or the remarriage was annulled, and the veteran either:
Mother of a deceased veteran
Ten points are added to the passing examination score or rating of the mother of a veteran who died under honorable conditions while on active duty during a war or during the period April 28, 1952, through July 1, 1955, or in a campaign or expedition for which a campaign medal has been authorized;
she is or was married to the father of the veteran;
Ten points are added to the passing examination score or rating of a mother of a living disabled veteran if the veteran was separated with an honorable or general discharge from active duty performed at any time and is permanently and totally disabled from a service-connected injury or illness; and the mother:
Note: Preference is not given to widows or mothers of veterans who
qualify for preference under 5 U.S.C. 2108 (1) (B) or (2). Thus, the widow
or mother of a disabled veteran who served after 1955, but did not serve
in a war, campaign, or expedition, would not be entitled to preference.
5 U.S.C. 2108 and 3309; 38 U.S.C. 5303A
Adjudication of Veterans' Preference Claims
Agencies are responsible for adjudicating all preference claims except
claims for preference based on common-law marriage, which should be sent
to the Office of Personnel Management (OPM), Office of the General Counsel,
Washington, DC 20415.
Detailed instructions on adjudicating veterans' preference claims are contained in Chapter 7 of The Guide to Processing Personnel Actions, an OPM operating manual. That guide describes evidence needed as proof of service, honorable discharge, campaign service, the existence of a service-connected disability, and proof required of a spouse, widow, widower, or mother of a veteran.
5 U.S.C. 3309, 3313 and 5 CFR 332.401, 337.101
Crediting Experience of Preference Eligibles
In evaluating experience, an examining office must credit a preference
eligible's Armed Forces service as an extension of the work performed immediately
prior to the service, or on the basis of the actual duties performed in
the service, or as a combination of both, whichever would most benefit
the preference eligible.
The examining office must also give all applicants credit for job-related experience, paid and unpaid, including experience in religious, civic, welfare, service and organizational activities.
5 U.S.C. 3311, 5 CFR 337.101
In determining qualifications, agencies must waive a medical standard
or physical requirement when there is sufficient evidence that the employee
or applicant, with or without reasonable accommodation, can perform the
essential duties of the position without endangering the health and safety
of the individual or others.
Special provisions apply to the proposed disqualification of a preference eligible with a 30 percent or more compensable disability. See Disqualification of 30 Percent or more Disabled Veterans below.
5 U.S.C. 3312, 5 CFR Part 339.204
in Competitive Examinations
Preference eligibles who are qualified for a position (achieve a score of 70 to 100) have 5 or 10 extra points added to their numerical ratings depending on which of the previously described categories of preference they meet. This means the highest possible rating is 110 (a disabled veteran who earns a score of 100 has 10 extra points added).
Names of eligible applicants are placed on lists, or registers of eligibles, in the order of their ratings. Registers are established as standing registers from which selections will be made over a period of time and for case examining in which a register is used to fill a single position or a group of positions and is closed after the needed selection(s) is made.
For scientific and professional positions in grade General Schedule (GS) - 9 or higher, names of all qualified applicants are listed on a register in order of ratings, augmented by veteran preference, if any.
For all other positions, the names of 10-point preference eligibles who have a compensable, service-connected disability of 10 percent or more (CP and CPS) are listed at the top of the register in the order of their ratings ahead of the names of all other eligibles. The names of other 10-point preference eligibles, 5-point preference eligibles, and other applicants are listed in order of their numerical ratings.
A preference eligible is listed ahead of a nonpreference eligible having
the same final rating.
5 U.S.C. 3309, 3313 and 5 CFR 332.401 and 337.101
Filling a Position From a Competitive Examination
of Preference Eligibles
A preference eligible can be eliminated from consideration only if the examining office sustains the agency's objection to the preference eligible for adequate reason. These reasons, which must be recorded, include medical disqualification under 5 CFR Part 339, suitability disqualification under 5 CFR Part 731, or other reasons considered by the Office of Personnel Management (OPM) or an agency under delegated examining authority to be disqualifying.
OPM must approve the sufficiency of an agency reason to medically
disqualify or pass over a preference eligible on a certificate based
on medical reasons to select a nonpreference eligible. Special provisions
apply to the proposed disqualification or pass over for any reason of a
preference eligible with a 30 percent or more compensable disability. See
Disqualification of 30 Percent or more Disabled Veterans below.
Agencies must refer suitability disqualifications to OPM for final approval, unless OPM has delegated authority to the agency in accordance with 5 CFR Part 731.
The preference eligible (or his or her representative) is entitled on request to a copy of the agency's reasons for the proposed pass over and the examining office's response.
An appointing official is not required to consider a person who has three times been passed over with appropriate approval or who has already been considered for three separate appointments from the same or different certificates for the same position. But in each of these considerations, the person must have been within reach under the rule of three and a selection must have been made from that group of three. Further, the preference eligible is entitled to advance notice of discontinuance of certification.
5 U.S.C. 3317, 3318 and 5 CFR 332.402, 332.404, 332.405, 332.406, and Parts 339 and 731
Disqualification of 30 Percent or More Disabled Veterans
The following special provisions apply to disabled veterans with a compensable service-connected disability of 30 percent or more:
OPM is prohibited by law from delegating this function to any agency.
5 U.S.C. 3312, 3318
Preference Eligibles and the Nepotism Provision
A public official may not advocate a relative for appointment, employment,
promotion, or advancement, or appoint, employ, promote, or advance a relative,
to a position in an agency in which the public official is employed or
over which he or she exercises jurisdiction or control.
This restriction does not, however, prohibit the appointment of a preference eligible whose name is within reach for selection on an appropriate certificate of eligibles when an alternative selection cannot be made from the certificate without passing over the preference eligible and selecting an individual who is not a preference eligible.
5 U.S.C. 3110(e) and 5 CFR Part 310, Subpart A
Filing Late Applications
A veteran may file a late application under the following circumstances
by contacting the employing agency. Agencies are responsible for accepting,
retaining, and considering their applications as required by law and regulation
regardless of whether the agency uses case examining or maintains a continuing
register of eligibles.
Applications from 10-point preference eligibles must be accepted, as described below, for future vacancies that may arise after a case examining register or continuing register is closed. Agencies must accept applications from other individuals who are eligible to file on a delayed basis only as long as a case examining register exists.
Temporary Appointment Outside of Competitive Registers
In making a temporary appointment not to exceed 1 year, agencies may
use competitive registers as discussed above or an alternative ranking
process called "outside the register." (Agencies may also
make noncompetitive temporary appointments under the limited situations
in 5 CFR 316.402(b). These noncompetitive appointments may be made without
regard to competitive examining or outside-the-register procedures but
agencies must notify the Office of Personnel Management (OPM) of the vacancy
when the appointment will be for 90 days or more and the agency
will consider applicants from outside the agency.)
Agencies may use "outside-the-register" procedures, described in 5 CFR Part 333, to make a temporary appointment even if they have competitive examining authority or an existing register for permanent appointment to a similar position. Veterans' preference is applied as described below. Employees selected do not acquire status or noncompetitive eligibility for a career-conditional appointment.
Here is a summary of the Part 333 outside-the-register process for making temporary appointments to competitive service positions. Agencies:
A nonpreference eligible may not be selected when a preference eligible is available, except when objections to preference eligibles are sustained as discussed above under Filling a Position From a Competitive Examination, or an appointing authority has three times with appropriate approval passed over the eligible for the same position and selected another eligible, or the appointing authority has considered the preference eligible, when within reach, for three separate appointments for positions at the same grade level and for the same line of work and selected another eligible.
5 CFR Part 316, Subpart D; 330.102; and Part 333
Excepted Service Employment
The Veterans' Preference Act requires an appointing authority in the
executive branch to select from among qualified applicants for appointment
to excepted service vacancies in the same manner and under the same conditions
required for the competitive service by 5 U.S.C. 3308-3318. Appointments
made with the advice and consent of the Senate are exempt.
Office of Personnel Management regulations governing the application of veterans' preference in excepted appointments are in 5 CFR Part 302.
5 U.S.C. 3320 and 5 CFR Part 302
Administration and Enforcement of Veterans' Preference
Office of Personnel Management (OPM) is charged with prescribing and
enforcing regulations for the administration of veterans' preference in
the competitive service in executive agencies. OPM is charged with prescribing
regulations for the administration of veterans' preference in the excepted
service in executive agencies. Agencies themselves are generally responsible
5 U.S.C. 1302
3. Veterans' Preference in Reduction in Force
Veterans have advantages over nonveterans in a reduction in force (RIF). Also, special provisions apply in determining whether retired military members receive preference in RIF and whether their military service is counted. This chapter deals with RIF in the competitive service; some, but not all, of the provisions apply in the excepted service.
Eligibility for Veterans' Preference in RIF
Determinations of veterans' preference eligibility are made in accordance
with the information under Preference in Appointments in Chapter
2, except that a retired member of a uniformed service must meet
an additional condition to be considered a preference eligible for RIF
purposes. This condition differs depending on the rank at which the individual
retired from the uniformed service. Uniformed service as defined in 5 United
States Code (U.S.C.) 2101 means the Armed Forces, the commissioned corps
of the Public Health Service, and the commissioned corps of the National
Oceanic and Atmospheric Administration.
Retirees below the rank of major (or equivalent) get preference if:
RIF Retention Standing
Employees are ranked on retention registers for competitive levels (groups of similar jobs) based on four factors: tenure, veterans' preference, length of service, and performance.
First they are placed in Tenure Group I, II, or III, depending on their type of appointment. Within each group, they are placed in a subgroup based on their veteran status:
Employees are not subject to a reduction in force while they are serving
in the uniformed services. After return from active duty, they are protected
from RIF action. If they served for more than 180 days, they may not be
separated by RIF for 1 year after their return. If they served for more
than 30 but less than 181 days, they may not be separated by RIF for 6
5 U.S.C. 3502; 5 CFR 351.404(a), 351.606(a), and Subpart E
Assignment Rights (Bump and Retreat)
When an employee in Tenure Group I or II with a minimally successful
performance rating is released from a competitive level within the competitive
area where the RIF takes place, he or she is entitled under certain circumstances
to displace another employee with lower retention standing. The superior
standing of preference eligibles gives then an advantage in being retained
over other employees. These displacement actions apply to the competitive
service although an agency may, at its discretion, adopt similar provisions
for its excepted employees.
An employee may bump in the same competitive area to a position no more than three grades (or grade intervals) lower than the position from which the employee is released that is held by an employee in a lower group or subgroup.
An employee may retreat in the same competitive area to a position held by another employee with lower retention standing in the same tenure group and subgroup that is essentially identical to one previously held by the retreating employee and is no more than three grades (or grade intervals) lower than the position from which the employee is released.
A preference eligible with a compensable service-connected disability
of 30 percent or more may retreat to a position up to five grades
(or grade intervals) lower.
An employee with an unacceptable performance rating has no right to bump or retreat.
An employee with a performance rating of minimally successful may retreat only to positions held by an employee with the same or lower rating.
In reviewing the qualifications of a preference eligible to determine assignment rights in a RIF, the agency must waive requirements as described under Physical Qualifications in Chapter 2. If the veteran involved has a 30 percent or more compensable disability, special procedures apply as described under Disqualification of 30 Percent or more Disabled Veterans in Chapter 2. OPM must approve the sufficiency of the agency's reasons to medically disqualify a 30 percent or more compensably disabled veteran for assignment to another position in a RIF.
5 U.S.C. 3502, 3504; 5 CFR Part 351, Subpart G, and Part 339
Appeal of RIF Actions
An employee who has been furloughed, separated, or demoted by RIF action
has the right to appeal the action to the Merit Systems Protection Board
except when a negotiated procedure must be used. Assignment to a position
at the employee's same grade or representative rate is not appealable.
Appeals must be filed during the period beginning on the day after the
effective date of the RIF action and ending 30 days after the effective
date. Time limits for filing a grievance under a negotiated procedure are
contained in the negotiated agreement.
5 CFR 351.901, Part 1201
Reemployment Priority for Separated Employees
After a RIF, separated competitive service employees in tenure groups
I and II are listed on the agency's Reemployment Priority List. The agency
generally may not hire from most outside sources when qualified employees
are on the List. In hiring from the List, preference eligibles receive
preference over other employees. Excepted service employees separated by
RIF receive similar priority in excepted employment.
5 U.S.C. 3315; 5 CFR Part 330, Subpart B, and Part 302
4. Miscellaneous Provisions Pertaining to Veterans
Jobs Restricted to Preference Eligibles
Appointment through competitive examination and "outside the register"
procedures for positions of guards, elevator operators, messengers, and
custodians are restricted to preference eligibles when they are available.
Title 5 United States Code (U.S.C.) 3310; Title 5 Code of Federal Regulations (CFR) Part 330, Subpart D
Preference eligibles, including those with derived preference, who served
under career or career-conditional appointment for any period of time have
lifetime reinstatement eligibility to any competitive service position
for which qualified. They have this eligibility regardless of whether their
Armed Forces service occurred before or after career or career-conditional
appointment. Competition under the agency's merit promotion plan is required
if the position is at a higher grade level or has more promotion potential
than a position previously held.
5 U.S.C. 3316; 5 CFR Part 315, Subpart D
180-Day Restriction on Department Of Defense (DOD) Employment of Military Retirees
A retired member of the Armed Forces may not be appointed to a civilian position in DOD (including a nonappropriated fund position) within 180 days after retirement unless:
Reduction in Military Retired Pay
Retired regular officers, including warrant officers, of all uniformed services (including the Armed Forces and the commissioned corps of the Public Health Service and the National Oceanic and Atmospheric Administration) under any work schedule must take a reduction in military retired or retainer pay when employed in a permanent or temporary Federal civilian job in the executive, legislative or judicial branch, including the U.S. Postal Service and nonappropriated fund instrumentalities (NAFI). Retired Reserve officers and enlisted personnel are not subject to a reduction unless the sum of retired pay and civilian basic pay (excluding locality pay) exceeds the pay cap. The pay cap is the basic pay of level V of the Executive Schedule.
There is no reduction:
Affirmative Action for Certain Veterans Under Title 38
Section 4214 of title 38, U.S.C., was enacted as part of the Veterans'
Readjustment Appointment Act of 1974. This act placed into law the provisions
of the executive order that authorized the noncompetitive appointment of
Vietnam era veterans under Veterans' Readjustment Appointment (VRA).
The law also requires a separate affirmative action program for disabled veterans as defined in 38 U.S.C. 4214. The program is part of agency efforts to hire, place, and advance persons with disabilities under the Rehabilitation Act of 1973 [29 U.S.C. 791(b)]. Title 38 does not provide any preference for veterans; preference is provided only under title 5, U.S.C. Rather, section 4214 calls upon agencies to:
38 U.S.C. 4214; 5 CFR Part 720, Subpart C
5. Service Credit
Service Credit for Leave Rate Accrual and Retirement
Credit for uniformed service is substantially limited for retired members.
In enacting the Dual Compensation Act in 1964, Congress adopted a compromise
between the view that retired members should receive preference and full
credit for their service and the view that there should be no advantage
for retired members.
For leave accrual, retirees receive credit only for:
5 U.S.C. 6303, 8332 and 8411(c); and the CSRS and FERS Handbook
Creditable Service for RIF--Not Retired from Uniformed Service
Total time in active service in the Armed Forces, including active duty
and active duty for training as defined in 37 U.S.C. 101, is credited for
reduction in force purposes for those who are not retired members, regardless
of the type of discharge.
If civilian service is interrupted by uniformed service, special rules apply (see Chapter 5 on "Restoration After Uniformed Service").
Creditable Service for RIF--Retired from Uniformed Service
Credit for uniformed service is substantially limited for retired members. In enacting the Dual Compensation Act in 1964, Congress adopted a compromise between the view that retired members should receive preference and full credit for their service and the view that there should be no advantage for retired members. Thus, retirees receive credit only as follows:
A uniformed services retiree who is a preference eligible for RIF purposes receives service credit for all active duty. Other retirees receive service credit only for active duty during a war as defined in Chapter 2, or service in a campaign or expedition for which a campaign badge has been authorized. See Eligibility for Veterans' Preference in RIF in this chapter to determine if a retiree is a preference eligible for RIF purposes.
5 U.S.C. 3501, 3502; 5 CFR 351.501(d), 351.503
Creditable Service for Severance Pay
In computing the amount of severance pay a separated employee receives,
credit is given only for military service performed by an employee who
returns to civilian service by exercising a restoration right under law,
executive order, or regulation. Military service performed prior to an
individual's Federal civilian service is not creditable for severance pay
5 U.S.C. 5595; 5 CFR 550.708
6. Special Appointing Authorities for Veterans
Veterans' Readjustment Appointment (VRA) Authority
The VRA is a special authority by which agencies can, if they wish,
appoint eligible veterans without competition to positions at any grade
level through General Schedule (GS) 11 or equivalent. (The promotion potential
of the position is not a factor.) VRA appointees are hired under excepted
appointments to positions that are otherwise in the competitive service.
If the agency has more than one VRA candidate for the same job and one (or more) is a preference eligible, the agency must apply the veterans' preference procedures prescribed in 5 Code of Federal Regulations (CFR) Part 302 in making VRA appointments. A veteran who is eligible for a VRA appointment is not automatically eligible for veterans' preference.
After two years of satisfactory service, the agency must convert the veteran to career or career-conditional appointment, as appropriate.
The 180-day requirement does not apply to veterans who were discharged or released from active duty because of a service-connected disability, or members of the Reserve or National Guard ordered to active duty under 10 United States Code (U.S.C.) 12301(a), (d), or (g), 12302, or 12304 for service during a period of war as defined in 38 U.S.C. 101(11) or in a campaign or expedition for which a campaign badge is authorized. "Period of war" includes World War II, the Korean conflict, Vietnam era, the Persian Gulf War, or the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress;
38 U.S.C. 4214; 5 CFR Part 307; 5 CFR 752.401 (c)(3)
30 Percent or More Disabled Veterans
An agency may give a noncompetitive temporary appointment of more than 60 days or a term appointment to any veteran:
5 U.S.C. 3112; 5 CFR 316.302, 316.402 and 315.707
Disabled Veterans Enrolled in a VA Training Program
Disabled veterans eligible for training under the VA vocational rehabilitation
program may enroll for training or work experience at an agency under the
terms of an agreement between the agency and VA. While enrolled in the
VA program, the veteran is not a Federal employee for most purposes
but is a beneficiary of the VA.
Training is tailored to the individual's needs and goals, so there is no set length. If the training is intended to prepare the individual for eventual appointment in the agency rather than just provide work experience, the agency must ensure that the training will enable the veteran to meet the qualification requirements for the position.
Upon successful completion, the host agency and VA give the veteran a Certificate of Training showing the occupational series and grade level of the position for which trained. The Certificate of Training allows any agency to appoint the veteran noncompetitively under a status quo appointment which may be converted to career or career-conditional at any time.
38 U.S.C. chapter 31; 5 CFR 3.1 and 315.604
7. Restoration after Uniformed Service
Any Federal employee, permanent or temporary, in an executive agency other than an intelligence agency, but including the U.S. Postal Service, Postal Rate Commission, and nonappropriated fund activity, who performs duty with a uniformed service (including active duty, active duty for training, or inactive duty training), whether voluntary or involuntary, is entitled to be restored to the position he or she would have attained had the employee not entered the uniformed service, provided the employee:
While on duty with the uniformed services, the agency carries the employee
on leave without pay unless the employee requests separation. A separation
under these circumstances does not affect restoration rights.
Uniformed service as defined in 38 United States Code (U.S.C.) 4303(16) means the Armed Forces; the Army and Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty; the commissioned corps of the Public Health Service; and any other category of persons designated by the President in time of war or emergency.
Title 38 U.S.C. chapter 43; Title 5 Code of Federal Regulations (CFR) Part 353
Advising Employees / Resolving Employment Conflicts
Agencies must tell employees who enter the service about their entitlements,
obligations, benefits, and appeal rights.
Employees in a Reserve component have an obligation both to the military and to their civilian employers. Because of military downsizing, the Reserves are being used increasingly to complement the active duty component on operational missions that go beyond week-end drills and summer training. As a result, some conflict may be unavoidable and good-faith efforts by the employee and the agency are needed to resolve any differences.
Agencies may not question the timing, frequency, duration, and nature of the uniformed service, but employees are obligated to try to minimize the agency's burden. For example, Department of Defense (DOD) directives provide that it is DOD policy for Reserve component members to give their employer as much advance written notice as practicable of any pending military duty.
When there is a conflict between the Reserve duty and the legitimate needs of the agency, the agency may contact appropriate military authorities (typically, the unit commander) to express concern or to determine if the military service could be rescheduled or performed by another member. If military authorities determine that the service is necessary, the agency is required to permit the employee to go.
Employees who served in the uniformed services:
Employees who fail to meet these time limits are subject to disciplinary
Agencies must reemploy as soon as practicable, but no later than 30 days after receiving the application. Agencies have the right to ask for documentation showing the length and character of the employee's service and the timeliness of the application.
Positions to Which Restored
Upon restoration, employees are generally treated as though they had
never left. This means that time spent in the uniformed services counts
for seniority, within-grade increases, completion of probation, career
tenure, retirement, and leave rate accrual. (Employees do not earn sick
or annual leave while off the rolls or in a nonpay status.)
To receive civil service retirement credit for military service, a deposit to the retirement fund is usually required to cover the period of military service. Only active, honorable military service is creditable for retirement purposes. If the employee is under the Civil Service Retirement System (CSRS), a deposit of 7 percent of military basic pay (plus interest under certain conditions) is required. The deposit is 3 percent if the employee is under the Federal Employees Retirement System (FERS). However, these amounts may be different if:
If the employing agency is unable to reemploy an individual returning from duty with a uniformed service, OPM will order placement in another agency when:
Employees are not subject to a reduction in force while they
are serving in the uniformed services. If they served for more than 180
days, they may not be separated, except for cause, for 1 year after their
return. If they served for more than 30 but less than 181 days, they may
not be separated, except for cause, for 6 months. (Reduction in
force is not considered "for cause" under OPM's regulations.)
The law expressly prohibits any kind of discrimination or act of reprisal against an applicant or employee because of his or her application, membership or service in the uniformed services.
Paid Military Leave
Each fiscal year, employees under permanent appointment are entitled
to 15 calendar days of military leave, with pay, to perform active duty
as a member of a Reserve component. Part-time employees are entitled to
military leave pro-rated according to the tour of duty, e.g., an employee
who works 20 hours a week earns 7 days of military leave.
Employees may carry over 15 days of unused military leave into a new fiscal year. Therefore, potentially they may have a total of 30 days to use in any one fiscal year. This means that Reservists whose military duty spans two fiscal years may use up to 45 days of military leave at one time. Nonworkdays count against the 15 days of military leave allowed during the year except when the non-workdays occur at the beginning or end of the military leave period.
Reservists may not use annual leave or leave without pay interchangeably with military leave, on a selective basis, to avoid being charged military leave during weekends and holidays. Also, except for Postal Service employees, Reservists may not use military leave to cover drill periods since monthly drills are considered inactive duty training and paid military leave is intended only for periods of active duty. They may, however, use annual leave or leave without pay.
The Comptroller General has held that generally an employee must be in a pay status either immediately before or after taking military leave. The test for determining entitlement to military leave is whether, but for the active duty, the employee would have been in a civilian pay status.
Upon request, an employee performing duty with the uniformed services is entitled to use either accrued annual leave or military leave for such service. However, military leave cannot be used for inactive duty, e.g., drills.
5 U.S.C. 6323; 11 Comp. Gen. 469; 29 Comp. Gen. 269; 32 Comp. Gen. 204; 17 Comp. Gen. 174; and 37 Comp. Gen. 608
Life and Health Insurance
The life insurance of an employee who takes leave without pay to enter
the uniformed services continues for up to 12 months. If the employee separates,
life insurance continues for up to 12 months, or 90 days after uniformed
service ends, whichever is sooner. There is no cost to the employee for
this extension of coverage.
Employees who enter the uniformed services may elect to have their health insurance coverage continue for up to 12 months, and the employee continues to pay his or her share of the premium. Employees who remain in the uniformed services beyond 12 months may continue their health insurance for an additional 6 months by paying 102 percent of the premium, i.e., the employee's share, the Government's share, and a 2 percent administrative fee.
5 CFR Parts 870.501 and 890.303, 304, 305, 502
Employees who perform uniformed service may make up any contributions
to the thrift savings plan they missed because of such service.
5 CFR Part 1620
8. Special Redress And Appeals
The redress and appeal rights available to veterans under law depend upon the nature of the action being appealed. These actions fall into the following categories:
Preference eligibles have protections against adverse actions, including demotion, suspension for more than 14 days, furlough for 30 days or less, and removal. These protections include advance notice, a reasonable time to respond, representation by an attorney or other person, a final written decision, and an appeal right to the Merit Systems Protection Board.
The law provides adverse action rights to preference eligibles of any rank who are:
Reduction in Force
Employees who believe that an agency has not complied with the law or
with the Office of Personnel Management's (OPM) regulations governing reduction
in force may appeal to the Merit Systems Protection Board as discussed
in Chapter 3.
5 CFR 351.901
Restoration after Uniformed Service
Applicants or employees who believe that an agency has not complied
with the law or with OPM regulations governing the restoration rights of
employees who perform duty with the uniformed services may file a complaint
with the Department of Labor's local Veterans' Employment and Training
Service office or appeal directly to the Merit Systems Protection Board.
38 U.S.C. chapter 43
Memorandum of Understanding between OPM and Department of Labor
By law, the Department of Labor's Veterans' Employment and Training
Service (VETS) is required to monitor the application of veterans' preference
in agencies and the posting of job vacancies with the State Employment
Service. When VETS finds that an agency has failed to carry out its responsibilities,
VETS reports the matter to OPM for corrective action.
OPM and VETS have entered into a Memorandum of Understanding (MOU) for applying these provisions. An eligible veteran may file a complaint with the local VETS office within 45 days of an action covered by the MOU.
The MOU covers the following actions:
The MOU does not cover:
It is a prohibited personnel practice for an officer or employee of
the Department of Defense or member of the Armed Forces having authority
to take, direct, recommend, or approve a personnel action to take such
actions, or fail to do so, if the action violates veterans' preference.
Coverage includes veterans' preference under title 5, United States Code,
and other laws. A person who believes a prohibited personnel practice has
occurred may file a complaint with the Office of Special Counsel.
Pub. L. 104-201, sec. 1615