[Federal Register Volume 63, Number 15 (Friday, January 23, 1998)]
[Rules and Regulations]
[Pages 3465-3472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1583]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 104

[DoD Instruction 1205.12]
RIN 0790-AG52


Civilian Employment and Reemployment Rights of Applicants for, 
and Service Members and Former Service Members of the Uniformed 
Services

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This part identifies DoD guidelines for implementing policy, 
assigns responsibilities, and prescribes procedures for informing 
Service members of their reemployment protections. It updates, 
codifies, and strengthens the civilian employment rights and benefits 
of Service members and individuals who apply for uniformed service, and 
specifies the

[[Page 3466]]

obligations of Service members and applicants for uniformed service.

DATES: This part is effective February 1, 1998. Comments must be 
received no later than March 24, 1998.

FOR FURTHER INFORMATION CONTACT:
Colonel Rowan W. Bronson, OASD/RA (M&P), (703) 693-7490.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that 32 CFR part 104 does not pertain to a 
military or foreign affairs function of the United States. It is not a 
significant regulatory action. This final rule does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been determined that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it is related to a 
military or foreign affairs function of the United States. It would 
not, if promulgated, have a significant economic impact on a 
substantial number of small entities. The law provides employment and 
reemployment protections for Active and Reserve Component members, as 
well as individuals who apply to be members of the Uniformed Services.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 
35)

    It has been determined that this part does not impose any reporting 
or recordkeeping requirements on the public under the Paperwork 
Reduction Act of 1995.

List of Subjects in 32 CFR Part 104

    Government employees, Military personnel.

    Accordingly, Title 32, Chapter 1, 32 CFR part 104, is added to read 
as follows:

PART 104--CIVILIAN EMPLOYMENT AND REEMPLOYMENT RIGHTS OF APPLICANTS 
FOR, AND SERVICE MEMBERS AND FORMER SERVICE MEMBERS OF THE 
UNIFORMED SERVICES

Sec.
104.1  Purpose.
104.2  Applicability.
104.3  Definitions.
104.4  Policy.
104.5  Responsibilities.
104.6  Procedures.
Appendix A to part 104--Civilian Employment And Reemployment Rights, 
Benefits And Obligations For Applicants For, And Service Members And 
Former Service Members Of The Uniformed Services
Appendix B to part 104--Sample Employer Notification Of Uniformed 
Service

    Authority: 10 U.S.C. 1161.


Sec. 104.1   Purpose.

    This part:
    (a) Updates implementation policy, assigns responsibilities, and 
prescribes procedures for informing Service members who are covered by 
the provisions of 38 U.S.C chapter 43 and individuals who apply for 
uniformed service, of their civilian employment and reemployment 
rights, benefits and obligations.
    (b) Implements 38 U.S.C. chapter 43, which updated, codified, and 
strengthened the civilian employment and reemployment rights and 
benefits of Service members and individuals who apply for uniformed 
service, and specifies the obligations of Service members and 
applicants for uniformed service.


Sec. 104.2  Applicability.

    This part applies to the Office of the Secretary of Defense; the 
Military Departments, including the Coast Guard when it is not 
operating as a Military Service in the Department of the Navy by 
agreement with the Department of Transportation; the Chairman of the 
Joint Chiefs of Staff; and the Defense Agencies (referred to 
collectively in this part as ``the DoD Components''). The term 
``Military Departments,'' as used in this part, refers to the 
Departments of the Army, Navy, and Air Force. The term ``Secretary 
concerned'' refers to the Secretaries of the Military Departments and 
the Secretary of Transportation with respect to the Coast Guard when it 
is not operating as a Service in the Department of the Navy. The term 
``Military Services'' refers to the Army, the Navy, the Air Force, the 
Marine Corps, and the Coast Guard.


Sec. 104.3  Definitions.

    Critical mission. An operational mission that requires the skills 
or resources available in a Reserve component or components.
    Critical requirement. A requirement in which the incumbent 
possesses unique knowledge, extensive experience, and specialty skill 
training to successfully fulfill the duties or responsibilities in 
support of the mission, operation or exercise. Also, a requirement in 
which the incumbent must gain the necessary experience to qualify for 
key senior leadership positions within his or her Reserve component.
    Escalator position. This is established by the principle that the 
returning Service member is entitled to the position of civilian 
employment that he or she would have attained had he or she remained 
continuously employed by that civilian employer. This may be a position 
of greater or lesser responsibilities, to include a layoff status, when 
compared to the employees of the same seniority and status employed by 
the company.
    Impossible or unreasonable. For the purpose of determining when 
providing advance notice of uniformed service to an employer is 
impossible or unreasonable, the unavailability of an employer or 
employer representative to whom notification can be given, an order by 
competent military authority to report for uniformed service within 
forty-eight hours of notification, or other circumstances that the 
Office of the Assistant Secretary of Defense for Reserve Affairs may 
determine are impossible or unreasonable are sufficient justification 
for not providing advance notice of pending uniformed service to an 
employer.
    Military necessity. For the purpose of determining when providing 
advance notice of uniformed service is not required, a mission, 
operation, exercise or requirement that is classified, or a pending or 
ongoing mission, operation, exercise or requirement that may be 
compromised or otherwise adversely affected by public knowledge is 
sufficient justification for not providing advance notice to an 
employer.
    Non-career service. The period of active uniformed service required 
to complete the initial uniformed service obligation; a period of 
active duty or full-time National Guard duty that is for a specified 
purpose and duration with no expressed or implied commitment for 
continued active duty; or participation in a Reserve component as a 
member of the Ready Reserve performing annual training, active duty for 
training or inactive duty training.

[[Page 3467]]

Continuous or repeated active uniformed service or full-time National 
Guard duty that results in eligibility for a regular retirement from 
the Armed Forces is not considered non-career service.
    Officer. For determining those Service officials authorized to 
provide advance notice to a civilian employer of pending uniformed 
service by a Service member or an individual who has applied for 
uniformed service, an officer shall include all commissioned officers, 
warrant officers, and non-commissioned officers authorized by the 
Secretary concerned to act in this capacity.
    Uniformed service. Performance of duty on a voluntary or 
involuntary basis in the Army, the Navy, the Air Force, the Marine 
Corps or the Coast Guard, including their Reserve components, when the 
Service member is engaged in active duty, active duty for special work, 
active duty for training, initial active duty for training, inactive 
duty training, annual training or full-time National Guard duty, and, 
for purposes of this part, a period for which a person is absent from a 
position of employment for the purpose of an examination to determine 
the fitness of the person to perform such duty.


Sec. 104.4  Policy.

    It is DoD policy to support non-career service by taking 
appropriate actions to inform and assist uniformed Service members and 
former Service members who are covered by the provisions of 38 U.S.C. 
chapter 43, and individuals who apply for uniformed service of their 
rights, benefits, and obligations under 38 U.S.C. Chapter 43. Such 
actions include:
    (a) Advising non-career Service members and individuals who apply 
for uniformed service of their employment and reemployment rights and 
benefits provided in 38 U.S.C. chapter 43, as implemented by this part, 
and the obligations they must meet to exercise those rights.
    (b) Providing assistance to Service members, former Service members 
and individuals who apply for uniformed service in exercising 
employment and reemployment rights and benefits.
    (c) Providing assistance to civilian employers of non-career 
Service members in addressing issues involving uniformed service as it 
relates to civilian employment or reemployment.
    (d) Considering requests from civilian employers of members of the 
National Guard and Reserve to adjust a Service member's scheduled 
absence from civilian employment because of uniformed service or make 
other accommodations to such requests, when it is reasonable to do so.
    (e) Documenting periods of uniformed service that are exempt from a 
Service member's cumulative 5-year absence from civilian employment to 
perform uniformed service as provided in 38 U.S.C. chapter 43 and 
implemented by this part.
    (f) Providing, at the Service member's request, necessary 
documentation concerning a period or periods of service, or providing a 
written statement that such documentation is not available, that will 
assist the Service member in establishing civilian reemployment rights, 
benefits and obligations.


Sec. 104.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Reserve Affairs, under 
the Under Secretary of Defense for Personnel and Readiness, shall:
    (1) In conjunction with the Departments of Labor (DoL) and Veterans 
Affairs, the Office of Personnel Management (OPM), and other 
appropriate Departments and activities of the executive branch, 
determine actions necessary to establish procedures and provide 
information concerning civilian employment and reemployment rights, 
benefits and obligations.
    (2) Establish procedures and provide guidance to the Secretaries 
concerned about civilian employment and reemployment rights, benefits 
and obligations of Service members who are covered by the provisions of 
38 U.S.C. chapter 43 and individuals who apply for uniformed service as 
provided in 38 U.S.C. chapter 43. This responsibility shall be carried 
out in coordination with DoL, OPM, and the Federal Retirement Thrift 
Investment Board.
    (3) Monitor compliance with 38 U.S.C. chapter 43 and this part.
    (4) Publish in the Federal Register, DoD policies and procedures 
established to implement 38 U.S.C. chapter 43.
    (b) The Secretaries of the Military Departments and the Commandant 
of the Coast Guard shall establish procedures to:
    (1) Ensure compliance with this part.
    (2) Inform Service members who are covered by the provisions of 38 
U.S.C. chapter 43 and individuals who apply for uniformed service of 
the provisions of 38 U.S.C. chapter 43 as implemented by this part.
    (3) Provide available documentation, upon request from a Service 
member or former Service member, that can be used to establish 
reemployment rights of the individual.
    (4) Specify, as required, and document those periods of active duty 
that are exempt from the 5-year cumulative service limitation that a 
Service member may be absent from a position of civilian employment 
while retaining reemployment rights.
    (5) Provide assistance to Service members and former Service 
members who are covered by the provisions of 38 U.S.C. chapter 43, and 
individuals who apply for uniformed service in exercising employment 
and reemployment rights.
    (6) Provide assistance, as appropriate, to civilian employers of 
Service members who are covered by the provisions of 38 U.S.C. chapter 
43 and individuals who apply for uniformed service.
    (7) Cooperate with the DoL in discharging its responsibilities to 
assist persons with employment and reemployment rights and benefits.
    (8) Cooperate with OPM in carrying out its placement 
responsibilities under 38 U.S.C. chapter 43.


Sec. 104.6   Procedures.

    The Secretaries of the Military Departments and the Commandant of 
the Coast Guard shall:
    (a) Inform individuals who apply for uniformed service and members 
of a Reserve component who perform or participate on a voluntary or 
involuntary basis in active duty, active duty for special work, initial 
active duty for training, active duty for training, inactive duty 
training, annual training and full-time National Guard duty, of their 
employment and reemployment rights, benefits, and obligations as 
provided under 38 U.S.C. chapter 43 and described in Appendix A of this 
part. Other appropriate materials may be used to supplement the 
information contained in Appendix A of this part.
    (1) Persons who apply for uniformed service shall be advised that 
DoD strongly encourages applicants to provide advance notice in writing 
to their civilian employers of pending uniformed service or any absence 
for the purpose of an examination to determine the person's fitness to 
perform uniformed service. Providing written advance notice is 
preferable to verbal advance notice since it is easier to establish 
that this basic prerequisite to retaining reemployment rights was 
fulfilled. Regardless of the means of providing advance notice, whether 
verbal or written, it should be provided as early as practicable.
    (2) Annually and whenever called to duty for a contingency 
operation, advise Service members who are participating in a Reserve 
component of:

[[Page 3468]]

    (i) The requirement to provide advance written or verbal notice to 
their civilian employers for each period of military training, active 
and inactive duty, or full-time National Guard duty.
    (A) Reserve component members shall be advised that DoD strongly 
encourages that they provide advance notice to their civilian employers 
in writing for each period of pending uniformed service. Providing 
written advance notice is preferable to verbal advance notice since it 
easily establishes that this prerequisite to retaining reemployment 
rights was fulfilled.
    (B) Regardless of the means of providing advance notice, whether 
written or verbal, it should be provided as early as practicable. DoD 
strongly recommends that advance notice to civilian employers be 
provided at least 30 days prior to departure for uniformed service when 
it is feasible to do so.
    (C) The advance notice requirement can be met by providing the 
employer with a copy of the unit annual training schedule or preparing 
a standardized letter. The sample employer notification letter in 
Appendix B of this part may be used for this purpose.
    (ii) The 5-year cumulative limit on absences from their civilian 
employment due to uniformed service and exemptions to that limit.
    (iii) The requirements for reporting or submitting application to 
return to their position of civilian employment.
    (iv) Their general reemployment rights and benefits.
    (v) The option for continuing employer provided health care, if the 
employer provides such a benefit.
    (vi) The opportunity to use accrued leave in order to perform 
uniformed service.
    (vii) Who they may contact to obtain assistance with employment and 
reemployment questions and problems.
    (b) Inform Service members who are covered by the provisions of 38 
U.S.C. Chapter 43, upon completion of an extended period of active duty 
and before separation from active duty of their employment and 
reemployment rights, benefits, and obligations as provided under 38 
U.S.C. Chapter 43. This shall, as a minimum, include notification and 
reporting requirements for returning to employment with their civilian 
employer. While Appendix A of this part provides the necessary 
information to satisfy this requirement, other appropriate materials 
may be used to supplement this information.
    (c) Issue orders that span the entire period of service when 
ordering a member of the National Guard or Reserve to active duty for a 
mission or requirement. Order modifications shall be initiated, as 
required, to ensure continuous active duty should the period required 
to complete the mission or requirement change.
    (d) Document the length of a Service member's initial period of 
military service obligation performed on active duty.
    (e) Determine and certify in writing those additional training 
requirements not already exempt for the 5-year cumulative service limit 
which are necessary for the professional development, or skill training 
or retraining for members of the National Guard or Reserve. Once the 
Secretary concerned certifies those training requirements, performance 
of uniformed service to complete a certified training requirement is 
exempt from the 5-year cumulative service limit.
    (f) Determine those periods of active duty when a Service member is 
ordered to, or retained on, active duty (other than for training) under 
any provision of law because of a war or national emergency declared by 
the President or Congress. If the purpose of the order to, or retention 
on, active duty is for the direct or indirect support of the war or 
national emergency, then the orders of the Service member should be so 
annotated, since that period of service is exempt from the 5-year 
cumulative service limit established in 38 U.S.C. Chapter 43.
    (g) Determine those periods of active duty performed by a member of 
the National Guard or Reserve that are designated by the Secretary 
concerned as a critical mission or critical requirement, and for that 
reason are exempt form the 5-year cumulative service limit. The 
authority for determining what constitutes a critical mission or 
requirement shall not be delegated below the Assistant Secretary level 
or the Commandant of the Coast Guard. The designation of a critical 
requirement to gain the necessary experience to qualify for key senior 
leadership positions shall be used judiciously, and the necessary 
experience and projected key leadership positions fully documented. 
This authority shall not be used to grant exemptions to avoid the 
cumulative 5-year service limit established by 38 U.S.C. Chapter 43 or 
to extend individuals in repeated statutory tours. The Assistant 
Secretary of Defense for Reserve Affairs shall be notified in writing 
of all occasions in which a Service member is granted more than one 
exemption for a critical requirement when the additional exemption(s) 
extend the Service member beyond the 5-year cumulative service limit 
established in 38 U.S.C. Chapter 43.
    (h) When appropriate, ensure that orders to active duty or orders 
retaining members on active duty specify the statutory or Secretarial 
authority for those orders when such authority meets one or more of the 
exemptions from the 5-year cumulative service limit provided in 38 
U.S.C. Chapter 43. If circumstances arise that prevent placing this 
authority on the orders, the authority shall be included in a 
separation document and retained in the Service member's personnel 
file.
    (i) Ensure that appropriate documents verifying any period of 
service exempt from the 5-year cumulative service limit are place in 
the Service member's personnel record or other appropriate record.
    (j) Document those circumstances that prevent a Service member from 
providing advance notification of uniformed service to a civilian 
employer because of military necessity or when advance notification is 
otherwise impossible or unreasonable, as defined in Sec. 104.3.
    (k) Designate those officers, as defined in Sec. 104.3, who are 
authorized by the Secretary concerned to provide advance notification 
of service to a civilian employer on behalf of a Service member or 
applicant for uniformed service.
    (l) Provide documentation, upon request from a Service member or 
former Service member, that may be used to satisfy the Service member's 
entitlement to statutory reemployment rights and benefits. Appropriate 
documentation may include, as necessary:
    (1) The inclusive dates of the initial period of military service 
obligation performed on active duty.
    (2) Any period of service during which a Service member was 
required to serve because he or she was unable to obtain a release from 
active duty though no fault of the Service member.
    (3) The cumulative length of all periods of active duty performed.
    (4) The authority under which a Service member was ordered to 
active duty when such service was exempt from the 5-year cumulative 
service limit.
    (5) The date the Service member was last released from active duty, 
active duty for special work, initial active duty for training, active 
duty for training, inactive duty training, annual training or full-time 
National Guard duty. This documentation establishes the timeliness of 
reporting to, or submitting application to return to, a position of 
civilian employment.
    (6) Whether service requirements prevent providing a civilian 
employer

[[Page 3469]]

with advance notification of pending service.
    (7) That the Service member's entitlement to reemployment benefits 
has not been terminated because of the character of service as provided 
in 38 U.S.C. 4304.
    (8) When appropriate, a statement that sufficient documentation 
does not exist.
    (m) Establish a central point of contact at a headquarters or 
regional command who can render assistance to active duty Service 
members and applicants for uniformed service about employment and 
reemployment rights, benefits and obligations.
    (n) Establish points of contact in each Reserve component 
headquarters or Reserve regional command, and each National Guard State 
headquarters who can render assistance to:
    (1) Members of the National Guard or Reserve about employment and 
reemployment rights, benefits and obligations.
    (2) Employers of National Guard and Reserve members about duty or 
training requirements arising from a member's uniformed service or 
service obligation.
    (o) A designated Reserve component representative shall consider, 
and accommodate when it does not conflict with military requirements, a 
request from a civilian employer of a National Guard and Reserve member 
to adjust a Service member's absence from civilian employment due to 
uniformed service when such service has an adverse impact on the 
employer. The representative may make arrangements other than adjusting 
the period of absence to accommodate such a request when it serves the 
best interest of the military and is reasonable to do so.

Appendix A to Part 104--Civilian Employment and Reemployment Rights, 
Benefits and Obligations for Applicants for, and Service Members and 
Former Service Members of the Uniformed Services

A. Scope of Coverage

    1. The Uniformed Services Employment and Reemployment Rights Act 
(USERRA) which is codified in 38 U.S.C. Chapter 43 provides 
protection to anyone absent from a position of civilian employment 
because of uniformed service if:
    a. Advance written or verbal notice was given to the civilian 
employer.
    (1) Advance notice is not required if precluded by military 
necessity, or is otherwise unreasonable or impossible.
    (2) DoD strongly encourages Service members and or applicants 
for service to provide advance notice to their civilian employer in 
writing for each period of pending uniformed service. Providing 
written advance notice is preferable to verbal advance notice since 
it easily establishes that this prerequisite to retaining 
reemployment rights was fulfilled. Regardless of the means of 
providing advance notice, whether written or verbal, it should be 
provided as early as practicable. Also, DoD strongly recommends that 
Reserve component members provide advance notice to their civilian 
employers at least 30 days in advance when it is feasible to do so. 
The advance notice requirement can be met by providing the employer 
with a copy of the unit annual training schedule or preparing a 
standardized letter. The sample employer notification letter in 
Appendix B of this part may be used for this purpose;
    b. The cumulative length of absences does not exceed 5 years;
    c. The individual reports to, or submits an application for 
reemployment, within the specified period based on duration of 
services as described in section D of this Appendix; and,
    d. The person's character of service was not disqualifying as 
described in paragraphs A.2.d. and e. of this appendix.
    2. A civilian employer is not required to reemploy a person if:
    a. The civilian employment was for a brief, non-recurrent period 
and there was no reasonable expectation that the employment would 
continue indefinitely or for a significant period.
    b. The employer's circumstances have so changed as to make 
reemployment impossible or unreasonable.
    c. The reemployment imposes an undue hardship on the employer in 
the case of an individual who:
    (1) Has incurred a service connected disability; or,
    (2) Is not qualified for the escalator position or the position 
last held, and cannot become qualified for any other position of 
lesser status and pay after a reasonable effort by the employer to 
qualify the person for such positions.
    d. The Service member or former Service member was separated 
from a uniformed service with a dishonorable or bad conduct 
discharge, or separated from a uniformed service under other than 
honorable conditions.
    e. An officer dismissed from any Armed Force or dropped from the 
rolls of any Armed Force as prescribed under 10 U.S.C. 1161.
    f. The cumulative length of service exceeds five years and no 
portion of the cumulative five years of uniformed service falls 
within the exceptions described in section C. of this Appendix.
    g. An employer asserting that he or she is not required to 
reemploy an individual because the employment was for a brief, non-
recurrent period, or reemployment is impossible or unreasonable, or 
reemployment imposes an undue hardship on the employer, that 
employer has the burden of proving his or her assertion.
    3. Entitlement to protection under 38 U.S.C. Chapter 43 does not 
depend on the timing, frequency, and duration of training or 
uniformed service.

B. Prohibition Against Discrimination and Acts of Reprisal

    1. A person who is a member of, applies to be a member of, has 
performed, applies to perform, or has an obligation to perform 
service in a uniformed service shall not be denied initial 
employment, reemployment, retention in employment, promotion, or any 
employment benefit by an employer on the basis of that membership, 
an application for membership, performance of service, or an 
obligation for service in the uniformed services.
    2. A person, including a non-Service member, shall not be 
subject to employment discrimination or any adverse employment 
action because he or she has taken an action to enforce a protection 
afforded a Service member, has testified or made a statement in or 
in connection with any proceeding concerning employment and 
reemployment rights of a service member, has assisted or 
participated in an investigation, or has otherwise exercised any 
right provided by 38 U.S.C. Chapter 43.
    3. An employer shall be considered to have engaged in an act of 
discrimination if an individual's membership, application for 
membership, service, application for service, or obligation for 
service in the uniformed services is a motivating factor in the 
employer's action, unless the employer can prove that the action 
would have been taken in the absence of such membership, application 
for membership, performance of service, application for service or 
obligation.

C. Exceptions to the Maximum Period of Service for Coverage

    In order to retain reemployment rights and benefits provided by 
38 U.S.C. Chapter 43, the cumulative length of absences from the 
same employer cannot exceed 5 years. Not counted toward this limit 
is:
    1. Service beyond 5 years if required to complete an initial 
service obligation;
    2. Service during which an individual was unable to obtain 
release orders before the expiration of the 5-year cumulative 
service limit through no fault of his or her own;
    3. Inactive duty training; annual training; ordered to active 
duty for unsatisfactory participation; active duty by National 
Guardsmen for encampments, maneuvers, field operations or coastal 
defense; or to fulfill additional training requirements, as 
determined by the Secretary concerned, for professional skill 
development, or to complete skill training or retraining;
    4. Involuntary order or call to active duty, or retention on 
active duty;
    5. Ordered to or retained on active duty during a war or 
national emergency declared by the President or Congress;
    6. Ordered to active duty in support of an operational mission 
for which personnel have been involuntarily called to active duty;
    7. Performing service in support of a critical mission or 
requirement, as determined by the Secretary concerned;
    8. Performing service in the National Guard when ordered to 
active duty by the President to suppress an insurrection or 
rebellion, repel an invasion, or execute laws of the United States; 
and,
    9. Voluntary recall to active duty of retired regular Coast 
Guard officers or retired enlisted Coast Guard members.

[[Page 3470]]

D. Applications for Reemployment

    1. For service of 30 days or less, or for an absence for an 
examination to determine the individual's fitness to perform 
uniformed service, the Service member or applicant must report to 
work not later than the beginning of the first full regularly 
scheduled work period on the first full calendar day following the 
completion of service or the examination, after allowing for an 
eight hour rest period following safe transportation to his or her 
residence.
    2. For service of 31 days or more but less that 181 days, the 
Service member must submit an application for reemployment not later 
than 14 days after completion of service, or by the next full 
calendar day when submitting an application within the 14 day limit 
was impossible or unreasonable through no fault of the Service 
member.
    3. For service of 181 days or more, the Service member must 
submit an application for reemployment not later than 90 days after 
the completion of service.
    4. If hospitalized or convalescing from an illness or injury 
incurred or aggravated during service, the Service member must, at 
the end of the period necessary for recovery, follow the same 
procedures, based on length of service, as described in sections 
D.1. through D.3. of this appendix. The period of hospitalization or 
convalescence may not normally exceed 2 years.
    5. Anyone who fails to report or apply for reemployment within 
the specified period shall not automatically forfeit entitlement to 
reemployment rights and benefits, but is subject to the rules of 
conduct, established policies, general practices of the employer 
pertaining to explanations and discipline because of an absence from 
scheduled work.

E. Documentation Upon Return

    1. If service is for 31 days or more, a Service member must 
provide documentation, upon request from the employer, that 
establishes:
    a. He or she made application to return to work within the 
prescribed time period;
    b. He or she has not exceeded the 5-year cumulative service 
limit; and
    c. His or her reemployment rights were not terminated because of 
character of service as described in paragraphs A.2.d. and e. of 
this appendix.
    2. Failure to provide documentation cannot serve as a basis for 
denying reemployment to the Service member, former Service member, 
or applicant if documentation does not exist or is not readily 
available at the time of the employer's request. However, if after 
reemployment, documentation becomes available that establishes that 
the Service member or former Service member does not meet one or 
more of the requirements contained in section E.1. of this appendix, 
the employer may immediately terminate the employment.

F. Position To Which Entitled Upon Reemployment

    1. Reemployment position for service of 90 days or less:
    a. The position the person would have attained if continuously 
employed (the ``escalator'' position) and if qualified to perform 
the duties; or,
    b. The position in which the person was employed in when he or 
she departed for uniformed service, but only if the person is not 
qualified to perform the duties of the escalator position, despite 
the employer's reasonable efforts to qualify the person for the 
escalator position.
    2. Reemployment position for service of 91 days or more:
    a. The escalator position, or a position of like seniority, 
status and pay, the duties of which the person is qualified to 
perform; or,
    b. The position in which the person was employed in when he or 
she departed for uniformed service or a position of like seniority, 
status and pay, the duties of which the person is qualified to 
perform, but only if the person is not qualified to perform the 
duties of the escalator position after the employer has made a 
reasonable effort to qualify the person for the escalator position.
    3. If a person cannot become qualified, after reasonable efforts 
by the employer to qualify the person, for either the escalator 
position or the position formerly occupied by the employee as 
provided in sections F.1. and F.2. of this appendix, for any reason 
(other than disability), the person must be employed in any other 
position of lesser status and pay that the person is qualified to 
perform, with full seniority.

G. Position To Which Entitled if Disabled

    If a person who is disabled because of service cannot (after 
reasonable efforts by the employer to accommodate the disability) be 
employed in the escalator position, he or she must be reemployed:
    1. In any other position that is equivalent to the escalator 
position in terms of seniority, status, and pay that the person is 
qualified or can become qualified to perform with reasonable efforts 
by the employer; or,
    2. In a position, consistent with the person's disability, that 
is the nearest approximation to the position in terms of seniority, 
status, and pay to the escalator or equivalent position.

H. Reemployment by the Federal Government

    1. A person who was employed by a Federal Executive Agency when 
he or she departed for uniformed service must be reemployed using 
the same order of priorities as prescribed in sections F. and G. of 
this appendix as appropriate. If the Director of OPM determines that 
the Federal Executive Agency that employed the person no longer 
exists and the functions have not been transferred to another 
Federal Executive Agency, or it is impossible or unreasonable for 
the agency to reemploy the person, the Director of OPM shall 
identify a position of like seniority, status, and pay at another 
Federal Executive Agency that satisfies the reemployment criteria 
established for private sector employers, sections F. and G. of this 
appendix, and for which the person is qualified and ensure that the 
person is offered such position.
    2. If a person was employed by the Judicial Branch or the 
Legislative Branch of the Federal Government when he or she departed 
for uniformed service, and the employer determines that it is 
impossible or unreasonable to reemploy the person, the Director of 
OPM shall, upon application by the person, ensure that an offer of 
employment in a Federal Executive Agency is made.
    3. If the Adjutant General of a State determines that it is 
impossible or unreasonable to reemploy a person who was employed as 
a National Guard technician, the Director of OPM shall, upon 
application by the person, ensure that an offer of employment in a 
Federal Executive Agency is made.

I. Reemployment by Certain Federal Agencies

    1. The heads of the Federal Bureau of Investigation, the Central 
Intelligence Agency, the Defense Intelligence Agency, the National 
Imagery and Mapping Agency, the National Security Agency, and, as 
determined by the President, any Executive Agency or unit thereof, 
the principal function of which is to conduct foreign intelligence 
or counterintelligence activities, shall prescribe procedures for 
reemployment rights for their agency that are similar to those 
prescribed for private and other Federal agencies.
    2. If an appropriate officer of an agency referred to in 
subsection I.1. of this appendix determines that reemployment of a 
person who was an employee of that agency when he or she departed 
for uniformed service is impossible or unreasonable, the agency 
shall notify the person and the Director of OPM. The Director of OPM 
shall, upon application by that person, ensure that the person is 
offered employment in a position in a Federal Executive Agency.

J. General Rights and Benefits

    1. A person who is reemployed under 38 U.S.C. Chapter 43 is 
entitled to the seniority, and other rights and benefits determined 
by seniority that the person had upon commencing uniformed service, 
and any additional seniority, and rights and benefits he or she 
would have attained if continuously employed.
    2. A person who is absent by reason of uniformed service shall 
be deemed to be on furlough or leave of absence from his or her 
civilian employer and is entitled to such other rights and benefits 
not determined by seniority as generally provided by the employer to 
employees on furlough or leave of absence having similar seniority, 
status and pay who are also on furlough or leave of absence, as 
provided under a contract, policy, agreement, practice or plan in 
effect during the Service member's absence because of uniformed 
service.
    3. The individual may be required to pay the employee cost, if 
any, of any funded benefit continued to the same extent other 
employees on furlough or leave of absence are required to pay.

K. Loss of Rights and Benefits

    If, after being advised by his or her employer of the specific 
rights and benefits to be lost, a Service member, former Service 
member or applicant of uniformed service knowingly provided written 
notice of intent not to seek reemployment after completion of 
uniformed service, he or she is no longer entitled to any non-
seniority based rights and

[[Page 3471]]

benefits. This includes all non-seniority based rights and benefits 
provided under any contract, plan, agreement, or policy in effect at 
the time of entry into uniformed service or established while 
performing such service, and are generally provided by the employer 
to employees having similar seniority, status and pay who are on 
furlough or leave of absence.

L. Retention Rights

    A person who is reemployed following uniformed service cannot be 
discharged from employment, except for cause:
    1. Within 1 year after the date of reemployment if that person's 
service was 181 days or more; or,
    2. Within 180 days after the date of reemployment if such 
service was 31 days or more but less than 181 days.

M. Accrued Leave

    During any period of uniformed service, a person may, upon 
request, use any vacation, annual leave, or similar leave with pay 
accrued before the commencement of that period of service.

N. Health Plans

    An employer who provides employee health plan coverage, 
including group health plans, must allow the Service member to elect 
to continue personal coverage, and coverage for his or her 
dependents under the following circumstances:
    1. The maximum period of coverage of a person and the person's 
dependents under such an election shall be the lesser of:
    a. The 18 month period beginning on the date on which the 
person's absence begins; or
    b. The day after the date on which the person was required to 
apply for or return to a position or employment as specified in 
section D. of this appendix, and fails to do so.
    2. A person who elects to continue health plan coverage may be 
required to pay up to 102 percent of the full premium under the 
plan, except a person on active duty for 30 days or less cannot be 
required to pay more than the employee's share, if any, for the 
coverage.
    3. An exclusion or waiting period may not be imposed in 
connection with the reinstatement of coverage upon reemployment if 
one would not have been imposed had coverage not been terminated 
because of service. However, an exclusion or waiting period may be 
imposed for coverage of any illness or injury determined by the 
Secretary of Veterans Affairs to have been incurred in, or 
aggravated during, the performance of uniformed service.

O. Employee Pension Benefit Plans

    1. This section applies to individuals whose pension benefits 
are not provided by the Federal Employees' Retirement System (FERS) 
or the Civil Service Retirement System (CSRS), or a right provided 
under any Federal or State law governing pension benefits for 
governmental employees.
    2. A person reemployed after uniformed service shall be treated 
as if no break in service occurred with the employer(s) maintaining 
the employee's pension benefit plan. Each period of uniformed 
service, upon reemployment, shall be deemed to constitute service 
with the employer(s) for the purpose of determining the 
nonforfeitability of accrued benefits and accrual of benefits.
    3. An employer reemploying a Service member or former Service 
member under 38 U.S.C. Chapter 43 is liable to the plan for funding 
any obligation attributable to the employer of the employee's 
pension benefit plan that would have been paid to the plan on behalf 
of that employee but for his or her absence during a period of 
uniformed service.
    4. Upon reemployment, a person has three times the period of 
military service, but not to exceed five years after reemployment, 
within which to contribute the amount he or she would have 
contributed to the pension benefit plan if he or she had not been 
absent for uniformed service. He or she is entitled to accrued 
benefits of the pension plan that are contingent on the making of, 
or are derived from, employee contributions or elective deferrals 
only to the extent the person makes payment to the plan.

P. Federal Employees' Retirement System (FERS)

    1. Federal employees enrolled in FERS who are reemployed with 
the Government are allowed to make up contributions to the Thrift 
Savings Fund over a period specified by the employee. However, the 
makeup period may not be shorter than two times nor longer than four 
times the period of absence for uniformed service.
    2. Employees covered by the FERS are entitled to have 
contributions made to the Thrift Savings Fund on their behalf by the 
employing agency for their period of absence in an amount equal to 
one percent of the employee's basic pay. If an employee covered by 
FERS makes contributions, the employing agency must make matching 
contributions on the employee's behalf.
    3. The employee shall be credited with a period of civilian 
service equal to the period of uniformed service, and the employee 
may elect, for certain purposes, to have his or her separation 
treated as if it had never occurred.
    4. This benefit applies to any employee whose release from 
uniformed service, discharge from hospitalization, or other similar 
event make him or her eligible to seek reemployment under 38 U.S.C. 
Chapter 43 on or after August 2, 1990.
    5. Additional information about Thrift Saving Plan (TSP) 
benefits is available in TSP Bulletins 95-13 and 95-20. A fact sheet 
is included in TSP Bulletin 95-20 which describes benefits and 
procedures for eligible employees. Eligible employees should contact 
their personnel office for information and assistance.

Q. Civil Service Retirement System (CSRS)

    1. Employees covered by CSRS may make up contributions to the 
TSP, as in section P.1. of this appendix. However, no employer 
contributions are made to the TSP account of CSRS employees.
    2. This benefit applies to any employee whose release from 
uniformed service, discharge from hospitalization, or other similar 
event makes him or her eligible to seek reemployment under 38 U.S.C. 
Chapter 43 on or after August 2, 1990.
    3. Additional information about TSP benefits is available in TSP 
Bulletins 95-13 and 95-20. A fact sheet is included in TSP Bulletin 
95-20 which describes benefits and procedures for eligible 
employees. Eligible employees should contact their personnel office 
for information and assistance.

R. Information and Assistance

    Information and informal assistance concerning civilian 
employment and reemployment is available through the National 
Committee for Employer Support of the Guard and Reserve (NCESGR). 
NCESGR representatives can be contacted by calling 1-800-336-4590.

S. Assistance in Asserting Claims

    1. A person may file a complaint with the Secretary of Labor if 
an employer, including any Federal Executive Agency or OPM, has 
failed or refused, or is about to fail or refuse, to comply with 
employment or reemployment rights and benefits. The complaint must 
be in writing, and include the name and address of the employer, and 
a summary of the allegation(s).
    2. The Secretary of Labor shall investigate each complaint and, 
if it is determined that the allegation(s) occurred, make reasonable 
efforts to ensure compliance. If these efforts are unsuccessful, the 
Secretary of Labor shall notify the complainant of the results and 
advise the complainant of his or her entitlement to pursue 
enforcement.
    3. The Secretary of Labor shall, upon request, provide technical 
assistance to a claimant and, when appropriate, to the claimant's 
employer.

T. Enforcement

    1. State or Private Employers.
    a. A person may request that the Secretary of Labor refer a 
complaint to the Department of Justice. If the Department of Justice 
is reasonably satisfied that the person is entitled to the rights or 
benefits sought, the Department of Justice may appear on behalf of, 
and act as attorney for, the complainant, and commence an action for 
appropriate relief, or the individual may commence an action on his 
or her own behalf in the appropriate Federal district court.
    b. The district court hearing the complaint can require the 
employer to:
    (1) Comply with the law;
    (2) Compensate the person for any loss of wages or benefits 
suffered; and
    (3) If the court determines that the employer willfully failed 
to comply with the law, pay the person an amount equal to the amount 
of lost wages or benefits as liquidated damages.
    c. A person may file a private suit against an employer without 
the Secretary of Labor's assistance if he or she:
    (1) Has chosen not to seek the Secretary's assistance;
    (2) Has chosen not to request that the Secretary refer the 
complaint to the Department of Justice; or
    (3) Has refused the Department of Justice's representation of 
his or her complaint.
    d. No fees or court costs shall be charged or taxed against any 
person filing a claim.

[[Page 3472]]

The court may award the person who prevails reasonable attorney 
fees, expert witness fees, and other litigation expenses.
    2. Federal Government as the Employer.
    a. The same general enforcement procedures established for 
private employers are applied to Federal Executive Agencies as an 
employer; however, if unable to resolve the complaint, the Secretary 
of Labor shall refer the complaint to the Office of Special Counsel, 
which shall represent the individual in a hearing before the Merit 
Systems Protection Board if reasonably satisfied that the individual 
is entitled to the rights and benefits sought. The claimant also has 
the option of directly filing a complaint with the Merit Systems 
Protection Board on his or her own behalf.
    b. A person who is adversely affected or aggrieved by a final 
order or decision of the Merit Systems Protection Board may petition 
the United States Court of Appeals for the Federal Circuit to review 
the final order or decision.
    3. Federal Intelligence Agency as the Employer. An individual 
employed by a Federal Intelligence Agency listed in subparagraph 
I.1. of this appendix, may submit a claim to the inspector general 
of the agency.

Appendix B to Part 104--Sample Employer Notification of Uniformed 
Service

    This is to inform you that (insert applicant or Service member's 
name) must report for military training or duty on (insert date). My 
last period of work will be on (insert date), which will allow me 
sufficient time to report for military duty. I will be absent from 
my position of civilian employment for approximately (enter expected 
duration of duty as specified on your orders, and include the 
applicable period you have to return or submit notification of your 
return to work) while performing military training or duty unless 
extended by competent military authority or delayed by circumstances 
beyond my control. I otherwise expect to return to work on (insert 
date).
----------------------------------------------------------------------
Signature and date

----------------------------------------------------------------------
Employer acknowledgment and date

    Dated: January 16, 1998.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 98-1583 Filed 1-22-98; 8:45 am]
BILLING CODE 5000-04-M