I
104TH CONGRESS
1ST SESSION
H. R. 1941
To amend title 38, United States Code, to make clarifying and technical
amendments to further clarify the employment and reemployment rights
and responsibilities of members of the uniformed services, as well as
those of the employer community, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JUNE 28, 1995
Mr. MONTGOMERY (for himself, Ms. WATERS, Mr. CLYBURN, Mr. MASCARA,
and Mr. EVANS) introduced the following bill; which was referred to the
Committee on Veterans’ Affairs
A BILL
To amend title 38, United States Code, to make clarifying
and technical amendments to further clarify the employ-
ment and reemployment rights and responsibilities of
members of the uniformed services, as well as those
of the employer community, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. PURPOSES.
Section 4301(a)(2) of title 38, United States Code,
is amended by striking ‘‘under honorable conditions’’.
SEC. 2. DEFINITIONS.
Section 4303 of title 38, United States Code, is
amended—
(1) in paragraph (2), by striking ‘‘work per-
formed’’ and inserting ‘‘work not performed’’; and
(2) in paragraph (16), by inserting ‘‘national’’
before ‘‘emergency’’.
SEC. 3. DISCRIMINATION AGAINST PERSONS WHO SERVE IN
THE UNIFORMED SERVICES AND ACTS OF RE-
PRISAL PROHIBITED.
Section 4311 of title 38, United States Code, is
amended by striking subsections (b) and (c) and inserting
the following:
‘‘(b) An employer may not discriminate in employ-
ment against or take any adverse employment action
against any person because such person (1) has taken an
action to enforce a protection afforded any person under
this chapter, (2) has testified or otherwise made a state-
ment in or in connection with any proceeding under this
chapter, (3) has assisted or otherwise participated in an
investigation under this chapter, or (4) has exercised a
right provided for in this chapter. The prohibition in this
subsection shall apply with respect to a person regardless
of whether that person has performed service in the uni-
formed services.
‘‘(c) An employer shall be considered to have engaged
in actions prohibited—
‘‘(1) under subsection (a), if the person’s mem-
bership, application for membership, service, applica-
tion for service, or obligation for service in the uni-
formed services is a motivating factor in the employ-
er’s action, unless the employer can prove that the
action would have been taken in the absence of such
membership, application for membership, service,
application for service, or obligation for service; or
‘‘(2) under subsection (b), if the person’s (A)
action to enforce a protection afforded any person
under this chapter, (B) testimony or making of a
statement in or in connection with any proceeding
under this chapter, (C) assistance or other participa-
tion in an investigation under this chapter, or (D)
exercise of a right provided for in this chapter, 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 person’s enforce-
ment action, testimony, statement, assistance, par-
ticipation, or exercise of a right.
‘‘(d) The prohibitions in subsections (a) and (b) shall
apply to any position of employment, including a position
that is described in section 4312(d)(1)(C).’’.
SEC. 4. REEMPLOYMENT RIGHTS OF PERSONS WHO SERVE
IN THE UNIFORMED SERVICES.
(a) INCLUSION OF PREPARATION AND TRAVEL TIME
PRIOR TO SERVICE.—Section 4312(a) of title 38, United
States Code, is amended by striking ‘‘who is absent from
a position of employment’’ and inserting ‘‘whose absence
from a position of employment is necessitated’’.
(b) LIMITATION ON SERVICE EXEMPTION TO WAR OR
NATIONAL EMERGENCY.—Section 4312(c)(4)(B) of such
title is amended to read as follows:
‘‘(B) ordered to or retained on active duty
(other than for training) under any provision of
law because of a war or because of a national
emergency declared by the President or the
Congress as determined by the Secretary con-
cerned;’’.
(c) BRIEF, NONRECURRENT PERIODS OF SERVICE.—
Section 4312(d)(2)(C) of such title is amended by striking
‘‘is brief or for a nonrecurrent period and without a rea-
sonable expectation’’ and inserting ‘‘is for a brief,
nonrecurrent period and there is no reasonable expecta-
tion’’.
(d) 
CONFORMING
AMENDMENTS
TO
REDES-
IGNATIONS IN TITLE 10.—Section 4312(c) of such title
is amended—
(1) in paragraph (3), by striking ‘‘section 270’’
and inserting ‘‘section 10147’’; and
(2) in paragraph (4)—
(A) by striking ‘‘section 672(a), 672(g),
673, 673b, 673c, or 688’’ in subparagraph (A)
and 
inserting 
‘‘section 
688, 
12301(a),
12301(g), 12302, 12304, or 12305’’;
(B) by striking ‘‘section 673b’’ in subpara-
graph (C) and inserting ‘‘section 12304’’; and
(C) by striking ‘‘section 3500 or 8500’’ in
subparagraph 
(E) 
and 
inserting 
‘‘section
12406’’.
SEC. 5. REEMPLOYMENT POSITIONS.
Section 4313(a)(4) of title 38, United States Code,
is amended—
(1) by striking ‘‘uniform services’’ in clause
(A)(ii) and inserting ‘‘uniformed services’’; and
(2) by striking ‘‘of lesser status and pay which’’
and inserting ‘‘which is the nearest approximation to
a position referred to first in clause (A)(i) and then
in clause (A)(ii) which’’.
SEC. 6. HEALTH PLANS.
Section 4317(a) of title 38, United States Code, is
amended—
(1) by striking ‘‘(a)(1)(A) Subject to para-
graphs (2) and (3), in’’ and inserting ‘‘(a)(1) In’’;
(2) by redesignating clauses (i) and (ii) of para-
graph (1) (as amended by paragraph (1) of this sec-
tion) as subparagraphs (A) and (B), respectively;
(3) by redesignating subparagraph (B) as para-
graph (2); and
(4) by redesignating subparagraph (C) as para-
graph (3), and in that paragraph by redesignating
clauses (i) and (ii) as subparagraphs (A) and (B),
and by redesignating subclauses (I) and (II) as
clauses (i) and (ii), respectively.
SEC. 7. EMPLOYEE PENSION BENEFIT PLANS.
The last sentence of section 4318(b)(2) of title 38,
United States Code, is amended by striking ‘‘services,’’
and inserting ‘‘services, such payment period’’.
SEC. 8. ENFORCEMENT OF EMPLOYMENT OR REEMPLOY-
MENT RIGHTS.
(a) TECHNICAL AMENDMENT.—The second sentence
of section 4322(d) of title 38, United States Code, is
amended by inserting ‘‘attempt to’’ before ‘‘resolve’’.
(b) NOTIFICATION.—Section 4322(e) of such title is
amended—
(1) in the matter preceding paragraph (1), by
striking ‘‘with respect to a complaint under sub-
section (d) are unsuccessful,’’ and inserting ‘‘with
respect to any complaint filed under subsection (a)
do not resolve the complaint,’’; and
(2) in paragraph (2), by inserting ‘‘or the Of-
fice of Personnel Management’’ after ‘‘Federal exec-
utive agency’’.
SEC. 9. ENFORCEMENT OF RIGHTS WITH RESPECT TO A
STATE OR PRIVATE EMPLOYER.
Section 4323(a) of title 38, United States Code, is
amended—
(1) in paragraph (1), by striking ‘‘of an unsuc-
cessful effort to resolve a complaint’’; and
(2) in paragraph (2)(A), by striking ‘‘regarding
the complaint under section 4322(c)’’ and inserting
‘‘under section 4322(a)’’.
SEC. 10. ENFORCEMENT OF RIGHTS WITH RESPECT TO
FEDERAL EXECUTIVE AGENCIES.
(a) REFERRAL.—Section 4324(a)(1) of title 38, Unit-
ed States Code, is amended by striking ‘‘of an unsuccess-
ful effort to resolve a complaint relating to a Federal exec-
utive agency’’.
(b) ALTERNATIVE SUBMISSION
OF COMPLAINT.—
Section 4324(b) of such title is amended—
(1) in the matter preceding paragraph (1), by
inserting ‘‘or the Office of Personnel Management’’
after ‘‘Federal executive agency’’; and
(2) in paragraph (1), by striking ‘‘regarding a
complaint under section 4322(c)’’ and inserting
‘‘under section 4322(a)’’.
(c) RELIEF.—Section 4324(c)(2) of such title is
amended—
(1) by inserting ‘‘or the Office of Personnel
Management’’ after ‘‘Federal executive agency’’; and
(2) by striking ‘‘employee’’ and inserting ‘‘Of-
fice’’.
SEC. 11. ENFORCEMENT OF RIGHTS WITH RESPECT TO
CERTAIN FEDERAL AGENCIES.
Section 4325(d)(1) of title 38, United States Code,
is amended—
(1) by striking ‘‘, alternative employment in the
Federal Government under this chapter,’’; and
(2) by striking ‘‘employee’’ the last place it ap-
pears and inserting ‘‘employees’’.
SEC. 12. CONDUCT OF INVESTIGATION; SUBPOENAS.
Section 4326(a) of title 38, United States Code, is
amended by inserting ‘‘have reasonable access to and the
right to interview persons with information relevant to the
investigation and shall’’ after ‘‘at all reasonable times,’’.
SEC. 13. TRANSITION RULES AND EFFECTIVE DATES.
(a) REEMPLOYMENT.—Section 8(a) of the Uniformed
Services Employment and Reemployment Rights Act of
1994 (38 U.S.C. 4301 note) is amended—
(1) in paragraph (3), by adding at the end
thereof the following: ‘‘Any service begun up to 60
days after the date of enactment of this Act, which
is served up to 60 days after the date of enactment
of this Act pursuant to orders issued under section
502(f) of chapter 5 of title 32, United States Code,
shall be considered under chapter 43 of title 38,
United States Code, as in effect on the day before
such date of enactment. Any service pursuant to or-
ders issued under section 502(f) of chapter 5 of title
32, United States Code, served after 60 days after
the date of enactment of this Act, regardless of
when begun, shall be considered under the amend-
ments made by this Act.’’; and
(2) in paragraph (4), by striking ‘‘such period’’
and inserting ‘‘such 60-day period’’.
(b) INSURANCE.—Section 8(c)(2) of such Act is
amended by striking ‘‘person on active duty’’ and inserting
‘‘person serving a period of service in the uniformed serv-
ices’’.
SEC. 14. EFFECTIVE DATES.
(a) IN GENERAL.—Except as provided in subsection
(b), the amendments made by this Act shall take effect
as of October 13, 1994.
(b) REORGANIZED TITLE 10 REFERENCES.—The
amendments made by section 4(d) shall take effect as of
December 1, 1994.
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