OPM issues interim rule on veterans preference

The Office of Personnel Management issued an interim rule at the end of December to address statutory changes affecting veterans’ preference.

The changes are being made in response to two laws — the Hubbard Act, which broadened the category for those eligible to receive veterans preference, and the VOW (Veterans Opportunity to Work) to Hire Heroes Act, which requires agencies to extend preference in hiring to some individuals who have not been discharged from the Defense Department or released from active duty.

An amendment in the Hubbard Act introduced a new preference eligibility category for service members discharged or released from active duty for the reason of sole survivorship. The act affected sole survivorship discharges or releases that occurred after the law’s enactment date of Aug. 29, 2008.

A sole survivorship discharge is one requested by an individual who is the only surviving child in a family whose sibling or parent who served in the armed forces and was killed or permanently injured.

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Preexisting language within the Hubbard Act already classified a “veteran” as being eligible for preferential treatment in hiring, which seemed to make the sole survivorship amendment superfluous.

“This is contrary to the statute’s clear purpose, however, which is to extend additional benefits to service members whose active duty service has been cut short by a sole survivorship discharge or release, as documented in the Act’s legislative history,” OPM wrote in a notice published in the Federal Register.

The interim rule adds a new paragraph that brings the definition of a sole survivor veteran in align with that of other veterans who are eligible for hiring preference.

President Barack Obama signed the VOW to Hire Heroes Act on Nov. 21, 2011, requiring agencies to treat active duty service members the same as veterans, disabled veterans and individuals eligible for preference provided they submit a certification when they apply for a federal job that they expect to be honorably discharged within 120 days.

“A member of the armed forces may start his or her civilian job search prior to discharge or release from active duty and thus will not have a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, when applying for Federal jobs,” OPM wrote. “Section 2108a ensures that an individual does not lose the opportunity to be considered for Federal jobs (and awarded their veterans’ preference entitlements) despite not having a DD Form 214 to submit along with a r[eacute]sum[eacute].”

Agencies must accept an application from a service member and apply veterans preference, provided they qualify, as long as they submit the certification in lieu of (DD) Form 214.

“OPM does not construe the statute to require the submission to be made in the first instance to the officer who makes the appointment,” the agency wrote. “Veterans’ preference for Federal employment is not adjudicated and awarded by the appointing officer. Rather, by statute, veterans’ preference is awarded earlier in the hiring process, at the time of examination.”

This new rule supersedes guidance OPM issued on June 15, 2012, in a Chief Human Capital Officer memorandum from former OPM Director John Berry.

“Under the interim rule, as well as the statute, the certification is of an expected discharge or release within 120 days after the certificate is submitted, not within 120 days after the certificate is signed,” OPM wrote.

Agencies must use DD 214 or other documentation to verify that the separation occurred prior to appointment,

“In addition, OPM is updating its regulations to reference existing requirements for the order of consideration for traditional rating and ranking of candidates, as well as the alternative ranking and selection procedure called ‘category rating;” to more clearly state the existing requirements for order of consideration in excepted service hiring; and to add a reference to the end date of Operation Iraqi Freedom, which affected veteran status and preference eligibility,” OPM wrote.”This action will align OPM’s regulations with the existing statute.”

The interim rule went into effect Dec. 29, 2014, and comments must be submitted to OPM on or before Feb. 27. Comments can be submitted through the Federal e-Rulemaking Portal.

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