Yes, USERRA Applies to 12304b Duty

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1 LAW REVIEW Nvember 2017 Yes, USERRA Applies t 12304b Duty By Captain Samuel F. Wright, JAGC, USN (Ret.) 2 Update n Sam Wright USERRA applies t vluntary service USERRA applies t Natinal Guard service Character and duratin f service 1.8 Relatinship between USERRA and ther laws/plicies Q: I am a Captain in the Tennessee Army Natinal Guard and a member f the Reserve Officers Assciatin (ROA). I am currently n active duty n 12304b duty but I dn t knw what that means. A Natinal Guard judge advcate tld me that the Unifrmed Services Emplyment and Reemplyment Rights Act (USERRA) des nt apply t 12304b duty and that when I cmplete this active duty perid I will nt have a legally enfrceable right t return t my civilian jb under USERRA. What d yu say abut that? 1 I invite the reader s attentin t Yu will find mre than 1500 Law Review articles abut the Unifrmed Services Emplyment and Reemplyment Rights Act (USERRA), the Servicemembers Civil Relief Act (SCRA), the Unifrmed and Overseas Citizens Absentee Vting Act (UOCAVA), the Unifrmed Services Frmer Spuse Prtectin Act (USFSPA), and ther laws that are especially pertinent t thse wh serve ur cuntry in unifrm. Yu will als find a detailed Subject Index, t facilitate finding articles abut very specific tpics. The Reserve Officers Assciatin (ROA) initiated this clumn in I am the authr f mre than 1300 f the articles. 2 BA 1973 Nrthwestern University, JD (law degree) 1976 University f Hustn, LLM (advanced law degree) 1980 Gergetwn University. I served in the Navy and Navy Reserve as a Judge Advcate General s Crps fficer and retired in I am a life member f ROA. I have dealt with USERRA and the Veterans Reemplyment Rights Act (VRRA the 1940 versin f the federal reemplyment statute) fr 35 years. I develped the interest and expertise in this law during the decade ( ) that I wrked fr the United States Department f Labr (DOL) as an attrney. Tgether with ne ther DOL attrney (Susan M. Webman), I largely drafted the prpsed VRRA rewrite that President Gerge H.W. Bush presented t Cngress, as his prpsal, in February On 10/13/1994, President Bill Clintn signed int law USERRA, Public Law , 108 Stat The versin f USERRA that President Clintn signed in 1994 was 85% the same as the Webman-Wright draft. USERRA is cdified in title 38 f the United States Cde at sectins 4301 thrugh 4335 (38 U.S.C ). I have als dealt with the VRRA and USERRA as a judge advcate in the Navy and Navy Reserve, as an attrney fr the Department f Defense (DOD) rganizatin called Emplyer Supprt f the Guard and Reserve (ESGR), as an attrney fr the United States Office f Special Cunsel (OSC), as an attrney in private practice, and as the Directr f the Service Members Law Center (SMLC), as a full-time emplyee f ROA, fr six years ( ). Please see Law Review (June 2015), cncerning the accmplishments f the SMLC. My paid emplyment with ROA ended 5/31/2015, but I have cntinued the wrk f the SMLC as a vlunteer. Yu can reach me by at SWright@ra.rg.

2 A: The Natinal Guard judge advcate is wrng and shuld knw better. As I have explained in Law Review (December 2015) and many ther articles, any persn wh meets five simple cnditins will have the right t reemplyment under USERRA: a. Left a civilian jb (federal, state, lcal, r private sectr) t perfrm vluntary r invluntary unifrmed service, as defined by USERRA. b. Gave the emplyer prir ral r written ntice. c. Has nt exceeded the cumulative five-year limit n the duratin f the perid r perids f service, relating t the emplyer relatinship fr which the persn seeks reemplyment. d. Was released frm the perid f service withut having received a disqualifying bad discharge frm the military. e. Made a timely applicatin fr reemplyment, after release frm the perid f service. USERRA defines the term service in the unifrmed services as fllws: The term "service in the unifrmed services" means the perfrmance f duty n a vluntary r invluntary basis in a unifrmed service under cmpetent authrity and includes active duty, active duty fr training, initial active duty fr training, inactive duty training, full-time Natinal Guard duty, a perid fr which a persn is absent frm a psitin f emplyment fr the purpse f an examinatin t determine the fitness f the persn t perfrm any such duty, a perid fr which a System member f the Natinal Urban Search and Rescue Respnse System is absent frm a psitin f emplyment due t an appintment int Federal service under sectin 327 f the Rbert T. Staffrd Disaster Relief and Emergency Assistance Act, and a perid fr which a persn is absent frm emplyment fr the purpse f perfrming funeral hnrs duty as authrized by sectin f title 10 r sectin 115 f title Nthing in this definitin excludes duty perfrmed under sectin 12304b f title 10 f the United States Cde. If yu meet the five USERRA cnditins, yu will have the right t reemplyment. Sectin 12304b prvides: Selected Reserve: rder t active duty fr preplanned missins in supprt f the cmbatant cmmands (a) Authrity. When the Secretary f a military department determines that it is necessary t augment the active frces fr a preplanned missin in supprt f a 3 38 U.S.C. 4303(13) (emphasis supplied).

3 cmbatant cmmand, the Secretary may, subject t subsectin (b), rder any unit f the Selected Reserve (as defined in sectin 10143(a) f this title), withut the cnsent f the members, t active duty fr nt mre than 365 cnsecutive days. (b) Limitatins. (1) Units may be rdered t active duty under this sectin nly if-- (A) the manpwer and assciated csts f such active duty are specifically included and identified in the defense budget materials fr the fiscal year r years in which such units are anticipated t be rdered t active duty; and (B) the budget infrmatin n such csts includes a descriptin f the missin fr which such units are anticipated t be rdered t active duty and the anticipated length f time f the rder f such units t active duty n an invluntary basis. (2) Nt mre than 60,000 members f the reserve cmpnents f the armed frces may be n active duty under this sectin at any ne time. (c) Exclusin frm strength limitatins. Members rdered t active duty under this sectin shall nt be cunted in cmputing authrized strength in members n active duty r ttal number f members in grade under this title r any ther law. (d) Ntice t Cngress. Whenever the Secretary f a military department rders any unit f the Selected Reserve t active duty under subsectin (a), such Secretary shall submit t Cngress a reprt, in writing, setting frth the circumstances necessitating the actin taken under this sectin and describing the anticipated use f such unit. (e) Terminatin f duty. Whenever any unit f the Selected Reserve is rdered t active duty under subsectin (a), the service f all units s rdered t active duty may be terminated-- (1) by rder f the Secretary f the military department cncerned; r (2) by law. (f) Relatinship t War Pwers Reslutin. Nthing cntained in this sectin shall be cnstrued as amending r limiting the applicatin f the prvisins f the War Pwers Reslutin. (g) Cnsideratins fr invluntary rder t active duty. In determining which units f the Selected Reserve will be rdered t duty withut their cnsent under this sectin, apprpriate cnsideratin shall be given t-- (1) the length and nature f previus service, t assure such sharing f expsure t hazards as natinal security and military requirements will reasnably allw; (2) the frequency f assignments during service career; (3) family respnsibilities; and (4) emplyment necessary t maintain the natinal health, safety, r interest.

4 (h) Plicies and prcedures. The Secretaries f the military departments shall prescribe plicies and prcedures t carry ut this sectin, including n determinatins with respect t rders t active duty under subsectin (g). Such plicies and prcedures shall nt g int effect until apprved by the Secretary f Defense. (i) Defense budget materials defined. In this sectin, the term "defense budget materials" has the meaning given that term in sectin 231(f)(2) f this title. 4 Cngress enacted sectin 12304b in 2011, as a new prvisin fr the invluntary call-up f Natinal Guard and Reserve persnnel. Cverage f sectin 12304b duty was never a prblem. The prblem was that when Cngress enacted this new prvisin fr invluntary call-up it failed t amend USERRA by adding sectin 12304b t the list f title 10 sectins that are exempt frm USERRA s five-year limit. Cngress fixed that glitch in Sectin 4312(c) f USERRA sets frth the five-year limit and the nine exemptins t that limit, as fllws: Subsectin (a) [the right t reemplyment] shall apply t a persn wh is absent frm a psitin f emplyment by reasn f service in the unifrmed services if such persn's cumulative perid f service in the unifrmed services, with respect t the emplyer relatinship fr which a persn seeks reemplyment, des nt exceed five years, except that any such perid f service shall nt include any service-- (1) that is required, beynd five years, t cmplete an initial perid f bligated service; (2) during which such persn was unable t btain rders releasing such persn frm a perid f service in the unifrmed services befre the expiratin f such five-year perid and such inability was thrugh n fault f such persn; (3) perfrmed as required pursuant t sectin f title 10, under sectin 502(a) r 503 f title 32, r t fulfill additinal training requirements determined and certified in writing by the Secretary cncerned, t be necessary fr prfessinal develpment, r fr cmpletin f skill training r retraining; r (4) perfrmed by a member f a unifrmed service wh is-- (A) rdered t r retained n active duty under sectin 688, 12301(a), 12301(g), 12302, 12304, 12304a, 12304b, r f title 10 r under sectin 331, 332, 359, 360, 367, r 712 f title 14; (B) rdered t r retained n active duty (ther than fr training) under any prvisin f law because f a war r natinal emergency declared by the President r the Cngress, as determined by the Secretary cncerned; 4 10 U.S.C b (emphasis supplied)

5 (C) rdered t active duty (ther than fr training) in supprt, as determined by the Secretary cncerned, f an peratinal missin fr which persnnel have been rdered t active duty under sectin f title 10; (D) rdered t active duty in supprt, as determined by the Secretary cncerned, f a critical missin r requirement f the unifrmed services; (E) called int Federal service as a member f the Natinal Guard under chapter 15 f title 10 r under sectin f title 10; r (F) rdered t full-time Natinal Guard duty (ther than fr training) under sectin 502(f)(2)(A) f title 32 when authrized by the President r the Secretary f Defense fr the purpse f respnding t a natinal emergency declared by the President and supprted by Federal funds, as determined by the Secretary cncerned. 5 At the end f yur current year f 12304b duty, yu will have the right t reemplyment at yur civilian jb, and this year f invluntary active duty des nt cunt tward yur five-year limit U.S.C. 4312(c) (emphasis supplied).