[Federal Register Volume 63, Number 217 (Tuesday, November 10, 1998)]
[Notices]
[Pages 63082-63083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30138]


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DEPARTMENT OF LABOR

Employment and Training Administration (ETA)


Unemployment Compensation for Ex-servicemembers (UCX) Program: 
Unemployment Insurance Program Letter Amending the Consolidated List of 
``Acceptable'' Narrative Reasons for Separation Transmitted in UIPL No. 
3-95, Change 1 to Include Those Dealing With ``Inaptitude.''

    ETA has responsibility for administration of the UCX program, 
providing unemployment compensation benefits for ex-servicemembers. ETA 
issues interpretations affecting the UCX program in Unemployment 
Insurance Program Letters (UIPLs) to the State Employment Security 
Agencies (SESAs). The UIPL described below is published in the Federal 
Register in order to inform the public.

UIPL 3-95, Change 2

    To be eligible for UCX, an ex-servicemember must, among other 
requirements, meet the definition of ``Federal service.'' This requires 
that the servicemember be separated under honorable conditions and have 
completed a first full term of service. If separated before completing 
the first full term, the separation must be for, among other reasons, 
``inaptitude,'' but only if the service was continuous for at least 365 
days. On December 6, 1994, UIPL No. 3-95 was issued to all SESAs 
formally transmitting a new consolidated list of acceptable narrative 
reasons for separation, except those for ``inaptitude,'' and 
instructions for their use in determining individual eligibility for 
UCX benefits.
    UIPL No. 3-95 informed the SESAs that ETA would amend the list of 
``acceptable'' narrative reasons for separation when it was determined 
which narrative reasons for separation were for ``inaptitude.'' DOL has 
now finalized the list of ``acceptable'' narrative reasons for 
separation dealing with ``inaptitude'' in UIPL No. 3-95, Change 2.

    Dated: November 5, 1998.
Raymond L. Bramucci,
Assistant Secretary of Labor.
DIRECTIVE: Unemployment Insurance Program Letter No. 3-95, Change 2

TO: All State Employment Security Agencies

FROM: Grace A. Kilbane, Director, Unemployment Insurance Service

SUBJECT: UCX Narrative Reasons for Separation from Military Service

    1. Purpose. To amend the consolidated list of ``acceptable'' 
narrative reasons for separation transmitted in Unemployment 
Insurance Program Letter (UIPL) No. 3-95 and UIPL No. 3-95, Change 1 
to include those dealing with ``inaptitude.''
    2. References. UIPL No. 3-95; UIPL No. 3-95, Change 1; 5 U.S.C. 
8521(a)(1); and 20 CFR Part 614.
    3. Background. On December 6, 1994, UIPL No. 3-95 was issued to 
all State Employment Security Agencies (SESAs) formally transmitting 
a new consolidated list of acceptable narrative reasons for 
separation, except those for ``inaptitude,'' and instructions for 
their use in determining indi-vidual eligibility for UCX benefits. 
The military services began to use exclusively the consolidated list 
of ``acceptable'' narrative reasons for separation after October 1, 
1993.
    After the issuance of UIPL No. 3-95, the Department of Labor 
(DOL) received several inquiries from SESAs regarding the effective 
date of the new instructions for using the consolidated list of 
acceptable narrative reasons for separation that was contained in 
UIPL No. 3-95. UIPL No. 3-95 stated that the new consolidated list 
of acceptable narrative reasons for separation was effective for all 
separations from military service on or after December 6, 1994, the 
date of the directive. Since the DOL did not provide for a 
retroactive application of the consolidated list in UIPL No. 3-95, 
some SESAs assumed that UIPL No. 25-83 and Changes 1-12 were 
controlling for the period October 1, 1993, to December 5, 1994.
    Consequently, UIPL No. 3-95, Change 1 was issued revising the 
effective date of UIPL No. 3-95 and provided clarifying instructions 
concerning the effective dates of lists of ``acceptable'' narrative 
reasons for separation.
    Further, UIPL No. 3-95 informed the SESAs that the DOL would 
amend the list of ``acceptable'' narrative reasons for separation 
when it was determined which narrative reasons for separation were 
for ``inaptitude.'' DOL has now finalized the list of ``acceptable'' 
narrative reasons for separation dealing with ``inaptitude.''
    The contents of this directive will also be issued as a Change 
14 to ET Handbook No. 384, Second Edition.
    4. DOL Definition of ``Inaptitude.'' DOL defines ``inaptitude'' 
as being ``unsuitable for military service for reasons largely 
related to personal characteristics not reflected by acts of serious 
misbehavior.''
    5. Narrative Reasons for Separation Meeting DOL's Definition of 
Inaptitude. DOL determined that 20 narrative reasons, listed in the 
attachment to this directive, constitute ``inaptitude'' under the 
above definition for UCX qualifying purposes. DOL estimates that 
this broader definition will allow approximately 2,500 to 3,000 
additional claimants per year to qualify for UCX.
    6. Effective Date. The narrative reasons for separation that DOL 
has determined constitute ``inaptitude'' within the meaning of 5 
U.S.C. 8521(a)(1)(B)(ii)(IV) shall be effective for all initial 
claims filed on and after the date of this directive. However, where 
State law permits, a monetary redetermination must be issued when: 
(1) a claimant requests a redetermination on a new or previously 
denied claim or files an additional or renewed claim for benefits, 
and (2) the claimant's military service is within

[[Page 63083]]

the State's base period at the time of the request or effective date 
of claim.
    Any redetermination of monetary eligibility must be based upon 
the ``new list'' of acceptable narrative reasons for discharge. This 
applies to any claimant who has or who would have had a benefit year 
in effect which would have included UCX wage credits, if not for the 
denial based on the prior list of acceptable narrative reasons for 
discharge. However, this new interpretation only impacts weeks of 
unemployment after the date of this directive, i.e., although a 
redetermination may result in future eligibility or a higher weekly 
benefit amount, no back payments will be made as a result of wage 
credits that were unavailable to the claimant prior to the date of 
this directive.
    The new list of ``acceptable'' narrative reasons for separation 
constituting ``inaptitude'' represents a substantial expansion from 
October 1, 1993, of both the types and the numbers, of separations 
designated as ``inaptitude.'' Prior to October 1, 1993, there was 
only one DOD narrative reason used to denote discharges for 
``inaptitude.'' This reason was designated as ``Unsuitability--
Inaptitude.'' However, since October 1, 1993, the DOD had ceased 
using this narrative reason.
    Although it is a sound rule of administrative law to apply new 
statutory interpretations prospectively, UIPL No. 3-95 announced an 
intent to make retroactive the amended list of ``acceptable'' 
narrative reasons for separation constituting ``inaptitude.'' DOL 
initially believed that a substantial number of ex-servicemembers 
might have been prejudiced by having no discharges designated as 
``inaptitude'' from late 1993 until the new ``inaptitude'' list was 
released and thus examined whether to apply this expanded list 
retroactively to October 1, 1993. However, as explained below, DOL, 
in consultation with DOD, has since determined that very few 
servicemembers would be prejudiced by an application that was only 
prospective and, therefore, the public interest would not be served 
by a retroactive application.
    DOD has informed DOL that there were only seven discharges with 
a narrative reason related to ``inaptitude'' (designated as 
``Unsuitability--Inaptitude'') during the three fiscal years 
immediately prior to October 1, 1993. This information suggests that 
very few servicemembers likely would have been discharged after 1993 
for the ``inaptitude'' narrative reason for separation had the pre-
October 1, 1993 narrative reason continued in use. Thus, very few 
individuals dis-charged after October 1, 1993, but prior to the date 
of this issuance, would have had any expectation of qualifying for 
benefits under the prior inaptitude list.
    7. Action Required. SESAs are required to:
    a. Distribute the contents of this directive and the attachment 
to all appropriate staff members.
    b. Destroy the Attachment to UIPL 3-95 Change 1 and utilize the 
Attachment to this Change 2 to UIPL 3-95.
    c. Announce in a newspaper of general circulation, and in other 
appropriate media such as veterans publications, the application of 
the operating instructions contained in this directive and their 
effect on UCX eligibility. The announcements shall include mention 
of the authority under 20 CFR 614.9(a) to issue redeterminations of 
previously denied UCX claims.
    8. Inquiries. Direct inquiries to the appropriate Regional 
Office.
    9. Attachment. Revised List of ``Acceptable'' Narrative Reasons 
for Separation Meeting the Requirements of 5 U.S.C. 
8521(a)(1)(B)(ii)(I)-(IV).

``ACCEPTABLE'' Narrative Reasons for Separation Meeting the 
Requirements of 5 U.S.C. 8521(a)(1)(B)(ii)(I)-(IV)

For the convenience of the government under an early release program 
(5 U.S.C. 8521(a)(1)(B)(ii)(I))
    Medal of Honor Recipient
    Completion of Required Active Service
    Insufficient Retainability (Economic Reasons)
    Reduction in Force
    To Attend School
    Holiday Early Release Program
    Defective Enlistment Agreement
    Erroneous Entry (Other)
    Intradepartmental Transfer*
    Miscellaneous/General Reasons**
Because of medical disqualification, pregnancy, parenthood, or 
Service-incurred injury or disability (5 U.S.C. 
8521(a)(1)(B)(ii)(II))
    Pregnancy or Childbirth
    Parenthood or Custody of Minor Children
    Conditions, not Disability
    Disability, Severance Pay
    Disability, Permanent
    Disability, Temporary
    Disability, Existed Prior to Service, PEB
    Disability, Existed Prior to Service, Med BD
    Disability, Aggravated
    Disability, Other
Because of hardship (5 U.S.C. 8521(a)(1)(B)(ii)(III))
    Surviving Member
    Hardship

    *Effective for separations on or after September 1, 1994.
    **Pertaining only to Army Officers' separations occurring from 
October 1, 1994 through August 31, 1995 and November 14, 1995 
through July 1, 1996.

Because of personality disorders or inaptitude, but only if the 
service was continuous for 365 days or more (5 U.S.C. 
8521(a)(1)(B)(ii)(IV))
    Personality Disorder

    The following are narrative reasons for separation that DOL has 
determined constitute ``inaptitude'' within the meaning of 5 U.S.C. 
8521(a)(1)(B)(ii)(IV) and which are effective for all separations 
from military services on and after the date of this directive:

Conscientious Objector
Weight Control Failure
Ecclesiastical Endorsement
Secretarial Authority
Physical Standards
Erroneous Entry, Alcohol Abuse
Erroneous Entry, Drug Abuse
Non-selection, Permanent Promotion
Non-selection, Temporary Promotion
Failure to Complete a Commission or Warrant Program
Failure to Complete a Course of Instruction
Unsatisfactory Performance
Substandard Performance
Personal Alcohol Abuse
Alcohol Rehabilitation Failure
Drug Rehabilitation Failure
Military Personnel Security Program
Homosexual Admission
Homosexual Act
Non-retention on Active Duty
[FR Doc. 98-30138 Filed 11-9-98; 8:45 am]
BILLING CODE 4510-30-P