[Federal Register Volume 72, Number 50 (Thursday, March 15, 2007)]
[Rules and Regulations]
[Pages 12031-12032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4697]



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  Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules 
and Regulations  

[[Page 12031]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR PART 211

RIN 3206-AL00


Veterans' Preference

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is adopting as a 
final rule, without changes, an interim rule that implemented 
amendments to veterans' preference as contained in the National Defense 
Authorization Act for FY 2006. These amendments expanded the definition 
of a veteran and clarified veterans' preference eligibility for 
individuals discharged or released from active duty under honorable 
conditions. The intended effect of the regulatory changes was to 
conform OPM's regulations to the changes in the veterans' preference 
laws, to ensure that job-seeking veterans received the preference to 
which they are entitled.

DATES: Final rule effective March 15, 2007.

FOR FURTHER INFORMATION CONTACT: Scott A. Wilander by telephone at 
(202) 606-0960; by fax at (202) 606-0390; TTY at (202) 606-3134; or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: On June 9, 2006, OPM issued an interim rule 
with request for comments at 71 FR 33375, to amend its regulation for 
implementing statutory changes regarding veterans' preference. This 
rule: (1) Expanded the definition of a veteran in 5 CFR 211.102(a) to 
include individuals who served on active duty for more than 180 
consecutive days, other than for training, any part of which occurred 
during the period beginning September 11, 2001, and ending on the date 
prescribed by Presidential proclamation or by law as the last day of 
Operation Iraqi Freedom; (2) revised Sec.  211.102(a) to include anyone 
who served on active duty during the period beginning August 2, 1990, 
and ending January 2, 1992, as previously established by the National 
Defense Authorization Act for Fiscal Year 1998 (Public Law 105-85); (3) 
clarified that individuals who are released or discharged from active 
duty in the armed forces, as opposed to being separated from the armed 
forces, may receive veterans' preference provided these individuals 
meet other applicable veterans' preference eligibility requirements; 
and (4) amended Sec.  211.102(g) to correspond with the changes in 
Sec.  211.102(a) and (b) by replacing the term ``Separated under 
honorable conditions'' with ``Discharged or released from active duty'' 
consistent with the statutory change contained in the Act.
    OPM received written comments from one agency and 7 individuals, 
and one voice-mail comment from an individual. Of the nine comments 
received, three expressed concern and confusion as to whether 
dishonorably discharged veterans would receive veterans' preference 
under the new criteria. As stated in the interim regulation and Sec.  
211.102(g), a veteran must have been separated under honorable 
conditions (i.e., an honorable or general discharge) to be eligible for 
veterans' preference under these provisions.
    One individual asked whether agencies must grant veterans' 
preference to employees currently on their rolls who did not have the 
preference documented at the time the interim regulation was published. 
Agencies are not required to update their employees' Official Personnel 
Files (OPF) as a result of the interim regulation. Because veterans' 
preference is a consideration in a reduction in force (RIF), any agency 
preparing for a RIF must update their employees' OPFs (block 26 on the 
Standard Form--50) to ensure that individuals entitled to veterans' 
preference are accorded their rights for RIF purposes.
    One agency asked OPM to clarify the phrase, ``the date prescribed 
by Presidential proclamation or by law as the last day of Operation 
Iraqi Freedom'' contained in Sec.  211.102(a)(6). The phrase refers to 
the ending date (yet to be determined) of the period during which 
anyone who served on active duty and is otherwise eligible is entitled 
to veterans' preference under these provisions. The President, through 
proclamation, or Congress, through legislation, is responsible for 
designating the termination date of military operations which qualify 
for veterans' preference. OPM will revise the regulations and update 
the VetGuide when this ending date becomes available.
    Another commenter asked whether the expanded veterans' preference 
criteria in Sec.  211.102(a)(6) is for purposes of granting 5-point 
veterans' preference or for some other purpose. Anyone who meets the 
criteria in Sec.  211.102(a)(6), and is otherwise eligible, is entitled 
to 5-point veterans' preference as well as additional protection during 
a reduction in force. Otherwise eligible in this context means the 
veteran must meet the requirements of Sec.  211.201(g) and have served 
either 24 months of continuous active duty, or the full period of time 
called or ordered to active duty. OPM is updating VetGuide to clarify 
this information.
    One individual asked whether the veterans' preference criteria in 
Sec.  211.102(a)(6) included veterans at the rank of major and above. 
The provision in Sec.  211.102(a)(6) made no change to the statutory 
restriction against veterans' preference entitlement for retired 
officers at the rank of major and above. Therefore, military retirees 
at the rank of major, lieutenant commander, or higher are not eligible 
for preference in appointment unless they are disabled veterans (this 
restriction does not apply to reservists who will not begin drawing 
military retired pay until age 60).
    One individual asked OPM to clarify whether a veteran must have 
served continuously for 24 months in order to be eligible under Sec.  
211.102(a)(6). A veteran must have served continuously for 24 months, 
or the full period called or ordered to active duty, in order to be 
eligible for veterans' preference under Sec.  211.102(a)(6). This 
requirement, contained in 38 U.S.C. 5303A, prescribes a minimum of 2 
years, service (or the full period called or ordered to active duty) 
for those enlisting after September 7, 1980, or who enter on active 
duty after October 14, 1982. This requirement does not apply to 
individuals seeking 10-point veterans' preference on the basis of a 
service-connected disability. OPM will

[[Page 12032]]

update VetGuide to further clarify the application of the 24-month 
requirement.
    One commenter recommended OPM replace the word ``badge'' with 
``medal'' or ``badge or medal'' in Sec.  211.102(a)(2). OPM is not 
adopting this recommendation because the reference to ``badge'' is 
contained in law at 5 U.S.C. 2108(1)(A). Further, military personnel 
receive many awards and decorations which are determined by the 
Department of Defense. OPM and its predecessor agency, the Civil 
Service Commission, have always used the terms ``badge'' and ``medal'' 
interchangeably, as appropriate. We believe VetGuide provides 
sufficient explanation of the many badges and medals which qualify for 
purposes of veterans' preference.
    The same individual asked OPM to clarify in the final regulation 
whether an Army ``service medal'' qualifies an individual for veterans' 
preference under part 211. OPM is not adopting this suggestion. The 
list of military campaigns, expeditions, awards, and decorations 
qualifying for veterans' preference is too lengthy to be contained in 
this part. However, OPM lists this information in Appendix A of 
VetGuide available on-line at http://www.opm.gov/veterans/html/vgmedal2.asp. In general, service medals are not qualifying for 
purposes of veterans' preference.
    One commenter asked OPM to explain the significance of changing 
``separated'' to ``released or discharged'' in Sec.  211.102(a), (b), 
and (g). OPM modified part 211 in order to be consistent with recent 
statutory changes to 5 U.S.C. 2108. With these changes the law, OPM's 
implementing regulations, and Department of Defense (DD) Form 214, 
Certificate of Release or Discharge from Active Duty, the form used by 
veterans to claim 5-point veterans' preference, all use the same 
language which should make it easier for eligible veterans to receive 
their entitlement.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

Regulatory Flexibility Act

    I certify that this regulation would not have a significant 
economic impact on a substantial number of small entities (including 
small businesses, small organizational units, and small governmental 
jurisdictions) because it affects only Federal agencies employees.

List of Subjects in 5 CFR Part 211

    Government employees, Veterans.

    Office of Personnel Management.
Linda M. Springer,
Director.

0
Accordingly, the interim rule amending part 211 of title 5, Code of 
Federal Regulations, which was published at 71 FR 33375 on June 9, 
2006, is adopted as a final rule without changes.
[FR Doc. E7-4697 Filed 3-14-07; 8:45 am]
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