Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
I am an Army retiree and a federal employee with 13 years of service going through a Reduction in Force (RIF) because of Base Realignment and Closure (BRAC). For the past 11 years, all of my SF50 actions checked “YES” for the block “Veterans’ preference for RIF.” On my last SF50 action, it is now marked “NO.” When I questioned this, I was told there is a difference between veterans’ preference in appointments and veterans’ preference in RIFs and that I was eligible for veterans’ preference for appointment but not for RIFs. Is there any light you could shed on veterans’ preference during a RIF?
A:
Except for the purposes of Chapter 43 (performance actions) and Chapter 75 (adverse actions) of Title V, veterans preference is limited to only disabled veterans or veterans who retired below the rank of major or its equivalent. See 5 U.S.C. 2108(4). Accordingly, for the purposes of a Reduction in Force (RIF), an employee is only eligible for veterans’ preference if he or she is either a disabled veteran or retired below the rank of major. Unless you meet either of these two criteria, your agency is correct in its determination that you may have qualified for veterans’ preference for appointment, but do not qualify for veterans’ preference for a RIF.
Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.
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4 Comments
I would have to disagree with this answer, military retirees are not eligible for a preference for Rif but veterans with a 5 point or 10 point preference that did not retire are eligible for rif preference. According to the OPM veterans are set in Subgroups according to thier point preference and tenure. Subgroup A for veterans without preference, Subgroup B for 5 point preference, and Subgroup C for 10 point preference (which is a disabled vet). Before these Subgroups are selected for the Rif the Civilian workforce would be selected for Rif first according to tenure then the Subgroups starting with Subgroup A. Any officer below Major that didnt retire from the military are eligible for Rif Preference only if they meet the requirements of a 5 or 10 Point Preference (this also is a requirement for enlisted).
For Grey-Area Retired Reserve Officers – not collecting pay, maintain RIF protection regardless of rank.
If I understand the answer correctly, retired Majors or above without a disability rating are not eligible for Veterans Preference during a RIF. However, if you are a Major or above with a disability rating you are eligible for Veterans Preference During a RIF. Is this correct?
You all need to read the fine details of the law. No retired military member is protected from RIF unless they meet one of 3 specific criteria. The common belief that all retirees below the rank of Major are protected in a RIF is incorrect. They are only protected if they meet the following:
Retirees below the rank of major (or equivalent) get preference if:
•Retirement from the uniformed service is based on disability that either resulted from injury or disease received in the line of duty as a direct result of armed conflict, or was caused by an instrumentality of war and was incurred in the line of duty during a period of war as defined in section 101(11) of title 38, U. S. C. “Period of war” includes World War II, the Korean conflict, Vietnam era, the Persian Gulf War, or the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress; or
•The employee’s retired pay from a uniformed service is not based on 20 or more years of full-time active service, regardless of when performed but not including periods of active duty for training; or
•The employee has been continuously employed in a position covered by the 5 U.S.C. chapter 35 since November 30, 1964, without a break in service of more than 30 days.
Notice that if a retiree retired based on years of service, and not a medical consition that was a direct result of combat, then they are NOT eligible.