No, disabled veterans do not need a 180-day waiver for federal employment

legalbeagle

Registered Member
I first posted this gouge in the Military Physical Evaluation Board Info FB group, but also wanted to share here.

The question that has been asked by several (including myself) is: do disabled vets follow the same 180 day pause for federal employment that normal retirees do?

The BLUF answer is "no".

Here's why: OPM has a website that defines various aspects of veteran hiring eligibility to federal employment, which can be found at:

https://www.opm.gov/.../vet-guide-for-hr-professionals/

If you look under the "180-Day Restriction" rule on that site, you'll see the relevant statute (5 U.S.C. 3326), which can be read at:

https://www.law.cornell.edu/uscode/text/5/3326

The statute articulates that "A retired member of the armed forces may be appointed...during the period of 180 days..."

This requires us to ask "What's the definition of "retired member of the armed forces". For that, we need to look at the definitions section under 5 U.S.C, specifically (5 U.S.C. 2108)

https://www.law.cornell.edu/uscode/text/5/2108

Under 5 U.S.C. 2108, a "retired member of the armed forces" means a member or former member of the armed forces who is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member."

This definition is VERY important, because "disabled veteran" is also defined in this section. "Disabled veteran" is a separate and distinct entity under the code. Congress was not ambiguous in this regard, as both definitions are articulated in plain language.

Using this interpretation, we can correctly interpret that the Congress intended that ONLY RETIRED members of the armed forces, NOT disabled veterans, must be bound by the 180-day waiting period.

In conclusion, disabled veterans are NOT bound to the 180-day waiting period, as Congress chose to encumber only a "retired member of the armed forces" under this restriction.

Hopefully, this helps out other forum members in a similar situation.
 

RonG

Staff Member
PEB Forum Veteran
Registered Member
Although this does not affect me, I am curious how cases involving a person who receives a Chapter 61 retirement are considered.


Ron
 

legalbeagle

Registered Member
RonG,

Under 5 U.S.C., Congress defined "disabled veteran" as:

"“disabled veteran” means an individual who has served on active duty in the armed forces, (except as provided under section 2108a) has been separated therefrom under honorable conditions, and has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the Department of Veterans Affairs or a military department".

So, even if Chapter 61 retirees are still granted "retirements", due to compensation payments by VA and/or DoD, they still do not fall under the 180-day rule. Again, Congress is pretty specific what delineates a "retired member of the armed forces" and a "disabled veteran".
 

afangel2005

PEB Forum Veteran
Registered Member
I first posted this gouge in the Military Physical Evaluation Board Info FB group, but also wanted to share here.

The question that has been asked by several (including myself) is: do disabled vets follow the same 180 day pause for federal employment that normal retirees do?

The BLUF answer is "no".

Here's why: OPM has a website that defines various aspects of veteran hiring eligibility to federal employment, which can be found at:

https://www.opm.gov/.../vet-guide-for-hr-professionals/

If you look under the "180-Day Restriction" rule on that site, you'll see the relevant statute (5 U.S.C. 3326), which can be read at:

https://www.law.cornell.edu/uscode/text/5/3326

The statute articulates that "A retired member of the armed forces may be appointed...during the period of 180 days..."

This requires us to ask "What's the definition of "retired member of the armed forces". For that, we need to look at the definitions section under 5 U.S.C, specifically (5 U.S.C. 2108)

https://www.law.cornell.edu/uscode/text/5/2108

Under 5 U.S.C. 2108, a "retired member of the armed forces" means a member or former member of the armed forces who is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member."

This definition is VERY important, because "disabled veteran" is also defined in this section. "Disabled veteran" is a separate and distinct entity under the code. Congress was not ambiguous in this regard, as both definitions are articulated in plain language.

Using this interpretation, we can correctly interpret that the Congress intended that ONLY RETIRED members of the armed forces, NOT disabled veterans, must be bound by the 180-day waiting period.

In conclusion, disabled veterans are NOT bound to the 180-day waiting period, as Congress chose to encumber only a "retired member of the armed forces" under this restriction.

Hopefully, this helps out other forum members in a similar situation.
That's great information, but unfortunately here's the information I've gotten from the Air Force. Has anyone had any success with actually getting a Federal Agency to hire them, if medically retired and within the 180 days, without a waiver?

From AFPC Program Oversight:

Response: A military service member that is retired for 180 days or less will require a waiver for civilian employment unless the position hired into is covered by a special pay authority established under 5 USC 5305, or the appointment is directed by the Secretary of the military component. The waiver requirement is for retiring/retired service members entitled to retirement/retired/retainer pay and is not based on the reason for retirement nor is it based on the source of payment.

This has been confirmed with A1 General Counsel, that the "entitlement" to receive retired, retirement, or retainer pay also applies to the service member with less than 20 years active duty that was medically retired. The source of their payment is from a different entity such as the Department of Veterans Affairs, but the entitlement remains. Another way to look at this is that the service member wouldn't be entitled to receive the regular payments from the VA in lieu of retired, retirement or retainer pay, had the service member not been entitled to retirement with a disability rating of 30% or more. DoDI 1402.01, "Employment of Retired Members of the Armed Forces" also defines a retired member of the Armed Forces as "a member or former member of the Armed Forces who is entitled to retired, retirement, or retainer pay."

Title 37 USC 2011, Pay and Allowances of the Uniformed Services, section 101(21) definition of pay states: the term "pay" includes basic pay, special pay, retainer pay, incentive pay, retired pay, and equivalent pay, but does not include allowances. The pay from the VA is an equivalent pay, and in some cases, may exceed the retirement pay. There are four military retirement plans: Final Pay, High-36, CBS/REDUX, and Disability. Each retirement plan has qualifying criteria. For Disability, it is when determined medically unfit for continued service with a DoD disability rating of at least 30%. The disability retirement pay is computed using two different methods and the method that is most beneficial to the service member determines the amount of pay.

We also have confirmation from AF Military Separation and AFPC Legal that medically retired service members are retired, are entitled to retired pay, are entitled to and issued a valid retired ID card, receive retirement orders, and have a DFAS pay account established (even if receiving VA compensation). Therefore, as a retired military service member, the 180-day waiver requirement applies.
 

Padgettra

PEB Forum Veteran
Registered Member
Interesting thread yet to my knowledge my HR office has not experienced the Disability retiree situation. We go ahead and interview, select and make an offer. If the candidate accepts, then we hold the position until they can start. In general, anytime an agency offers and job and the candidate accepts, then we have to hold the position for them to separate from their current employment, leave active duty, or for the 180 days to time out. This has happened a few times in the past 7 years that I have worked HR and the agency did this for me back in 2012 when accepted a position in March, yet did not come off MEDCON orders until July. Our National Guard agency employs around 1200 military technicians and Title 5 civilians. Ron P
 

legalbeagle

Registered Member
Afangel 2005,

First off, let me say that I am a Navy Paralegal, not an attorney, so anything that I write on this forum should not be construed as legal advice (because I obviously, cannot and would not make that assertion, attorney or not).

With that out of the way, I believe that the A1 General Counsel, et. al., are incorrectly interpreting the Congressional statutes here. More importantly, remember the "chain of command" IRT what law overrides another (Congressional statutes override agency instructions in the event of clear and unambiguous language). Because Congress saw fit to define "retired member" and "disabled veteran" as separate legal definitions, any subsequent laws/instructions MUST follow those definitions in an unambiguous manner, else the courts can "void for vagueness" those laws that are ambiguous. All that being said, I have reviewed your citations and have found nothing that overrides 5 U.S.C. 2108, particularly anything that combines "retired member" and "disabled veteran" under one umbrella as your POC's have interpreted.

37 U.S.C. 101(21) also does not combine VA disabled pay and DoD retired pay under one umbrella. Instead, these definitions are constrained to DoD members only, not VA. Please note that VA and DoD are separate Federal entities, and if there is a statute that is intended to serve the purpose of combining the two pays, then it must also be codified in statute.

...Of which brings me back to 5 U.S.C. 2108, where Congress DID in fact combine the two agencies (VA and DoD) in order to delineate how each should be interpreted in subsequent statutes and agency regulations. Very curious that you write "We also have confirmation from AF Military Separation and AFPC Legal that medically retired service members are retired..." I would be very interested to see what publications they explicitly cite to that justifies that assertion.

In 5 U.S.C 2108, "Retired member of the armed forces" is defined as a member/former member who is ENTITLED, under statute, to retired, retirement, or retainer PAY on account of service as a member." This definition defines that the "retired member" must be ENTITLED to PAY. As the word "pay" is not explicitly defined in this chapter, it would then be interpreted via the plain-language definition of "To pay is to deliver to a creditor the value of a debt, either in money or in goods, for his acceptance, by which the debt is discharged" (Blacks Law Dictionary). Another simpler plain-language definition of "pay" is legal tender...money.

Going further, a <20 year disabled veteran would NOT be ENTITLED to pay. Even if they chose not to waive their VA disability for DoD retirement pay, they would not gain any benefit, due to the statutes mandating 20 years of computable service time to gain eligibility (10 U.S.C. Part II). As such, we can rule out that "retired member" CANNOT be combined with "disabled veteran", so long as they are NOT ENTITLED to pay (aka: the <20 year vet).

So, the very long conclusion that I interpret is that those disabled vets with LESS than 20 years of service do NOT have to wait 180 days. However, those disabled vets who DO have 20 years or more DO have to wait 180 days.

I am not bound to my interpretation, and if there is something that I am missing, then please let me know.
 

afangel2005

PEB Forum Veteran
Registered Member
Afangel 2005,

First off, let me say that I am a Navy Paralegal, not an attorney, so anything that I write on this forum should not be construed as legal advice (because I obviously, cannot and would not make that assertion, attorney or not).

With that out of the way, I believe that the A1 General Counsel, et. al., are incorrectly interpreting the Congressional statutes here. More importantly, remember the "chain of command" IRT what law overrides another (Congressional statutes override agency instructions in the event of clear and unambiguous language). Because Congress saw fit to define "retired member" and "disabled veteran" as separate legal definitions, any subsequent laws/instructions MUST follow those definitions in an unambiguous manner, else the courts can "void for vagueness" those laws that are ambiguous. All that being said, I have reviewed your citations and have found nothing that overrides 5 U.S.C. 2108, particularly anything that combines "retired member" and "disabled veteran" under one umbrella as your POC's have interpreted.

37 U.S.C. 101(21) also does not combine VA disabled pay and DoD retired pay under one umbrella. Instead, these definitions are constrained to DoD members only, not VA. Please note that VA and DoD are separate Federal entities, and if there is a statute that is intended to serve the purpose of combining the two pays, then it must also be codified in statute.

...Of which brings me back to 5 U.S.C. 2108, where Congress DID in fact combine the two agencies (VA and DoD) in order to delineate how each should be interpreted in subsequent statutes and agency regulations. Very curious that you write "We also have confirmation from AF Military Separation and AFPC Legal that medically retired service members are retired..." I would be very interested to see what publications they explicitly cite to that justifies that assertion.

In 5 U.S.C 2108, "Retired member of the armed forces" is defined as a member/former member who is ENTITLED, under statute, to retired, retirement, or retainer PAY on account of service as a member." This definition defines that the "retired member" must be ENTITLED to PAY. As the word "pay" is not explicitly defined in this chapter, it would then be interpreted via the plain-language definition of "To pay is to deliver to a creditor the value of a debt, either in money or in goods, for his acceptance, by which the debt is discharged" (Blacks Law Dictionary). Another simpler plain-language definition of "pay" is legal tender...money.

Going further, a <20 year disabled veteran would NOT be ENTITLED to pay. Even if they chose not to waive their VA disability for DoD retirement pay, they would not gain any benefit, due to the statutes mandating 20 years of computable service time to gain eligibility (10 U.S.C. Part II). As such, we can rule out that "retired member" CANNOT be combined with "disabled veteran", so long as they are NOT ENTITLED to pay (aka: the <20 year vet).

So, the very long conclusion that I interpret is that those disabled vets with LESS than 20 years of service do NOT have to wait 180 days. However, those disabled vets who DO have 20 years or more DO have to wait 180 days.

I am not bound to my interpretation, and if there is something that I am missing, then please let me know.
Oh I completely agree with your interpretation! The struggle is convincing the Air Force or other federal agencies of that. My hope, by posting this, was to get someone who had success on convincing a federal agency that the 180 day rule didn't apply to them and was hired on as a civilian, to share their story in how they were able to do that.

Thank you for doing the legwork of finding the references supporting that the 180 day rule isn't intended to be applied to medical retirees with less than 20 years!
 

legalbeagle

Registered Member
Afangel2005,

I will be experiencing this myself in a few months. The Navy HR department that I have relayed this information to has thus-far concurred with my interpretations, and I don't expect any roadblocks as a result. I also work at OJAG, so I have the benefit of attorneys reviewing my analysis within my COC.

Once I'm hired, I'll come back and share, but also wanted to share my interim legal research with the hope it helps others. This gets into the weeds, and as such, is easy to miss by hiring authorities who prefer "elevator speech" explanations.

Also, I re-read everything I've written thus-far and need to clarify that I am speaking explicitly about those vets with LESS than 20 years of service, and who were medically retired. Vets with 20 years or MORE of service WILL fall under the 180-day rule unfortunately.
 

RGZWS6

Registered Member
FWIW, Having just attended the 5-day transition course (TAP), this topic came up during a discussion. A point that is often overlooked is that this 180-day rule applies only to DoD Civil Service. You can still retire from DoD and get hired on to VA, IRS, DHS etc. without a waiver or special provisions.
 
data-matched-content-ui-type="image_stacked" data-matched-content-rows-num="3" data-matched-content-columns-num="1" data-ad-format="autorelaxed">
Top