LAW REVIEW 1136
Five-Year-Limit Primer: Your job protection is up to you.
By Captain Samuel F. Wright, JAGC, USN
126.96.36.199 -- Character & Duration of Service
Q: I am a Marine Corps Reserve officer and a member of ROA.
When not on active duty, I work as an airline pilot. Since the terrorist
attacks of Sept. 11, 2001,
I have been away from my civilian job for almost seven years of active
duty—some voluntary and some involuntary. I have been trying to ‑figure out
which of my active-duty periods count toward my ‑five-year limit under the
Uniformed Services Employment and Reemployment Rights Act (USERRA), and which
periods are exempt. This is too complicated. Why should this burden be placed
on the individual reservist? Somebody should take on this responsibility for
the individual reservist. What about the civilian employer? What about the
Marine Corps Reserve? What about the National Committee for Employer Support of
the Guard and Reserve (ESGR)? What about the Department of Labor (DoL)? Can’t
these organizations take the burden off the individual reservist?
A: Nobody but you can protect your job. If you want to
preserve your right to reemployment under USERRA, it is incumbent upon you to
ensure that you meet USERRA eligibility criteria, including, but not limited
to, the five-year limit. As I explained in Law Review 0766, and other articles,
you must meet five criteria to have the right to reemployment:
1. You must have left a civilian position of employment for
the purpose of performing voluntary or involuntary service in the uniformed
2. You must have given the employer prior oral or written
notice that you would be leaving for the purpose of service.
3. Your cumulative period, or periods, of uniformed service,
relating to the employer relationship for which you seek reemployment, must not
have exceeded five years. Not all duty counts toward the five-year limit.
4. You must have been released from the period of service
without having received a punitive (court martial) or other-than-honorable
5. You must have made a timely application for reemployment
after release from the period of service.
You must meet these criteria with respect to each period of
service, whether for a drill weekend or five years of voluntary active duty.
You must be prepared to document that you meet the criteria. I suggest that you
carefully dot all the I’s and cross all the T’s. Your civilian employer does
not necessarily understand all the nuances of USERRA, and some employers have
no knowledge of the law whatsoever. Moreover, the employer is not necessarily
on your side. Even in the “good old days” when Reserve Component service was
generally limited to one weekend per month and two weeks of annual training,
some employers strenuously objected to the burden of employing a National Guard
or Reserve member. Now that we are talking about repeated periods of voluntary
or involuntary service, often for months at a time, some employers are willing
to spend big bucks to hire lawyers to help them get out from under USERRA
requirements. If you fail to meet even one of the five criteria, you do not
have the legal right to reemployment upon release from service. I strongly suggest
that you not rely on the employer’s goodwill. Don’t assume that the employer
will reemploy you.
If you tell the employer that you will be gone for a year of
military service and then you extend for a second year, it is essential that
you inform the employer of the extension. I suggest you do so by certified
mail, and retain a copy of the letter and the evidence that the employer
received it. But don’t expect the employer to sign on to your assertion that
the first year or the second year is exempt from the ‑five-year limit.
You must meet all five of the eligibility criteria to have
the right to reemployment. That means that you must be released from the period
of service and then apply for reemployment. When you show up at the civilian
place of employment with your form DD-214 in hand, the employer then needs to
determine if you are within the ‑five-year limit and if you meet the other four
criteria. Until you are ready to return to work, the employer need not make—and
probably will not make—a determination about the five-year limit or the other
Even if the employer says something to the effect that your
service is exempt from the five-year limit, an earlier employer statement is
not binding on the employer. When you finally leave active duty and apply for
reemployment—and after the employer is “lawyered up”—the employer may contest
your assertion that a period of service does not count toward the limit. In the
final analysis, if push comes to shove, it may be up to a court to determine
whether you are within or outside the five-year limit with respect to that
Similarly, you cannot rely on the Marine Corps Reserve to
compute the five-year limit for you. The folks at the personnel office may not
even know the meaning of the acronym USERRA. They certainly don’t know the
details of the five-year limit. And the Marine Corps may not know when you
started to work for your present employer. ESGR and the DOL
generally don’t come into the picture until you have an actual claim for
reemployment, which the employer has denied.
Law Review 201: “Have I Exceeded the Five-Year Limit?” goes
into great detail as to how the five-year limit is computed— what counts and
what does not count. The shorthand version is that all involuntary service and
some voluntary service are exempted from the computation of the five-year
limit. It is incumbent on you to determine how much of the five-year limit you
have already used and how much “headroom” you have left. Before you agree to a
new voluntary period of active duty or a voluntary extension of your active
duty, be sure that the new period or extension does not put you over the five-year
Q: Some of my military orders contain a paragraph explicitly
stating that the duty performed under the order is exempt from the computation
of the five-year limit under USERRA. Can I rely on that paragraph?
A: Not necessarily. As I explain in detail in Law Review
201, five of the eight exemptions require the “secretary concerned” to make a determination
and written certification. The term secretary concerned refers to the service
secretary, such as the secretary of the Navy. A 1998 Department of Defense
instruction provides that the service secretary can delegate this
responsibility, but not below the “assistant secretary” level. These
determinations are normally made by the assistant secretary of the Navy for
Manpower and Reserve Affairs, or by similar officials in the Department of the
Army or the Department of the Air Force, or by the Commandant of the Coast
Guard for that service.
I am concerned about many of the military orders that I have
read. Instead of a general statement to the effect that the period is exempt
from the five-year limit, I want to see a specific citation to the written
determination by the service secretary or assistant secretary. If the question
of your right to reemployment must be litigated—and if the question comes down
to whether a particular period of service is exempt from the five-year
limit—the court will likely demand to see evidence that the proper official has
made the determination.
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