Receives orders to report for induction, he issuing date of which precedes his ate of enlistment, shall be discharged rom his Reserve Component for the urpose of induction into the Armed 'orces.

(2) The discharge should be effected oncurrently with the induction so as To continue the individual's military bligation consistent with §50.2(d) of his title.

(3) The date of issuance of orders to eport for induction shall be considered o be the date of mailing of such orders y appropriate authority in the SelecIve Service System.

(f) Individual applicants for assignent or enlistment in the Reserve Components shall not be accepted uness there is reasonable assurance that hey will be available and able to paricipate satisfactorily in the unit conerned. In this respect careful considertion shall be given to the geographical ocation, future plans, and possible onflicts with the civilian occupation f the individual applicant. Individuals ho are engaged in or preparing for a kill listed in the Department of Labor List of Critical Occupations for Screening the Ready Reserve" shall ot be enlisted unless there is an overiding military necessity for their skill consistent with part 125 of this title.

(g) Reserve members who have enisted under the provisions of section 11(d) of title 10, U.S.C., and who therefter incur either a bona fide temorary, nonmilitary obligation requirng overseas residency outside the United States, or a bona fide, temDorary, religious missionary obligation which would conflict with their required participation in reserve trainng, may, upon their request, be reenisted under the provisions of section 11(a) of title 10, U.S.C. Requests under the provisions of this subsection, except those from members who incur a legitimate religious missionary obligation, will be approved by the Secretary of the Military Department concerned. Requests from members based on a religious missionary obligation may be approved by the local National Guard or Reserve Component Commander. Approval of all such requests are subject to the following requirements:

(1) Certification of the obligation is made by the employer, sponsor, or recognized church body as appropriate.

(2) Reserve members concerned have completed their initial period of active-duty-for-training.

(3) The approving authority concerned is satisfied that the request is bona fide.

(4) Reenlistment contracts for such individuals will include an agreement to serve for a period of time which will include the period of temporary, nonmilitary obligation (not to exceed 30 months) plus the remaining obligatory military service remaining under the original enlistment contract. Such reenlistment contracts will assure that each individual will serve a total of six (6) years of reserve service as required by law.

(5) The individual reservists concerned will be carried as members of the inactive National Guard or the Ready Reserve Pool, as appropriate, during the period of nonmilitary obligation, and as such, will be subject to being involuntarily ordered to active duty as authorized by law (see paragraph IV.C.2 of DOD Directive 1215.13, "Unsatisfactory Performance of Ready Reserve Obligation," October 12, 1970.1 (10 U.S.C. 510, 511; sec. 301, 80 Stat. 379, 5 U.S.C. 301)

[36 FR 22576, Nov. 25, 1971]

SERVICE MEMBERS OF THE UNIFORMED
SERVICES

APPENDIX B TO PART 104 SAMPLE EMPLOYER
NOTIFICATION OF UNIFORMED SERVICE

AUTHORITY: 10 U.S.C. 1161.

SOURCE: 62 FR 3466, Jan. 23, 1998, unless otherwise noted.

$104.1 Purpose. This part:

(a) Updates implementation policy, assigns responsibilities, and prescribes procedures for informing Service members who are covered by the provisions of 38 U.S.C chapter 43 and individuals who apply for uniformed service, of their civilian employment and reemployment rights, benefits and obligations.

(b) Implements 38 U.S.C. chapter 43, which updated, codified, and strengthened the civilian employment and reemployment rights and benefits of Service members and individuals who apply for uniformed service, and specifies the obligations of Service members and applicants for uniformed service.

§ 104.2 Applicability.

This part applies to the Office of the Secretary of Defense; the Military Departments, including the Coast Guard when it is not operating as a Military Service in the Department of the Navy by agreement with the Department of Transportation; the Chairman of the Joint Chiefs of Staff; and the Defense Agencies (referred to collectively in this part as "the DoD Components"). The term "Military Departments," as used in this part, refers to the Departments of the Army, Navy, and Air Force. The term "Secretary concerned" refers to the Secretaries of the Military Departments and the Secretary of Transportation with respect to the Coast Guard when it is not operating as a Service in the Department of the Navy. The term "Military Services" refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard.

§104.3 Definitions.

Critical mission. An operational mission that requires the skills or resources available in a Reserve component or components.

Critical requirement. A requirement in which the incumbent possesses unique knowledge, extensive experience, and specialty skill training to successfully fulfill the duties or responsibilities in support of the mission, operation or exercise. Also, a requirement in which the incumbent must gain the necessary experience to qualify for key senior leadership positions within his or her Reserve component.

Escalator position. This is established by the principle that the returning Service member is entitled to the position of civilian employment that he or she would have attained had he or she remained continuously employed by that civilian employer. This may be a position of greater or lesser responsibilities, to include a layoff status, when compared to the employees of the same seniority and status employed by the company.

Impossible or unreasonable. For the purpose of determining when providing advance notice of uniformed service to an employer is impossible or unreasonable, the unavailability of an employer or employer representative to whom notification can be given, an order by competent military authority to report for uniformed service within fortyeight hours of notification, or other circumstances that the Office of the Assistant Secretary of Defense for Reserve Affairs may determine are impossible or unreasonable are sufficient justification for not providing advance notice of pending uniformed service to an employer.

Military necessity. For the purpose of determining when providing advance notice of uniformed service is not required, a mission, operation, exercise or requirement that is classified, or a pending or ongoing mission, operation. exercise or requirement that may be compromised or otherwise adversely affected by public knowledge is sufficient justification for not providing advance notice to an employer.

Non-career service. The period of active uniformed service required to complete the initial uniformed service obligation; a period of active duty or fulltime National Guard duty that is for a specified purpose and duration with no expressed or implied commitment for continued active duty; or participation

in a Reserve component as a member of the Ready Reserve performing annual training, active duty for training or inactive duty training. Continuous or repeated active uniformed service or fulltime National Guard duty that results in eligibility for a regular retirement from the Armed Forces is not considered non-career service.

Officer. For determining those Service officials authorized to provide advance notice to a civilian employer of pending uniformed service by a Service member or an individual who has applied for uniformed service, an officer shall include all commissioned officers, warrant officers, and non-commissioned officers authorized by the Secretary concerned to act in this capacity.

Uniformed service. Performance of duty on a voluntary or involuntary basis in the Army, the Navy, the Air Force, the Marine Corps or the Coast Guard, including their Reserve components, when the Service member is engaged in active duty, active duty for special work, active duty for training, initial active duty for training, inactive duty training, annual training or full-time National Guard duty, and, for purposes of this part, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform such duty.

8104.4 Policy.

It is DoD policy to support non-career service by taking appropriate actions to inform and assist uniformed Service members and former Service members who are covered by the provisions of 38 U.S.C. chapter 43, and individuals who apply for uniformed service of their rights, benefits, and obligations under 38 U.S.C. Chapter 43. Such actions include:

(a) Advising non-career Service members and individuals who apply for uniformed service of their employment and reemployment rights and benefits provided in 38 U.S.C. chapter 43, as implemented by this part, and the obligations they must meet to exercise those rights.

(b) Providing assistance to Service members, former Service members and

individuals who apply for uniformed service in exercising employment and reemployment rights and benefits.

(c) Providing assistance to civilian employers of non-career Service members in addressing issues involving uniformed service as it relates to civilian employment or reemployment.

(d) Considering requests from civilian employers of members of the National Guard and Reserve to adjust a Service member's scheduled absence from civilian employment because of uniformed service or make other accommodations to such requests, when it is reasonable to do so.

(e) Documenting periods of uniformed service that are exempt from a Service member's cumulative 5-year absence from civilian employment to perform uniformed service as provided in 38 U.S.C. chapter 43 and implemented by this part.

(f) Providing, at the Service member's request, necessary documentation concerning a period or periods of service, or providing a written statement that such documentation is not available, that will assist the Service member in establishing civilian reemployment rights, benefits and obligations.

$104.5 Responsibilities.

(a) The Assistant Secretary of Defense for Reserve Affairs, under the Under Secretary of Defense for Personnel and Readiness, shall:

(1) In conjunction with the Departments of Labor (DoL) and Veterans Affairs, the Office of Personnel Management (OPM), and other appropriate Departments and activities of the executive branch, determine actions necessary to establish procedures and provide information concerning civilian employment and reemployment rights, benefits and obligations.

(2) Establish procedures and provide guidance to the Secretaries concerned about civilian employment and reemployment rights, benefits and obligations of Service members who are covered by the provisions of 38 U.S.C. chapter 43 and individuals who apply for uniformed service as provided in 38 U.S.C. chapter 43. This responsibility shall be carried out in coordination with DoL, OPM, and the Federal Retirement Thrift Investment Board.

(3) Monitor compliance with 38 U.S.C. chapter 43 and this part.

(4) Publish in the FEDERAL REGISTER, DoD policies and procedures established to implement 38 U.S.C. chapter 43.

(b) The Secretaries of the Military Departments and the Commandant of the Coast Guard shall establish procedures to:

(1) Ensure compliance with this part. (2) Inform Service members who are covered by the provisions of 38 U.S.C. chapter 43 and individuals who apply for uniformed service of the provisions of 38 U.S.C. chapter 43 as implemented by this part.

(3) Provide available documentation, upon request from a Service member or former Service member, that can be used to establish reemployment rights of the individual.

(4) Specify, as required, and document those periods of active duty that are exempt from the 5-year cumulative service limitation that a Service member may be absent from a position of civilian employment while retaining reemployment rights.

(5) Provide assistance to Service members and former Service members who are covered by the provisions of 38 U.S.C. chapter 43, and individuals who apply for uniformed service in exercising employment and reemployment rights.

(6) Provide assistance, as appropriate, to civilian employers of Service members who are covered by the provisions of 38 U.S.C. chapter 43 and individuals who apply for uniformed service.

(7) Cooperate with the DoL in discharging its responsibilities to assist persons with employment and reemployment rights and benefits.

(8) Cooperate with OPM in carrying out its placement responsibilities under 38 U.S.C. chapter 43.

§ 104.6 Procedures.

The Secretaries of the Military Departments and the Commandant of the Coast Guard shall:

(a) Inform individuals who apply for uniformed service and members of a Reserve component who perform or participate on a voluntary or involuntary basis in active duty, active duty

for special work, initial active duty for training, active duty for training, inactive duty training, annual training and full-time National Guard duty, of their employment and reemployment rights, benefits, and obligations as provided under 38 U.S.C. chapter 43 and described in Appendix A of this part. Other appropriate materials may be used to supplement the information contained in Appendix A of this part.

(1) Persons who apply for uniformed service shall be advised that DoD strongly encourages applicants to provide advance notice in writing to their civilian employers of pending uniformed service or any absence for the purpose of an examination to determine the person's fitness to perform uniformed service. Providing written advance notice is preferable to verbal advance notice since it is easier to establish that this basic prerequisite to retaining reemployment rights was fulfilled. Regardless of the means of providing advance notice, whether verbal or written, it should be provided as early as practicable.

(2) Annually and whenever called to duty for a contingency operation, advise Service members who are participating in a Reserve component of:

(i) The requirement to provide advance written or verbal notice to their civilian employers for each period of military training, active and inactive duty, or full-time National Guard duty.

(A) Reserve component members shall be advised that DoD strongly encourages that they provide advance notice to their civilian employers in writing for each period of pending uniformed service. Providing written advance notice is preferable to verbal advance notice since it easily establishes that this prerequisite to retaining reemployment rights was fulfilled.

(B) Regardless of the means of providing advance notice, whether written or verbal, it should be provided as early as practicable. DoD strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.

(C) The advance notice requirement can be met by providing the employer with a copy of the unit annual training schedule or preparing a standardized

tter. The sample employer notificaon letter in Appendix B of this part ay be used for this purpose.

(ii) The 5-year cumulative limit on sences from their civilian employent due to uniformed service and exnptions to that limit.

(iii) The requirements for reporting : submitting application to return to leir position of civilian employment. (iv) Their general reemployment ghts and benefits.

(v) The option for continuing emoyer provided health care, if the emoyer provides such a benefit.

(vi) The opportunity to use accrued ave in order to perform uniformed rvice.

(vii) Who they may contact to obtain sistance with employment and reemoyment questions and problems.

(b) Inform Service members who are overed by the provisions of 38 U.S.C. hapter 43, upon completion of an exended period of active duty and before eparation from active duty of their mployment and reemployment rights, enefits, and obligations as provided nder 38 U.S.C. Chapter 43. This shall, 3 a minimum, include notification and eporting requirements for returning employment with their civilian emloyer. While Appendix A of this part rovides the necessary information to atisfy this requirement, other approriate materials may be used to suppleent this information.

(c) Issue orders that span the entire eriod of service when ordering a memer of the National Guard or Reserve to ctive duty for a mission or requireent. Order modifications shall be iniiated, as required, to ensure continous active duty should the period reuired to complete the mission or reuirement change.

(d) Document the length of a Service ember's initial period of military ervice obligation performed on active uty.

(e) Determine and certify in writing hose additional training requirements ot already exempt for the 5-year cumulative service limit which are necssary for the professional developent, or skill training or retraining for embers of the National Guard or Reerve. Once the Secretary concerned ertifies those training requirements,

performance of uniformed service to complete a certified training requirement is exempt from the 5-year cumulative service limit.

(f) Determine those periods of active duty when a Service member is ordered to, or retained on, active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or Congress. If the purpose of the order to, or retention on, active duty is for the direct or indirect support of the war or national emergency, then the orders of the Service member should be so annotated, since that period of service is exempt from the 5-year cumulative service limit established in 38 U.S.C. Chapter 43.

(g) Determine those periods of active duty performed by a member of the National Guard or Reserve that are designated by the Secretary concerned as a critical mission or critical requirement, and for that reason are exempt form the 5-year cumulative service limit. The authority for determining what constitutes a critical mission or requirement shall not be delegated below the Assistant Secretary level or the Commandant of the Coast Guard. The designation of a critical requirement to gain the necessary experience to qualify for key senior leadership positions shall be used judiciously, and the necessary experience and projected key leadership positions fully documented. This authority shall not be used to grant exemptions to avoid the cumulative 5-year service limit established by 38 U.S.C. Chapter 43 or to extend individuals in repeated statutory tours. The Assistant Secretary of Defense for Reserve Affairs shall be notified in writing of all occasions in which a Service member is granted more than one exemption for a critical requirement when the additional exemption(s) extend the Service member beyond the 5-year cumulative service limit established in 38 U.S.C. Chapter 43.

(h) When appropriate, ensure that orders to active duty or orders retaining members on active duty specify the statutory or Secretarial authority for those orders when such authority meets one or more of the exemptions from the 5-year cumulative service limit provided in 38 U.S.C. Chapter 43.