Ask The Lawyer

By Debra Roth

Q & A Session – Is it Legal to Hire a Military Officer Before he is Retired?

Bookmark and Share

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:

My department has an active duty military employee occupying a position. He is about to retire from the military, but we are interested in retaining his service as a GS-11. Is it legal for us to “hire” the current military employee for the GS-11 position before he retires?

A:

While you do not denote your department, it seems highly likely that you work within the Department of Defense. Thus, I would like for you to note that the Department of Defense has agency-specific policies which govern the conversion of a position from a military billet to a civilian billet. Those regulations vary considerably based on the type of position at issue. Please review those policies first to determine whether a civilian may even encumber the position.

If the billet can be converted, please know that the situation you describe sounds as though it might be a pre-selection held without allowing competition for the position. Such a move would likely be unlawful for a position within the competitive service.

I believe you must allow an open competition for the new position. However, it seems plausible that if this position were subject to open competition, the individual who currently occupies the position would stand a good chance of being selected lawfully; his experience will obviously be well-suited to the position for which he is applying, and he may be eligible for veteran’s preference.

I believe you should hold an open competition for the position and hire the best applicant, who may very well be the individual who currently encumbers the position. I am unsure whether the position you are discussing can be occupied by a civilian, and am doubtful that you can avoid the competitive process.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Comments

  1. H.D.Cramer Says:
    December 24th, 2012 at 1:33 pm

    I was hired into the federal service Sept 1984 at which time
    I was required to go into the FERS program. I found out later
    that the FERS program which congress put into service was not
    official law until some time in early 1985. I question is was this
    legal forcing me to go under the FERS retirement program in
    Sept 1984? Thank You.

Leave a Reply

PLEASE NOTE! Do not submit ANY questions via the Comments form. Instead, please send your questions directly to lawyer@federaltimes.com. Questions submitted via the Comments form will NOT be answered!