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View Full Version : Sanctuary and USERRA


WarEagle28
01-31-2018, 10:14 AM
Does anyone know...if you enter sanctuary, however, you are at the 5 year limit, are the new “sanctuary “ orders exempt from the 5 year time limit? Thanks


Flying Boxes
01-31-2018, 04:39 PM
Sanctuary protects you against the DoD purposefully not letting you get to retirement. Standard practice is for guard/reserve units to require you to sign a waiver for orders when your TAFMS reaches the 18 year point.

The USERRA (DoL) law does not specifically mention sanctuary that I remember. Research service members law center for what exempt from the 5 year limit, the link is at the bottom of this post. Things like completion of a military obligation (like for UPT) that go beyond the 5 year limit. In residence PME I think is exempt. Return to AD may also be exempt.

If you have spent time on Contingency orders (location is not relevant) then they do not count against 5 year limit, but must state so on the orders or the DD214. Preferable both! I can guarantee you that contingency orders for the middle east are exempt, but I am not sure about Pacific AOR deployments. I don't think they are exempt, but do not really know.

Law Center - ROA (http://www.roa.org/page/lawcenter)

WarEagle28
01-31-2018, 04:52 PM
Sanctuary protects you against the DoD purposefully not letting you get to retirement. Standard practice is for guard/reserve units to require you to sign a waiver for orders when your TAFMS reaches the 18 year point.

The USERRA (DoL) law does not specifically mention sanctuary that I remember. Research service members law center for what exempt from the 5 year limit, the link is at the bottom of this post. Things like completion of a military obligation (like for UPT) that go beyond the 5 year limit. In residence PME I think is exempt. Return to AD may also be exempt.

If you have spent time on Contingency orders (location is not relevant) then they do not count against 5 year limit, but must state so on the orders or the DD214. Preferable both! I can guarantee you that contingency orders for the middle east are exempt, but I am not sure about Pacific AOR deployments. I don't think they are exempt, but do not really know.

Law Center - ROA (http://www.roa.org/page/lawcenter)

Thanks a lot! I’ll check it out


rickair7777
01-31-2018, 07:17 PM
What he said. No exemption for sanctuary.

But you would have to try pretty hard to have accumulated five years of non exempt AD since 9/11. Anything remotely related to GWOT, OCO, NE, etc is exempt. Research that.

Sqwk1200
02-04-2018, 11:02 AM
What he said. No exemption for sanctuary.

But you would have to try pretty hard to have accumulated five years of non exempt AD since 9/11. Anything remotely related to GWOT, OCO, NE, etc is exempt. Research that.

Besides orders in war zones, and doing in house PME/war colleges, anyone know of other long term orders that are exempt from counting towards the USERRA 5-year floor?

Pyro
02-04-2018, 11:14 AM
Besides orders in war zones, and doing in house PME/war colleges, anyone know of other long term orders that are exempt from counting towards the USERRA 5-year floor?

I've heard, though have no proof, if you're a commander you can get around it.

overspeed
02-04-2018, 05:21 PM
http://c.ymcdn.com/sites/www.roa.org/resource/resmgr/LawReviews/2017/17027-LR.pdf

rickair7777
02-04-2018, 07:17 PM
Besides orders in war zones, and doing in house PME/war colleges, anyone know of other long term orders that are exempt from counting towards the USERRA 5-year floor?

Generally...

- MOS Training
- AD Obligation incurred by any training. This includes things like seasoning, etc.
- Orders which tap funding associated with war authorizations. Almost any orders to any operational command which deploys ISO of war efforts should qualify (even if you don't deploy on that set of orders). I think this would include things like IP duty.

Sqwk1200
02-05-2018, 05:30 AM
Orders which tap funding associated with war authorizations. Almost any orders to any operational command which deploys ISO of war efforts should qualify (even if you don't deploy on that set of orders). I think this would include things like IP duty.

Great stuff. What does IP stand for (Inst Pilot?). Anyone have more specific examples of some INCONUS orders that may satisfy the above?

rickair7777
02-05-2018, 06:38 AM
Great stuff. What does IP stand for (Inst Pilot?). Anyone have more specific examples of some INCONUS orders that may satisfy the above?

Staff fills at COCOMS or other big HQs. Most or all staff plus-ups were justified as war-time requirements of one flavor or another. This probably applies to all COCOMS and major HQ's even if their AOR was not the desert.

The navy was always good about putting the right language on the orders, other services perhaps not. But the orders do NOT need to state they are exempt, they just have to qualify under the rules, which can typically be demonstrated by the funding and/or authority under which the recall was conducted (which may well be stated on the orders somewhere).

IP = instructor pilot.

rickair7777
02-05-2018, 07:34 AM
If you have spent time on Contingency orders (location is not relevant) then they do not count against 5 year limit, but must state so on the orders or the DD214. Preferable both! I can guarantee you that contingency orders for the middle east are exempt, but I am not sure about Pacific AOR deployments. I don't think they are exempt, but do not really know.

Law Center - ROA (http://www.roa.org/page/lawcenter)

For clarity, this is incorrect (but a common misconception).

The nature of duty must meet the USERRA definition. It's certainly easier to demonstrate that if the orders/DD214 state it, but that's not legally necessary. It's only necessary to show that the duty meant the intent, which can usually be shown by funding/authorities.

SaltyDog
02-05-2018, 08:47 AM
Rickair7777 is correct.
Your orders need to document the exemption. Many have been told their orders were exempt, but not correctly written and then these folks could not demonstrate that they had all the exempt time they believed they had accumulated.
They had two options: get corrected orders, or get back to civilian job quicker than expected. Have seen many cases. Often, they had to get back to civilian job.
The DOL VETS place the burden on the service member to demonstrate exemption per the statute. Unfortunately, some units themselves believed orders exempt, perhaps, but the funding and authorization didn't follow to the service member.
Fortunately, it seems more rare now, services have learned what admin needs to follow to truly be exempt and verifiable per USERRA.

Flying Boxes
02-05-2018, 09:23 AM
For clarity, this is incorrect (but a common misconception).

The nature of duty must meet the USERRA definition. It's certainly easier to demonstrate that if the orders/DD214 state it, but that's not legally necessary. It's only necessary to show that the duty meant the intent, which can usually be shown by funding/authorities.

Agree, sorry if I mislead anyone. My orders were OCO funded & properly documented as to which contingency. Had my local orders clerks add the statement to these orders and DD214. All legal and above the board, no gaming the system. Work was at HQ, not at my unit.

There was a friend who was hard played by his Chief Pilot about orders not having a statement about exempt status, even though the funding was OCO. May not be "legal", but that's who he had to work with!!!! He is back at his civilian job with no lasting issues. That is why I had the statement on my orders & DD214. My employer initially did not agree that it was exempt as stated on my DD214, but (very) short time later was given a class date. I guess the company lawyers know the law a little more accurately.

So as always, know the law and follow it! Maintain documentation to prove your orders, mil leave notification, update company when/if new orders extend. There are legal limits you cannot go beyond for reemployment rights based on length of orders. Stepping out of these limits can be hazardous to your civilian employment.

Happy to be retired and only working 1 job!!!!! :D:D:D

rickair7777
02-05-2018, 09:50 AM
Agree, sorry if I mislead anyone. My orders were OCO funded & properly documented as to which contingency. Had my local orders clerks add the statement to these orders and DD214. All legal and above the board, no gaming the system. Work was at HQ, not at my unit.

There was a friend who was hard played by his Chief Pilot about orders not having a statement about exempt status, even though the funding was OCO. May not be "legal", but that's who he had to work with!!!! He is back at his civilian job with no lasting issues. That is why I had the statement on my orders & DD214. My employer initially did not agree that it was exempt as stated on my DD214, but (very) short time later was given a class date. I guess the company lawyers know the law a little more accurately.

So as always, know the law and follow it! Maintain documentation to prove your orders, mil leave notification, update company when/if new orders extend. There are legal limits you cannot go beyond for reemployment rights based on length of orders. Stepping out of these limits can be hazardous to your civilian employment.

Happy to be retired and only working 1 job!!!!! :D:D:D

Most employers are typically either ignorant or try to push the boundaries on stuff like this. Absolutely get things documented to CYA.

My comments were directed at the guy looking at sanctuary... he needs exemption for past orders, too late to get the orders/DD214 written to clearly document exemption, so in his case he'll need to research the underlying details of those orders and try to find links to OCO, etc... and maybe hire a lawyer to roll it up and assertively "splain" it to the employer.

Sqwk1200
02-05-2018, 04:34 PM
I think this would include things like IP duty.

IP = instructor pilot.

Wow. I know you said ‘I think’. So you think instructor (for pre-winged students) duty could be exempt? How do you think I could find out exactly?

rickair7777
02-05-2018, 04:48 PM
Wow. I know you said ‘I think’. So you think instructor (for pre-winged students) duty could be exempt? How do you think I could find out exactly?

Would depend on when. Pre 9/11 probably not. Post 9/11 I understand that anything involving training warfighters probably counts. The regular active duty IPs were probably funded by routine DoD money like always, but bringing on reserves (an added cost) was probably OCO... because it was readily available. OIF/OEF are obvious, and typically only desert orders will be linked to those. But OCO and NE also apply, those were used for a lot of CONUS and OCONUS COCOMs other than CC.

It's also impacted by the underlying authority and funding, post 9/11 many military organizations asked for and received (or received without asking) war funding. If they used that to put you on orders, it's exempt. You just have to walk the dog to track on the fine print.

If you're having to choose between sanctuary or a civilian job with significant seniority at stake you should hire a lawyer who's familiar with this stuff (they're out there). If you hand a guy like that a career's worth of orders, he'll find some exempt ones.

SaltyDog
02-06-2018, 12:34 PM
... think instructor (for pre-winged students) duty could be exempt? How do you think I could find out exactly?

I don't think exempt for the instructor, ask the Wing Legal, funding authorities, etc. Have it documented and specifically state in the orders with appropriate statute reference.
Personally haven't heard of exempt status myself or in my experience talking with instructors.

Again, documentation, your responsibility, no one else, is paramount.
Here are a few quick references. Your orders need to specifically have the clauses required by USERRA. OCO like GWOT is not fool proof exempt. OCO has progessed to fund many things that may be excluded, OCO is just a budgetary tool for congress and DOD....

Even some education not exempt, have had to assist folks get their service chief exempt the education. Diligence is individual responsibility, like CAPT Wright, have had experience with some folks that realize late they had not truly been on exempt orders......

USERRA is your source.
Read and heed: CAPT Sam Wright is the fount of experience and knowledge. One we owe a great debt of gratitude IMHO.

http://c.ymcdn.com/sites/www.roa.org/resource/resmgr/LawReviews/2017/17027-LR.pdf

USERRA ref:
Exceptions to 5-Year Limit in 38 U.S.C. § 4312 (c) USERRA
Notes:
• Effective with enactment of the Reserve Officer Personnel Management Act on October 6, 1994, several of the section numbers of title 10 that are referenced as exceptions to the five-year limit have been changed. In such cases, the new section number is noted in brackets after the section number stated in USERRA [1230l(a)].
• The term “Reservist” means member of the National Guard or Reserve. Sections that apply only to National Guard or only to Coast Guard Reserve are identified as such.
• State call-ups of National guard members are not protected under USERRA.
• The symbol “§” means “section.”

38 U.S.C.§4312 “... does not exceed five years, except that any such period of service shall not include...”
Obligated Service -- 4312(c)(1)
Applies to initial obligations incurred beyond five years.
Unable to Obtain Release -- 4312(c)(2)
Self explanatory. Needs to be documented on a case-by-case basis.
Training Requirement -- 4312(c)(3)
10 U.S.C.§10147 RESERVIST regularly scheduled inactive duty training (drills) and annual training.
10 U.S.C.§10148 RESERVIST ordered to active duty up to forty-five days because of unsatisfactory participation.
32 U.S.C.§502(a) NATIONAL GUARD regularly scheduled inactive duty training and annual training.
32 U.S.C.§503 NATIONAL GUARD active duty for encampments, maneuvers, other exercises for field or coastal defense.
10 U.S.C. §12301(a) involuntary active duty in wartime

Specific Active Duty Provisions – 4312(c)(4)(A)
10 U.S.C.§12301(g) retention on active duty while in captive status.
10 U.S.C.§12302 involuntary active duty for national emergency up to 24 months.
10 U.S.C.§12304 involuntary active duty for operational mission up to 270 days.
10 U.S.C.§12305 involuntary retention of critical persons on active duty during a period of crisis or other specific condition.
10 U.S.C.§688 involuntary active duty by retirees.
14 U.S.C.§331 COAST GUARD involuntary active duty by retired officer.
14 U.S.C.§332 COAST GUARD voluntary active duty by retired officer.
14 U.S.C.§359 COAST GUARD involuntary active duty by retired enlisted member.
14 U.S.C.§360 COAST GUARD voluntary active duty by retired enlisted member.
14 U.S.C.§367 COAST GUARD involuntary retention of enlisted member.
14 U.S.C.§712 COAST GUARD involuntary active duty of Reserve members to augment regular Coast Guard in time of natural/man-made disaster.
War or Declared National Emergency -- 4312(c)(4)(B)
Provides that active duty (other than for training) in time of war or national emergency is exempt from the five-year limit whether voluntary or involuntary.
Critical Operational Mission -- 4312(c)(4)(C)
Provides that active duty (other than for training) in support of an operational mission for which Reservists have been activated under 10 U.S.C.§673b[12304] is exempt from the five-year limit, whether voluntary or involuntary. Note: In such a situation, involuntary call-ups would be under §673b[12304]. Volunteers may be ordered to active duty under a different authority.
Critical Missions or Requirements -- 4312(c)(4)(D)
Provides that active duty in support of certain critical missions and requirements is exempt from the 5-year limit, whether voluntary or involuntary. This would apply in situations such as Grenada or Panama in the 1980s, when provisions for involuntary activation of Reserves were not exercised.
Specific National Guard Provisions -- 4312(c)(4)(E)
10 U.S.C. chapter 15 NATIONAL GUARD call into Federal service to suppress insurrection, domestic violence, etc.
10 U.S.C.§3500 ARMY NATIONAL GUARD call into Federal service in case of invasion, rebellion, or inability to execute Federal law with active forces.
10 U.S.C.§8500 AIR NATIONAL GUARD call into Federal service in case of invasion, rebellion, or inability to execute Federal law with active forces.
The National Committee for Employer Support of the Guard and Reserve will keep the VETS national office informed of developments in this area as they occur (e.g., the manner in which the necessity of additional Reserve training is to be documented).

20 C.F.R. “Exemptions to 5 year cumulative service”
Sec. 1002.100: The five-year period includes only the time the employee spends actually performing service in the uniformed services. A period of absence from employment before or after performing service in the uniformed services does not count against the five-year limit. For example, after the employee completes a period of service in the uniformed services, he or she is provided a certain amount of time, depending upon the length of service, to report back to work or submit an application for reemployment. The period between completing the uniformed service and reporting back to work or seeking reemployment does not count against the five-year limit.
Sec. 1002.101: An employee is entitled to a leave of absence for uniformed service for up to five years with each employer for whom he or she works. When the employee takes a position with a new employer, the five-year period begins again regardless of how much service he or she performed while working in any previous employment relationship. If an employee is employed by more than one employer, a separate five-year period runs as to each employer independently, even if those employers share or co-determine the employee's terms and conditions of employment.
Sec. 1002.102: USERRA provides reemployment rights to which an employee may become entitled beginning on or after December 12, 1994, but any uniformed service performed before December 12, 1994, that was counted against the service limitations of the previous law (the Veterans Reemployment Rights Act), also counts against USERRA's five-year limit.
Sec. 1002.103: USERRA creates the following exceptions to the five-year limit on service in the uniformed services:
(1) Service that is required beyond five years to complete an initial period of obligated service. Some military specialties require an individual to serve more than five years because of the amount of time or expense involved in training. If the employee works in one of those specialties, he or she has reemployment rights when the initial period of obligated service is completed;
(2) If the employee was unable to obtain orders releasing him or her from service in the uniformed services before the expiration of the five-year period, and the inability was not the employee's fault;
(3)(i) Service performed to fulfill periodic National Guard and Reserve training requirements as prescribed by 10 U.S.C. 10147 and 32 U.S.C. 502(a) and 503; and, (ii) Service performed to fulfill additional training requirements determined and certified by a proper military authority as necessary for the employee's professional development, or to complete skill training or retraining;
(4) Service performed in a uniformed service if he or she was ordered to or retained on active duty under:
(i) 10 U.S.C. 688 (involuntary active duty by a military retiree);
(ii) 10 U.S.C. 12301(a) (involuntary active duty in wartime);
(iii) 10 U.S.C. 12301(g) (retention on active duty while in captive status);
(iv) 10 U.S.C. 12302 (involuntary active duty during a national emergency for up to 24 months);
(v) 10 U.S.C. 12304 (involuntary active duty for an operational mission for up to 270 days);
(vi) 10 U.S.C. 12305 (involuntary retention on active duty of a critical person during time of crisis or other specific conditions);
(vii) 14 U.S.C. 331 (involuntary active duty by retired Coast Guard officer);
(viii) 14 U.S.C. 332 (voluntary active duty by retired Coast Guard officer);
(ix) 14 U.S.C. 359 (involuntary active duty by retired Coast Guard enlisted member);
(x) 14 U.S.C. 360 (voluntary active duty by retired Coast Guard enlisted member);
(xi) 14 U.S.C. 367 (involuntary retention of Coast Guard enlisted member on active duty); and
(xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard Reserve member for natural or man-made disasters).
(5) Service performed in a uniformed service if the employee was 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 the Congress, as determined by the Secretary concerned;
(6) Service performed in a uniformed service if the employee was ordered to active duty (other than for training) in support of an operational mission for which personnel have been ordered to active duty under 10 U.S.C. 12304, as determined by a proper military authority;
(7) Service performed in a uniformed service if the employee was ordered to active duty in support of a critical mission or requirement of the uniformed services as determined by the Secretary concerned; and,
(8) Service performed as a member of the National Guard if the employee was called to respond to an invasion, danger of invasion, rebellion, danger of rebellion, insurrection, or the inability of the President with regular forces to execute the laws of the United States.
(9) Service performed to mitigate economic harm where the employee's employer is in violation of its employment or reemployment obligations to him or her.
The National Committee for Employer Support of the Guard and Reserve will keep the VETS national office informed of developments in this area as they occur (e.g., the manner in which the necessity of additional Reserve training is to be documented).

Tweetdrvr
02-07-2018, 06:26 AM
I don't know how it is on the Navy side of pilot training, but the MPA orders for the 340th FTG Traditional Reserve IPs are not exempt from the 5 year USERRA limits. They do have the code that qualifies them for reduced retirement. I currently have an age 58 and 9 month retirement pay eligible date, so 1 year and 3 months earlier than the traditional age 60.

rickair7777
02-07-2018, 07:39 AM
I don't know how it is on the Navy side of pilot training, but the MPA orders for the 340th FTG Traditional Reserve IPs are not exempt from the 5 year USERRA limits. They do have the code that qualifies them for reduced retirement. I currently have an age 58 and 9 month retirement pay eligible date, so 1 year and 3 months earlier than the traditional age 60.

That's good to know. I didn't realize that it was possible to have orders which qualified for early retirement pay, which were not also exempt from the five year limit.



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