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Exceeding USERRA protections

Old 04-25-2022, 08:20 AM
  #11  
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Originally Posted by Trashman3 View Post
Are you saying that the 10 year commitment incurred from SUPT does not count against the 5 years?

Yes. Active duty time spent for initial training (ie flight school) is exempt from the five year calendar. AD obligation incurred from training is exempt.

So two years for wings followed by ten years wings obligation means 12 years freebie before you burn a minute of your AD clock. If you then take a retention bonus and incur an obligation that time would not be exempt as far as I know. You could however go to war college or PG school, and that obligation should be exempt. Switch airframes, same deal. Obligation incurred due to training is exempt, doesn't matter if you volunteered for the training.

People think of USERRA as a reserve/guard thing but it was apparently also designed to allow you to leave an employer to serve a voluntary first-term AD enlistment and then return to your job. It was not specifically intended to allow you to do a full 20-year AD career and then return but it also does not forbid that... so it possible with an MOS with a very long obliserv (ie aviation) to get to 15 years AD without touching your five-year clock. Then you can run out the clock to 20 years.

It's an irrelevant technicality for most folks, since they'd be lucky if the employer still existed in 20 years, and they would only be entitled to return to a position equivalent to the one they left... a retired O4 or O5 could get a better job than the one he had as a new college grad, and probably would have other interests and geographical constraints. But in our seniority-based industry, it could be a huge windfall... you could literally do 20 years and come back as a line-holder widebody CA. In this climate you could probably get hired at a major while young enough to still go to UPT. All you have to do is show up on day one of class and collect your seniority number.
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Old 04-25-2022, 06:46 PM
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Originally Posted by Trashman3 View Post
Are you saying that the 10 year commitment incurred from SUPT does not count against the 5 years?

If this is true, it's an absolute game changer and I would like to know more.
Here is the quote from the Title 38 §4312 of theU.S Codec) Subsection (a) shall apply to a person who is absent from a position of employment by reason of service in the uniformed services if such person's cumulative period of service in the uniformed services, with respect to the employer relationship for which a person seeks reemployment, does not exceed five years, except that any such period of service shall not include any service--

(1) that is required, beyond five years, to complete an initial period of obligated service;


As has been noted here already, any contingency orders, Annual Training, Drills, PME, and response to a Declared State or National Emergency are also exempt. While it's not impossible to complete an entire 20 year assignment while on leave, it would be highly improbable I think. In my situation, my orders stipulate what section of Title 10 I was ordered to AD under, and it's not one of the exempted categories. I know people who have done exactly what I'm trying to do but they had the "benefit" of being on Mil Leave when their airlines had massive furlough rosters and we were fighting two simultaneous wars where contingency orders were easy to come by.
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Old 04-25-2022, 07:26 PM
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Originally Posted by Max Relax Roll View Post
Here is the quote from the Title 38 §4312 of theU.S Codec) Subsection (a) shall apply to a person who is absent from a position of employment by reason of service in the uniformed services if such person's cumulative period of service in the uniformed services, with respect to the employer relationship for which a person seeks reemployment, does not exceed five years, except that any such period of service shall not include any service--

(1) that is required, beyond five years, to complete an initial period of obligated service;


As has been noted here already, any contingency orders, Annual Training, Drills, PME, and response to a Declared State or National Emergency are also exempt. While it's not impossible to complete an entire 20 year assignment while on leave, it would be highly improbable I think. In my situation, my orders stipulate what section of Title 10 I was ordered to AD under, and it's not one of the exempted categories. I know people who have done exactly what I'm trying to do but they had the "benefit" of being on Mil Leave when their airlines had massive furlough rosters and we were fighting two simultaneous wars where contingency orders were easy to come by.
Pretty sure AMC has orders to rough it in Europe available all of a sudden. Someone has to jump on that grenade.
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Old 05-16-2022, 09:13 PM
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Originally Posted by rickair7777 View Post
Yes. Active duty time spent for initial training (ie flight school) is exempt from the five year calendar. AD obligation incurred from training is exempt.

So two years for wings followed by ten years wings obligation means 12 years freebie before you burn a minute of your AD clock. If you then take a retention bonus and incur an obligation that time would not be exempt as far as I know. You could however go to war college or PG school, and that obligation should be exempt. Switch airframes, same deal. Obligation incurred due to training is exempt, doesn't matter if you volunteered for the training.

People think of USERRA as a reserve/guard thing but it was apparently also designed to allow you to leave an employer to serve a voluntary first-term AD enlistment and then return to your job. It was not specifically intended to allow you to do a full 20-year AD career and then return but it also does not forbid that... so it possible with an MOS with a very long obliserv (ie aviation) to get to 15 years AD without touching your five-year clock. Then you can run out the clock to 20 years.

It's an irrelevant technicality for most folks, since they'd be lucky if the employer still existed in 20 years, and they would only be entitled to return to a position equivalent to the one they left... a retired O4 or O5 could get a better job than the one he had as a new college grad, and probably would have other interests and geographical constraints. But in our seniority-based industry, it could be a huge windfall... you could literally do 20 years and come back as a line-holder widebody CA. In this climate you could probably get hired at a major while young enough to still go to UPT. All you have to do is show up on day one of class and collect your seniority number.
Wouldn't an airline consider this as abusing the USERRA law? I saw another post about career intermission programs where folks were getting flamed for attempting to use the law to their advantage, much like this post.
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Old 05-17-2022, 07:03 AM
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Originally Posted by Trashman3 View Post
Wouldn't an airline consider this as abusing the USERRA law? I saw another post about career intermission programs where folks were getting flamed for attempting to use the law to their advantage, much like this post.
An airline would probably consider it abuse, and that was certainly not the intent of the law. But it would be perfectly legal, not even a grey area if you incurred the necessary obligated service at the right points. This would be so rare that I doubt an airline would bother to fight it if it happened. I've never heard of anyone doing this, although in 9/11 era I've known of a few folks who left AD, joined the reserves, got a major seniority number, and then went out on Noble Eagles, etc orders long enough to get 20+ AD. Of course most of those got furloughed through no fault of their own so you can't blame them at all.

The recent airline angst is all about reservists who get hired, finish training (or maybe not even that), bang out for 3-5 years and then come back to good seniority. It's fairly obvious that most of those folks intended to game the system all along.

That makes it harder for the rest of us to get hired, and is not really within the spirit of the law. I advised my folks to complete probation if possible, after that I think it's reasonably fair game. But needs of the service, and even your own mil career gateway needs take priority, so do what you have to do. Just don't do it to get out of airline reserve.
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Old 05-17-2022, 07:09 AM
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Originally Posted by tnkrdrvr View Post
Pretty sure AMC has orders to rough it in Europe available all of a sudden. Someone has to jump on that grenade.
As long as Vlad doesn't decide to start tossing nukes around eastern europe.
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Old 05-17-2022, 08:54 AM
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Originally Posted by rickair7777 View Post
As long as Vlad doesn't decide to start tossing nukes around eastern europe.
Grenade…Nuke…at least you will glow in the dark on your walk around once you come back from mil.
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