CHAPTER 1
Understanding Veteran's Preference Rights
"The day the soldiers stop bringing you their problems is the day you stopped leading them. They have either lost confidence that you can help them or concluded that you do not care. Either case is a failure of leadership."
—Colin Powell
Special Note to Parents of Veterans
I wanted to talk to the special people who send their young men and women to serve in the armed forces in a way I wish someone could have spoken to my parents when I decided to served. Many parents (particularly mothers) of the young servicemen and servicewomen are unaware that they too are preference-eligible under limited circumstances. This eligibility depends on the disability rating of the child in the event he or she is injured while serving. I believe it is important to stay involved in the life of your child while he or she is serving. In many ways, the armed forces are similar to the job market. My suggestion is that each time your child goes on sick call, you ask your child to request a copy and send it to you. Maintain these copies in a special location in the event your child is discharged for medical reasons. After all, the military does misplace files. On another note, talk to your service member and encourage him or her to get an education while in the service. Many young servicemen and servicewomen spend their time partying like rock stars and find that it is difficult to get serious about the job market after their tours of duty. Many young service members do not really understand the civilian job market. They will articulate their knowledge, skills, and ability to potential employers, but they should have done volunteer work, enrolled in college level courses, and kept track of supervisors and managers who could one day provide letters of recommendation.
Veterans Are Not Told
In 1994, I passed the military entrance exam (ASVAB) and was then shipped to Parris Island, South Carolina, in a twelve-passenger van. I thus began my journey to becoming a United States Marine. At best, it was an intimidating experience. Once I arrived on the island and got out of that van, a drill instructor who stood about 6'5" (at least he seemed) came out of a dark building wearing a Smokey Bear cover, unpleasant as a pit of pissed off rattle snakes, and began demanding that we move it, move it, move it, you damn maggots, get off my bus and put your little nasty toes on those yellow footprints. I was senseless enough to wonder what we did wrong. I thought Full Metal Jacket was just a movie. Nonetheless, many of us did not know what civilian benefits were ahead of us. I sure do wish I could take back those days and find a book like the one you are about to read. We did have a foggy idea of the trouble ahead of us in the next thirteen weeks, though. Many veterans have a similarly foggy vision of veteran's preference rights and how they can benefit them.
Drawbacks to Veteran's Preference Rights
The good news is that most veteran's preference rights violations made by selecting officials in federal government are not made by veterans.
The bad news entails a drawback you might want to avoid. I'll use an example of a case I recently encountered. On about December 1, 2012, a female veteran who was honorably discharged after twenty years of active duty service applied for a job with a federal agency. She had already been employed by the federal agency when she submitted her application for a position the agency announced to all US citizens. The veteran was in a position that was a lower pay grade than the position she was seeking. The veteran hired into the federal government as a GS-5 and was seeking another position as a GS-11. Keep in mind the Veterans Recruitment Act permits a selecting official to hire a veteran into a position up to the GS-11 pay grade noncompetitively. When the veteran did not receive an interview and was subsequently not selected for the position, the veteran filed a complaint with the U S Department of Labor for veteran's preference rights (VEOA) violations. The Department of Labor found in the veteran's favor. When the agency did not comply with the Department of Labor's request to fix the veteran's preference claim violation, the veteran then filed a complaint with the US Merit System Protection Board. The board dismissed the complaint for lack of jurisdiction.
Here is the problem you may face under your preference eligibility rights: In the example mentioned above the board stated, "Under Title 5 CFR Section 302, an employee is not eligible to 'jump' from one pay grade to the next without first serving fifty-two weeks at the next lower pay grade." Regular pay grade increases usually go from GS-5 to GS-13 if the promotion potential is that high. In other words, no employee can move from GS-5 to GS-9 without doing a minimum of fifty-two weeks at the GS-7 grade level. Under the Veterans Recruitment Act (VRA), a veteran may be appointed to a grade level up to GS-11 if a selecting official chooses to have a heart. The danger of the VRA is that many selecting officials do not reach out to veterans and use the VRA certificate of eligible list. The exact reasons are unknown. The example I gave above was related to disability discrimination, which seems to be a common theme of the problems many veterans experience. I am strongly suggesting and pushing for a more consistent policy of VRA use with selections. You can help by contacting your Congressional representatives and asking them to get involved on this issue. Simply write or visit your representative and ask him or her to review the VRA and how agencies are using it. The VRA really has no effect because selecting officials may use it at their discretion. It is like having a criminal law in effect that allows prosecutors to act at their discretion in its enforcement.
Strengths and Limitations of This Book
This book gives you the knowledge you will need to understand why you may not get hired by the federal government. It is the only guide available to help you understand how to really navigate your veteran's preference rights through the federal system. The information I have provided here is a step in the right direction when researching jobs at www.usajobs.gov. No matter how much research I could have done for this book, the possibilities of games that are played are endless. There are so many different ways a federal agency can hire its staff, but your veteran's preference rights limit any unlawful activity. It is up to you to stop these violations from occurring. This book helps you limit some of your confusion.
My Assumptions of Your Knowledge
• I assumed you don't know how to get beyond the red tape you will face in the federal application process. It easier than you think to get a federal government job.
• I assumed you want to get a federal job but understand that you have a veteran's preference of 5 percent or 10 percent (this is usually the case).
• I assumed you don't understand which federal jobs you can apply for.
• I assumed you do not know the language of the resume world.
• I assumed you're a fighter.
The information provided is Not A Substitution For Legal Advice (please read this closely)
I am often asked whether I am an attorney. I am not. That question bothers me more than it should. There are so many people like me who help veterans and have learned how to fight against veteran's preference violations. People think you need an attorney from the beginning of a complaint. This is not true. In fact what you do in the beginning stages of your application determines how your case will be handled. If you get nervous easily or can't speak in front of people, I say, with reservations, that you should eventually get an attorney. However, if you can write well enough, you can do motion law arguments and never have to say a word. Most—if not all—of the work in these cases involves writing. You can represent yourself and do a good job if you have the right tools. This book is more than your starting point. There are a lot of attorneys who will take your case and do not have a clue about the federal government's human resource practices. The master of your situation is you—the preference eligible. If you start looking for an attorney, ask around and learn about his or her background. The handbook will put you leaps and bounds ahead of the game if you must fight.
Here is a story of what happened to a friend of mine who hired an attorney. A young female veteran hired an allegedly experienced attorney who said he had handled veteran's preference violation cases. The attorney charged $200 an hour for his consultation (the trick). The fee became part of the attorney's fees if the veteran decided to retain the attorney's services. The attorney let my friend just talk her little preference-eligible head off. The veteran explained her circumstances to the best of her ability (without knowledge of this book), and the high-priced attorney dazzled her with his lawyerly language. The veteran was convinced she found the right attorney. The veteran then walked out of the attorney's office and handed his secretary her credit card. The secretary charged $3,800 of the required $4,000 fee to handle her veteran's preference violation. (Remember the trick—a lure—of $200 for the consultation fee.) People don't have money to blow, and some attorneys are banking on just that—that you don't have the money to keep having consultations until you find the right fit. Eventually, the attorney filed the proper paperwork with the Merit System Protection Board, dazzling the veteran just a bit more. Well, that's where it all pretty much ended. The veteran could not afford interrogatories, requests for production of documents, depositions, admit and deny requests, and more, so no discovery took place to determine whether a preference-right violation had occurred. All the attorney's fees were tied up in the procedural stage. Believe it or not, thousands of veteran's preference cases are filed yearly, but they get dismissed or overlooked for similar reasons. There are plenty of experts who are not attorneys. If you don't believe me, take a look at the agents of nonprofit veterans' organizations who work on the behalf of veterans. They help file disability claims, petition Congress, start organizations dedicated to veterans—the list is endless. I have spent many years wondering why so many veterans who want to work do not have the federal jobs they seek. I served in the Marine Corps, and no one told me about job opportunities with the federal government until I was sitting in a room during a transition assistant program (TAP). TAP is a great program, and I really do not know of any other field where such a program is offered. However, it just didn't have the follow through that was needed to get a good grip on understanding the job market, especially the federal sector. While I was sitting in that room with many other veterans, I briefly wondered where they were headed. Did they know their future? Many were oblivious, and from what I hear, many military personnel transitioning back into the civilian world are still clueless about the opportunities that exist in the federal government. Uncle Sam still needs you, your spouse, and your mother so why not learn of the many opportunities of federal sector jobs. Upon going through the process of getting out, I distinctly remember walking into a career counselor's office in Twenty-Nine Palms, California, and asking about www.usajobs.gov. The counselor was not very helpful, despite the fact he had used that very site to get his federal sector job. This website is the gateway to your opportunities with a federal agency. The jobs you see listed are not hoaxes. They are real positions that must be filled. That counselor really didn't tell me much other than how to log on and start looking for positions I qualified for. My goal is to show you how your preference-eligible rights apply to your opportunities with the federal government. Don't get the idea that because you served your country honorably that a federal agency will hand you a job. There are hundreds of thousands of nonveterans against whom you are competing, and they are not playing. Civilians know some of the best resume tricks ever invented, but they too struggle without the right information. Nonetheless, civilians have the same problem as veterans when it comes to understanding federal sector resumes. I'll demonstrate what many civilians don't know about federal resumes. Civilians bring a credential you likely don't have: a college degree. Most veterans' military experience usually exceeds the experience of a civilians' work experience, and your military experience regardless of job titles must be considered if you place it in your resume. Consider your training and leadership experience from the time you stepped on those yellow footprints and the many billets you held during your service. If you were put in charge to mop floors then you have management experience. Think critically. Get creative! Think closely—you actually work for the federal government, so you have an upper hand. I'll show you where to go to fit your military experience into a federal job resume. Talk to civilian employees on military bases and you will find they can help you plan ahead. The best part is that knowing how to assert your veteran's preference rights will put you over the top.
My Nonlegal Humble Advice
It's all about timing.
As soon as you receive notice you were not selected, determine whether you have a viable veteran's preference right violation. If you do not know if a violation has occurred you should file a complaint anyway and get some good learning experience out of the process. You may surprise yourself! (Refer to the case law excerpts I list below.)
As soon as you believe your preference rights have been violated, contact the agency and ask who was selected. If you can, send an email. Be polite but assertive, and conduct your investigation as though you were a police detective. When you make contact the following will suffice: "I recently applied for (input job announcement and vacancy number), and I would like to know where I appeared on the certificate of eligible." Keep all records. Determine if the person selected was a veteran. If so, ask what the person's disability rating was, if it applies, and then ask why you were not selected. Do this over a series of emails. Remember it's easier to catch flies with honey. You may also find you were more qualified than the person who was selected. If so, you should file a complaint with the equal employment officer with the agency.
If the point of contact you are dealing with begins to get irritated ask the agency representative what the procedure is to make a request for records under the Freedom of Information Act. (See example in the appendix.) Make plenty of pertinent Request for Information requests. Do not request what you do not need, and be specific in your request.
Contact the US Department of Labor, and file a complaint for veteran's preference rights violations. If the agency representative starts avoiding you then you have plenty of reason to begin your complaint with the US Department of Labor.
After the Department of Labor has completed its investigation, file your complaint with the Merit System Protection Board in a timely fashion. (If there are any issues with what you filed, you or an attorney can amend the complaint later. Just get the complaint filed.)
Contact an attorney who does not charge for consultations and ask whether you should bring additional charges under Title VII for violations of the 1964 Civil Rights Act. (By this time, you should have the information you requested related to the Request for Information, which will save you money if you have to hire an attorney.)
If you can find a representative who is not an attorney who has experienced veteran's preference violations and actually went through the appeal process, use them instead of an attorney to help you through the discovery process. These people know the game. You may get lucky and find an attorney who has performed as a representative and who is also a veteran. Let the attorney file for a substitution. Please note that you can find attorneys who specialize in MSPB and EEO litigation.
