OPM to tweak draft dodging rules, delegate investigations to agencies

The Office of Personnel Management this week proposed new regulations governing federal job applicants who had failed to register for the draft that officials said would improve job seekers’ ability to prove that they did so unintentionally, as well as speed up the hiring process.

Although the U.S. military shifted to an all-volunteer force decades ago, all men in the United States between the ages of 18 and 26 must register for the draft with the Selective Service System. And in 1985, Congress enacted a law that bars people who “knowingly and willfully” declined to register for the draft from becoming federal employees.

Currently, when a hiring federal agency encounters a candidate who has not registered for the draft and is at least 27 years old—those 26 and under still may simply register with the Selective Service System—they must ask OPM to conduct an investigation into whether the candidate intentionally dodged the draft. OPM said that in the last three years, approximately 1% of these cases resulted in the candidate being removed from federal service or having a job offer rescinded.

In a proposed rule published to the Federal Register Wednesday, OPM posited codifying that a job applicant need only prove that their failure to register for the draft was either not done willfully or not done knowingly—though that typically is how OPM has treated such cases in the past.

“OPM proposes to resolve the ambiguity in [the statute] by amending [the regulation] to provide that a failure to register is not a bar to appointment unless such failure was both knowing and willful,” the proposal states. “In other words, the applicant or employee could establish eligibility under the act by demonstrating, by a preponderance of the evidence . . . that a failure to register was either not knowing or not willful.”

Additionally, the rule proposes delegating the investigation and initial determination process for whether an applicant’s failure to register for the draft was knowing and willful to each individual hiring agency, unless that agency first requests OPM’s assistance. Officials said this move both will speed up the hiring process as well as help OPM fulfill its goal of focusing less on transactional compliance and more on strategic human capital issues, as recommended by the National Academy of Public Administration in 2021.

“OPM’s proposal to allow executive agencies to conduct the initial adjudication should alleviate federal agencies’ having to delay the recruitment process to send cases to OPM for adjudication,” OPM wrote. “In its March 2021 report, NAPA recommended that OPM adopt a more decentralized and risk-based approach to executing its transactional approval and oversight responsibilities. Specifically, NAPA recommended that OPM delegate, to the maximum extent possible, decision-making authorities to agencies, and conduct cyclical reviews to verify that appropriate actions were taken.”

Under the new scheme, OPM would operate as a sort of backstop for the draft-dodging investigation process, stepping in to do initial investigations when asked but primarily serving more as a final arbiter in cases when a review has been requested. Instead, the task would fall to agency chief human capital officers.

In cases where a federal job applicant’s registration status has already been investigated by an agency, the hiring agency may request OPM to review the previous determination, albeit only if they have new evidence suggesting the applicant knowingly and willfully avoided registering. Additionally, OPM can review agencies’ decisions in these cases “on its own initiative,” and it may revoke an agency’s authority to conduct its own investigations if it fails to follow the law.

“OPM is also proposing that an OPM decision on reconsideration is final and no further adjudication by any agency is available,” the rule states.

OPM previously proposed similar regulations in 2011, but the proposal was withdrawn in 2017 due to “competing priorities.” The agency is accepting comments on its plan between now and April 7.