3504. Preference eligibles; retention; physical qualifications; waiver.

SUBCHAPTER II-RESTORATION AFTER ACTIVE DUTY OR
TRAINING DUTY

3551. Restoration; Reserves and National Guardsmen.

SUBCHAPTER III-REINSTATEMENT OR RESTORATION AFTER SUSPENSION OR REMOVAL FOR NATIONAL SECURITY

3571. Reinstatement or restoration; individual suspended or removed for national security.

SUBCHAPTER IV-REEMPLOYMENT AFTER SERVICE WITH AN INTERNATIONAL ORGANIZATION

SUBCHAPTER V-REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE SENIOR EXECUTIVE SERVICE

3592. Removal from the Senior Executive Service.

3593. Reinstatement in the Senior Executive Service.

3594. Guaranteed placement in other personnel systems.

3595. Regulations.

SUBCHAPTER VI-REEMPLOYMENT FOLLOWING LIMITED APPOINTMENT IN THE FOREIGN SERVICE

3597. Reemployment following limited appointment in the Foreign Service.

(147)

SUBCHAPTER I-RETENTION PREFERENCE

§ 3501. Definitions; application

(a) For the purpose of this subchapter, except section 3504(1) "active service" has the meaning given it by section 101 of title 37;

(2) "a retired member of a uniformed service" means a member or former member of a uniformed service who is entitled, under statute, to retired, retirement, or retainer pay on account of his service as such a member; and

(3) a preference eligible employee who is a retired member of a uniformed service is considered a preference eligible only if(A) his retirement was based on disability

(i) resulting from injury or disease received in line

of duty as a direct result of armed conflict; or

(ii) caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by sections 101 and 301 of title 38;

(B) his service does not include twenty or more years of full-time active service, regardless of when performed but not including periods of active duty for training; or

(C) on November 30, 1964, he was employed in a position to which this subchapter applies and thereafter he continued to be so employed without a break in service of more than 30 days.

(b) Except as otherwise provided by this subsection and section 3504 of this title, this subchapter applies to each employee in or under an Executive agency. This subchapter does not apply to an employee whose appointment is required by Congress to be confirmed by, or made with the advice and consent of, the Senate or to a member of the Senior Executive Service. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 428, amended Pub. L. 94-183, § 2(8), Dec. 31, 1975, 89 Stat. 1057: Pub. L. 95-454, Oct. 13, 1978, 92 Stat. 1165.)

§ 3502. Order of retention

(a) The Office of Personnel Management shall prescribe regulations for the release of competing employees in a reduction in force which gives due effect to

(1) tenure of employment;

(2) military preference, subject to section 3501(a)(3) of this title:

(3) length of service; and

(4) efficiency or performance ratings.

In computing length of service, a competing employee—

(A) who is not a retired member of a uniformed service is entitled to credit for the total length of time in active service in the armed forces;

(B) who is a retired member of a uniformed service is entitled to credit for

(i) the length of time in active service in the armed forces during a war, or in a campaign or expedition for which a campaign badge has been authorized; or

(ii) the total length of time in active service in the armed forces if he is included under section 3501 (a) (3) (A), (B), or (C) of this title; and

(C) who is an employee in or under the Department of Agriculture is entitled to credit for service rendered as an employee of a county committee established pursuant to section 590h (b) of title 16, or of a committee or an association of producers described in section 610 (b) of title 7.

(b) A preference eligible described in section 2108 (3) (C) of this title who has a compensable service-connected disability of 30 percent or more and whose performance has not been rated unacceptable under a performance appraisal system implemented under chapter 43 of this title is entitled to be retained in preference to other preference eligibles. (c) An employee who is entitled to retention preference and whose performance has not been rated unacceptable under a performance appraisal system implemented under chapter 43 of this title is entitled to be retained in preference to other competing employees. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 428, amended Pub. L. 90-367, § 3, June 29, 1968, 82 Stat. 278; Pub. L. 90-623, § 1 (23), Oct. 22, 1968, 82 Stat. 1313; Pub. L. 95–454, Oct. 13, 1978, 92 Stat. 1149 and 1224.)

§ 3503. Transfer of functions

(a) When a function is transferred from one agency to another, each competing employee in the function shall be transferred to the receiving agency for employment in a position for which he is qualified before the receiving agency may make an appointment from another source to that position.

(b) When one agency is replaced by another, each competing employee in the agency to be replaced shall be transferred to the replacing agency for employment in a position for which he is qualified before the replacing agency may make an appointment from another source to that position. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 429; amended Pub. L. 95-454, Oct. 13, 1978, 92 Stat. 1149 and 1224; Pub. L. 96–54. Aug. 14, 1979, 93 Stat. 382.)

§3504. Preference eligibles; retention; physical qualifications;

waiver

(a) In determining qualifications of a preference eligible for retention in a position in the competitive service, an Executive agency, or the government of the District of Columbia, the Office of Personnel Management or other examining agency shall waive

(1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and

(2) physical requirements if, in the opinion of the Office or other examining agency, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position.

(b) If an examining agency determines that, on the basis of evidence before it, a preference eligible described in section 2108 (3) (C) of this title who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the position, the examining agency shall notify the Office of the determination and, at the same time, the examining agency shall notify the perference eligible of the reasons for the determination and of the right to respond, within 15 days of the date of the notification, to the Office. The Office shall require a demonstration by the appointing authority that the notification was timely sent to the preference eligible's last known address and shall, before the selection of any other person for the position, make a final determination on the physical ability of the preference eligible to perform the duties of the position, taking into account any additional information provided in the response. When the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its findings to the appointing authority and the preference eligible. The appointing authority shall comply with the findings of the Office. The functions of the Office under this subsection may not be delegated. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 429; Pub. L. 95-454, Oct. 13, 1978, 92 Stat. 1149 and 1224.)