Act is entitled, on termination of that appointment for any reason other than his own misconduct or delinquency, to be reinstated in his former position or in one of like seniority, status, and pay in the same agency. If the functions with which the employee's former position was identified have been transferred to another agency, the employee's right to reinstatement is in the gaining agency. [36 F.R. 13897, July 28, 1971] § 352.505 Proposed termination. At least 45 days before termination of the appointment of an employee entitled to reinstatement, the agency terminating the employee shall notify the employee and his former agency in writing of the proposed termination. However, notification under this section is not required when: (a) The termination is at the employee's own request; or (b) The employee is reinstated without a break in service under an arrangement made between the agencies concerned. § 352.506 Application for reinstatement. An employee who desires reinstatement shall apply for reinstatement, in writing, no later than 30 days after his appointment under authority of section 233(d) or section 625(b) of the Act is terminated, unless arrangement has been made for his reinstatement without a break in service under § 352.505(b). [36 F.R. 13897, July 28, 1971] § 352.507 Reinstatement. An employee eligible for reinstatement is entitled to be reinstated as soon as possible after his application for reinstatement, filed in accordance with § 352.506, is received. In any event, he is entitled to be reinstated (a) within 30 days after his application for reinstatement is received, or (b) on termination of the appointment made under authority of section 233 (d) or section 625(b) of the act, whichever is later. [36 F.R. 13897, July 28, 1971] § 352.508 Appeals to the Commission. (a) Right to appeal. (1) If an agency determines that an employee who has applied for reinstatement is not eligible for reinstatement, it shall notify the employee as promptly as possible of its decision, of the basis therefor, and of the employee's appeal rights under this subpart. The employee is entitled to ap peal the decision to the Commission within 15 calendar days after he receives notice of the decision. (2) If an agency fails to reinstate an employee within the time limits specified in section 352.507, the employee is entitled to appeal to the Commission within 15 calendar days after the applicable time limit expires. (3) If an employee considers that his reinstatement is not in accordance with the act and this subpart, he is entitled to appeal to the Commission within 15 calendar days after his reinstatement becomes effective. (b) Where initial appeals are filed. Initial appeals under this subpart are to be filed with the Chief, Appeals Examining Office, U.S. Civil Service Commission, Washington, D.C. 20415. (c) Finality of initial appeal decisions. Unless further appealed under paragraph (d) of this section, an appeal decision by the Chief, Appeals Examining Office, is final. (d) Right to further appeal. An initial appeal decision by the Chief, Appeals Examining Office, may be further appealed to the Board of Appeals and Review, U.S. Civil Service Commission, Washington, D.C. 20415 within 15 calendar days after receipt of the decision. The further appeal shall be in writing and contain the reasons for disagreement with the initial decision. (e) Finality of decisions by Board of Appeals and Review. A decision by the Board of Appeals and Review is final. There is further right of appeal. (f) General provisions governing appeals. (1) Delayed appeals. The Commission may extend the time limits in paragraphs (a) and (d) of this section on a showing by the appellant that he was not notified of the applicable time limit, and was not otherwise aware of the limit, or that circumstances beyond his control prevented him from filing an appeal within the prescribed time limit. (2) Appeal decisions. The Commission shall submit its decisions on an appeal in writing to each appellant and to each agency concerned. An appeal decision may order that the reinstatement of an appellant be made retroactive to the date on which the applicable time limit specified in § 352.507 expired. (3) Cancellation of appeals. The Commission shall cancel an appeal. and the appellant and his agency will be so notified, on receipt of the appellant's written request for cancellation or upon failure of the appellant to furnish information requested by the Commission. (4) Death of appellant. When an appeal under this subpart is filed properly before the death of an appellant, the Commission shall process it to completion and adjudicate it. The Commission, in recommending corrective action in the decision on such an appeal, may provide for amendment of the agency's records to show retroactive restoration and the appellant's continuance on the rolls in an active duty status to the date of death. (g) Review by the Commissioners. The Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that: (1) New and material evidence is available that was not readily available when the previous decision was issued; (2) The previous decision involves an erroneous interpretation of law or regulation or a misapplication of established policy; or (3) The previous decision is of a precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand, or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners. [33 F.R. 12433, Sept. 4, 1968, as amended at 34 F.R. 11537, July 12, 1969] Sec. 353.404 Physical disqualification. 353.405 Conflicting rights. 353.406 Notice of right of appeal. Subpart E-[Reserved] Subpart F-[Reserved] Subpart G-Appeals to the Commission 353.701 Initial appeals to the Commission. 353.702 Where initial appeals are filed. 853.703 Finality of initial appeal decision. 353.704 Further appeals to the Commission. 353.705 Finality of decision by Board of Appeals and Review. 853.706 General provisions governing appeals. 353.707 Review by the Commissioners. Subpart H-Military Duty Performed by Temporary and Indefinite Employees 853.801 Rights of temporary and indefinite employees performing military duty. AUTHORITY: The provisions of this Part 353 issued under sec. 9, 62 Stat. 614, as amended; 50 U.S.C. App. 459. § 353.801 issued under 6 U.S.C. 3301, 3302, E.O. 10577; 8 CFR, 19541958 Comp., p. 218. SOURCE: The provisions of this Part 353 appear at 33 F.R. 12437, Sept. 4, 1968, unless otherwise noted. Subpart A-General Provisions § 353.101 Scope. In this part: (a) "Act" means the Military Selective Service Act of 1967, as amended (50 U.S.C. App. 451 et seq.). (b) “Agency" means (1) any department, independent establishment, agenсу, or corporation in the executive branch of the Federal Government; and (2) the government of the District of Columbia. (c) "Leave of absence" means military leave, annual leave, leave without pay, or any combination of these. (d) "Military duty" means a period of (1) active duty for training or for service in the Armed Forces of the United States, (2) inactive duty training in the Armed Forces of the United States, and (3) active duty in the Public Health Service that is covered by section 9(g) (2) of the Act. For the purpose of this paragraph, full-time training or other full-time duty performed by a member of the National Guard under 32 U.S.C. 316, 503, 504, or 505 is considered active duty for training in the Armed Forces of the United States, and in active duty training performed by a member of the National Guard under 32 U.S.C. 502 or 37 U.S.C. 206(a) or 1002(a) is considered inactive duty training in the Armed Forces of the United States. § 353.103 Employees covered. (a) Subparts A through G of this part cover each employee of an agency who enters on military duty from: (1) A career or career-conditional appointment in a position in the competitive service; or (2) An appointment without time limitation in a position outside the competitive service. (b) Subpart H of this part covers each employee who enters on military duty from an indefinite appointment in the competitive service that is not limited to 1 year or less. § 353.104 Agency action at time employee enters on military duty. Each employee who enters on active duty with restoration rights under section 9(b) or section 9(g) (1), (2), or (3) of the Act shall be either separated or furloughed, at the option of his agency, when he enters on military duty, except that an agency may elect to place a member of a reserve component of the Armed Forces or a member of the National Guard on leave of absence, instead. § 353.105 Notification of rights and obligations. When an employee is separated, furloughed, or given leave of absence for military duty in accordance with the Act and this part, his agency shall notify him of all rights and obligations relating to his Government employment that are affected by that military duty. §353.106 Maintenance of records. Each agency shall identify for the record the position that an employee leaves to enter on military duty. It shall also maintain such records as are necessary to assure that the benefits granted by the Act and this part are preserved to each employee who enters on military duty. Subpart B-[Reserved] § 353.301 Consideration for promotion. (a) Each agency shall consider every employee absent on military duty for all promotions for which he would be considered were he not absent. A promotion based on this consideration is effective on the date it would have been made if the employee were not absent. (b) When the position of an employee absent on military duty is regraded upward during his absence, his agency shall place him in the regraded position. § 353.302 Prohibition against demotion. An agency may not demote an employee absent on military duty during his absence. § 353.303 Abolishment of position. If the position of an employee absent on military duty is abolished, the agency concerned shall reassign the employee to another position of like seniority, status, and pay. § 353.304 Transfer of function to another agency. If the function with which an employee absent on military duty was associated at the time he left for military duty is transferred to another agency and if the employee would have been transferred with the function under Part 351 of this chapter if he were not absent, the gaining agency shall retain the employee in his position or assign him to a position of like seniority, status, and pay. It shall also assume the obligation to restore the employee in accordance with the Act and this part. If the employee would not have been transferred with the function. the losing agency shall assign the employee to another position of like seniority, status, and pay. § 353.305 Abolishment of agency. If an agency is abolished and its functions are not transferred to another agency, it shall furnish the Commission a list of its employees absent on military duty. For each employee, the list shall state the employee's name, date of birth, position, grade, and pay, and the name of the organizational unit in which his position was located. The agency shall note in each employee's Official Person nel Folder that notification was made under this section. Subpart D-Agency Obligation To Restore § 353.401 Extent of agency's obligation and how discharged. When an employee is entitled to restoration under section 9(b) or section 9(g) (1), (2), or (3) of the Act, the agency shall restore him in accordance with this subpart. § 353.402 Time limit for restoration. An employee is entitled to be restored as soon as possible after his application for restoration, filed in accordance with the Act, is received in the agency. In any event, he is entitled to be restored within 30 days after his application is received. § 353.403 Position to which restored. An employee is entitled to be restored to employment in the following order, unless the position is occupied by an employee in a higher retention subgroup under Part 351 of this chapter: (a) To the position to which promoted while he was on military duty, or, if that position is not available, to a position of like seniority, status, and pay. (b) To the position he left to enter military duty, or, if that position is not available, to a position of like seniority, status, and pay. (c) To the next best available position for which he is qualified. For purposes of this paragraph, the next best available position is one that most nearly approximates in seniority, status, and pay the position to which an employee is entitled under either paragraph (a) or (b) of this section. § 353.404 Physical disqualification. A returning employee who becomes disqualified because of disability sustained during military duty for a position to which he has restoration rights, is entitled to be restored to another position in the agency for which he is qualified that will provide him like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances in his case. Each other employee is entitled to be restored in accordance with the provisions of §§ 353.403 and 353.404. § 353.406 Notice of right of appeal. When an agency refuses to restore, or determines that it is not feasible to restore, an employee under the provisions of the Act and this part, it shall notify him in writing of the reasons for its decision, of his right to appeal to the Commission, and of the time limit applicable to the filing of an appeal. The agency shall forward a copy of the notice to the Commission. Subpart E-[Reserved] § 353.701 Initial appeals to the Com mission. (a) Executive branch and District of Columbia employees. (1) An employee who left an agency with right to restoration under section 9(b) or section 9(g) (1), (2), or (3) of the Act may appeal to the Commission in furtherance of this right, as follows: (1) Failure of restoration. If the agency concerned fails to restore an employee within 30 days after receipt of his application for restoration, filed in accordance with the Act, he may appeal to the Commission not later than 15 calendar days after the 30-day period has expired. (11) Not feasible to restore. If the agency concerned decides that it is not feasible to restore an employee, he may appeal this decision to the Commission not later than 15 calendar days after receipt of notice from the agency. (iii) Refusal of restoration. If the agency concerned refuses to restore an employee, he may appeal to the Commission not later than 15 calendar days after receipt of notice from the agency. (iv) Improper restoration. If an employee considers that he has been improperly restored, he may appeal to the Commission not later than 15 calendar days after his restoration. (v) Former agency abolished. If the agency in which an employee was employed when he left for military duty is abolished and its functions are not transferred to another agency, the employee may appeal to the Commission not later than 15 calendar days after expira Unless further appeal is filed in accordance with this subpart, the decision rendered by the Commission office handling the initial appeal is final. § 353.704 Further appeals to the Commission. An appeal decision rendered by a Commission office designated to handle initial appeals may be appealed to the Board of Appeals and Review, U.S. Civil Service Commission, Washington, D.C. 20415, within 15 calendar days after receipt of the decision on the initial appeal. The further appeal shall be in writing and shall contain the reasons for disagreeing with the initial decision. § 353.705 Finality of decision by Board of Appeals and Review. A decision by the Board of Appeals and Review is final. There is no further right of appeal. § 353.706 General provisions governing appeals. (a) Delayed appeals. The Commission may extend the time limits in §§ 353.701 and 353.704 when the appellant shows that he was not notified of these limits, and was not otherwise aware of them, or that circumstances beyond his control prevented him from filing an appeal within the prescribed limits. (b) Ascertainment of facts. Each appellant shall submit in writing all facts that he considers pertinent to his appeal. The Commission may also conduct such appropriate investigations as it considers necessary. (c) Notification of appeal decisions. The Commission shall submit its decision on an appeal in writing to each appellant and to each agency concerned. (d) Cancellation of appeals. The Commission shall cancel an appeal, and the appellant and the agency concerned will be so notified on receipt of the appellant's written request for cancellation, or on failure of the appellant to furnish information requested by the Commission. (e) Death of appellant. When an appeal under this subpart is filed properly before the death of an appellant, the Commission shall process it to completion and adjudicate it. The Commission, in recommending corrective action in the decision on such an appeal, may provide for amendment of the agency's records to show retroactive restoration and the appellant's continuance on the rolls in an active duty status to the date of death. § 353.707 Review by the Commissioners. The Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that: (a) New and material evidence is available that was not readily available when the previous decision was issued; (b) The previous decision involves an erroneous interpretation of law or regulation or a misapplication of established policy; or (c) The previous decision is of a precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand, or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners. [34 F.R. 11537, July 12, 1969] Subpart H-Military Duty Performed by Temporary and Indefinite Employees § 353.801 Rights of temporary and indefinite employees performing military duty. (a) General. Subject to the exceptions set forth in paragraph (b) of this section: |