MILITARY SERVICE BENEFITS AND
VETERANS’ STATUS AND DEFINITIONS

Many New York State employees and examination applicants are members or have served in the armed forces and reserve forces of the United States or the organized militia of New York State. As a result of these individuals’ participation in the ongoing war against terrorism, including the military interventions in Afghanistan, Iraq, and elsewhere, the Department of Civil Service has received numerous questions regarding eligibility for military and veterans’ merit system benefits under the New York State Military Law and Civil Service Law.

This memorandum updates and replaces Advisory Memorandum #93-07 and provides an overview of eligibility requirements for military service benefits and veterans’ and disabled veterans’ benefits under the Military Law and Civil Service Law. The memo also addresses common questions concerning veterans’ and disabled veterans’ status.

Eligibility for benefits as a veteran or disabled veteran under the Civil Service Law should not be used in determining eligibility as a veteran or disabled veteran under other New York State or federal statutes or programs. Similarly, entitlement to benefits as a veteran or disabled veteran under other state or federal statutes or programs is not controlling for determining entitlement to benefits under the Civil Service Law.

MILITARY BENEFITS
New York State provides a variety of merit system rights and benefits for people who are performing or have performed military service in the armed forces or reserve forces of the United States. The military benefits outlined below do not apply to military duty in the service of New York State or any temporary or intermittent gratuitous service in any federal reserve or auxiliary force (Military Law, §243.1(b)).

Age Deductions for Positions Specifying a Maximum Age
Applicants may deduct the time spent in federal military service from their ages when applying for positions which specify maximum age limitations at the time of examination or appointment. The allowable age deduction varies depending upon the nature and extent of qualifying military service:

Four years: any person who performed active duty in the armed forces of the United States, whether involuntary or voluntary, is entitled to an age deduction of up to four years, depending upon the actual duration of duty. The computation includes time traveling to and from such duty and any period[s] of terminal leave.

Five Years: individuals who voluntarily entered the armed forces of the United States after July 1, 1970, but did not serve in time of war may deduct up to five years, if the fifth year was at the request of and for the convenience of the federal government (see pp. 5 and 6 for definition of “time of war”).

Six Years: individuals may deduct up to six years of time served during a time of war or national emergency declared by the President.

Make-up Examinations
Any member of the armed forces who has met the announced minimum qualifications and who properly filed an application for a competitive examination within the announced filing period but was unable to participate in the examination due to active military duty is entitled to a special military make-up examination. The eligible list resulting from the original examination must still be in existence at the time the request for the make-up examination is made. This benefit is available to any examination candidate and is not limited to State employees (Military Law, §243-b). Requests for make-up examinations must be made in writing to the Staffing Support Unit, NYS Department of Civil Service.

If a promotion examination is held while a public employee who would be entitled to participate in the examination is on military duty, the employee is entitled to a comparable examination, provided that the employee makes such request within 60 days after being restored to his/her position (Military Law, §243.5). Requests for comparable examinations pursuant to §243.5 must be made in writing to the Staffing Support Unit, NYS Department of Civil Service.

Any person who has passed one or more parts of an examination but has been prevented from completing the remaining parts of the examination because of military duty is entitled to complete the examination, provided that such request is made within 90 days from the termination of military duty (Military Law §243.7-b). This benefit is available to any examination candidate and is not limited to State employees. Requests to complete an examination pursuant to §243.7-b must be made in writing to the Staffing Support Unit, NYS Department of Civil Service.

List Eligibility
While on military duty, any person whose name is on an eligible list shall retain all associated rights and status on that list.

A person may be appointed from an eligible list while on military duty (Military Law §243.6). If a candidate is canvassed while on military duty and fails to respond timely, the person should be recorded as temporarily unavailable (code “TI”) for purposes of that canvass. A person on military duty should not be recorded on a Report of Canvass as declining a position (code “DP”) absent that eligible’s actual declination. (Refer to SPMM Policy Bulletins ## 00-01, 97-05, and 97-04 for list canvassing policies and procedures.)

Special Military Lists
If a person’s score becomes reachable for certification from an eligible list during military duty, that eligible’s name will be placed on a special military list upon request following separation from military duty, provided the original eligible list is still in existence (Military Law §243.7). A person who has competed in a comparable examination (Military Law §243.5) or has completed all parts of a prior examination following military duty (Military Law §243.7-b) is entitled to special military list status if his or her score was reached for appointment between the date of entrance into military duty and the date he or she is notified of passing the examination.

Eligibility on any special military list is for a maximum period of two years. While an eligible retains special military list status, his or her name also remains active on the regular eligible list so long as that list is in existence. If an eligible is appointed from a special military list, his or her name may also be removed from the regular list for other positions filled from that list at that salary grade (or lower). A person appointed from a regular eligible list will have his or her name removed from the corresponding special military list.

Eligibility for Retroactive Seniority from Appointments from Special Military Lists
An employee performing military duty who is appointed from an open-competitive, transition, or promotion special military eligible list may be entitled to retroactive seniority from the date on which any eligible was appointed with a lower score from the regular eligible list. This retroactive seniority can be used for computing seniority credit in promotion examinations, computing training and experience credit for promotion, and determining eligibility for admission to promotion examinations.

Certification of Special Military Lists
Special military lists established pursuant to Military Law §§243.5 and 243.7-b generally enjoy priority in certification over any other lists, including the original eligible list, any subsequent eligible list for that title, or any subsequent reemployment lists.
Special military lists established pursuant to Military Law §243.7 have certification priority over the original eligible list and any subsequently created eligible list.
Special military lists never have priority over a previously established (already existing) mandatory reemployment list.

There can be no more than one special military list for each regular eligible list. No matter what the source of special military list status (e.g., from status on an existing eligible list, or following administration of a make-up or comparable examination), the names of all eligibles should be interfiled on a single special military list, in rank order, recording eligibility dates and the statutory basis for special list status. A special military list is not a mandatory list, unless it includes three or more names of individuals willing to accept appointment to a given position.

VETERANS’ AND DISABLED VETERANS’ BENEFITS
In addition to the benefits described above, qualified veterans and disabled veterans receive merit system benefits under the State Constitution and Civil Service Law.
Additional Credit in Examinations

Eligible war-time veterans are entitled to receive an additional five points on open competitive examinations and two and one-half points on promotion examinations. Eligible war-time disabled veterans are entitled to receive an additional ten points on open competitive examinations and five points on promotion examinations. These credits are added to the final earned rating for passing candidates and may be used only once, for appointment to a State or municipal civil service job (New York Constitution, Article V, §6; §85 Civil Service Law).

Additional Service Credit for Retention
Non-disabled war-time veterans serving in positions subject to Civil Service Law §§80 or 80-a, or labor class employees granted equivalent rights pursuant to collective bargaining agreements, are deemed to have received an original classified service appointment date 30 months prior to their actual date of permanent appointment. War-time disabled veterans serving in such positions are deemed to have received an original classified service appointment date 60 months prior to their actual date of permanent appointment (Civil Service Law §85).

A spouse of a veteran with a 100 percent service-connected disability and who is also a head of household and is domiciled with the veteran-spouse has a seniority date deemed to be 60 months earlier than the date of original permanent appointment to the classified service. The veteran with the 100 percent service-connected disability need not be a current or former New York State employee (Civil Service Law §85).

Tenure Protection
Veterans, disabled or non-disabled, who are not subject to contract disciplinary procedures, obtain the due process protections against discipline or removal pursuant to Civil Service Law §75. Veterans may obtain §75 rights even if they serve in a position in the exempt class or in the non-competitive class which has been designated confidential or policy influencing, provided they do not hold a position of private secretary, cashier, or deputy of any official or department (Civil Service Law §75-b).

Transfer Upon Abolition of Positions
Veterans, disabled or non-disabled, serving in positions in the labor class or the non-competitive class which are not subject to the provisions of Civil Service Law §80-a, who are not private secretaries, cashiers or deputies, and whose positions have been abolished, may request a transfer to another similar vacant position at the same salary grade. This benefit is available for one year from the date of layoff (Civil Service Law §86).

Specific questions about the military service and veterans’ benefits noted should be referred to your Staffing Services Representative.

ELIGIBILITY FOR VETERANS’ AND DISABLED VETERANS’ BENEFITS
Veterans

To be considered a veteran for all purposes under the Civil Service Law, an individual MUST:

• be a United States citizen or alien lawfully admitted for permanent residence and a resident of the State of New York at the time of application for appointment or promotion or retention;
• have been honorably discharged or released under honorable circumstances from the armed forces of the United States. The armed forces of the United States includes the army, navy, marine corps, air force, coast guard, including all components thereof; and the national guard when in the service of the United States pursuant to call as provided by law, on a full-time duty basis, other than active duty for training purposes; and
• have served anywhere in the US armed forces during a designated “time of war”. “Time of war” includes the following wars and hostilities:

Civil Service Law §85, General Construction Law, Section13-a.)
Notes:

• An otherwise eligible individual may apply for extra credits in an examination as a war-time veteran or disabled veteran if he or she expects to receive an honorable discharge or release under honorable conditions.
• Dates of service and award of campaign medals are typically detailed on a veteran’s federal Form DD-214, “Certification of Release or Discharge from Active Duty.”

Disabled Veterans
In order to qualify for status as a disabled veteran, an individual, in addition to meeting all of the criteria for veterans’ status, must:

• be certified by the United States Department of Veterans Affairs (DVA; formerly the Veterans Administration) as entitled to disability payments for a disability incurred while serving in the United States armed forces during a designated time of war as defined above;
• have his or her disability rated by the Department of Veterans Affairs at 10 percent or more;
• have the qualifying disability at the time of application for appointment or promotion or retention; and
• be receiving payment from the DVA for such disability at the time of application for appointment or promotion, or for retention.

(NYS Constitution, Article V., Civil Service Law §6; §85.1(b))

VERIFYING CLAIMS OF VETERANS’ AND DISABLED VETERANS’ STATUS

As the appointing authority, you are responsible for verifying claims of a veteran’s or a disabled veteran’s eligibility for additional service credit in the event of a reduction in force. Because gathering appropriate documentation may take some time, we recommend that you verify a veteran’s or a disabled veteran’s qualifying status as soon as possible—upon appointment, upon notification by the employee, or upon a change in an employee’s status (following a period of military duty, for example). You should retain copies of the veteran’s or disabled veteran’s documentary evidence in the employee’s personal history folder.

To document a claim of veterans’ status, you should inspect the employee’s federal Form DD 214 (NAVPERS-553 / NAVMC-78 PD / WDAGO-53, 55 / WDAGO-53, 98) to verify the dates of qualifying service (and for service in Lebanon, Grenada, or Panama, the award of an appropriate expeditionary medal) and that separation from the service occurred under honorable circumstances. If the employee is still a member of the armed forces of the United States (the National Guard or Reserves) and cannot provide a DD-214, you should examine the employee’s military orders to evaluate whether a specific period of service was qualifying.

To assist in verifying an employee’s claim for status as a disabled veteran pursuant to Civil Service Law §85 , the Department of Civil Service provides form S-7 [see last page of this Advisory Memorandum]. After completing the top of the form with the employee’s name and your office’s return address, please ask the employee to complete Section 1.

Employees should also complete and sign federal form VA 10-5345, “Request for and Authorization to Release Medical Records or Health Information,” and attach it to Form S-7. When completing form VA 10-5345, we suggest that the employee indicate that the information requested on the accompanying form S-7 concerns the employee’s service-connected disability (check “other” in the “Information Requested” section of form VA 10-53455 and describe the information sought), and explain that the information is needed to establish or verify the employee’s status as a disabled war-time veteran for purposes of New York State Civil Service Law benefits (and so indicate in the “Purposes(s) or Need for which the Information is to be Used by Individual to Whom Information is to be Released” section of VA 10-5345). Form VA 10-5345 can be obtained and printed from the DVA web site at http://www.va.gov/vaforms. Simply type “10-5345” in the search window. Please note that the DVA may revise or replace forms without notice; it is likely that current forms will remain available at the DVA website.

The employee should attach the completed Form S-7 to the VA 10-5345 and forward both forms to the appropriate DVA office.

The DVA will complete the S-7 and return it to your office. At that time, please review the responses to insure that the veteran’s claim is supported. Questions 1, 2, and 3 must be answered YES. If question 4 is answered NO, then question 5 must be answered YES. This completed form should be retained as a permanent part of the employee’s personal history file.

Reviewing Veterans’ and Disabled Veterans’ Status in NYSTEP
Recently, the Department has added an option to NYSTEP Reports to assist you in verifying/maintaining documentation on veterans. Go to: NYSTEP Reports > Agency Management Reports > Employee Listing. On the Employee Listing panel, you may customize a report for veterans’ information using the new checkboxes. The NYSTEP record reflects information on an employee submitted by your agency or by an earlier appointing authority.

If you would like assistance in accessing NYSTEP Reports, please contact the DCS Help Desk at 518-457-5406 or 1-800-422-3671.

You must remember to update an employee’s NYSTEP records once a claim of veterans’ or disabled veterans’ status has been established or the employee’s recorded status has changed.

QUESTIONS AND ANSWERS RE: ELIGIBILITY FOR VETERANS' STATUS

The following questions and answers are provided as background information only. For answers to detailed inquiries regarding specific employees or applicants, please consult with your Staffing Services Representative.

Q1: A candidate or employee claims veterans’ status based upon designation as a veteran or disabled veteran for other State or federal programs or benefits. Is this sufficient to establish an entitlement under the State Constitution and Civil Service Law?

A: No. The Civil Service Law definitions of veteran and disabled veteran are specific to such law. Proof of veterans’ or disabled veterans’ status for purposes of other programs or benefits will not necessarily establish eligibility for merit system benefits under the NYS Constitution and Civil Service Law.

Q2: Is the United States now, May 2004, in a designated time of war?

A: Pursuant to Civil Service Law §85.8, the United States has been in a designated time of war for hostilities participated in by the military forces of the United States in the Persian Gulf from August 2, 1990 until the end of such hostilities. Service during this designated time of war is not limited to the Persian Gulf theater of operations and does not require an employee or examination applicant to possess a specific expeditionary medal or campaign ribbon. For the purposes of the veterans’ and disabled veterans’ benefits described in this memorandum, the current time of war period will continue until it is formally ended by action of the State Legislature with approval of the Governor.

Q3: Is an employee on military leave, regardless of pay status, a veteran under the Civil Service Law?

A: Not necessarily. Pursuant to Military Law §§242 and 243 and provisions of federal law, public employees have a right to military leave while performing ordered military duty. However, an employee’s absence on military leave does not automatically establish veterans’ status since certain types or periods of ordered military duty for which military leave is granted do not qualify toward attainment of veterans’ status. Each period of ordered military duty must be evaluated independently against the standards for qualifying service. (Note that many of the merit system rights and benefits described in this memorandum do not require veterans’ status.)

Q4: What is the difference between military service in the armed forces of the United States and in the organized militia of New York State? Is all military service creditable toward obtaining veterans’ status under the Civil Service Law?

A: Only active military service in the armed forces of the United States during a time of war, other than active duty for training, is creditable towards attaining veterans’ status under the Civil Service Law. References to federal active duty service (other than for training) on a United States Department of Defense Form DD-214 may reference “Executive Orders (of the President of the United States),” “Orders of the Secretary of Defense,” or provisions of Title 10 of the United States Code. These descriptions address military duty in the armed forces of the United States, and potentially may be used in establishing a claim for veterans’ status. Federal military orders which include the code “IADT” may indicate federal initial activation for training purposes. Federal active duty for training or less-than-full-time duty in the armed forces of the United States is not qualifying for veterans’ or disabled veterans’ purposes.

Since September 11, 2001, certain individuals and units of the National Guard have been ordered to active duty by the Governor for disaster relief and homeland security operations. Military orders referencing “Orders of the Governor” or provisions of Title 32 of the United States Code or Military Law §6 describe military duty in the service of New York State, which cannot be used to support an application for veterans’ status. A federal Form DD-214 is not issued for State military service.

An employee’s or applicant’s military unit or the New York State Division of Military and Naval Affairs may be able to assist you with questions regarding the specific military orders recorded on a person’s Form DD-214 or other military documentation.

Q5: An employee’s or applicant’s orders show that he or she has been released from active duty, but his or her service obligation has not yet terminated. Is he or she already a veteran?

A: Perhaps. An individual may attain veterans’ status if he or she is released under honorable circumstances from qualifying military duty (or expects such release, if applying for additional examination credits only). A release can occur when a specific set of military orders for active duty ends, but before an individual’s reserve obligation terminates. Periods of military service and the termination of the reserve obligation date (if applicable) will be recorded on an individual’s Form DD-214. To be creditable towards attainment of veterans’ status, each release following a period of federal active duty (other than for training) must be under honorable conditions.

Orders for active military duty in the armed forces of the United States (other than active duty for training) may vary in duration from periods of less than a day, to continuous absences of several months, or more. Original military orders may also be modified and extended. In the case Matter of the City of New York, et al., v. City Civil Service Commission (60 NY2d 436), the New York State Court of Appeals determined that veterans' status under the Civil Service Law should be granted only to those individuals whose service “was on a full-time basis evidencing a sacrifice in the form of disruption of civilian life and divorce from civilian occupation…” and should be denied if it “did not significantly interfere with the applicant’s normal employment and way of life.” (See SPMM Advisory Memorandum No. 85-01)

For individuals who claim veteran status based solely upon one or more periods of active duty (other than for training) in a reserve component of the armed forces of the United States, appointing authorities should review each request against the standard for military service described by the Court of Appeals (see above). Any agency policies on the crediting of active duty reserve service towards attainment of veterans’ status should be reasonable and applied consistently for all similarly situated employees or examination applicants.

Q6: An employee or applicant bases a request for veterans’ status on a period of active duty, but cannot produce a Form DD-214 for such service. Should his or her claim be automatically denied?

A: No. Outright rejection of claims for veterans’ status should be avoided if an individual describes potentially qualifying service, but is awaiting appropriate documentary proof. An employee or applicant may not be able to promptly supply documentary proof of active duty for a variety of reasons. A Form DD-214 may not be issued for periods of active duty shorter than 90 days, or military paperwork processing delays may occur. Personnel offices can assist employees or applicants to document periods of service by contacting military officials; usually an employee or applicant’s military unit is a good place to start.

When a federal Form DD-214 has not been issued, a commanding officer or other appropriate military official may forward a signed summary of military duty on official letterhead or the employee may furnish copies of his or her actual military orders. However, the individual requesting veterans’ status must still establish that his or her release from active duty (other than active duty for training) following a period of claimed service occurred under honorable conditions.

As necessary, preliminary approval can be granted, but final determinations of veterans’ or disabled veterans’ status should be withheld until appropriate documentation can be obtained.

Additional credits on examinations may be approved in expectation of honorable discharge or release under honorable circumstances from qualifying service. However, an individual must have already obtained an appropriate discharge or release following qualifying military service prior to requesting veterans’ benefits in retention situations.

Q7: An individual claims status as a disabled veteran, but does not appear to meet all of the eligibility requirements. Could this person be a veteran?

A: For purposes of Civil Service Law §85, a disabled veteran must be a veteran who has a qualifying service-related disability incurred during a designated time of war and is currently receiving disability payment from the DVA. Therefore, each element of the veteran and disabled veteran definitions must be reviewed carefully; an individual who cannot qualify as a disabled veteran may nevertheless be eligible for merit system benefits as a veteran.

Q8: Must a veteran (disabled or non-disabled) be a New York State resident to qualify for additional service credits (seniority) for purposes of retention?

A: State residency at the time of layoff is necessary for adjusted seniority, as required by a 1993 amendment to §85(1)(a) of the Civil Service Law. Agencies should review each veteran’s recorded place of residence when verifying the information on seniority rosters prepared by the Department of Civil Service. Individuals who are not New York State residents at the time of layoff are not entitled to adjusted seniority as war-time veterans or disabled veterans.

Q9: Must a veteran (disabled or non-disabled) be a New York State resident at the time of exam application in order to qualify for additional credits on examinations?

A: No. New York State residency is required at the time of appointment in order to use claimed veterans’ or disabled veterans’ additional examination credits.
Residency requirements for veterans’ or disabled veterans’ status should not be confused with residency requirements imposed by the Public Officers Law for appointment to certain positions in State service.

Q10: An employee is recorded in NYSTEP as a veteran or disabled veteran, but there is no supporting documentation in his/her personal history folder. Should that employee’s veterans’ or disabled veterans’ status be changed to non-vet (or non-disabled vet, as the case may be)?

A: Not immediately. You should inquire further. First, the employee should be consulted. Members and veterans of the armed forces are advised to retain copies of important military documents, including any Forms DD-214 produced for separate periods of duty. Documentation may also have been retained by one of an employee’s previous appointing authorities. The New York State Division of Military and Naval Affairs, the United States Department of Defense, including the various branches of the armed services, and the United States Department of Veterans Affairs may be able to assist the employee or personnel office in obtaining military service records.

Q11: Does Civil Service certification of an employee or applicant as CSL §55-c eligible automatically establish that individual’s status as a disabled veteran? (Civil Service Law §55-c is entitled “Employment of veterans with disabilities by the state.”)

A: No. The criteria for eligibility under CSL §55-c are different than the criteria to determine disabled veterans’ status for the purpose of receiving additional credits on an examination or for receiving additional seniority in event of a reduction in force. A §55-c employee may nevertheless be entitled to veterans’ or disabled veterans’ merit system benefits if he or she otherwise meets the criteria of CSL §85. Questions regarding eligibility for participation in the §55-c program only should be directed to the Governor’s Program to Hire Disabled Veterans at the Department of Civil Service at (518) 485-7511.

Q12: An employee has already been accorded civil service veterans’ status. During a subsequent period of federal military service, the employee is released from that military service under other than honorable conditions (or has received a discharge that cannot be characterized as honorable). For purposes of maintaining veterans’ benefits under the State Constitution and the Civil Service Law, is this employee still considered a veteran?

A: Ordinarily, an employee or applicant must establish an entitlement to veterans’ or disabled veterans’ status only once. However, a subsequent release under other than honorable conditions or a discharge that cannot be characterized as honorable serves to revoke a prior award of veterans’ or disabled veterans’ status, or may bar a future request for either status. If you believe that this situation has occurred, please discuss the matter with your Staffing Service Representative.

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