This Advisory Memorandum amends certain information published in State Personnel Management Manual Advisory Memorandum #04-03. Please annotate the section “Make-up Examinations” in Advisory Memorandum #04-03 to reflect the changes discussed below.

Chapter 425 of the Laws of 2005 amends §243-b of the Military Law (ML) to greatly expand the availability of special military make-up examinations for candidates who miss application deadlines and/or scheduled examinations due to qualifying military duty. A copy of the statute is included on the last page of this memorandum, with changes in italics.

Expansion of Types of Military Service Qualifying for Benefits

New subdivisions (2) and (3) of §243-b now cover individuals in the reserve armed forces or organized militia who perform any ordered State (i.e. military duty by order of the Governor) or federal military service, except for a call to active duty solely for training. In practice, that means that virtually all ordered military duty performed by the reserve armed forces or organized militia, other than the “traditional” or “routine” reserve training and drill obligations (e.g. one weekend per month, plus two weeks per year, and/or drill meetings of less than a day), will now entitle an applicant to make-up exam administrations.

Candidates who timely filed for examinations and were denied an opportunity to compete because of short-term training duty should continue to be accommodated through alternate test date procedures.

This statute applies to all candidates for New York State examinations (and exams for NY political subdivisions) whether or not the candidate is currently an employee of the State or one of its political subdivisions.

Elimination of the Pre-Examination Filing Requirement

The requirement that candidates for an open-competitive examination, including current NYS employees, must have filed for the examination at least 10 days before the scheduled exam date (see ML §243-c) has been eliminated for members of the reserve armed forces or organized militia who were unavailable either during the announced filing period or on the original examination date due to qualifying military duty. A make-up examination may be requested even while the candidate remains on military duty for as long as the eligible list from the missed examination remains in existence.

A candidate who requests a military make-up examination within 10 days prior to an announced test date may be admitted to the scheduled test or provided an alternate test date, if required, without completing an application beforehand.

Issues and Notes

• Members of the regular armed forces (including the regular Army, Air Force, Navy, and Marines) continue to be governed by subdivision (1) of §243-b and ML section 243-c. In order to compete in open competitive examinations, these candidates are still required to file examination applications at least ten business days before the scheduled examination holding or filing deadline, whichever is later.
• A qualified candidate who failed to timely file an application is not guaranteed an opportunity to take an examination on a walk-in basis. Even if the candidate is available on the scheduled test date, he or she may be required to compete according to alternate test date procedures.
• There is no waiver of any required examination fees for a military make-up examination. No examination fees will be charged candidates for military make-up examinations (see SPMM Advisory Memorandum #08-02).
• A military make-up examination candidate is not automatically entitled to receive veterans’ or disabled veterans’ credits. Each applicant should be evaluated according to the appropriate criteria and definitions (see SPMM Advisory Memorandum #04-03).
• Qualified, successful military make–up examination candidates are entitled to have their names entered, in rank order, on the eligible list resulting from the original examination.
• To receive placement of his or her name on an eligible list following a military make-up examination, a candidate must have been qualified to compete as of the date of the original holding of the examination. An examination application should be on file for each make-up exam candidate, even if the application is filed after the administration of the examination.
• Success on a military make-up examination does not guarantee special military list (SML) status. All of the requirements for the appropriate type of SML must also be met (see ML §§243(5) and 243 (7-b)).
• To ensure the greatest period of list eligibility and to meet any applicable SML time requirements (see ML §243(5) and (7-b)), candidates should be encouraged to request a make-up examination within 60 days (for missed promotional examinations) or 90 days (for open competitive examinations where the candidate timely filed prior to the holding of the original examination) of termination of qualifying military duty. Candidates may still request make-up examinations after these deadlines, however they will not be eligible for SML status.
• Unless a candidate obtains SML status following a make-up examination, his or her period of eligibility will end with the expiration of the original eligible list.
• The period of eligibility for candidates on continuous recruitment (CR) eligible lists will commence following the scoring of the make-up CR examination.
• The DCS may decline to administer a special make-up examination if there would be no obvious benefit to the candidate (e.g. the make-up request is received one week before the associated eligible list is due to expire and the candidate could not obtain SML status).
• Although ML §243-b is silent on the matter, military make-up examinations should not be afforded candidates who have received a dishonorable discharge from military service. This is the same standard contained in ML §243-c, and is lower than the standards for military discharge and release found in ML §243 – which provides, among other benefits, the potential entitlement to SML status.

Questions from potential candidates to whom this memo applies should be referred to your Staffing Services Representative.

§ 243-b. Civil service examinations by military personnel.

1. Notwithstanding any other provision of this chapter or any other law, any member of the armed forces of the United States of America who having duly filed an application to compete in a scheduled competitive examination for civil service employment by the state of New York or any of its subdivisions and who due to active military duty is deprived of the opportunity to compete in such examination shall be provided with an opportunity to compete, under terms and conditions deemed appropriate by the state department of civil service or municipal commission, by way of a special military make-up examination.
2. Notwithstanding any other provision of this chapter or any other law, any member of the force of the organized militia, as the term is defined in subdivision nine of section one of this chapter or reserve armed forces, as that term is defined in subdivision twenty-nine of section two hundred ninety-two of the executive law who missed the application deadline for a scheduled competitive examination for civil service employment by the state of New York or any of its subdivisions due to military service, as defined in subdivision one of section three hundred one of this chapter or due to a call to active duty other than for training, pursuant to 10 USC 101 (d) (1), and is deprived of the opportunity to compete in such examination due to military service, as defined in subdivision one of section three hundred one of this chapter or due to a call to active duty other than for training, pursuant to 10 USC 101 (d) (1), shall be provided with an opportunity to compete, under terms and conditions deemed appropriate by the state department of civil service or municipal commission, by way of a special military make-up examination.
3. Notwithstanding any other provision of this chapter or any other law, any member of the force of the organized militia, as the term is defined in subdivision nine of section one of this chapter or reserve armed forces, as that term is defined in subdivision twenty-nine of section two hundred ninety-two of the executive law who missed the application deadline for a scheduled competitive examination for civil service employment by the state of New York or any of its subdivisions due to military service, as defined in subdivision one of section three hundred one of this chapter or due to a call to active duty other than for training, pursuant to 10 USC 101 (d) (1), and who returns from such duty prior to the administration of such competitive examination shall be granted a waiver of the application requirement and allowed to compete in such upcoming examination.