(a) An employee absent because of service in the uniformed services is to be carried on leave without pay unless the employee elects to use other leave or freely and knowingly provides written notice of intent not to return to a position of employment with the agency, in which case the employee can be separated. (Note: A separation under this provision affects only the employee's seniority while gone; it does not affect his or her restoration rights.)
(b) An employee absent because of compensable injury may be carried on leave without pay or separated unless the employee elects to use sick or annual leave.
(c) Agency promotion plans must provide a mechanism by which employees who are absent because of compensable injury or uniformed service can be considered for promotion. In addition, agencies have an obligation to consider employees absent on military duty for any incident or advantage of employment that they may have been entitled to had they not been absent. This is determined by:
(1) Considering whether the “incident or advantage” is one generally granted to all employees in that workplace and whether it was denied solely because of absence for military service;
(2) Considering whether the person absent on military duty was treated the same as if the person had remained at work; and
(3) Considering whether it was reasonably certain that the benefit would have accrued to the employee but for the absence for military service.
[60 FR 45652, Sept. 1, 1995, as amended at 64 FR 31487, June 11, 1999]
Notes of Decisions
Cited in
14
cases (
3 in the last 5 years), 2014–2025 · leading case:
Thompson v. Shinseki, 169 F. Supp. 3d 170 (D.D.C. 2016).
Thompson v. Shinseki, 169 F. Supp. 3d 170 (D.D.C. 2016).
“” 5 C.F.R. § 353.106 (c); see Def.’s Reply Supp.”
Hayden v. Dep't of the Air Force, 812 F.3d 1351 (Fed. Cir. 2016).
“” 5 C.F.R. § 353.106 (c). The agency must therefore evaluate whether: (1) “the ‘incident or advantage’ is one generally granted to all employees in that workplace and whether it was denied solely because of absence for military service;” *1362 (2) “the person absent on military…”
David O. Rassenfoss v. Dep't of the Treasury, 2014 MSPB 68 (MSPB 2014).
· cites it 3× “He asserted on his initial appeal form and in his prehearing submission that the agency violated 5 C.F.R. § 353.106 , which, inter alia, requires agencies to provide a mechanism by which employees who are absent because of uniformed service can be considered for promotions and…”
Kelly Stephen Jennings v. Soc. Sec. Admin., 2016 MSPB 31 (MSPB 2016).
· cites it 2× “Further, she found that the agency’s action was consistent with the implementing regulation at 5 C.F.R. § 353.106 (a), which provides that such an employee “is to be carried on [LWOP] unless the employee elects to use other leave.”
David O. Rassenfoss v. Dep't of the Treasury, 2014 MSPB 68 (MSPB 2014).
· cites it 3× “He asserted on his initial appeal form and in his prehearing submission that the agency violated 5 C.F.R. § 353.106 , which, inter alia, requires agencies to provide a mechanism by which employees who are absent because of uniformed service can be considered for promotions and…”
Kelly Stephen Jennings v. Soc. Sec. Admin., 2016 MSPB 31 (MSPB 2016).
· cites it 2× “Further, she found that the agency’s action was consistent with the implementing regulation at 5 C.F.R. § 353.106 (a), which provides that such an employee “is to be carried on [LWOP] unless the employee elects to use other leave.”
Kelly Jennings v. Soc. Sec. Admin. (MSPB 2023).
· cites it 5× “She also found that the doctrine of collateral estoppel did not apply to the DAB decision because the appellant in that proceeding “did not have a full and fair opportunity to litigate issues raised under USERRA that affect the amount of the salary overpayment or the issue of…”
Knox v. DOJ (Fed. Cir. 2025).
· cites it 4× “” 5 C.F.R. § 353.106 (c). The regulation then lists three factors to consider when determining whether an employee absent on military duty is entitled to an advantage of employment: (1) Considering whether the “incident or advantage” is one generally granted to all employees in…”
Conner v. Off. of Pers. Mgmt., 620 F. App'x 892 (Fed. Cir. 2015).
· cites it 2× “Significantly, pursuant to 5 C.F.R. § 353.106 (b), “[a]n employee absent because of compensable injury may be carried on leave without pay or separated.”
Benjamin Jackson Knight v. Dep't of Vets. Affairs (MSPB 2015).
· cites it 4× “OPM promulgated 5 C.F.R. § 353.106 (c), which addresses restoration to duty after uniformed service and provides that “agencies have an obligation to consider employees absent on military duty for any incident or advantage of employment that they may have been entitled to had…”
Kelly Stephen Jennings v. Soc. Sec. Admin., 2016 MSPB 32 (MSPB 2016).
· cites it 2× “Further, she found that the agency’s action was consistent with the implementing regulation at 5 C.F.R. § 353.106 (a), which provides that such an employee “is to be carried on [LWOP] unless the employee elects to use other leave.”
Kelly Stephen Jennings v. Soc. Sec. Admin., 2016 MSPB 32 (MSPB 2016).
· cites it 2× “Further, she found that the agency’s action was consistent with the implementing regulation at 5 C.F.R. § 353.106 (a), which provides that such an employee “is to be carried on [LWOP] unless the employee elects to use other leave.”
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