For 39 years, it’s been a rite of passage for American men. Within 30 days of his 18th birthday, every male citizen and legal resident is required to register for Selective Service, either by filling out a postcard-size form or going online.
What’s less well known is what happens on a man’s 26th birthday.
Men who fail to register for the draft by then can no longer do so – forever closing the door to government benefits like student aid, a government job or even U.S. citizenship.
Men under 26 can get those benefits by taking advantage of what has effectively become an eight-year grace period, signing up for Selective Service on the spot.
After that, an appeal can be costly and time-consuming. Selective Service statistics suggest that more than 1 million men have been denied some government benefit because they weren’t registered for the draft.
With the current male-only draft requirement declared unconstitutional, Congress will have to decide whether to eliminate Selective Service registration or expand it to women.
Unable to decide that question for decades, Congress created the National Commission on Military, National and Public Service in 2016. It’s studying the future of the draft with a report due next year.
Among the issues it’s examining: Should draft registration be mandatory? If so, what’s fairest way to enforce it? Should the same consequences that have followed men for nearly four decades also apply to women?
“We’re taking a look at all of these questions,” says Vice Chairwoman Debra Wada, a former assistant secretary of the Army. “And that means looking at whether the current system is both fair and equitable – but also transparent.”
Men who have been caught in the over-26 trap say the system is anything but.
Since 1993, more than 1 million American men have requested a formal copy of their draft status from the Selective Service System, according to data obtained by USA TODAY under the Freedom of Information Act. Those status-information letters are the first step in trying to appeal the denial of benefits, and are the best indication of how many men have been impacted by legal consequences of failing to register.
On paper, it’s a crime to “knowingly fail or neglect or refuse” to register for the draft. The penalty is up to five years in prison and a $250,000 fine.
Last year, Selective Service referred 112,051 names and addresses of suspected violators to the Justice Department for possible prosecution.
Still, only 20 men have been criminally charged with refusing to register for the draft since President Jimmy Carter reinstated it in 1980 in response to the Soviet invasion of Afghanistan. Only 14 were convicted. The last indictment, in 1986, was dismissed before it went to trial.
So now the system relies largely on voluntary compliance, a patchwork of state laws, and the risk of losing federal benefits.
Congress passed two provisions to tighten enforcement in the 1980s. The Solomon amendment in 1982 made Selective Service registration a requirement for federal student aid. The Thurmond Amendment in 1985 did the same for federal employment.
Federal student aid is the most common problem for men who haven’t registered for the draft, according Selective Service data obtained by USA TODAY.
Forty states and the District of Columbia link Selective Service to a driver’s license. But some of those allow men to opt out of registration, and about a quarter of Americans in their early 20s don’t have a driver’s license.
Thirty-one states have legislation mirroring federal laws on student aid and employment, applying those bans to state-funded student aid programs and state employment.
Some states go even further:
— In eight states, men are not allowed men to register at a state college or university – even without financial aid – if they aren’t registered for Selective Service. Those states are Alabama, Arkansas, Colorado, Idaho, Louisiana, New Hampshire, South Dakota and Tennessee.
— In Ohio, men who live in the state but don’t register for Selective Service must pay out-of-state tuition rates.
— In Alaska, men who fail to register for the draft can’t receive an annual dividend from the Alaska Permanent Fund, which gave Alaska residents $1,600 from state oil revenue in 2018.
As a result, registration rates vary from 100 percent in New Hampshire to 63 percent in South Dakota – and just 51 percent in the District of Columbia, according to Selective Service data.
“It’s very uneven across the country,” said Shawn Skelly, a former Navy commander and member of the 11-member commission studying the draft.
“How people register is predominately passively. Most men who register, register though secondary means when they apply for student aid or get a driver’s license. There isn’t a real deliberate education of people about the law.”
Like the Vietnam War draft that helped fuel the social upheaval of the 1960s and ’70s, today’s draft registration requirement puts a disproportionate burden on lower-class Americans. They’re more likely to put off college until later in life – and to need student aid when they do go to school.
In comments to the national service commission, critics of the policy called that policy “exceptionally cruel.”
‘It was an honest mistake’
Depending on how you look at it, Brandon Prudhomme either had a very good or very bad reason for failing to register for the draft: He was in prison for most of the time between the ages of 18 and 25.
His arrest record includes assault, drug possession and resisting arrest.
“It was an honest mistake,” he said. “I was on my own since I was 14 years old. I got involved in gang-type stuff.”
But now he’s 39 and trying to turn his life around. While living in a homeless shelter, he started his own landscaping company “with two rakes and four lawn bags,” he said.
He’d like to go back to school for business. But since Prudhomme didn’t register for Selective Service, he can’t get student loans. “The financial aid people called me and said, ‘Sir, do yo know anything about Selective Service?’ I said no. They said my application had been red-flagged,” he said.
“If it was mandatory, how was there not the opportunity for me to sign those papers?” Prudhomme asked. “He said that was my responsibility.”
The law has also snagged federal information technology workers, Forest Service firefighters, Veterans Administration doctors and even federal contractors.
Richard Henry, a contractor for the Internal Revenue Service, lost his access to IRS facilities because he failed to register for Selective Service. They found out because Henry told them, repeatedly, beginning in 2001. But in 2011, the IRS changed the rules to make Selective Service a requirement. He was over 26, so he couldn’t register.
So he sued, and lost in 2017.
“If they’re going to enforce this law, you should know about the law and you should know about the consequences,” said Henry’s lawyer, Rachel L.T. Rodriguez. “The problem here is, you don’t know the consequences that follow you forever like this.”
But officials say that for draft registration to work, the law has to have teeth.
“If there were no penalties for failing to register, the rates would plummet, and fairness and equity would go out the window,” said Matthew Tittman, a spokesman for the Selective Service System, a civilian agency that administers draft registration.
Men who are over 26 and denied benefits can appeal the decision if they can prove that their failure to register was not “knowing and willful.”
It’s unclear how many men succeed. The Office of Personnel Management says it got 160 requests for waivers in the last fiscal year. The Department of Education would not release data or discuss its process on the record.
And proving that someone didn’t intentionally evade the draft can be costly and time consuming, taking as long as 18 months to decide.
Marc J. Smith, a Rockville, Maryland, federal employment lawyer who handles such cases, says the process can cost $3,500 to $4,000 in legal fees.
An appeal can involve researching when and where the Selective Service sent reminder letters, and gathering sworn statements from parents, childhood friends and school officials.
The cases rarely make it to court. The Supreme Court ruled in 2012 that the courts didn’t have jurisdiction over federal employment cases because there was an administrative process to handle those claims.
Even if Congress eliminates the draft, Smith said, it’s unclear whether those old penalties will go away.
“People will still have this issue,” he said. “And I guess that means a much larger pool of potential clients for me.”
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© 2019 USA Today
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