H. B. 2516
(By Delegates Michael, Yeager,
Manuel, Givens and H. White)
[Introduced
February 23, 2001
; referred to the
Committee on Pensions and Retirement then Finance.]
A BILL to repeal section fifteen-b, article ten, chapter five of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend and reenact section
fifteen of said article, all relating generally to conferring
on persons eligible for public employees retirement benefits
credited service for time spent in the active service of the
armed forces of the United States during a period of
compulsory military service or a period of armed conflict;
providing legislative intent; providing for limitation on
years of credited service; providing requirements for
eligibility for credited service; allowing suspension of
employee's contributions to retirement system and accumulation of credit balance in deposit fund with interest during period
of military service; prohibiting duplicate credit for service;
specifying powers of board of trustees of retirement system;
providing for legislative rules; providing definitions; and
providing for compliance with federal law.
Be it enacted by the Legislature of West Virginia:
That section fifteen-b, article ten, chapter five of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be repealed; and that section fifteen of said article be amended
and reenacted, all to read as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-15. Military service credit; qualified military service.
(a)(1)
The Legislature recognizes the men and women of this
state who have served in the armed forces of the United States
during times of war, conflict and danger. It is the intent of this
section to confer military service credit upon persons who are
eligible at any time for public employees retirement benefits for
any time served in active duty in the armed forces of the United
States when the duty was during any period of compulsory military
service or during a period of armed conflict, as defined in this
section.
(2)
In addition to any benefit provided by federal law, any
member of the retirement system who has previously served in or
enters the active service of the armed forces of the United States
during any period of compulsory military service
or during a period
of armed conflict
shall receive credited service for said the time
spent in the armed forces of the United States, not to exceed five
years if such the member:
(A) Has been honorably discharged from the armed forces;
(B) Substantiates by appropriate documentation or evidence his
or her active military service and entry therein into military
service during any period of compulsory military service
or during
periods of armed conflict;
and
(C) Pays to the members' deposit fund the amount he or she may
have withdrawn therefrom
from the fund, while serving during a
period of compulsory military service or during a period of armed
conflict,
together with regular interest from the date of
withdrawal to the date of repayment.
(2) (3) Any member of the retirement system who enters the
active service of the armed forces of the United States during any
period of compulsory military service
or during a period of armed
conflict
shall receive the credit provided by this section regardless of whether he or she was a public employee at the time
of entering the military service.
(3) No member may receive the credit described in this section
for any period for which the member has received credit under
section ten-b of this article.
(b)
(4) If a member of the public employees retirement system
enters the active service of the United States and serves during
any period of compulsory military service
or during any period of
armed conflict, during the period of the armed service and until
the member's return to the employ of a participating public
employer, the member's contributions to the retirement system is
suspended and any credit balance remaining in the member's deposit
fund shall be accumulated at regular interest.
(5) No member may receive duplicate credit for service for a
period of compulsory military service which falls under a period of
armed conflict.
(6) In any case of doubt as to the period of service to be
credited a member under the provisions of this section, the board
of trustees shall have final power to determine such the period.
(c) During the period of armed service and until the member's
return to the employ of a participating public employer, his or her contributions to the retirement system shall be suspended and any
credit balance remaining in the members' deposit fund shall be
accumulated at regular interest.
(7)
The board is empowered to consider a petition by any
member whose tour of duty, in a territory that would reasonably be
considered hostile and dangerous, was extended beyond the period in
which an armed conflict was officially recognized, if that tour of
duty commenced during a period of armed conflict, and the member
was assigned to duty stations within the hostile territory
throughout the period for which service credit is being sought.
The board has the authority to evaluate the facts and circumstances
peculiar to the petition, and rule on whether granting service
credit for the extended tour of duty is consistent with the
objectives of this article. In that determination, the board is
empowered to grant full credit for the period under petition
subject to the limitations otherwise applicable, or to grant credit
for any part of the period as the board considers appropriate, or
to deny credit altogether.
(d) (8) The board of trustees may propose legislative rules
for promulgation in accordance with the provisions of article
three, chapter twenty-nine-a of this code to administer the provisions of this section.
(b) For purposes of this section, the following definitions
apply:
(1) "Period of armed conflict" means the Spanish-American War,
the Mexican border period, World War I, World War II, the Korean
conflict, the Vietnam era, the Persian Gulf War and any other
period of armed conflict by the United States, including, but not
limited to, those periods sanctioned by a declaration of war by the
United States Congress or by executive or other order of the
president.
(2) "Spanish-American War" means the period beginning on the
twenty-first day of April, one thousand eight hundred ninety-eight,
and ending on the fourth day of July, one thousand nine hundred
two, and includes the Philippine Insurrection, the Boxer Rebellion,
and in the case of a veteran who served with the United States
military forces engaged in hostilities in the Moro Province, means
the period beginning on the twenty-first day of April, one thousand
eight hundred ninety-eight, and ending on the fifteenth day of
July, one thousand nine hundred three.
(3) "The Mexican border period" means the period beginning on
the ninth day of May, one thousand nine hundred sixteen, and ending on the fifth day of April, one thousand nine hundred seventeen, in
the case of a veteran who during the period served in Mexico, on
its borders or in the waters adjacent to it.
(4) "World War I" means the period beginning on the sixth day
of April, one thousand nine hundred seventeen, and ending on the
eleventh day of November, one thousand nine hundred eighteen, and
in the case of a veteran who served with the United States military
forces in Russia, means the period beginning on the sixth day of
April, one thousand nine hundred seventeen, and ending on the first
day of April, one thousand nine hundred twenty.
(5) "World War II" means the period beginning on the seventh
day of December, one thousand nine hundred forty-one, and ending on
the thirty-first day of December, one thousand nine hundred
forty-six.
(6) "Korean conflict" means the period beginning on the
twenty-seventh day of June, one thousand nine hundred fifty, and
ending on the thirty-first day of January, one thousand nine
hundred fifty-five.
(7) "The Vietnam era" means the period beginning on the
twenty-eighth day of February, one thousand nine hundred sixty-one,
and ending on the seventh day of May, one thousand nine hundred seventy-five, in the case of a veteran who served in the Republic
of Vietnam during that period; and the fifth day of August, one
thousand nine hundred sixty-four, and ending on the seventh day of
May, one thousand nine hundred seventy-five, in all other cases.
(8) "Persian Gulf War" means the period beginning on the
second day of August, one thousand nine hundred ninety, and ending
on the eleventh day of April, one thousand nine hundred ninety-one.
(d) (c) Notwithstanding the preceding provisions of this
section, contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code. The retirement board
is authorized to determine all questions and make all decisions
relating to this section and, pursuant to the authority granted to
the retirement board in section one, article ten-d of this chapter,
five may promulgate rules relating to contributions, benefits and
service credit to comply with Section 414(u) of the Internal
Revenue Code.
NOTE: The purpose of the bill is to repeal W.Va. Code
§5-10-15b and incorporate its provisions, as amended, into W.Va.
Code §5-10-15, thereby making the technical corrections necessary
for the consistent application of the program of providing awards
of credited service toward public employees' retirement for time
served in the active service of the armed forces of the United
States during periods of compulsory military service and periods of
armed conflict.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.