H. B. 4334
(By Mr. Speaker, Mr. Kiss (By Request))
[Introduced January 31, 2002; referred to the
Committee on Pensions and Retirement then Finance.]
A BILL to amend and reenact section fifteen, article ten, chapter
five of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to public employees
retirement; providing for service credit for service in the
West Virginia national guard and setting forth limitations and
amount of credit.
Be it enacted by the Legislature of West Virginia:
That section fifteen, article ten, chapter five of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted, 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 the time spent
in the armed forces of the United States, not to exceed five years
if the member:
(A) Has been honorably discharged from the armed forces; and
(B) Substantiates by appropriate documentation or evidence his
or her active military service and entry into military service
during any period of compulsory military service or during periods
of armed conflict.
(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.
(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 have final power to determine the period.
(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.
(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.
(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,
may promulgate rules relating to contributions, benefits and
service credit to comply with Section 414(u) of the Internal
Revenue Code.
(d) The Legislature recognizes the service to the state of
West Virginia made by members of the West Virginia national guard
while on active duty. Accordingly, service credit will be given
for active service in the West Virginia national guard in
accordance with the following: One month service credit for every
three months active duty with the West Virginia guard, up to three years maximum service credit.
NOTE: The purpose of this bill is to provide for service
credit in the public employees retirement system for active service
with the West Virginia National Guard.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.