H. B. 2339
(By Delegates M. Smith, Ferro, Longstreth and D. Poling)
[Introduced February 13, 2013; referred to the
Committee on Veterans' Affairs and Homeland Security then
A BILL to amend and reenact §5-10-15 of the Code of West Virginia,
1931, as amended, relating to removing the armed conflict
requirement before state employees may receive credit for time
served in the Armed Forces of the United States; and
prohibiting those employees who were not honorably discharged
from receiving that credit.
Be it enacted by the Legislature of West Virginia:
That §5-10-15 of the Code of West Virginia, 1931, 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.
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
(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
(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: Provided, That
notwithstanding any provision in this article to the contrary, if
an employee of a participating political subdivision serving in the
military service during any period of compulsory military service
or armed conflict has accumulated credited service prior to the
last entry into military service, in an amount that, added to the
time in active military service while an employee equals nine or
more years, and the member is unable to resume employment with a
participating employer upon completion of duty due to death during
or as a result of active service, all time spent in active military
service, up to and including a total of five years, is considered
to be credited service and death benefits are vested in the member.
Provided, however, That the active service during the time the
member is an employee must be as a result of an order or call to
duty, and not as a result of volunteering for assignment or
volunteering to extend the time in service beyond the time required
by order or call.
(5) No member may receive duplicate credit for service.
for a period of compulsory military service which falls under a period of
(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 may 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 may 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) (7) 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
(2) "Spanish-American War" means the period beginning on April
21, 1898, and ending on July 4, 1902, 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
April 21, 1998, and ending on July 15, 1903.
(3) "The Mexican border period" means the period beginning on
May 9, 1916, and ending on April 5, 1917, 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 April 6, 1917,
and ending on November 11, 1918, and in the case of a veteran who
served with the United States Military forces in Russia, means the
period beginning on April 6, 1917, and ending on April 1, 1920.
(5) "World War II" means the period beginning on December 7,
1941, and ending on December 31, 1946.
(6) "Korean conflict" means the period beginning on June 27,
1950, and ending on January 31, 1955.
(7) "The Vietnam era" means the period beginning on the
February 28, 1961, and ending on May 7, 1975, in the case of a
veteran who served in the Republic of Vietnam during that period;
and August 5, 1964, and ending on May 7, 1975, in all other cases.
(8) "Persian Gulf War" means the period beginning on August 2,
1990, and ending on April 11, 1991.
(c) (b) 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. No military service
credit may be used in more than one retirement system administered
by the Consolidated Public Retirement Board and once used in any
system, may not be used again in any other system. No military
service credit may be used if the member was, or has been,
dishonorably discharged from the Armed Forces of the United States.
The board is authorized to determine all questions and make all
decisions relating to this section and, pursuant to the authority
granted to the 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.
NOTE: The purpose of this bill is to remove the requirement
that those who are eligible for public employees retirement
benefits and who have served in the Armed Forces of the United
States must have served during a time of armed conflict before, up
to five years of that service may be credited to those employees'
years of service for retirement benefits. The bill also prohibits
any time from being credited if that person was dishonorably
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would