U n i t e d S t a t e s G o v e r n m e n t

MEMORANDUM

FORM G-IISf (1-92)

R a i l r o a d R e t i r e m e n t B o a r d

DEC 0 3 2001

L-2001-16.1

TO: Robert E. Bergeron

Assistant to the Labor Member

Steven A. Bartholo' 

General Counsel^

SUBJECT: Credibility of Military Service

Reserve Volunteers Called to Active Duty

This is in reply to your further inquiry regarding the term “war service period" as used to 

determine the creditability of active service in the United States armed forces as railroad 

service for benefit entitlement purposes under the Railroad Retirement Act. For the 

reasons set forth below, I agree with your interpretation that an individual’s military 

service may be considered to be in a “war service period" without regard to when the 

service was performed, if that individual’s service was involuntary by reason of being 

called to active duty pursuant to call by the President or by an Act of Congress or a 

regulation, order or proclamation pursuant thereto.

My previous memorandum to you, issued as Legal Opinion L-2001-16, concerned 

creditability under the Act of military service by an individual who enlisted as a reservist 

but who was later called to active duty. In advising you that the call to active duty 

constituted “involuntary service", I stated that the individual’s period of active duty could 

be considered creditable for annuity computation purposes “providing that the period of 

time fell within a ‘war service period’ and met the additional requirement for preceding 

railroad employer service” as specified by section 3(i)(2) of the Railroad Retirement Act. 

This advice is consistent with regulations of the Board, which provide in pertinent part 

as follows:

212.4 Periods of creditable military service.

In order for military service to be considered creditable under the Railroad

Retirement Act, it must have been performed during one of the following periods:
[ (a) through (d) dates of the Spanish American War, Philippine 

Insurrection, Mexican Border Disturbances, and World War I ]

(e) September 8,1939 through June 14,1948—National Emergency and 

World War II * * *.

(f) June 15,1948, through December 15,1950. This service is creditable

if:

(1) Entered into involuntarily; or

(2) Entered into voluntarily, but only if*** [certain conditions 

specific to this period are met]

(g) December 16,1950, through September 14,1978—National 

Emergency, (emphasis supplied).

Following the most recent amendment to section 212.4 of the regulations in May 1990, 

Legal Opinion L-91-32.1 determined that a new military service period began with the 

President's declaration of the current national emergency on August 2, 1990.

Under section 212.4 of the regulations quoted above, as augmented by Legal Opinion 

L-91-32.1, all active duty in the United States armed forces within one of the specified 

periods is potentially creditable for benefit entitlement purposes, whether voluntary or 

involuntary. Section 212.4 would appear to further require that an individual’s term of 

military service must fall within a listed war service period. In particular, this would 

mean involuntary active duty during the period between the national emergency ending 

September 14,1978 and the most recent national emergency which began August 2, 

1990, could not be creditable because it does not fall within a “war service period". 

However, as you point out in your memorandum, the term “war service period" is 

defined by section 1(g)(2) of the Act in part as follows:

For purposes of section 3(i)(2) of this Act, a “war service period” shall 

mean (A) any war period, or (B) with respect to anv particular individual, any 

period during which such individual (i) * * *, or (ii) was required by call of the 

President, or by any Act of Congress or regulation, order, or proclamation 

pursuant thereto, to enter and continue in military service, or (C) any period after 

September 7,1939, with respect to which a state of national emergency was duly 

declared to exist which requires a strengthening of the national defense, 

(emphasis supplied).1

1 Section 4 of the Railroad Retirement Act of 1937 contained essentially identical 

language.
Paragraphs (A) and (C) of section 1(g)(2) are framed as discrete time periods. Thus, a 

“war period” for purposes of paragraph (A) is defined by section 1 (g)(3) in terms of 

actual conduct of military action by the United States armed forces. See Legal Opinion 

L-72-234, which characterized a war period as “declared war involving the United 

States, an invasion of the United States, or in effect, a civil war within the United 

States”; and Legal Opinion L-41-568, finding military action by armed forces of the 

United States in defense of U.S. territory in the Philippine Islands constituted a war 

period during the time hostilities were conducted. Paragraph (C) of section 1 (g)(2) is 

delineated by a period within a declared national emergency. See Legal Opinion L-91- 

32.1, noted earlier. The time-period specific language of section 212.4 of the regulations 

is therefore consistent with section 1(g)(2) of the Act in this respect.

Paragraph (B) of section 1(g)(2), however, is stated in terms of compulsory service in 

the armed forces by the individual employee, without reference to an external time 

period. Legal Opinion L-50-229, to which you refer in your memorandum, considered 

employees who entered the armed forces after the end of the World War II emergency 

period June 14,1948. The Associate General Counsel concluded in that opinion that 

section 4(c) of the 1937 Act required that military service by an individual which was

begun involuntarily due to the Selective Service Act of 1948 during that time period 

could be creditable, but that voluntary service could not.2

The 1978-1990 period was similar to the 1948-1950 period in that no declared national 

emergency or war period was in effect. Consistent with the reasoning of L-50-229, 

voluntary active service in the United States armed forces begun during the 1978-1990 

period is clearly not creditable for benefit entitlement purposes under the Act because it 

meets neither alternative (A), (B) or (C) of section 1(g)(2). Unlike the 1948-1950 period, 

the absence of conscription during the 1978-90 period meant an employee could not be 

drafted from his railroad position into the armed forces. However, the Associate 

General Counsel concluded in Legal Opinion L-53-378 that military service by a 

volunteer Marine reservist who was ordered to active duty before December 15,1950 

would be creditable under the 1937 Act from the date ordered to active duty on the 

basis that the reservist entered active duty involuntarily, without regard to the fact that 

his reserve term began voluntarily. Given my advice to you in Legal Opinion L-2001-16 

to the same effect (military service by an voluntary armed forces reservist who is called

2 Voluntary service in the armed forces during the period beginning June 15,1948 and 

ending December 15,1950 was later rendered creditable by section 7304 of the 1988 

amendments to the Railroad Retirement Act (Public Law 100-647). See Legal Opinion 

L-89-62. Because the amendment only relates to the 1948-1950 period, it does not 

undercut the analogy between “war service period” as applied to the 1949-1950 period 

prior to the amendment and the 1978 - 1990 period.
to active duty is involuntary service within the meaning of the 1974 Act), it follows that 

active military service by a reservist in the United States armed forces between 

September 14,1978 and August 2,1990 as a result of a call to active duty nevertheless 

constitutes service during a “war service period” with respect to that individual within the 

meaning of section 1(g)(2)(B) of the Act. Such service may be creditable for benefit 

entitlement purposes under section 3(i)(2) the Act if it is preceded by the required 

service for a covered railroad employer.

I trust that the foregoing discussion provides the information you require.

cc: Director of Policy and Systems

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