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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2014 Term FILED 

March 28, 2014 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

No. 13-0403 SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

WEST VIRGINIA CONSOLIDATED PUBLIC
 

RETIREMENT BOARD,
 

Respondent Below, Petitioner
 

v. 

KEITH A. WOOD, WILLIAM E. WALKUP, TED M. CHEATHAM,
 

HERBERT E. LATTIMORE, JR., and JOHNNY L. R. FERNATT,
 

Petitioners Below, Respondents
 

Appeal from the Circuit Court of Kanawha County
 

The Honorable Paul Zakaib, Jr., Judge
 

Civil Action No. 11-AA-143
 

AFFIRMED
 

Submitted: February 12, 2014 

Filed: March 28, 2014 

Lenna R. Chambers, Esq. Lonnie C. Simmons, Esq. 

Bowles Rice LLP Elizabeth G. Kavitz, Esq. 

Charleston, West Virginia DiTrapano, Barrett, DePiero 

Attorney for Petitioner McGinley & Simmons, PLLC 

Charleston, West Virginia 

Attorney for Respondents 

JUSTICE WORKMAN delivered the Opinion of the Court. 

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SYLLABUS BY THE COURT
 

1. “Where the issue on an appeal from the circuit court is clearly a question 

of law or involving an interpretation of a statute, we apply a de novo standard of review.” 

Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). 

2. “Interpreting a statute or an administrative rule or regulation presents a 

purely legal question subject to de novo review.” Syl. Pt 1, Appalachian Power Co. v. State 

Tax Dep’t of W. Va., 195 W.Va. 573, 466 S.E.2d 424 (1995). 

3. “‘Where a statute is of doubtful meaning, the contemporaneous construction 

placed thereon by the officers of government charged with its execution is entitled to great 

weight, and will not be disregarded or overthrown unless it is clear that such construction is 

erroneous.’ Syllabus Point 7, Evans v. Hutchinson, 158 W.Va. 359, 214 S.E.2d 453 (1975).” 

Syl. Pt. 4, Hawkins v. W. Va. Dep’t of Pub. Safety, 223 W.Va. 253, 254, 672 S.E.2d 389, 390 

(2008). 

4. “‘“Interpretations of statutes bybodies charged with their administration are 

given great weight unless clearly erroneous.” Syl. pt. 4, Security National Bank & Trust 

Company v. First W.Va. Bancorp, Inc., 166 W.Va. 775, 277 S.E.2d 613 (1981).’ Syllabus 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

point 3, Smith v. Board of Education of County of Logan, 176 W.Va. 65, 341 S.E.2d 685 

(1985).” Syl. Pt. 7, Lincoln Cnty. Bd. of Educ. v. Adkins, 188 W.Va. 430, 424 S.E.2d 775 

(1992). 

5. “A statute that is ambiguous must be construed before it can be applied.” 

Syl. Pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). 

6. “The primary object in construing a statute is to ascertain and give effect 

to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 

W.Va. 108, 219 S.E.2d 361 (1975). 

7. “Judicial interpretation of a statute is warranted only if the statute is 

ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative 

intent.” Syl. Pt. 1, Ohio Cnty. Comm’n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983). 

8. “‘In ascertaining legislative intent, effect must be given to each part of the 

statute and to the statute as a whole so as to accomplish the general purpose of the 

legislation.’ Syl. Pt. 2, Smith v. State Workmen’s Compensation Commissioner, 159 W.Va. 

108, 219 S.E.2d 361 (1975).” Syl. Pt. 3, State ex rel. Fetters v. Holt, 173 W.Va. 501, 318 

S.E.2d 446 (1984). 

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9. The phrase “period of armed conflict” as utilized in West Virginia Code 

§ 5-10-15(b)(1) (2013), is not limited to the military engagements specifically identified in 

the statute but also includes other periods of armed conflict in which the United States has 

engaged, as the credible evidence presented in each individual case may dictate. 

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Workman, Justice: 

This is an appeal by the West Virginia Consolidated Public Retirement Board 

(hereinafter “the Board”) from a March 20, 2013, order of the Circuit Court of Kanawha 

County. The Board contends that the circuit court erred in reversing the Board’s finding that 

five employees of the State of West Virginia covered by the Public Employees Retirement 

System (hereinafter “PERS”) were not entitled to certain military service credit available 

through West Virginia Code § 5-10-15 (2013), despite their active service during several 

recognized periods of armed conflict and their honorable discharge from the United States 

military. In the consolidated administrative appeals, the circuit court held that the five 

employees were entitled to the military service credit they sought. The Board now appeals 

to this Court. Upon thorough review of the appendix record, the arguments of counsel, 

statutoryrequirements, and applicable precedent, this Court affirms the decision of the circuit 

court. 

I. Factual and Procedural History 

A. The Respondent Veterans 

The respondents in this case are five individuals (hereinafter “Respondents”) 

who served in various capacities in the United States military, subsequently entered public 

service with the State of West Virginia, and ultimately sought military service credit through 

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PERS. Respondent Keith Wood served on active duty with the United States Army from 

January 7, 1978, through September 29, 1992. While he served in the Army, Respondent 

Wood had some involvement in the events in Nicaragua, El Salvador, Honduras, Saudi 

Arabia, Kuwait, Lebanon, Yugoslavia, Iraq, and Iran. In 1992, Respondent Wood accepted 

employment with the State of West Virginia, and he contends that he was informed that he 

would receive five years of military service credit in PERS upon his employment.1 

Although his PERS annual statements reflected five years of military service 

credit, when Respondent Wood inquired about retirement credit in 2011, he was informed 

by the Board that his military service credit had been calculated incorrectly, and that he was 

entitled to only eight months of military service credit. In applying for the credit, Respondent 

Wood relied upon his actual military service and an alternate estoppel argument, based upon 

the letters he received indicating that he was entitled to military credit and his reliance upon 

the statements made to him at the time of his initial employment with the State.2 The Board 

awarded Respondent Wood only eight months of military service credit, based upon his 

1

Respondent Wood testified he was approached by former Administration Secretary 

Chuck Polan and former Governor Gaston Caperton regarding the position of Aviation 

Services Manager within the Aviation Division of the State of West Virginia. Respondent 

Wood further testified that upon his expression of reluctance to leave the military, Secretary 

Polan specifically told him that he would receive five years of military service credit. 

2

Respondent Wood is the only veteran in this consolidated appeal who presented an 

estoppel argument in addition to his argument that his actual service record warranted the full 

five years of military service credit. 

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service during the Persian Gulf War, August 2, 1990, through April 11, 1991. Upon appeal 

to the circuit court, Respondent Wood was awarded the full five years of military service 

credit based upon his military service record. 

Respondent William E. Walkup served on active duty as a United States 

Marine from May 5, 1983, to May 4, 1987, and joined PERS in 1989 as a State employee. 

He was first employed by the State as an Interim Manager and Maintenance Director of 

Eastern West Virginia Regional Airport and later promoted to the position of Manager and 

Director of the Eastern West Virginia Regional Airport. While serving in the Marine Corps, 

Respondent Walkup had some involvement in the events in Lebanon, Grenada, and El 

Dorado Canyon. Respondent Walkup did not receive any military service credit at the Board 

level, but he was awarded four years of military service credit by the circuit court, based 

upon his service record. 

Respondent Herbert E. Lattimore, Jr., served on active dutyin the United States 

Army from May 4, 1975, through February 28, 2001, and became a member of PERS in 

2002, as an employee of West Virginia’s Division of Homeland Security and Emergency 

Management. While Respondent Lattimore served in the Army, the United States was 

involved in conflict events in the Persian Gulf, Vietnam, Mayaguez, Beirut, Panama, 

Grenada, Nicaragua, Libya, and Kosovo. The Board informed Respondent Lattimore that 

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he was eligible for eight months of military service credit in PERS for his active duty service 

from August 2, 1990, to April 11, 1991. On appeal to circuit court, he was awarded five 

years of military service credit, based upon his service record. 

Respondent Teddy M. Cheatham served on active duty in the United States 

Army from May 29, 1977, to October 15, 1988, and became a member of PERS in 2006, as 

an employee of the State of West Virginia’s Public Employees Insurance Agency. While 

Respondent Cheatham served in the Army, the United States was involved in conflict events 

in Nicaragua, Somalia, Lebanon, Granada, and Panama. The Board concluded that 

Respondent Cheatham was not entitled to any military service credit in PERS. The circuit 

court reversed that decision and held that Respondent Cheatham was entitled to receive the 

full five years of military service credit based upon his service record. 

Respondent Johnny L. R. Fernatt served on active duty in the United States 

Navy from July 18, 1980, to February 16, 1990, became a member of PERS in 1998, and was 

most recently employed as a State Information Systems Manager. While he served in the 

Navy, the United States was involved in conflict events in Granada, Kosovo, Somalia, and 

Libya. The Board found the Respondent Fernatt was not eligible for military service credit 

in PERS. The circuit court reversed that decision and held that Respondent Fernatt was 

entitled to receive the full five years of military service credit based upon his service record. 

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B. West Virginia Code § 5-10-15 

When West Virginia Code § 5-10-15 was originally enacted in 1961, State 

employees participating in PERS were entitled to receive military service credit only if they 

actively served in the military during a time of compulsory service.3 In 2000, the West 

Virginia Legislature enacted a revised PERS provision, West Virginia Code § 5-10-15b,4 

granting up to five years of military service credit to PERS members who served on active 

duty during a “period of armed conflict.” See W.Va. Code § 5-10-15(a)(2). The statute 

provides that “for purposes of this section” the term “period of armed conflict” is defined as: 

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. 

Id. § 5-10-15(b)(1). The statute thereafter sets forth specific beginning and ending dates5 for 

each of the named “period[s] of armed conflict,” and provides that credit may be awarded 

3

Compulsory service in the military, otherwise known as “the draft,” ended on July 

1, 1973. 

4

Initially enacted as West Virginia Code § 5-10-15b, this provision was eventually 

merged into West Virginia Code § 5-10-15. For purposes of the issues raised in this appeal, 

the guiding statute remains in effect without substantive change. This Court will 

consequently refer to West Virginia Code § 5-10-15 in this opinion. 

5

The Spanish-American War is identified as 1898 to 1903; Mexican border period 

from 1916 to 1917; World War I from 1917 to 1918; World War II from 1941 to 1946; 

Korean conflict from 1950 to 1955; Vietnam era from 1961 to 1975; and Persian Gulf War 

from 1990 to 1991. See W. Va. Code § 5-10-15(b)(2)-(8). 

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for service beyond the end date of an officially recognized conflict if the PERS member was 

stationed in a hostile territory. See id. § 5-10-15(b)(2)-(8). 

Upon the inclusion of the “period of armed conflict” language in 2000, the 

Board began awarding military service credit for service during the specific “period[s] of 

armed conflict” listed in the statute. In October 2001, the Board determined that military 

service credit under this statutory provision would also be awarded for all active duty service 

occurring after September 11, 2001. 

C. Decisions of the Board and Circuit Court 

The Board denied the respondents’ requests for military service credit for 

service occurring during periods of armed conflict other than those listed in the statute and 

post-September 11, 2001, service, and each respondent appealed the Board’s orders to the 

circuit court. Those appeals were consolidated into a single civil action. On March 20, 2013, 

the circuit court ruled in favor of the respondents and granted each of their military service 

credit requests in full. All respondents, except Respondent Walkup, received the full five 

years of military service credit made available through the statute, and Respondent Walkup 

received four years of military service credit since he served only four years in the military. 

The Board appeals that decision to this Court. 

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II. Standard of Review 

In syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 

S.E.2d 415 (1995), this Court held: “Where the issue on an appeal from the circuit court is 

clearly a question of law or involving an interpretation of a statute, we apply a de novo 

standard of review.” Accord, Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va., 

195 W.Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an administrative rule or 

regulation presents a purely legal question subject to de novo review.”). 

Because resolution of this matter depends upon a determination of the meaning 

and proper application of a statutory pronouncement, this Court reviews the circuit court’s 

decision de novo. 

III. Discussion 

A. Periods of Armed Conflict 

In its primary and dispositive assignment of error, the Board contends that the 

circuit court erred in concluding that the respondents are statutorily entitled to the military 

service credit designated in the circuit court order. West Virginia Code § 5-10-15, as 

outlined above, provides that military service credit of up to five years shall be granted to a 

member of PERS who served in active duty in the armed forces of the United States during 

a “period of armed conflict” and was honorably discharged. The phrase “period of armed 

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conflict” as defined in West Virginia Code § 5-10-15(b)(1), encompasses certain identified 

military engagements “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.” W.Va. Code § 

5-10-15(b)(1) (emphasis supplied). 

The respondents argued in circuit court and contend on appeal that the 

Legislature clearly did not intend military service credit to be limited to the specific armed 

conflicts identified in the statute. The respondents emphasize that the express language of 

the statute does not limit the military actions to those involving an actual declaration of war 

by the President or Congress. The respondents also direct this Court’s attention to the 

Legislature’s inclusion of a provision requiring liberal construction of the statute, as follows: 

“The provisions of this article shall be liberally construed so as to provide a general 

retirement system for the employees of the state herein made eligible for such retirement. . 

. .” W.Va. Code § 5-10-3a(a) (2013). The respondents maintain that liberal construction 

requires the conclusion that unless the statute clearly excludes a particular military campaign 

from being considered, all periods of armed conflict must be included in the calculation of 

an employee’s military service credit. 

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In identifying the specific periods of armed conflict in which the United States 

has engaged, the respondents presented evidence in the administrative hearings in the form 

of Veterans of Foreign Wars (hereinafter “VFW”) listings in the VFW Guide for Post Service 

Officers Veterans Benefits. Those listings include the following military engagements: 

El Salvador January 1, 1981, through February 1, 1992 

Lebanon June 1, 1983, through December 1, 1987 

Grenada October 23, 1983, through November 21, 1983 

Persian Gulf July 24, 1987, through August 1, 1990 

Panama December 20, 1989, through January 31, 1990 

Somalia December 5, 1992, through March 31, 1995 

The circuit court agreed with the respondents’ contentions and found that 

liberal construction of West Virginia Code § 5-10-15 compelled the conclusion that the 

Board must provide military service credit for the periods of armed conflict specifically 

identified in the statute, the post-September 11, 2001, period, and the other periods of armed 

conflict, as indicated in the VFW manual. The circuit court reasoned: “The Legislature 

explicitly never intended the military service credit awarded under the statute to be limited 

to the specific armed conflicts listed.”6 The circuit court found that the military actions listed 

in the VFW manual were similar in nature to and consistent with the periods of armed 

6

The circuit court observed the absence of clarity in the statute, noting that “[t]here 

is nothing in the statute, for example, to suggest either that a period of armed conflict 

necessarily must involve deaths in the field of battle or the firing of a single shot.” The 

circuit court further stated that “[t]he statute also is silent on what evidence is required for 

a public employee to prove that he or she had actively served in the military during a period 

of armed conflict.” 

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conflict specifically identified in the statute.7 It further stated that “[f]or reasons not made 

clear either in its regulations or prior rulings, [the Board] has chosen not to provide military 

service credit for all periods of armed conflict.” (Emphasis in original). Moreover, the 

circuit court recognized that “as indicated by this case, [the Board] has chosen to provide 

military service credit for some military campaigns, but not for others. The rationale for 

making these distinctions is not apparent in [the Board’s] regulations or web site and was not 

explained during the hearing.” 

On appeal, the Board contends that it has properly interpreted the statute to 

require military service credit for only those military engagements listed in the statute and 

post-September 11, 2001, service.8 Based upon that reasoning, the Board denies military 

service credit requests premised upon military service performed during other time periods. 

7

The Board cites the concept of ejusdem generis for the proposition that only military 

actions of similar nature should be included in the calculation of military service credits. 

That is a “canon of construction that when a general word or phrase follows a list of specific 

persons or things, the general word or phrase will be interpreted to include only persons or 

things of the same type as those listed.” Black’s Law Dictionary 535 (7th ed. 1999). 

Evidence presented during the administrative hearings included the fact that potential 

utilization of other military actions in the military service calculation had been considered 

by the Board or a committee. Yet, as the circuit court observed, “at no point has [the Board] 

ever articulated in writing any explanation as to why these periods of armed conflict are not 

being recognized by [the Board] for purposes of calculating military service credits.” 

8

All parties agree that post-September 11, 2001, military service should be included 

in the calculation of military service credit, and the inclusion of that time period is not at 

issue in this case. 

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The Board argues on appeal that it should be required to award military service credit only 

for service during those periods of armed conflict, occurring after the enactment of this 

statute, which are similar in scope and nature to the periods listed in the statute. The Board 

contends that its approach is consistent with the intent of the Legislature and emphasizes that 

the Legislature did not specifically name any military engagements between 1975 and 1990, 

despite the fact that it would have been aware of certain intervening military engagements 

when it enacted this legislation in 2000. 

With regard to its rationale, the Board contends that the circuit court should 

have accorded more weight to the Board’s own interpretation of the requirements of the 

statutory provision at issue. See SyI. Pt. 4, Hawkins v. W. Va. Dep’t of Pub. Safety, 223 

W.Va. 253, 254, 672 S.E.2d 389, 390 (2008) (“‘Where a statute is of doubtful meaning, the 

contemporaneous construction placed thereon by the officers of government charged with 

its execution is entitled to great weight, and will not be disregarded or overthrown unless it 

is clear that such construction is erroneous.’ Syllabus Point 7, Evans v. Hutchinson, 158 

W.Va. 359, 214 S.E.2d 453 (1975).”). Similarly, the Board emphasized that West Virginia 

Code § 5-10-15(b)(6) requires doubt to be resolved in favor of the Board’s interpretation: 

“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.” 

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While this Court agrees with the proposition that the Board’s interpretation is 

entitled to deference, it is imperative that a reviewing court also consider the possibility, as 

the circuit court did in the present case, that the Board’s interpretation is erroneous. As we 

noted in syllabus point seven of Lincoln County Board of Education v. Adkins, 188 W.Va. 

430, 424 S.E.2d 775 (1992): “‘“Interpretations of statutes by bodies charged with their 

administration are given great weight unless clearly erroneous.” Syl. pt. 4, Security National 

Bank & Trust Company v. First W.Va. Bancorp, Inc., 166 W.Va. 775, 277 S.E.2d 613 

(1981).’ Syllabus point 3, Smith v. Board of Education of County of Logan, 176 W.Va. 65, 

341 S.E.2d 685 (1985).” Additionally, as the circuit court in this case recognized, while 

West Virginia Code § 5-10-15(b)(6) does provide the Board with authority to determine 

military service credit in the case of doubt, the Board “necessarily would have to make such 

determination consistent with the broad definition of ‘period of armed conflict’ mandated 

by the Legislature and with the liberal construction of this statute required by W.Va. Code 

§ 5-10-3a.” (Emphasis in original).9 

9

“[D]eference is not abdication, and it requires us to accept only those agency 

interpretations that are reasonable in light of the principles of construction courts normally 

employ.” EEOC v. Arabian American Oil Co., 499 U.S. 244, 260 (1991) (Scalia, J., 

concurring). Regarding deference to be accorded to agency interpretations, courts have also 

been astute in observing that deference cannot be provided unless there is a tangible agency 

construction to which a court may defer. As the United States Supreme Court explained in 

United States v. Mead Corp., 533 U.S. 218 (2001), deference in the federal realm is only 

accorded where “Congress delegated authorityto the agency generallyto make rules carrying 

the force of law, and . . . the agency interpretation claiming deference was promulgated in 

the exercise of that authority.” Id. at 218, 226-27. “Interpretations such as those in opinion 

letters—like interpretations contained in policystatements, agencymanuals, and enforcement 

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In this Court’s determination of the appropriate resolution of this matter, we 

recognize that the crucial element of controversy is the matter of statutory construction. As 

summarized above, the Board contends that it properly interpreted and applied the statute. 

The respondents maintain that the Board’s interpretation is unnecessarily restrictive and that 

the circuit court’s rationale and resulting conclusions were correct. Consequently, the issue 

presented in this appeal requires this Court to ascertain the meaning of the subject statutory 

language and its proper application to the respondents’ requests for military service credit. 

Although this Court has consistently observed that clear and unambiguous statutes shall not 

be subject to interpretation,10 we have also definitively stated that “[a] statute that is 

ambiguous must be construed before it can be applied.” Syl. Pt. 1, Farley v. Buckalew, 186 

guidelines, all of which lack the force of law—do not warrant Chevron-style deference.” 

Chistensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (referencing Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). When the agency’s position has been 

articulated as a litigation position, as in the present case, this Court has declined to accord 

deference to the agency’s interpretation. See West Virginia Health Care Cost Review 

Authority v. Boone Memorial Hosp., 196 W.Va. 326, 334, 472 S.E.2d 411, 419 (1996) 

(observing that “courts customarily withhold Chevron deference from agencies litigating 

positions . . . . We see no reason to take a different tack in this instance.”); In re Snuffer, 193 

W.Va. 412, 417, 456 S.E.2d 493, 498 (1995) (Cleckley, J., concurring) (“The policy 

underlying our grant of special deference to agency decisions and similar official agency 

pronouncements does not extend to every agency action. For example, it would not extend 

to ad hoc representations on behalf of an agency, such as litigation arguments.”). 

10See Syl. Pt. 3, Francis O. Day Co., Inc. v. Director, Div. of Envtl. Protection, 191 

W.Va. 134, 443 S.E.2d 602 (1994) (“Where the language of a statute is clear and without 

ambiguity the plain meaning is to be accepted without resorting to the rules of 

interpretation.”). 

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W.Va. 693, 414 S.E.2d 454 (1992). “Ambiguity is a term connoting doubtfulness, 

doubleness of meaning of indistinctness or uncertainty of an expression used in a written 

instrument.” Crockett v. Andrews, 153 W.Va. 714, 718-19, 172 S.E.2d 384, 387 (1970). 

In defining “period of armed conflict” in West Virginia Code § 5-10-15 (b)(1), 

the statute first identifies certain specific periods to be included. Immediately thereafter, 

however, the statute also provides that other periods to be utilized in calculation of military 

service credit include “any other periods 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.” Id. 

This Court’s reading of the statute compels the conclusion that it is ambiguous 

with regard to the meaning of the phrase “periods of armed conflict.” The inclusion of such 

broad and unspecific language renders this statute capable of varying interpretations, as 

illustrated, in part, by the vehement disagreement among the parties to this action. A statute 

which is susceptible of two or more meanings is characterized as ambiguous. See Vanderbilt 

Mortg. & Fin., Inc. v. Cole, 230 W.Va. 505, 510, 740 S.E.2d 562, 567 (2013) (“‘A statute 

is open to construction only where the language used requires interpretation because of 

ambiguity which renders it susceptible of two or more constructions or of such doubtful or 

obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.’”) 

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(quoting Hereford v. Meek, 132 W. Va. 373, 386, 52 S.E.2d 740, 747 (1949)); Sizemore v. 

State Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (allowing 

judicial construction where “language used requires interpretation because of ambiguity 

which renders it susceptible of two or more constructions” and the provision is “of such 

doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its 

meaning.”). 

Having found the subject statutory language ambiguous, this Court is required 

to construe the statute and determine its proper application to the facts of this case. In 

endeavoring to construe an ambiguous statute, this Court is cognizant that “[t]he primary 

object in construing a statute is to ascertain and give effect to the intent of the Legislature.” 

Syl. Pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975); 

see also Syl. Pt. 1, Ohio Cnty. Comm'n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983) 

(“Judicial interpretation of a statute is warranted only if the statute is ambiguous and the 

initial step in such interpretative inquiry is to ascertain the legislative intent.”). 

The statute at issue herein distinctly directs that military service credit is 

required to be granted to members of PERS who served in the United States military during 

particular military engagements. To determine the intent of the Legislature with respect to 

precisely which military engagements should be included in the calculation of military 

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service credit, the circuit court correctly examined the express language of the statute, the 

statutory requirement of liberal construction, and other documents chronicling periods of 

armed conflict in which the United States military has engaged. 

Some evidence of the intent of the Legislature may also be gleaned from the 

introductory passage of West Virginia Code § 5-10-15(a)(1), as follows: 

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. 

Moreover, the express language of the statutory definition of “period of armed conflict” 

indicates a legislative intent to identify certain military conflicts that must be included in the 

military service credit calculation and to include other unidentified periods of armed conflict 

in the calculation of military service credit. This language employed by the Legislature is 

extremely broad and unrestrictive, necessitating an inquiry into what other periods of armed 

conflict should be included in the calculation. An application of the statute including only 

the named militaryconflicts would not confer anymeaning to the remainder of the paragraph. 

In endeavoring to interpret a statute in a manner which gives meaning to each part, this Court 

stated as follows in syllabus point three of State ex rel. Fetters v. Holt, 173 W.Va. 501, 318 

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S.E.2d 446 (1984): “‘In ascertaining legislative intent, effect must be given to each part of 

the statute and to the statute as a whole so as to accomplish the general purpose of the 

legislation.’ Syl. Pt. 2, Smith v. State Workmen’s Compensation Commissioner, 159 W.Va. 

108, 219 S.E.2d 361 (1975).” 

The Board’s contention, on appeal, that a calculation of military service 

benefits should include only those military engagements occurring after the statute’s 

enactment is suspect. If the Legislature had so intended, it could have employed language 

indicating that only subsequent periods of armed conflict could be added to the existing list 

or it could have stated that only periods of armed conflict occurring after a certain date could 

be added to the existing list. “[C]ourts must presume that a legislature says in a statute what 

it means and means in a statute what it says there.” Mangus v. Ashley, 199 W.Va. 651, 658, 

487 S.E.2d 309, 316 (1997) (citations omitted). Absent obvious indication of intent to add 

only subsequent military engagements, the Board’s argument on appeal is mere speculation, 

utterly unsupported by the statutory language. This Court finds the Board’s interpretation 

to be in clearly erroneous and severely limited in scope. 

Accordingly, we hold that the phrase “period of armed conflict” as utilized in 

West Virginia Code § 5-10-15(b)(1) (2013), is not limited to the military engagements 

specifically identified in the statute but also includes other periods of armed conflict in which 

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the United States has engaged, as the credible evidence presented in each individual case may 

dictate. The liberal construction to which this statute is entitled compels our conclusion that 

any doubt about a particular military engagement’s inclusion within the calculation of 

military service credit must be resolved in favor of such inclusion. Applying this holding to 

the facts sub judice, we conclude that the circuit court properly interpreted and applied West 

Virginia Code § 5-10-15 to include periods of armed conflict not specifically identified in 

the statute. The circuit court’s evaluation of the respondents’ military service properly 

resulted in the conclusion that Respondents Wood, Cheatham, Lattimore, and Fernatt are 

entitled to five years of military service credit and Respondent Walkup is entitled to four 

years of military service credit. We affirm the circuit court’s method of calculating the 

military service credit to which each respondent is entitled.11 

11In addition to the primary assignment of error addressed and resolved above, the 

Board also asserts that the circuit court erred in concluding that the Fourteenth Amendment 

to the West Virginia Constitution is applicable to the determination of additional periods of 

time as “periods of armed conflict.” The Fourteenth Amendment to the West Virginia 

Constitution is the “Veterans Bonus Amendment” and provides a mechanism through which 

a cash bonus may be paid to veterans of the armed forces who served during conflicts in the 

Persian Gulf, Lebanon, Grenada, and Panama. This Court’s review of the circuit court order 

reveals that it utilized the Fourteenth Amendment as an example of an additional source of 

information in the determination of what military engagements should be included in the 

calculation of military service credit. The circuit court examined both the list of military 

engagements included in the VFW manual and the list included in the Fourteenth 

Amendment to separately calculate entitlement to military service credit. The VFW manual 

provided the most comprehensive list of military engagements and thus resulted in the most 

credit for the respondents. Consequently, because this Court has affirmed the circuit court’s 

reliance upon the VFW manual and the resulting military service credit to the respondents, 

we find the circuit court’s reference to the Fourteenth Amendment unnecessaryto its ultimate 

conclusion and therefore irrelevant in this appeal. 

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B. Respondent Wood’s Alternate Theory of Recovery 

The Board also contends that the circuit court erred in addressing Respondent 

Wood’s alternate theory of recovery, holding that Respondent Wood would be entitled to 

military service credit based on the principles of equitable estoppel. The Board contends that 

Respondent Wood failed to demonstrate detrimental reliance on the alleged promises of 

military credit and emphasizes that the original promise of credit was based upon a mistaken 

impression that Respondent Wood had begun his military service during the draft years. 

Although Respondent Wood presented evidence that he was persuaded to 

accept a position with the State due to the promise of five years of military service credit and 

was provided with statements showing his entitlement to military credit, this Court affirms 

the circuit court’s decision to grant Respondent Wood’s full five years of military service 

credit based upon his actual service record. Review of his alternate argument, the merits of 

which have been contested by the Board, is unnecessary to this Court’s decision. Such 

alternate theory, regardless of its merit, is extraneous and immaterial in light of our 

conclusion that the circuit court was correct in granting the military service credit based upon 

Respondent Wood’s actual military service record. 

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C. Board’s Lack of Articulation of its Interpretation 

The Board also maintains that the circuit court erred by concluding that the 

Board had failed to properly articulate its interpretation of West Virginia Code § 5-10-15. 

The Board premises this assignment of error upon the circuit court’s observation that the 

Board could have enacted a legislative rule explaining the basis for its determinations 

regarding the statutory phrase, “period of armed conflict.” This Court finds this assignment 

of error meritless. The circuit court, while suggesting that the issues could have been more 

efficiently explained and resolved through enactment of a legislative rule, certainly did not 

base its conclusions of law or awards of military service credit upon any failure of the Board 

to enact such rules. We find no error in the circuit court’s observations on this issue and no 

effect upon the ultimate ruling made by the circuit court. 

D. Prior Inconsistent Decisions 

As its final assignment of error, the Board contends that the circuit court erred 

in granting relief to the respondents based on prior Board and circuit court decisions 

involving other individuals seeking military service credit. Again, this Court finds no merit 

in the Board’s arguments in this regard. While the circuit court evaluated prior military 

service credit decisions for purposes of ascertaining the appropriate application of the 

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guiding statute, the circuit court did not rely upon those prior decisions as conclusively 

settling the issues or binding the Board to a certain statutory application.12 

IV. Conclusion 

Based upon the foregoing, this Court finds that the Circuit Court of Kanawha 

County did not err in holding that the respondents are entitled to the military service credit 

as awarded in the circuit court’s order of March 20, 2013. That order is consequently 

affirmed. 

Affirmed 

12In a 2009 decision in the Circuit Court of Kanawha County regarding military 

service credit eligibility for Mr. Daniel Olthaus, the circuit court granted five years of 

military service credit based upon the military campaigns listed in the VFW manual. The 

Board contends that it did not appeal that decision because it became moot when it was 

determined that Mr. Olthaus lacked the requisite number of years of state service to retire. 

In another prior decision, the Board granted military service credit to Mr. Archie Hubbard 

in 2008 based on Mr. Hubbard’s military service during the United States’ involvement in 

the Grenada military engagement. In addressing that prior decision, the Board essentially 

maintains that it should be free to alter its interpretation and application of the statutory 

requirements and should not be bound by the decision it made in Mr. Hubbard’s situation. 

While those prior cases are illustrative of previous inconsistent interpretations, the circuit 

court did not find them binding or dispositive of the present case. Thus, any argument on this 

issue is inconsequential at this juncture. 

The Board also expresses a general concern regarding costs of administering the 

retirement system if military service credit is permitted for the military engagements 

identified in the VFW manual. This Court finds such policy arguments to be more 

appropriately addressed to the Legislature. This Court’s obligation is to interpret and apply 

the provisions of an ambiguous statute, not to address the financial or public policy 

underpinnings of such statutory provisions. 

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