152 [84 Op. Att’y

RETIREMENT SYSTEMS

MILITARY SERVICE – “MILITARY SERVICE CREDIT”

AVAILABLEFOR SUMMER RESERVE DUTY PERFORMED

PRIOR TO STATE EMPLOYMENT

March 11, 1999

Mr. Peter Vaughn

Executive Director

State Retirement Agency of Maryland

You have requested our opinion whether a member of the State

Retirement and Pension System who has served in a reserve

component of the United States armed forces is entitled to “military

service” credit for the member’s participation in annual summer

reserve training prior to State employment. 

For the reasons stated below, we conclude that military service

credit should be granted if the member was (1) placed on active duty

for such reserve training, (2) has at least ten years of creditable

service with the State, and (3) otherwise satisfies the conditions for

military service credit.

I

Background

After an initial period of basic training and active duty,

members of a military reserve unit are generally required to devote

one weekend per month and two weeks during each summer to

training for the duration of their service in the reserve. We

understand that the military distinguishes summer reserve training

from weekend reserve training in certain respects. Orders are

executed that place the reservist on active duty for the summer

training with the result that the reservist receives “active duty points”

– credits that count toward military retirement – for those two-week

training periods. By contrast, no such orders are executed for

weekend duty. See 10 U.S.C. §10147(a) (members of ready reserve

required to spend at least 14 days annually on active duty); 42 C.F.R.

§101.5 (reserve training requirements). 
Gen. 152] 153

1

 The Legislative Pension Plan is not covered by the military service

credit provisions “except to the extent provided by the joint resolution

submitted to the General Assembly by the General Assembly

Compensation Commission under Article III, §15 of the Maryland

Constitution.” SPP §38-101(g). The most recent resolution makes no

provision for the accrual of retirement benefits in the event that a

legislator is called upon to perform military service. Resolution of

General Assembly Compensation Commission (January 1998).

II

Military Service Credit

Your inquiry concerns the availability of military service credit

for members of the State Retirement and Pension System for reserve

duty performed prior to an individual’s enrollment in the system.

The State law concerning military service credit is set forth in Title

38, Subtitle 1, of the State Personnel and Pensions Article (“SPP”)

of the Annotated Code of Maryland. With certain exceptions, this

subtitle applies not only to State systems but also to retirement or

pension systems operated by units of State and local government that

do not participate in a State system.1

One section of the subtitle, SPP §38-103, provides credit under

certain conditions for absences from State or local employment to

perform military service. Another section, SPP §38-104, expands

the availability of military service credit for members of a State

system with ten years service. The subtitle also provides a definition

of “military service” for purposes of the credit. 

A. Military Service Credit under Section 38-103

Under SPP §38-103, a member of a State or local pension or

retirement system is eligible to receive up to five years of service

credit in a pension system for a period of absence from employment

while in military service if the member satisfies certain criteria. In

particular, the member is eligible for military service credit if he or

she:

(1) does not withdraw any of the

member’s accumulated contributions, unless
154 [84 Op. Att’y

2

 Service credit for pension benefits for the period of a member’s

absence from State employment for military duty are also protected by

federal law. 38 U.S.C. §4318. The federal law does not require an award

of military service credits for military duty performed prior to State

employment.

the member redeposits the sum withdrawn as

provided under subsection (b) of this section;

(2) within 1 year after the member leaves

military service, is employed by the State or a

political subdivision of the State;

(3) does not take any employment other

than the employment described in item (2) of

this subsection, except for temporary

employment after the member:

(i) applied for reemployment in the

member’s former classification or position in

the State service; and

(ii) was refused immediate

reemployment for causes beyond the

member’s control; and

(4) applies for service credit with the

State or local retirement or pension system in

which the member held membership before

the member’s military service began.

SPP §38-103(a)(1)-(4). Although this provision is not a model of

clarity, the use of the term “reemployment” in paragraph (a)(3) and

the reference in paragraph (a)(4) to membership in the pension

system prior to military service indicate that this section applies to

military service that interrupts State or local employment.2

Review of the legislative history of this section confirms this

interpretation. The predecessor of SPP §38-103 was enacted during

World War II to provide certain employment and pension benefits to

persons who left State employment to join the armed forces.

Chapter 676, Laws of Maryland 1941. Indeed, that legislation
Gen. 152] 155

3

 The credit provided in SPP §38-104 applies only to members of a

State pension or retirement system (other than the Legislative Pension

Plan); by contrast, the credit provided in SPP §38-103 also applies to

systems of political subdivisions.

4

 “Creditable service” is defined as the service credit of a member

that is recognized for purposes of computing a benefit under a State

retirement or pension system. SPP §20-101(m).

5

 This condition does not pertain to credit received under the Social

Security system, disability benefits, and certain other benefits under

federal law. SPP §38-104(b)(2).

created a new subtitle in Article 65 of the 1939 Annotated Code of

Maryland named “Re-employment of Persons in Military Service.”

Id., §1. Subsequent amendments of that provision renumbered the

provision as Article 65, §88, and enlarged its scope to encompass

those who left State service to serve in the Korean and Vietnam

conflicts. 

In 1974, the Legislature amended former Article 65, §88 to

expand significantly the availability of the military service credit.

However, when the State Personnel and Pensions Article was

created in 1993 as part of the code revision process, the 1974

amendment was codified separately as SPP §38-104. Thus, SPP

§38-103 derives from the earlier section that was directed to

reemployment of former State employees. Accordingly, a member

is not entitled to military service credit under §38-103 for military

service performed prior to any State employment. 

B. Military Service Credit under Section 38-104

Members of a State retirement system

3

 who do not satisfy all

of the criteria in SPP §38-103 may nonetheless receive credit for up

to five years of military service if they have ten years of creditable

service4

 and have not received credit for the military service from

another retirement or pension system.5 SPP §38-104(b). As noted

above, this provision originated as an amendment to §88 of former

Article 65 prior to the creation of the State Personnel and Pensions

Article. See Chapter 622, Laws of Maryland 1974. Neither SPP

§38-104 nor the predecessor language of former §88 contains any

requirement that the military service for which the member receives

credit interrupt the member’s public employment. 
156 [84 Op. Att’y

Thus, the credit available under §38-104 encompasses periods

of military service performed prior to the person’s public

employment. This construction of the 1974 amendment and §38-

104 has been acknowledged in subsequent reports by a committee of

the General Assembly. See Joint Committee on Pensions, Report on

the 1990 Interim (December 1990) at pp.31-32.

C. Reserve Training as Military Service

The statute defines the types of military service eligible for the

credit. Certain portions of reserve duty are included within that

definition. In particular, SPP §38-101 provides, in relevant part,

that:

“Military service” means ... membership in a

reserve component of the armed forces of the

United States on active duty or ordered or

assigned to active duty.

SPP §38-101(d)(2). This provision, or substantially similar

language, has been a part of the military service credit statute since

the 1940s. See Chapter 676, Laws of Maryland 1941. 

It is our understanding that, for purposes of the two-week

summer training, orders are executed that place the reservist on

active duty. Accordingly, under a straightforward reading of the

definition of “military service,” a member of a State pension system

who is otherwise qualified under SPP §38-104 should receive credit

for service rendered in the annual, two week summer training period,

even if the member performed that service prior to enrollment in a

State system. The member will, of course, have to submit any forms

and materials required by the Agency to document the member’s

reserve membership service and the duration of active duty status. 

III

Conclusion

In summary, it is our opinion that military service credit should

be granted for summer reserve duty performed by a member of the

State retirement system prior to State employment if (1) the member

was placed on active duty for such reserve training, (2) if the
Gen. 152] 157

member has at least ten years of creditable service with the State,

and (3) otherwise satisfies the conditions of SPP §38-104.

J. Joseph Curran, Jr.

Attorney General

Robert D. Feinstein

Assistant Attorney General

Robert N. McDonald

Chief Counsel

Opinions and Advice