152 [84 O p. Att’y
RE TI RE MEN T S YS TE MS M ILI TARY S ERVICE

– “M ILI TARY S ERVICE C REDIT ” A VAILABLE FOR S UMMER R ESERVE D UTY P ERFORMED P RIOR TO S TATE E MPLOYMENT

March 11, 1999
Mr. Peter Vaughn Executiv e Director State Retirement Agency of Maryland You have request ed our opinion whethe r a member of the S tate Retire ment a nd Pension Sy stem who has serve d in a res erve component of the Unit ed States a rmed force s is entitled to “military servi ce” credit

for the member ’s participation in annual summer rese rve train ing prio r to S tate e mp loym ent. For the reasons stated b elow, w e conclud e that militaryservi ce credit should be gr anted i f the memberwas (1) place d on active duty for such res erve tra ining, (2 ) has a t least ten years of credita ble servi ce with the Stat e, and (3) otherwis e sati sfies the conditi ons for military serv ice cre dit. I Background Afteran initial pe riod of bas ic tr aining and act iv e d ut y, mem bers o f a m ilitary reserve unit are ge nerally req uired to devo te one weekend per month and two weeks durin g eac h sum mer to tra ining for t he du r at i onof t he i r se r vi ce i n t

he r es er ve . We under standthat t

he mili tary

dist inguis hes summer rese rve tr aini n g from week end reserv e training in certain respe cts. Orders are executedthat pl ace the r eservi st on active duty for the s ummer trai ning with the r esult

that t he reser vist recei ves “act ive dutypoints”

– credit s that

count toward mi lit ary

reti rement – for

those t wo-week trai ning periods. By contras t , no suc h orders are execut ed for weekend du ty. See 10 U.S.C. §10147(a ) (members of r eady r eserve requir ed to spend at

least 14 days annuall y on active duty ); 42 C.F .R. §10 1.5 ( rese rve train ing req uire me nts).Gen. 152] 153

1 The Legislative

Pension Plan is not covered by the military service credit provisions “except to the extentprovide d by the joint resolution submittedto th e G en er al As se mb ly b y the Genera l Assembly Compensa

ti o nCommission under Article III, §15 of the Mary land Constitution.” SPP §3 8-101( g). The most recent resolution makes no provisionfor the accrual of retirement be nefits in the e vent tha t a le gislator is called upon to perform military se rvice. Resolu tion o

f General Assembly Compensation Commission (January 1998). II M ilitary Serv ice C redit Your inquiry concerns the availability of military servi ce credit for members of the St ate Reti rement and Pensi on Syst em for reser ve du typerformed pri or to an i ndividual ’s enrol lment i n the sys tem

. The State l aw concerning mil itar y se rvice credit is s et forth in Title 38, Subti tle 1, of

the Stat e Personneland Pensions Articl e (“SPP”) of the A nno tated C ode o f M aryland. W ith certain exce ptions , this subtitle applie s not onl y t o State s yst ems but al so to re ti rement or pensionsys tems operat ed by uni ts of St ate and l ocal governmentthat do n otpar

ti ci pat e i n a S tate sy st em. 1 One secti on of

the subt itl e, SPP §38-103, provides credit under certain cond itions fo r abse nces from State o r local e m ployme nt to perform military service. Another secti on, SPP §38-104, e xpands the availa bility of m ilita ryservi ce cre dit for m emb ers of a State sys tem with ten years se rvice. The subti tle a lso provi des a defini tion of “ milita ry serv ice” for pur pos es o f the cred it. A. Militar

y ServiceCredit under Sec tion 38- 103 Under SPP §38 -103 , a me mb er of a State o r local p ens ion or reti rementsystem is e li gib le to r eceive up t o five y ears of s ervice credit in a pensi on sys tem for a period of absence from employment while in m ilitary

servic e if

the mem ber satisfies certain criteria. In particular, the member is eligible for mi lit ary servi ce credit

if he or she: (1) does not wit hdraw any of t

he mem ber’s accumulated contributions, unles s154 [84 O p. Att’y

2 Service credit for pension benefits for the per iod of a member’s abs ence from State

employ ment for m

ilitary duty are als o prote cted b y federallaw. 38 U.S.C. §4318. The federallaw does not require an award of military service c

redits for m ili tary

duty perfor med prior

to State employ ment. the member redeposi ts t he sum withdrawn as providedund er sub section (b) of this secti on; (2) within 1 y ear aft er the memberleaves militaryservic e, is employe d bythe State or a political subdivi sion of t he State ; (3) does not t ake anyemployment other than the employment

described in it em (2) of this subsect ion, e xcept fortempor ary employm ent after the m embe r: (i) applie d for reemploy ment in t

he member’s former c lassi fication or position in the Stat e servi ce; and (ii ) was refused i mmediat e reemploy ment for causes beyond th e member’s control; and (4) applie s for ser

vi ce credit

with the State or localreti rement or pens ion system in which th e memb er held me mbersh ip before the member’s mi lit ary

servi ce began. SPP §38 -103 (a)(1)-(4 ). Altho ugh this prov isi on is not a model of cla rity, the us e of th e term “reem ployme nt” in paragraph ( a)(3) and th e referenc e in para graph (a) (4) t o membership i n the pensi on sys tem prior to military serv ice ind icate tha t this sectio n app lies to military serv ice tha t interrup ts State o r local e mp loymen t. 2 Review of the l egisl ative hist oryof this secti on confirms t hi s inter pretation. The predecess or of SPP §38-103 was enact ed during Wo rld Wa r II to provi de cert ain employ ment and p ensio n ben efits to p ersons who left State employment to join t he armed forces. Chapter676, Laws of Maryl and 1 941. In deed, t hat le gisl ationGen. 152] 155

3 The credit provided

inSPP §38-104 a

pplies only

to members of a Statepension or retirement system (other than the Legislat ive P ension Plan); by contrast, the

c redit provided in SPP § 38-103 a lso applie s to systems of po litical su

bdivisions

.
4 “Creditable service” is defined as the ser vice credit of a member that is re cognize d for pur

poses of c omputing

a benef it under a

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

5 This conditiondoes not pertain to credit received under the Social Security system, disability

benefits, and certain other benefits under federal law. SPP §38-104(b)(2). creat ed a new subtitle in Article 65 of the 1939 Annotated Code of Maryland

name d “Re -employme nt of Perso ns in M ilitary Ser vice .” Id ., §1. Subsequentamendments of that provisi on renumbered the provisi on as Arti cle 65, §88, and enl argedits scope to encompass those who left State ser vice t o serve i n the Korean and Vietnam con flicts

. In 1974, the L e gislature ame nded form er A rticle 65 , §88 to expand signif

icantly the a vailab ility of the m ilita ry servic e cred it. How ever, whe n the Stat e Personneland Pensions Article was creat ed in 1993 as par t of the code rev isi on process, the 1974 amendment wa s cod if

ied s eparatel y a s SPP §38- 104. Thu s, SPP §38-103 derive s from the ea rlier sectio n that w as dire cted to reemploy

ment of former State employees. Ac cor din gly, a member is not entitled to mili tary servi ce credi t under §3 8 -103 fo r military serv ice p erfo rme d pr ior to any S tate e mp loym ent. B. Militar

y ServiceCredit under Sec tion 38- 104 Me mbers of a Stat e retirementsyste m 3 wh o do not sa tisfy all of the criter ia in SPP §38 -103 may no nethe less rec eive c redit for up to five y ears of mil itar

y se r vic e if the y have te n years o f cred itable serv ice 4 and have not re ceived cr edit f or the mil itar

y se rvice f

rom another re ti re ment

orpen si on s y st em. 5 SPP §38-10 4(b). As noted above, t his provi sion ori ginate d as an amendment to §88 of former Articl e 65 prior

to the c reati on of the State Pers onnel and Pensi ons Articl e. See Cha pter

622, Laws of Mary land1974. Neither SPP §38-104 nor the pr edecessor language of forme r §88 contains any requir ement that t

he mili tary

servi ce for which t

he member recei ves cred it inte rrup t the m em ber ’s pu blic e mp loym ent.156 [84 O p. Att’y Thus, the cre dit avail able under §38-104 encompasses periods of mili tary

servi ce p erfor med prior to the pe rson’s pub lic emp loymen t. This const ructi on of the 19 74 amen dment and §38- 104 has been ac kn ow led ge d i n s ub se qu en t re po rts by a committee of the Ge ner al A ssem bly. See Joint Committee on Pen sion s, Report on the 19 90 In terim (December 1990) at pp.31-32. C. Reserve Traini

ng as Milit

ary Service The stat ute defi nes the t

ypes of mili tary

servi ce eligible for

the cred it. Certai n porti ons of rese rve duty are inc luded within tha t defini tion. I n par ticular, S PP § 38-1 01 p rovid es, in rele vant p art, that: “M ilitary

servi ce” means .. . membe rsh ip in a reser ve component of the armed forces of the UnitedStates on acti ve duty or order ed or as sig ne d t o a cti ve du ty. SPP §38-101(d)( 2). Thi s prov isi on , or s ubstant ially similar language, has been a part o f the m ilitary service c redit stat ute si nce the 1 940 s. See Ch apte r 67 6, L aw s of M arylan d 19 41. It is our und er st an di ng t

ha t, fo r p ur

pos es of th e two - week summer training , orders are ex ecute d that p lace th e reser vis t on acti ve duty. According ly, under a stra ightfor ward reading of t

he defini tionof “mili tary

servi ce,” amember of a State pension sy stem who is otherwise qual ifie d under SPP §38-104 should re ceive credit for servi ce rendered in the annual, two week summer trai ning peri od, even if the member pe rf or me d that s ervice prior to enrol lment i n a State sy st em. The m embe r wi ll , o f co ur se , h ave to sub mit any for ms and materi als r equired by the Agencyto document t he mem ber’ s rese rve me mb ersh ip se rvic e an d th e du ratio n of activ e du ty statu s.

III Conclusion In sum mary, it is ou r opin ion tha t military serv ice cre dit sho uld be granted

for summer res erve duty performed by

a member of the State reti rement sy stem pri or to Stat e employment if (1) the member was placed on active duty for such r eserve t

raini ng, (2) if theGen. 152] 157 member has at l east t en year s of credit able ser

vice with the Stat e, and (3) ot

herwise satis fies t

he condit ions of SPP §38-104.

J. Joseph C urran, Jr. AttorneyGeneral Ro bert D . Feins tein As sist antAttorney Genera l Ro bert N . Mc Do nald Chief Counsel Opinions and Advic e