STATE EMPLOYEES' RETIREMENT SYSTEM -- CREDIT FOR MILITARY SERVICE TO VETERAN'S INELIGIBLE AS ORIGINAL MEMBERS

STATE EMPLOYEES' RETIREMENT SYSTEM -- CREDIT FOR MILITARY SERVICE TO VETERAN'S INELIGIBLE AS ORIGINAL MEMBERS

One who left state employment prior to 1947, served in armed forces continuously thereafter, and returned to state employment within year of discharge, but too late to become "original member" of retirement system, is entitled to credit for period of military service.

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                                                                    June 1, 1953

Mr. Samuel P. Totten
Executive Secretary
Washington State Retirement Board
215 East Fifth Street
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 62

Dear Sir:

            We have received your letter of May 26, 1953, requesting the opinion of this office on a question arising from the following facts:  A state employee leaves his job to enter military service in 1940, and remains continuously in service until 1953.  He then returns to state employment and becomes a member of the State Employees' Retirement System in that year.

            Your question is:  Can the period of military service be credited to this employee as a member of the Retirement System?

            In our opinion the answer to this question is "Yes."

                                                                     ANALYSIS

            The controlling statute is RCW 41.40.170, which provides:

            "A member of the retirement system who has served * * * on active federal service in the military or naval forces of the United States and who left * * * an employer to enter such service and within one year from the termination thereof, resumed * * * employment as  [[Orig. Op. Page 2]] an employee shall have his service in such armed forces credited to him as a member of the retirement system:  * * * During the period of such service of a member, his contributions to the employees' savings fund shall be suspended and the balance standing to his credit as of the last payroll date preceding his leave of absence from the service of his employer shall be accumulated at regular interest."  (Emphasis supplied)

            We believe that this section was intended to prevent prejudice, by reason of their service, to those who might serve in the armed forces.  Had the veteran in question not entered the armed forces, but remained in state employment, he would have become an "original member" under RCW 41.40.010 (6).  He would then have received credit for his service with the state prior to October 1, 1947, under RCW 41.40.010 (10), 41.40.140, and 41.40.160.  Because of his military service, he cannot qualify as an "original member" in any of the ways provided by RCW 41.40.010 (6).  He cannot enjoy the credit which accrues to "original members" for prior service.  To a large extent, the quoted statute rectifies this situation.

            The underscored phrases in RCW 41.40.170 might, upon casual reading, in conjunction with the definitions given by RCW 41.40.010 (4), (22) of "employer" and "employee," indicate that the veteran in question could not be credited with his military service.  He could not have left an "employer" in 1940, since no "employers" existed within the definition.  He could not haveresumed employment as an "employee," since he was not an "employee," as defined, when he left.  But the term "employer" is used in RCW 41.40.010 (6), (10) in reference to the enumerated state agenciesbefore October 1, 1947.  This alternative usage is authorized by the first sentence of RCW 41.40.010, which states that the terms defined may have different meanings where plainly required by context.  The term "employer" in RCW 41.40.170 was obviously used in a broader sense than the definition given it by RCW 41.40.010 (4).  The underscored portions of the last sentence of the quoted statute refer to prospective operation of the statute; but that language could not have related to a situation such as this because the savings fund did not exist before 1947, nor does it qualify the eligibility provision.

            We believe that a construction of the quoted statute which denied the veteran in question credit for his military service would conflict with the clear purpose disclosed thereby.  We conclude that a state employee who left state employment prior to 1947, served continuously in the armed forces thereafter, was discharged too late to become an "original member," and within a year returned to  [[Orig. Op. Page 3]] state employment and became a member of the retirement system, is entitled to credit for his period of military service under RCW 41.40.170.

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General