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Tackett v. West Virginia Consolidated Public Retirement Board

Supreme Court of West Virginia

November 17, 2017

Allen E. Tackett, Petitioner Below, Petitioner
v.
West Virginia Consolidated Public Retirement Board, Respondent Below, Respondent

         Kanawha County 14-AA-93

          MEMORANDUM DECISION

         Petitioner Allen E. Tackett, a former member of the West Virginia Army National Guard and a former state employee, by counsel Ray Shepard, appeals the September 16, 2016, order of the Circuit Court of Kanawha County that calculated his active military service credit for his Public Employees Retirement System ("PERS") benefits, but failed to rule on his motion for attorney's fees. Respondent West Virginia Consolidated Public Retirement Board ("the Board"), by counsel Ronda L. Harvey, filed a response. Petitioner filed a reply.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the Court finds no substantial question of law and no prejudicial error with regard to the manner in which the circuit court calculated petitioner's active military service credit for his PERS benefits. Therefore, a memorandum decision affirming that portion of the September 16, 2016, order regarding the calculation of petitioner's active military service credit is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner was employed full-time in the private sector from 1963 until 1995. Additionally, in January of 1963, petitioner joined the West Virginia Army National Guard ("National Guard"). Petitioner served six months of active military duty training during a period of armed conflict from February 8, 1963, through August 8, 1963. Thereafter and throughout petitioner's thirty-two years of private sector employment, he remained a member of the National Guard and served approximately 848 days of active military service.

         In September of 1995, petitioner became the Adjutant General of the West Virginia National Guard and, as such, a State employee covered by PERS. Prior to retiring from the Adjutant General position on February 1, 2011, petitioner applied for retirement benefits and active military service credit under West Virginia Code § 5-10-15[1] for his military service prior to September 1995. West Virginia Code § 5-10-15 mandates military service credit for any member of PERS who "enters the active service of the armed forces of the United States during any period of . . . armed conflict" when the member is honorably discharged and submits appropriate documentation.

         On September 30, 2011, the Board entered an order giving petitioner six-months of active military service credit for his service in 1963, and the opportunity to establish additional periods of active military service pursuant to Title 10 of the United States Code. However, the Board found that petitioner's National Guard service, performed pursuant to Title 32 of the United State Code, did not constitute active military service entitled to retirement credit. Petitioner appealed the Board's September 30, 2011, decision to the circuit court, which reversed the Board and found that petitioner's National Guard service, performed pursuant to Title 32, did constitute active military service for purposes of calculating retirement benefits. The circuit court remanded the case to the Board with instructions to determine which of petitioner's additional periods of active military service were entitled to credit. The Board did not appeal the circuit court's order.

         By letter dated February 18, 2013, the Board credited petitioner with twelve additional months of Title 32 active military service. In the letter, the Board noted that the active military service credit rules are spelled out in West Virginia Code § 5-10-14 and West Virginia Code of State Rules § 162-5-4, and require that a member be in service for one-half or more of a calendar month in order to receive PERS credit for that particular calendar month. The Board further concluded that to serve "one-half or more of a calendar month, " petitioner would have to have served fifteen days or more of active military service to receive one month of active military service credit (the "fifteen-day standard").

         Petitioner promptly protested the Board's use of the fifteen-day standard by citing to West Virginia Code § 5-10-14(a)(1), which provides that "[i]n no event may less than ten days of service rendered by a member in any calendar month be credited as a month of service" (the "ten-day standard"). Petitioner also argued that the fifteen-day standard was inconsistent with West Virginia Code § 5-10-15(a)(1), which mandates that military members receive credited service "for any time served in active duty in the armed forces of the United States"; and West Virginia Code § 5-10-15(a)(2), which provides that military members "shall receive credited service for the time spent in the Armed Forces of the United States, not to exceed five years."

         By letter dated April 15, 2013, the Board acknowledged the ten-day standard found in West Virginia Code § 5-10-14(a)(1), but affirmed its application of a fifteen-day standard on the ground that the ten-day standard "simply sets the minimum amount of service the Board can require before crediting a month of service." The Board further found that it "requires more than ten (10) days of service for a PERS member to receive credit for a particular calendar month when the ten (10) days does not constitute half of a calendar month."

         On September 11, 2013, the hearing examiner stayed the case pending a decision in West Virginia Consolidated Public Retirement Board v. Wood, 233 W.Va. 222, 757 S.E.2d 752 (2014). This Court issued Wood on March 28, 2014. In Syllabus Point 9 of that case, the Court found that

[t]he 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.

         By letter dated May 30, 2014, the Board notified petitioner that, under Wood, he was entitled to one additional month of active military service credit, for a total of nineteen months of service credit.

         Thereafter, in a July 22, 2014, recommended decision, the hearing examiner found that the Board's fifteen-day standard was clearly erroneous, and that the ten-day standard should have been used to calculate petitioner's active military service credit. On August 13, 2014, the Board adopted the hearing examiner's recommended decision. Applying the ten-day standard, the Board awarded petitioner an additional nine months of active military service credit, for a total of twenty-eight months of service credit.

         Petitioner appealed the Board's decision to the circuit court. However, on October 19, 2015, before the circuit court ruled on petitioner's appeal, the Board awarded petitioner an additional eight months of active military service credit, bringing his total to thirty-six months of service credit. On appeal, petitioner challenged the Board's method of calculating active military service credit. Petitioner also ...


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