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W.Va. justices: Military service counts for state pensions

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By Kate White 
The Charleston Gazette

CHARLESTON, W.Va. -- The agency that administers state employees' retirement plans has been short-changing veterans by using a too narrow definition for what constitutes military service, the West Virginia Supreme Court ruled on Friday.

Five men filed suit after the state Consolidated Public Retirement Board denied them credit for years they had served in the military.

Kanawha Circuit Judge Paul Zakaib reversed the board's decision last year and found that the men were entitled to full credit for their military service.

The Board appealed that decision, but the Supreme Court agreed with Zakaib, finding that the Board had wrongly withheld credit for service during periods of armed conflict; even if those periods were not specifically listed by the Legislature.

 "This Court finds the Board's interpretation to be clearly erroneous and severely limited in scope," the opinion by Justice Margaret Workman says.

As originally enacted in 1961, the state statute governing military service credit for state retirees granted credit for "compulsory service," as a result of the draft. The draft ended on July 1, 1973.

The Legislature amended the law in 2000, granting up to five years of military service credit to employees who served during "a period of armed conflict."

The statute defines a period of armed conflict by listing major wars but also adds "those periods sanctioned by a declaration of war by U.S. Congress or by executive or other order of the president."

The retirement board hadn't been giving credit for service during military engagements in El Salvador, Lebanon, Grenada, the Persian Gulf, Panama and Somalia, according to the opinion.

"The phrase 'period of armed conflict' as utilized in [state code] 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," the order states.

The board didn't adequately explain why it gave credit for some military service but not others, Workman wrote.

"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," the opinion states.

Keith Wood, who served on active duty with the U.S. Army from Jan. 1978 through Sept. 1992, was only given 8 months credit by the board for his service during the Persian Gulf War from August 1990 through April 1991. He had, though, had some involvement in the events in Nicaragua, El Salvador, Honduras, Saudi Arabia, Kuwait, Lebanon, Yugoslavia, Iraq and Iran. He started working for the state in 1992.

Zakaib awarded him the full five years of military service the credit allows.

William Walkup served on active duty as a U.S. Marine between May 1983 and May 1987. He became a state employee in 1989.

While a Marine, Walkup was involvement in events in Lebanon, Grenada and El Dorado Canyon.

The board didn't give him any military service credit, but Zakaib granted him four years.

Herbert E. Lattimore Jr. served in the U.S. Army from May 1975 through Feb. 2001, and became a state employee in 2002.

While he was enlisted the United States was involved in events in the Persian Gulf, Vietnam, Mayaguez, Beirut, Panama, Grenada, Nicaragua, Libya and Kosovo.

The board had said he was only eligible for eight months of military service credit for his time served from August 2, 1990 through April 11, 1991. Zakaib granted him the full five years.

Teddy M. Cheatham served in the Army from May 1977 through Oct. 1988 and became a state employee in 2006. He was involved in conflicts in Nicaragua, Somalia, Lebanon, Grenada and Panama. But the board found he wasn't entitled to any military service credit.

Zakaib reversed the board and gave him the full five years.

Johnny L.R. Fernatt served in the U.S. Navy between July 1980 and Feb. 1990, becoming a state employee in 1998. He was involved in conflicts in Grenada, Kosovo, Somalia and Libya.

The board didn't find him eligible for any military service credit. Zakaib also gave Fernatt the full five year credit.