LAW REVIEW 1115
No Age Limit on USERRA Protection
By Captain Samuel F. Wright, JAGC, USN
126.96.36.199—USERRA Coverage of Federal Government
188.8.131.52—Character and Duration of Service
184.108.40.206—Pension Credit for Service Time
Q: I graduated
college, was certified as a Registered Nurse (RN), and was commissioned an Army
Second Lieutenant in 1959. I remained on active duty for eight years,
including a year in Vietnam, and I left active duty in 1967. I affiliated with the Army Reserve and
remained active until I retired as a Lieutenant Colonel in 1987.
In 1983, I began my federal civil service career as a
nurse for the Veterans Administration (VA), which in 1989 became the Department
of Veterans Affairs. When I began my
civil service career, I purchased federal civilian retirement credit for my
eight years of active duty, from 1959 to 1967.
The amount that I paid was based on a percentage of my Army earnings
during 1959-67. I have always been a
participant in the Civil Service Retirement System (CSRS), rather than the
newer Federal Employee Retirement System (FERS).
In 2009, the Army put out the word that it was seeking
nurses to come on active duty to treat the wounded warriors of Iraq and
Afghanistan, and I volunteered. Although
I was 71 years old at the time, I passed the Army physical and was selected to
participate. I served on active duty at
the Walter Reed Army Medical Center for exactly one year, from Sept. 1, 2009 to
August 31, 2010. During that year, my
salary as a Lieutenant Colonel was substantially less than my regular civilian
salary as a very senior VA nurse.
I returned to work at the VA in Sept. 2010 with no
problem, and now I am applying to retire from the federal civil service. Under CSRS, my monthly retirement benefit is
computed based on a formula that includes the average compensation that I
received during my high three years of federal compensation. The high three years are usually but not
always the last three years before retirement.
My last three years of federal civilian employment will be 2011, 2010,
and 2009. Because of my year of active
duty, I missed the last four months of 2009 and the first eight months of 2010.
How will my high three years of federal compensation
be computed for purposes of the determination of my monthly retirement
check? Will it be based on what I would have earned in federal civil
service pay if I had been employed in my civilian job for all of 2009 and all
of 2010? Or will it be determined based
on my civil service salary plus my Army salary for those two years? Or do I need to look to 2008 and 2007 for my
high three years of federal civilian compensation? The VA personnel office seems to be
hopelessly confused in trying to answer this question.
A: If you met the eligibility criteria for reemployment
in late 2010, after you were released from the year of active duty, you are
entitled to be treated as if you had been
continuously employed in the civilian job during the year that you were
away from work for uniformed service.
Thus, in computing your high three years of federal civil service compensation,
you are entitled to credit for the civilian compensation that you would have
received in 2009 and 2010 if you had worked for the VA all of those years.
As I explained in Law Review
and other articles, an individual must meet five conditions to have the right
to reemployment under USERRA:
Must have left a civilian position of
employment for the purpose of performing voluntary or involuntary service in
the uniformed services. It is clear that
you did this in August 2009.
Must have given
the employer prior oral or written notice.
I shall assume that you gave the VA notice in July or August 2009.
or periods of uniformed service, relating to the employer relationship for
which the person seeks reemployment, must not have exceeded five years. As is explained below, you are well within
the five-year limit.
Must have been
released from the period of service without having received a punitive (by
court martial) or other-than-honorable discharge. It is clear that you did so.
Must have made a
timely application for reemployment, after release from the period of
service. After a period of more than 180
days of service, the returning veteran has 90 days to apply for reemployment. See 38
U.S.C. 4312(e)(1)(D). It is clear that
you applied for reemployment and returned to work well within this 90-day
“Subsection (a) [the right to
reemployment] shall apply to a person who is absent from a position of
employment by reason of service in the uniformed services if such person’s
cumulative period of service in the uniformed services, with respect to the employer relationship for which a person seeks
reemployment, does not exceed five years, except that any such period of
service shall not include any service—[There are eight statutory exemptions
from the five-year limit.].” 38 U.S.C.
4312(c) (emphasis supplied).
Your 1959-67 active duty does
not count toward your five-year limit because you performed that active duty
prior to the beginning of your federal civil service career in 1983. Purchasing federal civilian retirement credit
for the 1959-67 active duty does not make that time count toward your five-year
limit with respect to the Federal Government as your civilian employer.
Your 2009-10 active duty was
voluntary and counts toward your five-year limit. The Army Reserve training duty that you
performed between 1983 (when you went to work for the VA) and 1987 (when you
retired from the Army Reserve) is exempt from the computation of the five-year
limit. Even if you did some voluntary
active duty during that period (that counts toward your limit), you are still
well within the five-year limit with respect to your employer relationship with
the Federal Government.
Because you met the USERRA
eligibility criteria when you returned to work for the VA in Sept. 2010, you
have rights under section 4318 of USERRA, 38 U.S.C. 4318.
“A person reemployed under
this chapter [USERRA] shall be treated as not having incurred a break in
service with the employer or employers maintaining the plan by reason of such
person’s period or periods of service in the uniformed services.” 38 U.S.C. 4318(a)(2)(A).
“Each period served by a
person in the uniformed services shall, upon reemployment under this chapter,
be deemed to constitute service with the employer for the purpose of
determining the nonforfeitability [vesting] of the person’s accrued benefits
and for the purpose of accrual of benefits under the plan.” 38 U.S.C. 4318(a)(2)(B).
“For purposes of computing an
employer’s liability under paragraph (1) or the employee’s contributions under
paragraph (2), the employee’s compensation during the period of service
described in subsection (a)(2)(B) shall be computed—(A) at the rate the employee would have received but for the period of
service described in subsection (a)(2)(B).”
38 U.S.C. 4318(b)(3) (emphasis supplied).
The language of section 4318
could not be any clearer. You are
entitled to imputed compensation for your entire 2009 and 2010 salary (for the
entire year in each case) in computing your high three years of federal
Q: While I am
working, I make a substantial payment to CSRS each pay period. While I was away from my civilian job for
military service, from Sept. 2009 to Aug. 2010, I did not make these
payments. Am I required to make up these
missed employee payments to CSRS after I returned to my civilian job?
A: Yes, under section 4318(b)(2), which provides: “A person reemployed under this chapter shall
be entitled to accrued benefits pursuant to subsection (a) that are contingent
on the making of, or derived from, employee contributions or elective deferrals
(as defined in section 402(g)(3) of the Internal Revenue Code of 1986) only to
the extent the person makes payment to the plan with respect to such
contributions or deferrals. No such
payment may exceed the amount the person would have been permitted or required
to contribute had the person remained continuously employed by the employer
throughout the period of service described in subsection (a)(2)(B). Any payment to the plan described in this
paragraph shall be made during the period beginning with the date of
reemployment and whose duration is three times the period of the person’s
service in the uniformed services, such payment period not to exceed five
years.” 38 U.S.C. 4318(b)(2).
Since you were reemployed in
Sept. 2010, you have until Sept. 2013 (three times the period of service) to
make up the missed employee contributions to CSRS. If you want to retire in 2011, you will need
to expedite the repayment process.
Under Office of Personnel
Management (OPM) policy, a person in your situation is offered the opportunity
to make up the payments under an alternative computation method, based on the
person’s earnings from the military during the period of service. In your situation, the alternative
computation method is more advantageous to you, because your salary as a very
senior VA nurse greatly exceeds your salary as a Lieutenant Colonel on active
duty, and you made the make-up payments under the alternative computation
method. Nonetheless, you are entitled to
computation of your “high three” based on what you would have earned from the VA if your VA employment had not been
interrupted by the 2009-10 active duty.
The facts in this article are hypothetical.
These facts do not all pertain to a single individual.
I invite your attention to www.roa.org/law_review. You will find more than 800 articles about
USERRA, the Servicemembers Civil Relief Act (SCRA), the Uniformed and Overseas
Citizens Absentee Voting Act (UOCAVA), and other laws that are particularly
pertinent to those who serve our nation in uniform. You will also find a detailed Subject Index
and a search function, to facilitate finding articles about very specific
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