STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5938

July 27, 1981

RETIREMENT SYSTEMS:

State employees--military service credit for provisional employee serving in the Korean Military Conflict

A member of the State Employees Retirement System who left state service as a provisional employee to serve in the Korean military conflict and who timely returned to state service thereafter is entitled to service credit for such military service under 1943 PA 240, Sec. 18(1).

The Honorable Alan Cropsey

State Representative

The Capitol

Lansing, Michigan

Dear Representative Cropsey:

You have requested my opinion concerning the eligibility of a state employee for retirement service credit for his time in the Army during the Korean Military Conflict.

The documentation supplied with your request indicates that the individual concerned was hired by the then Department of Conservation on a provisional basis to occupy the permanent civil service position of Civil Engineer I on July 10, 1950. On September 22, 1950, he was served a notice of induction, requiring him to report for military service on October 11, 1950. The employee, upon receiving this notice applied for a military leave of absence from state employment.

The Department of Conservation denied him military leave based on Civil Service Commission Rule XIIIC, which provided:

The Department's decision cited the fact that he had not been employed in excess of four months in his provisional employee status, nor had he been certified to his position. The employee was similarly unsuccessful in obtaining a deferral of his induction date for a period of time sufficient to enable him to qualify for a leave of absence under that Civil Service Rule. Failing in both attempts to quaify for a military leave of absence, he resigned state employment, at the direction of the Department of Conservation, on September 29, 1950, and was inducted into the United States Army as scheduled on October 11, 1950.

The individual was honorably discharged from the Army on October 11, 1952, and resumed state employment on December 1, 1952. He has repeatedly attempted to obtain a redetermination of his status for his period of military duty to obtain service credit for the two years under the State Employees' Retirement Act, 1943 PA 240; MCLA 38.1 et seq; MSA 3.981(1) et seq. His requests have been denied because he had not obtained a leave of absence and, thus, was not a 'state employee' when he entered the Army.

The conditions for the grant of service credit to members of the State Employees Retirement System for military service are governed by 1943 PA 240, Sec. 18, supra, which in pertinent part provides:

To the extent material here, 1943 PA 240, Sec. 18(1), supra, is identical to the language of the section as it existed in 1950. Subsection (2) of 1943 PA 240, Sec. 18, supra, is relatively new, having been added to the State Employees' Retirement Act by 1978 PA 148.

With this addition, all members of the State Employees Retirement System may now acquire retirement service credit for time in the military service in accordance with the statute. The significant difference between subsections is that a member an employee qualifying under 1943 PA 240, Sec. 18(1), supra, need not pay 'an amount equal to 5% of the member's full-time compensation for the fiscal year in which payment is made multiplied by the years of service that the member elects to purchase' to acquire the military service credit.

The crucial question is, therefore, whether the individual here is entitled to military service credit without paying 5% of his highest fiscal year compensation multiplied by 2 to earn credit for his military service.

1943 PA 240, Sec. 18(1), supra, applied to '[a] member of the retirement system who, while an employee of the state, was or who shall be drafted or enlisted into active military or other armed service of the United States government during time of war, or a member who is drafted or enlisted into active armed service during time of peace. . . .' The word member means 'any state employee included in the membership of the retirement system, as provided for in Section 13 of this Act.' 1943 PA 240, Sec. 1(e), supra. Membership in the retirement system 'shall consist of state employees occupying permanent positions in the state civil service.' (Emphasis added.) 1943 PA 240, Sec. 13(1), supra. All state employees except those specifically excluded by law and those who are members or eligible to be members of other statutory retirement systems in this state 'shall become members of the retirement system.' 1943 PA 240, Sec. 13(2), supra.

The individual in question was indeed a state employee occupying a permanent position in the state civil service, although he was for that period of time in a 'provisional' status. He was not excluded thereby from membership in the State Employees Retirement System. It is undisputed that he was a member of the retirement system and made contributions into the system.

Further, 1943 PA 240, supra, imposes no requirement on a member of the retirement system to obtain a Civil Service approved leave of absence to earn military service credit. 1943 PA 240, Sec. 18(1), supra, only requires that the member 'while an employee of the state . . . be drafted or enlisted into active military or other armed service of the United States government during time of, or . . . drafted or enlisted into active armed services during time of peace.' That is precisely what occurred to the individual concerned in your opinion request, i.e., he was ordered to report for induction into the armed services 'while an employee of the state.'

It is my opinion, therefore, that the individual involved in your opinion request is entitled to retirement service credit under 1943 PA 240, Sec. 18(1), supra, for his time of service in the Army during the Korean Military Conflict. The fact that the Department of Conservation, pursuant to Civil Service rules, denied him a military leave of absence and compelled him to terminate state employment may not strip him of his entitlement for military service credit under 1943 PA 240, Sec. 18(1), supra.

Frank J. Kelley