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Guard training counts toward state pensions, judge rules

CHARLESTON, W.Va. -- West Virginia public employees who also serve in the National Guard can count mandatory training time during armed conflicts toward their state pensions, a judge ruled Tuesday in a case brought by the guard's longtime chief.

Kanawha Circuit Judge Carrie Webster concluded that state policy that credits employees for military service applies to the federally required training that retired Adjutant General Allen Tackett received during his 47-year career.

Webster agreed with Tackett, who cited how employees receive such service credits for the same sort of mandatory training in the U.S. Army Reserve.

"To hold otherwise results in an arbitrary and capricious outcome," Tuesday's order said.

The ruling reverses the decision of the Consolidated Public Retirement Board, which had denied Tackett's service credit request. Its options include appealing to the state Supreme Court.

"[The board] is currently reviewing the order and until a decision is made regarding a course of action to take within the allotted 30 days, it is still considered in litigation," said Diane Holley-Brown, a board spokeswoman.

If upheld, the judge's ruling would mean a higher benefit for Tackett. The credits can add up to five years to an employee's length of service for the purpose of calculating their benefits.

Ray Shepard, a lawyer for Tackett, said the board still needs to calculate the pension credits from this training-related service. Welcoming the ruling, Shepard said it should help similarly situated employees.

"I think the board recognizes that their position results in discrimination against National Guard members," Shepard said.

Tackett began his National Guard service in 1963, and retired in 2010. He became adjutant general in 1995, and so he joined the Public Employees Retirement System that year.

Tackett's case is one of several pitting employee-veterans against the retirement board over the awarding of service credit. The state has several traditional pension plans for different categories of public employees, and each offers credits for military service. They differ in key ways. As a recruiting tool, for instance, the State Police pensions add five years toward the retirement of a trooper who's a veteran, in exchange for at least 20 years with the department. The Teachers Retirement System offers up to 10 years' worth of credits -- but only to enrollees who served during the draft, which ended in 1973.

Tackett's legal challenge arises from the state's main pension plan, the Public Employees Retirement System. The board estimates that about 1,100 of its enrollees retire each year, and between one-fourth and one-fifth of them receive some military service credits.

Shepard said that if the state continues to offer training credits for U.S. Army Reserve service, it has all the more reason to provide it for Guard service.

"Reservists don't get called out for flood duty. National Guard members do," Shepard noted.

The Legislature has been studying the military service credit policies in the wake of appeals filed by Tackett and other retiring employees regarding their pension benefits. Lawmakers are expected to revisit those policies during the 60-day regular session that begins Feb. 13.


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