Official Opinion 2008-3
You have asked whether a member of the Teachers Retirement System (“TRS”) may establish service credit within the System through his or her service in the U.S. military reserves, even though that same service time has also been used to establish service credit for a military retirement. Notwithstanding certain provisions of state law, the answer to your question is yes and under certain circumstances a member may be able to use the same U.S. military service time to establish credit under both the state and federal retirement systems.
You have described the facts underlying your request as the following: A member of TRS is currently receiving a military pension based on twenty years’ service with the United States Army Reserve. The member would like to establish two years of active duty military service with TRS, which were also used in calculating the member’s military pension. Your question regarding the appropriateness of providing such service credits arises because of conflicting provisions under state and federal law as to how this service time may be credited.
Initially, you have asked “whether . . . a TRS member can establish service credit for active duty military service rendered while serving as a Reservist when that same service underlies his or her military pension.”
The applicable state and federal statutes are O.C.G.A. § 47‑3‑83(c) and § 12736 of the Retired Pay for Nonregular Service Chapter,Chapter 1223, of Title 10 of the United States Code.
In pertinent part, O.C.G.A. § 47‑3‑83(c) states:
No active military service in the armed forces of the United States shall be deemed as creditable under the retirement system if such service has [been] or will be used in the determination of any member’s eligibility for retirement benefits or allowances from any other state or federal retirement program, excluding social security and the United States civil service system.
O.C.G.A. § 47‑3‑83(c). At the same time, 10 U.S.C. § 12736 states:
No period of service included wholly or partly in determining a person’s right to, or the amount of, retired pay under this chapter may be excluded in determining his eligibility for any annuity, pension, or old-age benefit, under any other law, on account of civilian employment by the United States or otherwise, or in determining the amount payable under that law, if that service is otherwise properly credited under it.
Therefore, it appears that these two statutes are in conflict as to whether a reservist’s military duty may be used to establish credit for both a state and federal retirement.
While there is no case law that specifically addresses this conflict under Georgia law, the United States Court of Appeals for the Ninth Circuit has addressed a situation similar to that which you raise in relation to a California retirement statute. In Cantwell v. County of San Mateo, 631 F.2d 631 (9th Cir. 1980), the Ninth Circuit held that a county employee was entitled to receive credit in the county retirement system for his prior active service despite a California statute which provided that credit for prior public service was to be allowed only if the employee was not entitled to receive a pension from the public agency for which he previously worked. Id. at 635‑37. As in your member’s case, Cantwell had both active duty and reserve service and was entitled to a federal pension under 10 U.S.C. § 12736 (formerly 10 U.S.C. § 1336). Id. at 633‑34.
The Ninth Circuit held that the federal legislation prevailed over the conflicting state legislation based on the Supremacy Clause of the United States Constitution, and noted that a contrary ruling would frustrate the congressional policy of encouraging and rewarding military service. Id. at 635‑36. The Ninth Circuit also addressed the issue of whether 10 U.S.C. § 12736 constituted an infringement of the state’s rights under the Tenth Amendment, and the court concluded that congressional authority under its war power is sufficient to sustain § 12736 against a Tenth Amendment challenge. Id. at 636‑37.
The specific facts you have presented here, when viewed in light of the Ninth Circuit’s reasoning in Cantwell, lead me to conclude that this analysis would also be applicable in resolving the conflict between O.C.G.A. § 47-3-83(c) and the provisions of § 12736 outlined above. As such, it is my opinion that your member should be permitted to purchase credit for his active duty service. See Cantwell, 631 F.2d at 635-37; see also Almeida v. Ret. Bd. of the R.I. Employees. Ret. Sys., 116 F. Supp. 2d 269 (D.R.I. 2000); Dailey v. Pub. Sch. Ret. Sys., 707 F. Supp. 1087 (E.D. Mo. 1989); Arrington v. Florida, 1985 U.S. Dist. LEXIS 14131 (N.D. Fla. 1985).
Anticipating the possibility of this conclusion, you have also asked:
In the event that such reserve service can be creditable service under TRS, is the same true for all active duty military service, or only service rendered while serving in a reserve component?
Only members who performed active duty military service while serving in a reserve component may receive credit for their active duty military service. As noted above, § 12736 is in Chapter 1223, entitled “Retired Pay for Nonregular Service,”of Title 10 of the United States Code, and § 12736 limits its applicability to this Chapter. 10 U.S.C. § 12736. Accordingly, the provisions of § 12736 are limited to individuals who are receiving military pensions due to their active duty service performed while serving in a reserve component[D1] . There appear to be no other provisions requiring members to be given credit for such service under both state and federal retirement systems.
Therefore, it is my official opinion that members of TRS who performed active duty military service while serving in a reserve component may establish service credit within the System, and they may do so even though that service time has also been used to establish service credit for a military retirement. [D2]
LARRY E. POPE, JR.
Assistant Attorney General
It is apparent that this Chapter incorporates service in reserve components and the National Guard. See 10 U.S.C. §§ 12731, 12732. Section 12732, which outlines the method for computing an individual’s years of service for determining eligibility for retirement pay under § 12731, states that individuals “in a reserve component of an armed force” may receive 15 points a year towards retirement. 10 U.S.C. § 12732(a)(2)(C)(i). Further, “service in the National Guard shall be treated as if it were service in a reserve component” if two requirements are satisfied. 10 U.S.C. § 12732(a)(2); see also Brookins v. United States, 75 Fed. Cl. 133, 135 n.1 (2007) (noting that “chapter 1223 is titled, ‘Retired Pay for Non-Regular Service,’ which provides for the retirement of reservists . . . .”) (citing 10 U.S.C. §§ 12731, 12732).
“Nonregular service” means reserve service. See Sims v. Sims, 358 So. 2d 919, 926 (La. 1978) (“nonregular service, which we understand to be for reserve rather than regular military service”); see also 10 U.S.C. § 10101 (naming U.S. Army Reserve as a reserve component).