Can a Georgia teacher who already gets a military pension for reserve service buy back the same active-duty time as TRS service credit?

Plain-English summary

A Teachers Retirement System (TRS) member who had served in the U.S. Army Reserve for 20 years was already drawing a military pension based on that reserve service. He wanted to use two years of his active-duty time inside that reserve career to also buy TRS service credit. Georgia law (O.C.G.A. § 47-3-83(c)) says active military service is not creditable in TRS if it has been or will be used to determine eligibility for "any other state or federal retirement program," with carve-outs only for Social Security and federal civil service.

Federal law (10 U.S.C. § 12736), which sits inside Chapter 1223 ("Retired Pay for Nonregular Service") of Title 10, says the opposite: no period of service used to compute a reservist's federal retired pay "may be excluded" from credit under any other law on account of civilian employment. The two statutes squarely conflict.

The Attorney General sided with the federal statute under the Supremacy Clause, following the Ninth Circuit's reasoning in Cantwell v. County of San Mateo (1980). The reason the federal statute prevails (and the limit of that ruling) is the same: § 12736 is in the chapter governing reserve retirement, not regular active-duty retirement. So the override only protects reservists, not career active-duty veterans drawing a regular military pension. The TRS member could buy the credit; a soldier with 20 years of straight active duty drawing a regular pension could not.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What was the exact conflict between state and federal law?
A: O.C.G.A. § 47-3-83(c) bars TRS credit for active military service that has been (or will be) used to determine eligibility for any other state or federal retirement program. 10 U.S.C. § 12736 says no service used in computing reservist retired pay can be excluded from credit under any other law on account of civilian employment. Reading both literally, Georgia would say "no double dip," and federal law would say "yes, you must allow it." The AG's task was to pick which statute prevails.

Q: Why does the federal statute win?
A: The AG followed the Ninth Circuit's reasoning in Cantwell v. County of San Mateo: the federal provision prevails over a conflicting state retirement-credit rule under the Supremacy Clause. The court also found Congress's war power sufficient against a Tenth Amendment challenge.

Q: Why does the AG limit the holding to reservists?
A: Because of where § 12736 sits in the U.S. Code. It is in Chapter 1223 of Title 10, titled "Retired Pay for Nonregular Service." The opinion notes (with citations to Brookins v. United States and Sims v. Sims) that "nonregular service" means reserve service. So § 12736's no-exclusion rule applies only to reservist pensions. A regular military retiree with 20 years of straight active duty draws under a different chapter of Title 10, and there is no parallel federal protection. For that retiree, O.C.G.A. § 47-3-83(c) still bars TRS credit.

Q: What is the practical mechanism?
A: The opinion says the member in the request may purchase TRS credit for qualifying active duty performed while serving in a reserve component. It does not set the price or describe the calculation for that purchase.

Q: Does this decision affect anyone other than the requesting member?
A: The opinion states a rule for TRS members who performed active duty while serving in a reserve component, even when that time also counted toward military retirement. A member should verify that the particular period meets those conditions.

Q: What if the active-duty time was performed before the member joined a reserve component?
A: The opinion expressly limits its conclusion to active duty performed while serving in a reserve component. It does not decide whether an earlier period of regular active duty can be credited merely because it later counted toward reserve retirement.

Background and statutory framework

The Teachers Retirement System of Georgia is governed by Title 47, Chapter 3 of the Georgia Code. Like most state retirement systems, TRS allows members to "establish" or buy back credit for prior public service, including military service, subject to anti-double-credit rules. The anti-double-credit rule in O.C.G.A. § 47-3-83(c) is a standard piece of state pension policy: the state does not want to subsidize a benefit that another retirement program already covers.

10 U.S.C. § 12736 says service used to determine reserve retired pay cannot be excluded from credit under another law on account of civilian employment, if the service is otherwise properly credited there. The opinion applies this provision to the described TRS member.

The Ninth Circuit in Cantwell worked through the Supremacy Clause and Tenth Amendment analysis. Cantwell found federal authority under the war power sufficient to override state pension rules. The 2008 Georgia opinion applied the Ninth Circuit's reasoning to the conflict between the cited Georgia and federal statutes.

The opinion's narrow scoping is what gives it staying power. By tying the holding to Chapter 1223 of Title 10, the AG avoided saying "all federal pensions trump state anti-double-credit rules," which would have been broader than the case before him. The AG found no other federal provision requiring double credit for regular active duty outside the reserve-component category addressed by § 12736.

Citations and references

Statutes:

• O.C.G.A. § 47-3-83(c), TRS anti-double-credit rule
• 10 U.S.C. § 12736, no-exclusion rule for reservist retired pay
• 10 U.S.C. § 12731, § 12732, reservist retirement eligibility and computation
• 10 U.S.C. § 10101: naming of Reserve Components

Cases:

• Cantwell v. County of San Mateo, 631 F.2d 631 (9th Cir. 1980), federal preemption of state anti-double-credit rule for reservists
• Almeida v. Ret. Bd. of the R.I. Employees Ret. Sys., 116 F. Supp. 2d 269 (D.R.I. 2000), same conclusion in Rhode Island
• Dailey v. Pub. Sch. Ret. Sys., 707 F. Supp. 1087 (E.D. Mo. 1989), Missouri public school retirement
• Arrington v. Florida, 1985 U.S. Dist. LEXIS 14131 (N.D. Fla. 1985), Florida
• Brookins v. United States, 75 Fed. Cl. 133 (2007), explanation of Chapter 1223 reservist retirement
• Sims v. Sims, 358 So. 2d 919 (La. 1978), "nonregular service" means reserve service

Source

• Landing page: https://law.georgia.gov/opinions/2008-3
• Original PDF: not linked from landing page

Original opinion text

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, [1] 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," [2] 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. 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. Prepared by: LARRY E. POPE, JR. Assistant Attorney General [1] 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). [2] "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).