Does a Baltimore City employee who left for military service after the draft ended in 1973 still get pension credit for that time under federal law?

Plain-English summary

Baltimore City's own lawyer asked the Attorney General whether a Maryland statute crediting military service toward a public employee's pension, Article 65, §88, applies only to service performed before the military draft ended in 1973, since the statute's text refers to the World War II-era Selective Training and Service Act "or any subsequent acts of a similar nature."

The Attorney General avoided that question entirely by finding that federal law settles the matter regardless of how the Maryland statute is read. The federal Veterans Reemployment Rights Act (VRRA) requires that a returning veteran be restored to a position of the same seniority, status, and pay the veteran would have had if continuously employed, and courts, including the U.S. Supreme Court, have held pension credit is a form of protected seniority under that law. Congress amended the VRRA in 1974 to make its protections mandatory for state and local governments, not just encouraged, and courts have held the VRRA preempts any state law that tries to restrict its guarantees. Because the VRRA applies to voluntary enlistees and reservists as well as draftees, and applies retroactively to service performed before its 1974 enactment, the opinion concluded Baltimore City employees are entitled to pension credit for military service whether that service was before or after the 1973 end of the draft, and whether it was compulsory or voluntary.

Currency note

This opinion was issued in 1990. 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. The Veterans Reemployment Rights Act discussed here was itself later replaced by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), and Article 65 has since been recodified.

Common questions

Does Maryland's own veterans pension law only cover service during an active military draft?
The opinion didn't decide that question about Article 65, §88, finding it unnecessary because federal law independently guarantees the pension credit regardless of the answer.

Does federal veterans reemployment law only protect people who were drafted?
No. The opinion found that although the VRRA's text uses the word "inducted," which might suggest only involuntary service, courts have consistently held its protections extend to enlistees and reservists as well as draftees.

Can a state law limit the pension credit a veteran gets under federal law?
No, according to this opinion. It found that once Congress made the VRRA's protections mandatory for state and local governments in 1974, states remain free to give veterans additional protections but cannot restrict what the federal law itself guarantees; several courts had struck down state laws that tried to cap or limit military service pension credit.

Does the federal law apply to military service that happened before the law was passed?
Yes. The opinion found the VRRA applies retroactively, so a veteran can claim credit for service performed even before the statute's 1974 enactment, citing a case awarding retirement credit for service back in 1956-58.

Is pension credit really part of "seniority" protected by this law?
Yes. The opinion relied on the U.S. Supreme Court's decision that a veteran "does not step back on the seniority escalator at the point he stepped off" but rather "at the precise point he would have occupied had he kept his position continuously," and found that a pension benefit that would have accrued with reasonable certainty, and that rewards service, counts as protected seniority.

Background and statutory framework

Article 65, §88, enacted in 1941, credits military service toward pension and retirement benefits for Maryland state and local government employees, including City of Baltimore employees, who leave to serve and return within specified conditions. Its text ties eligibility to the 1940 Selective Training and Service Act "or any subsequent acts of a similar nature," raising the question whether the modern Military Selective Service Act, which has not drafted anyone since 1973, still counts.

The opinion resolved the practical question without answering that interpretive one, relying instead on the federal Veterans Reemployment Rights Act (VRRA), originally enacted as §9 of the Selective Service Act of 1948 and recodified in 1974 as part of the Vietnam Era Veterans Readjustment Act. The VRRA requires a qualified returning veteran be restored to a position of the same seniority, status, and pay, "as having been on furlough or leave of absence" during service (38 U.S.C. §2021(a), (b)(1)). Courts have read the VRRA's coverage broadly to include voluntary enlistees and reservists, not just those inducted by draft (Dailey v. Public School Retirement System of Mo.; Schaller v. Board of Education of Elmwood Local School Dist.; Peel v. Florida Dep't of Transp.).

Critically, the 1974 amendments changed the VRRA from a hortatory "sense of Congress" recommendation for state and local governments into a mandatory requirement, reflecting Congress's intent, per the Senate Report, to fix the "considerabl[e]" variation in how states treated returning veterans. Because Congress intended to occupy the field, the opinion found state law limits on VRRA benefits are preempted (Peel v. Florida Dep't of Transp.; Von Allmen v. State of Conn. Teachers Retirement Bd.; Dailey v. Public School Retirement System of Mo.; Cronin v. Police Dep't of City of New York, all striking down state laws that tried to limit military-service pension credit). On whether pension credit itself counts as protected "seniority," the opinion relied on Alabama Power Co. v. Davis, where the Supreme Court held that a benefit which would have accrued with reasonable certainty from continuous employment, and which rewards service, is an incident of seniority protected by the VRRA, quoting Fishgold v. Sullivan Drydock and Repair Corp.'s description of a veteran stepping back onto the "seniority escalator" at the point he would have occupied absent his service. Finally, the opinion found the VRRA applies retroactively to service performed even before its 1974 enactment (Von Allmen v. State of Conn. Teachers Retirement Bd.; Witter v. Pennsylvania National Guard).

Citations and references

Statutes:

• Article 65, §88 of the Maryland Code (Maryland's own veterans pension-credit statute)
• 38 U.S.C. §2021 (Veterans Reemployment Rights Act: restoration to position, seniority, and pay)
• 38 U.S.C. §2024 (reemployment rights for reservists and National Guard members)

Cases:

• Alabama Power Co. v. Davis, 431 U.S. 581 (1977) (pension credit is a protected form of seniority under the VRRA)
• Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275 (1946) ("seniority escalator" principle for returning veterans)
• Monroe v. Standard Oil Co., 452 U.S. 549 (1981) (reservists and National Guardsmen are equally protected)
• Peel v. Florida Dep't of Transp., 443 F. Supp. 451 (N.D. Fla. 1977); Von Allmen v. State of Conn. Teachers Retirement Bd., 613 F.2d 356 (2d Cir. 1979) (state laws restricting VRRA benefits are preempted)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 392-399 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

RETIREMENT SYSTEMS

Military Service -- Federal Law Requires That Retirement Credit Be Granted to Employees Who Return to Government Jobs After Military Service

December 3, 1990

Neal M. Janey, Esquire
City Solicitor, Baltimore City Law Department

You have requested our opinion concerning the scope of Article 65, §88, which affords certain benefits to State and local government employees who leave their jobs to serve in the military and then seek reemployment. Specifically, you ask whether a provision of the statute that credits the period of military service for retirement purposes is applicable only to those Baltimore City employees who served in the military prior to the end of the active draft in 1973.

For the reasons stated below, we find that we need not construe Article 65, §88 in order to answer your question. Whatever the meaning to be ascribed to the Maryland statute, a provision of federal law now requires that pension or retirement system credit be given to Baltimore City employees who returned to their employment after military service, either during the draft or following its termination.

I

Maryland Law

Article 65, §88, enacted as Chapter 676 of the Laws of Maryland 1941, sets out the rights of returning servicemen in any pension or retirement fund or system under State law or the law of a political subdivision, including the City of Baltimore. More specifically, if military service is of the type described by the statute, a member of a pension or retirement system can take time away from the member's job without losing the accrual of that time toward pension and retirement benefits.[1]

Your inquiry focuses on the following language:

    The rights and status of any person inducted into the land or naval forces of the United States for training and service pursuant to the act of Congress known as the Selective Training and Service Act of 1940, or any subsequent acts of a similar nature, and any member of any reserve component of the land or naval forces of the United States on active duty or service within that period or ordered or assigned to active duty or service within that period, as well as any person who, within that period, enlists in the armed forces of the United States, and who may be absent in military service shall be as follows in any pension or retirement fund or system ....

Article 65, §88 (emphasis added).

The Selective Training and Service Act of 1940 imposed a draft; present law, the Military Selective Service Act, does not and has not since 1973.[2] Hence, you suggest that the present law is not a "subsequent ac[t] of a similar nature."

If this question about the proper construction of Maryland law were dispositive, we would analyze the present structure of the selective service system and attempt to discern whether it is close enough to the 1940 Act to be regarded as "similar."[3] But it is unnecessary for us to do so, because a federal law on veterans' reemployment rights guarantees the pension service credit at issue.

II

Federal Law

A. History

The Selective Training and Service Act of 1940 and its succeeding reenactments provided certain reemployment rights for veterans. Specifically, §9 of the Selective Service Act of 1948 provided, subject to certain conditions, for the reemployment, protection from discharge without cause, and protection of benefits of qualified returning servicemen. Former 50 U.S.C. App. 459(b) through (h). In 1974, the provisions of §9 were recodified without substantial change in the Veterans Reemployment Rights Act (the "VRRA").[4]

The reemployment rights in the VRRA apply to "any person inducted into the Armed Forces ...,"[5] Despite the use of the term "inducted," which might suggest involuntary service, the scope of the VRRA is not limited to involuntary inductees. Its benefits apply as well to enlistees and reservists. Dailey v. Public School Retirement System of Mo., 707 F. Supp. 1087 (E.D. Mo. 1989); Schaller v. Board of Education of Elmwood Local School Dist., 449 F. Supp. 30 (N.D. Ohio 1978); Peel v. Florida Dep't of Transp., 443 F. Supp. 451 (N.D. Fla. 1977); Litwicki v. P.P.G. Industries, Inc., 386 F. Supp. 296 (W.D. Pa. 1974), aff'd 505 F.2d 189 (3rd Cir. 1974).

The VRRA guarantees that a returning veteran, "if still qualified to perform the duties of [the former] position, [shall] be restored by [the] employer ... to such position or to a position of like seniority, status, and pay." 38 U.S.C. §2021(a)(A)(i) and (B)(i). The VRRA provides that returning servicemen "shall be considered as having been on furlough or leave of absence during this period of training and service in the armed forces [and] shall be so restored without loss of seniority ...." 38 U.S.C. §2021(b)(1). In describing the status of reemployed servicemen, the VRRA states the following "sense of the Congress":

    [A]ny person who is restored to or employed in a position in accordance with [the VRRA] should be so restored or reemployed in such manner as to give such person such status in the person's employment as the person would have enjoyed if such person had continued in such employment continuously from the time of such person's entering the Armed Forces until the time of such person's restoration to such employment, or reemployment.

38 U.S.C. §2021(b)(2).

Furthermore, the VRRA provides that persons subject to the act's protection "shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve Component of the Armed Forces." 38 U.S.C. §2021(b)(3). Both Ready Reservists and National Guardsmen are equally entitled to the protections of the VRRA. See Monroe v. Standard Oil Co., 452 U.S. 549 (1981).[6]

Finally, the VRRA applies retroactively. That is, if the VRRA grants a benefit linked to a period of military service, a veteran may claim the benefit even if the period of service occurred before the VRRA's enactment in 1974. See Von Allmen v. State of Conn. Teachers Retirement Bd., 613 F.2d 356, 359-60 (2d Cir. 1979) (veteran entitled to retirement credit for military service in 1956-58); Witter v. Pennsylvania National Guard, 462 F. Supp. 299 (E.D. Pa. 1978) (VRRA applicable to state employee who left job to volunteer in Vietnam and who later sought reemployment even though both events occurred before adoption of the statute).

B. Preemptive Effect

Prior to 1974, the VRRA encouraged, but did not require, state and local governments to afford these rights to their employees.[7] In the 1974 amendments, however, Congress provided that:

    (B) If such position was in the employ of a State, or political subdivision thereof, or a private employer, such person shall.

    (1) If still qualified to perform the duties of such position, be restored by such employer or the employer's successor in interest to such position or to a position of like seniority, status, and pay .... unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so

38 U.S.C. §2021(a) (emphasis added).[8]

The 1974 amendments thus expressed Congress' specific intent to insure the uniform application of reemployment rights among the states.[9] Whether the Maryland statute conflicts with federal law is irrelevant, because Congress has demonstrated its intent to occupy the field. Quite simply, the VRRA controls. Of course, states are free to afford protections for state or local employees in addition to those provided by the VRRA, but "they are not free to impose restrictions on the reemployment rights granted by the VRR Act." Peel v. Florida Dep't of Transp., 443 F. Supp. 451, 455 (N.D. Fla. 1977). See also Von Allmen v. State of Conn. Teachers Ret. Bd., 613 F.2d 356 (2d Cir. 1979) (state statute limiting credit to "period of service in times of war" preempted); Dailey v. Public School Ret. System of Mo., 707 F. Supp. 1087 (E.D. Mo. 1989) (state statute limiting period of reserve service for which pension benefit allowable preempted); Cronin v. Police Dep't of City of New York, 675 F. Supp. 847 (S.D.N.Y. 1987) (state statute limiting pension credit to six months for each active service period in air national guard was in conflict with federal law and void).

C. Applicability to Pensions

In Alabama Power Co. v. Davis, 431 U.S. 581 (1977), the Supreme Court determined that pension credits are a form of seniority protected by the VRRA. In that case, Davis had been employed by Alabama Power Company from 1936 through 1943, at which time he left to enter the military. Davis served for 30 months, then resumed his position with Alabama Power, where he worked until he retired in 1971. Alabama Power then denied Davis credit under the company pension plan for the 30 months he had served in the military.

Explaining the reemployment rights of veterans, Justice Marshall wrote that the veteran "'does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.'" 431 U.S. at 584 (quoting Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 284-85 (1946)). Examining the nature of a pension benefit, the Court determined that if a benefit would have accrued with reasonable certainty had the veteran been continuously employed, and if it is in the nature of a reward for service, the benefit is an incident of seniority that is protected under the VRRA. See also Von Allmen v. State of Conn. Teachers Retirement Bd., 613 F.2d 356 (2d Cir. 1979); Smith v. Industrial Employers and Distributors Assoc., 546 F.2d 314 (9th Cir. 1976); Beckley v. Lipe-Rollway Corp., 448 F. Supp. 563 (N.D. N.Y. 1978).

The Supreme Court characterized the VRRA as evidence of "'Congress' desire to minimize the disruption in individual lives resulting from the national need for military personnel.'" To effectuate that purpose, the VRRA is "'to be liberally construed for the benefit of those who left private life to serve their country ....'" 431 U.S. at 584 (quoting Fishgold, 328 U.S. at 285). Accord, Dyer v. Hinky Dinky Inc., 710 F.2d 1348 (8th Cir. 1983); Schaller v. Board of Ed. of Elmwood Local School Dist., 449 F. Supp. 30 (N.D. Ohio 1978); Witter v. Pennsylvania National Guard, 462 F. Supp. 299 (E.D. Pa. 1978).[10]

III

Conclusion

In summary, it is our opinion that under the federal Veterans Reemployment Rights Act, qualified Baltimore City employees are entitled to military service credit for voluntary or involuntary service, whether the service was performed before or after the termination of the draft.

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          Mary O. Lunden
                                          Staff Attorney

Jack Schwartz
Chief Counsel
Opinions & Advice

[1] The pertinent language states that if a member "be again actively employed ... in any position for which membership in any pension or retirement fund or system under the laws of the State of Maryland, or of the City of Baltimore or any other political subdivision of the State ... is made a condition of employment within one year from the time he is relieved from active duty, he shall receive credit as membership service for the period of his absence ...."

[2] The Selective Training and Service Act of 1940 was later reenacted as the Selective Service Act of 1948, then the Universal Military Training and Service Act of 1951 and the Military Selective Service Act of 1967. Presently, the Military Selective Service Act is codified at 50 U.S.C. App. §450 et seq. On July 1, 1973, the President's power to induct men into the armed forces expired. 50 U.S.C. App. §467.

[3] Despite the end of the draft, the selective service system has been maintained as an active standby organization. Thus, the present Military Selective Service Act, an outgrowth of the original Selective Service Act of 1940, is still operational. Indeed, the regulations governing registration for military service are promulgated pursuant to that act. See 32 C.F.R. 1600 et seq.

[4] The VRRA was one chapter of the comprehensive legislation known as the Vietnam Era Veterans Readjustment Act of 1974, Pub. L. No. 93-508, 88 Stat. 1578.

[5] Under 38 U.S.C. §101(20), the "Armed Forces" comprise "the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof." See also 38 U.S.C. §101(27) (definition of "reserve components"). Article 65, §88 has the same scope. See Opinion No. 86-023 (April 2, 1986) (unpublished).

[6] Additionally, 38 U.S.C. §2024 affords specific reemployment rights to reservists and national guardsmen, including all rights under §2021 for reservists or guardsmen called to active duty by the President.

[7] Former 50 U.S.C. App. §459(c) provided in relevant part: "If such position was in the employ of any State or political subdivision thereof, it is hereby declared to be the sense of the Congress that such person should: (i) If still qualified to perform the duties of such position, be restored to such position or to a position of like seniority, status, and pay ..." (Emphasis added.)

[8] The "changed circumstances" exception has been applied very narrowly. See Green v. Oktibbeha County Hospital, 526 F. Supp. 49 (N.D. Miss. 1981).

[9] As the Senate Report explained: "Although a number of States have enacted legislation providing reemployment rights to veterans, the coverage, the rights provided, and the availability of enforcement machinery all vary considerably from state to state. Also, some state and local jurisdictions have demonstrated a reluctance, and even an unwillingness, to reemploy the veteran. Or if they do, they seem unwilling to grant them seniority or other benefits which would have accrued to them had they not served their country in the military.... For this reason, the bill ... would amend veterans' reemployment rights law to extend coverage to State governments and their political subdivisions." S. Rep. No. 907, 93d Cong. 1st Sess. 109-10 (1974).

[10] Additionally, other courts have directed employers to credit the period of military service toward the vesting of the employee's rights in a pension plan. See Cronin v. Police Dep't of City of N.Y., 675 F. Supp. 847 (S.D.N.Y. 1987); and Beckley v. Lipe-Rollway Corp., 448 F. Supp. 563 (N.D.N.Y. 1978).