Bluefield Daily Telegraph, Bluefield, WV

West Virginia State News

March 25, 2012

Capital Focus: W.Va., veterans battle over pension credits

CHARLESTON (AP) — From West Virginia’s last living Medal of Honor recipient to the former military chief of its National Guard, veterans are calling for a more fair and consistent process for boosting the pensions of state employees who have served in the armed forces.

But officials at the Consolidated Public Retirement Board defend their awarding of military service credits, and say they reflect one of the most generous policies of its kind in the country. The board also continues to study the issue through a special subcommittee and notes that the Legislature is reviewing the topic as well, spokeswoman Diane Holley-Brown told The Associated Press

In the meantime, however, the board keeps ending up in court over its service credit decisions. A series of veterans have alleged that they were denied pension increases they had earned through their service. Recently retired National Guard Adjutant General Allen Tackett is among them.

Another veteran sued in March, and three more have upcoming administrative appeals. At least one circuit judge has ruled the board wrongly shorted a veteran on benefits. One pending Kanawha Circuit Court appeal seeks to become a class-action case.

“Legislatively, they just can’t seem to figure out what to do with it. When you look at it politically, perhaps they’d rather have the court address it,” said Lonnie Simmons, a Charleston lawyer who represents several of the veterans. He added, “The elephant in the room is how much of this is going to cost. But that’s not what the board’s is supposed to be looking at. They’re supposed to follow the statutes.”

All of the state’s traditional pension plans offer credits for military service. But 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 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.

Most of the court cases involve the state’s main pension plan, the Public Employees Retirement System. The board estimates that around 1,100 of its enrollees retire each year, and between one-fourth and one-fifth of them receive some military service credits.

This plan enhances a retiree’s length of employment by up to five years, for active duty service during a draft or “a period of armed conflict.” The law lists an array of conflicts, dating back to the late 1800s. The most recent mentioned is the Persian Gulf War of the early 1990s.

But the law also refers to “any other period of armed conflict by the United States.” Veterans have repeatedly cited that language as they appeal the denial of service credits. They also argue that the board has shorted them credits for serving during the dozens of military operations that have happened since the 1973 end of the draft, in such places as Lebanon, Grenada, Panama, Somalia and Kosovo.

Complicating the policy dispute, the board decided shortly after the September 11, 2001, terrorist attacks to credit all service from that point forward — with no end date.

Simmons said there were many conflicts between 1973 and 2001.

“They just simply ignore all that, and that’s what all this litigation has been over,” he said.

Simmons helped Daniel Olthaus go to court in 2008 over his pension benefits. Olthaus sought the full five years after serving 20 years in the Navy as a nuclear engineer, from August 1983 until September 2003. The board credited him with 33 months, for service during the Persian Gulf War and for his two years following 9/11.

Kanawha Circuit Judge Tod Kaufman agreed with Olthaus in 2009, ordering the board to award him the full five years.

“The Legislature, through the clear and unambiguous language of this statute, never intended the military service credit awarded to be limited to the specific armed conflicts listed,” Kaufman said in his ruling.

Kaufman also wrote that many deserving veterans are denied military service credits to which they are entitled, but he limited his ruling to Olthaus’ case.

Several veterans have invoked the Olthaus case, including Keith Wood. The former Army intelligence officer and aviator served between 1978 and September 1992. Seeking five years’ credit, he has appealed after the board recognized just eight months of his service.

Represented by Simmons, Wood argued in a March 8 filing that his case should become a class-action to resolve these disputes over service credits.

Citing the pending court cases, Holley-Brown declined to comment on the specific arguments raised by the veterans.

She said members of the system have the right to appeal the board’s decisions, and the courts will determine the correct interpretation of the law.

“(The board) continues to make decisions based on policy and financial implications,” she said.

Before he stepped down last month as state Administration secretary, Robert Ferguson was a member of the board. Appointed by then-Gov. Joe Manchin in 2005, Ferguson was asked by Manchin, veterans’ groups and individual veterans to clear up the service credit issue, records show.

Ferguson served as a Marine Corps officer for more than 21 years, according to military discharge papers he provided to AP. Assigned to combat missions during the Gulf War, Ferguson was also on active duty during several of the operations invoked by the appealing veterans. Ferguson says he hasn’t applied for any service credit, and Simmons said Ferguson had disqualified himself whenever the board considered the cases that he’s aware of involving veteran-retirees.

Those crediting Ferguson for his efforts include the Veterans of Foreign Wars, the American Federation of Teachers-West Virginia and Hershel W. “Woody” Williams, the state’s last living Medal of Honor recipient.

Awarded the nation’s highest military honor for actions during World War II’s Battle of Iwo Jima, Williams wrote Ferguson in December 2008 in support of an evenhanded service credit policy.

“I would not be in favor of giving one veteran more credit than another because that person was in combat. Most of us did not have an option of where we would serve,” Williams’ letter said. He added, “A veteran is a veteran and the credit should be because he served (his) country in her time of need.”

Lawrence Messina covers the statehouse for The Associated Press.

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