Attorney General: William A. Cugno, Lieutenant General, The Adjutant General, Connecticut Military Department, and The Honorable Nancy Wyman, Comptroller, 2005-004 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

February 3, 2005

William A. Cugno
Lieutenant General
The Adjutant General
Connecticut Military Department
360 Broad Street
Hartford, Connecticut 06105-3795

The Honorable Nancy Wyman
Comptroller
55 Elm Street
Hartford, Connecticut 06106-1775

Dear General Gugno and Ms. Wyman:

You have each separately requested the opinion of the Attorney General concerning the eligibility of Connecticut state employees to receive retirement credit under Connecticut General Statutes 5-192i(j) and 5-192j(d)1 for periods of full-time National Guard service in the armed forces of the United States. Such service may occur both while an individual is employed by the State of Connecticut, during periods of extended military leave, and, if the service occurred in time of war as defined by Connecticut General Statutes 27-103, or qualifies as national emergency service, as defined by law, during periods of time which may have preceded an individual's state employment. Because both requests are resolved by reference to the same statutory scheme, they are best answered together. Accordingly, for the reasons more fully set forth below, it is our opinion that periods spent as a full-time member of the National Guard, while in the armed forces of the United States under orders issued pursuant to either Title 10 or Title 32 of the United States Code, qualify as "vesting service" under Connecticut General Statutes 5-192i(j) and as "credited service" under Connecticut General Statutes 5-192j(d), entitling Connecticut state employees in Tier II to receive retirement credit for such service.

By way of background, members of the National Guard can be activated to full-time status in the armed forces of the United States under either Title 10 (entitled "Armed Forces") or Title 32 (entitled "National Guard") of the United States Code. Generally speaking, National Guard members activated under Title 10 can be assigned to posts either within the United States or overseas. National Guard members on full-time status under Title 32 in the armed forces of the United States are typically assigned to posts within the United States in support of a wide variety of military missions. Regardless, National Guard members ordered to full-time military duty under either Title 10 or Title 32 are under the operational command and control of the armed forces of the United States, and are not on state active duty under the command or control of the Connecticut state government. Currently, retirement credit is granted only for periods of qualifying military service in which state employees served on active duty in the armed forces of the United States pursuant to Title 10 of the United States Code. Retirement credit is not currently granted for periods of full-time military service in the armed forces of the United States performed under the authority of Title 32 of the United States Code.

You have asked whether the denial of retirement credit to members of the National Guard serving in the armed forces of the United States under Title 32 of the United States Code is consistent with the requirements of the Connecticut General Statutes, and with the Uniformed Services Employment and Reemployment Rights Act (USERRA), Title 38 U.S.C. 4301-4333. Our review of the applicable statutes, both state and federal, leads us to the conclusion that denial of retirement credit to National Guard members under the stated circumstances is inconsistent with state statutes and federal law.

Connecticut General Statutes 5-192i(a) provides, with regard to the retirement of state employees in Tier II, that "vesting service is all service with the state commencing on the employee's employment commencement date or reemployment commencement date and ending on his severance from service date." Subsection (b) of this statute clarifies the definition of "vesting service" by providing that "[i]f an employee is absent from the service of the state because of service in the armed forces of the United States and if he returns to the service of the state within ninety days after becoming entitled to release from active duty in the armed forces or after hospitalization continuing after discharge for a period of not more than one year, such absence shall not count as a break in service. The period of any such absence shall be considered as vesting service." Subsection (j) of this statute further clarifies the definition of "vesting service" by providing that "vesting service shall also include service in time of war, as defined in section 27-103 and up to three years of national emergency service, as defined by law, for normal, hazardous duty and early retirements."

Connecticut General Statutes  5-192j(a) provides that "[a]ll vesting service rendered on or after October 1, 1982, by a member of the tier II plan shall be credited service under the plan." Subsection (b) of  5-192j goes on to clarify the meaning of "credited service" by providing that "[c]redited service shall include any period of service in the armed forces of the United States which is included in a member's vesting service pursuant to subsection (b) of  5-192i, except that no credit shall be given hereunder for any military service beyond a total period of the employee's compulsory service, if any, plus three years." Finally, subsection (d) of 5-192j provides, that "credited service shall also include war service, as defined in section 27-103, and up to three years of national emergency service, as defined by law, for normal, hazardous duty and early retirements."

Section 5-192i refers to "service in the armed forces of the United States," but does not itself further define the meaning of the phrase "armed forces of the United States." Section 5-192j also makes use of the phrase "armed forces of the United States," but does not define the term. Connecticut General Statutes  27-103(a)(1) refers to "Armed Forces" and defines that term as "the United States Army, Navy, Marine Corps, Coast Guard and Air Force." Connecticut General Statutes 27-103(a)(3) goes on to define "service in time of war" as follows:

"service in time of war" means service of ninety or more days except, if the war, campaign or other operation lasted less than ninety days, "service in time of war" means service for the entire duration of the war, campaign or other operation, unless separated from service earlier because of a service-connected disability rated by the Veterans' Administration, during a "period of war", as defined in 38 USC 101, as amended, except that the "Vietnam Era" means the period beginning on February 28, 1961, and ending on July 1, 1975, in all cases; and "period of war" shall include service while engaged in combat or a combat support role in Lebanon, July 1, 1958, to November 1, 1958, or September 29, 1982, to March 30, 1984; Grenada, October 25, 1983, to December 15, 1983; Operation Earnest Will, involving the escort of Kuwaiti oil tankers flying the United States flag in the Persian Gulf, February 1, 1987, to July 23, 1987; and Panama, December 20, 1989, to January 31, 1990, and shall include service during such periods with the armed forces of any government associated with the United States.

Section 27-103, in defining "service in time of war," refers to military service in the "Armed Forces" of the United States.

The questions which have been raised, therefore, require a more complete understanding of the meaning of the phrases "armed forces of the United States" as used in 5-192i, 5-192j, and "Armed Forces" as set forth in 27-103. In this regard, Public Act 03-154 provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." In construing a state statute's relationship to other statutes, we often look to federal law, in recognition that, in many instances, our laws incorporate federal principles. See Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 295, 823 A.2d 1184 (2003); State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989). Federal law is a particularly appropriate guide in this instance because the statutes refer to members of the federal "armed forces." With this in mind, the meaning of the phrases "armed forces of the United States" and "Armed Forces" as those terms are used in 5-192i, 5-192j and 27-103 can be ascertained by considering the meaning of similar terms used in federal legislation relating to the armed forces of the United States.

Title 10 U.S.C. 101(a)(4) defines the term "armed forces" as meaning "the Army, Navy, Air Force, Marine Corps, and Coast Guard." Further, Title 10 USC 101(c)(3) similarly defines the term "Army National Guard of the United States" as meaning "the reserve component of the Army all of whose members are members of the Army National Guard." Finally, Title 10 U.S.C.  3062(c) provides that the "Army" consists of "the Regular Army, the Army National Guard of the United States, the Army National Guard while in the service of the United States, and the Army Reserve, and all persons appointed or enlisted in, or conscripted into, the Army without component." Title 32 defines the term "armed forces" in the same manner as does Title 10. 32 U.S.C. 101(2).

The presumption is that the legislature, in adopting an act, does so in view of existing relevant enactments and with the intention that the act be read with them so as to make one consistent body of law. Wilson v. West Haven, 142 Conn. 646, 654, 116 A.2d 420 (1955). These federal laws make it clear that National Guard members, while in the service of the United States, are included within the definition of the "armed forces of the United States" as used in Conn. Gen. Stat. 5-192i and 5-192j and within the meaning of the phrase "Armed Forces" in 27-103. As such, there is no statutory support for the existing distinction in the award of retirement credit based upon whether the employee executed military orders under Title 10 as opposed to Title 32 of the United States Code.

The current distinction in the award of retirement credit between National Guard members activated under Title 10 and Title 32 must also be examined in light of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Title 38 U.S.C. 4301 et seq. The Uniformed Services Employment and Reemployment Rights Act (USERRA), Title 38 U.S.C. 4301 et seq., states that its purpose is to "(1) encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service; (2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and (3) to prohibit discrimination against persons because of their service in the uniformed services." Title 38 U.S.C. 4301. USERRA further makes clear that it "supersedes any State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit." Title 38 U.S.C.  4302. USERRA goes on to provide the following definitions relevant to this opinion:

(2) The term 'benefit', 'benefit of employment', or 'rights and benefits' means any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.

. . . .

(4)(A) Except as provided in subparagraphs (B) and (C), the term 'employer' means any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities, including--

. . . .

(iii) a State;

. . . .

(13) The term 'service in the uniformed services' means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes: active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the employment for the purpose of performing funeral honors duty as authorized by section 12503 of title 10 or section 115 of title 32.

. . . .

(16) The term 'uniformed services' means the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency.

Title 38 U.S.C. 4303. Finally, in Title 38 U.S.C. 4311(a), USERRA provides that

A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

USERRA precludes the State of Connecticut from providing a retirement benefit to members of the armed forces, including members of the National Guard, called to duty under Title 10 of the United States Code, while discriminating against others by withholding that same benefit from full-time members of the National Guard who were also called to service in the armed forces of the United States pursuant to Title 32 of the United States Code. Therefore, when read as a whole, in conjunction with the relevant federal statutes, 5-192i, 5-192j and 27-103 are properly construed so as to include within their scope National Guard members who perform full-time military service in the armed forces of the United States executing orders under either Title 10 or Title 32 of the United States Code.

In conclusion, it is our opinion that the relevant language of Connecticut General Statutes 5-192i, 5-192j and 27-103 must be interpreted so as to apply equally to all members of the "armed forces of the United States," including those who performed full-time, military service in the National Guard while in the armed forces of the United States under either Title 10 or Title 32 of the United States Code.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


Stephen R. Sarnoski
Assistant Attorney General

RB/ss


1 We note that sections 5-192i(j) and 5-192j(d) apply to only those employees who are in Tier II of the State Employees' Retirement System. The retirement benefits of state employees in Tier I are governed by other state statutes, including Conn. Gen. Stat. 5-180. Retirement benefits for state employees in Tier IIA are set forth in provisions of the state collective bargaining agreement SEBAC V. However, since the retirement credit provisions applicable to military service for Tier I and Tier IIA employees are substantially similar to those set forth in Sections 5-192i(j) and 5-192j(d), the conclusions contained in this opinion also apply to Tier I and Tier IIA employees.


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