Burris v. STATE EMPLOYES'RETIREMENT BD.

• Decision Date: 03 February 2000
• Citation: 745 A.2d 704
• Parties: Betty L. BURRIS, Petitioner, v. STATE EMPLOYES' RETIREMENT BOARD, Respondent.
• Court: Pennsylvania Commonwealth Court

745 A.2d 704

Betty L. BURRIS, Petitioner, v. STATE EMPLOYES' RETIREMENT BOARD, Respondent.

Commonwealth Court of Pennsylvania.

Argued December 6, 1999.

Decided February 3, 2000.

Wendy Dullea Bowie, Harrisburg, for petitioner.

Nicholas Joseph Marcucci, Harrisburg, for respondent.

Before SMITH, J., FRIEDMAN, J., and MIRARCHI, Jr., Senior Judge.

MIRARCHI, Jr., Senior Judge.

Betty L. Burris (Burris) appeals from an order of the State Employes' Retirement Board (Board) denying her request to purchase nonstate service credit for her service provided at military hospitals in the United States and abroad as an employee of the American National Red Cross (Red Cross) from May 1970 to May 1975 during the Vietnam War era. The issue presented to this Court is whether the service provided by Burris as a civilian employee of the Red Cross constitutes non-intervening "active military service" under Section 5304(c)(2) of the State Employees' Retirement Code (Retirement Code), as amended, 71 Pa.C.S. § 5304(c)(2), for the purpose of determining her eligibility to purchase nonstate service credit. We affirm.

Burris became a member of the State Employes' Retirement System (SERS) on January 23, 1981 when she was hired by the Department of Public Welfare. On May 17, 1996, Burris filed a Request for Cost Statement with SERS, seeking to purchase nonstate service credit for the period of her employment with the Red Cross from May 1970 to June 1978 pursuant to Section 5304(c)(2) of the Retirement Code, which allows SERS members to purchase creditable nonstate service for non-intervening "military service." After the SERS' Appeals Committee denied her request, Burris appealed to the Board limiting her request to the period of the Vietnam conflict from May 4, 1970 to May 7, 1975. On appeal, the hearing examiner held a hearing, at which Burris testified in support of her request. The relevant facts found by the hearing examiner are undisputed.

Burris was employed by the Red Cross, a civilian organization, in its Service in Military Hospitals Division since May 1970 and assigned to various military hospitals in the United States and abroad to care for military personnel. The Red Cross provides cooperation and assistance to the military pursuant to 10 U.S.C. § 2602(a), which provides that "[w]henever the President finds it necessary, he may accept the cooperation and assistance of the American National Red Cross, and employ it under the armed forces under the regulations to be prescribed by the Secretary of Defense." To facilitate the cooperation and assistance of the Red Cross, the United States government may provide employees of the Red Cross assigned to the military installations with transportation, meals, quarters, office space, warehousing, wharfage, means of communication, and free passports. 10 U.S.C. § 2602(b)-(d). When assigned to the military installations, the employees of the Red Cross are subject to various military regulations, such as uniform requirements, security clearance, and, in time of war, a trial by court-martial under the Uniform Code of Military Justice. Department of Defense Directive 1330.5 § V.C.3 and 4b.

In 1971, the Red Cross assigned Burris to overseas duties in Vietnam. Before the assignment, Burris received military clearance, underwent a physical examination conducted by the military and was immunized by the military against various diseases. She traveled to Vietnam via military transport. She was first assigned to the 95th Evac Hospital in Da Nang and then to the 3rd Army Field Hospital in Saigon. Burris was required to wear a uniform issued by the Red Cross resembling a military uniform. During her stay in Vietnam, Burris received additional military clothing and equipment, such as a helmet, poncho, dog tags and military fatigues. She lived in military housing, had meals in the military mess, drove military vehicles, and endured some hardships of military life. Burris' identification card issued by the military indicated that she was a civilian noncombatant. Although her pay was issued in military scrip while she was abroad, she was paid by the Red Cross at its salary scales, not by the military.

After spending one year in Vietnam, Burris was transferred to the Weisbaden U.S. Air Force Hospital in Germany and then to the Philadelphia Naval Regional Medical Center in Philadelphia, Pennsylvania. Her employment contract with the Red Cross was at will, and she was not required to work for the Red Cross for a certain minimum term. She resigned from her position with the Red Cross on June 9, 1978. She did not receive a discharge form (DD-214 Form) from the military.

The hearing examiner found that while Burris provided valuable service to the military, she was never inducted into or discharged from the armed forces of the United States and that her service, therefore, does not constitute non-intervening "military service" under Section 5304(c)(2) of the Retirement Code and the regulations thereunder. Concluding that Burris is ineligible to purchase nonstate service credit, the hearing examiner recommended that her request be denied. The Board subsequently denied Burris' exceptions, adopted the hearing examiner's decision and denied Burris' request.¹ Burris' appeal to this Court followed.

It is well established that the retirement system is a creature of the Legislature and that its members therefore have only those rights created by the retirement benefit statute. Krill v. Public School Employes' Retirement Board, 713 A.2d 132 (Pa.Cmwlth.1998); Cosgrove v. State Employes' Retirement Board, 665 A.2d 870 (Pa.Cmwlth.1995). The main purpose of the Retirement Code is to provide a state employee with retirement benefits for his or her "state service." Only under limited circumstances, SERS members are permitted to purchase "creditable nonstate service," i.e., "[s]ervice other than service as a State employee for which an active member may obtain credit." Section 5102 of the Retirement Code, as amended, 71 Pa.C.S. § 5102.

Categories of "creditable nonstate service" under the Retirement Code include, inter alia, (1) "intervening military service"² and (2) "military service other than intervening military service" (non-intervening military service) not exceeding five years. 71 Pa.C.S. § 5304(c)(1) and (2).³ The term "military service" is defined as "[a]ll active military service for which a member has received a discharge other than an undesirable, bad conduct, or dishonorable discharge." 71 Pa.C.S. § 5102 (emphasis added). The Board's regulations similarly define "military service" as "active military service rendered only to the Armed Forces of the United States." 4 Pa.Code § 243.6(c) (emphasis added). The term "active military service," however, is not further defined by the Retirement Code and the regulations.

Burris contends that her service provided at the military hospitals on assignment by the Red Cross constitutes non-intervening "active military service" and that she is therefore eligible to purchase nonstate service credit under Section 5304(c)(2) of the Retirement Code.⁴

At the outset, it must be noted that the Board, as an agency charged with execution and application of the retirement statute, is entitled to considerable deference in its construction of the retirement statute and the regulations promulgated thereunder. Card v. Pennsylvania School Employes' Retirement Board, 83 Pa. Cmwlth. 602, 478 A.2d 510 (1984). Consequently, the Board's interpretation of the retirement statute may not be overturned, unless it is clearly erroneous. Christiana v. Public School Employes' Retirement Board, 166 Pa.Cmwlth. 300, 646 A.2d 645 (1994), aff'd, 543 Pa. 132, 669 A.2d 940 (1996).

The object of statutory interpretation is to ascertain and effectuate the intention of the General Assembly. Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(a). Words and phrases in a statute must be construed according to their common usage and plain meaning. 1 Pa.C.S. § 1903(a); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982). Further, statutes and parts of statutes are pari materia when they relate to the same persons or things or to the same class of persons or things, and as such, they should be construed together. 1 Pa.C.S. § 1932(a); Philadelphia Gas Works to the Use of the City of Philadelphia v. Commonwealth, 741 A.2d 841 (Pa.Cmwlth. 1999).

The term "active" is defined as, inter alia, "engaged in full-time service esp. in the armed forces." Webster's Third New International Dictionary 22 (1993). "Active duty" is defined in military law as "[t]he full-time status of being in any of the U.S. armed forces." Black's Law Dictionary 33 (7th ed.1999). In addition, the definition of "military service" under the Retirement Code includes the element of "a discharge other than an undesirable, bad conduct or dishonorable discharge." 71 Pa.C.S. § 5102 (emphasis added). Finally, "intervening military service" under Section 5304(c)(1) is "[a]ctive military service of a member who was a State employee immediately preceding his induction into the armed services or forces of the United States ...." 71 Pa.C.S. § 5102 (emphasis added).

Thus, when the definitions of "active," "active duty," "military service," and "intervening military service" are considered together, it is clear that the Legislature intended to include both induction into and a honorable discharge from the armed forces of the United States as required elements of "active military services."

Admittedly, Burris was neither inducted into nor discharged from the armed services or forces. She resigned from her civilian employment with the Red Cross in June 1978 and did not receive a discharge form from the military. Hence, the service, for which Burris seeks to purchase nonstate service credit, does not constitute "active military service" under Section 5304(c)(2) of the Retirement Code.

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