Morris v. Division of Retirement, No. 96-2316

• Court: Court of Appeal of Florida (US)
• Writing for the Court: BENTON; BARFIELD, C.J., and KAHN
• Citation: 696 So.2d 380
• Decision Date: 12 May 1997
• Docket Number: No. 96-2316
• Parties: 22 Fla. L. Weekly D1227 Robert P. MORRIS, Appellant, v. DIVISION OF RETIREMENT, Appellee.

Page 380

696 So.2d 380 22 Fla. L. Weekly D1227 Robert P. MORRIS, Appellant,
v.
DIVISION OF RETIREMENT, Appellee. No. 96-2316. District Court of Appeal of Florida,
First District. May 12, 1997.
Rehearing Denied July 9, 1997.

Page 381

Wilfred C. Varn and Robert M. Ervin, Jr. of the law firm of Ervin, Varn, Jacobs & Ervin, Tallahassee, for Appellant.

Robert B. Button, Assistant Division Attorney, Division of Retirement, Tallahassee, for Appellee.

BENTON, Judge.

Robert P. Morris appeals a final order of the Florida Division of Retirement denying him additional state retirement benefits he seeks on account of the time he spent as a cadet at the United States Military Academy during the Korean Conflict. We affirm.

As a West Point cadet from July 5, 1950, through June 3, 1954, appellant prepared for his career as an officer in the regular army, a career from which he retired on January 1, 1975, as a lieutenant colonel. Since his retirement, Lt. Col. Morris (Ret.) has received military retirement pay. In computing his military retirement pay, the time he spent as a West Point cadet is not counted.

Discharged honorably, he began working for the State of Florida in the Department of Administration as an associate planner on January 2, 1975. Approximately four and a half years later, he left the Department of Administration for the Department of Education, where he remained employed as a program specialist until he retired, effective August 1, 1995.

Before retiring as a state employee, Lt. Col. Morris (Ret.) tendered a check in the amount of $7,568.36 to the Florida Retirement System, in an attempt to purchase state retirement credit for time he had spent as a cadet at the United States Military Academy. In response, the Division of Retirement sent a letter advising him that he was ineligible to purchase retirement credit in the Florida Retirement System. Adhering to its original position after an informal hearing, the Division of Retirement entered the final order now appealed.

Section 121.111, Florida Statutes (1995), specifies what military service is creditable for Florida Retirement System purposes. ¹ Appellant relies on section 121.111(2), Florida

Page 382

Statutes (1995), which authorizes credit for "military service as defined in s. 121.021(20)(b)." In turn, section 121.021(20)(b) defines "military service" as "actual 'wartime service.' "

(20) "Military service" of any member means:

. . . . .

(b) Actual "wartime service" in the Armed Forces of the United States, as defined by s. 1.01(14), or "wartime service" in the Allied Forces, not to exceed 4 years, if credit for such service has not been granted under any other federal or state system, and provided such service is not used in any other retirement system.

Section 1.01(14), Florida Statutes (1995), defines "veteran" and delineates time periods during which a veteran must have served in order to be eligible for state retirement benefits as a "wartime veteran." Without in terms defining "wartime service," section 1.01(14) provides:

To receive benefits as a wartime veteran, a veteran must have served during one of the following periods of wartime service:

....

(e) Korean Conflict: June 27, 1950, to January 31, 1955.

A "veteran" includes a person who served in the "active military, naval, or air service" and received an honorable discharge. § 1.01(14), Fla. Stat. (1995). No Florida statute defines "active military, naval, or air service."

For certain purposes, a federal statute defines "active military, naval, or air service," to include "active duty," 38 U.S.C. § 101(24)(1995), and defines "active duty" to include "service as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy." 38 U.S.C. § 101(21)(D). Lt. Col. Morris (Ret.) argues that this federal statute should be looked to here, the Division's more restrictive definition of "wartime military service" notwithstanding. But, if the Legislature had intended to adopt a federal statutory definition for state retirement system purposes, it could easily have done so by reference to a federal statute, a technique it used in other parts of chapter 121. E.g., § 121.021(20)(b), Fla. Stat. (1995)("[T]his paragraph does not prohibit the use of such service as creditable service if granted and used in a pension system under chapter 67 of Title 10 of the United States Code."); § 121.111(1)(b), (c), and (e), Fla. Stat. (1995)(referencing entitlement to reemployment under the provisions of the Veteran's Reemployment Rights Act, 38 U.S.C. §§ 2021 et seq.).

No rule of construction requires resort to federal statutes simply because a term defined there for some federal purpose also appears in the Florida Statutes. Nor has it been contended that the Florida Retirement System Act was...