STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WINFIELD R. RUSHNELL )

)

Petitioner, )

)

vs. )

) Case No. 86-0080

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, DIVISION ) OF RETIREMENT )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on April 25,1986, at Bradenton, Florida.

APPEARANCES

For Petitioner: Winfie1d R. Rushnell, pro se

4708 26th Avenue, West Bradenton, Florida 33529

For Respondent: Stanley M. Danek, Esquire

Division of Retirement

2639 North Monroe Street, Suite 207 Building C

Tallahassee, Florida 32303

By Petition dated December 19, 1985, Winfie1d R. Rushnell, Petitioner, contests the denial by the Division of Retirement, Respondent, of his request to purchase, for state retirements purposes, four years of military service. As grounds therefor, Petitioner alleges that he was on active duty in July 1971 which qualifies him to purchase retirement time for wartime military service.

At the hearing Petitioner testified in his own behalf, Respondent called one witness, and three exhibits were admitted into evidence. There is no dispute regarding the operative facts in this case. Proposed findings submitted by Respondent are accepted. Those not included herein were deemed immaterial to the conclusions reached.

FINDINGS OF FACT

1. Petitioner served on active duty in the U.S. Air Force from July 17, 1958 through April 1, 1963.

   
   

2. On April 1, 1963 Petitioner left active duty and entered the active Air Force reserve program from which he retired in December 1980.

3. Petitioner commenced working for a governmental unit in Florida July 1, 1965 and has been continuously employed since that time, except for a short period he was on active military duty for training. From April 8, 1971 until July 3, 1971 Petitioner was on extended active duty for training during which time he was being trained to fly helicopters in combat. This period exceeded the two weeks leave Petitioner is allowed annually for military training and the annual leave Petitioner had on the books at the time. Accordingly, he was in a leave without pay status for the last month of this period. It is for the period of active duty while in a leave without pay status that Petitioner claims qualifies him to purchase the retirement credits for wartime military service.

   
   

4. Rule 2213-2.05 Florida Administrative Code establishes wartime service periods during which an employee may become eligible to purchase retirement credits. For the purpose of Petitioner's application the period in which he claims to be qualified is the Vietnam Era, service from August 5, 1964 through May 7, 1975. Petitioner's active duty from 1958-1963 clearly does not fall in a wartime category.

   
   

5. In determining these dates of wartime service Respondent uses the periods contained in Title 38 USCS 101. Respondent also uses the definition of "active duty" contained in 38 USCS 101 (21)A which is "full-time duty in the Armed Forces, other than active duty for training."

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings.

   
   

   Rule 22B-2.05 (2) FAC provides in pertinent part:

   
   

   A member who has active "wartime" military service in the Armed Forces of the United States ... for which he is not eligible to receive retirement credit as provided

   in 228-2.05 (1) above, may receive retirement credit for such active wartime military service, not to exceed a total of four years including any service claimed under

   228-2.05(1), provided that: (a) The member served one or more days of his military service during one of the following periods:

   1. Korean conflict: Service from

      June 27, 1950 through January 31, 1955.

   2. Vietnam Era: Service from August 5, 1964 through May 7, 1975.

      
      

   3. Petitioner's active duty period from July 1958 until April 1963 was between the wartime years of the Korean Conflict and the Vietnam Era and were clearly not covered years for which

      
      

   4. A retirement credit can be purchased. It is the one month period ending July 3, 1971 for which Petitioner did not receive state retirement credit that Petitioner contends qualified for active wartime service as he was on full- time active duty at that time.

   5. However, Petitioner acknowledges that he was ordered to extended active duty solely for helicopter training and upon completion of that training he was released from active duty. This is clearly not active duty as defined in 38 USCS 101(21)(A)as it is "active duty for training" which is excluded from the definition of active duty in the armed forces.

      
      

   6. Only members who have active wartime military service are qualified to purchase retirement credits. Respondent's interpretation of "active" as used in "active wartime service" to exclude active duty for training is consistent with the definition in Title 38 USCS and the intent of the legislature in the language used in Section 121.111(20)(b) Florida Statutes(1985). Further, the agency's interpretation of the statute which it administered is entitled to great weight and will not be overturned unless clearly erroneous. Natelson v Department of Insurance, 454 So.2d 31 (Fl 1st DCA 1984).

      
      

   7. From the foregoing it is concluded that Winfield R. Rushnell did not serve on active duty during wartime in the Armed Forces of the United States and is not eligible to obtain additional state retirement credit based upon active wartime service pursuant to section 121.111 Florida Statutes. It is

RECOMMENDED that the Petition of Winfield R. Rushnell to purchase retirement credit be dismissed.

Entered this 16th day of May, 1986 at Tallahassee, Florida.

COPIES FURNISHED:

Winfield R. Rushnell 4708 26th Avenue, West

Bradenton, Florida 33529

William A. Frieder, Esquire Division of Retirement Department of Administration Cedars Executive Center

2639 North Monroe Street Suite 207 Building C Tallahassee, Florida 32303

K.N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1987.

Docket for Case No: 86-000080

Orders for Case No: 86-000080