Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1975 No. 5 -
Attorney General Slade Gorton


So much of RCW 41.40.170 as provides for military service credit for members of the public employees' retirement system, without regard to their employment status when they entered the armed forces, is applicable only to persons who were still active members of the retirement system on the effective date of the amendment contained in § 3, chapter 151, Laws of 1972, Ex. Sess. (February 25, 1972).

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                                                                 January 15, 1975

Honorable Joe D. Haussler
State Representative, District 2-A
Legislative Building
Olympia, Washington 98504                                                                                                                 Cite as:  AGLO 1975 No. 5

Dear Sir:

            This is written in response to your recent letter requesting our opinion on the following question:

            "'Is a retiree under Chapter 41.40 RCW who retired from state employment in 1971, after having completed 25 years of continual creditable service with the state, eligible to receive credit pursuant to RCW 41.40.170, for having served two years of active military service prior to his employment with the state?'"

            We believe that this question must be answered in the negative.


            RCW 41.40.170, a section of the public employees' retirement law, allows a member of the public employees' retirement system to receive credit for certain periods of military service as follows:

            "(1) A member who has served or shall serve on active federal service in the military or naval forces of the United States and who left or shall leave an employer to enter such service shall be deemed to be on military leave of absence if he has resumed or shall resume employment as an employee within one year from termination thereof.

            "(2) If he has applied or shall apply for reinstatement of employment, within one year from termination of the military service, and is refused employment for reasons beyond his control, he shall,  [[Orig. Op. Page 2]] upon resumption of service within ten years have such service credited to him.

            "(3) In any event, after completing twenty-five years of creditable service, any member may have his service in the armed forces credited to him as a member whether or not he left the employ of an employer to enter such armed service:  Provided, That in no instance, described in subsections (1), (2), and (3) of this section, shall military service in excess of five years be credited:  And provided further, That in each instance the member must restore all withdrawn accumulated contributions, which restoration must be completed within five years of membership service following his first resumption of employment:  And provided further, That this section will not apply to any individual, not a veteran within the meaning of RCW 41.04.005, as now or hereafter amended:  And provided further, That in no instance, described in subsections (1), (2) and (3) of this section, shall military service be credited to any member who is receiving full military retirement benefits pursuant to Title 10 United States Code."

            Your question, as we understand it, involves subsection (3) of this statute which was added to it by an amendment contained in § 3, chapter 151, Laws of 1972, Ex. Sess.  Whereas before, a member had to have initially left the service of an employer1/ in order to enter the military, and then to have returned to covered service within a certain period after his discharge in order to receive service credit for his period of military service, it is now possible, under this new amendment, for a member of the retirement system to receive military service credit for periods of service in the United States armed forces ". . . whether or not he left the employ of an employer to enter such armed service: . . ." ‑ provided that he had completed twenty-five years of otherwise creditable covered service.

             [[Orig. Op. Page 3]]   In the situation covered by your question, however, you have advised that the individual involved had already retired from the state employment prior to the enactment of this 1972 amendment.  Therefore, for reasons explained at length by this office in AGO 1969 No. 12 [[to F. Pat Wanamaker, State Representative on July 15, 1969]], copy enclosed, it is our opinion that he is not entitled to any of the benefits of this subsequently enacted change in the retirement laws.

            In that 1969 opinion to State Representative F. Pat Wanamaker, after a thorough analysis of the current legal status of post-retirement pension increases for public employees in this state, we concluded that although such increases are now constitutional because of the provisions of Article II, § 25 (Amendment 35), they are not ordinarily to be deemed to have been intended by the legislature,

            ". . . unless that law-making body, in enacting a statute increasing pension benefits, manifests a clear intent to make the enactment applicable to persons already retired as is now permitted by the constitution."

            In terms of the 1972 amendment to RCW 41.40.170, supra, which we are here considering, we find therein no evidence of legislative intent to make the beneficial provisions of subsection (3) applicable to former members of the retirement system who had already retired as of its effective date; i.e., February 25, 1972, the date the amendment was signed into law by the governor, in accordance with the emergency clause which was contained in § 16 of the subject 1972 act.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/I.e., basically, a state agency or political subdivision.   See, RCW 41.40.010(4).