VETERANS ‑- RE‑EMPLOYMENT [[REEMPLOYMENT)]]RIGHTS WHERE ENLISTMENT OR RE‑ENLISTMENT [[REENLISTMENT)]]EXCEEDS FOUR YEARS

VETERANS ‑- RE‑EMPLOYMENT [[REEMPLOYMENT)]]RIGHTS WHERE ENLISTMENT OR RE‑ENLISTMENT [[REENLISTMENT)]]EXCEEDS FOUR YEARS.

Under the state Veterans' Reemployment Rights Act there is no time restriction as to length of service; a veteran who re‑enlists [[reenlists)]]without a break in the continuity of his service is eligible for re‑employment [[reemployment)]]rights under the act.

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                                                                February 26, 1959

Honorable William N. Weaver
Director, Veterans' Rehabilitation Council
202 Insurance Building
Olympia, Washington                                                                                                    Cite as:  AGO 59-60 No. 17

                                                                                                                                      Overruling AGO 53-55 No. 365

Dear Sir:

            By letter you have requested an opinion of this office on two questions which have been presented to the council regarding rights of returned veterans.  The questions presented are as follows:

            "(1) Can an employee's enlistment in a branch of the service exceed four years and the employee maintain re‑employment [[reemployment)]]rights under existing laws?"

            "(2) Can an employee re‑enlist [[reenlist)]], without break in continuity of service, with a branch or branches of the services and maintain re‑employment [[reemployment)]]rights?"

            We answer both questions in the affirmative.

                                                                     ANALYSIS

            In your letter you advised us of the facts involved in the particular case which occasioned the instant questions.  It seems likely that the questions arose because there are both federal and state laws providing for veterans' re‑employment [[reemployment)]]rights.  A discussion of both should remove the confusion in the instant case.

             [[Orig. Op. Page 2]]

            Initially, veterans' re‑employment [[reemployment)]]rights were established by federal law.  Subsequently most states enacted legislation supplementing the federal law.

            The first major federal legislation establishing veterans' re‑employment [[reemployment)]]rights was the "Selective Training and Service Act of 1940."  Subsequently this act was amended and extended to cover servicemen called to duty pursuant to later law.

            50 U.S.C.A., Appendix, § 459 provides in part:

            "Any person inducted into the armed forces under this title [sections 451-454 and 455-471 of this Appendix] for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 4 (b) [section 454 (b) of this Appendix] shall be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any special proficiency or merit attained. . . .

            "(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position (other than a temporary position) in the employ of any employer and who (1) receives such certificate, and (2) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year‑-

            ". . .

            "(B) if such position was in the employ of a private employer, such person shall‑-

            "(i) if still qualified to perform the duties of such position, be restored by such employer or his successor in interest to such position or to a position of like seniority, status, and pay; or

            ". . .

             [[Orig. Op. Page 3]]

            "(g) (1) Any person who, subsequent to June 24, 1948, enlists in the Armed Forces of the United States (other than in a reserve component) and who serves for not more than four years (plus any period of additional service imposed pursuant to law) shall be entitled upon release from service under honorable conditions to all the reemployment rights and other benefits provided for by this section in the case of persons inducted under the provisions of this title [sections 451-454 and 455-471 of this Appendix].

            "(2) Any person who, subsequent to June 24, 1948, enters upon active duty (other than for the purpose of determining his physical fitness), whether or not voluntarily, in the Armed Forces of the United States or the Public Health Service in response to an order or call to active duty shall, upon his relief from active duty under honorable conditions, be entitled to all of the reemployment rights and benefits provided by this section in the case of persons inducted under the provisions of this title, if he is relieved from active duty not later than four years after the date of entering upon active duty or as soon after the expiration of such four years as he is able to obtain orders relieving him from active duty."

            From the foregoing it seems readily apparent that under federal law the four year (plus any period of additional service imposed pursuant to law) period restriction applies only to service after 1948.

            The rights guaranteed by the foregoing federal law may be enforced in state courts.  However, there is also state law of similar effect.  State law supplementing the above referenced federal legislation was first passed in 1941, as "The Protection of Persons in Military and Naval Service Act," enacted as Laws of 1941, chapter 201.  Minor amendments thereto were made by the Laws of 1943, chapter 274.  In 1953 the legislature repealed the earlier acts, apparently for purposes of clarification, and passed the "Veterans' Reemployment Rights Act," enacted as chapter 212, Laws of 1953.

            Section 2, chapter 212, Laws of 1953 (cf. RCW 73.16.033) provides:

            "Any person who is a resident of this state and who voluntarily or upon demand, vacates a position of employment to determine his physical fitness to  [[Orig. Op. Page 4]] enter, or, who actually does enter upon active duty or training in the Washington National Guard, the armed forces of the United States, or the United States public health service, shall, provided he meets the requirements of section 3 of this act, be reemployed forthwith:  Provided, That the employer need not reemploy such person if circumstances have so changed as to make it impossible, unreasonable, or against the public interest for him to do so:  Provided further, That this section shall not apply to a temporary position.

            "If such person is still qualified to perform the duties of his former position, he shall be restored to that position or to a position of like seniority, status and pay.  If he is not so qualified as a result of disability sustained during his service, or during the determination of his fitness for service, but is nevertheless qualified to perform the duties of another position, under the control of the same employer, he shall be reemployed in such other position: Provided, That such position shall provide him with like seniority, status, and pay, or the nearest approximation thereto consistent with the circumstances of the case."

            Section 3, chapter 212, Laws of 1953 (cf. RCW 73.16.035) provides:

            "In order to be eligible for the benefits of this act, an applicant must comply with the following requirements:

            "(1) He must furnish a receipt of an honorable discharge, report of separation, certificate of satisfactory service, or other proof of having satisfactorily completed his service.  Rejectees must furnish proof of orders for examination and rejection.

            "(2) He must make written application to the employer or his representative within ninety days of the date of his separation or release from training and service.  Rejectees must apply within thirty days from date of rejection.

             [[Orig. Op. Page 5]]

            "(3) If, due to the necessity of hospitalization, while on active duty, he is released or placed on inactive duty and remains hospitalized, he is eligible for the benefits of this act:  Provided, That such hospitalization does not continue for more than one year from date of such release or inactive status:  Provided further, That he applies for his former position within ninety days after discharge from such hospitalization."

            Section 5, chapter 212, Laws of 1953 (cf. RCW 73.16.050) provides:

            "Any person who is entitled to be restored to a position in accordance with the provisions of the preceding sections shall be considered as having been on furlough or leave of absence, from his position of employment, during his period of active military duty or service, and he shall be so restored without loss of seniority.  He shall further be entitled to participate in insurance, vacations, retirement pay and other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was ordered into the service; and he shall not be discharged from such position without cause within one year after restoration:  Provided, That no employer shall be required to make any payment to keep insurance or retirement rights current during such period of military service."

            You will observe that the foregoing state law provides no four-year period or any other time period restriction.

            While our court has not had occasion to interpret the provisions last quoted, in so far as the instant questions are concerned, the court has announced a principle of law which enables us to resolve these questions.  Interpreting the 1941 state act, as amended, which is analogous to and obviously the progenitor of §§ 2 and 3, above, our court declared:

            ". . . The state veterans' re‑employment statute was taken from the Federal selective training and service act of 1940, as later amended (50 U.S.C.A. (App.), § 308).  See, also, American Law of Veterans, by Kimbrough and Glen.

             [[Orig. Op. Page 6]]

            "Our statute must be considered as adopting the interpretations and constructions of the Federal statute by the Federal courts.  State v. Tranchell, 164 Wash. 71, 2 P. (2d) 64."  Clark v. Housing Authority Etc., 25 Wn. (2d) 419, 171 P. (2d) 217 (1946).

            The federal courts have had occasion to interpret veterans' re‑employment rights under 50 U.S.C.A., Appendix, § 459, for veterans who were not subject to the four-year period restriction.  InFessler v. Reading Company (1955 D.C. E.D. Penn.), 138 F. Supp. 203, the court held:

            "A war veteran's service in armed forces from March 30, 1942, until his discharge on November 18, 1948, except for one week between date on which he accepted previous discharge because of Army's inability to handle his re‑enlistment expeditiously and date on which he re‑enlisted, was in effect continuous, so that in applying to his former employer on November 30, 1948, for reemployment, he complied with statutory provision requiring application for re‑employment within 90 days after release from service, and hence was entitled to restoration to his former position without loss of seniority rights, status or pay. . . ."

            See also,White v. Boston and M. R. R. (1948 D.C. Mass.), 79 Fed.Supp. 85; 29 A.L.R. (2d) 1279.

            It may be observed that the ruling quoted above covers both questions presented.  Therein the service period exceeded four years and involved a re‑enlistment which was without a break in continuity of service.

            In view of the federal court ruling, set forth above, interpreting that portion of the federal law which is substantially equivalent to our state law, §§ 2 and 3, above, and in view of our supreme court's ruling in the Clark case, supra, we are constrained to conclude that under state law both questions presented must be answered in the affirmative.

            We agree without reservation with the conclusion of the federal decision in theFessler case; and indeed, to us, it seems obvious and clear that the state law, above, is sufficiently broad so as to guarantee protection to those falling within the classes covered by the questions presented.

             [[Orig. Op. Page 7]]

            In an earlier opinion, AGO 53-55 No. 365, to the prosecuting attorney of Spokane county, it was ruled that in regard to the four-year period limitation the foregoing federal and state laws were in conflict and that, in accordance with the supremacy clause of the federal constitution, the state law must yield.  It is basic, however, that the exercise of supremacy is not lightly to be presumed; the intention to exercise such must be clear and the resulting conflict apparent.  Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231.  See also,State ex rel. Atwood v. Johnson, 170 Wisc. 218, 175 N.W. 589, 7 A.L.R. 1617.  We find no case, state or federal, ruling that state and federal veterans' re‑employment [[reemployment)]]rights are in conflict.  The presumption is that every act passed by the legislature is constitutional. SeeState ex rel. O'Connell v. Meyers, 51 Wn. (2d) 454, 319 P. (2d) 828;State ex rel. Troy v. Martin, 38 Wn. (2d) 501, 203 P. (2d) 601;Gruen v. Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651.  Thereby, in so far as the prior opinion purports to rule on the validity and effect of the state law or conflicts herewith, it is expressly overruled.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP R. MEADE
Assistant Attorney General