COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Thomas Walsh,

Petitioner

v. Docket No. CR-07-753

State Board of Retirement,

Respondent

Appearance for Petitioner:

Thomas Walsh

612 Alden Way
North Andover, Ma. 01845

Appearance for Respondent:

Melinda Troy, Esq.

State Board of Retirement
One Ashburton Pl.
Boston, Ma. 02108

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Thomas Walsh, is appealing the October 2, 2007 decision of the Respondent, State Board of Retirement, denying his request to purchase creditable service for his prior military service in accordance with the provisions of Chapter 71 of the Acts of 1996 (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

Pursuant to the provisions of 801 CMR 1.01 (10) (c), the parties agreed to submit the case on written submissions and to waive a hearing. On October 22, 2007, the Petitioner submitted a written argument and proposed exhibits. On November 29, 2007, the Respondent submitted a written argument and proposed exhibits. The record was closed on November 29, 2007.

The following exhibits were marked into evidence:

1. 10/2/07 Decision Letter of Respondent
2. 10/15/07 Letter of Appeal
3. 10/22/07 Letter Requesting Submission on the Record plus attachments
4. 8/28/07 Letter from Petitioner requesting purchase of creditable service plus attachments
5. 4/5/06 Petitioner's application for purchase of prior military service
6. Petitioner's retirement application plus attachments

FINDINGS OF FACT

Based on the evidence presented, I make the following findings of fact:

1. The Petitioner, Thomas Walsh, d.o.b. 12/31/41, participated in active duty training with the United States Army from March 30, 1964 through August 15, 1964. During the period of February 9, 1964 through February 9, 1970, the Petitioner served in the United States Army National Guard Reserves (Exhibit 3 & 4).

2. The Petitioner entered state service on July 1, 1968 when he accepted employment with the Department of Public Welfare (now the Department of Transitional Assistance) (Exhibit 6).

3. The Petitioner was a member of the United States Coast Guard Reserve from November 22, 1972 until February 15, 1977 (Exhibit 4).

4. The Petitioner was a member of the United States Army Reserve from October 1978 to October 1979 (Exhibit 4).

5. On April 25, 1996, the Massachusetts Legislature adopted Chapter 71 of the Acts of 1996 relating to creditable service for military service.

6. On July 10, 1996, the Petitioner applied to purchase his active duty training service and service in the National Guard (Exhibit 5).

7. By letter dated October 26, 1996, the State Board of Retirement denied this application and notified the Petitioner of his appeal rights. The Petitioner did not avail himself of these rights and did not file an appeal (Exhibit 3).

8. The Petitioner retired from service with the Commonwealth of Massachusetts effective March 15, 2002 (Exhibit 6).

9. By letter dated August 28, 2007, the Petitioner requested that he be allowed to explore his eligibility to purchase his military time, asserting that his previous application had been erroneously denied in that no credit was given for his Coast Guard or Army Reserve service (Exhibit 4).

10. On October 2, 2007, the Petitioner received formal notification from the State Board of Retirement that his request to purchase his prior military service had been denied (Exhibit 1).

11. On October 15, 2007, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

CONCLUSION

G.L. c. 32 §4(1) provides that eligibility to purchase creditable service is limited to "members in service" and that the purchase of creditable service must be accomplished prior to the effective date of a member's retirement (emphasis supplied). See Greene v. Contributory Retirement Appeal Board et al. (Suffolk Superior Court, #SUCV2003-05639-C, 3/28/05).

Since the Petitioner in this case did not make his second request to purchase his military service until August of 2007, more than five years after the effective date of his retirement, he cannot purchase this service as he was no longer a member in service of the State Retirement System in 2007. Furthermore, the Petitioner made an application to purchase his military service in October of 1996. After considering his application, the State Board of Retirement denied this application. Although the Petitioner was apprised of his right to appeal that denial, he failed to avail himself of that right. As such, it is questionable as to whether Mr. Walsh has a statutory right to appeal the second denial of the same request that had been previously made and denied. In the case of Gerald Micciche v. State Board of Retirement, CR-05-838 (DALA dec. 6/9/06; CRAB dec. 1/3/07), the Petitioner had filed two previous claims for veteran's status that had been denied by the State Board of Retirement. In neither instance had the Petitioner filed an appeal. Upon filing a third claim for such status in 2005, it was held that "while it may be within the purview of the State Board of Retirement to extend the Petitioner a courtesy and review some additional materials on the question of his veteran's status, the board's 2005 review does not necessarily constitute a new action from which he has a statutory right of appeal."

Even assuming, for argument's sake, that the Petitioner's claim would not be barred by his status as a member inactive of the State Retirement System or by his failure to exhaust his administrative remedies with respect to the decision of the State Retirement Board in 1996, the Petitioner would not qualify as a "veteran" entitled to purchase the service in question in accordance with the provisions of G.L. c. 32. At the time that the retired in 2002, G.L. c. 32 §4(1)(h) provided that "…a member in service of a retirement system as defined in section one who is a veteran who served in the armed forces of the United States shall be entitled to credit for active service in the armed services of the United States…" In 2002, the term "veteran" was defined in G.L. c. 32 §1 as "any person who is a veteran as defined in Clause Forty-Third of section seven of chapter four." G.L. c. 7 §4 states that " 'Veteran' shall mean any person … (a) whose last discharge from his wartime service as defined herein was under honorable conditions and who (b) served in the United States army, navy, air force, marines corps, coast guard or air force of the United States for not less than 90 days, at least one day of which was for wartime service…" G.L. c. 4 §7 also states "active service in the armed forces as used in this section shall not include active duty for training in the army national guard or air national guard or active duty for training as a reservist in the armed forces of the United States." The military service that the Petitioner sought to purchase in 2007 was service he spent in the Coast Guard Reserve and in the Army Reserve. Since members of the Active Reserve do not qualify as 'veterans' as the term is defined by the statute, the Petitioner is not eligible to purchase this service. See Flemings v. Contributory Retirement Appeal Board, 431 Mass. 374 (2000).

G.L. c. 4 §7 was amended in 2004 to include within the definition of veteran an individual who served on full-time National Guard duty. The Petitioner likewise does not meet the definition of 'veteran' in accordance with this amendment as his National Guard service was not full-time. During the period of time that he was in the National Guard, the Petitioner was employed on a full-time basis by the Commonwealth of Massachusetts.

For the foregoing reasons, the decision of the State Board of Retirement denying the Petitioner's request to purchase his military service is hereby affirmed.

SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: January 18, 2008


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