USERRA - Accrual of Benefits for individuals who spend more than 5 yea

[Guest S Terrill]

I have a question regarding USERRA and wondered if anyone could help me out:

An individual has been in service with the uniformed services for 6 years. The individual is entitled to reemployment under USERRA even though he has been in service for more than 5 years, because the additional time was time required to complete an initial period of obligated service. Section 4312©(1). According to Section 4318(a)(2)(B), this individual is entitled to the accrual of benefits for the period of service in the uniformed services.

My question is whether the individual is entitled to 6 years of service for computing the accrual of benefits or 5 years? I ask this question because 4312© in effect pares back any time spent in service over 5 years to just 5 years. My opinion was that the individual is entitled to only 5 years of accrual benefits because 4318(a)(2)(B) specifically provides the individual with accrual benefits for a PERIOD SERVED upon reemployment under the chapter. In order to be reemployed under the chapter, Section 4312 required the individual to have SERVED A PERIOD of 5 years or less , or if greater, 4312© acted to pare back the total time spent in service to exactly 5 years. "Period of service" under 4312© is now equal to 5 years. Is this the period of service 4318(a)(2)(B) alludes to?

I appreciate any comments or thoughts. Thanks!

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-SLT