USERRA and Vietnam Service

[Effen]

At first I thought this was an easy "no" answer, but the more I looked the more I questioned it.... Does USERRA apply to ALL military service? ie: hired in 1960 drafted in 1965, discharged and returned to work in 1967 and worked straight through to 2004.

Does USERRA, or anything else, require the Plan to credit service for 65-67?

[mbozek]

Under a US Supreme Ct interpretation of the Veterans Reemployment rights act, the predecessor of USERRA, veterans were required to be reemployed without a loss of senority including benefit accrual in db plans for periods of military service. Alabama Power & light v. Davis, 1977. USERRA extended the requirement to provide benefits for periods of military service to DC plans.

[Effen]

I "think" I agree, but I have searched the Act and can't find anything that says pre'94 military service does not need to be counted.

In addition, the participant contacted the local veteran’s assoc. rep who said that although USERRA was established in 1994 it did not exclude any prior military time and that participant should be credited for his time.

Does any one have any sites confirming either opinion?

[Harwood]

I take it the plan in question credits service pre-ERISA and that crediting the years 1965 to 1967 would make a difference in the person's benefit [45 years-of-service is better than 43]

[Kirk Maldonado]

I believe that the DOL has provided some advice on this general topic. Has anybody looked to see if it provides any illumination on this specific issue?

[Effen]

Maybe this does it:

Sec. 4318. Employee pension benefit plans

(A) ...

(B) In the case of benefits under the Thrift Savings Plan, the rights of a person reemployed under this chapter shall be those rights provided in section 8432b of title 5.

8432b. Contributions of persons who perform military service...

...

(e) Effective Date; Applicability.--This section and the amendments made by this section--

(1) shall take effect on the date of enactment of this Act;

and

(2) shall apply to any employee whose release from military service, discharge from hospitalization, or other similar event making the individual eligible to seek restoration or reemployment under chapter 43 of title 38, United States Code, occurs on or after August 2, 1990.

So apparently it was "retroactive" back to 1990, but not 1967.

[mbozek]

E: 5 USC 8432b applies to the Federal Employees Thrift plan not plans subject to ERISA. ERISA DB plans are required under the Davis decision to give benefit accrual for all periods of military service prior to enactment of USERRA.

[Effen]

Thanks mbozek, I'm with you now.