Opinion No. (2008) ( 2008 )

Dear Representative Duncan:

This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:

1. Do members of the Reserve Corps of the Armed Forces of the United States or the Oklahoma National Guard qualify for a reduced-rate vehicle tag pursuant to 47 O.S.Supp. 2007, § 1127[47-1127], if they are not on full-time active duty when their tag is due for renewal?

2. If the answer to the previous question is no, are members of the Reserve Corps of the Armed Forces of the United States or the Oklahoma National Guard on annual training orders (generally 13-15 days) eligible for the reduced-rate tag?

3. If the answer to number 2 is yes, are members of the Reserve Corps of the Armed Forces of the United States or the Oklahoma National Guard eligible to renew their vehicle tags at the reduced rate while on Active Duty for Training ("ADT") orders or other Annual Training orders, irrespective of the expiration date of their tags?

Discussion 47 O.S.Supp. 2007, § 1127[47-1127] currently provides:

A. All vehicles owned by members of the Armed Forces of the United States, the Reserve Corps of the Armed Forces of the United States, and the Oklahoma National Guard or their spouses assigned to duty in this state in compliance with official military or naval orders or owned by the spouse, who resides in Oklahoma, of a member of the Armed Forces of the United States serving in a foreign country, which vehicles are not being used in a trade or business or for any commercial purpose, are hereby classified specially for vehicle license and registration purposes in this state. Any such vehicle which is not registered and licensed for the current year in the state of residence or domicile of the serviceman, Guardsman, or Reservist or of the spouse owning the vehicle must be registered for the current year in Oklahoma as herein provided, except that any such vehicle which has been licensed in some other state by such serviceman, Guardsman, Reservist, or spouse while the serviceman, Guardsman, or Reservist was stationed in said other state may be operated in this state for the remainder of the year or period for which it is licensed. If such vehicle currently is registered with the Armed Forces of the United States rather than being registered in a state and the serviceman, Guardsman, or Reservist is transferred to a duty station within this state pursuant to military orders, the serviceman, Guardsman, Reservist, or spouse owning the vehicle shall not be required to register the vehicle in this state for a period of thirty (30) days after the date the serviceman, Guardsman, or Reservist is required to report for duty pursuant to said military.

The serviceman, Guardsman, Reservist, or spouse applying for the registration of any such vehicle shall submit an appropriate statement, to be attached to the vehicle registration application, showing the following: A description of the vehicle owned by applicant; the state and address of the applicant's legal residence or domicile; that applicant or applicant's spouse is on active duty in the Armed Forces of the United States assigned or stationed at a named location in compliance with official military orders. The statement shall be signed by the applicant and certified to by a proper officer of the organization to which applicant is assigned for duty or where the applicant is the spouse of such serviceman, Guardsman, or Reservist serving in a foreign country, the statement shall be signed by said spouse under the penalties of perjury. The application shall be accompanied by a registration fee of Fifteen Dollars ($15.00).

Id. (emphasis added). Application is made by filing Oklahoma Tax Commission Form 779 with the Commission or an Oklahoma tag agent. Okla. Tax Comm'n Motor Vehicle Div., U.S. Armed Forces Affidavit, available at http://www.tax.ok.gov/mvforms/779.pdf.

Enacted in 1985, ¹ this law originally allowed vehicles owned by nonresident members of the Armed Forces of the United States assigned to Oklahoma duty in compliance with official military or naval orders and their spouses to pay fifteen dollars ($15.00) to register a motor vehicle. Numerous amendments to the statute have been enacted over the years.² The 2006 amendments expanded the eligible members from "members of the Armed Forces of the United States" to also include members of "the Reserve Corps of the Armed Forces of the United States, and the Oklahoma National Guard." 2006 Okla. Sess. Laws ch. 60, § 1(A). The 2006 amendment did not change the requirement that the "applicant or applicant's spouse is on active duty in the Armed Forces of the United States assigned or stationed at a named location in compliance with official military orders." Id. (emphasis added).

Members of the Oklahoma National Guard are called to active duty by the Governor pursuant to specific statutory conditions under 44 O.S. 2001, § 72[44-72]. Under the Uniform State Code of Military Justice, "state active duty":

[M]eans full-time duty in the state military forces under an order of the Governor or otherwise issued by authority of law, and paid by state funds, and includes travel to and from such duty[.]

44 O.S.Supp. 2007, § 3201[44-3201](A)(21) (emphasis added).

Reserve components of the Armed Forces of the United States are defined at 10 U.S.C. § 101(c) and are called to active duty pursuant to10 U.S.C. § 12301. Under federal law, "active duty" is a "duty status," which is defined as follows:

(1) The term "active duty" means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.

Id. § 101(d)(1) (emphasis added).

Oklahoma statutes frequently include the term "active duty" when describing conditions of members of the National Guard or Reserve Corps of the Armed Forces of the United States:

A. A municipality may provide hospital and medical benefits, accident, health, and life insurance, or any of the aforesaid, through any company authorized to do business in Oklahoma, for any or all of its officers or employees and their dependents, whether said officers or employees are engaged in a governmental or nongovernmental function of the municipality. A municipality may also provide such benefits when an officer or employee is ordered by proper authority to active duty in the National Guard or Reserve Corps of the Armed Forces of the United States. The municipality may pay a portion or all of said premiums from any municipal general funds, and may deduct from the wages or salary of any such officer or employee, upon written authority signed by the officer or employee, amounts for the payment of all or any portion of the monthly premium for same.

11 O.S.Supp. 2007, § 23-108[11-23-108] (emphasis added).

A. Whenever any member of the fire department shall lose his or her life by reason of any injury or sickness sustained by him or her while in, or in consequence of, the performance of his or her duty or while on active duty in the National Guard and Reserves called to active duty, leaving a surviving spouse, or child or children under the age of eighteen (18) years, then, upon satisfactory proof of such facts made to it, the [Oklahoma Firefighters Pension and Retirement Board] shall order and direct that a monthly pension be paid.

Id. § 49-112(A) (emphasis added).

G. Teachers who are members of the Reserve Forces of the Army, the Navy, the Marine Corps, the Coast Guard, the Air Force, or any other component of the Armed Forces of the United States, including members of the Air or Army National Guard, shall, when ordered by the proper authority to active duty or service, be entitled to a leave of absence from such civil employment for the period of such active service without loss of status or efficiency rating and without loss of pay during the first thirty (30) days of such leave of absence.

70 O.S.Supp. 2007, § 6-105[70-6-105] (emphasis added).

A. As used in this section, "license" means any license issued pursuant to:

1. Title 59, Professions and Occupations; and

2. Title 5, Attorneys and State Bar.

B. Any license held by a member of the National Guard or reserve component of the armed forces that expires while the member is on active duty shall be extended until ninety (90) days after the member is discharged from active duty status.

C. The licensing agency shall renew a license extended pursuant to subsection B until the next date that the license expires or for the period that the license is normally issued, at no cost to the member of the National Guard or reserve component of the armed forces if all of the following conditions are met:

1. The National Guard member or reservist requests renewal of the license within ninety (90) days after being discharged;

2. The National Guard member or reservist provides the licensing agency with a copy of the official orders of the member or reservist calling the member or reservist to active duty, and official orders discharging the member or reservist from active duty; and

3. The National Guard member or reservist meets all the requirements necessary for the renewal of the license, except the member or reservist need not meet the requirements, if any, that relate to continuing education or training.

D. The provisions of this section do not apply to regularly scheduled annual training.

72 O.S. 2001, § 48.2[72-48.2] (emphasis added).

"[P]rovisions for benefits to members of the Armed Services are to be construed in the beneficiaries' favor." King v. St. Vincent's Hosp.,502 U.S. 215, 220 n. 9 (1991). However, "where a statute's language is plain and unambiguous, and the meaning clear and unmistakable, no justification exists for the use of interpretative devises to [create] a different meaning." Neer v. State ex rel. Okla. Tax Comm'n, 982 P.2d 1071,1078 (Okla. 1999). By the plain language of 47 O.S.Supp. 2007, § 1127[47-1127], members of the Reserve Corps of the Armed Forces of the United States and the Oklahoma National Guard are eligible, like the members of the Armed Forces of the United States in years past, to register their motor vehicles in Oklahoma for the fee of fifteen dollars ($15.00) if they are on "active duty." If the Legislature had wanted to allow members of the Reserve Corps of the Armed Forces of the United States and the Oklahoma National Guard who are not on active duty to register their motor vehicles for a reduced fee, it could have done so. Instead, it added the Reserve Corps of the Armed Forces of the United States and the Oklahoma National Guard to the members of the Armed Forces of the United States, who, when providing documentation of active duty status, can register a motor vehicle for fifteen dollars ($15.00). Such "legislative silence, when it has authority to speak, . . . giv[es] rise to an implication of legislative intent." City of Duncan v. Bingham,394 P.2d 456, 460 (Okla. 1964). It is, therefore, the official Opinion of the Attorney Generalthat:

1. Members of the Reserve Corps of the Armed Forces of the United States or the Oklahoma National Guard or their spouses qualify for a reduced-rate motor vehicle tag pursuant to 47 O.S.Supp. 2007, § 1127[47-1127] if the member is on active duty status at renewal.

2. Any military order that does not constitute full-time duty does not qualify members of the Reserve Corps of the Armed Forces of the United States or the Oklahoma National Guard for a reduced-rate motor vehicle tag pursuant to 47 O.S.Supp. 2007, § 1127[ 47-1127]. Activation under annual training orders (generally 13-15 days) does not constitute full-time duty.

W.A. DREW EDMONDSON Attorney General of Oklahoma

DAVID L. KINNEY Assistant Attorney General

¹ See 1985 Okla. Sess. Laws ch. 179, § 30.

² See 1987 Okla. Sess. Laws ch. 205, § 71; 1988 Okla. Sess. Laws ch. 240, § 5; 1989 Okla. Sess. Laws ch. 277, § 1; 1990 Okla. Sess. Laws ch. 337, § 11; 1993 Okla. Sess. Laws ch. 17, § 1.