Opinion No.

The Honorable Tim Wooldridge State Representative 100 College Drive Paragould, AR 72450

Dear Representative Wooldridge:

This is in response to your request for an opinion regarding A.C.A. § 24-7-602, the military service credit section of the Arkansas Teacher Retirement System Act. Your question pertains to § 24-7-602(c) (Cum. Supp. 1991), which states as follows:

(c) A person who entered the armed forces and who was not an active member at the time of entry shall have the armed service actually required of him credited as service under this subchapter if he satisfies all of the following conditions:

(1) He completes ten (10) years of credited service for service in Arkansas; and

(2) The armed service is not credited as service under any other retirement plan except social security. Receipt of a disability pension from the federal military system shall not be considered as having service credit with another retirement plan.

Your question is whether the grant of credit given to a teacher for military service may be taken away and canceled if the time for which teacher retirement credit was previously granted is also used toward military retirement. You note that under current Teacher Retirement System ("System") procedures, armed services credit is granted by the System, and thereafter, when the teacher retires, he or she is asked to certify that the armed services' time will not be used toward military retirement. If the armed services' time is used toward military retirement, the previously granted service credit provided by § 24-7-602(c) is removed from the System.

It is my opinion that the System has the authority to implement this procedure for crediting military service. Subsection (c)(2) of § 24-7-602 clearly conditions the receipt of military service credit under that provision upon the absence of credit under another retirement plan.¹ This provision cannot, in my opinion, reasonably be construed as limiting the determination of whether the service has been credited under another plan to a set point in time.

Forms developed by the System in connection with military service credit require the member's certification, both at the time the service is initially credited and at retirement, that the armed service will not be credited under any other retirement plan, except social security. It is my opinion that this procedure is consistent with legislative intent expressed under § 24-7-602. The absence of a recertification requirement could otherwise result in abuse of § 24-7-602(c).

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh

¹ The exception under subsection (c)(2) for "disability pension from the federal military system" indicates that armed service credit in the federal military system constitutes credit under another retirement plan for purposes of this section.