September 26, 2017

				BY CERTIFIED MAIL; RETURN RECEIPT REQUESTED	

Pension Plan Administrator
Verizon Benefits Center Claims Review Unit
P.O. Box 8998
Norfolk, VA 23501-8998

	Re:	John Doe				Soc. Sec. No.: ###-##-3948	
		Address				D.O.B.: 6/15/1952
		Town, IL ZIP		

Dear Sir or Madam:

	Please be advised that John Doe has requested the assistance of the Pension Action Center with respect to the issue of the payment of retirement benefits pursuant to the GTE Automatic Electric Pension Plan. This letter is a claim for benefits due to Mr. Doe pursuant to the GTE Automatic Electric Plan.

Statement of Facts 

	Mr. Doe worked for GTE Automatic Electric from approximately May 5, 1971 to October 7, 1983. He served in the military during the Vietnam War from approximately April 7, 1972 to May 28, 1974. The Plan in effect at the time of Mr. Doe’s separation from employment required 10 years of service for purposes of vesting. Mr. Doe reached Normal Retirement Age on June 15, 2017. In a letter dated August 11, 2017, the Plan stated Mr. Doe is not vested due to a military service break. A copy of that letter is enclosed as Exhibit A. The Plan states that Mr. Doe has currently accrued 8.480556 years of vesting service. See Exhibit A.

Argument

Under the Veterans’ Reemployment Rights Act (“VRRA”), Mr. Doe’s military service must be included in his years of service for vesting purposes.

	It is appropriate to raise a claim at this time under VRRA. Courts have previously held that the Veterans Program Enhancement Act of 1998 (“VPEA”) permits the raising and adjudication of “claims arising under both the [Uniformed Services Employment and Reemployment Rights Act (“USERRA”)] and its predecessor statute, the VRRA, without regard to whether the complaint accrued before, on, or after October 13, 1994.” See Fernandez v. Department of Army, 234 F.3d 553 (Fed. Cir. 2000). Congress also expressed the intent that a claim under VRRA that accrued before October 13, 1994 can be raised after October 13, 1994. In examining the Congressional intent in passing the VPEA, the court in Williams v. Department of Army found that “the House report stated that section 3 of the bill would amend section 4324(c) to clarify that the [Merit Systems Protection Board] has jurisdiction to hear complaints brought under section 4324 without regard to when the complaint accrued.” See Williams v. Department of Army, 83 M.S.P.R. 109 (NEED BLUEBOOK FOR MSPB 1999). Therefore, the present claim raised under the protections provided by VRRA is appropriate as it has the potential to be adjudicated.

Mr. Doe must be considered a vested member of the Plan under VRRA because his time in the military during the Vietnam War must not be considered a break in service. VRRA states that “any person who is inducted into the Armed Forces of the United States” must be restored to their previous position, “or to a position of like seniority, status, and pay.” See VRRA section 4301(a)(A)(i). 

“[A]ny person who is restored to or employed in a position in accordance with the provisions…should be so restored or reemployed in such manner as to give such person such status in the person’s employment as the person would have enjoyed if such person had continued in such employment continuously from the time of such person’s entering the Armed Forces until the time of such person’s restoration to such employment, or reemployment.”

	See VRRA section 4301(b)(2).

	Here, the Plan has stated that Mr. Doe was enrolled in and accruing vesting service credit before his military service in Vietnam. See Exhibit A. The Plan has also stated that Mr. Doe resumed accruing vesting service credit after his military service ended. See Exhibit A. However, the Plan is in violation of VRRA because it asserts that Mr. Doe’s “service was not counted from April 7, 1972 to May 28, 1974 due to [a] Military Service break.” See Exhibit A. As stated above, VRRA requires that a person who returns to previous employment following military service must be restored to such status that the person “would have enjoyed if such person had continued in such employment continuously.” See VRRA section 4301(b)(2).

If Mr. Doe would have remained in employment at GTE Automatic Electric as opposed to serving in the military, he would have accrued at least 24-25 months of additional vesting service credit. This additional 24-25 months of service credit would raise Mr. Doe’s service credit above the 10 years of service minimum required for vesting by the Plan. As VRRA requires that a person reemployed following military service must be restored to their previous benefits as if the person had never left employment, Mr. Doe is entitled to the additional 24-25 months of vesting service credit. In accordance with VRRA, by including the additional 24-25 months of vesting service and the current 8.480556 years of vesting service the Plan has already attributed to Mr. Doe, Mr. Doe has thus accrued more than 10 years of vesting service credit in accordance with the Plan. Therefore, Mr. Doe is entitled to a pension benefit.

Under USERRA, Mr. Doe’s military service must be included in his years of service for vesting purposes.

The pension and retirement plan protections provided by USERRA can be raised in this case as they are retroactive. Although the substantive provisions of USERRA are not automatically retroactive, the court has previously held that a retroactive application of USERRA is permissible so long as the retroactive application of the statute does not “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” See Fernandez, 234 F.3d at 553. In the present case, there are no new duties imposed under USERRA.

The present case can be distinguished from Fernandez. See Fernandez, 234 F.3d at 553. The court in Fernandez held that USERRA was not retroactive in the case because it expanded the coverage of VRRA to all members of the uniformed services, not solely reservists of the Armed Forces. See id. at 555-56. This extension of substantive rights “would have the impermissible effect of increasing the agency’s liability for past conduct and imposing new duties on the agency with respect to transactions already completed.” See id. at 557. Here, the present case can be distinguished from Fernandez because the applicable substantive protections provided by USERRA do not impose new duties on the Plan. Under VRRA, the Plan was already required to consider Mr. Doe’s military service as service for vesting purposes.

VRRA already required that a person who returns to previous employment following military service be restored to such status that the person “would have enjoyed if such person had continued in such employment continuously.” See VRRA section 4301(b)(2). Such status includes pension benefits. USERRA was enacted to clarify, and in some cases extend, VRRA. Here, the pension protection provided under USERRA merely clarifies the definition of “benefit” under VRRA as well as the method of returning the individual to his prior benefit status. Therefore, as the Plan’s liability is not increased and no new duties are imposed on the Plan, the provisions of USERRA relevant to pension plans can be retroactively applied in the present case.

	USERRA clarified that adequate reinstatement following military service includes pension benefit accrual. Under USERRA section 4318(a)(2)(A), a reemployed person must be treated as not having incurred a break in service with the employer maintaining a pension plan. See USERRA section 4318(a)(2)(A). Here, the Plan is in violation of USERRA because the Plan itself has admitted to treating Mr. Doe’s military service as a break in service. See Exhibit A. Military service must be considered service with an employer for vesting and benefit accrual purposes. See USERRA section 4318(a)(2)(B). Again, the Plan has stated that it does not consider military service to be service for vesting accrual purposes. See Exhibit A. Finally, the employer is liable for funding any obligation of the plan to provide the required benefits. See USERRA section 4318(b)(1). As the Plan is treating Mr. Doe’s military service as a break in service, it is implied that the Plan is in violation of USERRA for not funding its pension obligations on behalf of Mr. Doe.

	In accordance with USERRA, Mr. Doe’s military service must be considered service for vesting purposes. Mr. Doe is therefore entitled to an additional 24-25 months of vesting service. In accordance with USERRA, by including the additional 24-25 months of vesting service and the current 8.480556 years of vesting service the Plan has already attributed to Mr. Doe, Mr. Doe has thus accrued more than 10 years of service credit for vesting purposes in accordance with the Plan. Therefore, Mr. Doe is entitled to a pension benefit.

Conclusion

	For the reasons outlined above, we request that Mr. Doe be paid his pension as of the pension starting date of June 15, 2017. If there is any paperwork which must be completed by Mr. Doe in order for pension payments to commence, please forward it to me immediately. I am enclosing a signed Release from Mr. Doe authorizing the release of information regarding his pension to the Pension Action Center as Exhibit B.

Please direct any written response to me at: Pension Action Center, Gerontology Institute, Univ. of Massachusetts Boston, 100 Morrissey Blvd., Boston, MA 02125. If you have any questions regarding this request, please do not hesitate to contact me at 617-287-7314 or susan.hart@umb.edu. 

Thank you for your attention to this matter.

								Sincerely,

								Jeanne Medeiros, Esq.
								Director, Pension Action Center

								Susan Hart
								Pension Counselor